Wm Hi m I I "I giue tktft Books for. Vie foiauting if a. College bifitiiColoay^ I • YALE-^MVEiasirinf • j 9 or THE FREE CHURCH OF SCOTLAND APPEALS THE FREE CHURCH OF SCOTLAND APPEALS 1903-4 UNITED FREE CHURCH AUTHORISED REPORT EDITED BY EOBERT LOW ORE M.A., LL.B., ADVOCATE THIRD EDITION JEofnburgb : MACNIVEN & WALLACE LONDON : HODDER & STOUGHTON 1904 First Impression . August 1904 Second Impression . September 1904 Third Impression . November 1904 PREFACE In view of the far-reaching importance of the issues raised in the Church Union litigations, it has been thought desirable to lay before the public the whole of the printed pleadings on both sides, in the Court of Session and also in the House of Lords, and in addition a verbatim report of the oral argument at the Ee-hearing before the House of Lords, together with the Opinions of the Judges. The Documents separately printed by both parties and referred to in the discussions were numerous and bulky, and could not possibly be in cluded in the present volume, but those portions of the Documents which were cited in argument will be found printed in full in the speeches of counsel before the House of Lords. The reader, therefore, will find in this volume all that is necessary in order to follow fully and in every detail the whole course of the argument. It is right to add that the references to the Documents by pages and letters, constantly occurring throughout the speeches, are to the Documents as they were printed for the use of the Judges. But, as explained above, the passages so referred to are quoted at length in this volume at the appropriate places in the speeches. The Appeals were argued for the first time in the House of Lords during eight sittings in November and December 1903 — namely, on November 24th, 26th, 27th, 30th; December 1st, 3rd, 4th, and 7th. The tribunal then con sisted of six judges — the same peers as sat in the Ee-hearing, except that Lord Shand was then present, while Lord James of Hereford and Lord Alverstone did not sit. Lord Shand died while the cases were at avizandum and a Ee-hearing was ordered. An Index has been appended and may be found useful for reference to the leadmg topics brought under discussion. E, L, OEE, Epinbuegh, August 1904, CONTENTS. PAGE Closed Record in General Trustees' Case 1 Summons 2 Condescendence and Answers . 5 Statement of Facts for Defenders 25 Closed Record in Model Trust Deed Case 44 Summons ... 44 Condescendence and Answers . 45 Statement of Facts for Defenders 52 Lord Low's Opinion in General Trustees' Case 56 Lord Low's Opinion in Model Trust Deed Case 64 Lord Justice-Clerk's Opinion 66 Lord Young's Opinion . 73 Lord Tratner's Opinion . 76 Pleadings in House of Lords 80 Appellants' Case (General Trustees' Case) 80 Respondents' Case (General Trustees' Case) 115 Appellants' Case (Model Trust Deed Case) 148 Respondents' Case (Model Trust Deed Case) 164 Mr Johnston's Speech 173 Mr Salvesen's Speech . 299 Dean of Faculty's Speech 337 Mr Haldane's Speech . 477 Mr Johnston's Reply . 550 Lord Chancellor's Opinion 562 Lord Macnaghten's Opinion 572 Lord Davey's Opinion . * 578 Lord James of Hereford's Opinion . 585 Lord Robertson's Opinion 591 Lord Lindley's Opinion 604 Lord Alverstone's Opinion 610 Index ... 621 I GENERAL ASSEMBLY OF THE FREE CHURCH OF SCOTLAND AGAINST .OVERTOUN AND OTHERS CLOSED RECORD IN CAUSA (1) The General Assembly of the Association or Body of Christians known as The Free Church of Scotland, acting through its Commission of Assembly duly appointed by an Act of said General Assembly, of date 2nd November 1900, and the Reverend Colin A. Bannatyne, Culter, Moderator; (2) The said Rev. Colin A. Bannatyne and Others, being Members of a Committee appointed and authorised by the said General Assembly to sue for and on behalf of said General Assembly, as such Members and also as Individuals, — Pursuers; AGAINST (First) The Right Honourable John Campbell, Baron Overtoun, of Overtoun, and Others, being the General Trustees, surviving, accepting, and acting under Acts of General Assembly of the Free Church of Scotland, dated 17th May 1844, 1st June 1852, 29th May 1865, 4th June 1878, 5th June 1883, and 30th May 1890, as such General Trustees; (Second) the Defenders aforesaid, and Others, being the General Trustees of the Free Church of Scotland, alleged to have been appointed by the General Assembly of the Free Church of Scotland on 30th October 1900, for holding the whole property of the Free Church of Scotland from and after the 31st day of October 1900, and also General Trustees of the Association or Body of Christians calling themselves The United Free Church of Scotland alleged to have been appointed by Act of a General Assembly of said Church of 31st October 1900; and (Third) the Reverend Robert Rainy, D.D., Edinburgh, Moderator; the Reverend Andrew Melville, D.D., . Edinburgh, Reverend Archibald Henderson, D.D., Crieff, Reverend Thomas Kennedy, D.D., and the Reverend William Blair, D.D., Clerks; and Robert Russell Simpson, W.S., Edinburgh, Depute-Clerk, all to the General Assembly aftermentioned of said United Free Church, and the following, viz., Reverend Walter Ross Taylor, Glasgow; Charles John Guthrie, Q.C., Edinburgh, Legal Adviser; John Cowan, W.S., and William Robson, S.S.C., Edinburgh, Law Agents; A. Ellison Ross, S.S.C., Edinburgh, General Treasurer ; and J. T. S. Watson, Assistant Treasurer ; John Slight, Accountant, Edinburgh, and James Macdonald, W.S., Edinburgh, Custodier of Titles, all of the said United Free Church of Scotland, and Others, being (with the exception of the Reverend George Douglas) Members of the General Assembly of said Association or Body of Christians calling themselves The United Free Church of Scotland, assembled at Edin burgh on 31st October 1900. GENERAL TRUSTEES' CASE I.— SUMMONS. Victoria, by the Grace of God of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, to , Messenger-at-arms, our Sheriffs in that part, conjunctly and severally, specially constituted, Greeting. — Whereas it is humbly meant and shewn to us by our lovites (1) the General Assembly of the association or body of Christians known as the Free Church of Scotland, acting through its Commission of A-Ssembly duly appointed by an Act of said General Assembly, of date 2nd November 1900, and the Reverend Colin A. Bannatyne, Culter, Moderator, the Reverend J. K. Cameron, clerk, and J. Hay Thorburn, depute clerk, all of said Assembly ; and by the Reverend Donald Maclean, Moy; Reverend Finlay Macrae, Knockbain ; Reverend Murdo Macqueen, Kiltearn ; Reverend Norman Campbell, Creich ; Reverend John Noble, Lairg ; Reverend William Mackinnon, Gairloch; Reverend John Macleod, Glasgow ; A. M'Neilage, publisher, Glasgow ; W. Rouns- fell Brown, writer, Glasgow ; David Munro, accountant, Inverness ; Kenneth Stewart, gardener, Inverness; William MacLennan, farmer, Kilcoy, by Muir of Ord; Robert Andrew Moody, writer, 163 West George Street, Glasgow ; George MacDonald, merchant, Lairg ; Peter Hun ter, joiner, Invercloy, Brodick ; John Macleod, storekeeper, 175 Gallowgate, Glasgow; Neil Mackinnon, ironmonger, Oban ; members of the said Assembly and its said Commission, and also of the said association called the Free Church of Scotland, as such members and as repre senting said General Assembly, commis sioners of Assembly, and association, and also as individuals ; (2) the said Reverend Colin A. Bannatyne, Reverend J. K. Cameron, J. Hay Thorburn, A. M'Neilage, W. Rounsfell Brown, and the Reverend J. D. M'Cullooh, Glasgow (also a member of Commission foresaid), being members of a committee appointed and authorised by the said General Assembly to sue for and on behalf of said General Assembly, as such members and also as individuals, — Pursuers; against (First) the Right Honourable John Campbell, Baron Over toun, of Overtoun, and others, being the general trustees, surviving, accepting, and acting under Acts of General Assembly of the Free Church of Scotland, dated 17th May 1844, 1st June 1852, 29th May 1865, 4th June 1878, 5th June 1883, and 30th May 1890, as such general trustees ; (Second) the defenders aforesaid and others, being general trustees of the Free Church of Scotland, alleged to have been appointed by the General Assembly of the Free Church of Scotland on 30th October 1900, for holding the whole property of the Free Church of .Scotland from and after the 31st day of October 1900, and also general trustees of the association or body of Christians calling themselves the United Free Church of Scotland alleged to have been appointed by Act of a General Assembly of said Church of 31st October 1900 ; and (Third) the Reverend Robert Rainy, D.D., Edinburgh, modera tor ; the Reverend Andrew Melville, D.D., Edinburgh, Rev. Archibald Henderson, D.D., Crieff, Rev. Thomas Kennedy, D.D., and the Rev. William Blair, D.D., clerks ; aud Robert Russell Simpson, W.S., Edin burgh, depute-clerk, all to the General Assembly, aftermentioned of said United Free Church, and the following, viz., Rev. Walter Ross Taylor, Glasgow ; the said Charles John Guthrie, Q.C., Edin burgh, legal adviser ; the said John Cowan, W.S., and William Robson, S.S.C., Edin burgh, law agents ; A. Ellison Ross, S.S.C., Edinburgh, general treasurer; and J. T. S. Watson, assistant treasurer ; John Slight, accountant, Edinburgh, and James Macdonald, W.S., Edinburgh, custodier of titles, all of the said United Free Church of Scotland, and the following, viz. : [Here follow the names and designations of the whole members of the General Assembly of the United Free Church assembled at Edinburgh on 31st October 1900], being members of the General Assembly of the said association or body of Christians calling themselves the United Free Church of Scotland, assembled at Edinburgh on 31st October 1900, and being the members of the Commission of said General Assem bly, and all members of said association or body of Christians, as such members SUMMONS and as representing the said association, its said General Assembly and Com mission thereof, — Defenders ; in terms of the condescendence and pleas in law hereunto annexed : Therefore it ought and should be found and declared, by decree of the Lords of our Council and Session (In the First Place) (1) that the whole lands, properties, sums of money, and others which stood vested as at the 30th day of October 1900 in the defenders the Right Hon. John Campbell, Baron Overtoun, and others (being the defenders enumerated in the first place), as general trustees of the Free Church of Scotland hereinbefore specified, were vested in and held by the said defenders as trustees under various trusts for behoof of and in connection with the association or body of Christians known as the Free Church of Scotland, and that no part of the said lands, properties, or funds so vested in or held by them might lawfully be diverted to the use of any other association or body of Christians, or at least of any other asso ciation or body of Christians not professing, adhering to, and maintaining the whole fundamental principles embodied in the constitution of the said Free Church of Scotland, without the consent of the said Free Church of Scotland, or at least with out the unanimous assent of the members of a lawfully convened General Assembly of the said Church ; (2) that the asso ciation or body of Christians calling itself the United Free Church of Scotland is an association or body of Christians associated under a constitution which does not em body, adopt, and provide for maintaining intact the whole principles which are fundamental in the constitution of the said Free Church of Scotland; (3) that the said United Free Church of Scotland has no right, title, or interest in any part of the said lands, property or funds ; (4) that such of the defenders as, having for merly been members of the Free Church of Scotland, have adhered to and asso ciated themselves as members of the said United Free Church, have thereby amitted, lost, and forfeited all right and title to and beneficial interest in the said lands, pro perty, and funds (save and excepting only such vested rights (if any) as they or any of them may be found to have indefeasibly acquired in any of said subjects by the mere fact of having at any time been ministers or members of said Free Church of Scotland) ; (5) that the said the Right Hon. John Campbell, Baron Overtoun, and others, the defenders first enumerated, being the general trustees for the Free Church of Scotland as at 30th October last, or the defenders second enumerated, or such others of the defenders as may now be possessed of or vested in the said lands, property, and funds, may not law fully apply the same or any part thereof for behoof of the said association or body of Christians known as the United Free Church of Scotland, or (saving as afore said) of any of the defenders who may adhere and associate themselves as mem bers of the same ; (6) that the pursuers and those adhering to and lawfully asso ciated with them conform to the constitu tion of the Free Church of Scotland are and lawfully represent the said Free Church of Scotland, and are entitled to have the whole of said lands, property, and funds applied according to the terms of the trusts upon which they are respec tively held for behoof of themselves and those so adhering to and associated with them, and their successors, as constituting the true and lawful Free Church of Scot land, and that the defenders the said Right Hon. John Campbell, Baron Over toun, and others, as general trustees fore said, or the defenders second enumerated, or those of the defenders in whose hands or under whose control the said lands, property, and funds may be for the time being, are bound to hold and apply the same (subject always to the trusts after- mentioned) for behoof of the pursuers and those adhering to and associated with them as aforesaid, and subject to the lawful orders of the General Assembly of the said Free Church of Scotland, or its duly appointed Commission for the time being, and in particular that they are bound to denude themselves of the whole of said lands, property, and funds in favour of such parties as may be nominated as general trustees by a General Assembly of the Free Church of Scotland, or its duly appointed Commission for the time being, but subject always to the trusts upon which the said lands, property, and funds were respectively held by the said defen ders for behoof of the Free Church of 4 GENERAL Scotland as at 30th October 1900; or otherwise, and as alternative to the fore going conclusions, In the Second Place, it ought and should at least be found and declared, by decree of our said Lords, that the pursuers and those who may adhere to them, have not by declining to adhere to the said association or body of Christians known as the United Free Church of Scot land, and by electing to maintain them selves in separation therefrom as an association or body of Christians under the name, and maintaining the whole standards, constitution, and distinctive principles of the said Free Church of Scotland as heretofore existing, thereby lost or forfeited any right, title, or interest which they had at or prior to the 30th day of October 1900 in the said lands, property, and funds, but that they are entitled to the use and enjoyment of the same (subject to the trusts aforesaid), either by themselves or along with such of the defenders as, being formerly members of the Free Church of Scotland, have now associated themselves as members of the said United Free Church of Scotland, or others having right thereto or interest therein, and that in such proportion and upon such conditions as may be deter mined by our said Lords in the course of the process to follow hereon : And further, the said defenders in the first and second place called, ought and should, by decree foresaid, be interdicted, prohibited, and discharged from conveying, paying over to, or applying to the uses of the defenders in the third place called, or the said asso ciation or body of Christians calling itself the United Free Church of Scotland, all or any part of the lands, property and funds foresaid (except to the extent to which certain of the individual defenders, formerly ministers or members of the Free Church of Scotland, may be found to have vested rights therein as aforesaid) ; and the whole defenders ought and should, by decree foresaid, be interdicted, prohibited, and discharged from molesting or inter fering with the said association known as the Free Church of Scotland and the pur suers as representing the same in the law ful use and enjoyment of the said lands, property, and funds; or otherwise and alternatively to the foregoing conclusion, the whole defenders ought and should be ifor of TRUSTEES' CASE interdicted, prohibited, and discharged from excluding the said Free Church of Scotland, and the pursuers as representing the same, from, or molesting them in the use and enjoyment of, said lands, property, and funds to the extent to which they may be found entitled thereto in the course of the process to follow hereon : And further, in case it may be necessary, Our Will is, and we charge you that, on sight hereof, ye pass and in our name and authority lawfully summon, warn, and charge the said defenders personally, or at their dwelling-places if within Scotland, or if furth thereof by delivery of a copy hereof at the office of the Keeper of Edictal Citations, to compear before the Lords of our Council and Session at Edinburgh, or where it may happen them to be for the time, the said defenders, within Scotland, unless in Orkney Shetland, or in any other island Scotland, the seventh day, or if in Orkney or Shetland or such other island, or if furth of Scotland, the four teenth day next after the date of your citation, in the hour of cause, with con tinuation of days, to answer at the instance of our lovites the Rev. Colin A. Bannatyne, the minister at Culter, and others herein before enumerated as pursuers, to whose great hurt and prejudice, the following pretended Acts were passed, that is to say, I. Free Church Acts — (1) Act sanctioning the passing of the Uniting Act ; (2) Act appointing general trustees ; (3) Act de claring United Free Church to be suc cessors of the Free Church of Scotland; and (4) Act of Adjournment, all passed by the votes of a majority of those present at the sitting of the meeting of the General Assembly of the Free Church of Scotland of 30th October 1900; and II. United Free Church Acts — (1) Uniting Act; (2) Act appointing general trustees ; (3) Act anent formulae; and (4) Act anent declarations regarding the Union, all passed by said General Assembly of the United Free Church on 31st October 1900, whereby the pursuers have good and undoubted right to call for production thereof, to prosecute and follow forth the present conclusions for reduction ; that is to say, the said defenders to bring with them and produce before our said Lords the said Acts of the dates and descriptions fore- SUMMONS said, or of whatever other dates, descrip tions, and contents the same may be, and to hear and see the same, with all that has followed or may follow thereon, if necessary, reduced, retreated, cassed, annulled, decerned, and declared, by decree of our said Lords, to have been from the beginning, to be now and in all time coming null and void, and of no force, strength, or effect in judgment or outwith the same, but that only in so far as the same may have or pretend to have any effect upon the civil rights of the pursuers and defenders respectively in regard to the foresaid lands, property, and funds, or other civil interests of the parties, and the pursuers reponed and restored thereagainst in integrum to ex tent foresaid: Therefore, and for the reasons to be proponed at discussing hereof, the said several Acts, and all that has followed or may follow on the same, ought and should, if necessary, be reduced, retreated, cassed, annulled, and declared, by decree of our said Lords, to have been from the beginning, to be now and in all time coming null and void, and of no avail, force, strength, or effect in judgment, or outwith the same, but that only to the extent foresaid, and the pursuers reponed and restored thereagainst in integrum so far as aforesaid, with certi fication to the said defenders that if they fail, our said Lords shall proceed in the said matter, and reduce, decern, and declare as aforesaid ; and lastly, such of the said defenders as may appear to oppose the conclusions hereof ought and should be decerned and ordained, con junctly and severally, or severally, or in such other manner as shall seem just in the process to follow hereon, by decree of our said Lords, to make payment to the pursuers of the sum of £100 sterling, or such other sum, more or less, as our said Lords shall modify, as the expenses of the process to follow hereon ; conform to the laws and daily practice of Scotland, used and ' observed in the like cases, as is alleged. — Our Will is herefore, and we charge you that, on sight hereof, ye pass and in our name and authority lawfully summon, warn, and charge the said de fenders personally, or at their dwelling- places if within Scotland, or if furth thereof by delivery of a copy hereof at the office of the Keeper of Edictal Citations, to compear before the Lords of our Council and Session at Edinburgh, or where it may happen them to be for the time, the said defenders, if within Scot land, unless in Orkney or Shetland or in any other island of Scotland, the seventh day, or if in Orkney or Shetland or such other island, or if furth of Scotland, the fourteenth day next after the .date of your citation, in the hour of cause, with con tinuation of days, to answer at the instance of the pursuers in the matter libelled ; that is to say, to hear and see the premises verified and proven, and decree and sentence pronounced by our said Lords, or else to allege a reasonable cause in the contrary, with certification as effeirs. According to Justice, as ye will answer to us thereupon ; which to do we commit to you, conjunctly and severally, full power by these our letters, delivering them to you, duly executed and endorsed, again to the bearer. — Given under our Signet at Edinburgh, Fourteenth Decem ber Nineteen hundred years. David W. Mar wick, Writer to the Signet. James Simpson, S.S.C. IL— CONDESCENDENCE for Pursuers; AND ANSWERS thereto for Defenders. Cond. 1. The pursuers are (1) the General Assembly of the association or body of Christians known as the Free Church of Scotland, convened to meet at Edinburgh on 30th October 1900, and Commission of said General Assembly, duly appointed by Act of Assembly of date 2nd November 1900, and the moderator, clerk, depute-clerk, and a majority and quorum of the members of said Assembly ; and (2) the members of a committee appointed by said General Assembly, with authority to 6 GENERAL TRUSTEES* CASE sue in their name and on their behalf. The pursuers sue on behalf of said General Assembly, Commission, and association, and the individuals also for any interest they may have as such. Ans. 1. Denied. Several of the persons whose names were used as pur suers gave no mandate or authority for such use of their names. They were not in point of fact pursuers, and re pudiated and disclaimed the use of their names as such. They have lodged minutes of disclaimer in process craving to have their names withdrawn from the instance, and their names were ordered by the Court to be deleted. They are Reverend George Macleod, Stratherrick, Reverend Alexander Mac- kay, Glenurquhart, David Marshall, farmer, Leitchland, Elderslie, and George Thornton, retired draper, Arbroath. The averments as to the remaining pursuers are denied. Cond. 2. The defenders are (first) the general trustees in whom stand vested certain properties and funds belonging to said Free Church of Scotland, including inter alia the properties aftermentioned, as general trustees for and on behalf of the Free Church of Scotland appointed and acting under inter alia Acts of As sembly dated 27th May 1844, 1st June 1852, 29th May 1865, 4th June 1878, 5th June 1883, and 30th May 1890; (second) the general trustees appointed under pretended Acts of said Church and of the General Assembly of the United Free Church aftermentioned, dated respec tively 30th and 31st October 1900; and (third) the moderator, clerk, and depute- clerk of the General Assembly of the body calling itself the United Free Church of Scotland, assembled at Edinburgh on 31st October 1900, the executive officials of the said body, and the other members of said Assembly and of the Commission thereof, as members of and representing the said Assembly and Commission, and the body or association of Christians calling itself the United Free Church, and as in dividuals. Ans. 2. Admitted that the first-named defenders were — with the exception Of Dr. Joseph Bell and Mr. James Howden — the general trustees of the Free Church of Scotland at 30th October 1900, ap pointed and acting under various Acts of Assembly, and at that date stood vested in certain property and funds which are now vested in the parties second called, who are the general trustees of the United Free Church of Scotland, appointed and acting under Acts of the General Assembly of the Free Church of Scotland and of the United Free Church of Scotland. Ad mitted that the parties third called are the moderator, clerk, and depute-clerk, and the other members of the General Assembly of the United Free Church of Scotland, which assembled at Edinburgh on 31st October 1900. Quoad ultra denied. Cond. 3. The said association or body of Christians known as the Free Church of Scotland originated in 1843 by the withdrawal from the Established Church of Scotland of a large body of the ministers and members thereof, who associated them selves together as the said Free Church of Scotland. The immediate cause of the Disruption or separation of the said Free Church from the Established Church of Scotland was the undue interference with and encroachment upon the jurisdiction of the Church by the Civil Courts, with the support of the Legislature, in matters spiritual. In consequence of such inter ference the Assembly of the Established Church, on 30th May 1842, resolved and agreed upon a Claim, Declaration, and Protest, and an Address to Her Majesty Queen Victoria, and on 31st January 1843 upon a Petition to Parliament to accompany said Claim, Declaration, and Protest, which were thereafter duly presented to Her Majesty and to Parliament respectively. Copies thereof are printed in the Acts of the Assembly of the Established Church. The said Claim, Declaration, and Protest, Address and Petition, copies of which are produced, are hereby referred to for their terms and held as repeated brevitatis causa. Ans. 3. Admitted that the Free Church of Scotland began its existence as a Church not in alliance with the State by the separation in 1843 from the Church Establishment in Scotland of a large number of ministers and members thereof who formed themselves CONDESCENDENCE into the said Free Church. Admitted that the Church of Scotland agreed upon a Claim, Declaration, and Protest, and an Address to the Queen in 1842. Quoad ultra denied, under reference to the Statement of Facts for defenders. Cond. 4. Her said Majesty and the House of Commons having refused to entertain this Claim, Declaration, and Protest, those ministers and elders con vened as commissioners to the General Assembly of the Established Church, who adhered to and insisted upon the said Claim, Declaration, and Protest, on 18th May 1843 laid upon the table of the said General Assembly a further Protest signed by them, and in terms thereof separated themselves from the Established Church. They, with such other ministers and eldeTS as adhered to them, upon said 18th May 1843, formed themselves into the associa tion since known as the Free Church of Scotland, and constituted a General As sembly of said Church, and appointed a moderator, whereupon the Protest afore said was produced and read and ordered to be recorded. Said Protest forms Act I. Session 1843, of the Acts of the General Assembly of the Free Church of Scotland, which is referred to for its terms, and held as repeated brevitatis causa. In so separating from the Established Church of Scotland, the ministers and members who formed themselves into the said Free Church of Scotland expressly asserted the duty of the State to maintain an Estab lished Church, and reserved to themselves and their successors to strive by all lawful means, as opportunity should offer, to secure the performance of this duty. They adhered to the Westminster Confession and the other Standards and the Acts of the Established Church of Scotland as their Standards and Acts, and they claimed to be and were the Church of Scotland, freed merely from the control of the Civil Courts in matters spiritual. They renounced for the time being the benefits of the Estab lishment so long as these were subjected to the conditions which they deemed the Civil Courts, with the support of the Legis lature, to attach to them, and with which they could not in conscience comply. Ans. 4. The said Protest is referred AND ANSWERS 7 to. Quoad ultra denied, under refer ence to defenders' Statement of Facts. Cond. 5. A committee having been appointed to consider the proper course for effecting and completing the separation from the Establishment, reported upon the form of the Act of Separation and Deed of Demission, which was afterwards ap proved by the Assembly of the Free Church and subscribed by the ministers and elders then in Edinburgh, duplicates thereof being also subscribed by ministers and elders not then in Edinburgh, and by probationers who adhered to the Disruptionists. A copy of said Deed of Demission, signed of date 23rd May 1843, is recorded in the Books of Council and Session 8th June 1843. A copy thereof is produced and is held as repeated brevitatis causa, and re ferred to for its terms. Ans. 5. Admitted that a Deed of Demission was prepared, approved, and subscribed. It is referred to for its terms, beyond which no admission is made.Cond. 6. It sets forth inter alia that the signatories, for the reasons stated in the Claim of Right, Declaration, and Pro test of 18th May 1842, and Protest of 30th May 1843, should ' be free to exercise ' government and discipline in their several 1 judicatories, separate from the Establish- ' ment, according to God's Word, and the ' Constitution and Standards of the Church 1 of Scotland, as heretofore understood.' Ans. 6. The Deed of Demission is re ferred to for its terms. Cond. 7. By the 19th Act of the said As sembly of 1843, a copy of which, so far as pertinent, is produced and referred to, the several Presbyteries of the Free Church were enjoined to record the Protest taken on the 18th of May of that year, together with the Act of Separation and Deed of Demission ' as the ground and warrant of ' their proceeding.' Ans. 7. The said Act is referred to for its terms. Cond. 8. In consequence of the Disrup tion from the Establishment of the ministers and members who constituted themselves the Free Church of Scotland, 8 GENERAL and in accordance with the grounds and reasons of such Disruption, as set forth in the foresaid constituting documents of said Free Church, it was found necessary to amend the Questions and Formula formerly in use by the Established Church of Scotland at the licensing of probationers, and the ordination of deacons, elders, and ministers respectively, and accordingly, on 1st July 1846, the General Assembly of the Free Church, by Act 1846, cap. 12, readjusted the Questions and Formula of the Established Church so as to adapt them to the position which the Free Church had taken up, and to embody the profession of her ministers and office bearers. The said Act, a copy of which is produced, is referred to for its terms, and held as repeated brevitatis causa. Ans. 8. The said Act is referred to for its terms. Cond. 9. Further, on 31st May 1851 the General Assembly of the Free Church, by Act of Assembly 1851, cap. 9, sanctioned the publication of a volume containing the subordinate standards and other authori tative documents of the said Church, and adopted an Act and Declaration relative thereto. A copy of said Act of Assembly is produced and referred to for its terms and held as repeated brevitatis causa. The said subordinate standards were those of the Church of Scotland, viz., the Confession of Faith, the Larger and Shorter Catechisms, and the Directory for Public Worship and form of Church G overnment agreed upon by the Assembly of Divines at Westminster in 1643. The said Act of Assembly and Act and Declara tion incorporated therein were merely declaratory and not enacting, and the provisions of the Barrier Act, referred to in answer, were not applicable thereto. They were in entire accordance with the origin and construction of the Free Church, and accordingly recognised the said Con fession of Faith as the test of their pro fession to be imposed by subscription upon her ministers and elders. Ans. 9. The said Act and Declaration is referred to for its terms. It was not passed in terms of the Barrier Act, and did not therefore become binding as a law of the Church. TRUSTEES* CASE Cond. 10. The said Free Church of Scotland is a voluntary association or body of Christians associated together under a definite contract involving the maintenance of definite principles. That contract is constituted by the foresaid Claim of Right, Declaration, and Protest of 1842, Protest of 1843, and Act of Separation and Deed of Demission of 1843, and the Acts of Assembly of the Church of Scotland, in so far as not modified thereby. The fore said contemporaneous documents, viz., the Act of Assembly of 1846, cap. 12, and the Questions and Formula thereby sanctioned, and the Act of Assembly of 1851, cap. 9, are in accord therewith and expository thereof. Said constituting documents recognise as an essential principle of the Free Church the assertion of the duty of the State 'to maintain and support an ' establishment of religion in accordance ' with God's Word,' and as an essential standard of her belief, the Westminster Confession. Ans. 10. Denied as stated, under reference to the Statement of Facts for defenders. Cond. 11. The contract of association or constitution of the said Free Church of Scotland under which it was first associated contains no provision for any alteration being made in the essential principles of the said constitution aud standard of belief, or for union with any other Church or association of Christians hold ing different principles or recognising a different standard of belief, by any mere majority, however large, of the members for the time being of the said Free Church of Scotland. Ans. 11. Denied, and reference made to the Statement of Facts for defenders. Cond. 12. In course of its existence the Free Church of Scotland has from time to time acquired lands, moneys, and other property, which belong to it for application to various purposes in connection with it as a Church existing under the contract of association or constitution as herein before specified. Said contract of associa tion or contract or constitution does not provide for or admit of any majority of the members of the Free Church of CONDESCENDENCE Scotland thereby constituted diverting the said property from the uses of said Church to the uses of any other Christian associa tion of Christians, and particularly to the uses of any such church or association holding principles and standards of belief differing from those of the said Free Church of Scotland as originally con stituted. The individual pursuers became members, ministers, or office-bearers of the said Free Church of Scotland under and in reliance upon its constitution as herein before defined. Ans. 12. Admitted that the Free Church in the course of its existence acquired from time to time lands, moneys, and other property for applica tion to various purposes in connection with its work as a Church. Quoad ultra denied. Cond. 13. As already stated, one of the essential principles recognised by those who associated themselves to form the Free Church of Scotland, emphasized by their leaders in their utterances at the time of the Disruption, and embodied in the contract of association or constitution of said Church as hereinbefore defined, is that it is the duty of the civil magistrate to maintain and support an Establishment of religion in accordance with God's Word ; and the said Church as originally associated recognised and maintained the propriety and advantage of the endowment of pastoral charges and the promotion of religious education by the State. The principle of the duty of the recognition of religion by the State by means of the establishment and, where possible, endow ment of a National Church, was moreover implicitly involved in the position claimed by the Free Church as being the Church of Scotland freed merely from the control of the civil courts in matters spiritual. The said principle formed an essential principle of the Free Church of Scotland, and its maintenance was one of the main reasons for the formation of that Church as a separate association or body of Chris tians, distinct and apart from those who professed themselves to be ' voluntaries.' There were several such associations of seceders from the Established Church of Scotland in existence at the time of the AND ANSWERS 9 Disruption of 1843, holding views practi cally identical with those of the founders of the Free Church in matters of doctrine and as to the encroachments of the civil courts, but differing from them as regarded the duty above referred to. In regard to this, these bodies were 'voluntaries' in the sense of holding such action of the State to be unlawful. The foundation of the Free Church was a protest against the position of such churches on the one hand, just as it was against the encroachments of the civil power on the other. Ans. 13. Denied, and reference made to Statement of Facts for defenders. Cond. 14. For many years past there has been a party in the Free Church of Scotland desirous of forming an incor porating Union between the Church and the United Presbyterian Church of Scot land. The latter body is an association or body of Christians maintaining and pro fessing principles which, while in many respects similar to, are upon some points fundamentally different from, those of the Free Church of Scotland. In particular it is not a principle of the constitution of the said United Presbyterian Church that the civil magistrate has any duty or even any right to maintain and support an Establishment of religion. Such duty or right was not recognised by said Church. On the contrary it was negatived by at least one of the bodies which in 1847 united to form that Church. In particular it was at the time of the negotiations for said Union aftermentioned, an accepted and distinctive principle of the United Presbyterian Church, not only that no such duty or right exists, but that it is neither lawful nor expedient for the State to give sanction to any creed in the way of setting up an Establishment of religion, nor within its province to provide for the expense of the ministrations of or otherwise to further religion, or even to provide the means of elementary religious education, out of the national resources. Ans. 14. Denied, and reference made to Statement of Facts for defenders. Cond. 15. In 1897 the United Presby terian Synod's Committee upon Disestab lishment and Disendowment issued, as au GENERAL TRUSTEES' CASE io official statement of the position of that Church, a tract (No. 25), entitled 'The ' Jubilee of the United Presbyterian ' Church in the light of its historical ' testimony as to the proper relations ' between the Church and State, 1897,' which commences with the affirmation that 'The United Presbyterian Church ' maintains as one of its most distinctive ' principles that it is not the province of ' the State to establish and endow the ' Christian Church.' After a narrative expounding the history of the testimony of the constituent elements of the United Presbyterian Church and of that Church itself on the question, the tract enunciates as the conclusion arrived at that, ' To ' minimise the value of the voluntary ' principles of the United Presbyterian ' Church, as of late adoption and not ' essential to its testimony, is to deny ' the facts of history, and to refuse to ' see in them the natural and necessary ' growth of the earlier contendings of the ' Fathers.' In reporting to the Synod of 1897 the said committee stated, inter alia, that ' it has been the aim of the Synod's ' Committee to bring the voluntary prin- ' ciples of the Church to bear on the various ' public questions that have emerged since ' the last meeting of Synod.' And the Synod, at its meeting of 7th May 1897, approved of the committee's action in upholding the Church's testimony on the proper relations between Church and State, and instructed it to take all fit opportuni ties of making its voluntary principles throughout the Church and the community, and authorised it to support such parlia mentary action as should give effect to these principles. At the same time the Synod renewed 'the testimony of 1847 ' of the United Presbyterian Church, con- 1 stantly maintained,' 'that it is not within ' the province of civil government to pro- ' vide for the religious instruction of the ' subject, and that this department of the ' education of the young belongs exclu- ' sively to the parents and the churches.' The said tract (No. 25), Report of Com mittee and Resolutions of Synod, copies of which are produced and referred to, correctly express the conception of the United Presbyterian Synod itself of the position of that Church towards the Establishment. Similar resolutions had been previously passed by the Synods of, inter alia, 1848, 1850, 1851, 1854, 1865, and 1866 ; and resolutions to the like effect were adopted at the Synods of 1898, 1899, and May 1900, copies of which are produced and referred to. Ans. 15. Explained that the tract and the resolutions referred to were no part of the constitution or standards of the United Presbyterian Church. Reference is made to defenders' State ment of Facts. Cond. 16. The principles of the United Presbyterian Church are also in other important respects at variance with those of the Free Church of Scotland, and in particular as aftermentioned in the quali fied acceptance as its standard of the Westminster Confession of Faith. Ans. 16. Denied. Cond. 17. For a considerable time all efforts in the direction of Union failed, by reason of the objections of those who adhered with loyalty to the distinctive principles of the two Churches respectively. In the Free Church these efforts were met with determined opposition by a large body of ministers and elders who had been leaders in the Disruption movement of 1843, and who maintained that such Union would involve defection from the distinctive testimony and principles of the Free Church, and who were prepared, and known to be prepared, to carry their resistance to the utmost length. Conse quently the negotiations for Union were in 1871 for the time being abandoned. It was only after these leaders had passed away that the party adhering to the Church's principles of 1843 was overborne by a younger generation of clergy and elders, who have revived and carried on the negotiations for an incorporating Union of the Free Church with the United Presbyterian Church, which ultimately resulted in the pretended Acts aftermen tioned. Ans. 17. Admitted that for some years the proposed Union was delayed out of consideration for the views of certain members of the Free Church, and ths»t an incorporating Union between CONDESCENDENCE AND ANSWERS the said Churches was recently consum mated. Quoad ultra denied. Cond. 18. As a step towards the pro posed Union with the United Presbyterian Church, its promoters had urged the adoption of provisions by the Free Church of Scotland for the mutual eligibility of ministers of the United Presbyterian, Re formed Presbyterian, and Free Churches. This proposal was, as regards ministers of the United Presbyterian Church, as obnoxious to the party opposing union with the United Presbyterian Church as the proposal for that union itself, in respect that it involved the admission as ministers of the Free Church of ministers of a Church holding views at variance with the distinctive testimony and principles of the Free Church. The Act providing for Mutual Eligibility was accordingly determinedly opposed in the General As sembly of the Free Church, and it was only passed on its supporters agreeing to embody in it a declaration by the General Assembly of their adherence to the great fundamental principles of the Free Church regarding (first) the sole Headship of the Lord Jesus Christ and the independence of the Church in matters spiritual, and (secondly) the obligation of the nation and the civil rulers to recognise and support religion. The said Act is the Act of Assembly 1873, cap. 4, passed on 29th May 1873, a copy of which is produced herewith and referred to. Ans. 18. The said Act of Assembly is referred to for its terms. Quoad ultra denied, under reference to defenders' Statement of Facts. Cond. 19. Simultaneously with the passing of said Act, and under pressure from those opposing the foresaid Union with the United Presbyterian Church, there was passed an interim Act providing for the acceptance of the Free Church Questions and Formula as enacted in Act of Assembly 1846, cap. 12, by all ministers proposed to be called under the Mutual Eligibility Act of 1873, which haviDg been transmitted under the Barrier Act to Presbyteries, was on 1st June 1874 passed as a permanent Act. The necessity of said Act was occasioned by the tendency II to qualified acceptance of the standards by the United Presbyterian Church. A copy of said Act is produced herewith and referred to. Ans. 19. The said Act is referred to for its terms. Quoad ultra denied, under reference to defenders' Statement of Facts. Cond. 20. It was not till 1891 that any farther step towards the proposed Union with the United Presbyterian Church was made. This took the form of a measure which was introduced into the General Assembly of the Free Church in that year, and was in 1892, though only under protest, passed into the Act of Assembly 1892, No. 8 of Class II. , in which the Assembly, claiming for the first time the authority to determine what points in the Confession of Faith entered and what points did not enter into the substance of the Reformed Faith, proceeded to qualify the Confession of Faith as therein set forth, and reserved to itself authority to make such further qualifications as should be deemed proper. The said Act was termed the Declaratory Act 1892. A copy thereof is produced and referred to, as also a copy of the subsequent Act of 1894, No. 5 of Class II. , also passed under protest, cap. 9, titled an Act anent the Declaratory Act 1892 on the Confession of Faith. By said last-mentioned Act it was, with a view to minimise the apparent effect of the Declaratory Act, provided that the statements of doctrine contained in said Declaratory Act 1892 were not imposed on the Church's office-bearers as part of the standards of the Church, but that those who were licensed or ordained to office in the Church should thereby be entitled to accept the Questions and Formula of the Free Church in view of the said Declaratory Act, that is, to accept and subscribe the same under reservation. The Act of 1894 had not been transmitted under the Barrier Act, presumably because of its declaratory character. These Acts were necessary to bring the Free Church into line with the United Presbyterian Church, with a view to the proposed Union, and constituted a grave defection from the principles of the Free Church as originally constituted. 12 GENERAL TRUSTEES' CASE Ans. 20. The Acts of 1892 and 1894 are referred to for their terms. Quoad ultra denied, under reference to de fenders' Statement of Facts. Cond. 21. By the Basis of Union of the United Presbyterian Church, adopted at its constitution in 1847, it was declared, Head 2 : ' That the Westminster Confes- ' sion of Faith and the Larger and Shorter ' Catechisms are the Confession and ' Catechisms of this Church, and contain ' the Authorised Exhibition of the sense ' in which we understand the Holy Scrip- ' tures, it being always understood that ' we do not approve of anything in these ' documents which teaches, or may be ' supposed to teach, compulsory or perse- ' cuting and intolerant principles in re- ' ligion.' But in May 1879 the Synod of the United Presbyterian Church had adopted a Declaratory Act whereby they modified these standards as therein set forth, and further modified the formula to be accepted by the office-bearers of the Church, to the effect of making the modi fications of the Declaratory Act not merely permissive but compulsory, in that the subscriber was called on to acknowledge the Westminster Confession of Faith and the Larger and Shorter Catechisms, not as an exhibition of the sense in which he understood the Holy Scriptures, but as such exhibition only when qualified by the explanations contained in said Declara tory Act. Copies of the Basis of Union and said Declaratory Act are produced and referred to. Ans. 21. The Basis of Union and Declaratory Act are referred to for their terms. Quoad ultra denied. Cond. 22. After the passing of the said Declaratory Act 1892, overt negotiations for union with the United Presbyterian Church were re-opened and prosecuted. As the result of these negotiations, at the General Assembly of the Free Church of Scotland, convened to meet in Edin burgh on 30th October 1900, a report was submitted upon an overture which had been transmitted to presbyteries ostensibly in terms of the Barrier Act. Following upon this report a pretended Act was passed by the said Assembly upon 30th October sanctioning the passing of a Uniting Act, the draft whereof was contained in the said report, for the union of the Free Church of Scotland with the United Presbyterian Church. Copies of the Act passed by the General Assembly, with the overture upon which the same proceeded, and the declarations therein referred to, and the report of the Com mittee on Union presented to the General Assembly of the Free Church in May 1900 and October 1900, are produced and referred to for their terms, brevitatis causa. The General Assembly of the Free Church had no power in itself to pass an Act of Union with any other church, and par ticularly an Act of Union which involved a departure from the essential and distinc tive principles of the Free Church as originally constituted, and from its stand ards of faith, and which created and con stituted a new and independent Church or association of Christians distinct from the Free Church of Scotland. Moreover, the said Act could not even be said to be the Act of the Church as a whole or of any majority of its members. It was the Act of those of the clergy and office-bearers of the Church aloue who' formed the majority of the General Assembly for the time being. Notwithstanding that the terms of the Barrier Act contemplate the sense of the ' Whole Church '- being ascertained, and therefore require a report by presbyteries, no attempt was made by the majority of the presbyteries reporting on said overture to ascertain the sense of the Church by consulting with congrega tions. In a very large number of instances neither the members of congregations, nor even the elders or deacons thereof, were in any way consulted as to their views, nor were they even informed as to the provisions of the proposed Act of Union. In point of fact, a very large proportion of the lay members, including many office bearers of the Church, did not approve of the proposed Union, but had no oppor tunity accorded to them of expressing their dissent. Further, by the recognised practice of over 200 years, reports under the Barrier Act have uniformly been to the next ordinary Assembly held twelve months after the remit. In the present instance, the irregular course was pursued CONDESCENDENCE AND ANSWERS 13 of hurrying the report and minimising time for deliberation by calling a special Assembly in October to receive and consider it. Neither a majority of the clergy and office-bearers who formed the General Assembly for the time being nor any mere majority of the members of the Church, however large, had power and authority to alter the principles and standards of the Church as originally constituted. Ans. 22. Admitted that as the result of negotiations between the said Churches and of various procedure in previous General Assemblies of the Free Church, the General Assembly of said Church, convened at Edinburgh on 30th October 1900, had submitted to it a report upon an overture which had been transmitted to presbyteries in terms of the Barrier Act recognised by the said Church, and that following thereon an Act was passed by tlie said Assembly upon the 30th October 1900 sanctioning the passing of a Uniting Act, the draft whereof was contained in the said report, for the Union of the Free Church of Scotland with the United Presbyterian Church. The documents mentioned are referred to for their terms. Explained and averred that the General Assembly of the Free Church which met in May 1899 trans mitted to presbyteries for their opinion under and in terms of the Barrier Act an overture whereby, on the preamble that certain negotiations and proceed ings therein set forth had previously taken place for a Union between the said two Churches on the ground of the Standards accepted by the said Churches, the General Assembly enacted and ordained that the Plan of Union set forth in the proposals therein narrated was authorised and accepted by the Church with a view to an incorporating Union with the United Presbyterian Church. This overture received the consent of a majority of presbyteries — only four presbyteries out of seventy- five disapproving, seventy approving, and one sending no return. The General Assembly of the Free Church which met in May 1900 passed the said overture into a law of the Church. Further explained, that the said General Assembly in May 1900 trans mitted to Presbyteries for their opinion in terms of the Barrier Act an overture setting forth that whereas certain negotiations for an incorporating Union between tlie said two Churches had been in progress since 1896, and that the Plan of Union above referred to had been authorised and accepted by the General Assembly in the said month of May 1900, with the consent of a majority of presbyteries, therefore the General Assembly enacted and ordained that an incorporating Union might be effected in terms of the Uniting Act therein set forth. This overture also received the consent of a majority of presbyteries — seventy-one presbyteries out of seventy-five approving, and four disapproving, while seven foreign Pres byteries expressed approval and and one made no return. The General Assembly of the Free Church which met in October 1900 passed the said overture sanctioning the said Uniting Act into a law of the Church. Quoad ultra denied. Explained that the whole procedure contemplated and provided by the constitution of the Free Church for informing the whole Church and obtaining its opinion in regard to the proposed Union was duly carried out. Further, as set forth in Statements 11 and 12 for defenders, the Church first sent down in May 1898 the joint report by both Union Committees, containing the proposed Questions and Formula, in order that presbyteries might fully con sider it and make any suggestions they pleased. This occupied a full year. Then in May 1899 an overture contain ing the Plan of Union proposed was sent down under the Barrier Act, and this was before the Church for the year from May 1899 till May 1900. The whole matter was carefully considered by presbyteries, which represent the laity of the Church as well as the clergy, and which were left free to take any steps necessary and proper to inform sessions and individual members, and took such steps. The whole sub ject was well known to the whole Church and all the members thereof, H GENERAL TRUSTEES' CASE of the Free Church proceeding on 30th October 1900 to the discussion of the report upon Union, certain of the pursuers, being commissioners lawfully returned to the said General Assembly, protested iu terms, of which a copy is produced and held as repeated brevitatis causa. Upon the motion for the approval of the report and authorising the passing of the said Act being made, a counter-motion was moved declining to pass the same, but this was rejected by a majority, and the pretended Act foresaid was declared passed. Thereupon the complainers tabled a dissent and protest, in which they dissented from the resolution of the Assembly and protested against the same as illegal and unconstitutional. Copy of the dissent and protest is produced and held as repeated brevitatis causa. Ans. 23. Admitted that the said Report was approved by the General Assembly of the Free Church, and that the said Act was passed by it, and that a counter motion here referred to was rejected. The dissents and protests are referred to for their terms, beyond which no admission is made. and any members who wished to raise objections had ample time and oppor tunity to do so. Further, in July 1898 an ' Explanatory Statement ' in regard to the proposed Union was issued by the Committee of the Free Church on Union, under the instructions of the Assembly of 1898. This was printed and circulated throughout the congrega tions of the Church for the information of members. The remit under the Barrier Act was made in May 1899, a year and a half before the Union was consummated. Under this remit the Church had an extra year to consider the full and detailed Plan of Union, which was approved in May 1900. The Act of Union was in terms of the said Plan, and it was separately re mitted under the Barrier Act in May 1900, and passed into law in the follow ing October Assembly. There is no stated period which must elapse between one Assembly and another, and it was quite regular for the Assembly to meet in October, as has been previously done. Each General Assembly appoints the next to be held when and where it judges fit, and the Barrier Act pro vides for overtures remitted to presby teries being reported 'to the next ' General Assembly following ' whenever it may be held. The pursuers were well aware in May 1900 that it was proposed to hold the next [General Assembly in October following. A considerable number of them were members of the General Assembly which met in May 1900 and which resolved that the next Assembly should be held in October, but none of them made any objection to that course, either on the ground now put forward or on any other ground. Nor did they object to the return of the overture anent the Act of Union in October. Further, several of them accepted com missions without objection to the General Assembly in October, and took part in it as a regular Assembly. Instead of matters being hurried and time for deliberation curtailed, the con trary is the fact, as above explained. Cond. 23. Upon the General Assembly Cond. 24. Following upon the adoption of the so-called Uniting Act, the majority of the General Assembly proceeded to propose a so-called Act whereby, upon a narrative of previous Acts of Assembly appointing general trustees to hold pro perty on behalf of the Church, and further narrating the proposed Union with the United Presbyterian Church, they appointed the Right Honourable John Campbell, Baron Overtoun of Overtoun, and others (being the defenders called in the second place), to be general trustees for holding the property of the Free Church of Scotland from and after 31st October 1900, and enacting and declaring that they and their successors in office to be from time to time appointed by the General Assembly of the United Free Church of Scotland, should be successors in office of the then present general trustees of the Free Church of Scotland (being the defenders called in the first place). The said pretended Act further directed and empowered the said defenders CONDESCENDENCE AND ANSWERS *5 in the first place called, as soon as required after the Union should be effected, to transfer and convey all property and funds held by them at the time of the Union to the said enlarged body of the trustees of the United Free Church of Scotland (the defenders in the second place called), under declaration that the body of general trustees of the Free Church of Scotland (being the said defenders called in the first place) should continue to act as such after the Union, for the purpose of re ceiving and transferring to the trustees of the United Free Church (being the said defenders called in the second place) any pro perty which might be, or which might come into their hands as trustees of the Free Church. An amendment was proposed on behalf of the dissentient members of Assembly and those members of the Church adhering to them, but it was rejected by the majority of Assembly, whereupon a dissent and protest against the said pretended Act was tabled on behalf of the minority. Ans. 24. Admitted that the General Assembly passed an Act appointing certain parties therein named to be general trustees for holding the property of ,the Free Church of Scotland from and after 31st October 1900 on behalf of the Church, and enacting and declar ing that they and their successors in office, to be from time to time appointed by the General Assembly of the United Free Church of Scotland, should be the successors in office of the then present general trustees of the Free Church of Scotland. The Act is referred to for its terms. Admitted that the amend ment moved thereto was rejected. The alleged dissents and protests are referred to for their terms, beyond which no admission is made. Cond. 25. The majority further pro ceeded, on said 30th October 1900, to pass another pretended Act of Assembly, enacting and declaring that the United Free Church of Scotland should be the successor in office of the Free Church of Scotland, and that the General Assembly and the subordinate courts, officials, boards, and colleges of the United Free Church of Scotland should be successors in office of the General Assembly, and the subordinate courts, officials, boards, and colleges of the Free Church of Scotland. An amendment was also proposed to this pretended Act, but was rejected by the majority, where upon dissent and protest was also duly tabled. Copies of the said pretended Acts in this and the last article referred to, and the amendments and dissents and protests are produced herewith and referred to brevitatis causa. Ans. 25. Admitted that the General Assembly duly passed the Act here referred to. Reference is made to the Act for its terms. Admitted that the amendment thereto was rejected. The alleged dissents and protests are referred to for their terms, beyond which no admission is made. Cond. 26. Thereafter, about five p.m. on the afternoon of October 30, 1900, the defender the Reverend Robert Rainy, D.D., moved 'that the General Assembly ' now adjourn, to meet to-morrow fore- ' noon, at half-past eleven o'clock, in the ' Waverley Market Hall, there to con- ' summate the union which has now been ' legislatively sanctioned by the Church.' The pursuer Archibald M'Neilage moved that ' the General Assembly adjourn now, ' to meet here to-morrow morning, at ' half-past eleven o'clock.' A majority of members supported Dr. Rainy's motion, which the Moderator declared carried, whereupon Mr. M'Neilage, for himself and those adhering to him, dissented. The pursuer the Reverend J. K. Cameron, for himself and those adhering to him, dis sented and protested in the following terms : ' On behalf of ourselves and all ' who may adhere to us, we, being members 1 of this Assembly, dissent and protest ' that, notwithstanding the pretended ad- ' journment or dissolution of the General ' Assembly for the purpose of carrying ' through the proposed Union, we have ' right to continue in session and to exer- ' cise all the powers inherent in the ' General Assembly of the Free Church of ' Scotland, with liberty to adjourn from ' time to time, as may be necessary, until ' such time as the said Assembly shall be ' lawfully dissolved.' The majority of members, pursuant to i6 GENERAL TRUSTEES' CASE the pretended Act of Adjournment, there upon withdrew from the Assembly. Ans. 26. Admitted that the General Assembly regularly and lawfully ad journed after adopting Dr. Rainy's motion for adjournment, and rejecting the amendment proposed thereto. The dissents and protests are referred to. Quoad ultra denied. Cond. 27. Pursuant upon said pre tended Act of Adjournment a majority of members adhering thereto (being those of the defenders who were Commissioners to the said General Assembly of the Free Church of Scotland) assembled within the hali of the Waverley Market, Edinburgh, on 31st October 1900, at 11.30 a.m., along with the Synod of the United Presby terian Church of Scotland, and it is believed did there, along with the members of said Synod, pass an Act pretending to effect a union between the Free Church of Scotland and the United Presbyterian Church, under the name of the United Free Church of Scotland, the enacting clauses of said Act being as follows : ' Now therefore the said General ' Assembly of the Free Church of Scot- ' laud and the Synod of the United ' Presbyterian Church thus met, first of ' all desire to express their devout thank- ' fulness to the great Head of the ' Church for the spirit of love and L concord which has prevailed during ' those negotiations for union ; humbly ' acknowledging their entire dependence ' on the mercy of God for all the happy ' results which they hope for in con- ' neotion with it ; and entreat the ' Divine blessing on the step now to be ' taken, and on all the congregations ' and people under their charge ; ' the General Assembly of the Free ' Church of Scotland and the Synod of ' the United Presbyterian Church, em- ' powered as aforesaid, do hereby, in ' terms and in pursuance of the deliver- ' ance of their respective Church courts, ' enact and declare that the Free Church ' of Scotland and the United Presby- ' terian Church do and shall henceforth ' constitute one United Church ; that ' the name of the United Church shall ' be the United Free Church of Scot- ' land, and that its Supreme Court shall ' be designated the General Assembly of ' the United Free Church of Scotland.' A copy of the said Act is referred to brevitatis causa for its terms. With re ference to the statement in answer, the said proceedings and Act not being pro ceedings and an Act of the General Assembly of the Free Church of Scotland, no protest on behalf of the pursuers and those adhering to them was called for or could have been tendered. Ans. 27. Admitted that in terms of the said Act of Adjournment, which was valid and regular in every respect, the General Assembly of the Free Church assembled on 31st October 1900 within the Hall of the Waverley Market, Edinburgh, along with the Synod of the United Presbyterian Church, and did there, along with the members of said Synod, duly and re gularly pass an Act effecting a Union between the said two Churches. Re ference is made to the Statement of Facts for defenders. No dissent or protest was lodged by pursuers against the proceedings of the said General Assembly on 31st October. The official report of the proceedings is referred to. Quoad ultra denied. Cond. 28. The former members of the Free and United Presbyterian Church of Scotland so assembled having thus formed themselves into a new association or body of Christians entirely distinct from the Free Church of Scotland, to be known as the United Free Church of Scotland, pro ceeded to constitute themselves the first General Assembly of the said new Church, and elected the defender, the Reverend Robert Rainy, D.D., to be their moderator. They also proceeded to appoint the de fenders, the Reverend Dr. Andrew Mel ville, the Reverend Dr. Archibald Hender son, the Reverend Dr. Thomas Kennedy, and the Reverend Dr. William Blair to be clerks of the said General Assembly, and appointed those of the other defenders CONDESCENDENCE who held office as officers either of the Assembly of the Free Church of Scotland or of the Synod of the United Presby terian Church to be the corresponding officers of the United Free Church. Ans. 28. Admitted that after the foresaid Uniting Act had been un animously agreed to the General As sembly of the United Free Church was duly constituted, and proceeded to elect a moderator and to appoint clerks. The names of the moderator and clerks are correctly stated. Quoad ultra denied.Cond. 29. The said pretended Act of Union had been preceded by communica tions between committees pretending to represent both Churches. These com mittees, after communicating to one another the existing doctrinal standards, rules, and methods of their respective Churches, had reported that ' it appeared ' that in regard to doctrine, government, ' discipline, and worship therein set forth, ' a remarkable and happy agreement ob- ' tained between them,' and this statement was accepted by the majority of the General Assembly of the Free Church. This alleged agreement was only rendered possible by the foresaid qualifications in 1892 of the Questions and Formula of the Free Church, and by the still further qualification to be aftermentioned. As precedent to said pretended Act of Union, such further qualification had been agreed upon as stated in said pretended Act of Union by the committees representing the Free Church and the United Presbyterian Church of Scotland respectively, and had been approved by a majority of the General Assembly and by the General Synod of these Churches respectively as embodied in the ' Questions and Formula ' to be used at ordination and induction ' in said United Church.' Accordingly said pretended Act of Union was, on the alleged consummation of said Union, followed by an Act anent Questions and Formula of the General Assembly of the United Free Church of Scotland, passed on 31st October 1900, being Act of Assembly 1900, cap. 2. Said Act enacted and ordained that the Questions and Formula therein embodied should be ' the AND ANSWERS 17 ' Questions and Formula to be used at the ' ordination and induction of ministers ' and office-bearers in the United Free ' Church.' Each set of questions was prefaced by a preamble, which it was made obligatory should be read before the questions are put, and which declared that the questions are put in particular in view of the Declaratory Act 1879 of the United Presbyterian Church, and Act XII. 1892, with relative Act of 1894, of the Free Church, and that probationers, ministers, and elders, as the case may be, are en titled to avail themselves of any of these Acts. But the questions themselves im ported a wider deviation from the stan dards of the Free Church of Scotland than did either the Declaratory Act 1879 of the United Presbyterian Church, or the De claratory Acts 1892 and 1894 of the Free Church of Scotland. In place of the Question in the Formula of 1846 : Qu. 2. ' Do you sincerely own and believe the ' whole doctrine contained in the Confes- ' sion of Faith, approved by former ' General Assemblies of this Church, to be ' founded upon the Word of God ; and do ' you acknowledge the same as the con- ' fession of your faith ; and will you ' firmly and constantly adhere thereto, ' and to the utmost of your power assert, ' maintain, and defend the same, and the ' purity of worship as presently practised ' in the Church ? ' there was substituted the following : ' Do you sincerely own and ' believe the doctrine of this Church set ' forth in the Confession of Faith approven ' by Acts of General Synods and As- ' semblies ; do you acknowledge the said ' doctrine as expressing the sense in which ' you understand the Holy Scriptures ; ' and will you constantly maintain and ' defend the same, and the purity of wor- ' ship in accordance therewith ? ' The said Act anent Questions and Formula, a copy of which is produced and referred to, was thus a farther and essential departure from the fundamental standards of doc trine of the Free Church of Scotland as constituted in 1843, and imported an abandonment of the Westminster Con fession of Faith and a substitution therefor of the doctrine of the United Church, whatever for the time that doctrine might be held to be, set forth in the Confession i8 GENERAL doctrine, which of Faith. Said already been rendered indefinite by the said Declaratory Acts of 1892 and 1894, was thus rendered still more indefinite by the adoption of said Act anent Questions and Formula, and is subject to be again qualified by farther Declaratory Acts of the United Church. The absence of finality in such a standard is accentuated by the terms of the first of the declarations adopted as relative to the Act of Union of 31st October 1900, of which a copy is pro duced and referred to. The said qualifica tion of the Questions and Formula in the above vital manner was an abandonment by the Unionist members of the Free Church of Scotland of the Westminster Confession as the fundamental standard in doctrine of their Church, and such aban donment was essential to any Union with the United Presbyterian Church. Ans. 29. The Questions and Formula and Declaration are referred to. Quoad ultra denied, under reference to defen ders' Statement of Facts. Cond. 30. The said General Assembly of the United Free Church thereafter, on said 31st October 1900, proceeded to pass an Act whereby, upon a narrative, inter alia, of the pretended Act narrated in article 24, the said Assembly pretended to confirm, ratify, and approve the same, and to appoint the defenders the said Right Honourable John Campbell, Baron Over toun of Overtoun, and others, the de fenders in the second place, to be general trustees, to hold the property formerly held by the general trustees of the Free Church of Scotland and the property formerly held by the members of the Finance Committee of the United Presby terian Church as trustees for that Church, as now alleged to belong to the United Free Church of Scotland, and also all property, heritable and moveable, then presently belonging or which may at any time belong to the said United Free Church of Scotland for behoof of that Church. Ans. 30. Admitted that the said General Assembly unanimously passed an Act appointing certain persons therein named to be general trustees to hold property formerly held by the TRUSTEES' had CASE general trustees of the Free Church, and the property held by the members of the Finance Committee of the United Presbyterian Church, as trustees for that Church, now belonging to the United Free Church of Scotland, all in terms of the said Act, which is referred to for its preamble and whole terms. Quoad ultra denied. Cond. 31. The said Acts passed by a majority of members of the General Assembly of the Free Church of Scotland on 30th October 1900, namely, the pre tended Uniting Act and the Acts narrated in articles 24, 25, and 26 of this con descendence, purporting to authorise the defenders in the second place called to hold the property of the Free Church of Scotland for behoof of the United Free Church of Scotland, and to authorise the defenders in the first place called to trans fer said property to them the defenders in the second place called, and purporting to appoint the United Free Church of Scot land, its courts, officials, boards, and colleges to be successors of the Free Church of Scotland, its courts, officials, boards, and colleges, were ultra vires, null and void, at least in so far as the same pretended to extinguish the separate exist ence of the pursuers and those adhering to them as the Free Church of Scotland, and to absorb the said Church in the United Free Church of Scotland, or in so far as the same pretended to affect the civil rights of the pursuers as members of the Free Church of Scotland, or the property held as at the said 30th day of October by the defenders in the first place called, as the general trustees of the Free Church of Scotland ; and the pursuers are entitled to have the said Acts reduced as ultra vires, null and void, at least to the extent afore said. Further, the adjournment of the Assembly moved and carried as aforesaid for the purpose of meeting to consummate said Union was ultra vires, and ineffectual legally to effect an adjournment for said purpose, and the pursuers are entitled to have the Act of Adjournment reduced as null and void so far as the same may be alleged to have had any effect upon the subsequent proceedings of the pursuers, CONDESCENDENCE and those adhering to them, as after- mentioned. The whole of said Acts were moreover formally cancelled, as hereinafter narrated. Ans. 31. Denied. Cond. 32. The so - called General Assembly of the United Free Church of Scotland had not power or authority on behalf of said Free Church of Scotland, or as binding the same, to pass the said pre tended Uniting Act, or any of the other Acts hereinbefore narrated as following thereupon, and the same, in so far as they have or may be pretended to have any effect upon the continued existence of the Free Church of Scotland, or upon the civil rights of the pursuers and others as members thereof, or upon the property belonging to the said Free Church of Scotland, were ultra vires, and they are null and void, and the pursuers are entitled, if necessary, to have the same reduced and set aside, at least to the extent concluded for in the summons. Ans. 32. Denied. The said General Assembly acted lawfully and within its powers in passing the whole of the said Acts.Cond. 33. Pursuant to their dissent and protest, those of the pursuers who had been appointed as commissioners to the said General Assembly of the Free Church of Scotland convened to be holden at Edinburgh on the 30th day of October 1900, retired (upon the withdrawal of the majority pursuant to their pretended Act of Adjournment) to the writing-room of the Assembly Hall — the hall itself having been occupied by a committee of the said defenders engaged in promoting the said illegal Union — and there, being a quorum of Assembly, continued the sederunt. The pursuer the Reverend Colin A. Bannatyne was appointed moderator in the absence of Dr. Ross Taylor. The Assembly resolved that the whole resolutions and Acts, to which dissent and protest had been taken in the earlier part of the sitting, were unconstitutional, null and void, and of no effect as Acts of the General Assembly of the Free Church of Scotland. Some doubt having been ex pressed whether Mr. M'Neilage's motion AND ANSWERS 19 for an adjournment until the next day at half -past eleven o'clock, although not adopted by the house, did not as the only competent motion before the house, eo ipso, become effective, it was resolved formally to adjourn the sederunt until the following day, the 31st day of October at 11.30 at the Assembly Hall. Ans. 33. Not known and not admitted what meeting or meetings were held by those of the pursuers here indicated after the adjournment of the General Assembly of the Free Church on 30th October 1900, or who were present or what was done or resolved at said meet ing or meetings. Denied that the said pursuers constituted a quorum of the said Assembly, or could or did com petently continue its sederunt. The said pretended resolution, if passed by them, is invalid and of no force or effect in regard to the Resolutions and Acts of the General Assembly of the Free Church. Cond. 34. On Wednesday 31st October 1900, at 11.30 a.m., those of the pursuers who were commissioned as members of Assembly convened — pursuant to the formal adjournment resolved upon at the continued sederunt on 30th October, and also pursuant to the motion for adjourn ment moved by Mr. M'Neilage as an amendment to Dr. Rainy's motion — at the Assembly Hall. Entrance to the Assembly Hall was refused, whereupon those present, being a quorum of General Assembly, con stituted themselves at the outer gate as a meeting of General Assembly. Mr. Banna tyne was again appointed to act as moder ator in the absence of Dr. Ross Taylor. The Assembly appointed a notarial protest to be expede against their exclusion from their place of meeting, and thereafter formally adjourned to meet the same afternoon within the Queen Street Hall, 5 Queen Street, at 2 p.m. Ans. 34. Admitted that certain per sons presented themselves on 31st October at the outer gate of the Assembly Hall, but having no right to the use of the hall they were refused admittance. Quoad ultra denied. Cond. 35. Pursuant to said adjourn- 20 ment, the General Assembly again con vened the same afternoon, at 2 o'clock p.m., as the General Assembly of the Free Church of Scotland. The meeting was duly constituted, and Mr. Bannatyne was elected moderator. The dissent and pro test lodged by the pursuers the Reverend J. K. Cameron and others against the adoption of the Uniting Act at the pre vious day's sederunt, which had been allowed to lie on the table, was received and appointed to be recorded in the minutes. The dissent and protest by Mr. Cameron against the adoption by the majority of Dr. Rainy's motion for adjournment to the Waverley Market to carry through the Union, was repeated, received, and ap pointed to be recorded in the minutes. It was thereafter formally moved, seconded, and agreed to, that the defenders Dr. Walter Ross Taylor, moderator, and Dr. Melville and Dr. Henderson, clerks, and Mr. Robert R. Simpson, W.S., depute clerk, having voluntarily withdrawn them selves from the service of the General Assembly of the Free Church of Scotland, had vacated their respective offices as moderator, principal clerks, and depute- clerk of the said General Assembly, and the General Assembly accordingly ap pointed the Reverend Colin A. Bannatyne, minister at Culter, to be its moderator, and Mr. J. K. Cameron, minister at Brodick, to be its senior principal clerk, the filling of the other offices being mean time left over. Ans. 35. Denied. If any of the pursuers met in the Queen Street Hall at the time here stated, they did not constitute or represent the General Assembly of the Free Church of Scot land, and their pretended proceedings as a separate body have no force or effect in relation to the said General Assembly and its proceedings. The pretended appointments said to be made by them as here stated are without validity or effect in regard to Dr. Walter Ross Taylor and the other officials here named of the General Assembly of the Free Church of Scotland, and have no validity or effect of any kind or to any extent in regard to said General Assembly of the said Church. GENERAL TRUSTEES' CASE Cond. 36. The Assembly further enacted that the whole pretended resolutions and Acts passed and carried by the majority at the sederunt of Assembly of 30th October 1900, to which negatives had been moved and dissents lodged on behalf of those now constituting the General As sembly, or any of them, were from the beginning and are unconstitutional, void and of no effect as binding the General Assembly of the Free Church of Scotland, and the same were ob majorem cautelam declared to be rescinded. Cond. 37. The said meeting of General Assembly further enacted 'That the gen- ' eral trustees and the Finance Committee ' of the Free Church of Scotland, as exist- 1 ing at the date of assembly of the General ' Assembly of the said Church, which ' convened on 30th October 1900, be and ' are hereby instructed meantime to hold ' the Assembly Hall, College Buildings, ' and offices of the Church and other build- ' ings connected therewith for the use of ' and subject to the directions of the Gen- ' eral Assembly and its Commission, and ' that they be and are hereby interpelled ' from permitting the same to be used or ' enjoyed in any way by the United Free ' Church of Scotland, its General Assembly, ' or others (unless in so far as expressly ' authorised by this Assembly), and in ' particular from making, or allowing to ' be made by others on their behalf, any ' structural alterations upon any of the said ' buildings.' The defenders in the first place called hold the said buildings under the pro visions of this Act, but nevertheless they have in defiance thereof allowed the same to be taken possession of and used by the United Free Church of Scotland. Cond. 38. By a further Act of Assembly of the same date the trustees, in whom any properties, congregational or other, stood vested for the Free Church of Scot land or congregations in connection there with, under a deed in form of the deed known as the Model Trust-Deed or similar form, were appointed to continue to hold the same for behoof of the Free Church of Scotland, and were interpelled from parting with the same to any parties ap- CONDESCENDENCE AND ANSWERS pointed as trustees by the United Free Church or on its behalf, and such trustees were appointed to hold the same for the uses of the Free Church of Scotland, sub ject to the directions of the General As sembly or its Commission. Copies of the said Acts are produced and referred to brevitatis causa. Cond. 39. On 1st November 1900 the said General Assembly, being convened pursuant to adjournment, appointed the pursuer J. Hay Thorburn to be depute- clerk of Assembly, and the pursuer W. Rounsfell Brown to be general treasurer of the Free Church of Scotland, which appointments having been intimated were duly accepted. The Assembly further appointed the pursuers the Rev. J. D. M'Culloch, the Rev. J. K. Cameron, John Hay Thorburn, A. M'Neilage, and W. Rounsfell Brown to be a Law and Advis ory Committee, and empowered the said committee to watch over all cases which might arise, and to take such steps as might seem to them advisable. The As sembly further authorised the moderator, clerk, and the members of committee above- named to take, in name and on behalf of the Assembly, all such steps as might be necessary, by legal proceedings or other wise, for maintaining the whole interests of the Church, with permission to the remanent members of Assembly to join themselves in the instance of any pro ceedings, for their interest as members of the Assembly. The present action is raised pursuant to this appointment of General Assembly. Ans. 36 to 39. Not known and not admitted what the said pursuers pro fessed to enact, or what appointments they professed to make. Their pre tended appointments and enactments are invalid and ineffectual in regard to the Free Church of Scotland or the United Free Church of Scotland. Cond. 40. The General Assembly having again convened pursuant to adjournment on Friday 2nd November, the members of Assembly remaining in adherence to the Free Church of Scotland, together with the pursuer the Rev.' J. D. M'Culloch, nominated by the moderator, were duly 21 appointed a Commission of Assembly, the quorum being fixed at five, whereof three at least should be ministers. A copy of the Act of Assembly appointing said Com mission is produced and referred to brevi tatis causa. The General Assembly there after was dissolved, having appointed the next General Assembly of the Free Church of Scotland to be held at Edinburgh on 21st May 1901, at 11.30 a.m. Ans. 40. Denied that the General Assembly of the Free Church of Scot land met on 2nd November as here stated. The whole averments herein are denied. Cond 41. A considerable number of ministers and a very large number of office-bearers and members of the Free Church of Scotland have adhered to the pursuers and others, commissioners to the General Assembly aforesaid, in declining to enter into or recognise the proposed Union with the United Presbyterian Church and to acquiesce in the pretended Act of Union hereinbefore mentioned. The number of ministers and elders mem bers of Assembly adhering to the defenders is no criterion of the division of opinion in the Church at large. Many of the ministers and elders forming the majority of the late Assembly have only carried with them very small numbers of their congregations, the large majority thereof adhering to the Free Church. The pursuers and those adhering to them believe and aver that the principles and doctrine of the said United Free Church differ from those of the Free Church of Scotland, and do not recognise and per petuate the distinctive testimony of the Free Church of Scotland as embodied in its constituting documents and in the standards, upon the faith of which they became ministers, office-bearers, and mem bers of the said Church. They accord ingly maintain their right to continue, as they are entitled to do, the existence of the Free Church of Scotland as originally constituted, its principles, and standards, and for that purpose to assert and vindi cate their civil rights as members thereof in and to the property belonging to and held for the purposes of said Church. The defenders are called on to specify GENERAL TRUSTEES' CASE 22 in what manner they allege that the pursuers and those who adhere to them have separated themselves from said Church. Ans. 41. It is believed that a small number of ministers and office-bearers and a small body of members formerly belonging to the Free Church of Scot land have declined up to the present to enter the said United Free Church of Scotland and to adhere to the said Act of Union. They are not entitled to, and in point of fact do not, represent or continue the existence of the Free Church of Scotland, and the pursuers and others who adhere to them having voluntarily separated themselves from said Church, have no right or title to the property of the said Church or any part thereof. The said Church has lawfully and com petently entered into the foresaid Union with the United Presbyterian Church and now forms part of the United Free Church of Scotland, the constitution of which does not differ from that of the Free Church of Scotland. Quoad ultra denied. Cond. 42. The union with the United Presbyterian Church into which the re tiring majority of members of Assembly have entered as aforesaid is unconstitu tional and such as cannot be legally entered into having regard to the constitution and standards of the Free Church of Scotland ; and the whole proceedings leading up to it in the General Assembly of the Free Church of Scotland, including the afore said various motions and pretended Acts, were ultra vires, illegal, null, and void, and of no avail, force, or effect whatever on said Free Church of Scotland and upon the civil rights of those adhering thereto, or upon property held on its behalf. In particular, the said pretended Uniting Act is of no effect in binding the Free Church of Scotland, or those of its members who desire to maintain that Church upon its ancient constitutional basis. The members of the Free Church who have entered into the said Union have voluntarily withdrawn themselves from the membership of the Free Church of Scotland by becoming members of another Church holding principles and standards at variance with the principles and standards of that Church. Ans. 42. Denied. Cond. 43. The parties adhering to the said Union having withdrawn themselves from the General Assembly for a purpose ultra vires and illegal, the pursuers, being the remaining commissioners lawfully ap pointed to the said General Assembly, were entitled to dissociate themselves from said members in their unlawful pur pose, and to continue the existence of the Assembly. Ans. 43. Admitted only that the pursuers were entitled to dissociate and separate themselves from the Free Church of Scotland, which being a voluntary association of persons united together for religious purposes, could not compel them to remain members or office-bearers against their will, and that having so separated themselves they have lost and forfeited all the rights and privileges of members of said Church, including the right to possess and enjoy the property of said Church or any part thereof. Quoad ultra denied. Cond. 44. The pretended Act of Union whereby the majority of the said General Assembly, and those adhering to them, united themselves with the United Presbyterian Church, was void and in habile to effect any real union between the Free Church of Scotland and the said United Presbyterian Church to the pre judice of the said Free Church and of the pursuers and others seeking to maintain the existence of the said Free Church, and to retain and apply its property and funds for the perpetuation of the principles for the maintenance of which the Church was founded, and that in inter alia the follow ing respects : The said Act (First) pre tends to merge the identity of the Free Church of Scotland in a new Church which not merely differs in name, but which does not recognise and is under no obligation to recognise, the distinctive principles and standards of doctrine here inbefore mentioned as essential and funda mental in the Free Church constitution oi contract ; (Second) the terms of the alleged Act of Union taken in connection with the declarations relative thereto substitute, as CONDESCENDENCE the basis of association of the said new United Free Church a contract which is undefined, and which has deliberately been made susceptible of alteration from time to time at the hands of the General Assembly of the said United Free Church, without any power to a minority to effec tively object thereto, for the original definite constitution or contract of associa tion of the Free Chnrch, unalterable in its fundamental principles by any mere majority, however large; (Third) it pro vides for admitting to equal rights in the government of the Church, and the man agement and enjoyment of property held for the distinctive purposes of the Free Church of Scotland, a large body of men who have never accepted and will never be called on to accept the distinctive prin ciples of that Church ; (Fourth) it accords positive recognition to certain Declaratory Acts of the Free Church of Scotland which qualify subscription to the standards of the Free Church of Scotland, and thus abandons the said Confession of Faith as the Church's standard of belief. The said Declaratory Acts and the alterations upon fundamental points of doctrine therein contained did not receive the unanimous assent of the Church, and therefore have never become effectual to affect the con stitution of the Church. The said Acts were dissented from, and they have not hitherto been binding on those disapprov ing of them, no minister of the Free Church having been hitherto at any time bound to put them to those licensed, ordained, or inducted by him. Under the formula of the New Church those invalid Acts are accorded positive recognition, and all ministers are obhged to put them to candidates for licence, ordination, &c. ; (Fifth) subscription to the standards is further qualified by reference to a Declara tory Act of the United Presbyterian Church (1879), which is not a law of the Free Church at all, and to a document — the Basis of Union of the United Presby terian Church of 13th May 1847— which not only is not part of the constitution of the Free Church, but is antagonistic to its principles, and ministers are required to put these also to candidates for ordination, &c. Ans. 44, Denied. AND ANSWERS 23 Cond. 45. For these and other reasons the pursuers as representing or including the Free Church of Scotland have refused to recognise the new United Free Church of Scotland as being or representing the Free Church of Scotland, and have con tinued and continue to maintain the con stitution, principles, and standards of the Free Church of Scotland as originally constituted and heretofore existing. In order that they may do so, they claim the right to retain for the purposes of the Free Church of Scotland the civil rights and temporal property heretofore enjoyed by that Church or association of Christians. Ans. 45. Denied. The pursuers have no right or title to the property heretofore enjoyed by the Free Church of Scotland or to any part thereof. Cond. 46. In the course of its exist ence from 1843 to the present time the Free Church of Scotland has acquired and had vested in it as a Church a large amount of property, both heritable and moveable, including (First) the property held by the Church for extra-congrega tional purposes, the title to which is for the most part vested in the defenders, first called, as general trustees of the Church ; and (Secondly) congregational property which is for the most part vested in trustees appointed by individual congrega tions, who hold it under trust deeds framed, generally speaking, upon a com mon model.Ans. 46. Admitted that in the course of its existence the Free Church of Scotland acquired a large amount of property, including property held by the general trustees of the Church and con gregational property, for the most part vested in trustees appointed by indi vidual congregations, who hold it under trust deeds framed, generally speaking, upon a common model. Cond. 47. Part of the property held by the said Free Church through the de fenders first called, as its trustees for the purpose of promoting the objects for which it lawfully exists, consists of the following- heritable properties in the city of Edin burgh, viz., dwelling-houses and shops situated at Nos, 45 and 49 High Street, of 24 GENERAL TRUSTEES' CASE the annual value of £66 ; halls situated in Boswell's Close, of the annual value of £70 ; 47 dwelling-houses situated at Nos. 3, 5, and 7 Milne's Court, of the annual value of £237, 5s. 3d. ; house, store, and cellar situated in Cranston Close, of the annual value of £3, 6s. ; mission hall, houses, and cellar situated at 6 James Court, of the annual value of £128, 18s. ; hall situated in South Back of Canongate, of the annual value of £25 ; house and school situated at 174 Canongate, of the annual value of £375 ; house situated at 7 and 8 St. John Street, of the annual value of £110; shops and store situated at 13 and 14 North Bank Street, of the annual value of £97 ; house and offices situated at 15 to 18 North Bank Street, of the annual value of £290, with the premises known as the Free Assembly Hall, Free Church College and offices; houses situated in Mound Place, of the annual value of £103 ; and workshop and studio situated in Ramsay Lane, of the annual value of £26. They also hold in vested inter alia sums amounting in all to £1,062,173 or thereby, for behoof of the various purposes or funds specified in detail in an abstract of the funds under their control as at 31st March 1900, a copy of which will be produced in course of the process. Ans. 47. Admitted that the Free Church owned and that the United Free Church now owns the heritable properties here mentioned. The general trustees also hold invested funds of the amount here stated or thereby under various trusts. Reference is made to the Statement of Facts for defenders. Cond. 48. The whole of said properties and funds have been wrongfully taken possession of and are being used and applied by the members of the majority who separated themselves as aforesaid from the Free Church of Scotland, and adhered to the United Free Church, for the purposes of said United Free Church. This application of said property and funds is illegal and unwarrantable. The said property cannot lawfully be diverted by the vote of any majority from the uses of the Free Church of Scotland and the uses of any other church or association not professing and maintaining the principles and adhering to the standards of the Free Church of Scotland. The United Free Church of Scotland as founded and con stituted in October 1900 does not, as above condescended on, profess and main tain the whole distinctive and essential principles and adhere to the standards of the Free Church of Scotland. The Free Church of Scotland is not repre sented by, combined with, or comprised in the said United Free Church of Scot land, and said United Free Church of Scotland has no claim to or beneficial right in said property. Those former members of the Free Church of Scotland who, departing from said Church and com bining themselves with certain members of the United Presbyterian Church, have founded and constituted the United Free Church of Scotland, have forfeited all claim to and beneficial right in the said property of the United Free Church of Scotland, and are not entitled to transfer said property to the United Free Church of Scotland, and the pursuers and those adhering to them, representing as they do the Free Church of Scotland as constituted in 1843, are entitled to vindicate said property to the uses of said Church. Separatim, should it be held by the Court that the said Free Church of Scot land as constituted in 1843 and subsisting till 1900 has been disrupted by the action of the majority of Assembly of 1900, the pursuers and those adhering to them have not been guilty of any defection from the principles, standards, or constitution under which they became members of the Free Church of Scotland; those members of that Church who adhered to the said majority of Assembly and joining themselves with United Presbyterians have formed the so- called United Free Church of Scotland, are not therefore entitled to appropriate and carry with them to their newly con stituted Church or association the whole property of the Free Church of Scotland, but the same falls to be divided between them and the pursuers and those adhering to them, members of the Free Church of Scotland who, refusing to desert the principles and standards on which said Church was constituted, have declined to follow the said majority of Assembly on STATEMENT FOR DEFENDERS 25 their defection from said Church and union with United Presbyterians, in such proportions as may be appointed by the Court. Accordingly the pursuers have found it necessary to raise this action to vindicate their rights in regard to the said property and funds. Ans. 48. Denied. III.— STATEMENT of FACTS for Defenders; and ANSWERS thereto for Pursuers. Stat. 1. For some years prior to 1843 differences of opinion existed within the Church of Scotland as to the nature and extent of the separate jurisdiction of the Church in matters spiritual. In conse quence of these differences and the action of the Civil Courts and of the Legislature in regard thereto, a majority of lawfully elected Commissioners to the General Assembly of 1843 and a large number of other ministers and office-bearers and members of said Church separated them selves in the year 1843 from the Ecclesi astical Establishment in Scotland, and formed themselves into a voluntary associ ation or body of Christians not in alliance with the State and without State main tenance or support, known as the Free Church of Scotland. Previous to and at the time of so separating themselves, they set forth the grounds and reasons of their action in certain documents. These are known as the Claim, Declaration, and Protest (commonly called the Claim of Right) of 1842, the Protest of 1843, and the Deed of Demission. The said docu ments are referred to for their terms. Ans. 1. Denied as far as not con sistent with the averments in condes cendence. Quoad ultra admitted, under reference to the documents specified. Stat. 2. The said alleged principle referred to by the pursuers in Conde scendence 13 was not a fundamental or integral principle in the constitution of the Free Church, and it has not at any time formed part of the doctrines, articles of faith, tenets, creed, or contract binding upon ministers or other office-bearers or members of the Free Church of Scotland. The said Free Church as soon as possible after 1843 modified its constitution as a Church separate from the State, and settled the conditions which should be binding on its ministers and other office bearers. This was done by an Act of the General Assembly in 1846, viz. Act XII., 1846. The Church therein adopted cer tain questions to be put to, and a certain formula to be subscribed by, office-bearers on their admission to office. The said questions and formula were adopted ad interim in 1844 and 1845, and in 1846 said Act was passed by the General Assembly, entitled 'Act anent Questions ' and Formula,' which having received the consent of the majority of Presbyteries in terms of the Barrier Act hereinafter re ferred to, became a law of the Church. The said Act and the questions and formula are referred to for their terms and founded on. The only new question added to those in use in the Church of Scotland previous to 1843 was the 5th question. The declaration in the preamble of said Act as to the Church disclaiming intolerant principles, &c, was not part of the Act as it received the approval of Presbyteries under the Barrier Act. It was added by the General Assembly in passing the Act, and was not therefore at that time made (as it subsequently was) binding as a law of the Church. The only documents incorporated into the said Act of 1846 and made binding on ministers and office-bearers of the Church are the Scriptures, the Confession of Faith, the Claim of Right, and the Pro test, but the two . latter only in so far as concerns their general principles with respect to one point, namely, the spiritu ality and freedom of the Church. No other articles or conditions or agreements were required to be accepted or assented to, and on subscribing the above formula 26 GENERAL TRUSTEES' CASE ministers of the Church became entitled to the status and emoluments of office and to share in and beneficially enjoy the pro perty of the Church. In particular, ministers were not required as a condition of office and of receiving the emoluments of office in the Church or of beneficial enjoyment of the property of the Church to declare their acceptance of a doctrine or principle that it is the right and duty of the civil magistrate to maintain and support an Establishment of Religion. Office-bearers other than ministers were likewise not required to accept the said alleged principle. Private members of the Church were not required to subscribe the above formula or any formula, or to make any profession on the subject. The Confession of Faith does not contain or set forth the said alleged principle in respect to the right and duty of the civil magistrate in regard to Establishments of Religion as an article of faith or doctrine or belief. It teaches that nations and their rulers are bound to own the authority of Christian truth, but the Free Church has always held that the teaching of the Confession in this matter is to be read and understood in harmony with the principle (which the Confession also teaches) that the Christian Church has an independent government and juris diction in matters spiritual, distinct from the civil magistrate, and also in harmony with the view that the Confession is not to be accepted as favouring intolerance or persecution or interfering with liberty of conscience. The alleged principle as to the right and duty of the civil magistrate to maintain and support an Establishment of Religion has always been in the Free Church an open question in regard to which liberty of opinion has been permitted and exercised, and as to which wide differences of opinion have all along prevailed. The most widely accepted opinion in the Free Church has been that the duty of the civil magistrate to own the authority of Christian truth is generally most properly discharged in the modern state in other ways than by setting up a Civil Estab lishment of Religion, and that the sup porting and maintaining of such an Estab lishment is merely a particular application of the general principle as to the civil magistrate's duty in regard to religion— an application which may be expedient or inexpedient according to circumstances. This was all along well known to the pursuers. They knew that the over whelming majority of office-bearers and members declined to regard the alleged Establishment principle, on which they found, as an essential or integral principle of the Church, and that entire freedom of opinion on the question all along existed in the Church, and they remained office bearers of the Church, and those of them who are ministers accepted the emoluments of office in that knowledge. Ans. 2. Denied that the principle founded on by the pursuers of the duty of the civil magistrate to own and pro mote Christian truth in the State, and the particular application of this prin ciple, viz. his right and duty to do so by the establishment and wherever pos sible by the endowment of a Christian Church in the land, was not a funda mental or integral principle in the con stitution of the Free Church, and that it has not from its original foundation formed part of the doctrines, article of faith, tenets, creed, or contract binding upon its ministers. Denied further that the said principle has ever been an open question, as to which under the con stitution of the Church freedom of opinion was permitted. The views now stated by the defenders are entirely opposed to and contradicted by the utterances of the leaders of the Dis ruption who founded the Free Church of Scotland, the terms of its constituting documents, and the contemporaneous action of the Church Courts at and after the Disruption. The Confession of Faith, the various Acts of Assembly, and other documents specified are re ferred to for their terms, beyond which no admission is made in regard to the contents and effect thereof. Explained that the constitution of the Free Church of Scotland was settled at its foundation in 1843, and not, as alleged, as soon as possible after 1843. Explained further with regard to Act XII. of 1846, that the part of the preamble referred to was preceded by the words 'and ' while the Church firmly maintained STATEMENT FOR DEFENDERS ' the same Scriptural principle as to the ' duties of nations and their rulers in re- ' ference to true religion and the Church ' of Christ for which she has hitherto ' contended,' said preamble, as merely declaratory, did not require the approval of Presbyteries under the Barrier Act in order to its validity. Quoad ultra denied, so far as not coinciding with the terms of the documents and the pursuers' averments upon Record. Stat. 3. The Free Church as a voluntary association of persons united together for religious purposes possessed from the beginning the right at common law to control and regulate its own affairs, and, if it saw fit, to change its own doctrines or tenets by virtue of its legislative power inherent in the General Assembly — its Supreme Court — acting by a majority of its members. Further, the Church of Scotland had claimed such right even when in statutory connection with the State, and the Free Church, inasmuch as it claimed to be the historic Church of Scotland, continued after 1843 to exercise said right as a Church separate from the State in terms of the Barrier Act (Act 1697, c. 9). Said Act provides: 'The ' General Assembly, taking into their con- ' sideration the Overture and Act made in ' the last Assembly concerning innova- ' tions, and having heard the report of the ' several commissioners from Presbyteries ' to whom the consideration of the same ' was recommended, in order to its being ' more ripely advised and determined in ' this Assembly, and considering the fre- ' quent practice of former Assemblies of ' this Church, and that it will mightily ' conduce to the exact obedience of the ' Acts of Assemblies, that General Assem- ' blies be very deliberate in making of the ' same, and that the whole Church have ' a previous knowledge thereof, and their ' opinion be had thereto, and for prevent- ' ing any sudden alteration or innovation, ' or other prejudice to the Church, in ' either doctrine or worship or discipline ' or government thereof, now happily ' established, do therefore appoint, enact, ' and declare that before any General ' Assembly of this Church shall pass any ' Acts which are to be binding Rules and 27 ' Constitutions to the Church, the same ' Acts be first proposed as Overtures to ' the Assembly, and being by them passed ' as such, be remitted to the consideration ' of the several Presbyteries of this ' Church, and their opinion and consent ' reported by their commissioners to the ' next General Assembly following, who ' may then pass the same in Acts, if the ' more general opinion of the Church thus ' had agreed thereunto.' According to the view which the Free Church has always taken of this Act, it contemplated that the Church might competently make ' alterations or innovations ' in doctrine, worship, discipline, or government, and provided means whereby such changes should be carried out only after deliberate procedure, and after full opportunity had been given to the whole Church to ex press its opinion. When the procedure set forth in the Act had been adopted, an Act of Assembly passed with the approval of a majority of the Presbyteries of the Church became a ' binding Rule and Con- ' stitution of the Church.' On the other hand, no Act of Assembly which had not so obtained the approval of a majority of Presbyteries was ' a binding Rule and ' Constitution ' of the Church. Prior to the passing of the Barrier Act, the supreme legislative power to innovate upon doctrine, worship, &c, resided in the General Assembly acting by a major ity of the members of any single General Assembly. Previous General Assemblies had made fundamental changes in doc trine, &c, by votes of a single Assembly. An illustration of this is the adoption by the Assembly of 1647 of the Westminster Confession of Faith, subject to the declara tions in the Act of 1647 (which were never acknowledged by Parliament) as the binding creed of the Church in place of its former Confession. The Barrier Act was a limitation and regulation of the hitherto unlimited powers of any single Assembly to make changes in doctrine, worship, discipline, or government of the Church. The Established Church repeat edly exercised its legislative powers under the Barrier Act. Instances of this are the Declaratory Act as to Parliamentary Churches, 25th May 1833; Declaratory Act as to Chapels of Ease, 31st May 1834, 28 GENERAL TRUSTEES' CASE admitting into its own body the pastors of 200 non-parochial congregations; Act, 1st June 1835, putting an end to the appointment of ministers against the veto of a majority of the people, although such appointments had been submitted to for 120 years or thereby under the Statute of Queen Anne 1711; Act, 25th May 1839, anent reunion with Seceders, including in its own body the ministers and members of the Original Secession Church. By this and other Acts the Church had changed and modified its own ' doctrine ' or worship or discipline or government.' It claimed to exercise the right to do so in virtue of its own independent spiritual jurisdiction and without restraint from the State, even when the Church was in statutory connection with the State. The Civil Courts refused to acknowledge such rights in the Church, as being inconsistent with the conditions of Establishment, and the Free Church was constituted in order that as a Church apart from and not in alliance with the State it might freely enjoy such rights. Accordingly, at various times since 1843, it has modified its doctrine, worship, discipline, and govern ment as it saw fit, by proceedings taken in conformity with the Barrier Act, and the Acts so passed became laws binding on the whole Church, affecting and con trolling both the members of the Church and the property vested in or belonging to it. The Act Xli., 1846, above referred to, is one of these. Ans. 3. The said Act of General Assembly 1697, c. 9, commonly known as the Barrier Act, is referred to for its terms, as are also the other Acts and Statutes referred to, beyond which no admission is made, except that the said Barrier Act only has been employed by the Free Church of Scotland as applicable to legislation properly falling within its scope. The procedure under the Barrier Act has never been regarded as apphcable to Acts of a declaratory kind. Explained that the Church of Scotland claimed and endeavoured to exercise many rights and powers, ex amples of which are referred to, which are denied to it by the decisions of the Supreme Civil Courts. The Act of Assembly of 27th August 1647, Sess. 23, is referred to, and a copy thereof is produced and founded on. Explained that the adoption of the Westminster Confession as the Confession of Faith of the Church of Scotland does not depend upon said Act of Assembly alone, but upon Treaty and Statute. Quoad ultra the averments in this article are denied, so far as not co inciding with the terms of the Acts specified and consistent with the pur suers' averments upon Record. Stat. 4. It was intended and con templated from the first that the Free Church should, as opportunity occurred, enter into Unions with other Churches in Scotland, and should, if it thought fit, change its name, as it has done. In order to make this clear, and to provide and secure that the Church buildings and other property belonging to congregations of the Church should be held for behoof of the Church in the event of such Unions taking place, the General Assembly of 1844 passed an Act entitled, 'Act ' anent Trust Deeds,' enacting that the property of each place of worship be held as nearly as possible in the form of the Model Trust-Deed contained in the Act. The said Act and the Model Trust-Deed are referred to for their terms and founded on. Said Model Trust-Deed sets forth, inter alia, in the narrative clause the reasons which had caused the persons who formed the Free Church to separate from the Establishment, and the principles for which they contended in so doing, and cites for that purpose the material and essential portions of the said Protest of 1843, and proceeds to set forth the trust purposes for which the deed is granted. It contains no assertion or mention of the Establishment principle founded on by the pursuers. The great mass of the churches and manses of the Free Church were held in terms of the said Model Trust-Deed. The Unions which it was then contemplated the Free Church might lawfully and competently enter into were not limited to Unions with other bodies of Christians holding identical views with themselves. Stat. 5. The Free Church accordingly, STATEMENT FOR DEFENDERS in the exercise of its inherent liberties and powers, aud in full harmony with the intentions and provisions of its founders, has entered into Unions with other Presbyterian Churches in Scotland. In 1852 the Free Church entered into an incorporating Union with the United Associate Synod of Original Seceders. The said Church represented the Original Seceders from the Church of Scotland in 1733, and its principles in regard to the relations of Church and State differed in several important respects from the opinions held by any parties in the Free Church. In particular, they held that the National Covenant of Scotland and the Solemn League and Covenant of the three kingdoms were still binding on the nation and were of perpetual obligation, and also that the Revolution Settlement was defective and unsatisfactory in respect that it did not give sufficient prominence to the principles of the Second Reforma tion. These principles — especially in re gard to the perpetual obligation of the Covenants — were not held by the Free Church or any parties in it, and shortly after the Union took place it was judicially determined in the Civil Courts that the principles of the said Secession Church were in this and other respects materially different from the principles of the Free Church. The said Seceders uniting with the Free Church stipulated that they should enter the said Church as ' adhering ' to the original Standards and Constitu- ' tions of the Church of Scotland, not ' merely as asserted and vindicated in any ' of the Acts and ¦ Declarations of the ' Free Church, but also as asserted and ' vindicated in our own testimony, to all ' the principles of which we still adhere.' The General Assembly of the Free Church, recognising the differences between the views held by the two Churches, passed an Act (Act IX. 1852) in which they ' cordially agreed to the proposal of re- ' union made ' by the Original Seceders as above stated, 'and fully consent that ' their brethren continue free to hold the ' views therein set forth, and to enjoy the ' liberty therein claimed, in subordination ' to the discipline and government of this ' Church.' The Union thereafter took place on this footing, and the office-bearers 29 of said Church became office-bearers of the Free Church without being required to sign the Free Church Formula, and continued to hold the principles which they held previous to the Union. The Union recognised that liberty existed within the Free Church to hold differ ent views as to the application of the principle of the duty of nations and their rulers to acknowledge Christian truth. Ans. 4 and 5. Admitted that a large number of churches and manses of the Free Church were held in terms of a deed called the Model Trust-Deed, a copy of which is produced and referred to. Said Model Trust-Deed does not form any part of the constitution of the Free Church of Scotland, nor does it affect the contract on which its members are associated. So far as it bears that the Free Church might enter into Unions with other churches in Scot land, this could only be provided such Unions were Unions with other bodies professing or prepared to adopt the same fundamental principles and testi mony as the Free Church. The Free Church of Scotland had no inherent liberty and power to depart from its fundamental principles and standards as embodied in its constitution or con tract to the effect of affecting civil rights arising thereunder, and said Model Trust-Deed and the Act approving thereof did not, and could not com petently, authorise departure or the surrender of these principles and stand ards, and the adoption of those of the Chureh taken into Union. Quoad ultra the Act of 1844 anent 'Trust-Deeds' and the Model Trust-Deed are referred to for their terms, beyond which no admission is made. Explained that none of the property falling under the conclusions of the summons is held under said Trust-Deed, nor was it contemplated that the general property of the Church should be so held. Admitted that the Free Church of Scot land has received within itself other Presbyterian bodies in Scotland. In so doing it has never hitherto departed from its own distinctive and essential principles, as set forth in the con- 30 GENERAL descendence. Quoad the special union with the Original Seceders in this article referred to, the Acts of Assembly, overtures, reports of committees, and whole proceedings of the General Assembly of the Free Church, and of the United Associate Synod, are referred to for their terms, beyond which no admission is made. It is denied in particular that the said Original Seceders held principles at variance with the Free Church principle and testimony as to the right and duty of the State in regard to rehgion, their views upon this matter being, if possible, more pro nounced than those adopted by the Free Church of Scotland. Before said Union was entered into, the uniting Church had signified formally its acceptance of the standards of the Free Church. The said Union was, more over, entered into by a unanimous vote of the General Assembly of the Free Church and with the approval of the Church as a whole. Quoad ultra denied so far as not coinciding with pursuers' averments. Stat. 6. In 1872 a Committee of the Church suggested in a report to the General Assembly that legislation should be passed to make lawful on the part of the Free Church the mutual and reciprocal eligibility of ministers in fixed charges in the United Presbyterian and Reformed Presbyterian Churches to fixed charges in any of the others. Accordingly, in the following year (1873) the General Assembly, in terms of the Barrier Act, passed, with consent of a majority of presbyteries, an Act anent the Mutual Eligibility of Ministers of the United Presbyterian, Reformed Presbyterian, and Free Churches. Prior to this the law of the Church stood upon the Act of 1850 anent the admission of ministers and pro bationers from other Churches, which con tained the following provisions : — ' I. No ' minister or probationer of another de- ' nomination or Church shall be received ' to the standing of a minister or pro- ' bationer of this Church without an ' unqualified subscription to the Formulae. 1 . . . IV. Queries to be answered by ' presbyteries in regard to applicants from TRUSTEES' CASE other Churches for admission _ to the standing of ministers and probationers of this Church. ... (13) Is the applicant well acquainted with the events and controversies which led to the Disruption between this Church and the State in 1843, and are the Presbytery satisfied of his adherence to the principles maintained by the Church at that period? . . . VI. The provisions of this Act shall not apply to ministers belonging to the Presbyterian Churches in England and Ireland and in the Colonies with which this Church is in connection, so far as regards cases of orderly translation from charges in the said Churches to charges in this Church.' The Act of 1873 ordained and enacted as follows: — 'The General Assembly, with consent of a majority of presbyteries, enact and or dain that Clause 6 of Act VIII. 1850, shall be amended and stand as follows, viz. : " The provisions of this Act shall "not apply to ministers belonging to^ " the Presbyterian Churches in England " and Ireland and in the Colonies with " which this Church is in connection, "nor to ministers belonging to the " United Presbyterian and Reformed " Presbyterian Churches, so far as regards "cases of orderly translations from " charges in the said Churches to charges " in this Church " ; and that the rest of said clause shall remain unaltered. In passing this overture into a standing law, the General Assembly think it right to declare, as they hereby do declare, their adherence to the great fundamental prin ciples of this Church regarding, first, the sole and supreme authority of the Lord Jesus Christ, and his exclusive right to rule in and over His own Church, and the consequent obligation of His Church to be regulated in all her proceedings by His Word alone, for which end she claims to be protected in the mainten ance of a complete independence in spiritual matters, and immunity from all coercion and control from without; and regarding, secondly, the prerogative of the Lord Jesus Christ as Head over all things to His Church, and supreme over nations and their rulers, who are consequently bound, collectively and officially, as well as individually and STATEMENT FOR DEFENDERS 3i 1 personally, to own and honour His ' authority, to further the interests of ' His Holy Religion, and to accept the ' guidance of His Word as making known ' His mind and will. And the Assembly ' further declare that the qverture now 1 passed into law does not affect the rule ' for the admission of ministers to charges ' in any way inconsistent with these ' declarations, which the Assembly hereby ' appoint to be printed along with this ' Act in the printed Acts of Assembly.' In the following year (1874) the Assembly unanimously passed an Act in terms of the Barrier Act 'Anent signing the ' Formula,' in the following terms : — ' The General Assembly, with consent of ' presbyteries, enact and ordain, That in ' every case of induction into any spiritual ' office or function in this Church, the ' person to be inducted shall sign the ' Formula prescribed in Act XII. 1846, ' entituled Act anent Questions and ' Formula, during public worship on the ' day of induction, immediately after ' giving satisfactory answers to the ques- ' tions appointed in said Act to be put ' to him; and that in every case of a ' minister being proposed to be called ' who belongs to another branch of the ' Church of Christ, if the presbytery find ' the call regular and sufficient so far as ' the congregation is concerned, they shall ' adjourn to meet on a subsequent day, ' not sooner than a fortnight nor later ' than four weeks thereafter, except when ' the call is to a minister in the Colonies, ' in which case the adjournment may be • prolonged ; and shall transmit to the ' minister proposed to be called an extract ' of that finding, together with a copy of ' the said Act XII. 1846, as hereinafter ' amended, including the preamble as well ' as the enacting part, as also a copy of ' the present finding of the Assembly in ' full, embracing the Act of Assembly, ' Class I. 4, of date Thursday, 29th May ' 1873, passing the Mutual Eligibility ' overture into a law, with relative declara- ' tion in full ; and also a copy of this Act, ' informing him that if no communication ' is sent beyond a simple acknowledgment 1 of their receipt, the presbytery will then, ' upon the assumption that no difficulty ' exists on his part as regards the said ' documents, proceed in the case according ' to the laws of the Church. And at the ' diet for the induction of any minister ' thus called, the presbytery shall, before ' the induction service, record the fact ' that the provisions of this Act have been ' duly complied with. The Assembly ' also, with consent aforesaid, rescind the ' last clause of section 9 in the second ' head of the said Act XII. 1846, as being ' superseded by the provisions now enacted ' anent the time and manner of signing ' the Formula.' Accordingly since 1874 the foresaid declaration in the Eligibility Act of 1873, interpreting and explaining the declaration in the Act of 1846, has been sent to all ministers called from other Churches as setting forth the great fundamental principles maintained by the Free Church as to the duties of nations and their rulers to the Christian Religion. The said declaration of fundamental prin ciples is silent as to the right and duty of the civil magistrate to maintain and support Establishments of Religion. Cer tain persons in the Church raised objec tions thereto on that very ground, but the Church avowedly and intentionally treated the question of the civil magistrate's right and duty in regard to Establishments of Religion as an open question, and passed the declaration into a law of the Church in the terms above quoted. The dissents lodged against the Act of 1873 are referred to, as are also the whole proceedings of the Church relative to the said Act. The Act of 1874, emphasizing and approving of the said declaration, was passed by the Church unanimously. The said Acts of 1873 and 1874 bave been acted on by the Church ever since they were passed into law. The pursuers acquiesced in the said legislation and continued to hold office in the Church, or they have since accepted office in knowledge of the said- legislation. Ans. 6. The various Acts referred to, the overtures specified, the Mutual Eligibility Act of 1873, and the Act of 1874 anent signing the Formula are, together with the whole proceedings of Assembly in connection with the pass ing thereof, referred to for their terms. Quoad ultra denied, and explained that the Act of 1874 was passed as an 32 GENERAL interim Act in 1873, and re-enacted after being transmitted under the Barrier Act to presbyteries in 1874, — this being done to satisfy the scruples of a large number of the members of Assembly who were of opinion that the Mutual Eligibility Act of 1873 alone insufficiently provided for ministers rendered eligible from other Churches being required to accept in their entirety the principles and standards of the Free Church of Scotland, and who had opposed it accordingly. And the pro vision that the preamble as well as the enacting part of Act XII. of 1846 should be transmitted in full to the minister proposed to be called, was expressly designed to secure acceptance of the distinctive and entire testimony of the Free Church on the point of the duty of the State in the matter of the establishment of religion. If it was intended and is now interpreted other wise by those former members of the Free Church of Scotland who have abandoned that Church and joined themselves to the United Presbyterian Church, it was in fraudem of the Church to which they formerly be longed and of its constitution or con tract of association. Stat. 7. Again, in 1876, the Free Church entered into an incorporating Union with the Reformed Presbyterian Church of Scotland. This Church repre sented that portion of Scottish Presby terians generally known as Cameronians, who were dissatisfied with and repudiated the Revolution Settlement in 1689, and in consequence declined to enter or become members of the Church of Scotland as established at the Revolution, and con tinued as a separate Church apart from the State. They entirely disapproved of the alliance between Church and State in Scotland as embodied in the Revolution Settlement, and therefore differed materi ally in their views from the views and opinions entertained at any time by any parties in the Free Church. The Claim of Right of 1842 and the Protest of 1843 were based chiefly upon the Revolution Settlement which the Reformed Presby terian Church all along repudiated. The TRUSTEES' CASE Reformed Presbyterians accepted without reserve the Formula of the Free Church as the basis of Union, but before uniting with the Free Church they expressly stipulated as follows : ' We still abide by ' our objections to the Revolution Settle- ' ment, nor do we commit ourselves to an ' approval of an alliance of the Church ' with the British State as at present con- ' stituted, having in view especially the ' unscriptural character of its ecclesiastical ' relations.' They further stipulated that in entering into the Union, the members of the Reformed Presbyterian Church were free to retain and abide by the views and principles hitherto held by them. The Free Church recognising the differ ence of views as to these matters in the two Churches agreed to the said stipula tions, and the Union took place upon this footing, and the office-bearers of the Re formed Presbyterian Church became office bearers of the Free Church without being required to sign the Free Church Formula. The Union necessarily recognised that complete liberty existed within the Free Church to hold different views as to the application of the principle of the duty of nations and their rulers to religion, set forth in the Declaration in the Eligibility Act of 1873. The alleged principle of the civil magistrate's right and duty in regard to Establishments of rehgion was not treated as a fundamental principle of the Free Church, but was deliberately left an open question. Ans. 7. The overtures, Act of Union, and relative reports of committees, and whole proceedings of the General Assembly of the Free Church of Scot land and Synod of the Reformed Presbyterian Church are referred to for their terms. Quoad ultra denied, and explained that it was not within the power of any majority of the General Assembly of the Free Church to treat as an open question what was one of the essential and fundamental principles of the said Church's constitution or con tract of association, and as regards the principle of the civil magistrate's right and duty anent the establishment of religion they did not attempt to do so. The said Act expressly bears in grcemio a statement of the willingness of the STATEMENT FOR DEFENDERS 33 Reformed Presbyterian Church to accept without reserve the formula of the Free Church, but reserves to the Reformed Presbyterian Church its separate name and existence quoad civilia. So far as civil rights and property are concerned, the two Churches maintain a distinct existence to this day — a separate Synod of the Reformed Presbyterian Church meeting annually for business connected with its civil rights. Denied that said Church carried into the union such as it was any principles not consistent with the principles of the Free Church as set forth in the condescendence for the pursuers. The said union was sanctioned by a unan imous vote of General Assembly and approved of by the Church as a whole. Stat. 8. In 1884 the Free Church, in virtue of its inherent powers and liberties, made important changes and modifications in the terms of subscription by certain of her office-bearers to the Westminster Con fession. In that year the Church repealed the Act of Assembly XII. 1846, in so far as it relates to the questions appointed to be put before the ordination of deacons and the formula they are required to sign. This was done by Aet I. 1884, which was passed in terms of the Barrier Act with consent of a majority of Presbyteries. It enacted and declared that new questions and a new formula should be used there after at the ordination of deacons. The Act is referred to for its terms and for the terms of the questions and formula. Stat. 9. In 1892 the Church passed an important Act declaratory of the sense in which, in regard to various matters of doctrine, &c, it accepted the Westminster Confession. This was done by the ' Act ' anent Confession of Faith, 1892,' other wise called the Declaratory Act. This Act was passed as an overture by the General Assembly of 1891, and sent down to presbyteries in terms of the Barrier Act. It received the approval of a large majority of presbyteries, and the General Assembly of 1892 passed it into a law of the Church. Section 5 of the Act is as follows: — 'That this Church disclaims ' intolerant or persecuting principles, and ' does not consider her office-bearers in ' subscribing the Confession of Faith com- ' mitted to any principles inconsistent with ' liberty of conscience and the right of ' private judgment.' This enactment is in similar terms to the Declaration in the Preamble of Act XII. 1846, which De claration was agreed to by the General Assembly of that year without its having received the approval of a majority of presbyteries in terms of the Barrier Act. Section 6 of the Declaratory Act is as follows : — ' That while diversity of opinion ' is recognised in this Church on such ' points in the Confession as do not enter ' into the substance of the Reformed Faith ' therein set forth, the Church retains full ' authority to determine in any case which ' may arise what points fall within this ' description, and thus to guard against ' any abuse of this liberty, to the detri- ' ment of sound doctrine, or to the injury ' of their unity and peace.' This clause recognises that in the view of the Church some points in the Confession of Faith are of greater importance and others of lesser importance, and that the Confession con tains teaching on points which do not enter into the substance of the doctrine or faith of the Church. It is declaratory of the liberty and diversity of opinion which had previously prevailed in the Church as to matters in the Confession not entering into the substance of the faith of the Church therein set forth. The question as to the civil magistrate's right and duty in the matter of Establishments of Reli gion — even if the Confession should be regarded as teaching such a right and duty, as the pursuers contend — is a matter of minor importance, and one which does not enter into the substance of the faith of the Church, and as to which diversities of opinion have always prevailed and liberty to hold diverse opinions has always existed in the Free Church both before 1892 and since then. The Declaratory Act of 1892 is referred to for its full pro visions and founded on. As explained in the preamble, it was enacted to remove difficulties and scruples felt by some, and after its date candidates for licence, ordina tion, &c, were entitled in signing the formula to do so having in view the pro visions of the Act and under reference to these provisions. The position under the 34 GENERAL Uniting Act and the relative Act anent the Formula is the same. Persons now signing the Formula are entitled to do so with reference to the terms of the Declar atory Act, just as since 1892. But the Act is not imposed on any office-bearer in the United Church. In any event, the pursuers remained iu the Free Church, and continued to hold office therein after the passing of the Declaratory Act. Certain ministers and members left the Church in consequence of the passing of said Act, and set up separate congregations, but they did not — as they might have done — raise any question as to their civil rights being affected by the passing of said Act. The pursuers have had the oppor tunity since 1892 of raising such questions as affecting themselves, but they have declined to do so, they have continued to hold office in the Church as before, and those of them who are ministers have con tinued to draw their emoluments from the Church as before. In point of fact, their civil rights, status, and emoluments have not in any way been affected by the pass ing of said Act. Quoad ultra denied. In 1894 a short Act relating to the said Declaratory Act was adopted by the Church. It is referred to for its terms. Reference is made to answer to condescen dence 46. Ans. 8 and 9. Act 1, 1884, the Act anent Confession of Faith 1892, and the Declaratory Act of 1894, together with the overtures and whole proceed ings of Assembly in regard to the pass ing thereof, are referred to for their terms. Quoad ultra the averments in these statements are denied, so far as not coinciding with said Acts, overtures, and proceedings, and with pursuers' averments. Denied in particular that the qualification of the standards of the Free Church of Scotland which the Declaratory Acts imported regarded points of minor importance or points which did not enter into the substance of the faith of the Church therein set forth. Denied further that said Acts, in so far as involving any such qualifi cation, were valid Acts of the Free Church, passed by virtue of any in herent form or liberty, or were accepted or acquiesced in by the pursuers. Re- TRUSTEES' CASE ference is made to the averments in regard to said Acts in condescendence. None of the Acts were passed unani mously by the General Assemblies, all being protested against and dissented from. They were not obligatory on any members. Until now no question of civil right affected by said Acts has occurred in a form suitable to be made the subject of action. Stat. 10. The United Presbyterian Church, with which the Free Church entered into an incorporating Union in 1900, was formed in 1847 by a Union between two religious bodies — the Seces sion Church and the Relief Church — both of which had at different times separated from the Established Church of Scotland. The Supreme Standard of the United Presbyterian Church was the Bible ; and the Subordinate Standards were the Westminster Confession of Faith, the Larger and Shorter Catechisms, and the Basis of Union of 1847, all as settled in 1879 by a Declaratory Act passed in that year by the United Presbyterian Synod, which was the Supreme Court of the said Church. Acceptance of these Standards was required from all office bearers of the Church as a condition of holding office therein, and (in the case of ministers) enjoying the emoluments of office. These documents contain the whole Standards, creed, doctrine, articles of faith, contract, and constitution of the said Church, and were binding upon all office-bearers, and no other documents of any kind were binding upon any office bearers of the Church. The formula (originally prepared in 1847) for ministers at ordination consisted of certain ques tions, of which it is necessary to refer only to the following, viz. : ' (1) Do you ' believe the Scriptures of the Old and ' New Testaments to be the Word of God, ' and the only rule of faith and practice? ' (2) Do you acknowledge the Westminster ' Confession of Faith and the Larger and ' Shorter Catechisms as an exhibition of ' the sense in which you understand the ' Holy Scriptures, this acknowledgment ' being made in view of the explanations ' contained in the Declaratory Act of ' Synod thereanent? (4) Do you approve STATEMENT FOR DEFENDERS 35 1 of the Constitution of the United Presby- 1 terian Church as exhibited in the Basis 'of Union?' The formula for Elders is in similar terms. The Basis of Union contains, inter alia, the following : ' (1) ' That the Word of God contained in the ' Scriptures of the Old and New Testa- ' ment is the only rule of faith and ' practice ; (2) That the Westminster ' Confession of Faith and the Larger and ' Shorter Catechisms are the Confession ' and Catechisms of the Church, and con- ' tain the authorised exhibition of the ' sense in which we understand the Holy ' Scriptures, it being always understood ' that we do not approve of anything in ' these documents which teaches, or may ' be supposed to teach, compulsory or ' persecuting and intolerant principles in ' religion ; (3) That Presbyterian Govern- ' ment, without any superiority of office ' to that of a teaching presbyter, and in ' a due subordination of church courts, ' which is founded on, and agreeable to, ' the Word of God, is the Government ' of this Church ; (10) That the respective ' bodies of which this Church is com- ' posed, without requiring from each other ' any approval of the steps of procedure ' by their fathers, or interfering with the ' rights of private judgment in reference ' to these, unite in regarding as still valid ' the reasons on which they have hitherto ' maintained their state of secession and ' separation from the judicatories of the ' Established Church as expressed in the ' authorised documents of the respective ' bodies, and in maintaining the lawful- ' ness and obligation of separation from ' ecclesiastical bodies in which dangerous ' error is tolerated or the discipline of ' the Church or rights of her ministers ' or members are disregarded.' The De claratory Act of 1879 proceeds on the fol lowing preamble : — ' Whereas the Formula ' in which the Subordinate Standards of ' this Church are exhibited, requires ' assent to them as an exhibition of ' the sense in which the Scriptures are ' understood : Whereas these Standards ' being of human composition are neces- ' sarily imperfect, and the Church has ' already allowed exception to be taken to ' their teaching, or supposed teaching, on ' one important subject : And whereas ' there are other subjects in regard to ' which it has been found desirable to ' set forth more fully and clearly the view ' which the Synod takes of the teaching ' of Holy Scripture, it enacts inter alia ' as follows : . . . (5) That in regard to ' the doctrine of the civil magistrate and ' his authority and duty in the sphere of ' religion as taught in the Standards, this ' Church holds that the Lord Jesus Christ ' is the only King and Head of the ' Church,' and ' Head over all things to ' the Church which is His Body,' ' dis- ' approves of all compulsory or persecuting ' and intolerant principles in religion, and de- ' clares as hitherto that she does not require ' approval of anythingin her Standards that ' teaches, or may be supposed to teach, such ' principles.' The constitutional law and practice of the United Presbyterian Church as set forth in her ' Rules and Forms of ' Procedure ' required that before any resolution or Act of the Synod became a binding law of the Church, it should be remitted by the Synod for considera tion and approval to the presbyteries and sessions of the Church, and only after it had been so remitted and approved by a majority of them, and thereafter adopted by the Synod, did it become a binding law of the Church. Accordingly the said Declaratory Act was so remitted, and thereafter, with approval of a majority of presbyteries and sessions, it was passed by the Synod as a binding Act and law of the Church. In accordance with the constitution of the United Presbyterian Church set forth above, the question of the civil magistrate's right and duty in regard to Establishments of Religion, was all along an open question in that Church. No member or office-bearer was required to subscribe to or to accept the alleged principle, set forth in condescendence 14, that the civil magistrate has no right or duty to maintain and support Establish ments of Religion, or that it is neither lawful nor expedient for the State to give legislative sanction to any creed in the way of setting up a Civil Establishment of Religion, nor is it within its province to provide for the expense of the minis trations of, or otherwise to further religion, or even to provide the means of elementary religious education out of the national 36 GENERAL TRUSTEES' CASE lective, on the question of the right or duty of the civil magistrate as to Estab lishments of Religion were not binding on the said Church or upon any office-bearer or member thereof. Resolutions of single Synods were not binding. They simply expressed the opinions of the persons present and taking part in the passing of said resolutions, but left subsequent Synods and all the members of the Church entirely free to hold and express, if they saw fit, a contrary opinion. They did not in any away affect the creed or constitution of the Church, which could not lawfully or competently be altered by a vote of a single Synod. Ans. 10. The constitutional docu ments and standards and various Acts of the United Presbyterian Church, are, along with the Rules and Forms of Procedure, and Overture of 1879 herein specified, referred to for their terms. Said Rules and Forms of Procedure are not constitutional documents, but are merely of the nature of standing orders for the regulation of business. Quoad ultra denied, and explained that the Standards of the United Presbyterian Church were not 'settled,' but, as originally averred in this statement, 'modified' in 1879. Denied further that the constitution and position of the United Presbyterian Church at the time of the Union complained of was other than as averred by the pursuers. resources. None of these principles was at any time embodied in or formed any part of the constitution of the United Presbyterian Church, and no member or office-bearer was required to hold such principles. On the contrary, all office bearers were left free to hold any view they pleased as to the right and duty of the civil magistrate in regard to the said matters, and in point of fact diversity of opinion has largely prevailed in the said Church on the question. The Basis of Union declares in section 10 thereof, above quoted, the grounds on which con tinued separation from the Church of Scotland is justified, but it does not in clude in these grounds the fact of that Church being a Civil Establishment of Religion. It consequently does not con tain any statement, reason, or principle preventing any person being a member or office-bearer of the United Presbyterian Church who held the view that it was the right and duty of the civil magistrate to maintain and support an Establishment of Religion. The Basis of Union was designedly so drawn as to guard against excluding from membership or office any person holding the said opinion. In 1870 an overture was brought up to the Synod by certain persons in the Church holding views adverse to Civil Establishments of Religion, proposing a revision of the Standards and Basis of Union in a sense favourable to their views. The Synod dismissed the overture and passed the following resolution : — ' That forasmuch as ' the interpretation of the terms of the ' Basis is regulated by the terms of the ' Formula of October 1847, declaring that ' office-bearers of the Church are not re- ' quired to approve of anything in the ' Subordinate Standards that teaches, or ' is supposed to teach, compulsory or per- ' secuting and intolerant principles in re- ' ligion, thereby securing full liberty of ' opinion with reference to Civil Estab- ' lishments of Religion, the Synod dis- ' misses the overture as uncalled for and ' inexpedient.' In harmony with this finding is the 5th section of the Declara tory Act of 1879, which, as stated above, was passed in conformity with the con stitutional law and practice of the Church. Any other expressions, individual or col- Stat. 11. In 1896 the Synod of the United Presbyterian Church expressed to the General Assembly of the Free Church their readiness to enter into Union with the Free Church 'on the ground of the ' Standards at present accepted by the ' Churches.' Each of the two Churches appointed a committee, and these com mittees met and communicated to each other the existing doctrines, Standards, rules, and methods of the two Churches. The said committees were satisfied that there existed between the Churches har mony in respect to all their essential doctrines and principles. The Supreme and Subordinate Standards were practi cally the same in both Churches. The Larger and Shorter Catechisms, which were regarded as Standards in the United STATEMENT FOR Presbyterian Church, contained the same doctrine and teaching as the Confession of Faith. The Basis of Union and the Declaratory Acts of the United Presby terian Church are in entire harmony with the principles contended for by those who formed the Free Church in 1843 with respect to the spiritual independence of the Christian Church, and in harmony also with the Declaratory Act of the Free Church. The Free Church in said negotiations for Union was not asked, and did not agree, to renounce, change, or modify any principle which it had hitherto held. Accordingly it was found unneces sary to formulate any Articles of Agree ment or Basis of Union. The only thing that was thought necessary in order to a Union on the ground of the Standards accepted by the Churches, was a slight adjustment of the Questions and Formula to be put to office-bearers and signed by them in the United Church. The only Question added to the Formula by the Free Church in 1846, viz. the fifth ques tion, was accepted in its entirety by the United Presbyterian Church. The Ques tions and Formula for the ordination or induction of a minister as adjusted for use in the United Church are referred to for their terms. The Formula of Subscrip tion adjusted for use in the United Church to be subscribed by probationers on receiving licence, and by all ministers and elders at the time of their admission, is also referred to for its terms. The Questions and Formula for other office bearers are in similar terms. The Union Committee of the Free Church submitted to the General Assembly of 1898 a joint report of both committees, setting forth the proposed Questions and Formula. This report was approved by the General Assembly, and sent down to Presbyteries that they might consider it, and send to the said committee any suggestions which they might think fit. The greater num ber of the Presbyteries approved the Questions and Formula, and suggestions were sent up by some of them which were considered by the committee. The said committees also considered the arrange ments necessary to be made in harmonising the methods of the two Churches so far as that was needful, and they prepared DEFENDERS 37 detailed proposals for that purpose. These also were sent down by the General Assem bly of 1898 to presbyteries for suggestions. This action on the part of the General Assembly of 1898 in sending down to presbyteries the result of the Union Committee's labours for consideration and suggestion was not taken under the Barrier Act. No approval of the com mittee's proposals was asked for, but presbyteries were consulted simply in order that time and opportunity might be given for full and careful consideration of the whole matter by the Church. Ans. 11. The defenders are called on to produce copies of the reports of the committees of both Churches, which, along with the similar reports on earlier stages of the Union negotiations and with the various documents in this article specified, are referred to for their terms. Quoad ultra denied, and ex plained that the said adjustment of the Questions and Formula to be subscribed by the ministers and elders of the so- called United Free Church of Scotland imported an abandonment by the Unionist members of the Free Church of the Westminster Confession, and there fore an abandonment of theconstitutional standard of their Church's belief. Stat. 12. Thereafter the Union Com mittee, having carefuUy considered all the suggestions made to them by the Church, submitted a report to the General Assem bly of 1899, which report set forth in detail the Plan of Union proposed. The said General Assembly approved of the said report, and adopted an overture anent Union with the United Presbyterian Church, enacting and ordaining that the Plan of Union set forth in the proposals therein referred to 'is authorised and ' accepted by this Church with a view to ' an incorporative Union with the United ' Presbyterian Church.' This overture was ordered to be transmitted to presby teries for their opinion in terms of the Barrier Act. The overture is referred to for its terms. The said overture received the approval of a majority of presbyteries (70 approving and 4 disapproving), and in the following year the General Assembly of May 1900 passed an Act anent Union GENERAL TRUSTEES' CASE denied that the members of the Free Church of Scotland who supported the Union did not surrender the funda mental principles and standards of their Church. 38 with the United Presbyterian Church in terms of the overture above quoted by a majority of 593 to 29. Said Act thus became part of the binding law of the Church. It was passed by a lawful Assembly in terms of the constitutional law and practice of the Church. It was within the power and competency of the General Assembly, with consent of a majority of Presbyteries, to authorise and accept the said Plan of Union, and the pursuers continued to hold office in the Church after said Act was passed. The same General Assembly of May 1900 adopted an overture enacting and ordain ing that an incorporative Union may be effected by the General Assembly in terms of a Uniting Act therein set forth. The overture is referred to for its terms. The overture was transmitted to presbyteries for their opinion in terms of the Barrier Act. It received the consent of a majority of presbyteries (71 approving out of 75, and 4 disapproving, and 7 out of 8 foreign presbyteries approving, and one expressing no opinion). At the following General Assembly of the Free Church held on 30th October 1900 it was passed, with the con sent of a majority of presbyteries, into a law of the Church by a majority of 643 against 27. The whole of the said pro ceedings were within the powers of the Church and were in every respect com petent, regular, and lawful. In passing the laws approving and sanctioning the Plan of Union and the terms of the Uniting Act above set forth, the Free Church was not called upon to surrender, and did not in point of fact surrender or renounce or change any of its fundamental principles, but, on the contrary, provision was therein made for the continued recog nition of all the fundamental principles embodied in the Standards of the Free Church, and hitherto binding upon the Church and its members. Ans. 12. The Acts and proceedings mentioned are referred to. Explained that said Acts were ultra vires, illegal, and inept, for the reasons stated in the condescendence for pursuers, to which reference is made, and that at every proper stage dissents were tabled on behalf of those adhering to the pursuers. Quoad ultra denied. In particular Stat. 1 3. The said General Assembly of October 1900 also passed an Act in view of the proposed Union, enacting, ordain ing, and declaring that the ' United Free ' Church of Scotland is and shall be the ' successor in office of the said Free Church ' of Scotland,' and that its various courts and officials are and will hereafter continue to be the respective successors in office of the like courts and officials of the Free Church, and that the whole property belonging to or in any way held by or for the Free Church shall belong to the United Free Church of Scotland, and be held for behoof of it, all in terms of the said Act, which is referred to for its full provisions. The said General Assembly also passed an Act, on the narrative that certain elders held certain property of the Church as general trustees, and that it was proper, in view of the proposed Union, that the property of both Churches should be held by one body of trustees, enacting and declaring that the persons therein named should be the general trustees for holding the said property of the Free Church of Scotland from and after 31st October 1900, and should be the succes sors in office of the present general trustees of the Free Church of Scotland. The said Act is referred to for its full provi sions. Both the said Acts were within the competency and power of the General Assembly to pass. The whole of said pro perty belonged to or was held for behoof of the said Free Church, and the Church having lawfully and competently passed the foresaid laws relating to the proposed Union, and being entitled in respect thereof to enter the United Free Church of Scotland, with all the property belong ing to it and held for its behoof, was entitled to deal with its said property in the manner enacted as above stated. The | whole of the said laws of the Church were binding upon the Church and all its mem bers. The General Assembly of 30th October 1900 was a lawful and regular Assembly, and all its Acts and proceedings \ STATEMENT FOR were lawful and regular and binding on the Church. Ans. 13. The various Acts and pro ceedings are referred to, as are also the various dissents therefrom specified in condescendence. Admitted that the whole of the property referred to be longed to or was held for behoof of the Free Church. Quoad ultra denied, except in so far as coinciding with the pursuers' averments on Record. DEFENDERS 39 Stat. 14. In pursuance of the proceed ings and laws above set forth the said General Assembly of the Free Church of Scotland met on 31st October 1900, along with the Synod of the United Presby terian Church, within the hall of the Waverley Market, Edinburgh, and the meeting was duly constituted. A motion was made and seconded and unanimously adopted in terms of the Uniting Act quoted above, omitting part 3 relating to the Declarations therein. Thereupon the Moderator of the General Assembly of the Free Church and the Moderator of the Synod of the United Presbyterian Church declared that the Free Church of Scotland and the United Presbyterian Church 'do now and henceforth consti- ' tute one United Church,' and in token thereof they gave one another the right hand of fellowship. The Uniting Act was thereafter signed by the moderators and clerks of the said General Assembly and Synod respectively. The General Assembly of the United Free Church of Scotland was then duly constituted. Sub sequently the said General Assembly agreed, in terms of the Uniting Act, that the Questions and Formula considered and agreed upon by the inferior courts of the two Churches established the Ques tions and Formula to be used at the ordination and induction of ministers and office-bearers in the United Free Church. It was also unanimously agreed to that the said Church entered into the Union and authorised it in view of the Declara tions contained in part 3 of the Uniting Act above set forth. The Free Church thus entered into the said Union with its whole rights and liberties, and maintain ing all its fundamental principles as they existed previously to the Union, without these being violated, altered, or impaired in any respect. Its Standards and funda mental principles continue to be recog nised as Standards and fundamental prin ciples of the United Free Church, and the property held by or for behoof of the Free Church prior to the Union is now held by or for behoof of the United Free Church of Scotland. Ans. 14. The proceedings of the defenders or others in the Waverley Market, except as stated in the con descendence for the pursuers, are not known and not admitted. Denied that the effect of these proceedings was as is alleged. Stat. 15. The defenders first called hold certain property as trustees for behoof of the Free Church, and the de fenders second called now hold the said property for behoof of the United Free Church. The original Act of the Free Church General Assembly appointing general trustees was the Act of 1844, by which the General Assembly resolved, inter alia, 'that the following elders be ' appointed trustees to hold any property ' which may be bequeathed or conveyed ' to them for behoof of the Free Church.' It is in virtue of this Act and of subse quent Acts appointing new trustees that the first defenders held property for behoof of the Free Church. The pur suers by their own voluntary acts ceased to be members of the Free Church of Scotland. They separated and cut them selves off from the said Church, and by so doing they lost and forfeited all their rights and privileges as members thereof. They do not constitute or represent the Free Church of Scotland, and they have no right or title to any property which belonged to the said Free Church of Scot land. They are not members of the United Free Church of Scotland, and they have no right or title to any pro perty belonging to it. Further, none of the trusts under which the first defenders held property referred to in the Conde scendence 40 contained conditions or directions or trust purposes inconsistent with the Free Church lawfully entering into the Union above referred to, or pre venting the said defenders continuing in 40 GENERAL TRUSTEES' CASE ficial application of the funds to the pur suers themselves, or to other persons un known to the defenders; but they have not called the present beneficiaries, who alone will suffer prejudice, and who alone have the real interest to oppose the con clusion of the action. Ans. 15. Admitted that the defenders hold or held certain properties for behoof of the Free Church.. For the trusts under which said properties are held reference is made to the terms of the trust deeds thereof, which the de fenders are called upon to produce. Explained that the present pursuers do not seek to innovate upon, but merely to conserve the beneficial interests in the various funds and properties, and as so doing, and as being beneficially interested therein themselves, they are entitled to litigate the present questions with the defenders called, who, and who alone, represent the trust estate. Admitted that pursuers are not mem bers of the new association calling itself the United Free Church of Scotland. Quoad ultra denied. The defenders are called on to specify the respects in which they allege that the pursuers, who maintain intact their position as members adhering to the principles and standards of the Free Church as hereto fore existing, have separated and cut themselves off from the said Church, and have forfeited and lost all their rights and privileges as members thereof. that event to hold said property thereafter for behoof of the said Free Church, or of the said United Free Church as its suc cessors in office. The said property was held by the said defenders in trust for the Free Church subject to the inherent rights and powers of the said Church, express and implied, to enter into Unions with other Churches, and subject also to the inherent rights and powers of the said Church, express and implied, to make innovations and changes in its doctrine, worship, discipline, or government in terms of its constitutional law and practice. In particular it is not a term or condition or direction of any of the said trusts that the Free Church held or should hold as one of its fundamental principles the view put forward by the pursuers as to the civil magistrate, or that the trust funds should be held and ap plied for behoof of the said Church, only so long as the said view continued to be held as a fundamental principle of the Church. Nor is it a condition of any of the said trusts that a minority of ministers or members thereof separating from the majority thereof, on the ground that they alone continued to hold the said prin ciple, should be entitled to the beneficial use of said funds either alone or to gether with the majority. Further, the said trust funds were and are to be held by the respective trustees simply as holders of the funds. They did not and do not administer the funds, and they had and have no beneficial interest in them. The administration of the funds was entirely in the hands of other persons, viz. of various committees composed in whole or in part of members of the Free Church, and is now entirely in the hands of various committees of the United Free Church. None of the said administrators of the trust funds in question are called as defenders or for their interest. The beneficiaries of the said funds are ministers, missionaries, professors, school masters, widows, and children, and others, very few of whom are called, and none of whom are called as beneficiaries of said trust funds. The pursuers propose in this action to bring the said trusts to a termination so far as these beneficiaries are concerned, and to transfer the bene- Stat. 16. Certain of the trust funds held in name of the general trustees and included in the pursuers' claim are funds which were bequeathed or left in trust to other bodies, and belong to them and are held for convenience in name of the general trustees. Among these are various funds which have been bequeathed to the Foreign Missions Committee of the Free Church, to the Livingstonia Committee, and other committees for behoof of various foreign missions, of the Livingstonia Mission, &c. Again, the general trustees hold large sums, amounting to over £12,000 (claimed by pursuers in this action) which belong to an association called the Women's Foreign Mission Society. This is an entirely separate STATEMENT FOR DEFENDERS 4i organisation. The said money belongs wholly to the said Women's Society, and has been invested by them for convenience in name of the general trustees, but the latter have no control whatever over it, and no rights or claims in regard to it. Again, various trust funds here claimed are held in name of the general trustees, which have been bequeathed for behoof of a large number of local churches and con gregations in different parts of Scotland, selected by the trusters as the objects of their bounty, and specified in the trust deeds. Others of said funds again are held in name of the general trustees in trust for local educational purposes, and they are bound, in terms of the trusts and in some cases in terms of statute, to pay over the income to local educational bodies. In none of the above cases are the parties called who have the real interest to oppose the pursuer's claim. Various other cases of a similar nature exist among the trust funds held by the general trustees. In regard to none of them have the true defenders been called. The pursuers are bound to set forth in detail what trust funds they claim, and the grounds on which they claim them, and to call as defenders all parties having any- interest therein. They have not stated any right or title to any of the trust funds held in name of the defenders first or second called, or any reason why the said funds should not continue to be held in name of these defenders and administered as at present. Further, and in any event, the said trust funds are held for a large number and variety of different purposes and individuals both in this country and abroad. The pursuers, who are a small number of ministers and elders resident for the most part in the Highlands of Scotland, have not set forth any facts or circumstances to shew that they are in a position to implement the trust purposes for which the said funds are held. In point of fact they are not in such a posi tion. They have no foreign missions, colleges, educational work, or other organ isations to which the said trust funds could be lawfully and competently applied by them in terms of the directions of the trusters of the said trust deeds. Their claim is entirely unfounded and incom petent. Further, the pursuers are barred from insisting in the claims put forward in the present case by their own actings. They were members of the Free Church when the various Acts were passed by the said Church, as set forth in the foregoing statements, and they remained members and office-bearers of the said Church there after, or they joined the Church and accepted office in it in the knowledge that said legislation had taken place. The pursuers conclude for reduction of certain Acts of Assembly, entitled by them 'Free Church Acts,' and alleged to have been passed at the meeting of the General Assembly of the Free Church of Scotland on 30th October 1900, but the said General Assembly has not been called as defenders either by its members or by any of its officials as representing it, or in any other way. Ans. 16. The defenders are called on to specify the details of and to produce the deeds constituting the trusts in their favour of the various funds in this article referred to. Reference is made to those for their terms, beyond which no admission is made. Denied that the pursuers are not in a position to implement the purposes for which the said properties are held. Explained that owing to the illegal action of the seceding defenders, who have retained possession of the funds and all the documents and control of the organisa tions connected therewith, the pursuers are for the moment excluded from the effectual prosecution of various objects contemplated in the trusts. They have, however, appointed, and have in exist ence committees charged with the care of foreign missions, colleges, aud educa tional work ; and in the event of their being successful in the present action, they are prepared to maintain the necessary organisations for securing the application of the properties in question to their legitimate purpose. In any event, any disability under which the pursuers may have been temporarily placed through the illegal action of the defenders, affords no justification for the latter being allowed unlawfully to con tinue in the possession and management of the subjects. The pursuers them- 42 GENERAL TRUSTEES' CASE in condescendence. Quoad ultra the whole averments in the Statement of Facts and Defenders' Answers to Conde scendence not hereinbefore specifically dealt with are denied so far as not coinciding with the Statements in Con descendence and these Answers. selves form or represent the General Assembly of the Free Church of Scot land convened to meet on 30th October 1900, and among the defenders called are those who were commissioned as members thereof, but who withdrew themselves from membership as specified IV.— PLEAS in LAW for Pursuers. 1. The pursuers and those adhering to them being the Free Church of Scotland, have right to the property and funds held upon trust for behoof of said Church, and that to the exclusion of the defenders and all others not members of the said church, and decree ought accordingly to be pro nounced in terms of the first enumerated group of declaratory conclusions of the summons, and of the first branch of the conclusion for interdict. 2. The said Union not being one which could lawfully be entered into to any civil effect against the dissent of any portion of the members of the Free Church or of its General Assembly, the pursuers are en titled to decree in terms of the first branch of the declaratory conclusions and to interdict. 3. The said United Free Church being an association or body of Christians associated under a constitution which does not recognise, accept, and provide for maintaining principles which are fundamental to the Free Church of Scot land, neither the said Church nor any of the defenders who have adhered thereto have any right to participate in the property and funds which form the subject-matter of this action, and the pursuers are entitled to decree as afore said. 4. Separatim, the pursuers and those adhering to them being faithful to the principles of the Free Church of Scotland, for behoof of which the said property and funds are held, have not lost their right to participate therein, and they are in any event entitled to decree in terms of the alternative conclusions for declarator and interdict. 5. The Acts, production of which is called for, being so far as they affect or pretend to affect the civil rights of the pursuers ultra vires and illegal, and null and void, and the pursuers having a title and interest to challenge them to the extent foresaid, decree ought to be pro nounced reducing the same as concluded for. In respect whereof, James Simpson, S.S.C. V.— PLEAS in LAW for Defenders. 1. No title or interest to sue. 2. The action is incompetent. 3. No relevant case. 4. The pursuers are barred by their own acquiescence and actings as averred from insisting in the present action. 5. All parties not called. 6. The pursuers having voluntarily separated from the Free Church of Scot land and ceased to be members and office-bearers thereof, have no right or title to the property and funds belonging to or held for behoof of said Church, or to any part thereof. 7. The Free Church of Scotland in entering into the said Union and in dealing with the funds and property belonging to it, as was done by the Acts and proceedings condescended on in the Statement of Facts for defenders, having acted throughout lawfully and regularly. and in virtue of its inherent powers and STATEMENT FOR DEFENDERS 43 9. The whole material averments of the pursuers being unfounded in fact and untenable in law, the defenders are en titled to absolvitor from all the conclusions of the summons, with expenses. In respect whereof, &c, R. L. Orr. liberties, the defenders should be assoil zied. 8. The whole property and funds claimed by the pursuers in this action being the property of the United Free Church of Scotland, the defenders are entitled to absolvitor. II MODEL TRUST DEED CASE CLOSED RECORD IN CAUSA (First) Robert Young, residing at 2 Merchiston Place, Edinburgh, and James Harvie Clason, residing at 8 Merchiston Crescent, Edinburgh, the whole existing and acting Trustees for the congregations belonging and adhering to the body of Christians called the United Free Church of Scotland, and now or lately worshipping at the church known as The Free Buccleuch and Greyfriars Church, Edinburgh ; (Second) the Reverend Robert Rainy, Doctor of Divinity, Moderator of the General Assembly of the United Free Church of Scotland, held in October and November 1900; and the Reverend Andrew Melville, Doctor of Divinity; Reverend Archibald Henderson, Doctor of Divinity; Reverend Thomas Kennedy, Doctor of Divinity; and Reverend William Blair, Doctor of Divinity, Principal Clerks to the said General Assembly, — Pursuers ; AGAINST The Reverend Donald Mackinnon Macalister, 32 Mansion House Road ; the Reverend Robert Gordon, 11 Mayfield Gardens; William Bell, 11 Melville Terrace; George Ross, 103 Warrender Park Road; Henry Christie, 8 Saint Leonard's Bank; Sinclair Gunn, 59 Marchmont Road; James Waters, 5 Saint Stephen. Street; Doctor William Gordon, 11 Mayfield Gardens; James Thomson, 11 Arthur Street; Donald M. Smith, 10 Mentone Terrace; James Bell, 11 Melville Terrace; John Munro, 14 Spittal Street; William Buchan, 6 Rothesay Place; and James Jenkinson, 18 Rose- neath Terrace, all in Edinburgh, — Defenders. I.— SUMMONS. Edward the Seventh, &o. — Whereas it now or lately worshipping at the church is humbly meant and shown to us by our known as The Free Buccleuch and Grey- lovites (First) Robert Young, residing at friars Church, Edinburgh ; (Second) the two Merchiston Place, Edinburgh, and Reverend Robert Rainy, Doctor of James Harvie Clason, residing at eight Divinity, Moderator of the General Merchiston Crescent, Edinburgh, the Assembly of the United Free Church of whole existing and acting trustees for Scotland, held in Edinburgh in October the congregation belonging and adhering and November nineteen hundred; and to the body of Christians called the the Reverend Andrew Melville, Doctor United Free Church of Scotland, and of Divinity; Reverend Archibald Hen- SUMMONS 45 derson, Doctor of Divinity; Reverend Thomas Kennedy, Doctor of Divinity ; and Reverend William Blair, Doctor of Divinity, Principal Clerks to the said General Assembly, — Pursuers ; against the Reverend Donald Mackinnon Macalister, thirty -two Mansion House Road, and others, Defenders; in terms of the Con descendence and Note of Pleas in Law hereunto annexed : Therefore it ought and should be found and declared (First) That the subjects and others following, videlicet : Primo, All and Whole [here follows description of subjects] which pieces of ground are now occupied by the buildings of the said Free Buccleuch and Greyfriars Church, and appurtenances thereof, pertain heritably in property, with the said buildings now erected thereon, to the pursuers, the said Robert Young and James Harvie Clason, as trustees for the said congregation of the United Free Church of Scotland, in terms of, and for the trust purposes contained and referred to in a feu-charter of the said subjects granted to the said pursuers and others, as trustees, by the said James Watson, dated the thirteenth, and recorded in the Register of Sasines the fourteenth, both days of November eighteen hundred and sixty-five : (Second) And it ought and should be found and declared, by decree foresaid, that the said pursuers, Robert Young and James Harvie Clason, as trustees foresaid, are entitled to possession of the said piece of ground,. and the build ings of said church and appurtenances thereof, for the purposes contained and referred to in said feu-contract : (Third) It ought and should be found and declared, by decree foresaid, that the defenders have no right or title, whether of property or possession, in the said subjects and others above described, and the defenders ought and should be de cerned and ordained, by decree foresaid, immediately to cede to the said first-named pursuers, as trustees foresaid, possession of the said subjects and others in order that the said first-named pursuers, as trustees foresaid, may possess and enjoy the same, subject to the said terms and conditions, and for the said trust purposes above referred to; and the defenders, the said Reverend Donald Mackinnon Macalister and Reverend Robert Gordon, ought and should be interdicted, prohibited, and dis charged, by decree foresaid, from preaching and expounding the Holy Scriptures, and administering ordinances within said church either themselves or by others acting with their permission or authority, and the whole defenders ought and should be interdicted, prohibited and discharged, by decree foresaid, from interfering with the said first-named pursuers, as trustees foresaid, in the peaceable possession and enjoyment of their rights in and over the said subjects and others ; and further, such of the defenders as appear and oppose the conclusions hereof ought and should be decerned and,, ordained, by decree foresaid, to make payment to the pursuers of the sum of one hundred pounds sterling, or such other sum as our said Lords shall modify as expenses of the process to follow hereon, conform to the laws and daily practice of Scotland, used and observed in like cases as is alleged. — Our will is herefore, &c. (Summons signeted at Edinburgh, 9th May 1901.) John Cowan, Writer to the Signet. IL— CONDESCENDENCE for Pursuers and ANSWERS thereto for Defenders. Cond. 1. By feu-charter, dated 13th, burgh, and heritable proprietor of the and recorded 14th November 1865, James subjects therein disponed, sold, alienated, Watson, therein designed as Manager of and in feu-farm disponed to the pursuers, the Scottish Provident Institution, Edin- the said Robert Young and James Harvie 46 MODEL TRUST DEED CASE Clason and others, as trustees, the subjects described in the Summons. The disponees are described as ' trustees for the congrega- ' tion of the body of Christians called the ' Free Church of Scotland, at present ' worshipping in the Free Buccleuch ' Church, West Crosscauseway, Edin- ' burgh.' The said feu-charter further provides that the said subjects are dis poned 'in trust always for the ends, uses ' and purposes, and upon the trusts, and ' with the powers, and under the condi- ' tions, provisions, and declarations con- ' tained and specially enumerated from ' primo to duodecimo, both inclusive, in ' the disposition made and granted by ' John Hamilton, Esquire, advocate, and ' others, to John Cadell, Esquire, advocate, ' and others, trustees for the Congregation ' of Saint George's Free Church of Edin- ' burgh, dated the ninth, eleventh, and ' twelfth, and registered in the Books of ' Council and Session the thirteenth, days ' of November in the year eighteen ' hundred and forty-four, all which trusts, ' ends, uses and purposes, powers, condi- ' tions, provisions, and declarations are ' here held as repeated brevitatis causa, ' declaring always, as it is hereby expressly ' provided and declared, that the said. ' trusts, ends, uses and purposes, powers, ' conditions, provisions, and declarations ' before referred to, which, by the said ' disposition, are made applicable to the ' subjects thereby disponed in the persons ' of the trustees therein named, shall ' be all equally applicable to the several 1 subjects hereby disponed, as the same ' shall be held by the trustees hereinbefore ' named and appointed, and their afore- ' saids, and that as fully as if the said ' trusts, ends, uses and purposes, powers, ' conditions, provisions, and declarations ' had been all engrossed ad longum herein, ' and that the several subjects hereby ' disponed shall be held by the said ' trustees for the use of the said congrega- ' tion, and for like ends, uses and pur- ' poses, and upon like trusts, with the ' same powers and under the same condi- ' tions, provisions, and declarations, as the ' subjects disponed by the said disposition ' are held for the said congregation of ' St. George's Free Church of Edinburgh, ' and that as fully as if the said trusts, ' ends, uses and purposes, powers, condi- ' tions, provisions, and declarations had ' been all ad longum engrossed herein.' The said disposition by John Hamilton, Esquire, advocate, and others, is commonly known as ' the Model Trust-Deed ' of the Free Church. Cond. 2. The said Model Trust-Deed, which is imported by reference as above set forth into the said feu-charter, was granted under certain conditions, pro visions, and declarations, and in trust for certain ends, uses, and purposes. The first trust purpose is as follows : — ' First, Upon trust that the building or place of worship, erected, or in the course of being erected, upon the ground hereby disponed, or any building or place of worship that may hereafter be built and be erected thereon, with the appurten ances thereof, shall, in all time coming, be used, occupied, and enjoyed, as and for a place of religious worship, by a congregation of the said body of Chris tians called the Free Church of Scotland, or of any united body of Christians composed of them, and of such other body or bodies of Christians as the said Free Church of Scotland may at any time hereafter associate with themselves, under the foresaid name of the Free Church of Scotland, or under whatever name or designation they may assume, and to be made use of by such congregation occupying and enjoying the same, for the time being, in the way and manner in which, by the usages of the said body or united body of Christians, places of religious worship may be, or are in use to be occupied and enjoyed.' The fourth trust purpose is as follows : — ' Fourthly, Upon further trust, that the said trustees or trustee acting for the time shall at all times be subject in the management and disposal of the said building or place of worship and appurtenances thereof, and whole subjects hereby dis poned, and in all matters and things connected therewith, to the regulation aud direction of the General Assembly for the time being of the said body or united body of Christians, and shall be liable and bound to conform to, imple ment, and obey, all and every the Act or CONDESCENDENCE Acts of the General Assembly for the time being of the said body or united body of Christians in reference thereto ; and the moderator and clerk of the said General Assembly, for the time being, or of the then immediately preceding General Assembly of the said body or united body of Christians, or the parties generally known or understood to hold those offices for the time, shall at all times have full power and sufficient status and right and interest to pursue or defend any action or actions, in what ever Court or Courts of law or justice, for the enforcement, maintenance, or protection of the rights, interests, or privileges of the said body or united body of Christians, or General Assembly thereof, in or in any way connected with the subjects hereby disponed, and building or place of worship erected or to be erected thereon, and appurtenances thereof.' The fifth trust purpose is as follows : — ' Fifthly, It is hereby expressly provided and declared that the said trustees or trustee, acting for the time, shall always have full power and liberty to raise, prosecute, and follow forth whatever action, suit, or proceeding they may think proper, in whatever court or courts of law or justice, for the purpose, or with the intent and object of exclud ing any party or parties ' whatsoever, from all or any use, possession, occupa tion, or enjoyment of the building or place of worship erected, or to be erected, as said is, or any part thereof, or gener ally of the subjects hereby disponed, or any part thereof.' Further, the Model Trust - Deed provides as follows : — Seventhly, It is hereby also expressly provided and declared that it shall at all times be in the power of any trustees or trustee, whether hereby named or that may be appointed in virtue of the powers and provisions hereinafter contained, who may have acted in the said trust, to resign the trusteeship, and that in the event of any trustees or trustee, whether named or to be appointed, as said is, ceasing to be members of the said body or united body of Christians, then, and in that case, such trustees or trustee shall ipso facto cease to have any right to act under these presents, AND ANSWERS 47 ' and the trust shall be thenceforward ' conducted by the other trustees, as if ' such trustees, or trustee, ceasing as said ' is, were actually dead.' The said feu- charter and a copy of the Model Trust Deed are produced and founded on. Ans. 1 and 2. The said feu-charter, dated 13th, and recorded 14th Novem ber 1865, and the deed described as the Model Trust-Deed, are referred to for their terms, beyond which no admission is made. Explained that the said so-called Model Trust-Deed is not a conveyance or deed of or relating to the lands contained in the said feu-charter, nor does it form part of the progress of titles of such lands. It is not referred to as recorded in the Register of Sasines. Cond. 3. In 1897 the Free Buccleuch Church, of which the defender, the Reverend Robert Gordon, was minister, united with another Free Church con gregation in Edinburgh, named Free Greyfriars Church, of which the defender, the Reverend Donald Mackinnon Mac alister, was minister. Since then, the name of the united congregation has been Free Buccleuch and Greyfriars Church, and both these defenders have been ministers of the said united congregation. Ans. 3. Admitted. Cond. 4. Until 31st October 1900, the congregation worshipping in Free Buc cleuch and Greyfriars Church, under the pastoral charge of the defenders, the said Reverend Robert Gordon, and the said Reverend Donald Mackinnon Macalister, was a congregation in connection with the Free Church of Scotland, and the sur vivors of the trustees named in said feu- charter, viz., the two first-named pursuers and the said Reverend Robert Gordon, held the subjects therein described for their behoof as such. Upon that date the Free Church of Scotland united with another body of Christians known as the United Presbyterian Church, under the name or designation of the United Free Church of Scotland. On 31st October 1900, the supreme courts of the said churches, namely, the General Assembly of the Free Church of Scotland and the 48 MODEL TRUST Synod of the United Presbyterian Church, being convened together in Edinburgh and duly constituted, unani mously agreed, inter alia, as follows : — ' The General Assembly of the Free ' Church of Scotland, and the Synod of ' the United Presbyterian Church, em- ' powered as aforesaid, do hereby, in 1 terms and in pursuance of the deliver- ' ances of their respective church courts, ' enact and declare that the Free Church ' of Scotland and the United Presbyterian ' Church do, and shall henceforth con- 1 stitute one united church, that the name ' of the united church shall be " The ' " United Free Church of Scotland," and ' that its Supreme Court shall be desig- ' nated, " The General Assembly of the ' " United Free Church of Scotland." ' Further, the General Assembly of the Free Church of Scotland, convened at Edinburgh on 30th October 1900, passed the following Act on the preamble that the Union above referred to was in con templation, and was about to be con summated : — ' Whereas, in the . event of ' the proposed Union being carried out, it ' is necessary and expedient, in the ' interest of the said Free Church of ' Scotland and the said United Free ' Church of Scotland, for facilitating the ' administration and work of the said ' United Free Church of Scotland, and ' of the various institutions connected ' with the same, that it be enacted, ' ordained, and declared, as the General ' Assembly, in virtue of the powers be- ' longing to them under the Rules and ' Regulations of the said Free Church of ' Scotland, or otherwise belonging or * competent to them, hereby specially ' enact, ordain, and declare, that the ' United Free Church of Scotland is and ' shall be the successor in office of the ' said Free Church of Scotland, and that ' the General Assembly, the Synods, the ' Presbyteries, and the moderators and ' clerks thereof, the financial boards of ' the theological colleges in Edinburgh, ' Glasgow, and Aberdeen, the senatus ' academici of the said colleges, the ' ministers, elders, deacons, members, ' congregations, kirk sessions, deacons' ' courts, and the moderator and clerks ' thereof, and the general treasurer, all DEED CASE of the United Free Church of Scotland, are, and will hereafter continue to be, the respective successors in office of the said Free Church of Scotland, General Assembly, Synods, Presbyteries, and moderators and clerks thereof, financial boards, senatus academici, ministers, elders, deacons, members, congregations, kirk sessions, deacons' courts, moderators and clerks thereof, and general treasurer of the Free Church of Scotland, and with all the powers and privileges presently competent to the same respec tively; and further, that the whole property belonging to the Free Church of Scotland, or in which the said Free Church is interested, presently vested in, or in any way held by the said Free Church of Scotland, the said General Assembly, Synods, Presbyteries, and moderators and clerks thereof, financial boards, senatus academici, ministers, elders, deacons, members, congregations, kirk sessions, deacons' courts, moderators and clerks thereof, and general treasurer respectively, of the said Free Church of Scotland, or in name of any persons as trustees, for behoof of the Free Church of Scotland, or any object or schemes connected therewith, in whole or in part, shall belong to the United Free Church of Scotland, and shall be vested in and held for behoof of the United Free Church of Scotland, or any object or scheme connected therewith, by the said United Free Church of Scotland, and the General Assembly, Synods, Presbyteries, moderators and clerks thereof, financial boards, senatus aca demici, ministers, elders, deacons, members, congregations, kirk sessions, deacons' courts, and moderators and clerks thereof, and general treasurer of the said United Free Church of Scot land, or the said trustees.' In reference to the answer, the action at present pending in this Court is referred to for its terms. Quoad ultra the explanations are denied. Ans. 4. Admitted that at and prior to 31st October 1900, the congregation worshipping in the Free Buccleuch and Greyfriars Church under the pastoral care of said defenders was a congrega tion in connection with the Free Church CONDESCENDENCE AND ANSWERS 49 of Scotland, and that the surviving and acting trustees named in the said feu-charter held the subjects therein described for their behoof as such. Explained and averred that the said congregation continues to exist as a con gregation worshipping in the Buccleuch and Greyfriars Church in connection with the Free Church of Scotland; and the surviving trustees under the said feu-charter continue to hold said subjects for their behoof as such con gregation. The Act of General Assembly of the Free Church of Scotland of 30th October 1900 is referred to for its terms, beyond which no admission is made as to its validity or otherwise. Explained that an action is at present pending in this Court for reduction of this and the other alleged Act quoted. Quoad ultra denied. Explained and averred that at or about 31st October 1900 certain ministers, office-bearers, and members of the Free Church of Scotland, depart ing from the fundamental doctrines and principles of that Church, did sever themselves therefrom, and it is believed that they did unite themselves to the United Presbyterian Church, and did join themselves, along with the ministers, office-bearers, and members of said United Presbyterian Church, or some of them, into an association or body of Christians, which they have denomin ated the United Free Church of Scot land ; said United Free Church of Scotland is not the Free Church of Scotland, nor is it a united body of Christians composed of said Free Church of Scotland and of any other body ot bodies of Christians which said Free Church of Scotland has associated with it. So far as the United Free Church of Scotland exists as a united association or body of Christians, it consists of persons who have left the Free Church of Scotland, or never belonged to it, and who do not adhere to the doctrines, principles, and standards of the Free Church of Scotland. Explained further ' that the said alleged Act of the General Assembly of the Free Church of Scot land of date 30th October 1900 was ultra vires of said Assembly, and of no avail or effect to transfer property from o the Free Church of Scotland, or from any of the congregations, to the said United Free Church of Scotland. Cond. 5. Shortly after the said Union took place, the defenders, the Reverend Donald Mackinnon Macalister, and the Reverend Robert Gordon, intimated that they declined to be members of the United Free Church of Scotland. Of the other persons called as defenders, William Bell, George Ross, Henry Christie, Sinclair Gunn, and James Waters, were elders, and the others were deacons in said con gregation prior to the said Union. It is believed that all of said defenders except the two last called have intimated their intention not to become members of the United Free Church of Scotland. The two defenders last called have not, it is understood, expressed any opinion. The whole of these are called as defenders for any interest they may have or claim. On 5th March 1901, the Edinburgh Presbytery of the United Free Church of Scotland, in view of intimations made in writing to the clerk of presbytery by the said Reverend Mr. Macalister and Reverend Mr. Gordon to the effect above set forth, declared that they had ceased to be ministers of the Free Church of Scotland, now incorporated with and represented by the United Free Church of Scotland, and directed their names to be removed from the roll. They also declared that the charge of Buccleuch and Greyfriars Church in connection with the United Free Church was vacant. Ans. 5. Admitted that the defenders, the Rev. Donald Mackinnon Macalister, and the Rev. Robert Gordon (who is a trustee named in the said feu-charter), were and still are members of the Free Church of Scotland, and ministers in pastoral charge of the congregation of that church worshipping in the Buc cleuch and Greyfriars Church, and have declined to join the newly formed United Free Church of Scotland. Admitted further that of the other persons called as defenders, William Bell, George Ross, Henry Christie, Sinclair Gunn, and James Waters were, and still are, elders, and the others were and still are deacons, in MODEL TRUST DEED CASE 50 said congregation, and that they have declined to join the newly formed United Free Church of Scotland. The proceedings of the Edinburgh Presby tery of the United Free Church are not known and not admitted. Explained that such presbytery has no jurisdiction or control over the defenders or the congregation of the Free Church of Scotland worshipping in Buccleuch and Greyfriars Church. Denied that there is any charge of Buccleuch and Grey friars in connection with the United Free Church. Cond. 6. Since the said Union the two first-named pursuers, who were members of the Free Church of Scotland and of the said congregation previous to the said Union, and who are both members of the said United Free Church of Scotland, have, in terms of the said feu-charter, been vested in the said subjects therein disponed for behoof of the said United Free Church. The other surviving trustee prior to the said Union, namely, the said Reverend Robert Gordon, not being a member of the said United Free Church, has ceased to be a trustee or to have any right to act as such, and the first-named pursuers are now, in terms of the Model Trust-Deed, the sole existing and acting trustees. The pursuers second named are the moderator and principal clerks of the General Assembly, which was held in October and November 1900. As such they are entitled, in terms of the Model Trust-Deed, to enforce, maintain, and protect the rights of the said United Church in the subjects disponed by said feu-charter. Ans. 6. Denied that the two first- named pursuers are vested in the sub jects described in the summons as trustees for the United Free Church or any congregation thereof. Assuming that they have not demitted office, they are vested in said subjects along with the defender, the Rev. Robert Gordon, and any other trustees lawfully ap pointed by the congregation worshipping in connection with the Free Church of Scotland in Buccleuch and Greyfriars Church, as trustees solely for behoof of said congregation in connection with the said Free Church of Scotland. Not known and not admitted of what assembly the pursuers second named are the moderator and principal clerks. Denied that they have any right or title in, to, or in relation to said sub jects. Quoad ultra denied. Cond. 7. The Model Trust-Deed pro vides, in the ninth trust-purpose, as follows : — ' Ninthly, It is hereby specially provided and declared that if at any time hereafter one-third of the whole ordained ministers having the charge of congregations of the said body or united body of Christians, or any larger number of the said ordained ministers having charge as aforesaid, shall simultaneously, or within a consecutive period not ex ceeding three calendar months, not only publicly separate from, the said body or united body of Christians, but, at the same time, publicly claim and profess to hold, truly and in bond fide, the prin ciples of the Protest of 18th May 1843, hereinbefore recited, and to be carrying out the objects of the said Protest more faithfully than the majority of the ministers of the said body or united body of Christians, and shall unite in forming one body of Christians, having kirk - sessions, presbyteries, provincial synods, and a general assembly, then and in that case, and anything herein to the contrary notwithstanding, it shall be competent to and in the power of a majority of the congregation, in the use, occupation, and enjoyment of the said building or place of worship for the time, to provide and declare, by a deed of declaration and appointment under their hands, to that effect, duly executed, that the ground hereby disponed, and building or place of worship then upon the same, shall from thenceforward be held as in connection with the body of Christians adhering to the ministers who shall have separated as aforesaid, and for this purpose to require and appoint the said trustees or trustee acting under these presents for the time to convey and dispone the ground hereby disponed, and the building or place of worship then upon the same, and whole appurten ances thereof, to any three or moro CONDESCENDENCE AND ANSWERS 5i ' trustees in the said deed of declaration ' and appointment named, to be held by 1 such new trustees, and their successors, 1 in trust as aftermentioned : aud, on such ' deed of declaration and appointment ' being executed, as said is, the trustees 1 or trustee acting under these presents ' for the time shall be bound and obliged, ' as they are hereby bound and obliged, 1 at the expense always of the receivers, 1 and on being entirely freed and relieved 1 of all pecuniary obligations then affecting ' the subjects hereby disponed, or buildings ' thereon, or affecting them as trustees or ' trustee under these presents, or for or to ' which they, as such trustees or trustee, ' may be subject or liable, but no sooner, ' or otherwise to convey and dispone the ' ground hereby disponed, and the building ' or place of worship then upon the same, ' and whole appurtenances thereof, to the ' said new trustees who shall be in the ' said deed of declaration and appointment ' named, and their successors, in trust for ' the said persons, subscribers of the said ' deed of declaration and appointment, as ' a congregation of the said body of Chris- ' tians who shall have separated as af ore- ' said, and for the successors of such ' persons forming such congregation for ' the time being ; such new deed of trust ' to be, mutatis mutandis, as nearly as ' possible in the terms, and of the import, ' of these presents, and to have for its ' object the placing the said congregation ' of the said body of Christians who shall ' have separated as aforesaid, and the ' minister of such congregation, and the ' elders and deacons, and elders acting as ' deacons thereof, and the said body of ' Christians who shall have separated as ' aforesaid, and its kirk-sessions, presby- ' teries, provincial synods, and general ' assembly, and the said new trustees ' themselves, in the same relation respec- ' tively to the ground hereby disponed, ' and buildings thereon, and appurtenances ' thereof, and in the same relation to each : other, in reference thereto, as was held ; before the granting of the said new deed of trust by the congregation using, occupying, and enjoying the same, in virtue of these presents, and the minister of such former congregation, and the elders and deacons, and elders acting as ' deacons thereof, and the said original ' body or united body of Christians, and ' its kirk-sessions, presbyteries, provincial ' synods, and general assemblies, and the ' said trustees or trustee acting under ' these presents.' When the said Union took place a small number of ordained Free Church ministers having charge of congregations, chiefly in the Highlands, declined to enter the United Church. They number in all about twenty-six, and are greatly less than one-third of the entire number of ordained Free Church ministers having charge of congregations in October 1900. These latter numbered in all about eleven hundred. In reference to the answer, it is denied that the Free Church, in entering into said Union, abandoned certain of the principles of the said Protest as here averred, or that the Union was effected with the object and effect of doing so. The position of the Free Church in entering into said Union is set forth in the defenders' pleadings in said action now pending in the Court of Session, which is referred to. Ans. 7. The said Model Trust-Deed is referred to for its terms, beyond which no admission is made. Denied that it has any application to the sub jects described in the summons. Esto that it is so applicable, the clause quoted has no application to the circum stances arising out of the withdrawal of the pursuers and those adhering to them, to form along with the United Presbyterian Church an entirely new Association with a constitution distinct from that of the Free Church of Scot land. The first-named pursuers and those adhering to them have truly separated themselves from the Free Church of Scotland, but they do not claim, or profess to hold, truly and in bond fide, the principles of the Protest of 18th May 1843, or to be carrying out the objects of the said Protest more faithfully than the ministers and congregations remaining in the Free Church of Scotland. On the contrary, their separation from the Free Church of Scotland, and their union with the United Presbyterian Church, was brought about with the object and effect of abandoning certain of the principles 52 MODEL TRUST of said Protest. Admitted that at the time of the so-called Union a number of ministers, office-bearers, and members of the Free Church of Scotland declined to follow the majority in leaving it for the said new Church. Denied that the pursuers have any rights in the subjects and others in question, except in so far as the first-named pursuers, if they have not demitted office, may continue trustees thereof for the congregation of the Free Church of Scotland worshipping in the Buccleuch and Greyfriars Church. Quoad ultra denied. Cond. 8. Notwithstanding that the charge has been declared vacant, as above narrated, the defenders, the Reverend Donald Mackinnon Macalister and Robert Gordon still maintain that they are entitled to conduct public worship in said building by themselves or by substitutes appointed by them, and in point of fact they continue to do so. The other defenders who have refused to become DEED CASE members of the United Church still main tain their right to continue in charge and management, and in use and possession of the said church, and in point of fact do so at the present time. In these circum stances the present action has been ren dered necessary to vindicate the rights of the pursuers to the subjects and others in question. Ans. 8. Denied that the charge has been declared or is vacant. Admitted that the defenders named maintain that they are entitled to conduct public worship in said building by themselves or substitutes appointed by them, and in point of fact continue to do so. Admitted that the other defenders still maintain their right, while remaining members of the said congregation wor shipping in connection with the Free Church of Scotland, to continue in charge and management, and in use and possession of the said Church, and do so continue. Quoad ultra denied. III.— STATEMENT OF FACTS for the Defenders ANSWERS thereto for Pursuers. Stat. 1. The defenders, the Rev. Donald Mackinnon Macalister and the Rev, Robert Gordon, are the pastors, the defenders William Bell, George Ross, Henry Christie, Sinclair Gunn, and James Waters are elders and members, and the other defenders are deacons and members of the congregation which worships, and has for long worshipped, under the name of the Buccleuch and Greyfriars Church Congregation, in connection with the Free Church of Scotland, and for which the subjects under the feu-charter founded on are held in trust. The trustees as at 30th October last were the defenders the Rev. Robert Gordon, and the pursuers Robert Young and James Harvie Clason. The two last named have not for very many years been members of the congregation, nor taken any active concern in its affairs. Ans. 1. Denied under reference to the pursuers' condescendence. Stat. 2. The Free Church of Scotland originated as a separate church by the withdrawal, in 1843, from the Church of Scotland of a large number of ministers, elders, and members, who associated themselves under the said name. They so associated themselves under a definite constitution or contract, under which they recognised certain funda mental principles. For an enumeration of the constitutional documents and a state ment of the fundamental principles refer ence is made, brevitatis causa, to the averments for the Free Church of Scot land in the Closed Record hereinafter mentioned. Ans. 2. Denied under reference to the averments in the defences in the said Closed Record. Stat. 3. On 31st October 1900 a large number of ministers and elders, commis- STATEMENT FOR DEFENDERS 53 sioned to a General Assembly of the Free Church of Scotland convened to meet at Edinburgh on 30th October 1900, united with the United Presbyterian Church (which was an association incorporated under a constitution, and which held principles fundamentally differing from those of the Free Church of Scotland) to form a new church or association of Christians under the name of the United Free Church of Scotland. The pursuers, along with a large number of ministers, elders, and members of the Free Church of Scotland, adhered to the members of assembly foresaid in forming themselves into the said new church or association. Ans. 3. Admitted that on 31st Octo ber 1900 the Free Church of Scotland united with the United Presbyterian Church under the name or desig nation of the United Free Church of Scotland. Admitted that the pur suers and others who were office-bearers and members of the Free Church of Scotland adhered to and became members of, and now are members of, the said United Free Church. Quoad ultra denied. Stat. 4. The said new church — the United Free Church of Scotland — is a body associated under a constitution or contract which is essentially at variance on fundamental points with the constitu tion or contract of the Free Church of Scotland, and the said association makes no provision for maintaining inviolate the principles and distinctive testimony of the Free Church of Scotland. For a state ment of the points of difference, reference is made, brevitatis causa, to the averments for the Free Church in the Record after- mentioned. Ans. 4. Denied. Reference is made to the averments for the defenders in the said Record. Stat. 5. The so-called Acts of Assembly, professing to effect the union between the Free Church and the United Presbyterian Church under the style of the United Free Church, are, in consequence of the said difference of constitution and prin ciple, null, void, and ineffectual for this purpose, and have no civil effect upon the property of or held in trust for the Free Church or congregations thereof. An action is at present pending in this Court before Lord Low, Ordinary, at the instance of the Rev. Colin A. Bannatyne and others against the Right Hon. John Campbell, Baron Overtoun, and others, the summons in which was signeted on 14th December 1900, to have their nullity to any such effect judicially established. The pursuers, and all others formerly members of the Free Church, who have united to form the said new church, or who have adhered thereto, have with drawn from the membership of the Free Church, and are no longer qualified to hold office or sue as representing it. Ans. 5. The action at present pending before Lord Low is referred to. Quoad ultra denied. Stat. 6. A minority of ministers and elders, members of the General Assembly of the Free Church, convened to meet on the 30th of October 1900, declined to concur with the majority in their with drawal from the Free Church of Scotland and in their formation of the United Free Church of Scotland. They accordingly dissented from and protested against the pretended Acts of Assembly by which this was proposed to be done (including the Act of 30th October, quoted in con descendence) ; and on the majority with drawing to unite with the United Presbyterian Church to form said new association they refused to accompany them, and continued in session as the General Assembly of the Free Church. There adhered to them a large number of members of the Church throughout the country, who with them continue to main tain the existence of the Free Church under its own distinctive constitution and principles. Ans. 6. Admitted that a small number of ministers, elders, and members of the Free Church declined to become mem bers of the United Free Church. Quoad ultra denied. Stat. 7. In particular there are adhering to them the defenders, the pastors, elders, and deacons of the said congregation wor shipping in connection with the Free 54 MODEL Church of Scotland in the Free Buccleuch and Greyfriars Church. There are also adhering to them all the members and practically all the adherents of said con gregation. The two pursuers Robert Young and James Harvie Clason, named in the feu-charter as trustees, who were not, as at 31st October, members of the congregation, severed their connection with the Free Church of Scotland, and entered the United Free Church of Scotland. Ans. 7. Admitted only that a majority of the members of the said congrega tion refused to become members of the United Free Church. Stat. 8. By Act of the said General Assembly of the Free Church of Scotland of 31st October 1900 the trustees in whom any properties, congregational or other, stood vested for the Free Church of Scotland, or congregations in connection therewith, as at the date of the assemblage of the General Assembly of the Free Church of Scotland, convened to meet at Edinburgh on the 30th October 1900, were appointed to continue to hold the same for behoof of the Free Church of Scotland, and were interpelled from parting with the same to any parties appointed as trustees for the United Free Church, or on its behoof, and such trustees were further appointed to hold the same for the uses of the Free Church of Scot land, subject to the directions of Assembly or its Commission. A copy of said Act of General Assembly is herewith produced. Ans. 8. No admission is made in regard to the said pretended Act of Assembly. It is not in any way bind ing upon the pursuers, and is without force or effect in regard to their rights in the subjects in question. TRUST DEED CASE and Greyfriars Church, formerly Free Buccleuch Church) was duly called by intimation from the pulpit immediately after divine service, to be holden on the 24th day of May, for the purpose of the appointment of additional trustees to act under the trust created by the feu-charter hereinbefore mentioned. A meetmg so convened was duly held in the hall of the church on 24th May, and the foUowing were duly elected by the congregation at said meeting, to be additional trustees, viz., the defender, the Rev. Donald Mackinnon Macalister, William Bell, George Ross, Sinclair Gunn, and James Waters, John Hay Thorburn, James Thomson, William Buchan, James Jenkinson, Donald M'Callum Smith, James Bell, and John Munro, John Hossack, 24 Shandon Crescent, John Clark, 2 St. Peter's Place, John Stedman, 15 Salisbury Road, Donald Campbell, 46 Montpeher, Joseph John Read, 14 Graig- millar Park, and William Scott, Dalrymple Crescent, all of Edinburgh. Those all, with the exception of the said William Scott and John Stedman, have accepted office as trustees foresaid. The trustees so assumed and appointed are now entitled to act under the trust created by the said feu-charter. They are not convened as defenders, nor are the members of the congregation who are entitled to beneficial interest in the subjects conveyed under the feu-charter called as parties to the present action. Ans. 9. The alleged proceedings here referred to on 12th May and 24th May are not known and not admitted. The averments as to the pretended addi tional trustees are denied. Quoad ultra denied. Stat. 9. On the forenoon of Sabbath, 12th May 1901, in respect the first-named pursuers had left the Free Church of Scotland and had therefore demitted office therein, a meeting of the Buccleuch and Greyfriars congregation in connection with the Free Church of Scotland (being the congregation at present in the use and occupation of the building or place of worship, named as the Free Buccleuch Stat. 10. The congregational meeting for the assumption of new trustees was held, and the possession of the subjects by the congregation of the Free Church of Scotland presently in the use and occupa tion thereof is maintained, with the approval of the General Assembly of the Free Church of Scotland or its Commission for the time being. Ans. 10. Not known and not ad mitted what approval, if any, has been given to the actings of the defenders by STATEMENT FOR DEFENDERS 55 the Assembly of the minority opposed to the Union. Such approval, if given, has no force or effect in regard to the rights of the pursuers. Stat. 11. An action has, as already mentioned, been raised and is now pend ing in this Court before Lord Low, Ordinary, at the instance of the Rev. Colin A. Bannatyne and others, moderator and members of the General Assembly of the Free Church of Scotland, against certain members of the United Free Church and others, for the purpose of determining the effect of the said pro ceedings of 30th and 31st October 1900, on the Free Church of Scotland and the civil rights of its members in the property belonging to or held for behoof of that Church. A copy of the Closed Record in the said action (Bannatyne and others v. Overtoun and others) is produced and referred to. Ans. 11. The said Closed Record is referred to. IV.— PLEAS IN LAW for Pursuers, I. Decree of declarator should be pro nounced, as concluded for, in respect the first-named pursuers are vested in the said heritable subjects as trustees for the said congregation of the United Free Church of Scotland. II. The defenders having no right or title to the said subjects, or to the charge, management, use, or possession of the same, are bound to cede possession thereof as concluded for ; and separatim, decree should be pronounced defenders as craved. interdicting the III. Those of the defenders who appear and oppose the conclusions of the summons should be found liable in expenses. IV. The defences are irrelevant. In respect whereof, John Cowan, W.S, V.— PLEAS IN LAW for Defenders. I, The pursuers' averments are not relevant to support the conclusions of the summons. II. No title to sue. III. All parties not called. IV. The terms and conditions of the so-called Model Trust-Deed of the Free Church of Scotland not having been validly and effectually imported into the said feu-charter, cannot be founded on by the pursuers. V. The defenders being entitled to the possession and enjoyment of the said sub jects, in the manner in which they are now possessed and enjoyed, in terms of the feu-charter, they ought to be assoilzied, with expenses, VI. The pursuers, not having, under the said feu-charter, any right, title, or interest sufficient to maintain the con clusions of the Summons, the defenders ought to be assoilzied, with expenses. VII. The defenders and those adhering to them being the Buccleuch and Grey friars congregation of the Free Church of Scotland, and maintaining inviolate the doctrines and principles of the Free Church of Scotland, the defenders should be assoilzied. In respect whereof, J. Roberton Christie. Ill INTERLOCUTOR and OPINION by LORD LOW IN CAUSA THE GENERAL ASSEMBLY OF THE FREE CHURCH OF SCOTLAND AGAINST OVERTOUN AND OTHERS INTERLOCUTOR. ' Edinburgh, 9th August 1901. — The 'the pursuers liable in expenses: Allows ' Lord Ordinary having heard counsel for ' an account thereof to be given in, and ' the parties on the Closed Record and ' remits the same when lodged to the ' whole cause and considered the same, ' Auditor to tax and report. ' disinisses the action and decerns : Finds ' A. Low.' OPINION. In October 1900 the Free Church of Church of Scotland, and in this action Scotland and the United Presbyterian they claim that they are entitled to the Church of Scotland united under the name means and estate of the Free Church, of the United Free Church of Scotland, which at the date of the Union were held The pursuers represent a minority of the by trustees for behoof of the Free Church. Free Church who objected to the Union, The Union was accomplished after many and refused to be parties to it, on the years of negotiation, and after the pro- ground that it could not be effected con- cedure by which, according to the laws of sistently with the standards and constitu- the Church, ' the more general opinion of tion of the Free Church. ' the Church ' is ascertained. Thus at the The position taken up by the pursuers meeting of the General Assembly in May is that the ministers and members of the 1899, the 'Union Committee' submitted Free Church who refused to be parties a report embodying a 'Plan of Union.' to the Union now constitute the Free The Assembly approved of the report, and LORD LOW'S OPINION 57 adopted an overture enacting and ordain ing that the Plan of Union. ' is authorised ' and accepted by this Church with the ' view to an incorporating Union with the ' United Presbyterian Church as a plan to ' come into operation as soon as a Uniting ' Act shall have been passed by the ' General Assembly with consent of a ' majority of presbyteries of the Church.' That overture was transmitted to the presbyteries of the Church for their opinion, and it was approved by them by a very large majority, and in the following May (1900) the General Assembly passed an Act in terms of the overture. The same Assembly sent another overture to the presbyteries embodying an Act authoris ing a Union. That overture also obtained the approval of a large majority of the presbyteries, and at a meeting of the General Assembly held in October 1900 the Act was passed by a majority of 643 to 27. The procedure which I have narrated was taken in terms of what is called the Barrier Act. That was an Act which was originally passed by the Church of Scotland in 1697, and which was adopted by the Free Church. It provided that the General Assembly before passing any Act making an alteration or innova tion either ' in doctrine or worship or ' discipline or government ' of the Church, should first lay before the Assembly an overture (that is a proposal embodying the terms of the Act), which if adopted by the Assembly should be remitted to the con sideration of presbyteries, and if the result of the remit to the presbyteries was to shew that the proposed Act was in accord ance with 'the more general opinion of ' the Church,' then, and not sooner, the Assembly was authorised to pass it into law. The Union therefore was effected in the most formal way, and it cannot be chal lenged unless it was a transaction which it was not in the power of the Church, acting by its General Assembly, to effect contrary to the wishes of a minority. The case of the pursuers is that the Union was incompetent — 1st, Because it involved a sacrifice of principles which formed a fundamental and essential part of the constitution of the Free Church; and 2ndly, because the Free Church could r not unite with any other Church except with the consent of all her members. The defenders, on the other hand, main tain that no fundamental or essential principle was violated by the Union, and that being so, it was competent for the General Assembly to carry out the Union, acting by a majority of its members, after the sense of the Church had been taken in the manner provided by the Barrier Act. The defenders, however, further pro pounded a view which, if sound, would admit of a very easy determination of the question at issue. They argued that the constitution of the Church — its principles and doctrines — were whatever the General Assembly might declare them to be. I am not prepared to assent to the latter argument. Large as the powers of the General Assembly of the Free Church, in my opinion, were, I do not think that they were unlimited. In the case of the Free Church (as in the case of every Church) there were certain doctrines and principles so essential that without them the Church would cease to exist. I do not think that the General Assembly could repudiate or materially alter such doctrines and principles. For example, the General Assembly could not, in my opinion, have competently passed an Act declaring that the Westminster Confession of Faith was no longer accepted by the Church, and enacting that the government of the Church should in the future be Episco palian and not Presbyterian, because that would have been to change the Church from being a Reformed Presbyterian Church into something very different. On the other hand, in regard to matters which were not of the essential nature to which I have referred, I am of opinion that the General Assembly of the Free Church was supreme. The Free Church was framed as regards its judicatories — their powers, functions, and forms of pro cedure — upon the model of the Established Church of Scotland, and the General Assembly of the Established Church is a body which has not only judicial and executive, but legislative powers. To go no further than the Barrier Act, which I have mentioned, its terms are instructive as showing the scope of the power of the General Assembly in the way of legislation. '.8 GENERAL That Aet speaks of Acts of Assemblies making ' alterations or innovations ... in ' either doctrine or worship or discipline ' or government,' not for the purpose of restricting the powers of the General Assembly, but to secure by the procedure enacted that such alterations and innova tions should not be sudden or to the pre judice of the Church. And indeed it was necessary that the Supreme Court and Council of the Church should have large powers of a legislative nature, even in regard to matters of faith and doctrine. For example, the Established Church accepted the Westminster Confession as containing the sum and substance of the doctrine of the Reformed Churches. That Confession is a document which is open to interpretation, and which has been inter preted in different senses, with equal con fidence, by different sects. Accordingly it was necessary that the Supreme Council of the Church should have the power, not only of deciding questions of doctrine which came before it judicially, but of declaring and enacting, as occasion required for the peace or welfare of the Church, what was the sense in which the Church interpreted particular passages in the Confession of Faith, or, in other words, what the doctrine of the Church was. I am accordingly of opinion that the Declara tory Act of 1892, in regard to which there was a great deal of argument, passed as it was after a reference to the presbyteries under the Barrier Act, was a legitimate exercise of the power belonging to the General Assembly of the Free Church, and that the pursuers' case is not well founded in so far as it is rested on the averment that that Act was ultra vires of the Assembly. The serious question seems to me to be whether it was not (to use the phraseology of the Claim, Declaration, and Protest of 1842) 'an essential doctrine and funda- ' mental principle in the constitution ' of the Free Church, that it was (I now quote from the Protest of 1843) 'the right and ' duty of the Civil Magistrate ' (the State) ' to maintain and support an establishment 1 of religion in accordance with God's ' Word ' ; and whether the Union with the United Presbyterian Church did not necessarily involve an abandonment of that principle ? TRUSTEES' CASE There is no doubt that the founders of the Free Church, when they left the Established Church in 1843, did so declar ing that they adhered to the principle of an Established Church, and that they seceded only because, as the law then stood, the Church did not possess that independence in what they regarded as matters spiritual which in their view was essential in order to give effect to the cardinal doctrine of the Headship of Christ. On the other hand, it seems to me to be equally certain that the United Presby terian Church never read the Confession of Faith as laying down that it is the right and duty of the civil magistrate to maintain and support an Established Church. There does not appear to be any material difference between the two Churches upon the point, so far as their standards are concerned ; but the view of the United Presbyterian Church as a whole has always been that it is not within the province of the civil magistrate to endow the Church out of public funds, and that the Church ought not to accept State aid, but ought to be maintained by the freewill offerings of its members. I therefore think that it must be con ceded that the original Free Church could not, consistently with its avowed opinions, have joined the United Presbyterian Church. The Establishment principle (to use a convenient short phrase) was one which was regarded as of great import ance by the Free Church at the com mencement of its history, and naturally so, because in the first place it justified the action of those who had seceded, by proclaiming that they were not schis matics, and, in the second place, the founders of the Church hoped that a change in the law might be effected which would enable them to return to the Establishment. But seven-and-fifty- years elapsed between the Disruption and the Union of 1900, and in the meantime the Free Church had grown and prospered as a voluntary Church in fact. There was no longer any need to justify the position of the Church, because that was assured ; and long prior to the Union, I take it, all hope or intention or desire of returning to the Established Church had passed away. LORD LOW'S OPINION The Establishment principle therefore had ceased to have the practical importance which it had in 1843, and the sense of the Church, as exhibited by large majorities in successive General Assemblies, was that the principle might be regarded as an open question upon which the individual mem bers of the Church might be guided by their own consciences. It is therefore necessary to examine the place which the Establishment principle held in the constitution of the Free Church to see whether it was so essential that the majority of the Church, acting through the General Assembly and the Presby teries, having taken a step which involved that the principle was no longer regarded as essential, but as a matter of opinion, the dissentient minority are entitled to have it declared that they are truly the Free Church, and are entitled to the civil rights belonging to the Free Church. The leading document is the Claim, Declaration, and Protest, which was adopted by the General Assembly of the Church of Scotland in 1842, setting forth the objections of the Church to the law as then existing, and as declared by the civil courts. An address was also pre sented by the ministers and elders of the General Assembly to the Queen, sub mitting the Claim, Declaration, and Pro test for her 'favourable consideration,' and expressing the hope 'that such ' measures may be directed by your ' Majesty as will preserve to us the ' peaceable possession of those rights and ' privileges secured to us by statute and ' solemn treaty.' The Claim, Declaration, and Protest not having led to any change, or the prospect of any change, in the law, certain ministers and elders drew up a Protest, which they laid upon the table of the General Assembly in May 1843, and in terms thereof separated themselves from the Established Church and founded the Free Church. In the Protest they de clared that the Claim, Declaration, and Protest of 1842 should be 'holden as ' setting forth the true constitution of the ' Church.' It is therefore to the Claim, Declaration, and Protest that we must turn to ascertain what is the constitution of the Free Church. 59 That document commences with the statement that it is an ' essential doctrine ' of this Church, and a fundamental prin- 1 ciple in its constitution ' . . . ' that there ' is no other Head of the Church but the ' Lord Jesus Christ,' and that ' the Lord ' Jesus as King and Head of His Church ' hath therein appointed a government in ' the hand of Church officers distinct ' from the civil magistrate.' It is then set forth that ' the above-mentioned essen- ' tial doctrine and fundamental principle ' had been recognised, ratified, and con firmed by repeated Acts of Parliament, but that the Patronage Act of Queen Anne, the interpretation put upon that Act by the Courts of Law, and the powers asserted by these Courts, chiefly in regard to the settlement of ministers, amounted to a denial of the said doctrine and principle, by interposing the civil power between the Church and her Divine Head in matters which were truly spiritual and ecclesiastical. The document then claimed 'as of right' that the Church should possess ' her liberties, government, ' discipline, rights and privileges, accord- ' ing to law, especiaUy for the defence of ' the spiritual liberties of her people,' and protested that all Acts of Parliament and sentences of Courts in contravention of the liberties and privileges of the Church were null and void. Finally, there was a prayer to Almighty God ' that He would ' be pleased to turn the hearts of the ' rulers of this kingdom to keep unbroken ' the faith pledged to this Church . . . ' or otherwise that He would give strength ' to the Church — office-bearers and people ' — to endure resignedly the loss of the ' temporal benefits of an Establishment, ' and the personal sufferings and sacrifices ' to which they may be called, and would ' inspire them with zeal and energy to ' promote the advancement of His Son's ' Kingdom, in whatever condition it may ' be His will to place them.' The Claim, therefore, does not refer to the Establishment principle as an essential principle of the Church, but the principle is nevertheless affirmed, although in a parenthetical way, in the clause in which the essential doctrine and fundamental principle of the Headship of Christ is stated. 6o GENERAL TRUSTEES' CASE The parenthesis is in these terms : ' While " God, the supreme Lord and ' "King of all the world, hath ordained ' " civil magistrates to be under Him over ' " the people, for His own glory, and the ' "public good, and to this end hath ' "armed them with the power of the ' " sword " (ch. xxiii. sec. i.) ; and while ' "it is the duty of people to pray for ' " magistrates, to honour their persons, to ' "pay them tribute and other dues, to ' " obey their lawful commands, and to be ' " subject to their authority for conscience' ' "sake," "from which ecclesiastical per- ' "sons are not exempted" (ch. xxiii. ' sec. 4) ; and while the magistrate hath ' authority, and it is his duty, in the ' exercise of that power which alone is ' committed to him, namely, " the power ' "of the sword," or civil rule, as distinct ' from the "power of the keys," or ' spiritual authority, expressly denied to ' him, to take order for the preservation of ' purity, peace, and unity in the Church.' I shall have something to say presently in regard to the terms in which the prin ciple is there stated, but, in the first place, I desire to say that the subordinate position which it holds in the Claim is not, in my judgment, to be taken as measuring the importance which the Church attached to it. The principle relates to the duty of the civil magis trate — the State — and not to the duty (at all events the direct duty) of the Church. If the civil magistrate refuses to recognise and support the Church, the fault is his, but the Church is free from blame. If, upon the other hand, the Church were to accept the recognition and support of the civil magistrate, sub ject to conditions which violated essential doctrines of the Protestant religion, she would be unfaithful, and under such circumstances her duty would be to separate her connection with the State. It was the latter view which it was the object of the Claim to enforce, and hence the parenthetical form in which the prin ciple of the duty of the State or civil magistrate was referred to. Nevertheless, it must be taken that the statement of the principle in the Claim is a correct summary of the doctrine held by the Church in regard to the duty of the civil magistrate, and I shall now consider the terms in which it is framed. The principle is stated in the form of three propositions, the first two being quotations from the Confession of Faith, and the third an adaptation of the language of the Confession. The first proposition is, that civil magis trates are ordained by God, for His own glory and the public good ; and the second is, that it is the duty of people to pray for the magistrates, to pay them tribute, and to obey their lawful commands. I do not suppose that any Protestant Church which accepts the Confession of Faith would take objection to these pro positions. The third proposition, however, is in a different position, and as it is an adapta tion of Article 3 of Chapter XXIII. of the Confession, I shall take the exact words which I find there, a course to which the pursuers cannot object, as their view is that the Confession is unalterable. The article first declares that 'the civil ' magistrate may not assume to himself ' administration of the word and sacra- ' ments, or the power of the keys of the ' kingdom of heaven.' It then proceeds (and this is the part referred to in the third proposition in the Claim) : ' yet he ' hath authority, and it is his duty, to take ' order that unity and peace be preserved ' in the Church, that the truth of God be ' kept pure and entire, that all blasphemies ' and heresies be suppressed, all corrup- ' tions and abuses in worship and discipline ' prevented and reformed, and all the •' ordinances of God duly settled, adminis- ' tered, and observed.' It is plain that that passage is open to construction, because many different views might be taken as to the method by which the civil magistrate ought to perform the duties ascribed to him. Let me take one example. It is laid down that the civil magistrate is ' to take order . . . that the ' truth of God be kept pure and entire.' To 'take order' means, I apprehend, to use the magisterial power, or (as the Claim puts it) ' the power of the sword.' Then to keep ' the truth of God pure and ' entire ' seems to me to be equivalent to saying 'to maintain sound doctrine.' Is it then the right and duty of the magis- LORD LOW'S OPINION 61 trate to intervene with the power of the sword to maintain sound doctrine in the Church? The Free Church could not hold that view, because she left the Establishment on the ground that the civil magistrate had no right to interfere at all in spiritual matters. How the Free Church interpreted the third article of the chapter I do not know, nor do I know how the Estabhshed Church interpreted it prior to the Disruption, because I am not aware of any Act of Parliament, or Act of Assembly, or other constitutional document, which defines the duty of the State to the Church, except the Westminster Con fession. I pass on now from the Claim to the Protest of 1843 and other authoritative documents of the Free Church, to see if we find in them any more precise state ment of the principle than that which is contained in the Confession of Faith. In the Protest the seceding ministers and elders protested, that the Legislature having rejected the Claim, it was lawful for them to separate from the Establish ment, ' while firmly maintaining the right ' and duty of the civil magistrate to ' maintain and support an establishment of ' rehgion in accordance with God's Word.' That is the most precise statement of the principle which I find anywhere, and it must be taken as representing the sense in which the founders of the Free Church at that time interpreted the Confession of Faith. It does not however follow that that view was fixed and unchange able and could not be modified or reviewed by the Church so as to meet changed circumstances. The next document to which I shall refer is an Act passed by the Assembly of the Free Church in 1846, in regard to the questions and formula to be put to office-bearers before ordination, and to candidates for the ministry. The Act proceeded upon the narrative that the change in the outward condition of the Church rendered it necessary to amend the questions and formula. It then ap proved of the questions annexed to the Act, and then proceeded: 'And the ' General Assembly, in passing this Act, ' think it right to declare that while the ' Church firmly maintains the same scrip- ' tural principles as to the duties of nations ' and their rulers in reference to true ' religion and the Church of Christ for ' which she has hitherto contended, she ' disclaims intolerant or persecuting prin- ' ciples, and does not regard her Confession ' of Faith, or any portion thereof, when ' fairly interpreted, as favouring intoler- ' ance or persecution, or consider that her ' office-bearers, by subscribing it, profess ' any principles inconsistent with liberty ' of conscience, and the right of private ' judgment.' It will be observed that in the Act (as in the Claim and the Protest), the prin ciple in regard to the duty of the civil magistrate is stated parenthetically, and that what is emphasized is the disclaimer of any interpretation of the Confession of Faith which would involve intolerant or persecuting principles, aud the declaration that the office-bearers of the Church shall not be held, by subscribing the Confession, to profess (as regards the doctrine of the duty of the civil magistrate) any principles ' inconsistent with the right of private ' judgment.' It seems to me that in face of that Act (providing as it does for so vital a matter as the profession of their faith to be made by entrants to the ministry), it is impos sible to say that the Free Church regarded any particular method for the fulfilment by the civil magistrate of his duty to the Church as an essential and fundamental doctrine of the Church. Finally, I shall refer to an Act and Declaration which was issued by the General Assembly of the Free Church in 1851. It is in the form of a historical narrative, which was compiled by a com mittee of the General Assembly, and pub lished for the information and instruction of the members of the Church. I find that it contains four passages which may be regarded as referring to the doctrine of the duty of the civil magistrate. In the first place, it is stated that the Reformed Church of Scotland has ever held 'that nations and their rulers are ' bound to own the truth of God and to ' advance the kingdom of His Son.' I see no reason to suppose that the United Presbyterian Church would not all along have been ready to affirm that proposition. 62 GENERAL TRUSTEES' CASE place, the Revolution recognised as theJState Church, and had In the second Settlement is said to have ' recognised as ' an unalienable part of the constitution ' of this country the establishment of the ' Presbyterian Church.' That is a state ment in regard to the effect of an Act of Parliament upon the constitution of the country, and not in regard to an article of faith on the part of the Church. In the third place — referring to the Disruption — it is stated that the members of the Free Church seceded ' under protest ' that it is her being Free, and not her ' being Established, that constitutes the ' real historical and hereditary identity ' of the Reformed National Church of ' Scotland.' There (as in the Claim of 1842) spiritual independence is put forward as essential, while recognition of the State is regarded as a matter which (however important) does not affect the ' identity ' of the Church. That is not very con sistent with the view now urged by the pursuers. FinaUy it is said that the Church ' holds still, and through God's grace will ' ever hold, that it is the duty of civil ' rulers to recognise the truth of God, ' according to His Word, and to promote • and support the Kingdom of Christ, ' without assuming any jurisdiction in it ' or power over it.' That again, I imagine, is a proposition to which the United Presbyterian Church would have assented, although they would probably have taken a different view from that generally held in the Free Church as to the way in which civil rulers should recognise the truth of God. It therefore appears to me that as a matter of creed the Free Church simply accepted the statement of the Westminster Confession in regard to the duty of the civil magistrate, although as matter of opinion the founders of the Church gave their adhesion to the particular application of the duty to which effect had been given in Scotland. I have already pointed out that the Confession states the duty of the magistrate in very general terms, which may be interpreted in different ways. I take it that the doctrine was so stated designedly, because the question how best the civil magistrate may perform his duty to the Church is necessarily one of circum stances. Now, in Scotland the State had endowed, the Reformed Presbyterian Church; and the founders of the Free Church accepted, at the time of the Dis ruption, that recognition and endowment as being (so long as the State did not intervene in matters spiritual) a proper and sufficient carrying out by the State of the doctrine of the Confession. Until the Disruption, although there had been various secessions, the Established Church included a very large majority of those in the country who professed the Reformed Presbyterian Faith. With the Disruption, however, there arose a Church — the Free Church — whose adherents were numerous, and which was not iii connection with the State. Then in 1847 two bodies, the Secession Church and the Relief Church, joined together and formed the United Presbyterian Church, which also came to be an important Church with numerous adherents. Thus in the latter part of the nineteenth century there were three large and important Presbyterian Churches in Scotland, one of which alone was recog nised and supported by the State. That was an entirely different position of matters from that which had been in the con templation of the founders of the Free Church when they declared their adher ence to the form in which the State had discharged its duty to the Church in Scotland. There had come to be three Churches instead of practically only one Church, and it seems to me that it was competent for the Free Church, without sacrificing anything which was essential in her faith, doctrine, or constitution, to take the view that in the changed circum stances it was expedient that each Church should be maintained by the liberality of its members, rather than that the State should select one alone to be supported out of public funds. And that was all that the Free Church required to do, in order to bring her into line with the United Presbyterian Church. Apart from the Establishment principle there was no difference in doctrine or worship between the two Churches, and even as regarded that principle there does not seem to have been any practical dif ference, so far as the standards of the Churches were concerned, although there LORD LOW'S OPINION 63 was undoubtedly at one time a difference in the views which were in general held by the members of the two Churches. Like the Free Church, the United Pres byterian Church accepted the Confession of Faith, including the XXIII. chapter, and, like the Free Church, she regarded the doctrine of the Headship of Christ as of supreme importance; and she also, in 1879, passed a Declaratory Act in regard to formula in which the view of the Church upon the 'doctrine of the Civil ' Magistrate ' is stated in terms almost identical with the Declaratory Act of the Free Church of 1846, which I have already quoted. I am therefore of opinion that the Union did not involve the giving up by the Free Church of any doctrine or principle which formed an essential or fundamental part of her creed or her con stitution, but only involved the modifica tion of views which the Church had held under different circumstances in regard to the apphcation of the doctrine of the Con fession as to the duty of the State — a modification which, it appears to me, it was entirely within the power of the General Assembly to make. I have but one more remark to make upon this branch of the case, and that is, that the history of the Free Church, since the Disruption, shows that the particular form of the duty of the State to the Church, for which the pursuers contend, was not regarded as an essential matter. If the Establishment principle was an essential and fundamental doctrine of the Church, then it must be conceded that until that principle received practical effect, the Church was an imperfect and incom plete Church. As therefore the Free Church was from the beginning a Church of great zeal, and possessed of considerable power and influence, one would have ex pected to find it straining every nerve to bring about such an alteration in the law that it mights — without sacrifice of principle — resume its connection with the State. But not a single act of that nature is averred, nor is any such act disclosed by the voluminous documents produced. On the contrary, the documents seem to me to show that the tendency of the Church was towards a permanent and avowed separa tion from the State ; and further, I imagine it to be a matter of common know ledge, that if the views and efforts of the majority of the Free Church had been suc cessful, an Established Church would have ceased to exist in Scotland long prior to the Union. For these reasons, I am of opinion that the first ground upon which the pursuers claim the property held in trust for the Free Church fails. The next question is whether, assuming that there was no obstacle in the way of difference in doctrine, the Union was in competent so long as there was a dissentient minority ? Now the position of matters was this. There were two Churches identical in doctrine, worship, and form of government, and they were working together in the same field, so that their agencies over lapped and their efforts were to some extent wasted. It therefore seemed to both Churches that by uniting, the com mon work in which they were both engaged would be greatly advanced. In such cir cumstances, could it be said that a Union could not take place if a single member of the Free Church dissented? I do not think so. I think that the power to effect such a Union could be maintained upon the general ground of the duty of unity among Christians, but it seems to me that it is sufficient to say that the Free Church from a very early period recog nised and asserted that it had the power to unite with any other body of Christians holding the same faith. Thus immedi ately after the Disruption it became neces sary to settle the terms under which the places of worship of the Free Church should be held, and in 1844 a Model Trust-Deed was prepared and approved of by the General Assembly. That Trust- Deed has been in use ever since, and the titles of nearly all the places of worship belonging to the Church are framed accord ing to its terms. Under it the place of worship is vested in trustees ' to be used ' as and for a place of religious worship by ' a congregation of the said body of Chris- ' tians called the Free Church of Scotland, ' or of any united body of Christians com- ' posed of them and of such other body or ' bodies of Christians as the said Free 64 MODEL TRUST DEED CASE ' Church of Scotland may at any time ' hereafter associate with themselves under ' the foresaid name of the Free Church of ' Scotland, or under whatever name or ' designation they may assume.' These words contemplate the very case which has now occurred, and make it plain that the Church all along asserted that she had power to make such a Union ; and if she had that power, it seems to me to be absurd to say that she could only exercise it if there was absolute unanimity among her members. I am therefore unable to give effect to the second ground upon which the pursuers claim the property held for the Free Church. The pursuers claim alternatively that they have right to participate in the funds and property of the Free Church. Now it seems to me that either the pursuers are the Free Church of Scotland, and are therefore entitled to the whole funds and property held in trust for that Church, or they have entirely separated themselves from the Free Church, and have therefore no right to any part of its property. As my opinion is, that the pursuers are not the Free Church of Scotland, it follows that I cannot hold them to be entitled to participate in the property of that Church. I shall therefore dismiss the action. INTERLOCUTOR and OPINION by LORD LOW IN CAUSA YOUNG AND OTHERS v. MACALISTER AND OTHERS (MODEL TRUST DEED CASE). INTERLOCUTOR. ' Edinburgh, 9th August 1901. — The ' Lord Ordinary having considered the ' cause, finds, decerns and declares in ' terms of the conclusions of the summons ' for declarator : Finds, decerns and ordains '. in terms of the conclusion for possession ' of the subjects and others described in ' the summons, and interdicts, prohibits ' and discharges in terms of the conclu- ' sions for interdict, and decerns : Finds ' the pursuers entitled to expenses : Allows ' an account thereof to be given in, and ' remits the same when lodged to the ' Auditor to tax and report. ' A. Low.' The following note was appended to the interlocutor : — ' I refer to my opinion in ' the cases of the Reverend Colin A. ' Bannatyne and Others v. Lord Overtoun ' and Others, and the Reverend Ronald ' Dingwall and Others v. John M'lver and ' Others.— A. L.' OPINION. The opinion referred to in said note pronounced in the case of Reverend Ronald Dingwall and Others against John M'lver and Others is as follows : — ' The question raised in this action is ' whether the church and manse at Ault- ' bea are now held by the trustees in ' whom the property is vested for the ' United Free Church of Scotland. ' The Aultbea Church was one of the ' places of worship of the Free Church of ' Scotland, but when that Church formed ' a union with the United Presbyterian ' Church, a majority of the congrega- LORD LOW'S OPINION 65 1 tion of Aultbea refused to accede to 1 the Union or to be members of the ' United Church. ' That majority of the congregation ' (who are represented by the defenders) ' maintain that the General Assembly of ' the Free Church had not power to enter ' into a union with the United Presby- ' terian Church, and that the minority of ' the Free Church who refused to be ' parties to the union are now truly the ' Free Church of Scotland, and are en- ' titled to the property of the Free Church. ' I have held in the action at the instance ' of the Rev. Colin A. Bannatyne and ' Others against Lord Overtoun and Others, ' that the union was a transaction which it ' was competent for the Free Church act- ' ing through its General Assembly to ' carry out, and that it was in fact duly ' and validly carried out according to the ' laws of the Church. I accordingly held ' that the dissentient minority were not ' entitled to claim the general property of ' the Free Church which was held by ' trustees for behoof of that church. ' The only question which I require to ' consider in this case is whether the ' church of Aultbea is in a different posi- ' tion from the general property of the ' Free Church with which. I dealt in the ' other action. ' The title to the church is a f eu- ' charter by which the site is disponed to ' trustees " for the congregation of the ' "body of Christians called the Free ' " Church of Scotland worshipping at ' " Aultbea," and it is declared that ' " these presents are granted ... in ' " trust that the place of worship erected ' "upon the ground hereby disponed shall ' " in all time coming be used as and for ' " a place of religious worship by a con- ' " gregation of the said body of Christians ' " called the Free Church of Scotland, or " of any united body of Christians com- " posed of them, and of such other body " or bodies of Christians as the said Free " Church of Scotland may at any time " hereafter associate with themselves "under the foresaid name of the Free " Church of Scotland or under what- " ever name or designation they may " assume." ' These words seem to me to apply in terms to the case which has occurred, and if I am right iu holding that the union with the United Presbyterian Church cannot be challenged by the members of the Free Church who did not accede to it, it follows that the trustees in whom the Aultbea Church is vested now hold it for the United Church.' 'The defenders, however, contended that the instance was defective, in respect that the leading pursuers were only two out of six trustees in whom the church was vested. It is, however, one of the conditions of the trust that "in the " event of any trustees or trustee ceasing "to be members of the said body or " united body of Christians, then and in " that case such trustees or trustee shall "ipso facto cease to have any right to "act under these presents, and the trust " shall be thenceforward conducted by " the other trustees, as if such other " trustees or trustee, ceasing as said is, "were actually dead." ' That provision appears to me to apply to the four trustees who have refused to be members of the United Free Church, and accordingly they are no longer entitled to act as trustees, and the pursuers who are members of the United Church have a good title to sue. ' I shall therefore give decree in terms of the conclusions of the summons.' IY INTERLOCUTORS and OPINIONS of Second Division in Both Cases INTERLOCUTOR INTERLOCUTOR General Assembly of Free Church of Scotland v. Overtoun and Others. ' Edinburgh, 4th July 1902. — The ' Lords having heard counsel for the ' parties on the Reclaiming Note for the ' pursuers against the Interlocutor of Lord ' Low, dated 9th August 1901, recal the ' said Interlocutor reclaimed against in so ' far as it dismisses the action, and in lieu ' thereof assoilzie the defenders from the ' conclusions of the action, and decern : ' Find the pursuers liable in additional ' expenses, and remit the same to the ' Auditor to tax and to report. 'J. H. A. Maodonald, I.P.D.' Young and Others v. Macalister and Others (Model Trust-Deed Case), 'Edinburgh, Ath July 1902.— The Lords ' having heard counsel for parties on the ' defenders' Reclaiming Note against Lord ' Low's Interlocutor of 9th August 1901, ' refuse the Reclaiming Note : Adhere to ' the said Interlocutor reclaimed against, ' and decern : Find the pursuers entitled ' to additional expenses : Remit to the ' Auditor to tax the same and to report. 'J. H. A. Macdonald, I.P.D.' OPINIONS (In Both Cases). The Lord Justice - Clerk (Lord Kingsburgh). — The community which existed for a long period under the name of the Free Church of Scotland was originally formed by a number of ministers and members of the Established Church of Scotland, who held they could not, without sacrificing the Church's liberty and authority in spiritual matters, remain associated with the Church as established, seeing that the civil power asserted to itself the right to exercise powers, in con nection with the induction of ministers in particular, which were — as those who formed the Free Church held — not con ferred by the constitution, and were an invasion of the jurisdiction of the Church courts, subverting its government, and attempting to coerce these courts in the exercise of their purely spiritual functions (Claim, Declaration, and Protest of 1842). In seceding from the Established Church they made certain declarations of their faith and behef s, and, among others, regard ing the propriety of an Establishment of religion by the State as being part of the duty of the civil magistrate. The form which these declarations took in the pro ceedings which led up to the Disruption was that of expression of the high value attaching to the existing connection with the State, and the temporal benefits thereby secured to the Church for the advantage of her people (Claim, Declara tion, and Protest of 1842), and also of expression of the 'right and duty of the ' civil magistrate to maintain and support ' an establishment of religion,' and of the LORD JUSTICE-CLERK'S OPINION 67 reservation of the right to strive to secure the performance of this duty according to the Scriptures and in implement of statute. The declarations thus made before the Disruption are the most strongly expressed which are to be found in any of the documents. There are numerous refer ences in later documents issued by the authority of the Free Church in which allusion is made to the duty of the civil magistrate in relation to the support of religion. In the Model Trust-Deed of 1844 a passage is imported from the Protest which speaks of ' our enforced ' separation from an Estabhshment which ' we loved and prized.' In a pastoral address delivered to the Free Churches in 1843 the matter is thus referred to : ' Long was it the peculiar distinction and ' high glory of the Estabhshed Church of ' Scotland to maintain the sole Headship ' of the Lord Jesus Christ, His exclusive ' sovereignty in the Church, which is His ' kingdom and house. It was ever held ' by her, indeed, that the Church and the ' State, being equally ordinances of God ' and having certain common objects con- ' nected with His glory and the social ' welfare, might and ought to unite in a ' joint acknowledgment of Christ, and in ' the employment of the means and re- ' sources belonging to them respectively ' for the advancement of His cause. But ' while the Church in this manner might ' lend her services to the State, and the ' State give its support to the Church, it ' was ever held as a fundamental principle ' that each still remained, and ought under ' all circumstances to remain, supreme in ' its own sphere, and independent of the ' other. On the one hand, the Church ' having received her powers of internal ' spiritual government directly from her ' divine Head, it was held that she must ' herself at all times exercise the whole ' of it, under a sacred and inviolable re- ' sponsibility to Him alone, so as to have ' no power to fetter herself by a con- ' nection with the State or otherwise in ' the exercise of her spiritual functions. ' And in like manner, in regard to the ' State, the same was held to be true, on ' the same grounds, and to the very same ' extent, in reference to its secular sov- ' ereignty. It was maintained that as ' the spiritual liberties of the Church be- ' queathed to her by her divine Head were ' entirely beyond the control of the State, ' so, upon the other hand, the State held ' directly and exclusively from God, and ' was entitled and bound to exercise under ' its responsibility to Him alone its entire ' secular sovereignty, including therein ' whatever it was competent for, or bind- ' ing upon, the State to do about sacred ' things, or in relation to the Church, as, ' for example, endowing and establishing ' the Church, and fixing the terms and 1 conditions of that establishment.' In 1851 the Free Assembly passed an Act and Declaration ' anent the pubhca- ' tion of the Subordinate Standards and ' other authoritative documents of the ' Free Church of Scotland.' In that document it is declared that the Church has 'always strenuously advocated the ' doctrine taught in Holy Scripture — that ' nations and rulers are bound to own the ' truth of God, and to advance the king- ' dom of His Son ' — and again, ' holding ' firmly to the last, as she holds still and ' through God's grace will ever hold, that ' it is the duty of civil rulers to recognise ' the truth of God according to His Word, ' and to promote and support the kingdom ' of Christ without assuming any jurisdic- ' tion in it, or over it, and deeply sensible, ' moreover, of the advantages resulting to ' the community at large, and especially ' to its most destitute portions, from the ' public endowment of pastoral charges ¦' among them.' In the year 1853 the General Assembly of the Free Church passed a resolution in which they declared 'that it is free to the members of this ' Church, or their successors at any time ' . . . when there shall be a prospect of ' obtaining justice, to claim restitution of ' all such civil rights and privileges and ' temporal benefits and endowments ' as they had been compelled to give up. Later, in 1873, when an Act of Assembly was being passed regarding mutual eligi bility of ministers of the United Presby terian, Reformed Presbyterian, and Free Churches, the Assembly declared : ' In ' passing this overture into a standing ' law, the General Assembly think it right ' to declare, as they hereby do declare, ' their adherence to the great fundamental ' principles of this Church regarding — ' First, the sole and supreme authority of 68 FREE CHURCH APPEALS ' the Lord Jesus Christ, and His exclusive ' right to rule in and over His own ' Church, and the consequent obligation of ' His Church to be regulated in all her ' proceedings by His Word alone, for ' which end she claims to be protected in ' the maintenance of a complete independ- ' ence in spiritual matters, and immunity ' from all coercion and control from with- ' out ; and regarding, secondly, the pre- ' rogative of the Lord Jesus Christ as ' Head over all things to His Church, and ' supreme over nations and their rulers, ' who are consequently bound, collectively ' and officially, as well as individually ' and personally, to own and honour His ' authority, to further the interests of His ' Holy rehgion, and to accept the guidance ' of His Word as making known His mind ' and will' In 1876 the Free Church, after the formal procedure prescribed, to which I shall refer later, entered into an incorporating union with the Reformed Presbyterian Church, a community which certainly did not hold the Establishment principle, they having all along since 1689 declined to become members of the Church of Scotland as established, and declaring to the last that ' we still abide by our ' objection to the Revolution Settlement, ' nor do we commit ourselves to an ' approval of an alliance of the Church ' with the British State as at present con- ' stituted, having in view especially the ' unscriptural character of its ecclesiastical 1 relations,' and they stipulated that ' on 1 entering into the union the members of ' the Reformed Presbyterian Church were ' free to retain and abide by the views and ' principles hitherto retained by them.' After this time the Free Church, in contemplation of a possible union with the United Presbyterian Church, made through its General Assembly several declarations in regard to the Standards of the faith, and as to the sense in which certain declarations of the Confession of Faith might be construed. They also made modifications in regard to the formulas, assent to which was to be required from probationers and deacons before ordination. In regard to these formulas, it may be noticed in passing that in none of them, from the eighteenth century downwards, whether in the Established or Free or United Presby terian Church, were intending office bearers required to make any declaration in regard to establishment or endowment by the State, the only declarations being those inserted in some of the later formulas to emphasize the exclusive right of the Church to self-government in all spiritual matters. During the latter years of the last century it appears that the Free Church thought it necessary to pass Declaratory Acts 'to remove difficulties ' and scruples which had been felt by ' some in reference to the declaration of ' belief required from persons who receive ' licence or are admitted to office,' and in the Declaratory Act of 1892 it was de clared ' that while diversity of opinion is ' recognised in this Church on such points ' of the Confession as do not enter into ' the substance of the reformed faith ' therein set forth, the Church retains ' full authority to determine in any case ' which may arise what points fall within ' this description.' This declaration was undoubtedly made in view of a union with the United Presbyterian Church, and was followed up in 1900 by an over ture regarding such proposed union being sent down to the presbyteries, and by a declaration of the Commission of Assembly in October of that year, to the effect that ' the negotiations for union have been ' expressly conducted on the footing that ' neither of the Churches is required to ' relinquish any principle it has hitherto ' maintained,' and that the Free Church in entering on union adhered to her previous declarations as to the Headship of Christ over the Church and to the Headship of Christ over the nations, as set forth in the Confession of Faith. The Uniting Act was passed on 31st October 1900, and the United Assembly then passed a declaration in which the following clauses occur : — ' The Larger and Shorter Catechisms of ' the Westminster Assembly, received and ' sanctioned by the General Assembly of ' 1648, and heretofore enumerated among ' the doctrinal standards of the United ' Presbyterian Church, continue to be ' received in the United Church as ' manuals of religious instruction long ' approved and held in honour by the ' people of both Churches. ' As this union takes place on the footing LORD JUSTICE-CLERK'S OPINION 69 ' of maintaining the liberty of judgment ' and action heretofore recognised in either ' of the Churches uniting, so, in particular, ' it is hereby declared that members of both ' Churches, and also of all Churches which ' in time past have united with either of ' them, shall have full right, as they see 1 cause, to assert and maintain the views of ' truth and duty which they had liberty to ' maintain in the said Churches.' This document containing these declara tions closed the proceedings for union, which from that time took effect. These historical detaUs have been gone into for the purpose of bringing into view the attitude taken up from time to time by the Free Church on the question of State establishment of religion. It cannot be doubted on a perusal of the documents that often, and sometimes with emphasis, such estabhshment was put forward as a prominent article of doctrine accepted by the general body of those who left the Established Church at the Disruption. They desired- to declare that they were not Voluntaries in principle, and that they left the Church only because the civil power, as they held, was obtruding itself into the spiritual domain, and asserting a right to control the Church in the exer cise of its spiritual functions, in which they held that the Church was directly under the Headship of Christ, and there fore could not acknowledge any earthly authority as having power to interfere. Now, the pursuers maintain, first, that the Free Church has abandoned the principle ; and, second, that in doing so it has lost its character as the Free Church, and thereby lost the right to all property which be longed to the Free Church, and must be ordained to deliver up that property to the minority who have refused to join in the union with the United Presbyterian Church. They maintain that they are now the Free Church, from whom the large majority by their action have cut themselves off, and thereby ' amitted, lost, ' and forfeited all right and title to and ' beneficial interest ' in the lands, property, and funds belonging to the Free Church ; and declarator is asked that they may not be applied by the trustees who hold them for behoof of the new community ; that the pursuers lawfully represent the Free Church, and 'are entitled to have the ' whole lands, property, and funds applied ' ... for behoof of themselves ' and those who may adhere to them, ' as constituting ' the true Free Church of Scotland,' and that the trustees are bound 'to denude ' themselves of the lands, property, and ' funds in favour of trustees to be nomin- ' ated by the pursuers.' There is an alternative conclusion that the pursuers, by separating from those who have formed the new community, have not forfeited their right, title, or interests in the lands, property, and funds, but are entitled to the use and enjoyment of them propor tionately. The reasoning upon which these claims proceed is, first, that State Establishment was an ' essential principle ' of the Free Church; second, that the Free Church had no power to modify or abandon that principle; third, that by uniting with the United Presbyterians the majority did abandon that principle, and therefore have no right to the title of the Free Church, and must denude in favour of those who have adhered to the principle. Upon the question whether it was an essential principle, without which the Free Church as constituted could not subsist, it is important to notice that it never was maintained that the Church could not fulfil all her functions without the aid of a State Establishment. This is self-evident, for the Christian Church in its early days had no king or government in any place in which its work was carried on that accepted Christianity. And it was plainly a question depending upon the circumstances and conditions whether, when any State became Christian in faith, its support should be accepted officially by the Church. It had to be considered necessarily with regard to the circumstances and the conditions coupled with it. Indeed, as regards the Church of Scotland itself, it affords historical illustration on this point. For it originally was a seceding Church, renouncing the Episcopal authority to which up to the Reformation the whole Christian community had been sub missive. Again, when later the State endeavoured to reimpose Episcopacy, the Church of Scotland carried on its organisation and work, not only without connection with 70 FREE the State, but in active and determined opposition to it. The principle was throughout strenuously maintained that where there was an establishment, if the State took up any position which was contrary to the conditions on which alone the Church could accept its aid, the Church could withdraw from its associa tion with the State, and if it did so it would not the less continue to be the Church, as it was before. This was indeed the very ground taken up in the case under consideration by those who objected to the action of the State before the Disruption, and which was expressed by those who formed the Free Church on the very day when they left the building in which the General Assembly was sitting in presence of the Lord High Commis sioner of the Queen, and took upon them selves to assemble elsewhere. They declared it to be part of what they had had to consider in taking the step they did that in the circumstances 'a free ' Assembly of the Church of Scotland, by ' law established, canuot at this time be ' holden, and that an Assembly, in accord- ' ance with the fundamental principles of ' the Church, cannot be constituted in ' connection with the State without ' violating the conditions which must ' now, since the rejection by the Legisla- ' ture of the Church's Claim of Right, be ' held to be the conditions of the 'Establishment.' This was followed up by an Act and Declaration of the Free Church in 1851 as to what had been done in 1843, viz., that the action had been one of 'publicly renouncing the benefits ' of the National Establishments, under ' protest that it is her being Free and not ' her being Established that constitutes ' the real historical and hereditary identity ' of the Reformed National Church of ' Scotland.' And in that document it was pointed out that the ' whole work ' of the setting up of the Scottish Reformed Church, and its relief by severe struggles from Episcopacy, which ' it repudiated,' was ' begun and carried on without warrant ' of the civil power,' and that the Church had done it ' by the exercise of her own ' inherent jurisdiction.' In another pass age it is said, 'Thus by God's grace, in ' this second Reformation, wrought out by ' our fathers amid many trials and persecu- CHURCH APPEALS * tions, this Church was honoured of God ' to vindicate and carry out the great ' fundamental principles of her constitu- ' tion — the government of the Church by ' presbyteries alone ; her inherent spiritual ' jurisdiction, derived from her great and ' only Head, and the right of congregations ' to call their own pastors.' In more than one of the passages referred to, the expressions, ' fundamental ' principle ' and ' great fundamental prin- : ciple,' are used. An examination of the documents shows that the expression ' fundamental principle ' was not one which was employed indiscriminately and applied to numerous doctrines, but was specially used for emphasis in regard to such things only which those using it held were essential to the Church's exist ence as a Church, and which, if they gave up, she would cease to be a Church of Christ at all. Thus in the Claim, De claration, and Protest of 1842 it is described as 'an essential doctrine of this Church ' and a fundamental principle of its con- ' stitutiou . . . that there is no other ' Head of the Church but the Lord Jesus ' Christ.' In the same document it is narrated historically that the Act of James the Sixth ' recognised and established as a ' fundamental principle of the constitution ' of the kingdom that the jurisdiction of ' the Church in these ' (certain spiritual matters named) . . . ' was exclusive and ' free from coercion by any tribunals ' holding power or authority from the ' State or supreme civil magistrate.' They declared this to be 'an unalterable and ' fundamental condition ' of the Treaty of Union, and that they could not put the ' public advantages of an Establishment ' in competition with the 'inalienable ' liberties of a Church of Christ.' I find in the documents only two declarations in which the expression 'fundamental prin- ' ciple ' is used in connection with a state ment as to the relation of the State to the Church. The Free Assembly in 1871 formulated the following declarations : — ' Having respect to the past history, the ' present position, and the future prospects ' of this great Union question, the Assem- ' bly think it fitting at this juncture to ' declare their unalterable adherence, in ' common, as they believe, with that of all ' their people, to the great fundamental LORD JUSTICE-CLERK'S OPINION 7i ' and characteristic principles of this ' Church, regarding — ' 1. The sole and supreme authority of ' the Lord Jesus Christ, and His exclusive 1 right to rule in and over His Church, ' and the consequent obligation of His ' Church to be regulated in all her pro- ' ceedings by His Word alone. For which ' end she claims in all spiritual matters ' complete independence and immunity ' from all coercion and control from with- ' out. And regarding — '2. The prerogative of the same Lord ' Jesus Christ as Head over all things to ' His Church, and supreme over nations ' and their rulers, who are consequently ' bound, collectively and officially, as well ' as individually and personally, to own ' and honour His authority, to further the ' interests of His holy religion, and to ' accept the guidance of His Word as ' making known His mind and will. ' And the Assembly, in the circumstances ' foresaid, think it fitting also to declare ' that this Church can never, consistently ' or conscientiously, enter into any union ' that would imply the abandoning or ' compromising of either of these essential ' principles, which are divine and unalter- ' able truths.' The other declaration is in the Act re lating to Mutual Eligibility of Ministers, passed by the Free Church Assembly in 1873. I agree with the Lord Ordinary in thinking that these declarations are not such as affirm anything which could not be affirmed by those who are opposed to a State Establishment or endowment. They seem only to emphasize what it must be the duty of the Church in the exercise of its spiritual functions to preach and teach to the State as a matter of duty, and only repudiate the idea that in a Christian community the civil ruler can consistently with his duty fulfil his func tions regardless of the Divine authority and principles as expressed in the Holy Scriptures. And accordingly it was with these declarations standing that the Union was ultimately effected. They show that the negotiations which led up to the Union were conducted by the great majority of the Free Church who were favourable to it on the footing that ' there was no objec- ' tion in principle to the formation of an ' incorporating union ' (resolution of the General Assembly of the Free Church in 1871), while they acknowledged that ' much consideration is due to the diffi- ' culties which still appear to an important ' minority of esteemed and honoured ' brethren to stand in the way.' It thus appears that while in the early days of the Free Church's existence very great importance was attached to the principle of a Civil Establishment of re ligion, it was treated as subordinate, in the sense that it was in no way vital to the existence of the Church, and must be repudiated, and its benefits rejected, if the terms upon which the State might insist should be contrary to the spiritual liberty and authority of the Church in its own region. This view of the matter is very forcibly put by the judges in the case of Smith v. Galbraith, aud the views there expressed seem to me in their es sential particulars to bear upon this case. I abstain from quotation, but the opinions are well worthy of study, and it is not easy to see how a judgment in favour of the pursuers in this case could be recon ciled with that decision, which is, I think, substantially in point, as regards the opinion expressed by the judges, although the case may not rule the present. This view might, I think, be sufficient for the disposal of the case, but even if it were not so, there is another element which cannot be overlooked. The Free Church, at its inception, taking up the ground that it was the Church of Scot land quitting the Establishment, adopted and continued as part of its constitution the Barrier Act, by which the Church of Scotland in 1697, on the narrative that, as regards innovations, it ' would mightily ' conduce to the exact obedience of the ' Acts of Assemblies, that General Assem- ' blies be very deliberate in making the ' same, and that the whole Church have ' a previous knowledge thereof, and their ' opinion be had therein,' enacted that ' before any General Assembly of this ' Church shall pass any Acts, which are ' to be binding rules and constitutions of ' this Church, the same Acts be first pro- ' posed as overtures to the Assembly, and ' being by them passed as such, be re- ' mitted to the consideration of the several ' presbyteries of this Church, and their ¦' opinions and consent reported by their 72 FREE ' commissioners to the next General As- ' sembly foUowing, who may then pass ' the same in Acts, if the more general ' opinion of the Church thus had agreed ' therein.' Now, this Barrier Act was passed, as its terms indicate, to prevent rash and inconsiderate innovation. Its purpose was to fence round important changes with a certain amount of delibera tive and cautious procedure, before change should be finally sanctioned and take effect. But it necessarily proceeds upon the assumption of the existence of the power, the exercise of which it was desired to guard from the evils of undue haste, or of the enforcement by a chance pre dominance in the supreme Assembly of the Church of a particular view. It very plainly recognises that certain things may be done effectively, and only pre scribes detail procedure to ensure that they shall not be done inconsiderately. The Free Church having adopted this Act as governing its procedure, carried out the order prescribed in it in their proceedings preliminary to the union with the United Presbyterian Church, and it is not disputed that the condition that ' the more general opinion,' as expressed by the presbyteries when consulted, agreed to the step being taken. The procedure was thus entirely orderly, and it only remains to be seen whether the thing done falls within the description of inno vation under the Act, as being lawful if there be the ' more general opinion ' in its favour. What, then, are the mat ters to which this Barrier Act is to be applied? They are four — doctrine, wor ship, discipline, and government — and certainly they are very comprehensive, and there is no restriction or limitation, but absolute generality. It might be a question whether, under the head of doc- trine,an unlimited power existed; whether, for example, doctrines which go to the foundations of Christianity, such as the doctrine of the Incarnation, or of the Resurrection, could be declared no longer to be the doctrines of the Church. It would be difficult to say that a majority, however great, could, under a power to innovate, so subvert the very foundations of the faith, and shut out a minority who held fast by these doctrines, and refused to become anti-Christian. But can it be CHURCH APPEALS said that, given a power to change de claration of doctrine, that power cannot be exercised on such a question as that involved in the present case, which touches only the relations of the State to the Church, not as fundamental to the Church's existence, nor as regards either the Free Church or the United Presby terian Church having ever formed a test of membership, or of admission to com munion? I cannot answer that question affirmatively. However strongly the doc trine of State Estabhshment of religion may have been held at the time of the Disruption, I cannot hold that if the ' general opinion ' of the Free Church agreed to an innovation under which that doctrine, either in whole or in part, ceased to be officially held by the Church through its Assembly, after the proper and regular procedure, that the minority who dissented were entitled to a declarator and interdict in a court of law such as the pursuers here demand. It is worthy of notice, in conclusion, that the matter in dispute in this case relates really to the question whether it is the majority which has united with the United Presbyterian Church or the minority who repudiate the Union that is carrying out the objects of the great Protest of 1842 and 1843 'more faith fully' the one than the other. Now, such a case is expressly provided for in the Model Trust-Deed of the Free Church, which has a strong bearing upon the cases in which office-bearers and persons con nected with individual congregations have raised actions against the United Free Church in regard to the right to churches occupied by these congregations. These churches are all held by trustees under this Model Trust-Deed, and are therefore to be administered by the trustees, under the authority and direction of the Church through its courts. That Deed gives a power of secession, carrying the property with it, to a minority in certain circum stances. Had it been the case here that one-third, or more than one-third, of the ordained ministers of the Free Church separated from the Free Church on this question, then a majority of a congregation, who agreed with the minority dissenting, would have been entitled to keep the church in which they worshipped, or to LORD YOUNG'S have it made over by the trustees of the Free Church to trustees to be nominated. But this very right conferred on a minor ity of a certain strength is a negative to the claims of a small minority of persons to claim the property belonging to the Free Church as a whole, unless some act has been done by the great majority which they had no right to do under the consti tution which the Free Church had estab lished for itself. Holding, as I do, that the Free Church had the right, by its Assembly, to do what has beeu done, and that the regularity of the procedure in doing it cannot be impugned, I would move your Lordships to adhere to the judgments of the Lord Ordinary in the different cases before us, with this differ ence, that in the principal case, as it has been heard before us as on a concluded proof, the interlocutor should be one of absolvitor, as in a concluded cause. Lord Young. — The pursuers of this action, which was raised in December 1900, ask the Court to annul, by reduc tion, the union of two dissenting Churches (the Free Church and the United Presby terian Church) effected, or contended to have been so, in the preceding October. The Lord Ordinary states, I think accur ately, and with sufficient fulness, how it was effected on the part of the Free Church, and expresses the opinion, in which I concur, that it was effected in the most formal way 'and cannot be challenged ' unless it was a transaction which it was ' not in the power of the Church, acting ' by its General Assembly, to effect con- 1 trary to the wishes of a minority ' — that is to say, otherwise than unanimously. The majority was large, — 643 to 27, — but I do not think that affects the legal ques tion, assenting, as I do, to the argument of the pursuers' counsel — that if the law required unanimity, the dissent of one would be fatal. The Lord Ordinary does not, I think, specially notice the procedure of the United Presbyterian Church in effecting the union; but the case was argued to us, as it no doubt was to his Lordship, on the footing that the pro cedure of the United Presbyterian Church courts, including the chief of them — the General Synod — was in all respects regular and valid, and without manifestation of union Church was illegal cipal law, which Such union means know only this, OPINION 73 any difference of opinion. Postponing for the present any reference to the fact that, at the date of the Union, the Free Church was the owner of property (both laud and money) and any question regarding it, I confine my attention to the grounds on which we are asked to decide that its with the United Presbyterian by the civil or muni- alone we administer. this, and so far as I that the Christian Churches and their worshippers who agree to it think, after, presumably, due con sideration, that their religious opinions, aims, and objects are identical, or so sub stantially similar, that they desire to be free to associate together in worship, prayer, and praise, under — to use a familiar term — pastors admitted by the same spiritual authorities in whom they have a common confidence, and to unite in the furtherance of their common aims in re ligious matters. What, then, are the legal grounds on which the Union in question is challenged ? The first is, that the assent of the Free Church Assembly was not unanimous, which is, I think, too obviously untenable to call for an answer. The second is stated by the Lord Ordinary as presenting what seem to his Lordship to be the serious questions in the case — viz., Whether it was 'an essential doctrine and fundamental ' principle in the constitution of the Free ' Church that it is the right and duty of ' the civil magistrate (the State) to main- ' tain and support an establishment of ' religion in accordance with God's Word, ' and whether the union with the United ' Presbyterian Church necessarily involved ' an abandonment of that principle ' by the Free Church. The pursuers ask for an affirmative answer to both questions. Neither of them is a question of law ; at least I know of no statutes or rules of the Common Law, and we were referred to none, which inform us what is or is not au essential doctrine and fundamental principle of the Free Church, or of the United Presbyterian Church, or whether they are in conflict or agreement on any specified doctrine and principle. Regarded as questions of fact, supposing we had jurisdiction to dispose of them, we could not possibly do so without allowing a 74 FREE proof at large, or sending them for trial by jury. Of course, if it be the law that no two dissenting Churches can, lawfully, unite if either differ from the other upon any religious doctrine or fundamental prin ciple, and that the question whether they do or not must be determined by a court of law, on being appealed to by a member of either who dissents from the union, I say, if the law be so, we must encounter and deal with the difficulties, whether of fact or law, which such appeal, when made to us, may present. I think, however, that the law is not so, my opinion being that any two or more dissenting Churches may lawfully unite so as to form themselves into one Church, and that nothing more is necessary to the union than their own consent, which they are, respectively, free to give or with hold, and that this Court has no jurisdic tion to annul a union so made on the ground that the Churches who made it proceeded on views of their respective doctrines and religious principles which we think erroneous. Before proceeding to questions regarding the property re ferred to in the summons, and claimed by the pursuers, I desire to say that there is, in my opinion, no rule of law to prevent a dissenting Church from abandoning a religious doctrine or principle, however essential and fundamental, or from re turning to it again with or without quali fication or modification. Whether or not a property title is such that a forfeiture of property will follow such abandonment or return is another matter. The property claimed by the pursuers is thus specified in the first declaratory conclusion of the summons : ' The whole lands, property, sums of ' money, and others which stood vested ' as at 30th October 1900' in the persons named in the conclusion, and there de signated 'as general trustees of the Free ' Church of Scotland.' These persons were appointed by the Church to hold its property and use it as ordered. The words of the conclusion, taken liter ally, might (seem to) import that these ' general trustees of the Free Church ' held the property ' under various trusts ' for various purposes specified in various deeds. But, as was explained to us by counsel, this was not meant, and is not CHURCH APPEALS according to fact, the truth being that the whole property, land, and money which at the date of the Union stood vested in the general trustees of the Free Church was the absolute property of that Church. No special or limited title has been produced or referred to as existing. But this is a topic which I need not dwell upon, for, taken either way, the result as regards the point I am about to deal with is the same. That point is, that dissenting Churches who unite together, as the Free Church and the United Presbyterian Church did here, and assuming the val idity of the Union, may lawfully take their respective properties with them into the Union, and indeed always do so, the United Church having the title thereto (absolute or limited) which the several Churches respectively had before the Union. It follows that no person or class of persons who, before the Union, had a legal right to require the Free Church to use in a certain manner specified property vested in its trustees, or to refrain from using it in a certain manner, can be prejudiced by the Union, the same legal right existing against the United Church which existed against the Free Church. The United Church is, indeed, the Free Church with an increased membership. I do not think it is reasonably arguable that dissenting Churches with property possessed on titles, whether absolute or limited, by qualifica tions favourable to others, cannot unite without clearing themselves of it so as to enter the union landless and penniless. When the two Churches united they, as matter of course, took into the Union their respective churches and manses to be used as churches and manses of the United Church, and exactly as they had been, with only this change (hardly, if at all, appreciable, considered as a use of pro perty), that members of the United Church might become seatholders in any of them, and pastors of the United Church, if regularly chosen and elected, become in cumbents of any of them and occupiers of their manses. The only objection to this which the pursuers' argument suggests is that members of the Free Church are (as they say), by the terms of the titles on which its churches are held, protected against being associated therein with seat- holders and worshippers who do not hold LORD YOUNG'S it an essential doctrine and fundamental principle of religious belief that it is the duty of the State to maintain and support an Established Church. It is, I think, enough to say, although I have already, perhaps, sufficiently expressed my views on the subject, that no church or manse of the Free Church is held on a different title now than it was before 30th October 1900, and that any of His Majesty's sub jects who can relevantly aver and establish that any such church or manse is being used to his prejudice in violation of the title, or otherwise than the title warrants, will have remedy and protection in a court of law. No such case is presented by the pursuers, who found on no special title to any property, and allege no use by the United Church or by any of the defenders of the property in question other than was lawfully made of it before 30th October 1900. If the Union in question is a valid union, which we cannot annul, the whole case presented by the pursuers necessarily fails, for the property in question belongs to the Free Church, which is in the union, which the pursuers admittedly are not. Their case, indeed, is that the Act of the General Assembly of 30th October 1900 was not a consent to or enactment of union with the United Presbyterian Church, but an exodus of 643 individuals from the Church, and resignation by each of them of his membership of its As sembly, leaving in it a residue of 27, who thereupon constituted the Assembly which, with this remnant of members, was entitled to immediately proceed to business, as it did, passing Acts, appointing trustees to receive and hold the property of the Church, and within six weeks, I think, raising this action. I have already noticed that the argument for the pursuers went the length of contending that a remnant of only one man who, with sound views on the sub ject of Church Estabhshment, voted against the proposed union, would have been equally fatal to it, and entitled him to have vested in himself, or trustees nominated by him, the whole property of the Church from which all but himself had fled. I have, I hope, sufficiently expressed and OPINION 75 explained the grounds of my opinion that we can in this action take no account of, or adjudicate upon, the religious views and opinions of either the Free or the UP. Church, or the propriety and expediency (or the reverse) of their union. We can, and indeed must, decide any dispute which may be regularly brought before us regarding the disposal or use of property vested in either or in both united, but we can and must do so upon the law which governs the rights and obligations of the disputants, having regard to the titles on which the property is held and contracts affecting it. A question of creed and form of worship may thus possibly come before a court of law in a dispute regarding the use of a church or manse held on a title which specifies and limits the use. Money vested in the trustees of a beneficent donor to a Church or association of worshippers, to be used in promoting a specified or otherwise clearly indicated religious creed, may in like manner be the subject of question in a court of law — the question, of course, being whether or not the money is being used according to the trust on which it is held. But when land is conveyed or money is bequeathed in ex facie absolute property to a Church or association of religious worshippers, I cannot assent to the proposition that a court of law must or may regard the title as limited and qualified by reference, not expressed, but assumed to be implied, to ' the essential ' doctrines and fundamental principles in ' the constitution of the Church ' or association — the questions (for they may be numerous) what these are, being in case of dispute decided by the Court as question of law or fact. In this case we have been desired to read and consider over ninety pre-Disruption, post-Disrup tion, and Free Church documents, all produced as showing ' the essential ' doctrines and fundamental principles ' of the Free Church, and to read and consider them with the aid of much argument as to their import and meaning, about which the parties differ. I am clearly of opinion that an ex facie absolute property title, whether in land or money, in a Church or association, cannot be thus limited and qualified, or the Church or 76 FREE association thereby hindered from exercis ing its otherwise undoubted right of modifying or even renouncing any doc trine or principle, however fundamental. I am not to be understood as indicating an impression created by anything which the pursuers have brought under our notice, or anyhow, that the defenders by the Union in question renounced or modi fied any doctrine or principle whatever of their Church. I mean only that it was for them, and the Church with which they united, and not for this Court, to judge of the matter, and that no good ground has been presented for our inter ference with their decision. Upon these grounds, and for these reasons, the pursuers must fail and the defenders must succeed. But I do not think the decision is properly expressed in the Lord Ordinary's interlocutor, which dismisses the action. I am prepared, and I think the Court ought, to disallow the whole grounds of action, sustain the defences, aud assoilzie the defenders, with ex penses. Lord Trayner. — The propositions for which the pursuers contend are mainly these — (1) That they, as representing the Free Church, are entitled to the whole property held in trust for behoof of that Church; and (2) that the defenders having departed from the essential and fundamental principles of the Free Church, and violated its constitution, have forfeited all right in and to such property. If these propositions are esta blished in fact, there is probably no doubt that the pursuers are entitled to our judgment. The Free Church of Scotland, as constituted in 1843, was simply a voluntary association, and it is the law applicable to the rights of members of such associations which must be applied here. Now I take it to be clear that if certain members of a voluntary association (and that whether they form a majority or minority in number) depart from the essential and fundamental principles of the association, and violate the conditions and terms of its constitution, they thereby cease to be members of the association, and forfeit right to any benefit they had as members in the funds or property held CHURCH APPEALS in trust therefor ; the remanent members form the association and retain all its rights. The parties, in their arguments before us, did not appear to be at variance as to the law which would rule our decision — the law as I have stated it — but differed as to the facts on which the pursuers' claim is based. Accordingly the question to be now determined is, whether the pursuers' averments, in point of fact, have been established. The grounds of complaint alleged by the pursuers against the defenders are, as far as I could discover, two — First, it is said that whereas the Free Church held as essential and fundamental, and as part of its constitution, the doctrine of Church Establishment, the defenders had departed from that by uniting themselves with another association which repudiated that doctrine and professed the contrary doctrine of Voluntaryism. Second, that whereas the Free Church had required from its ministers and elders subscription to a formula by which they acknowledged the Westminster Confession of Faith, ' approven by former General Assemblies ' to be the confession of their faith, the formula now adopted by the Free Church (in conjunction with the other Church it had joined) requires ministers and elders to profess their belief in the Westminster Confession ' approven by Acts of General ' Synods and Assemblies.' It was said that the difference in the formulae intro duced a fluctuating standard for a fixed and unchangeable standard of belief. I think it convenient to deal first with this second ground of complaint. I have been unable to discover any real or tangible ground upon which it can rest. The formula? appear to me to be essenti ally the same. The introduction of the words ' General Synods and Assemblies ' became appropriate, if not necessary, in the formula of the United Church, because it requires candidates for orders to recog nise the construction put upon the West minster Confession, by the chief judicatory of each of the Churches — now united — when they were separate bodies — that is, the General Assemblies of the Free Church and the General Synods of the United Presbyterian Church. It would have been important if it could have been LORD TRAYNER'S shown that the interpretation or construc tion put by these bodies respectively on the Westminster Confession was incon sistent or contradictory. But this the pursuers have failed to show. So far as appears, the Churdies which now form the United Church are, and have always been, agreed on the meaning and con struction of the Westminster Confession, in so far as any matter of faith or religious doctrine is concerned, and it is with matter of faith and religious doctrine that the formulae are alone concerned. That the Free Church and the United Presbyterian Church differed as to the 3rd section of the 23rd chapter of the Westminster Confession, to some extent, is true. The difference, however, was not concerning a matter of faith, but of polity. Nor do I see anything in the new formula to suggest that the standard which has now to be acknowledged and professed is less rigid than it was before. If any change is introduced it must be one ' approven ' by the principal judicatory of the Church, and in regard to this the formulas do not differ. But the serious question in the case, and to which the parties chiefly addressed themselves in debate, is that which I have mentioned as the pursuers' first ground of complaint against the defenders. In deal ing with this question we start with two matters of fact which are not open to doubt- — (1) That the Free Church from its constitution in 1843 down (at least) to its union with the United Presbyterian Church professed the Establishment prin ciple ; and (2) that the United Presbyterian Church throughout the whole period of its existence has repudiated that principle, and professed instead the principle of Voluntaryism. In this state of the facts two questions arise : (1) Have the defenders abandoned the principle of Establishment? and (2) Was it a principle so fundamental or essential to the constitution of the Free Church that the abandonment of it in volved the consequences attributed to it by the pursuers ? 1. The first of these questions, I think, must be answered in the affirmative. It is quite true that the principle of Establish ment was declared at the time of the OPINION 77 union with the United Presbyterian Church to be left an open question, and accordingly, in the Declarations adopted by the United Assembly of the same date as the Uniting Act, it is set forth that members of both Churches 'shall have ' full right, as they see cause, to assert ' and maintain the views of truth and ' duty which they had liberty to maintain ' in the said Churches;' It is, therefore, still open to any member of the original Free Church to maintain (although a member of the United Church) the prin ciple of Church Establishment, and to do his best to bring others to his view. But it does not seem to me to meet the question, whether the Free Church, as a Church, has not abandoned the principle of Church Establishment, to say that it is left open to any individual member to hold it. It was the feature of the Free Church (prior to the Union), which distinguished it from all other Presbyterian Churches in Scotland, that it was the only Presbyterian Church not connected with the State which professed to hold the Establishment principle. And one of the results of the Union is, that moneys bequeathed and subscribed for behoof of the Free Church, at a time when it professed that principle, may now be devoted to the purposes of a Church many of whose ministers and congregations repudiate that principle. I cannot come to any other conclusion, therefore, than that the de fenders (that is, the original Free Church as a body) have abandoned the principle of Church Establishment. They can no longer give effect to it by renewing their connection with the State, or returning to the Church as by law established. 2. Was the Establishment principle an essential or fundamental principle of the Free Church? or did its abandonment violate the terms of its constitution? I answer both of these questions in the negative. The principle in question was never regarded or put forward as defide; at the most it was a principle of polity, of government, of management. The essential principles of the Free Church, as they were in the earlier years of its history repeated again and again, were, the Headship of Christ, and the consequent independence of His Church (independence, that is, of 78 FREE the civil ruler) in matters religious or ecclesiastical. The Establishment principle is never once referred to as essential or fundamental, nor presented as a principle on the same platform with those I have named. That it was frequently referred to in the Protest and other documents at the time of the Disruption as a principle which, notwithstanding their separation from the State, they still professed, it is true, and the Lord Ordinary has shown how natural it was that it should be so. But, I repeat, it was never set forth as an essential principle of the constitution of the Free Church. What, after all, is this principle to which the Free Church at the Disruption declared its adherence ? It is that contained in the 3rd section of the 23rd chapter of the Westminster Con fession, which sets forth the view or opinion which the Reformed Church held regarding the duty of the civil magistrate. Now, it appears to me difficult to hold that a mere opinion as to what some third person was bound to do, which he might neglect or refuse to do, and which the Church could not compel him to do, could in any way be an essential part of the constitution of the Church which held that opinion. The Church existed whether the civil magistrate did his duty or not. Indeed, the Establishment principle could scarcely be regarded as an essential or fundamental principle which all the members of the Free Church were bound to hold and maintain, because that principle as laid down in the Westminster Confession was so vague, both as to the character of the civil magistrate's duty and the manner of performing it, that a great variety of opinion might exist (and doubtless did exist) in regard to it. It was not a well- defined principle, like spiritual independ ence in matters sacred or ecclesiastical, or the non-intrusion of ministers. Besides what I have said, it is not without importance to keep in mind that the history of the Free Church shows that as a Church, and apart from the opinions held by some individual members of it, it did not regard the Establishment principle as one of its fundamental or essential principles. It was from the commencement of its existence down to the date of its Union a Church conducted and maintained, CHURCH APPEALS in point of fact, according to the Voluntary principle. If in theory it was something else, the theory did not square with the fact. But even the theory that it was based upon the Establishment principle can scarcely be maintained in face of this other fact, that the Free Church not only did nothing to give effect to the Establish ment principle so as to make it of any practical avail, but, on the contrary, devoted much of its time and energy to bring about (if it could) the Disestablish ment of the Church of Scotland. In a word, the principle of Establishment was, from an early period in the history of the Free Church, treated as a dead letter. Lastly, on this branch of the case, while I cannot say (as was urged by the defenders) that the decision in the case of Smith v. Galbraith is a decision of the question here at issue, yet it appears to me that the opinions delivered by the judges who decided that case are in prin ciple adverse to the pursuers' contention here. But esto that the Establishment prin ciple had been explicitly declared in 1843 to be an essential principle of the Free Church, I think the Church had the power to abandon that principle and to that extent alter the original constitution. In the first place, if that principle had no bearing upon the constitution of the Free Church except as affecting its polity or management, I am disposed to think that it could be modified, altered, or abandoned by the voice of the majority duly or deliberately taken. But, in the second place, I think the Free Church (before the Union) had the power under its constitution to alter its principles, if in order to do so it observed certain well- defined procedure. In the Act of Separation and Deed of Demission, by which at the Disruption in May 1843 the ministers and elders abdicated and renounced their status as ministers and elders of the Established Church, it was declared that they did not abandon their right ' to perform freely ' and fully the functions of their offices ' towards their respective congregations ' ; and further 'that they are and shall be ' free to exercise government and discipline ' in their several judicatories separate from LORD TRAYNER'S OPINION the Establishment, according to God's tion. 79 Word, and the constitution and standards of the Church of Scotland as heretofore ' understood.' The effect of that declaration was just this — that the Free Church should, as regards its judicatories and their juris diction, be as they had hitherto been in the Established Church, the only differ ence between the two Churches (as it was, indeed, much emphasized) being that the Free Church declined to recognise that exercise of its powers by the civil court in which the Established Church had acquiesced. Now, at the time when that declaration was made, one of the Acts of Assembly of the Established Church in full force and observance was the Barrier Act. By that Act it was provided that to prevent sudden alteration or innovation or other prejudice to the Church in either doctrine or worship or discipline or govern ment the General Assembly should not pass any Act ' to be binding rules and ' constitutions to the Church ' until the same had been submitted to the several presbyteries, after which the Assembly might ' pass the same in Acts, if the more ' general opinion of the Church thus had ' agreed thereunto.' That Act became part of the law of the Free Church by adoption, and they certainly acted upon it before the Union. In connection with this Act the Lord Ordinary points out that it conferred on the Assembly of the Established Church a certain legislative power, and I agree with him. But the State was no party to the Barrier Act, and therefore the exercise of any power under it by the Established Church would be liable to be called in question by the State. No one, however, in the Free Church could call in question the exercise of powers (conferred by the Barrier Act) by the Free Church, because no one was concerned in its adoption except the mem bers of the Free Church themselves. It was among them part of the contract — the constitution — by which and under which they were united. Each member of the Free Church in 1843 was a party to the adoption of the Barrier Act, and every one who subsequently became a member did so on the condition that that Act formed part of the law of the Associa- It may be that under the Barrier Act the Free Church had not absolutely unrestricted power of legislation, or that it did not authorise any or every change in matter of doctrine, worship, discipline, or government, although it conferred largo powers in that direction. For example, it may be thought that the Barrier Act would not be held to authorise an Act declaring that the Church no longer held the doctrine of the divinity of Christ, because then it would have ceased to be a Christian Church ; or to authorise the declaration that the Church was thereafter to be governed by bishops — because then it would have ceased to be a Presbyterian Church. I am not prepared to say that even these extreme cases would not have been covered by the wide terms of the Barrier Act, for that Act contains no limitation of the power to make alterations regarding the doctrine, worship, discipline, or government of the Church. But changes less radical than these which I have supposed, or changes which do not materially alter the character and religious tenets of the Church or its peculiar form of government, were, in my opinion, authorised by the Barrier Aet. I am of opinion, therefore, that, assuming the principle of Establishment to have been a distinctive doctrine of the Free Church, it was quite competent' for the General Assembly to alter or abandon it if it was found — on adopting the procedure ap pointed to be observed by the Barrier Act (which was done) — that ' the more general ' opinion of the Church agreed there- ' unto.' On the whole matter, I am of opinion that the judgment of the Lord Ordinary should be affirmed. The form of his interlocutor, however, will require to be altered. His Lordship having heard and disposed of the case as on relevancy, dis missed the action ; but we have heard the case as on a concluded proof, and the proper interlocutor therefore will be one of absolvitor. It follows from what I have said that the judgments pronounced by the Lord Ordinary in each of the cases, called the Aultbea, Kyleakin, Culter, and Buccleuch- Greyfriars cases should be affirmed. V IN THE HOUSE OF LORDS APPELLANTS' CASE IN GENERAL ASSEMBLY OF THE FREE CHURCH OF SCOTLAND v. OVERTOUN AND OTHERS This is an Appeal against the judgment of the Second Division of the Court of Session in an action of declarator, interdict, and reduction raised of this date x at the instance of (1) the General Assembly of the Association or Body of Christians known as the Free Church of Scotland, acting through its Commission of Assembly duly appointed by an Act of said General Assembly of date 2nd November 1900, and (2) the Reverend Colin A. Bannatyne, Culter, Moderator, the Reverend J. K. Cameron, Clerk, and J. Hay Thorburn, Depute-Clerk, all of said Assembly, and certain other Members of said Assembly and its said Commission, and also the Association called the Free Church of Scotland, as such Members and as representing said General Assembly, Commission of Assembly, and Association, and also as indi viduals, — Pursuers ; against (1) the General Trustees surviving, accepting, and acting under Acts of General Assembly of the Free Church of Scotland dated 17th May 1844, 1st June 1852, 29th May 1865, 4th June 1878, 5th June 1883, and 30th May 1890, as such General Trustees, and (2) certain persons designed as the General Trustees of the Free Church of Scotland alleged to have been appointed by the General Assembly of the Free Church of Scotland on 30th October 1900 for holding the whole property of the Free Church of Scotland from and after the 31st day of October 1900, and also as General Trustees of the Association, or body of Christians calling themselves the United Free Church of Scotland, aUeged to have been appointed by Act of a General Assembly of said Church of 31st October 1900; and (3) the Moderator, Clerks, and Depute-Clerk, all of the General Assembly of the United Free Church, and the Members of the General Assembly of the said Association or body of Chris tians calling themselves the United Free Church of Scotland, assembled at Edinburgh on 31st October 1900, and of a Commission thereof, as such members, and as repre- 1 14th December 1900. APPELLANTS' CASE 81 senting the said Association of said General Assembly and Commission thereof, — Defenders. In the course of the process it has been admitted that the pursuers represent a sufficient number of ministers, elders, and members of the Free Church to entitle them to try the questions raised in the action. [Then follows the Closed Record in this action as printed on pages 1 to 43.] The cause having come to depend before Lord Low, Ordinary, his Lordship of the respective dates specified pronounced the Interlocutors under written : — INTERLOCUTORS and PROCEDURE. 11th February 1901. — Lord Low. — Act. Orr — Alt. Christie. — The Lord Ordinary allows the pursuers to answer the de fenders' Statement of Facts, and continues the adjustment of Record till Tuesday 19th curt. : Further, sustains the Minute of Disclaimation, No. 23 of process, for Rev. George Macleod, Rev. Alexander Mackay, and David Marshall : Allows their names to be deleted from the process, and directs the Clerk of Court to delete their names accordingly : Finds the said three parties entitled to their expenses against the remaining pursuers : Modifies the same to four guineas, for which sum decerns. A. Low. \9th February 1901. — Lord Low. — Act. Clyde — Alt. Orr. — The Lord Ordinary sustains the Minute of Disclaimation, No. 25 of process, for George Thornton : Allows his name to be deleted from the process, and directs the Clerk of Court to delete his name accordingly : Finds the said George Thornton entitled to expenses against the remaining pursuers : Modifies the same to £2, 2s., for which sum de cerns : Further, continues the adjustment of Record till Tuesday, 26th curt. A. Low. 26r/i February 1901.— Lord Low.— Act. Christie et Salvesen — Alt. Orr. — The Lord Ordinary, on cause shown, continues the adjustment of Record till Tuesday, 5th March next. A. Low. 5th March 1901.— Lord Low.— Act. Christie et Johnston — Alt. Orr et Guthrie. —The Lord Ordinary closes the Record on the summons, defences, and answers, Nos. 1, 22, and 26 of process, and appoints the cause to be put to the Procedure Roll on the defenders' motion. A. Low. Of these dates 1 Lord Low, Ordinary, heard counsel for the parties. In the course of the hearing upon procedure roll, a joint print of documents and a joint minute of admissions between the parties relative thereto were lodged. This minute is printed in the Appendix.* Of this date 2 the Lord Ordinary made avizandum. Of this other date a his Lord ship pronounced the following inter locutor : — 'Edinburgh, 9th August 1901. — The ' Lord Ordinary haying heard counsel for ' the parties on the Closed Record and ' whole cause and considered the same, ' dismisses the action and decerns : Finds ' the pursuers liable in expenses : Allows ' an account thereof to be given in, and ' remits the same when lodged to the ' Auditor to tax and report.4 'A. Low.' The opinion delivered by the Lord Ordi nary in pronouncing said interlocutor is printed on pages 56 to 64. Against this interlocutor the pursuers of this date 5 appealed to the Second Divi sion of the Court of Session, and of these dates 6 the said Division heard counsel for the parties. Preparatory to presenting the 1 18th,19th, 20th, 21st June, and 2nd July 1901. 2 2nd July 1901. 8 9th August 1901. 4 Interlocutor of Lord Low, Ordinary, dated 9th August 1901, first appealed against. 5 15th August 1901. 6 13th, 14th, 16th, 20th, and 21st May 1902. * The Appendices referred to throughout the cases and in the oral pleadings before the House of Lords contained documents which are not included in this volume. But the passages cited from these documents are printed in extenso in the oral pleadings. F 82 HOUSE OF LORDS case to the Division a further print of documents was jointly agreed upon, and with the view of avoiding the necessity for probation Iwc statu a further joint minute was entered into with reference to documents submitted and also with refer ence to certain matters of fact which it was necessary should be ascertained or agreed upon prior to the determination of the questions under consideration of the Court. Their Lordships of the Second Division having made avizandum, by the following interlocutor of this date,1 the said Division pronounced the following Interlocutor :; — 'Edinburgh, ithJuly 1902.— The Lords ' having heard counsel for the parties on ' the Reclaiming Note for the pursuers ' against the interlocutor of Lord Low, * 4th July 1902. 'dated 9th August 1901, recal the said ' interlocutor reclaimed against in so far ' as it dismisses the action, and in lieu ' thereof assoUzie the defenders from the ' conclusions of the action, and decern : ' Find the pursuers liable in additional ' expenses, and remit the same to the ' Auditor to tax and to report.1 'J. H. A. Macdonald, I.P.D: The relative opinions delivered by their Lordships when pronouncing this inter locutor are printed on pages 66 to 79. The appellants, being humbly of opinion that the said interlocutors are erroneous and contrary to law and equity, have appealed therefrom to your Lordships' Right Honourable House. 1 Interlocutor of the Second Division of tho Court of Session dated 4th July 1902, second appealed against. SUPPLEMENTARY STATEMENT for Appellants. This action is brought for the deter mination of questions affecting the pro perty belonging to an independent asso ciation or body of Christians, which has existed in Scotland since 1843, and has been known as the Free Church of Scot land. This particular action is concerned solely with the property of the Church as a whole, and not with that of its indi vidual congregations. These questions have arisen in consequence of an attempt by a very large number of members of the said religious body to terminate the separate existence of the Free Church of Scotland, by combining with the members of another independent association or body of Christians called the United Presbyterian Church, and thereby form ing a new association under the name of the United Free Church of Scotland. The circumstances under which these questions have arisen and this action has become necessary are shortly as follows : — The Free Church of Scotland originated in 1843 by the withdrawal from the Established Church of Scotland of a large body of the ministers and members thereof who, while maintaining in their entirety the principles and doctrines of the Estabhshed Church,1 deemed that certain decisions of the Civil Courts and certain action of the Legislature imported such an interference with the spiritual independence inherent in the Church as rendered it incumbent on them to separate in an orderly way from the State Church. This -withdrawal, popularly known as the Disruption, was the culmination of a struggle of long continuance, which had assumed an acute form about ten years previously, between the General Assembly of the Church of Scotland and the Civil Courts of Law. About 1830 or shortly thereafter, the party known as ' Evan- ' gelical ' had obtained preponderating influence in the Church, and thencefor ward it controlled the policy of the Assembly. The acute stage of the struggle may be said to have commenced with the passing by the Assembly in 1834 of 'The ' Veto Act,' by which, following out what the Assembly regarded as a principle in herent in the constitution of the Church, it was declared to be a fundamental law of the Church, that no pastor should be intruded by the patron on a congregation 1 The principal of them are enumerated in the Law of Creeds in Scotland, Taylor Innes, 2nd edition, Edinburgh, 1902, pp. 89 and 90. APPELLANTS' CASE 83 against the will of the people ; it being provided that the simple dissent of a majority of heads of families in a parish should be sufficient warrant to a presby tery for rejecting a presentee. The validity of this Act was, almost at once, challenged both by patrons and by pre sentees, notably in the cases of the parishes of Auchterarder, Lethendy, and Marnoch.1 In the case of Auchterarder it was decided that the ' Veto Act ' was ultra vires of the Church, and that a presbytery had no right to look beyond the qualifications of a presentee as to ' life, literature, and morals.' The Church, while ready to accept the decision of the Courts as binding in regard to the tem poralities of the benefice, refused to admit as constitutional any claim on the part of the Civil Courts to interfere with the Church Courts in their absolute control of all that related to the spiritual office of the ministry. The result was a series of sharp conflicts between the Court of Session 2 on the one hand and the General Assembly and other Courts of the Church on the other, in the course of which interdicts were pronounced prohibiting ministers from performing spiritual duties under the orders of the ecclesiastical courts; suspensions of Church sentences were granted, including sentences of de position by the General Assembly from the office of the holy ministry ; and minis ters were even interdicted from preaching or administering the sacraments of the Church in certain parishes. In connection with another aspect of the activities of the Church collision also arose.3 The Evangelical party was zealous for Church Extension to meet the growing needs of the community. By Act of Parliament of 1834 (4 & 5 Wm. iv. c. 41) provision had been made for withdrawing the patronage of new churches from the 1 Auchterarder Case (1838), xvi. Sh. (Ct. of Sess. Rep., 1st Series), 661 ; (1839), McL. & Rob. 220. Lethendy Case (1839), i. D. (Ct. of Sess. Rep., 2nd Series), 955. Marnoch Case (1840), iii. D. 282. 2 Lethendy Case, supra. Strathbogie Cases (1839, 1840)., 2 D. 258, 585, 1047, 1380 ; (1840), 3D 282 ; (1842), 4 D. 1298. Camb"isnethan Case (1841), 3 D. 1278 ; 8 D. 898. 3 Stranraer Case (1842), 4 D. 1294. Strath bogie Case, supra. patron of the parish, within the bounds of which they were situated ; and under this stimulus large numbers of new parishes had been erected, quoad sacra, by the mere Act of the General Assembly — the ministers of such charges being accorded the full status of parish ministers, and recognised as constituent members of the Church Courts.1 On question being raised in the Civil Courts it was decided that the Church had no power to confer such status, and that the ministers in question were not legally members of the Church Courts.2 The Evangelical party, which through out this period entirely controlled the policy of the Church, strenuously main tained that these decisions of the Civil Courts were an unconstitutional interfer ence with the rights and liberties of the Church as secured to her by law. Re maining strongly and devoutly attached to the character of the Church as a National Church in connection with the State, they none the less vigorously protested against what they regarded as a violation by the CivU Courts of the true principles of the bond between the Church and the State. By every means in their power they en deavoured to obtain, both through the Government and from Parliament, such provision for the recognition of the prin ciples of non-intrusion and of spiritual independence as they deemed essential to any true union between the Church and the State. Failing in this, they found themselves unable to submit with a good conscience to the existing restraints im posed by the decisions of the Courts ; and accordingly, on the 18th May 1843, 470 ministers withdrew from the General Assembly of the Church of Scotland and, with those adhering to them, took steps to separate themselves from the existing State connection, and to associate them selves into the Free Church of Scotland. In so separating themselves from the Established Church the ministers and members who formed themselves into the Free Church of Scotland expressly asserted the right and duty of the State to main tain an Establishment of Religion, and reserved to themselves and their succes- 1 Stranraer Case, supra. 2 Stcwarton Case, 1 843, 5 D. 427. 84 sors to strive by all lawful means as opportunity should offer to secure the performance of this duty. They adhered to the Confession of Faith and Standards of the Church of Scotland, — claiming to be the Church of Scotland, freed merely from the control of the Civil Courts in matters spiritual. The steps taken by the founders of the Free Church as a separate organisation are fully narrated in the Condescendence annexed to the Summons and the docu ments therein referred to which are printed in the Appendices. The members who had so separated themselves from the Church of Scotland, in associating them selves into the voluntary association known as the Free Church of Scotland, did so under a definite constitution or contract, which required the maintenance of definite principles in regard both to the duty of the Church and the duty of the nation. That constitution or contract was con tained in the documents known as the Claim of Right, Declaration and Protest of 1842, the Protest of 1843, the Act of Separation and Deed of Demission of 1843. The Contract of Association or Constitution of the Free Church contains no provision for any alteration being made in the essential principles of the said Constitution or the standards of behef therein embodied, or for union with any other Church or association holding dif ferent principles or recognising different standards of belief at the instance of any mere majority, however large, of the members for the time being of the Free Church. The question of the power to alter the original terms of Association of said Church so as to affect eivil rights falls to be determined by the ordinary law regulating the dealings of voluntary associations with their contracts of associa tion or constitutions. In reliance upon its constitution, and for the support of the principles which the Free Church thereby adopted as dis tinctive, large sums of money and other estate, heritable and movable, were from the very beginning and have throughout the course of the Church's existence con tinued to be given in the form of dona tion, bequest, and otherwise to the said Free Church of Scotland, for application HOUSE OF LORDS to various purposes in connection with it as a Church existing under the Contract of Association or Constitution herein before specified. In the application of these funds, etc., to the purposes for which they were devoted, all the members of the Association have an interest. One of the essential principles recog nised by those who associated themselves to form the said Free Church was, that it is the duty of the Civil Magistrate to maintain and support a National Establish ment of Religion, according to God's word. It was their recognition of this principle as of doctrinal importance which, upon the separation of its founders from the Church of Scotland, formed the main reason for their associating themselves as a religious body distinct from any of the associations of Seceders from the Church of Scotland in existence in 1843, in respect that these bodies were for the most part 'Voluntaries,' in the sense of holding the establishment and endowment of a Church by the State to be unlawful and unscriptural as well as unjust. Another essential principle recognised was the unqualified acceptance of the Westminster Confession of Faith. In 1847, only four years after the Dis ruption of 1843, there was formed, by the union of two such earlier seceding bodies, an association known as the United Presbyterian Church of Scotland. From the first this body did not maintain the view of the right and duty of the State in regard to national religion which was maintained by the Free Church. At the date of the negotiations which culminated in 1900 in the Union which has given rise to this action, and at and long prior to the time of the said Union, it was an accepted and distinctive principle of the United Presbyterian Church that it is neither lawful, just, nor expedient for the State to give sanction to any creed by way of maintaining an Establishment, nor within its province to provide for the expense of the ministrations of or other wise to further religion, or even to provide the means of elementary religious educa tion out of the national resources. Docu ments showing this to be 'one of the ' most distinctive principles of the United V APPELLANTS' CASE 85 1 Presbyterian Church ' are printed in the Appendix. This 'most distinctive prin- ' ciple ' of the United Presbyterian Church rendered that Church as a body the main stay of the agitation for disestablishment and disendowment in Scotland, and was diametricaUy opposed to that embodied in the Constitution and Standards of the Free Church. The United Presbyterian Church, fur ther, only accepted, in a qualified manner, as a standard the Westminster Confession of Faith. Notwithstanding these differences, some twenty years after the institution of the Free Church, a party began to acquire influence which was strongly in favour of union with the United Presbyterian Church, although at that time members of this party did not venture to suggest that the Free Church should, as the price of such union, forego any of its distinctive principles, as above indicated. For a con siderable time all efforts towards union failed, by reason of the strenuous opposi tion of those who adhered to the distinc tive principles of the respective Churches. In the Free Church, in particular, the opposition to the movement was so strong that in 1871 negotiations were for the time being formally abandoned. No further step towards incorporating union was taken until 1891. In the meantime the United Presbyterian Church had, in 1879, passed a Declaratory Act, making certain modifications in the Stan dards of that Church, and altering the formula imposed upon its ministers and office-bearers so as materially to qualify those Standards in a direction which still further differentiated them from those of the Free Church. In 1892 the Union party in the Free Church, following the lead so set, suc ceeded in obtaining the approval of a majority of the Assembly of the Free Church to a Declaratory Act, professing similarly to qualify the Confession of Faith, and at the same time reserving to the Church authority to make further qualifications. This Declaratory Act was extensively dissented from, and conse quent upon a secession of a number of members, and much dissatisfaction among many who remained, the General Assembly of 1894 passed a further Declaratory Act, declaring that of 1892 to be merely per missive, and not to impose its statements of the doctrine of the Church as part of the Standards. Following upon the passing of said Declaratory Acts, overt negotiations for union were resumed between representa tives of a majority of members of the Free Church and the United Presbyterian Church. These negotiations culminated in 1900 in a so-called Uniting Act which is printed in the Appendix. The proceedings leading up to this Act are narrated at length in the Condescen dence and Statement of Facts for the Pursuers annexed to the Summons, and are shown in the various documents in the Appendix. Upon the passing of the said Uniting Act, the majority of members of the General Assembly of the Free Church having withdrawn to the Waverley Market, Edinburgh, united along with members of the Synod of the United Presbyterian Church, there assembled, to form a new religious association, under the name of the United Free Church of Scotland. Claiming to sit as a General Assembly of said Church it proceeded to pass certain Acts which had been agreed upon by the negotiators in view of the proposed Union. These included an Act anent Questions and Formula to be used at the Ordination and Induction of Ministers and Office - bearers in the United Free Church, the r^ult of which was to im pose upon those taking office in the said Church, inter alia, the Basis of Union of the United Presbyterian Church and the Declaratory Act of that Church of 1879 ; and, further, to substitute for the unquali fied acceptance of the 'whole doctrine ' contained in the Confession of Faith,' the fluctuating standard of the ' doctrine ' of this Church set forth in the Confes- ' sion of Faith approven by Acts of Synods ' and General Assembly.' As relative to the Act of Union of 31st October 1900, and as integral parts of the Constitution of the United Free Church, certain declarations were adopted by the Assembly, the effect of which is professedly to confer upon the new association an un- 86 HOUSE OF LORDS qualified power of altering its Constitution from time to time as the impulse of the moment may direct. As incidental to the Union proceedings, the majority of the General Assembly of the Free Church of Scotland, on 30th October 1900, and the General Assembly of the United Free Church, on 31st October 1900, professed to pass Acts appointing the defenders, Lord Overtoun and others (being the defenders in this action in the second place called), to be general trustees, to hold inter alia the property formerly held by the general trustees of the Free Church of Scotland, as now alleged to belong to the United Free Church of Scotland for behoof of the United Free Church of Scotland. By these Acts it was attempted to divert property contri buted, gifted, or bequeathed by pious donors for the purposes of that Church, as holding to the principles under which it had been constituted in 1843, to the uses of a Church associated under a Con stitution which not only contained no pro vision for maintaining these principles, but which involved substantial departures from them. A minority of the members of the General Assembly of the Free Church, for themselves and those adhering to them, protested against and dissented from the whole Acts relating to the Union as ultra vires and unconstitutional, and they continued in session as a General Assembly of the Free Church, and passed various Acts and took otner steps neces sary for maintaining in efficiency the cor porate existence of the Free Church. These are narrated at length in the Con descendence annexed to the Summons, and appear from the minutes printed in the Appendix. A considerable number of ministers and a very large number of office-bearers and members of the Free Church of Scotland adhered to the min ority of Assembly in dechning to enter into or recognise the proposed Union with the United Presbyterian Church. Those so adhering number many thousands of mem bers, and include over ninety organised congregations. These precise figures are not admitted by the respondents, but they do admit that the appellants represent a sufficient number of ministers, elders, and members of the Free Church to entitle them to try the present question. The appellants are the office-bearers and certain members of the General Assembly of 1900, as remaining constituted after the withdrawal of those of its members who joined the new Church, and of the Commis sion of the said Assembly; and, secondly, the members of a committee empowered by said Assembly to sue on its behalf and in its name. The action is directed against (1) The general trustees of the Free Church of Scotland as at 30th October 1900; (2) certain persons claiming to be general trustees for the United Free Church of Scotland, and as such claiming right to hold for behoof of said Church the whole property of the Free Church of Scotland, so far as vested in the General Trustees of that Church as at 30th October 1900 ; and (3) the moderator, office-bearers, and members of the General Assembly of the United Free Church of Scotland and its Commission. The object of the action is primarily to vindicate, for the uses in trust for which it was devoted by pious donors, the property held by or for behoof of the Free Church of Scotland, and especiaUy that part of it, a title to which was, as at 30th October 1900, vested in the defenders first called as general trustees of the Free Church. Said property consists of real estate of considerable value, and of per sonalty amounting to over £1,000,000, which are the result of gifts or bequests or the product of collections devoted to the promotion in one form or another of the work of the Free Church of Scotland, as associated in 1843. The pursuers accordingly seek to have declarator to the effect (1) that all pro perty vested in the general trustees of the Free Church of Scotland, appointed under various Acts of Assembly of that Church, was vested in and held by them for be hoof of the Free Church of Scotland, and that no part thereof might be lawfully diverted to the use of any other associ ation of Christians, or at least of any other association of Christians not maintaining the whole fundamental principles embodied in the Constitution of the Free Church APPELLANTS' CASE without the consent of the said Church, or at least without the unanimous assent of the members of a lawfully convened General Assembly of the Church ; (2) that the United Free Church of Scotland is an association associated under a Con stitution which does not embody, adopt, and provide for maintaining intact the whole principles which are fundamental in the Constitution of the Free Church ; (3) that the United Free Church has no right, title, or interest in any part of the property in question; (4) that former members of the Free Church of Scotland who have adhered to the United Free Church have thereby lost all beneficial right to such property, saving only in defeasible vested interests; (5) that the defenders vested in the said property may not lawfully apply the same for be hoof of the United Free Church or its members ; (6) that the pursuers and those adhering to and lawfully associated with them, are and lawfully represent the Free Church of Scotland, and are entitled to have the whole lands, property, and funds applied according to the terms of the trusts upon which they are respectively held for behoof of themselves and those adhering to and associating with them as consti tuting the true and lawful Free Church of Scotland, and that the defenders under whose control said lands, etc., may be for the time being are bound to hold and apply the same for behoof of the pursuers' and their foresaids, and subject to the lawful orders of the General Assembly of the Free Church, and to denude them selves of the whole of said lands, etc., in favour of general trustees nominated by said General Assembly or its Commission, subject always to the trusts upon which the said lands, etc., were held for behoof of the Free Church of Scotland as at 30th October 1900. Alternatively to these declaratory con clusions, declarator is sought that the pursuers and those adhering to them have not, by declining to adhere to the associa tion known as the United Free Church of Scotland, and by electing to maintain themselves in separation therefrom as an association or body of Christians under the name and continuing the constitution and distinctive principles and testimony of 87 the Free Church of Scotland, as thereto fore existing, lost or forfeited all right, title, or interest which they had at or prior to 30th October 1900, in the said lands, property, and funds, but are en titled to the use and enjoyment thereof (subject to the trusts affecting the same) either by themselves or along with such of the defenders as, being formerly members of the Free Church, have now associated themselves as members of the United Free Church, or others having right thereto or therein, and that in such proportion and upon such conditions as may be determined in the course of the process. The appellants further conclude for interdict upon the lines of the declaratory conclusions ; and further, in case it may be necessary, for reduction of certain pre tended Acts of the United Free Church General Assembly passed on 30th and 31st October 1900, so far as they may have or pretend to have effect on the civil rights of the parties. The appellants submit that the law applicable to property devoted, either directly by gift or bequest, or impliedly by being raised through collection or by subscription, to an association or body of Christians associated for the maintenance and propagation of certain religious views is fixed by a long and consistent series of decisions, commencing with that of your Lordship's House in the case of Craig- dallie v. Aikman.1 The result of these decisions (which are based upon well- established principles of the general law regulating the rights of voluntary associa tions in regard to property held for the purposes of the association) is that estate devoted to the uses of the body falls to be applied in case of schism within the Church, in the absence of express pro vision, for the benefit of those ivho adhere to its original principles, and maintain the association ; and that those members of the association who depart from its original principles, and abandon the association, forfeit any right to have the estate of the association apphed in whole or in part for 1 (1813), Mor. Diet. 14,584 ; 13 Fae. Col. 431 ; (1813) 1 Dow, 1 ; (1820), 2 Bligh, 529 ; 6 Patau's App. 618. 88 HOUSE OF LORDS their behoof ; unless where the Constitu tion under which the body was associated has made clear provision for alteration of, or departure from, its distinctive prin ciples, by resolution of a majority or otherwise. The appellants further submit, as matter of law, that the union of two associations or bodies of Christians, each established under its own definite Constitution, based on its own distinctive principles, cannot be effected without the dissolution of each such association and the formation of a new association or body of Christians, whether it adopt the Constitution and distinctive principles of one or other of the uniting bodies or, as in the case of the United Free Church, resort to an amalga mation of the Constitution and distinctive principles of both uniting bodies; and that no majority of either body has power so to dissolve it and to compel the minority to follow them into such union, and to become members of such new body, and to carry with it away from the body to which it belonged, and from the minority remaining in it, its whole corporate or quasi-corporate property. Moreover, in the case where the alleged abandonment of principle arises in connec tion with the union of certain members of the sect with another sect which has de facto existed as a separate religious organi sation, and where those refusing to unite base their refusal upon alleged departure from principle involved in the* union, those so refusing are not required to undertake the onus of proving to demonstration that the union will involve abandonment of principles which are distinctive of the sect, but are entitled to require its main tenance as a distinct organisation,1 and to refuse to become merged in and subject to the control of the Courts of a new organisation distinct from that of which they contracted to become members ; and so refusing they are entitled to vindicate the property devoted to their association, to be used by them in accordance with the purposes of the trusts upon which it is held. 1 Craigie v. Marshall (Kirkintilloch Case), (1850), 12 D. 523. Conper v. Burn (Thurso Case), 1859, 22 D. 120. In support of the alternative declaratory conclusion, the appellants respectfully sub mit in law, that even if they should fail in maintaining to the fullest extent the fore going propositions, still it is at least according to law and equity that, in the event of such a proposal for union as is indicated in the preceding paragraph, those members desiring the union should not be entitled to compel others who are content to maintain the known and defined principles of their own Church, under its existing organisation, to enter against their will, under penalty of forfeiture of all property interests, into union with others with whose principles they may fairly claim not to be conversant or in entire agreement, and to subject themselves to the control of newly constituted Church Courts which were not contemplated by them in entering into the contract where by they became ministers or members of the association. In such a case it is according to sound principles of law and equity, even if the supposed majority in favour of union are not shown to be involved in such a departure from prin ciple as to infer loss on their part of all interests in the property of their sect, that those maintaining the continuity of their association should at least be found entitled to participate with them in that property, and to have the same apportioned so that they may have a fair share made available to them for carrying on the objects to which the property was in the first instance devoted, and to which they at least unquestionably adhere. Upon the facts of the present case the appellants submit that the party which has entered into union with the United Presbyterian Church has departed from the principles which were essential to and distinctive of the Free Church of Scotland, under its Constitution as heretofore exist ing, and that in these respects — ( 1 ) That it has abandoned the doctrine and teaching of the Free Church in regard to the duty of the nation to wards religion which was fundamental in the Free Church as originally con stituted ; (2) That it has substituted for the well-defined standards of belief of the APPELLANTS' CASE 89 Free Church a fluctuating and uncertain standard; and (3) That it imposes upon all who become members in the new association a contract alterable from time to time at the will of the General Assembly for the time being, in lieu of the contract under which the Free Church became associ ated in 1843, and upon the faith of which its ministers and members joined the Church prior to the Union, which contained no provision for such altera tion. /. — The Establishment Principle. The Free Church of Scotland, upon its formation in 1843, through the separation of those adhering to it from the Church of Scotland as by law established, adopted as the foundation of its constitution inter alia certain doctrinal views of the duty of the State in relation to the Church of Christ. These were distinctive of it, and fenced it off from the numerous other sects of seceders from the Church of Scotland in existence at the time. But they were common to it and the Estab lished Church from which it disrupted. They were the basis of the new structure which was raised, but they did not differentiate that structure from the Estab lished Church. They were subsumed in all that was said and done, they permeated every document executed, although not being the ground of disruption they were not accentuated. Shortly stated, the cause of disruption was the interference of the State, repre sented by the legislature and the Civil Courts, in matters spiritual; the ground of disruption was the position taken up by those who formed the Free Church, that the State could not lawfully assume any authority or control in matters spiritual over the Church. This being the point at issue between the majority of Assembly of the Established Church which disrupted from that Church and joined the Free Church on the one hand and the legislature and the civil courts and the minority of Assembly of the Established Church which adhered to that Church on the other hand, necessarily became the prominent fundamental point to be dwelt upon at length and emphati cally in the constitution of the Free Church so formed. But this did not make that point the sole fundamental principle in the constitution of the Free Church, or relegate to a position other than essential the 'Establishment Principle,' which, not being in dispute, but forming the common basis of the Established Church and the Church which disrupted from it, did not need to be dwelt upon at length and emphatically, but was assumed as the foundation on which the distinctive superstructure was built. Where the Court below has fallen into error is in holding that the one and only fundamental and essential constitutional principle of the Free Church was and is the causa causans of the Disruption, viz., the principle of spiritual independence, and in failing to recognise that while that principle was the cause of its birth and essential to its continued existence, it did not constitute the whole foundation of its constitution. Subject to its essential principle of spiritual independence, and deeply affected by that principle, the Free Church set forth as matter equally of religious dogma, that it was the right and duty of the State to maintain and support an Establishment of religion in accordance with God's Word and the Confession of Faith. The appel lants refer to the constituting documents, enumerated supra, as embodying the doc trinal position of the Church in regard to this point, which, for convenience of refer ence, has been called 'the Establishment ' Principle.' In passing, it should be noticed that the appellants do not mean to suggest that there was implied in this term an approval of any particular Establishment for the time being existing, or that the Church, if the State failed in its duty, lost its identity or character ; but they do mean that the doctrinal position of the Church involved that, whether established or unestablished, it should constantly teach that the State had a right and duty towards the Christian Church of main taining and supporting it — allowing to it go at the same time complete spiritual inde pendence ; and that so long as the State failed to do this it was lacking in faithfulness to a religious duty, and thereby did dishonour to the Headship of Christ over the nation as well as His Church. This position carried with it certain practical consequences, affecting more or less every citizen, including the members of the Free Church; as, e.g., the duty of the State to make provision for the religious education of the young, ac knowledgment of the Protestant Reformed Faith in its public acts, and the shaping of its whole policy on Christian lines. The appellants submit that this, which is a doctrme independent of anything in the outward circumstances of the Church for the time being, was one not merely recognised by the Free Church at its inception, but essential to and distinctive of it as associated under the Constitution of 1843. It is not indeed seriously disputed, on behalf of the respondents, that the doctrine in question was held as a doctrine of the Free Church at the time of its constitution ; but they maintain that it was not so essential or distinctive that it might not be at any time aban doned by a resolution regularly passed in a General Assembly by a majority, apparently however narrow. The question thus being as to the place held by a principle admittedly present in the Constitution, it seems proper to examine the constituting documents in the light (1) of the position of those who entered into them as previously members of the Church of Scotland, in which character they had already adopted au attitude towards the principle in question ; (2) of the language of the documents themselves and of the contemporaneous actings of the governing body of the Church in promulgating these documents ; and (3) of the exposition given by the Church contemporaneously and in its subsequent history of its own views as to the principles which its Constitution embodied. The constitutional documents are, as already stated, the Claim of Right, Declaration and Protest of 1842, the Protest of 1843, the Act of Separation HOUSE OF LORDS and Deed of Demission of 1843. In order to understand the bearing of these documents upon the place of the Establish ment principle in the Free Church, it is necessary to ascertain the position in which the original subscribers of them stood as office-bearers of the Church of Scotland in regard to this principle, and what was the teaching of that Church in regard thereto. The language of the original Confession of Faith of 1560 is quite inconsistent with repudiation by a nation as such of any concern with religion, — the whole scheme of the document being the Confession of a National Church. In the 24th Article, the duty of the magistrate to maintain true religion is expressly laid down. The very fact of its accepting of the Civil Establishment involved an acceptance of belief in its lawfulness (to which it will be seen in the sequel the teaching of the United Presbyterian Church was opposed), and the whole tenor and language of the various Acts recited in the Claim of Right of 1842 recognises not merely that the State has performed a lawful act in establishing a Church, but that from the beginning the maintenance and support of the true religion was a matter of national concern and duty. That this is so is expressly recognised in the Westminster Confession of Faith itself, and especially in chapter 23, section 3, and chapter 31. That this was aheady, even in 1647, the well-settled attitude -of the Church appears from the language of the Act of Assembly approving of the Confession of Faith, which Act expressly affirms the necessity of the Confession being approved and ' estabhshed ' in both kingdoms, and the Act goes on in language quite inconsistent with any other view of the Confession than as that of a National Church. It has no doubt been maintained 1 that the 23rd chapter of the Confession of Faith does not necessarily involve accept ance of the principle of Civil Establishment or national interference for the support of religion as binding de fide on all churches 1 Cf. Galbraith v. Smith (Campbeltown Case), 1837, 15 S. 808 ; Smith v. Galbraith (1839, reported 1843), 5 D. 665. APPELLANTS' adopting the Confession. Be this as it may, the question of present interest is rather the sense in which the Confession, including that article, was accepted and adopted by the Free Church. Now, the 3rd section of the 23rd chapter (which, like the rest of the Con fession, is a statement of doctrine and matter of faith) expressly affirms that it is the duty of the civil magistrate ' to take ' order . . . that all the ordinances of God ' be duly settled, administered, and ob- ' served.' The meaning of this language is apparent on reference to the Act of Par liament of 7th June 1690, entitled, 'An ' Act ratifying the Confession of Faith ' and settling Presbyterian Church Govern- ' ment.' That the principle of the obligation of national support of religion was not left mere matter of speculative dogma is evi dent from the various regulations in the documents subscribed by ministers and elders of the Church of Scotland as condi tions of their admission. In particular, the language of the questions and formula for ordination are all conceived in terms which could only be used by one loyally accepting the Church as the expression of the nation's recognition of its duty in regard to religion ; and the terms of the undertakings required from candidates for office are such as no one holding voluntary views could consistently undertake — all such doctrines, tenets, and opinions being expressly renounced. So important was a right attitude on inter alia these points deemed, that by Act of 1782 the General Assembly recommended the recital of the engagements required by the Act just referred to, to be put to students before they entered on their trials ; and the General Assembly strictly prohibited the licensing of any person whatsoever who should not give explicit and satisfying answers to the questions and subscribe the formula. Again, the Aet of 1813, cap. 8, ex pressly forbids the reception of any student who is not well affected to the 'happy ' establishment in this kingdom, both in ' Church and State.' This Act, with the necessary modification to suit the changed circumstances embodied in its own Act CASE 9* XII. of 1846, was expressly recognised by the Free Church as of binding effect. The proceedings taken against Mr. Hugh Craig, an elder of the Church who was deposed in the year 1834 for holding Voluntary views, show that the matter was regarded as de fide, and that at a time when the party which afterwards formed the Free Church was in the ascendency in the Established Church, the very year 1834 being the first occasion in which that party first found itself possessed of a controlling majority in the General Assembly. In 1839, on receiving a small denomina tion known as the Associate Synod into union, the General Assembly of the Established Church (which was already dominated by the party who afterwards formed the Free Church), laid down as a consideration for the union the concur rence of the Associate Synod in holding the 'great principle of an Ecclesiastical ' Establishment and the duty of acknow- ' ledging God in our national as loell as ' in our individual capacity.' The Claim of Right of 1842 was the last pronouncement of the Established Church, before the Disruption, as it after wards became the first of the Free Church on the subject, and therein the duty of the magistrate is laid down as part of the essential doctrine of the Church, — paren thetically, no doubt, as not being in dis pute, but still on the same platform with the corresponding duty of leaving to the Church spiritual independence. Such was the attitude of mind of the founders of the Free Church on entering upon the Dis ruption, and it must be kept in view in considering the meaning of their adoption of the Confession and Standards of the Church, and the language in which they state their doctrinal position in the con stituting documents. Along with these documents fall to be read the documents in Appendix B, p. 22,* and Appendix C, p. 6,1 which last docu ment was issued by the Disruption Assembly as the basis upon which sympa thisers were invited to join the Free Church. The passages from page 11 to page 13 of Appendix C dispose of the suggestion, that in becoming a non-Estab lished Church the Free Church did not * The Appendices are not included in the present volume, 92 HOUSE accept the teaching of the Confession of Faith and the Church of Scotland in regard to the Establishment principle. This principle is classed as ' a doctrine,' and it is held out as a principle which is to characterise the Church in its separation from the State, distinguishing it from other bodies in separation. The documents contemporaneous with the Disruption, expressive of the mind of the General Assembly, all corroborate this view. The attitude of the Church rela tive to the reception of, and reply to, addresses from other Churches shows that the founders of the Church recognised the distinct difference in their relation to those Churches who did accept the principle of national religion and those which were voluntary. On the faith of the representations in these foundation documents as to the teaching of the Church on this matter, large sums of money were contributed in the early years of the existence of the Church, and building sites were granted. These funds were the nucleus of those held by the defenders second called as at 31st October 1900 for the Free Church, and now taken possession of by the general trustees for the United Free Church. The course of proceeding as to the eligibility of ministers from other Churches is very significant, only representatives of those Churches which were at one with the Free Church on this principle being unqualifiedly eligible, all others, includ ing those of the sects which combined to form the United Presbyterian Church, having in one form or another to give in their adhesion to the Free Church position before admission. Similarly the whole course of the Church's dealing with her testimony and principles shows the im portance attached to the principle in question as part of her testimony. But indeed the matter was early made the subject of test in Mr. Hately Waddell being, in 1844, deprived of his license, and Dr. Marshall of Kirkintilloch being, in 1853, refused admission to the Free Church because of Voluntary views. The position which the principle occu pied could not be made clearer than it is OF LORDS in the series of documents bearing upon the abortive negotiations for union with the United Presbyterian Church between 1864 and 1872. These documents are the result of the deliberations of com mittees whose whole aim was to eliminate subordinate matters of difference and to get as near as possible to a common basis. Yet the result is clearly to show that there was an essential difference in the teaching of the two Churches separating each of them from the other, and thus distinctive of them in their condition of separation from the State. Finally, the formula, which to the end required to be signed and accepted by all office-bearers of the Free Church, involved the acceptance of the Church's doctrinal teaching as to the duty of the State in regard to religion. That the Establishment principle, in the sense above indicated, was not accepted by the United Presbyterian Church, but that it was, on the contrary, officially repudi ated by the recognised Courts of that Church, if not from the first, at least long prior to the Union leading to the present dispute, appears from the reports of the Committees on Union already adverted to and from the other documents which are printed in the case. These all show that the interpretation put upon the word ' compulsory ' in the qualification of the 23rd chapter of the Confession of Faith, contained in the second head of the basis of Union of 1847 of the United Presby terian Church, involved the repudiation as unjust and unscriptural of a National Church maintained by the State. It is apparent from the terms of the Acts of Union of 1900 that the Establish ment principle is not conserved as a prin ciple distinctive of the United Free Church. Its acceptance is no longer matter of doctrine, but is at best merely permissive ; and the terms of the declara tions incorporated in the Act render it possible that the principle may be at any moment declared by the United Free Church to be unscriptural. Indeed, the General Assembly of that Church has since the Union adopted resolutions en tirely inconsistent with the principle. APPELLANTS' CASE Thus on 28th May 1901 x the General Assembly by a large majority approved of a report (No. XXIX.) by its Committee on Church and State, in which that Com mittee reported in these terms : — ' . . . ' We shall be quite frank as to our posi- ' tion. The Committee understand this ' to be that we must regard the statutory ' connection now maintained by the State ' in Scotland with the Established Church ' as objectionable in principle, and that its ' termination seems to us to be a neces- ' sary step towards the relations between ' Churches in Scotland which, we believe, ' are very widely desired. The Com- ' mittee see no benefit to be gained by ' allowing doubt to arise on that point. ' . . .' In the following year an attempt was unsuccessfully made by certain mem bers of Assembly to have recognition formally accorded in the Assembly's de liverance on Church and State to the right of those opposed to the recommenda tions of the Committee to hold their views within the Church. The report of the Assembly's Acts and Proceedings2 nar rates, under date 29 th May 1902, that ' the Assembly called for the report of ' the Committee on Church and State. "... It was moved and seconded, That ' " the Assembly approve of the report, and ' " return thanks to the Committee, especi- ' " ally the first conveners. The Assembly ' "adheres to its testimony in favour of ' "the Disestablishment of the Estab- ' " lished Church of Scotland, sympathises ' " with the Free Churches of England in ' " their resistance to the Education Bill ' "for England now before Parliament, and ' "reappoints the Committee with instruc- ' " tions to continue its vigilance and take ' "such wise action as events may call for ' "to advance the object in view." It ' was also moved and seconded, That the ' proposed deliverance on the report be ' not adopted without the foUowing addi- ' tion : — " Further, the General Assembly, ' " whUe declaring that the Union of the ' "United Free Church and the Estab- ' " lished Church of Scotland is impractic- 1 Official Proceedings and Debates, 1901, pp. 181, 182, 194. 'Acts and Proceedings of General Assembly of United Free Church, 1902, p. 351. Official Pro ceedings and Debates. 93 ' "able on the basis of the existing ' "statutory connection between Church ' "and State, instruct the Committee to ' "have due regard in their action to the ' " diversity of view on tlie relations of ' " Church and State allowed within this ' " Church, and to the desirability of 1 "the members of this Church and of '"the Established Church of Scotland ' "cultivating the friendliest possible re- ' "lations in the interests of Christian ' "work, and of the ultimate reeonstruc- ' " tion of our Scottish Presbyterianism." ' 1 The first motion was carried by a large majority. The respondents indeed maintain that while the Establishment principle was held as matter of opinion by a very large number of those who took part in form ing the Free Church in 1843 (including the leaders of the movement) it was never accepted by the Church or embodied in its Constitution as one of its principles or articles of belief; and they further con tend that the United Presbyterian posi tion was not essentially different, and that in any event the position of the Free Church in regard to it has not been altered by the Union. Upon all these points the pursuers claim that they have the judgments of the Courts below. Upon the first two points the Lord Ordinary says — 'There is no doubt that ' the founders of the Free Church, when ' they left the Established Church in ' 1843, did so declaring that they ad- ' hered to the principle of an Established ' Church ; ... On the other hand, it ' seems to me to be equally certain that ' the United Presbyterian Church never ' read the Confession of Faith as laying ' down that it is the right and duty of ' the Civil Magistrate to maintain and ' support an Established Church. . . . ' The view of the United Presbyterian ' Church as a whole has always been that ' it is not within the province of the Civil ' Magistrate to endow the Church out ' of pubhc funds, and that the Church ' ought not to accept State aid, but ought ' to be maintained by the free-will offerings ' of its members. I therefore think that ' it must be conceded that the original 1 Proceedings and Debates, p. 265. 94 ' Free Church could not consistently with ' its avowed opinions, have joined the ' United Presbyterian Church.' Tho Lord Justice Clerk admits that 'in the early ' days of the Free Church's existence very ' great importance was attached to the ' principle of a Civil Establishment of ' Religion ' ; while Lord Trayner says : ' In dealing with this question we start ' with two matters of fact that are not ' open to doubt — (1) That the Free ' Church from its Constitution in 1843 ' down (at least) to its Union" with the ' United Presbyterian Church professed ' the Establishment principle ; and (2) ' that the United Presbyterian Church, ' throughout the whole period of its exist- ' ence, has repudiated that principle and ' professed instead the principle of Volun- ' taryism.' If the views of these Judges be correct it seems hardly open to doubt that the majority of the Free Church, by entering into an incorporating Union with the whole members of another Church, not very inferior in numbers, without making any provision for the maintenance by the United Church of this principle, altered their position. The new Church cannot reasonably be said to maintain the attitude of the Free Church in regard to a matter on which such opposition to its former principles existed on the part of one of the uniting parties. The appellants adopt the view upon this expressed by Lord Trayner when he says : ' In this state of the facts two ' questions arise — (1) Have the defenders ' abandoned the principle of Establish- 'ment? ... (1) The first of these ques- ' tions, I think, must be answered in the ' affirmative. ... It does not seem to me ' to meet the question, whether the Free ' Church as a Church has not abandoned 1 the principle of Church Establishment, ' to say that it is left open to any indi- ' vidual member to hold it. It was the ' feature of the Free Church (prior to the ' Union) which distinguished it from all ' other Presbyterian Churches in Scotland, ' that it was the only Presbyterian Church ' not connected with the State which pro- ' fessed to hold the Establishment prin- ' ciple ; and one of the results of the ' Union is that money bequeathed and ' subscribed for behoof of the Free HOUSE OF LORDS ' Church, at a time when it professed that ' principle, may now be devoted to the ' purposes of a Church many of whose ' ministers and congregations repudiate ' that principle. I cannot come to any ' other conclusion, therefore, than that the ' defenders . . . have abandoned the ' principle of Church Establishment.' In this state of the facts, the conclusion pointed at by the appellants could only (apart from the argument based upon a power implied in the Constitution to alter even essential principles, or the special view taken by Lord Young alone, both of which are dealt with hereafter) be resisted, on the footing that the principle in ques tion was not a fundamental, essential, or distinctive principle of the Free Church, such as could not be altered without destroying its identity as a Church : and accordingly a large part of the opinions of the Judges (other than Lord Young) is devoted to maintaining the position that the principle was not in this sense essential or fundamental, but was at most one not regarded as 'an essential or fundamental ' doctrine of the Church ' (Lord Low) ; one not 'fundamental to the Church's ' existence, nor . . . having ever formed 1 a test of membership or of admission to ' communion ' (Lord Justice Clerk) ; ' one 1 never regarded or put forward as de fide ' — at the most ... a principle of polity, ' of government, of management ' (Lord Trayner). The appellants submit, on the contrary, that the principle in question — admittedly present in the Constitution — was funda mental, essential, and distinctive, and that, whatever adjective may be applied to it, its maintenance so entered into the identity of the Free Church as formed in 1843 that, in dealing with questions regarding property devoted to the use of that Church, the identity of the Church is not so preserved by any body which has abrogated that principle as to entitle it to claim such property. The appellants have already submitted considerations indicating the position held by this principle in the Established Church and in the Free Church at the time of the APPELLANTS' CASE Disruption, including cases which show that both in the Established Church and in the Free Church its negation was regarded as a bar to office. If the position accorded to the principle was in fact so important as the considera tions adduced seem to show, it is little more than mere verbal criticism to say that it is nowhere in terms declared to be essential or fundamental. Indeed, the very fact that it is specially noticed at all in the constituting documents goes far to show that it was so ; for an enumeration of all the doctrines regarded as essential or fundamental by the Free Church would have involved a recitation of at least the Confession of Faith ; and the attention devoted to emphasizing the Church's posi tion in regard to the duty of the State towards religion goes far to indicate that to it was attached more than ordinary importance. But even the verbal criticism is ill founded. For it is only by a large ellipsis that it is possible to say that the principle is not stated in the Claim, Declaration and Protest of 1842 itself, to be essential and fundamental. The ' essential doctrine of this Church and 1 fundamental principle in its constitution ' exhibited in the opening paragraph of the narrative embraces the whole contents of the paragraph, including the parenthetical In the Pastoral Address of April 1843 and the ' Affectionate Representation ' of the same year the principles of spiritual independence and of national recognition of religion are put on the same plane. So too in the Pastoral Address of the Dis ruption Assembly of 30th May 1843, the transition from the statement of the doctrine of spiritual independence to that of the duty of the State is very markedly effected by the words 'and in like ' manner.' The carefully considered Act of 1851, after tracing the Church's history down to the separation from the Establishment uses these words, 'holding firmly to the last' (i.e. to the moment of Disruption) ' as she holds still, and through God's ' grace will ever hold, that it is the duty ' of civil rulers to recognise the truth ' of God. according to His Word, and to 95 ' promote and support the kingdom of ' Christ without assuming any jurisdiction ' in it or any power over it, etc' It is difficult to conceive any description more apposite to describe a principle which is essential and fundamental. If a principle held at the moment of inception of the Church's existence, held still, and by God's grace to be ever held, be not essential and fundamental, what can be so ? It is idle to say that the statement of the principle is not very precise, because the same Act refers to the documents and standards of the Church, which contain explicit state ments of its application. No doubt the same document does say, in the words quoted by the Lord Ordinary, that ' it is her being Free and not her ' being Estabhshed that constitutes the ' real historical and hereditary identity of ' the Reformed National Church of Scot- ' land.' But much of the criticism of the Lord Ordinary and the Judges of the Inner House upon this and similar state ments depends for its effect upon divorcing them from their context, and loses its force if regard be had to the distinction between the fact of Establishment, on the one hand, and the holding of certain doctrinal views as to the duty of the State in regard to religion, on the other, as the test of identity. The Church, even when non-Established, even when persecuted, even when ' hunted as a partridge on the ' mountains,' could and did hold and teach as part of its doctrine the Establishment principle, in the sense defined by the appellants. To take only one other instance. In the Declarations of 1871 of the Free Church General Assembly, adherence is declared to ' the great fundamental and character- ' istic principles of this Church regarding ' . . . (2) the prerogative of the same ' Lord Jesus Christ as Head over all things ' to His Church aud supreme over nations ' and their rulers, who are consequently ' bound collectively and officially as well ' as individually and personally to own ' and honour His authority, to further ' the interests of His holy religion, and ' to accept the guidance of His word as 1 making known His mind and will.' For exposition of what these principles were, just as for light on the principles of 96 HOUSE spiritual independence, adherence to which is declared in the preceding paragraph, resort must be had to the early docu ments and history of the Church. But it establishes that what is there found is ' fundamental and characteristic' It is significant that this affirmation occurs in resolutions which terminated for the time negotiations for union with this very same United Presbyterian Church. These considerations seem to show that if it be necessary, in order to the funda mental character of a principle, that it should be stated in language to be so, that described as the ' Establishment principle ' answers to the test. But the appellants submit that even were this aspect less favourable to them than they conceive it to be, it would still be for the Court in such a case as this to examine into the character of the principle as affecting the identity of the association, and to pro nounce upon the result of such examina tion independently of any mere verbal statement. The appellants conceive that whether a principle or doctrine is to be regarded as fundamental depends largely upon the point of view from which the enquiry starts. For the purpose of the present case their submission is, that the standpoint from which the matter must be looked at is that of the law of associa tion as affecting the rights of an association in regard to property devoted to it for the professed purposes of the association. For it is well decided that in the eye of the law,1 so far as property at least is concerned, a body such as the Free Church is nothing more than a voluntary association holding property in trust for particular defined purposes, the relation of which to the law is not altered by these being religious or charitable instead of merely civil ; and accordingly the law- regulating its powers in regard to property 1 Craigdallie v. Aihman, cited supra; Pearson v. Attorney-General, iu 7 Sim. 290 ; 3 Merrivale, 347, especially p. Lord Eldon. 418 ; Lady Sewley's Charities, 7 Simons, 309, p. Lyndhurst, L.C., at 310 ; 9 C. and F. 355 ; 11 Sim. 592 ; 216 Sim. 210. Couper v. Burn, 22 D. 120 ; Dill v. Watson, Jones Exch. Bep. 5, Ir. 48. And per Ld. Barcaple in Forbes v. Eden (1865), 4 M. (Ct. of Sess. Rep., 3rd Ser.), 143 ; (1867), 5 31. (H. L.), 36. OF LORDS must be stateable in the terms applicable to the case of an association for merely civil purposes. This being so, the appellants respectfully submit that any ' principle ' or ' doctrine ' (or in the language of civil association any 'purpose') becomes essential or fundamental to an association when, being embodied in the Constitution, it so far influences the character of the association, that its abandonment would appreciably affect the identity of the association as a body, inviting for itself support upon the foot ing of existing for the promotion of the purpose, principle, or doctrine. Applying this to the case of a Church, the appeUants put it that the principle becomes funda mental when, being in the Constitution, it is one which gives individuality to that Church, and distinguishes it as a religious association from other associations of the same class, to such an extent that it may fairly be supposed to be a determining consideration in drawing property and money towards the denomination in question rather than its competitors.1 To this test the principle in question un doubtedly answers. In the 'Affectionate ' Representation' of May 1843 (which may fittingly be described as analogous to the prospectus of the newly formed Free Church), it is dwelt on with emphasis as entitling it to claim support, as separating it on the one hand from the Voluntaries, just as much as the admittedly vital non intrusion principle distinguished it from the Established Church on the other. It was the Church's justification for remain ing apart from the other 'Voluntary' bodies and for adopting a radically different course in regard to mutual eligibility in a question with ministers of those Churches which did agree with the Free Church in this principle, from that adopted towards the ministers of those who did not. In not a single union entered into in the whole history of the Free Church, down to that now objected to, did that Church become associated with another Church which did not accept the principle; for the union with the Re formed Presbyterians mentioned by the 1 Drummond v. Att.-Gen., 1840, 1 D. and Warr. 353 ; (1848), 2 H. L. Case, 837 ; 3 Dr. and W., 162. Lord Justice Clerk was with a body which only differed in that they main tained in a more accentuated form than the Free Church the proposition that the State had a duty to religion. The Act of Union contains in gremio a statement of the willingness of the Reformed Pres byterians to accept the formula of the Free Church ; and in any event the Union with that Church was not a com plete union quoad civilia, as the Reformed Presbyterians still met annually as a separate synod to preserve their civil status as a separate body holding property. The fact is, as Lord Trayner put it in the passage already referred to — ' It was the ' feature of the Free Church (prior to the ' Union), which distinguished it from all ' other Presbyterian Churches in Scot- ' land, that it was the only Presbyterian ' Church not connected with the State ' which professed the Establishment ' principle.' If this be so, the appellants submit that the conclusion pointed to by his Lordship in the following sentence, viz., that money and other estate devoted to it by persons who singled it out as possessing (and probably because of its possessing) this distinguishing character istic ' may now be devoted to the purposes ' of a Church, many of whose ministers ' and members repudiate that principle,' and who by its Constitution are entitled to repudiate it, is contrary to law and equity. In the view taken by the learned judges (the Lord Ordinary, the Lord Justice Clerk, and Lord Trayner), the only doctrines which would appear to be fundamental are not those which give the Church its individu ality, but those which are common to it and other Presbyterian or like Christian Churches. The Lord Ordinary would appear to regard the Westminster Confes sion and Presbyterianism as fundamental in this sense ; the Lord Justice Clerk and Lord Trayner (the latter with doubt) the divinity of Christ and possibly the present Presbyterian form of government. Lord Young regards nothing as unalterable. With great deference, the appellants sub mit that this view is unsound when applied to property rights acquired for the uses of a definite religious organisation. In such a case it is not the broad general a APPELLANTS' CASE 97 doctrines of the Bible or the Confession which are essential as conferring individu ality, but a special interpretation of those which the Church holds itself out as formed to maintain as its special testimony for the truth. On this matter the appellants refer to and adopt with respect the views expressed by the judges, and especially by Chief Baron Joy and Baron Smith, in the Irish case of Dill v. Watson. ' I at the same ' time hold,' said Baron Smith in that case, 'that the Scriptures must be inter- ' preted before they become a rule of ' common faith, that men's interpretations ' of the Bible constitute the foundations ' of their faith ; l that the members of a ' community who, after having searched ' the Scriptures, all concur in giving one ' interpretation to their fundamental and ' essential contents — that these, I say, form ' one religious body or Church ; while ' those who construe the Scriptures differ- ' ently from these, but in concurrence ' with each other, form another distinct 'religious community or Church.'2 It must no doubt be admitted that, as was laid down in the Campbeltown case, the principle departed from ' must be one ' influencing conduct as men and Chris- ' tians in a state of separation ' ; but it has been sufficiently demonstrated that the Establishment principle, as stated by the appellants, possesses this character istic3 It may be noted in passing that in the Campbeltown case4 it was judicially affirmed that the Relief Church (one of the component parts of the United Presby terian Church) was even at that date ' voluntary.' It is to be observed too that the Campbeltown case is not, as maintained by the respondents, an authority con clusive of the present case, to the effect that a non-Established Church in adopting the Confession of Faith does not adopt the Establishment principle. It merely goes the length of deciding that, in the case of the particular Seceding Church dealt with, it was not to be assumed that 1 2 Jones, 48 at 59 and 91 ; see also Attorney- General v. Miller, cited in Innes' Law of Creeds lsted., 410. 2 Smith v. Galbraith, 15 Sh. 808 ; 5 D. 665 p. Lord Medwyn, 682. 3 See per Lord Trayner. supra. 4 15 Sh. 808. 98 the general adoption of the Confession of Faith involved the adoption of its teaching as to the relation of Churches and State, where inconsistent with the circumstances of the Secession. But the Free Church took care in its constituting documents to differentiate its position from other Seceding Churches by emphasizing its acceptance of the doctrines of the Con fession on this very point, and by ex phcitly amplifying and restating them. Finally, it is not enough to say, even if it were true, that the doctrine is a mere speculative one as to the duty of a third party, the State, influencing opinion, but not practised in a non-Established Church.1 This very point was advanced and decided in the negative, as to the co-relative doc trine of non-intrusion, in the case of property held by the English Presbyterian Church under the English Presbyterian Synod at the time of the Disruption, in the case of the Attorney-General v. Welsh? 1 Cf. per Lord Low and per Lord Trayner. 2 1844, 4 Hare, 572 at 578. HOUSE OF LORDS and the principle of that decision seems equally applicable here.1 But the principle in question is of more than merely specu lative importance. The consequences of the contrary doctrine have been visible for many years in the agitation for the Disestablishment of the Church of Scot land, conducted officially by the United Presbyterian Church, on the ground of the unscripturalness and unlawfulness of all Church Establishments ; and in the exist ence of Disestablishment committees in the presbyteries of that Church, and in the dissemination of literature by it directed to that end. They have also shown themselves in the secularising policy of that Church in reference to State Education, and generally their non- acceptance of the Establishment principle has given a distinct practical tone and character to the United Presbyterian and other ' Voluntary Churches.' 1 Also Attorney -General v. Murdoch (Berwick Case) 7 Hare, 445 at 456; and De G. M. and G., 86. II. — Alteration of the Doctrinal Standard. But it is not merely in regard to the Establishment principle that the appellants maintain that the Union involves depar ture from fundamental principles of the Free Church. They aver that in 1892 and 1894, as part of the scheme which culminated in the Union, Declaratory Acts were passed by the majority of the Assembly, which were, however, dissented from by the party whom the appellants represent, and were consequently expressly declared not to be compulsory upon any member of the Free Church; and that these Acts and a relative Declaratory Act of the United Free Church have been definitely recognised and imposed upon office-bearers of the United Church as an integral part of the forms of ordination to office. These Acts, they contend, involve essential departures from the former doctrinal standards of the Free Church. Without entering into detail it is sufficient in this place to say that it is impossible to see how the provisions of the Declaratory Act of 1892 and of the United Presby terian Declaratory Act of 1879 are recon cilable with certain of the chapters of the Confession of Faith quoted in the Appendix, and especially with chapters 3, 5, 9, 10, and 16 of the Confession. The objection of the appellants, how ever, goes deeper than merely to specific alteration; for whereas the formula adopted by the Free Church by Act XII., 1846, accepted the Confession of Faith in its entirety by requiring ministers, etc., to subscribe affirmatively to the question, ' Do you sincerely own and declare the ' Confession of Faith approven by former ' General Assembhes of this Church to be ' the confession of your faith ; and do you ' own the doctrine therein contained to ' be the true doctrine which you will ' constantly adhere to ? ' the United Church, in requiring the subscription to the similar questions appended to the Act of 31st October 1900, merely requires acceptance of ' the doctrine of this Cliurch ' set forth in the Confession of Faith, ' approven by Acts of General Assemblies,' and an acknowledgment of the said doc trine 'as expressing the sense in which ' you understand the Holy Scriptures ' ; or, in the case of deacons, an acceptance APPELLANTS' CASE of ' as in accordance with Holy Scriptures, ' the system of evangelical truth taught in ' this Church and set forth in the West- ' minster Shorter Catechism.' Any de parture is thus rendered possible in the new Church from the former doctrinal standards of the Free Church, for which is substituted merely so much of that doctrine as is approven by the Church for the time being. This is, moreover, emphasized by the liberty claimed for the new Church in the first of the express declarations, in view of which the Union was authorised, and which undoubtedly forms a term of the Constitution of the new Church. If the views maintained in regard to the Establishment principle and other doctrines referred to being fundamental in the Free Church, and not being con served in the United Free Church, be correct, it humbly appears to the appellants that the respondents' case can only be maintained, upon the footing that there is embodied in the Free Church Constitution a power of alteration sufficiently wide to enable it, by a majority, however small, after certain procedure, to alter funda mental doctrines, unless indeed it be upon the special view taken by Lord Young alone of all the judges in the Court below. The whole of the judges in effect hold that there is provision for such altera tion ; but before dealing with this point it may be well to consider shortly the special view adverted to as advanced by Lord Young. The view in question appears from the following passages in his Lordship's judg ment : — ' I desire to say that there is, in ' my opinion, no rule of law to prevent a ' dissenting Church from abandoning a ' religious doctrine or principle, however ' essential and fundamental, or from re- ' turning to it again with or without ' qualification or modification. Whether ' or not a property title is such that a ' forfeiture of property will follow such ' abandonment or return is another matter. ' The property claimed by the pursuers is ' thus specified in the .first declaratory ' conclusion of the summons : — " The ' "whole property, lands, sums of money, ' "and others which stood vested as at 99 "30th October 1900" in the persons named in the conclusion, and there described and designated as "General "Trustees of the Free Church of Scot- "land." These persons were appointed by the Church to hold its property and use it as ordered. . . . The whole pro perty, land, and money which, at the date of the Union, stood vested in the general trustees of the Church was the absolute property of that Church. . . . Money vested in the trustees of a bene ficent donor to a church or association of worshippers, to be used in promoting a specified or otherwise clearly indicated religious creed, may ... be the subject of question in a Court of law, the ques tion, of course, being whether or not the money is being used according to the trust on which it is held. But when land is conveyed or money is bequeathed in ex facie absolute property to a church or an association of religious worshippers, I cannot assent to the proposition that a Court of law must or may regard the title as limited or qualified by reference not expressed, but assumed to be implied to " the essential doctrines and fundamental "principles in the Constitution of the " Church " or association — the questions (for they may be numerous) what these are, being, in case of dispute, decided by the Court as questions of law or fact. ... I. am clearly of opinion that an ex facie absolute property title, whether in land or money in a church or association, cannot be thus limited or qualified, or the church or association thereby hindered from exercising its otherwise undoubted right of modifying or even renouncing any doctrine or principle, however funda mental.' The view here stated involves, the appellants humbly submit, an utter sub version of the law as hitherto settled by decision, in regard to property held for the purposes of a religious or charitable associa tion; for it is certainly impossible, con sistently with well -settled principles of the law of association to predicate of an association associated for civil or charit able purposes, owing its existence entirely to the recognition accorded it by law, and attracting towards itself funds or property for the promotion of the professed purposes HOUSE OF LORDS ioo of its existence,1 that it can lawfully depart from, or even materially extend or alter, the objects for the promotion of which it professed in its Constitution to be brought into existence, and at the same time can carry with it the property it has acquired in reliance upon its objects, as so originally defined ; and the appellants submit, it is equally impossible to predicate this of a religious association. For the law regulating such a body, it is well settled, is just the law governing any voluntary association in regard to its pro perty.2 Such an association owes its whole status to the recognition accorded it by the law which recognises it as associated and incorporated and capable of possessing property only within the scope of the Constitution under which it is associated.3 If it seeks to escape from this, then any of its members are entitled to object and to vindicate the property for the purposes for which it was truly devoted. The appellants respectfully adopt the reasoning of Lord Trayner as a sound exposition of the law on this matter when he says : ' The Free Church of Scotland as con- ' stituted in 1843 was simply a voluntary ' association, and it is the law applicable ' to the rights of members of such associa- ' tions which must be applied here. Now ' I take it to be clear that if certain ' members of a voluntary association (and ' that whether they form a majority or ' minority in number) depart from the ' essential and fundamental principles of ' the association, and violate the terms and ' principles of its Constitution, they thereby ' cease to be members of the association, ' and forfeit right to any benefit they had ' as members in the funds or property ' held in trust therefor. The remanent ' members form the association and retain ' all its rights.' If this view of the law be sound, and if the appellants be correct in maintaining that doctrines or principles fundamental, essential, or distinctive of the Free Church 1 Ba,nkton Inst., ii. 592 ; cf. Ashbury Ry. Co. v. Riche (1875), L. R. 7 E. and W., App. 653. 8 Cf. Att. -Gen. v. Pearson, and other cases, supra. 3 Forbes v. Eden, 5 M. (Court of Session Reports, 3rd Series), H. L. 36. as originally constituted have been de parted from by those members who have entered into the incorporating union with the United Presbyterian Church, as the United Free Church, it would follow that the appellants are entitled to succeed in the action unless there is to be found in the Constitution (and therefore presumed to be in view of all donors of property to the association) a power to make altera tions sufficiently wide to give sanction to the alterations or departures alleged. This the respondents maintain, and the judges in the Court below are agreed in holding, although on very different grounds, is to be found in the Constitution of the Free Church. The respondents indeed went so far as to maintain the position that it was in herent in the very idea of a Presbyterian Church that it should have an absolute power of from time to time adopting any views of truth which it might think proper, and of rejecting views of truth, however firmly theretofore professed by it, which it might come to think were inconsistent with the real truth — in short, that the doctrine of the Church is just what the Church, for the time being, may declare it to be.1 Whatever force there may be in this proposition, as applied to a Church as an abstract conception, the appellants submit that it cannot be entertained by a Court which has to deal with the Church merely as a definite association possessed of and responsible for using property gifted or bequeathed to it. The respondents did not profess to cite even a single case supporting recognition of the legal status, as a holder of property, of a body associated merely 'for whatever purposes it might ' from time to time think right.' None of the judges have accepted the argument of the respondents as sound to this extent ; and the Lord Ordinary expressly nega tives it. Lord Young does, no doubt, in the pas sage already quoted, and upon grounds peculiar to himself, signify that in his opinion any Church, Presbyterian or other, has got an utter license of change. The appellants have already indicated their contentions in regard to his view. They would only add that it is quite inconsistent 1 See Lord Ordinary's opinion. APPELLANTS' CASE with the law as laid down both in the Court of Session and in your Lordships' House in the case of Forbes v. Eden.1 The Lord Ordinary, however, and the Lord Justice Clerk and Lord Trayner have approved, though in different degrees, of the respondents' argument — that, apart from any such power inherent in the nature of the Church, there are to be found within the Constitution of the Church provisions which imply a certain power of alteration sufficient to meet the present case. These provisions are professed to be found in the adoption by the Free Church of the whole subsisting Constitution and Standards of the Church of Scotland as theretofore understood (including by inference among these an Act known as the Barrier Act of 8th January 1697, which is printed on page 15 of Appendix A). The judges who found upon this Act, it is to be observed, are not quite at one as to the extent to which it sanctions alteration. The Lord Ordinary suggests that the scope of the Assembly's powers is that 'of declaring ' and enacting . . . the sense in which ' the Church interpreted particular passages ' in the Confession of Faith ' ; but it does not stretch to doctrines so essential that without them the Church would cease to exist — as examples of which he cites re pudiation of the Confession of Faith, or adoption of Episcopacy. It may be sug gested, in passing, that if the doctrines contended for by the appellants are essential in the sense contended by them, and are parts of the Confession of Faith — upon which as matters of fact the Lord Ordinary is against them — it would rather appear that his Lordship's view of the Barrier Act would not carry him the length of holding that they could be competently altered. For, if the Church cannot abandon the Confession as its standard, surely neither can it reject its doctrines one by one as seems good to it. The Lord Justice Clerk (quite apart from the view which he takes that the alterations complained of are non-essential) would seem to allow, as authorised by the Barrier Act, alteration of anything short of doctrines which go to the foundation of Christianity, such as would require the Church ' to become anti- 1 4 M. (Court of Session Reports, 3rd series, 143; 5M. (H. L.), 36. IOI ' Christian ' ; while Lord Trayner is not prepared to say ' that even these extreme ' cases ' (repudiation of the divinity of Christ or of Presbyterianism) ' would not ' have been covered by the wide terms of ' the Barrier Act.' It seems to follow, therefore, that even had these judges taken the view contended for by the appellants, as to the departures alleged by the appellants being from doc trine or principle distinctive or essential to the identity of the Free Church, as a particular dissenting Presbyterian Church, they would still be against the appellants, and hold that they had failed in their case. It is accordingly necessary to ex amine carefully the foundations upon which the alleged provisions for alteration in the Constitution of 1843 is supposed to rest. At the outset of this examination it is proper to observe that there is certainly not that clear enunciation in the consti tuting documents, which we should expect, of the provisions upon which so momentous a power of alteration is supposed to hinge. The Barrier Act is not once directly alluded to in these documents, and it is surely straining after argument favourable to the respondents to regard what in the Church of Scotland was merely a canon of pro cedure, as incorporated by a reference to the Standards and Constitution of the Church of Scotland. For its adoption entirely depends on the words in the Protest of 1843, 'maintaining with us the ' Confession of Faith and Standards of the ' Church of Scotland as heretofore under- ' stood ' ; and in the Deed of Demission, ' and that they are and shall be free to ' exercise government and discipline in ' their several judicatories separate from ' the Establishment, accordmg to God's ' Word and the constitution of the Church ' of Scotland as heretofore understood.' These two documents are those which the Assembly enjoined the several Presbyteries of the newly formed Church to record ' at ' the beginning of their Presbytery books ' as the ground and warrant of their pro- ' ceedings.' It will be noticed that not only is there no direct allusion to the Barrier Act, but there is no reference to the exercise of any ' legislative ' power, the expression applied to the Courts being 102 'judicatories,' and the functions claimed being those of government and discipline, 'not legislation.' The appellants are un aware of any provision of law which con fers legislative powers upon any voluntary association even as to its own affairs, except within sharply-defined limits laid down in its Constitution. As a matter of fact, the Barrier Act was not in use in the Free Church in its earliest years. It was only after some years that attention was drawn to it and its provisions directed to be observed, and that not in connection with any proposal to alter ' doctrine, discipline ' or government ' in the extensive sense which was in view of the judges, but in connection with the ordinary work of the General Assembly. It is first formally referred to in the Standing Orders of 1851, J and then merely incidentally as part of a procedure regulation. In the early years of the history of the Free Church, Acts of vital importance were in use to be passed without compliance with its requirements, including Act xviii. of 1844 as to the Titles to Church Property (which was the warrant so far as there was any, for the framing of the Model Trust - Deed, upon the constitutional sig nificance of which the respondents — as appears in the sequel — greatly rely), the Act of 1853, placing the Sustentation Fund on a permanent basis ; and the Acts of Union of 1852, receiving the Original Seceders into the Church.2 In 1844, in regard to the matter of the framing of the titles to Church property, Mr. Begg urged on the Assembly that their pro ceedings should be in conformity with the Barrier Act ; but apparently no heed was paid to his advice. So late as 5th October 1858, two overtures were unanimously passed by the Presbytery of Edinburgh urging on the Assembly the necessity of securing that proposed Acts of Assembly should be previously submitted to the presbyteries.3 These facts show an ignor ance and neglect of the Barrier Act in 1 Free Church Acts, 1851. Proceedings, 1851, p. 332. 2 Proceedings of Edinburgh Presbytery, 3rd January 1844 ; Proceedings of Assembly, 18th May 1844 ; Life of Dr. Begg, by Dr. Smith, vol. ii. p. 34. 3 Proceedings of Edinburgh Presbytery, 5th October 1853 ; Dr. Begg's Life, vol. ii. p. 203. HOUSE OF LORDS the early history of the Free Church, which is scarcely consistent with the position accorded to it by the judges, as at once the strongest evidence of, and the only restraint upon, the power of the General Assembly to make the most vital changes in the Constitution of the Church. Further, the machinery of the Act is not such as accords with any such conception of its function. A simple majority of presbyteries satisfies its requirements. But presbyteries are so constituted that it is possible for a very considerable majority of these only to represent a small minority of congregations, the Presbytery varying in size from 5 to 104 charges; a com bination of 45 out of the 75 Presbyteries of the Church was possible which should only contain 396 out of 1072 or thereby charges. It is impossible that an Act which would allow measures to be passed on the approval of a bare majority so constituted, was designed to confer a power to legislate even on the cardinal doctrines of the Church. It is noteworthy that in the authorised Manual of the Practice of the Free Church of Scotland, Sir Henry Moncreiff, in treating of the Barrier Act as affecting the procedure in General Assembly, thus speaks of the Assembly's powers x : — ' Still it is held that as Christ ' requires good order to be maintained in ' His Church, it is needful for the Assembly ' to act legislatively as well as judicially.' This the appellants submit accurately de scribes the legislative power, such as it is, which is vested iu the General Assembly — a power merely to make regulations affecting the maintaining of order, but not extending to alteration of doctrines or principles. The appellants submit that in these circumstances it is impossible to treat an ancient Procedure Act of the Church of Scotland, apparently not closely re garded even within its proper limits by the earliest General Assemblies of the Free Church, as so incorporated in the constituting documents as to notify those who became members of the new Church, or gave of their wealth towards it, that the association which they were joining or supporting was formed upon terms 1 Free Church Practice (Sir H. Moncreiff), 5th edition, Edinburgh, 1898, p. 95. APPELLANTS' CASE 103 which entitled it at any moment to depart from those very principles and doctrines, on the faith of its profession of which their support was solicited. Even supposing, however, that the Barrier Act1 had been specifically men tioned, it does not, when examined, involve anything like the powers of alteration attributed to it by the judges, The Act was in no sense an Act con ferring power of alteration , it was merely a procedure regulation, limiting the As sembly in the exercise of such powers as it already had as a General Assembly, which was passed probably to protect the interests of the smaller and more remote presbyteries from being overridden by the larger presbyteries subject to Court or metropolitan influence. It was, moreover, for long periods in practical desuetude. The so-called 'Barrier Act' of the Church of Scotland was passed on 8th January 1697, and bears to be an Act ' anent the method of passing Acts of ' Assembly of general concern to the ' Church, and for preventing of innova- ' tions.' As will be seen from its terms it proceeds upon the considerations, inter alia, ' that it will mightUy conduce to the ' exact obedience of Acts of Assembly ; ' that General Assemblies be very de- ' liberate in making of the same, and ' that the whole Church has a previous ' knowledge thereof and their opinion be ' had therein, and for preventing any ' sudden alteration or innovation, or other ' prejudice to the Church in either doctrine '- or worship or discipline or government ' thereof now happily established, etc' The Act thus does not even profess to be an enabling one, but it is in aim and language one for restricting the General Assembly from suddenly passing Acts within the assumed scope of its com petence which might contain alterations in doctrine, discipline or worship, and which might therefore not be ' exactly ' obeyed.2 This only throws the question back to what were Acts within the competence of the General Assembly prior to the Barrier Act. The powers of the Assembly, apart 1 Cf. Milligan v. Mitchell, 1833-1837, 1 Myl. & K. 446 ; 1 Myl. & Cr. 454 ; 3 Myl. and Cr. 272 ; Att.-Gen. v. Pearson, supra. 2 Pardovan's Collections, B. i. Tit. xv. from Statute, depended upon the mandate of its members. Now the commission to members, founded on immemorial usage, expresses their mandate in these terms : x — ' Willing them to repair thereto and to ' attend all diets of the same, and there to ' consult, vote, and determine in all ' matters that come before them to the ' glory of God and the good of the ' Church, according to the Word of God, ' the Confession of Faith, and agreeably to ' the Constitution of the Church as they ' shall be answerable ; and that they re- ' port their diligence therein on their ' return therefrom.' The Commission in this form is not only founded on im memorial usage, but rests on express enactment of Assembly anterior to the Barrier Act.2 Now, clearly, an assembly of members so commissioned could not make innovations upon either the Con fession of Faith or the Constitution of the Church ; it needed no Barrier Act to prevent this; and the Act, being of a limiting character, must obviously either have been intended to place a check, for reasons such as are indicated above, upon minor innovations, or to secure, so far as possible, that innovations should not creep in, which, being ultra vires of the As sembly, tended to bring its Acts into dis repute. It may be noted in passing that the commission of members of the Free Church Assembly is, mutatis mutandis, in the same form as that quoted.3 It is a matter of decision, that in the Established Church the General Assembly had not power to legislate contrary to the Confes sion of Faith and the Constitution of the Church, and it is not correct to say, as Lord Trayner does, that this was because 1 Cook's Church Styles, p. 230 ; Innes' Law of Creeds in Scotland, 1st edition, 199, 200. 2 Pardovan's Collections, B. i. Tit. xv. c. 11. Act of Ass., viii. of 1695 ; cf. also Acts vi. of 1704, iv. of 1768, and x. of 1783. 3 Moncreiffs Practice of the Free Church, 3rd edition, 272. Bankton, ii. 572 ; Pardovan's Collections, 1709 (approved by Gen. Ass. 1709) ; B. i. Tit. xv. c. 32 ; 1st Auchterarder Case, Robertson's Rep., vol. ii., 188, per Lord Meadowbank ; 125 and 130 per Lord Gillies ; Kinnoul v. Ferguson (1841), 3 D. 778, per Lord Cunningham ; Cruick- shank v. Gordon, 10 Mar. 43, 5 D. 909, per Lord Medwyn, 938 ; Lord Cunningham, 917, 919, 920 ; Presbytery of Strathbogie (1840), 2 D. 605 and 606, per Lord-President Hope. HOUSE 104 'the State was no party to the Barrier ' Act, and therefore the exercise of any ' power under it by the Established ' Church would be liable to be called in ' question by the State.' For the Act was, as has been shown, not an extension but a limitation of the powers of Assembly, which depended upon the previously ex isting Constitution of the Church. Now, the Church as established in 1690 was the Church as it then stood, possessed of all the powers which the respondents can draw from the older Scots Acts and from its earlier Confessions and history. The appellants know of no claim on the part of the Church to innovate or alter, made between 1690 and 1697, going beyond what was founded on the Constitution of the Church as accepted by the State in 1690; and accordingly the proposition would be more correctly stated that, in the Church of Scotland itself, the limita tions on the powers of the Assembly con tained in the Barrier Act were not binding on the State, because it was no party to it, than in the form quoted by Lord Trayner. The same considerations affect the earlier members of the series, of which the Act 1697 is but the consum mation, the Acts of 1639 and 1641, which were 'revived' in 1695 (Acts of Assembly, 1695), subject to this comment that they, as being existing Acts at the time of the Establishment of 1690, were not open to the exception that the State was not a party to them, and therefore had it been possible to infer legislative power to alter doctrine contrary to the Confession from them, the argument must have been as strong to the Established as it can be to the Free Church. That the Barrier Acts were not, in the Church of Scotland, designed for checking innovations on material points of doctrine, — the legality of which on compliance with their provi sions they inferentially recognise, — ap pears obvious from the subsequent history of the Acts, and particularly that of 1697. By 1752 returns under the Aet had fallen into such slight observance that the General Assembly had to take cognisance of the matter. By an Act passed in that year, remitted to the presbyteries in the following year, and finally permanently en acted in 1758, 'The General Assembly, OF LORDS ' considering that a great many presby- ' teries neglect to send up their opinions ' concerning overtures submitted to them, ' whereby the consideration and enacting ' of several overtures has been postponed, ' do hereby enact that when any overture ' has been twice transmitted, the General ' Assembly, without further transmission, ' take them into consideration and pass ' them into Acts or reject them as they ' shall see cause, although presbyteries ' shall not send up their opinions.' The necessity for such action is not consistent with the view of the Barrier Act as the great safeguard of the Church against radical constitutional changes. Steuart of Pardovan, in his Collections and Observa tions concerning the Worship, Doctrine, and Discipline of the Church of Scotland, a work published at Edinburgh in 1709, and in the same year recommended by the General Assembly to be purchased by presbyteries and synods, in treating (B. i. Tit. xv. sec. 25) of the powers of the General Assembly, says that it may make . . . 'Acts and Constitutions for all the ' churches ' (i.e. particular churches) ' with ' common consent, conform to the 9th Act 'of Assembly of 1697'; but he denies legislative power to the Assembly (B. i. Tit. xv. sec. 32). When the Barrier Act came to be acted upon by the Free Church as a rule of procedure, it was so acted upon by a Church, the powers of whose General Assemblies had already been defined by the usage of issuing commissions in the form above indicated, enacted by Acts of the Church of Scotland, which were much more clearly of a constitutional character than was the Barrier Act. Before passing from the Barrier Act it is right to point out that the appellants do not admit that the procedure prior to the Union satisfied even the formal require ments of the Act. The earliest member of the series, of which the Barrier Act is merely one, requires reference to kirks, while the Act of 1697 itself declares the purpose of the remit to Presbyteries to be ' that the whole Church may have a ' previous knowledge.' The appellants submit that the spirit of the Acts requires that the report by presbyteries should be after ascertainment on the lines of the APPELLANTS' earlier Act of the sense of the whole Church ; l and they aver that no proper steps were taken for this, the reports of presbyteries being in many cases merely a statement of the views of their members, without any serious attempt to ascertain the views of the component congregations, which it even indeed maintained that it would be unconstitutional to require. These considerations, the appellants submit, negative the view that in the Constitution of the Free Church there was any provision made for, or notice given to pious donors of, a power to alter doctrine, discipline, or worship, contrary to the Confession of Faith or the express terms of the constituting documents ; and they submit that the Courts should not be zealous to discover such a power as implied in words which would not suggest it to those to whom the newly formed Church appealed for countenance and support. It can hardly be maintained that if the Free Church had boldly gone to the world, claiming the power to adopt at any time ', the very principles against which its existence was said to be a protest, it would have got the property or any substantial part of it which is the subject matter of this action. The appellants refer to the case of Forbes v. Eden,2 as showing that in a question as to property given for the uses CASE 105 of the Church, even a power to alter, stated in express terms, may not entitle the Church to make alterations on funda mental points, or those which are dis tinctive of it. 1 Record, Condescendence 22. 2 (8th December 1865), 4 M. 143 ; per Lord Justice Clerk Inglis at pp. 156, 157 ; 5 M. (H. L.), 36. Before leaving this aspect of the case the appellants call attention to the terms of the first declaration, adopted as part of the Act of Union, as materially altering the Constitution of the Free Church by recognising in the new Church a power of alteration going far beyond anything which the Free Church could maintain on the widest interpretation of its Constitu tion. It is believed that there is no instance which has come before the Courts, at least in this country, of a contractual provision for so broad a claim to 'legislative' power to a voluntary Church. The appellants accordingly submit that they have established, even were the onus on them, that the defenders, in entering into union with the United Presbyterian Church, bave departed from fundamental and distinctive principles, and that they have done so contrary to, or at least without sanction from, the Constitution of the Church, and that accordingly the Court may properly interfere to prevent the uses of property being retained by a majority, which does not even keep the name, ' while it has abandoned the prin- ' ciples of the Church to which the pro- ' perty was devoted.' J 1 Compare per Lord Barcaple in Forbes v. Eden, supra; 5 M. 113 at 154. III. — Right of Minority to refuse to Unite is Absolute. It appears to the appellants, however, that the circumstances under which the question arises in the present instance are such as relieve them from any such onus. For the departure from principle alleged is incidental to, and cannot be isolated from, the formation by the majority of an in corporating Union with the United Presbyterian Church. Now, it is common ground between the parties that the Free Church and the United Presbyterian Church existed independently for over fifty years, and claimed the support of the Scottish dissenting public as distinct entities ; and that such separate existence was so maintained despite the endeavours of parties in both Churches to unite them. These endeavours proved futile, just because it was strongly held that the principles and objects of the two Churches were not identical. Now, the mere fact of the long- continued separate existence of the two bodies in such circumstances raises a strong presumption adverse to their identity in all essentials ; for it does not seem in fact to have been a matter of indifference to pious dissenters, to which they should give their support. Can it then be said that, when it is proposed to sink the separate individuality of the Free io6 Church in a new composite body, those objecting to this are bound to show affirma tively that the new body is, in its prin ciples and practice, essentially different from the old ? They humbly submit that they are not. They became members of a body with a known Constitution, under certain Ecclesiastical Courts whose powers were known to and accepted by them as part of their contract ; and on the faith of the body which they joined, not merely professing but zealously promoting the principles which they knew, and of which they approved. They are now asked, under penalty of the loss of all control of the property vested in the Free Church, to become parties to merging that Church in a common union with another, with whose principles and objects they are not bound to have the same thorough acquaint ance ; and to subject themselves to the control of courts of a new ecclesiastical body, largely composed of parties by whom they have never come under any contract, either that they should be governed or the funds devoted for the use of the Church should be administered. Where the departure alleged is of this nature the appellants submit that their right is simply to object, and that they are not called upon to prove specific change. The parties seeking to force such union upon them can, it is submitted, only succeed (if at all) by demonstrating that the union will make no difference either in doctrine or in practice upon the status quo. It is idle to say that the individual existence of the old Church is not extinguished, but that the Free Church and the United Presbyterian Church con tinue to exist side by side in the new Church. This is not so, even quoad civilia (as in the case of the Free Church and Reformed Presbyterians) ; what has taken place is an incorporating union, the existence of both being extinguished and a new association formed. Nor is it any nearer the mark to maintain that no change has been made, because the members of each Church are left free to maintain all the views that they could in their former individual Churches. As pointed out by Lord Wood, in de livering the judgment of the Court in the case of Couper v. Burn, this provision HOUSE OF LORDS can have no operation except in reference to the existing members, as all joining subsequently accept the Standards of the new Church ; and even as regards present members, ' the reserved privilege can only ' be exercised subject to the discipline of ' the Church of which they are now recog- ' nised members.' 1 But even allowing the reservation every effect, it is obviously one thing to give practical effect to views in a Church all of whose members profess them, and quite another to do so in a Church, a great proportion of whose members are equally free to profess and maintain antagonistic principles. In this view it is not unimportant to observe that the present union is with a Church whose members are sufficiently numerous in pro portion to those of the Free Church to make them a most potent factor practically. Of what slender importance the reserva tion is in practice, as a means of conserving the principles which members are nomin ally at liberty to hold, a striking illustra tion is found in the proceedings already cited of the United Free Church Assem blies of 1901 and 1902 in regard to the relations of Church and State. The appellants submit that in this aspect of the case the law as laid down in the cases of Craigie v. Marshall 2 and Couper v. Burn,3 in regard to Church fabrics where a majority and minority of a congregation respectively refused to follow the majority of the Supreme General Synod into a union, is equally applicable to the case of funds and estate devoted to the use of a denomination. In the case of Craigie, Lord Justice-Clerk Hope said : ' I am very clearly of opinion, that whether ' in other respects united to ecclesiastical ' superiors, and whatever might be the ' effect of separation, if not arising out of ' such proposed Union, any congregation ' in the circumstances of this one is en- ' titled to refuse to submit themselves to any ' such changed government, or to concur in ' any such Union. This is in my opinion ' the leading and most fundamental prin- ' ciple of all such associations as that of a ' congregation placing itself in connection ' with and under the superintendence of ' ecclesiastical superiors such as a synod or 1 xxii. D. 143. 8 xxii. D. 120. '¦ xii. D. 523. APPELLANTS' CASE 107 ' presbytery of a body already formed — ' known as composed of certain classes ' called by a certain name, and among ' whom certain standards, and perhaps ' still more certain great fathers and lights ' of the truth, and only these are revered, ' appealed to, and looked upon as authori- ' tative and conclusive.1 . . . It seems to ' me utterly repugnant to every notion of ' such a sect to suppose tliat their congre- ' gations can be compelled to unite with • any other church or sect whatever.2 . . . ' Be the general objections in the opinion ' of others valid or fanciful, it is a change ' to which no congregation is bound to ' submit. For separation then, ivhen such ' Union is to be entered into, no reasons in ' my opinion need be assigned. The right ' to refuse is absolute ; and the notion that ' the majority is to forfeit their property is ' in my judgment perfectly extravagant, ' and without the slightest support from ' any evidence that such is a condition of ' the Trust. Indeed, I did not hear it ' maintained that obligation to unite with ' other sects was an original condition ' of this Trust held for a congregation 'of Seceders.'3 This view was approved of and elaborated by Lord Moncreiff, than whom no judge is entitled to claim greater authority upon Scottish ecclesiastical ques tions. Even Lord Cockburn, although dissenting upon the result, seems to indi cate that had this question been properly raised, he would have concurred in the view of the other judges.4 In the Thurso Case in 1859, the same question was raised at the instance of a minority of a congregation and of the General Synod who refused to follow the majority of the congregation and Synod into a Union with the Free Church, which the Lord Ordinary held did not involve any departure in principle or doctrine. In the Inner House the judgment of the Court was delivered by Lord Wood, and the doctrine of Craigie v. Marshall 5 was in the most exphcit terms affirmed. Lord Wood said : ' A ' resolution to form a Union with a separ- ' ate body is not an act of management ' properly falling to be regulated by the * voice of the majority of the congregation. 1 Page 547. a Page 548. 4 Couper v. Burn, supra. 3 Pp. 557, etc. 6 xxii. D. p. 148, etc. . . . On the contrary the principle takes the case out of the class to b,e ruled by the voice of the majority . , , the like circumstances which are of sufficient potency to entitle an adhering and resisting majority to refuse to join a minority in a union with another religi ous body without its being necessary to establish that the minority by the Union ivould be departing from original prin ciples must also be available to an adher ing and resisting minority.1 . . . The material thing is the adherence, ivhether by a majority or minority, to the Church as originally constituted and the refusal to give up the name of the body and its Testimonies as those of a separate and distinct ¦ sect — having characteristic features of its own, and formed for the purpose of independently prosecuting with earnestness certain views, in a par ticular manner, held to be of paramount importance, while by a union they would be absorbed into a different ecclesiastical body not acknowledging their Testimonies, but having Testimonies of their own, and influenced and actuated by their impres sions or convictions of what is_ necessary to be defended, promoted, or condemned in prosecuting the cause of religion. We therefore hold that the principles recog nised in Craigie v. Marshall are sound in themselves, and when duly followed out legitimately lead to the same result where it is a minority of the congregation that refuse to unite, and thereby sink their distinctive name and Testimonies and very existence in a separate sect, which was arrived at where it was the majority that did so.'2 It humbly appears to the appellants that mutatis mutandis these statements of the law may be at least as forcibly applied when a party, majority or minority, seek to carry away property devoted, not to a congregation, but to a known and described denomina tion itself, into a union which, be it other wise laudable or the reverse, extinguishes the existence of the denomination as a separate sect. 1 Page 149. 2 Cf. Att. -Gen. v. Drummond, supra ; Hewley's Charities, supra; Att. -Gen. v. Anderson, 1888 lvii. L. J. Ch. 543. io8 HOUSE OF LORDS TV.— Model Trust Deed. But the respondents profess to find (not indeed in any of the constituting docu ments themselves, but in a deed which has been extensively used as a form for the title-deeds of the Church fabrics be longing to congregations, and which was prepared for this purpose under a remit from the Assembly of 1844) such indica tions that union was within the contem plation of the founders of the Church as to displace any objections to the union in question in this case. This document is fully printed in an Appendix (A, page 56), and is commonly known as the 'Model ' Trust Deed.' The portion of it upon which the respondents rest is the clause quoted by the Lord Ordinary in his opinion and the expression, ' such body or ' united body of Christians,' which recurs from time to time throughout the deed. It is said that these expressions show that union with other Churches was by the framers of the deed contemplated as a leading object of the Church ab initio, or at least so early as 1844; and it is accord ingly argued that, this being so, a party objecting to any union must show that it is objectionable on some other ground than merely because it involves sacrifice of the separate existence of the Church. The first answer to this proposition is that, even were it the case that these ex pressions were intended as a declaration of policy, they were never, so far as ap pears, authorised by the Assembly. The matter of preparation of a Model Trust- Deed, under the terms of which Church fabrics should be held, came before the Free Assembly on 27th May 1844, when the Assembly remitted to the Law Com mittee to prepare a deed in conformity with the principles of a report submitted to a Commission of the Assembly. The terms of the report of committee are recapitulated in Act XVIII. of 1844, and from these it appears that the sanction of the Assembly was given only to a scheme whereby the property of each place of worship should be 'vested in Trustees ' chosen by the congregation, to be held ' for the congregation, in communion with ' the Free Church as attested to be so by ' the Moderator and Clerk of the General ' Assembly.' Act XVIII. contains no reference to ' any united body of Chris- ' tians,' such reference only appears in the deed itself, and apparently without authority, for the subsequent proceedings show that the deed was prepared by the Law Committee and reported only to the Commission of Assembly. It was not reported to the Assembly, and it had no place among the records of that Court until 1851, when it was for the first time printed in an appendix to the Acts of that year1 — a publication not in wide circulation and not famihar to the general body of members of the Church, or even its office-bearers. Now, neither the Law Committee nor the Commission of Assembly is a body having any power beyond what is contained in its mandate from the Assembly. The Commission of Assembly, whUe nominally consisting of all the mem bers of Assembly is practically an Exec utive Committee of Assembly, available throughout the year for the ad interim treatment of questions affecting the in terests of the Church. Its authority in regard to any particular matter depends upon the precise remit to it. The general scope of its authority is determined by the annual Commission which is passed as an Act of Assembly, and it is straightly for bidden to go beyond its limits. Further, the attendance at these meetings, at which thirty is a quorum, is generally composed of members resident in the neighbourhood of Glasgow and Edinburgh, and accord ingly, even were its powers greater than they in fact are, neither in numbers nor in representative character can its meetings pretend to anything of the weight which attaches to those of the General Assembly. It is difficult therefore to understand how a document of such character, so prepared and so approved, still less how a phrase to be found embedded in it, can be regarded as so profoundly affecting the Constitution of the Church and the principle on which it was already founded. The Model Deed, moreover, never was sent down under the Barrier Act ; therefore if that Act was part of the Constitution of the Church (as the 1 Taylor Innes, Law of Creeds in Scotland, 1st edition, p. 427. APPELLANTS' CASE 109 respondents maintain), the deed can have no constitutional importance. But a still more conclusive answer to the respondents' argument, based upon the terms of the Model Trust-Deed, is the nature of the deed in which the expressions are used and the context in which they stand. They occur in the operative part of a deed whose practical object is not to lay down constitutional provisions or de clarations of the policy of the Church, but to provide such terms for the feudal hold ing of property as to the conveyancing experts of the Church seemed proper. Now, in 1844, when the deed was framed, the hope had not been abandoned that it might become possible for the Free Church to return to the mother Church ; and further, there were in existence certain bodies of seceders, for the most part small, who had left the State Church maintaining views practically identical with those main tained by the Free Church, and who (as opposed to the larger ' voluntary ' deno minations) were in hearty accord with that Church as to the nation's duty in regard to religion. And there was every expectation that these bodies — which had been kept apart from the Evangelical party in the Church of Scotland, largely because of those very incidents of the existing State connection against which the Free Church was a protest — would merge them selves in the Free Church. Accordingly it was natural and proper for conveyancers, seeking to frame the title of the Church fabrics so as to provide for the feudal transmission of the property in all prob able or even possible contingencies, to insert a clause covering the case of such possible union. The very form of expres sion used, 'or of any united body of ' Christians ' composed of them, and of such other body ' or bodies of Christians ' as the said Free Church of Scotland may ' at any time hereafter associate with them- ' selves,' are peculiarly apposite to describe a union with the smaller seceding bodies referred to. They do not seem equally apposite to describe an incorporating union between the Free Church and an alien body of approximately equal strength. At all events, the appellants submit, quite sufficient explanation of the words is to be found by regarding them as a conveyancing precaution intended to provide for the case merely of any union in itself lawful, with out straining them into a constitutional provision that any union whatever should be prima facie laioful. It is noteworthy that the carefully devised Widows' and Orphans' Scheme of the Free Church, pre pared by a committee working practically contemporaneously with the Model Trust- Deed Committee, dealing with an impor tant general scheme of the Church em bodied in Act III. of Assembly of 1846, and in the private Act 14 & 15 Vict. cap. 78 (1851), used no expressions which point to the framers of the Act or the Assembly having had the possibility of future unions in view as an object of the Church which required to be provided for. The fund is for the benefit of widows and orphans of ministers, etc., of the Free Church only, and cannot be diverted from them to those of the newly created United Free Church. That indiscriminate union was not con sistent with the principles or a part of the policy of the Free Church is strongly in dicated by the fact that, at a time when the voluntary seceding bodies were tending towards union, and when it would have been peculiarly easy and appropriate, had no question of principle been involved, for all these to have coalesced with the Free Church,1 that Church afforded no counten ance to incorporating union ; and indeed, even on the matter of mutual eligibility of ministers, drew a distinct line between churches which did and which did not accept the views of the Free Church. But the position which Christian union occupied as an object to be aimed at, in the view of the framers of the Free Church Constitution, is fortunately not left to in ference from the actings of the Assembly in cognate matters or from the words of conveyancing style of a title-deed prepared by a law committee. There is extant a deliberate deliverance of the Assembly of 1846, which shows that while it was an object of the Church to strive after Christian union, any particular method of attaining that object was subordinate to the duty of maintaining the special testimony of the Church. In 1845-1846 the movement which culminated in the formation of the United Presbyterian no Church was attracting attention to the desirability of the closer union of the Presbyterian dissenting bodies, and the Free Church had shown its general sym pathy with the cause by the appointment of a Committee on Christian Union, which made a report to the General Assembly of 1846.1 After a lengthy debate the Assembly, ' having considered the over- ' tures anent Christian union, together ' with the report of the committee on that ' subject, inasmuch as it appears . . . that ' no progress has been made by the com- ' mittee . . . and inasmuch as it is the ' duty of this Church in its corporate ' capacity constantly to aim at that object, ' resolve to reappoint, as they do hereby ' reappoint, the committee for that end, ' with instructions in seeking it to keep ever ' in view the maintaining of the testimony ' of this Church inviolate and uncom- ' promised.' So little did the committee regard a union with the United Presby terian Church as consistent with this deliverance that in 1847, the year of the formation of the United Presbyterian Church, the Assembly Records do not seem to preserve any report by it, the next notice of it being in 1848,2 when the convener stated that it had no report to make, ' circumstances not having occurred ' to render any report necessary.' The considered deliverance of the Free General Assembly quoted, shows conclu sively that the Constitution of the Church as interpreted by its framers did not require it to seek, or warrant it in seeking, 1 Acts and Proceedings, 1846, p. 52. 2 Proceedings, p. 53. HOUSE OF LORDS any union except such as ' maintained the ' testimony of this Church unimpaired and ' inviolate.' This seems to leave the matter very much where the appellants contend it rests at common law,1 viz., with an onus on those proposing a union with a Church, whose testimony has hitherto been dif ferent, to show that in the Union the testimony of the Free Church is main tained unimpaired and inviolate.2 It is to be observed that the expressions used in the Model Trust-Deed, suggestive of the possibility of union having been contemplated, stand quite apart from the special provision in the 9th clause of the deed for the particular case of a difference of clerical interpretation of ' the principles ' of the Disruption.' To read this clause as intended to apply to the case of union would be to allow of a body of one-third of the ministers of the Church (irrespec tive of the consent of a single lay repre sentative) who desired to unite with any other Church, raising the question in the manner there indicated so far as congre gational fabrics are concerned. For the views of the appellants upon this clause, reference is respectfully made to the pleadings in the Appeal Macalister and Others against Young and Others, pre sented to your Lordships' House of even date with this case. In any view, the Model Trust-Deed does not directly affect the property dealt with under the present Appeal. 1 Lord Trayner's opinion. 2 Cf. Att.-Gen. v. Aust. (1865), 13 L. T. 235. V. — Alternative Conclusions of the Appellants' Summons. Although they do not feel that due attention has been given to this contention in the judgments of the Court below — the argument of the appellants is susceptible of being submitted within shorter limits than has been possible in presenting the earlier part of the case to your Lordships. The alternative conclusion seeks in effect to have it declared that the appellants by declining to enter into the union and by electing to maintain themselves associated as heretofore — maintaining the whole Standards, Constitution and principles of the Free Church — have not forfeited all right to the benefits of the properties dealt with in the action, but that they are entitled to the use and enjoyment thereof, subject to the trusts affecting the same, either by themselves or with such of the respondents (formerly members of the Free Church, and now associated with the United Presbyterian Church in the United Free Church) or others having right thereto or interest therein, and in APPELLANTS' CASE such proportions and upon such conditions as may be determined by the Court in course of the process. In the Joint Minute of Admissions the parties make a reservation, in renouncing probation, so as to provide for the proceedings necessary should a determination be arrived at favourable to the appellants under this conclusion. Even were there a dearth of decisions favourable to this view, the appellants would still submit that it is so consistent with sound principle and with equity as to be worthy of adoption by your Lordships' House in the event of their declining to sustain the appellants' main contention. It has been somewhat unfairly said, that the first branch of the appellants' case involves a startling breach of equity, but the appellants would very humbly submit that their success, even in that branch of the case, would not be at all so difficult to reconcile with equity as would the unqualified success of the defenders. For it is unfair to the appel lants' case to represent it as involving the proposition that any minority, however small, objecting to change of doctrine or to union, would have a right to deprive the majority, however large, of the pro perty of the Church. All that it is necessary for the appellants to maintain, is that in the case of a Church, for use in connection with which property has been devoted, if a section, large or small, seek to depart from essential principles or to extinguish the identity of the Church by union with another, then if there be objectors, who remain a body organised under the recognised forms of the Church, and which claims the right to apply the property of the Church for the purposes to which it was devoted, such organised body, whether in point of numbers a majority or minority, is entitled to vindi cate the property as against those seeking the change. And this is not palpably inequitable. But the unqualified success of the respondents involves nothing less than this — that on returns showing a majority of a single presbytery, any General Assembly, it may be by a majority of a single vote, may make constitutional alterations the most material, or terminate the very existence of a Church as a III separate association. And it is further involved that not only may this be done quoad spiritualia, but that this mere formal majority may compel all opposed to them to follow them under penalty of absolute forfeiture of any right whatever in the patrimony of the Church. A result more inconsistent with equity it would be hard to conceive. The appel lants represent adherents of the Church numbering about 90,000. They have ninety congregations or thereby, and they have remained fully organised according to the models of the Presbyterian Church. They moreover assert that these numbers do not fairly measure the strength of opinion which they represent, because the appropriation of the Church's central organisations and of its property by the respondents has induced many, who would be in sympathy with the appellants, to hold back from actively and openly sup porting them up to the present. It is matter of admission that the appellants represent a sufficient number of ministers, elders, and members of the Free Church to entitle them to try the present question. And they are so organised as to be able efficiently to take their part in carrying out the work of the Church. It is submitted that in these circumstances your Lord ships' House should not, in the absence of the most compelling authority, approve of a decision which would have the effect of entirely depriving of all right to the patrimony of the Free Church so large a body of its members who have not been guilty of any fault except a faithful ad herence to what all the judges in the Court below are agreed were the original views of the Free Church, and which remained such down to the date of the union. The appellants cannot help feeling that the respondents' answer to this, the appel lants' alternative demand, is the strongest confirmation of the soundness of their main contention. In support of the alternative conclusion, the appellants put it that the properties dealt with in the present action may fairly be viewed as an aggregate of trusts, actual or constructive, under which funds have been devoted by various donors to be 112used in connection with the Free Church for various purposes, and that it is legiti mate to have regard to what was the real intention of the trusters, donors, or sub scribers. If this may be looked to, it is not putting a strained construction upon their intention to regard them as devoting the property to be used for certain pur poses ' in connection with ' an organised body formed upon Presbyterian lines, and maintaining and promoting the views which were characteristic of the Free Church. This part of the case can only be reached upon the footing of the respon dents satisfying your Lordships that, even in the United Church, they are maintain ing and promoting the doctrines of the Free Church. The appellants undoubtedly are doing so, for they stand just where the Free Church stood before the departure which has led to the Union.1 Accordingly, it is submitted, alternatively, that the intentions of the donors, or others in the position of trusters, may at least be regarded to the effect of accepting both those represented by the appellants and those who, having formerly belonged to the Free Church, have entered the United Free Church and are now represented by the respondents as so satisfying the description of the Free Church of Scot land as to make it possible for both to participate in the benefit of funds, etc., devoted to the use of this Church, accord ing to their respective powers of giving effect to the promotion of its objects, as this may be ascertained upon enquiry in course of the process. Upon the hypo thesis upon which alone this branch of the case can come to be of practical moment, such a course would be quite consistent with equity, and it is not in consistent with any decisions which are binding authorities. Indeed, there is, in the recent cases of The Ferguson Bequest Fund v. Reformed Presbyterian Church, and The. Ferguson Bequest Fund v. The Congregational Union and Others,2 decided in the Court of Session, a recognition to some extent 1 Per Ld. Trayner. 2 (1879) 6 R. (Ct. of Sess. Rep., 4th Series), 486 ; (1898) 1 Fr. (Ct. of Sess. Rep., 5th Series), 1224. HOUSE OF LORDS of the propriety of such a course of deal ing with property placed under trust for application in connection with a church. To the judgments of Lord Shand in the earlier case and of the Lord President in the later case the appellants respectfully refer, as indicating principles which may very legitimately be extended to the circumstances of the present case. The following passage from Lord Shand's judgment in the earher case seems closely apposite to the appellants' situation in the present case. ' There remains then to consider only the case of the minority. And with regard to them the argument of my friend My. Asher appeals very strongly to my mind. Why should the minority have no share of this fund? What have they done that should deprive them of that? They have adhered precisely to the Standard of Faith which they held when Mr. Ferguson died — precisely to the same form of Church government. They have altered in no respect whatever. Then why should they be disqualified ? They remain quite capable of carrying out the object the truster had in view. Thev appear to me to be just as much in the position of being an agency within the meaning of the settlement for carrying out his intention now as they were when Mr. Ferguson died.'1 Similarly in the later case the Lord President (Robertson) said: 'The next question is a very easy one. Certain of the Con gregational congregations refused to join the new Union, and, although bereft of the alliance of the majority of their brethren, they keep up the old Con gregational Union. I can see no reason whatever for holding that, by staying where they were, those congregations have lost their right under the Ferguson Bequest.'2 It is true that here, no doubt, the point involved merely con cerned the interpretation of a particular trust-deed, but it does not seem that the law applied would have been necessarily different, had there been involved a number of trusts under terms similar to those of Mr. Ferguson's Bequest, or even had the case involved funds which merely 1 6 R. p. 519. 2 l Fr. at p. 1237. APPELLANTS' by implication might be held to have been devoted in such a way as to give rise by construction to the like trust. If, there fore, the view be correct, that the Courts are entitled to deal with such benefactions as in this case are dealt with, as in effect just an aggregate of trusts for use ' in ' connection with a denomination,' it seems to follow that a similar prmciple may be CASE H3 applied to the effect of affirming the alternative conclusion in this case.1 1 Cf. also Craigie v. Marshall, xii. D. 523, per Ld. Moncreiff, at 559 ; Westwood v. Mackie, xxi. L. J. 165; Att.-Gen. v. Bunce, L. R. vi. Eq. 563 ; per Malin's V.C., on ultimate issue of Hewley Charities disputes at p. 572 ; also final Report of Hewley Charities case, sub nomine Att.-Gen. and Wilson, 1848, xvi. Sim. 210. VI. — Expenses. Finally, whatever view may be taken by your Lordships' House of the interlocutors appealed against as a whole, the appellants submit that, in so far as they find the appellants liable in expenses, they should be recalled. This is a case in which the expenses should properly be charged upon the funds involved. The appellants do not sue in respect of personal patrimonial interests in the success of the cause ; their sole object is to secure the application of the funds, etc., of the Free Church to the purpose for which they are lawfully destined, and to prevent the diversion of them from the objects to which for fifty- seven years they had been apphed. It is the action of the respondents which has disturbed the existing conditions, and even if it should be held that on careful examination the Union does not involve 2 See Anderson v. Pitcairn (1839), 1 D. 889 ; 1st Ferguson Bequest Case, vi. R. 486 ; 3rd Ferguson Bequest Case, 1 Fr. 1224. changes which are ultra vires, this was a matter of such difficulty as to make it a proper one to be tried. The difficulty arose from the obscurity hi the Deeds of Constitution of the Free Church (which are the Acts of the common authors of the appellants and respondents), as to what were fundamental and essential principles of that Church, and from the absence of any clear provision for constitu tional alteration or for union with other Churches. This being so, it is submitted that those who are merely supporting the estabhshed usage are entitled to have their expenses out of the funds involved, and in any event ought not to be found liable in the expenses of the other side.2 Upon the whole matter the appellants respectfully submit that the interlocutors appealed against ought to be eevebsed, and judgment given in favour of the appellants for the following among other REASONS. Because the said Union is one which could not lawfully be entered into, to any civil effect, against the dissent of any portion of the members of the Free Church, or its General Assembly, desiring to continue the organised existence of the Free Church as a distinct religious as sociation. Because the proceedings of the respon dents, which terminated in the said Union, involved a departure upon H essential points from the principles and doctrines of the association known as the Free Church of Scot land, as constituted in 1843. 3. Because the United Free Church is an association associated under a Con stitution which does not recognise, accept, and provide for maintaining principles which are fundamental to the Free Church of Scotland. 4. Because the Constitution of the United "4 Free Church contains in gremio provisions for alteration upon the distinctive principles and doctrines of the Church to an extent not contemplated by anything in the Constitution of the Free Church. HOUSE OF LORDS doctrines of the Free Church of Scotland, and are lawfully entitled to participate in the property and funds devoted to that Church. 5. Because the appellants, remaining as sociated under the forms of Presby terianism, maintain unimpaired and inviolate the whole principles and Because the said interlocutors are con trary to law and equity. H. Johnstone. J. Roberton Christie. VI IN THE HOUSE OF LORDS RESPONDENTS' CASE IN GENERAL ASSEMBLY OF THE FREE CHURCH OF SCOTLAND v. OVERTOUN AND OTHERS. History op the Union between the Free Chuech op Scotland and the United Pbesbytebian Church. This case arises out of the Union between the Free Church of Scotland and the United Presbyterian Church, which was effected in Edinburgh in October 1900. These Churches were both Presbyterian Churches in Scotland; neither of them was connected with the State, and they entered into a union, constituting them selves one united church, under the name of the United Free Church of Scot land. In the Free Church, the Union was approved, and an overture (or proposed Act of Assembly) relating thereto was passed into a law of the Church by a majority of 643 against 27 in the General Assembly of the Free Church — the Supreme Court of the Church — on 30th October 1900. In the United Presby terian Church the union was agreed to with absolute unanimity. A small number of ministers (24 or thereby out of 1100 or thereby) and a larger number of laymen (office-bearers and members) who belonged to the Free Church at the time of the Union, most of them resident in the Highlands of Scot land, disapproved of the Union, and refused to enter the United Free Church of Scotland. They are represented by the pursuers and Appellants in this action, who claim that they and those who adhere to them alone represent the Free Church of Scotland, and are alone entitled to the whole funds and property of the Free Church, which were held for behoof of the Church by its General Trustees. Since the Union, their successors, who now hold the funds and property for behoof of the United Church, are the General Trustees of the United Free Church of Scotland. The funds claimed in the action amount to considerably over one million sterling, in addition to a number of heritable properties. An alternative claim is put forward by the pursuers and Appellants to share the said funds and property along with the United Free Church. In other actions the Appellants, or those with whom they are identified, claim right to the churches and manses of the Free Church of Scot land, more than eleven hundred in number. No alternative claim is put forward in these actions. n6 HOUSE OF LORDS A Union upon the Standards op the two Churches : the Standards THE SAME IN BOTH CHURCHES. The Union took place after full and deliberate consideration by both Churches, extending over several years, and the pro cedure adopted was in conformity with the laws and practice of the Churches. Proposals for co-operation or union were first made in 1896, and each Church ap pointed a representative committee to consider the subject. The committees met on various occasions and communi cated to one another the existing doctrines, standards, rules, and methods of the two Churches. It became ap parent to them that, in regard to doctrine, government, discipline, and worship, there was a complete agreement in all essential matters between the two Churches, in particular, in the views of the two Churches with regard to the spirituality and freedom of the Church of Christ, and that an incorporating Union might, with all its obvious advantages, be ac complished without sacrifice of principles. The Union proposed was to be ' on the 'ground of the standards' at present ac cepted by the Churches. The standards were the same in both Churches. The supreme standard of each was the Bible. The chief subordinate standard of each was the Westminster Confession of Faith. The United Presbyterian Church further regarded the Larger and Shorter Cate chisms as standards, but these documents contained the same doctrine and teaching as the Confession of Faith. The com mittees were satisfied that there existed between the Churches harmony in respect to aU their essential doctrines and prin ciples. Accordingly, they found it un necessary to formulate any Articles of Agreement or Basis of Union. The only thing that was thought necessary in order to a Union, on the ground of the standards accepted by the Churches, was a slight adjustment of the questions and formula to be put to office-bearers and signed by them in the United Church. The adjust ments to be proposed were accordingly prepared by the committees. When matters had reached this stage, the Union Committee of the Free Church submitted to the General Assembly of the said Church, which met in May 1898, a joint Report of both committees, setting forth the proposed questions and formula. This Report was approved by the General Assembly, and sent down to aU the Presbyteries of the Church, that they might consider it and send to the com mittees any suggestions which they might think fit. No approval of the committees' proposals was then asked for, but Pres byteries were consulted simply in order that time and opportunity might be given for full and careful consideration of the whole matter by the Church. An entire year, from May 1898 till May 1899, was allotted for this purpose. The Union Committees also considered the arrangements necessary to be made in harmonising the financial and other methods of the two Churches, so far as that was needful, and they prepared de tailed proposals for that purpose. These were also sent down by the General Assembly in May 1898 to Presbyteries for suggestions. The greater number of the Presbyteries of the Free Church ap proved the questions and formula, and the proposed arrangements, above referred to, and suggestions were made by some of them, which were considered by the committees. Thereafter, in May 1899, the Union Committee submitted a report to the General Assembly of the Free Church which met in that month. This report sets forth in detail the plan of union pro posed. The General Assembly approved of the report, and adopted an overture (or proposed Act) anent Union with the United Presbyterian Church, enacting and ordaining that the plan of union set forth in the proposals therein referred to is authorised and accepted by the Church with a view to an incorporative union with the United Presbyterian Church. This overture could not become a law of the Church until it had been sent down to Presbyteries for their opinion in terms RESPONDENTS' of an Act known as the Barrier Act. This last Act, which was adopted by the General Assembly of the Church of Scot land in 1697, proceeds on the preamble that 'The General Assembly taking into ' their consideration the overture and Act ' made in the last Assembly concerning 1 innovations, and having heard the report 1 of the several Commissioners from Pres- 1 byteries to whom the consideration of ' the same was recommended, in order to ' its being more ripely advised and deter- ' mined in this Assembly, and considering ' the frequent practice of former As- ' semblies of this Church, and that it will ' mightily conduce to the exact obedience ' of the Acts of Assemblies, that General ' Assemblies be very deliberate in making ' of the same, and that the whole Church 1 have a previous knowledge thereof, and ' their opinion be had therein, and for ' preventing any sudden alteration or in- ' novation, or other prejudice to the ' Church in either doctrine or worship, ' or discipline, or government thereof, ' now happily established,' and enacts that the General Assembly 'do therefore ' appoint, enact and declare that before ' any General Assembly of this Church ' shall pass any Acts which are to be ' binding rules and constitutions to the ' Church, the same Acts be first proposed ' as overtures to the Assembly, and, being ' by them passed as such, be remitted to ' the consideration of the several Pres- ' byteries of this Church, and their ' opinions and consent reported by their ' Commissioners to the next General ' Assembly following, who may then pass ' the same in Acts if the more general ' opinion of the Church thus had agree ' thereunto.' The Barrier Act recognising the right of the General Assembly to make alterations in the doctrine, worship, discipline, or government of the Church, continued to be part of the con stitution of the Free Church when it separated from the State in 1843. CASE 117 reported to the next General Assembly which met in May 1900. The overture received the approval of 70 Presbyteries, while 4 disapproved. Accordingly the General Assembly of May 1900 passed an Act anent Union with the United Presbyterian Church in terms of the overture referred to. This Act was passed into law by a majority of 593 to 29, and in this way became part of the ' bind- ' ing rules and constitution ' of the Church. Tho same General Assembly of May 1900 then adopted an overture enacting and ordaining that an incorporative union might be affected by the General Assembly in terms of a uniting Act therein set forth. This overture was also trans mitted to Presbyteries for their opinion in terms of the Barrier Act. It received the approval of 71 Presbyteries out of 75 in Scotland (4 disapproving), while 7 out of 8 foreign Presbyteries approved, and 1 expressed no opinion. At the following General Assembly which met in October 1900, the said overture was accordingly passed into an Act or law of the Church by a majority, as stated above, of 643 against 27. Two other Acts were also passed by the General Assembly of October 1900, rendered necessary by the union about to take place. The first declared that the United Free Church of Scotland and its various courts and officials were, and would continue to be, the respective successors in office of the Free Church of Scotland and the like courts and officials of the Free Church. The second appointed the persons therein named to be the general trustees for holding the property of the Free Church from and after 31st October 1900, and to be the successors in office of the then general trustees of the Free Church of Scotland. Accordingly in May 1899 the overture in question was ordered to be transmitted to Presbyteries for their opinion, in terms of the Barrier Act. This procedure occupied another year, and the result was It is unnecessary to detail the other proceedings by which the Union was con summated in Edinburgh in October 1900. The Union is objected to by the pursuers and Appellants, and the said funds and property are claimed by them on several grounds. n8 HOUSE OF LORDS First Ground op Action. The main ground of action is that the United Free Church of Scotland is an association whose constitution does not recognise or provide for maintaining certain principles which are alleged to have been essential and fundamental to the Free Church of Scotland. The Union is said to have merged the identity of the Free Church of Scotland in a new church which does not recognise, and is under no obligation to recognise these so-called essential and fundamental prin ciples. The Union is therefore said to be ultra vires so far as affecting the said funds and property, with the result that the Church, in entering the Union, must enter it stripped of its property, which it is contended now belongs exclusively to the small number, represented by the pursuers and Appellants, who disapproved of the Union and refused to enter the United Free Church of Scotland. Alleged Principles op the Free Church op Scotland. What are those so-called essential and fundamental Free Church principles, and where are they to be found in the con stitution of the Free Church of Scotland 1 The answer to this question given by the pursuers and Appellants is in their Condescendence, articles 10 and 13. It is there said, — ' Condescendence 10. The ' said Free Church of Scotland is a vol- ' untary association or body of Christians ' associated together under a definite ' contract, involving the maintenance of ' definite principles. That contract is ' constituted by the foresaid Claim of ' Right, Declaration and Protest of 1842, ' Protest of 1843, and Act of Separation ' and Deed of Demission of 1843, and ' the Acts of Assembly of the Church ' of Scotland, in so far as not modified ' thereby. The foresaid contemporaneous ' documents, viz. the Act of Assembly ' of 1846, cap. 12, and the Questions and ' Formula thereby sanctioned, and the Act ' of Assembly of 1851, cap. 9, are in ' accord therewith and expository thereof. Said constituting documents recognise as an essential principle of the Free Church the assertion of the duty of the State "to maintain and support " an Establishment of religion in accord- " ance with God's Word," and as an essential standard of her belief, the Westminster Confession.' ' Condescen dence 13. As already stated, one of the essential principles recognised by those who associated themselves to form the Free Church of Scotland, emphasized by their leaders in their utterances at the time of the Disruption, and embodied in the contract of association or con stitution of said Church as hereinbefore defined, is that it is the duty of the Civil Magistrate to maintain and support an Establishment of religion in accordance with God's Word ; and the said Church, as originally associated, recognised and maintained the propriety and advantage of the endowment of pastoral charges and the promotion of religious education by the State.' Alleged Principles op the United Presbyterian Church. With regard to the United Presbyterian Church, the pursuers and Appellants state in Condescendence 14, — 'It is not ' a principle of the constitution of the ' said United Presbyterian Church that ' the Civil Magistrate has any duty or ' even any right to maintain and support ' an Establishment of religion. Such 1 duty or right was not recognised by said ' Church. On the contrarj7, it was nega- 1 tived by at least one of the bodies which ' in 1847 united to form that Church. ' In particular, it was at the time of ' the negotiations for said Union after- ' mentioned, an accepted and distinctive ' principle of the United Presbyterian ' Church, not only that no such duty or ' right exists, but that it is neither lawful 4 nor expedient for the State to give ' sanction to any creed in the way of : setting up an Establishment of religion, ; nor within its province to provide for [ the expense of the ministrations of or otherwise to further religion, or even to provide the means of elementary religious education out of the national resources.' RESPONDENTS' CASE 119 Establishment Principle — Respondents' Contention. The contention of the Respondents is that the principle referred to by the Appellants (which, although it is only one of the many forms of the principle of Church Establishment, for convenience may be described shortly as the ' Establish- 1 ment principle,') was not a fundamental principle in the constitution of the Free Church of Scotland, and that it did not at any time form part of the doctrines, articles of faith, tenets, creed or contract binding upon ministers or other office bearers or members of the Free Church of Scotland. The question raised by the Appellants is a question to be answered primarily by construing the documents mentioned in Condescendence 10 of the Appellants' Record. There are other authoritative documents belonging to later periods of the Church's history, which are also before the House and which throw important light on the question here in controversy. The first and most important document to be considered is the Claim, Declaration, and Protest of 1842. This document was drawn up by the General Assembly of the Church of Scotland, and presented to the Queen along with an address to Her Majesty in 1842. It represents the views of the party in the Church who in 1843 separated from the Establishment and formed the Free Church of Scotland, in order that apart from the State they might be free to hold and give effect to the principles therein stated. In quitting the Estabhshment in 1843, they left on the table of the General Assembly a document known as the Protest of 1843. This Protest refers to the Claim, Declara tion, and Protest of 1842, and states that it 'shall be holden as setting forth the ' true constitution of the said Church.' Now the Claim, Declaration, and Pro test of 1842 sets forth in clear and un ambiguous language what were the essential and fundamental doctrines and principles of the Church in reference to its relations with the State on the one hand, and the people on the other. They were two — (First) The sole Head ship of Christ and the consequent spiritual independence of His Church (that is, independence of the civil ruler in spiritual and ecclesiastical matters), and (Second) Non-intrusion, that is the principle that no pastor be intruded upon any congrega tion contrary to the will of the people. In regard to the first of these, the Claim sets forth, ' Whereas it is an essential ' doctrine of this Church, and a funda- ' mental principle in its constitution, as ' set forth in the Confession of Faith ' thereof, in accordance with the Word ' and law of the most holy God that ' " there is no other head of the Church ' " but the Lord Jesus Christ " (ch. xxv. ' sec. 6), and that ..." the Lord ' " Jesus as King and Head of His ' " Church hath therein appointed a ' " government in the hand of church ' " officers distinct from the civil magis- ' " trate" (ch. xxx. sec. 1), which govern- ' ment is ministerial not lordly, and to be ' exercised in consonance with the laws ' of Christ and the liberties of His ' people.' It proceeds to set forth, ' Whereas the above-mentioned essential ' doctrine and fundamental principle in ' the constitution of the Church and the ' government and exclusive jurisdiction ' flowing therefrom ' has been ratified and confirmed by repeated Acts of Parlia ment, and it enumerates various statutes to that effect. The Claim then proceeds : — 'Whereas ' not only was the exclusive and ultimate 'jurisdiction of the Church Courts in ' the government of the Church, and ' especially in the particular matters, ' spiritual and ecclesiastical, above men- ' tioned, recognised, ratified, and confirmed ' — thus necessarily implying the denial ' of power on the part of any secular ' tribunal holding its authority from the ' sovereign to review the sentence of the ' Church Courts in regard to such matters, ' or coerce them in the exercise of such ' jurisdiction, — but all such power, and 120 ' all claim on the part of the sovereign ' to be considered supreme governor over ' the subjects of this kingdom of Scotland ' in causes ecclesiastical and spiritual, as ' he is in causes civil and temporal, was, ' after a long-continued struggle, finally ' and expressly repudiated and cast out ' of the constitution of Scotland, as in- ' consistent with the Presbyterian Church ' government established at the Revolu- ' tion, and thereafter unalterably secured ' by the Treaty of Union with England, ' by the constitution of which latter ' kingdom, differing in this respect from ' that of Scotland, the sovereign is recog- ' nised to be supreme governor,- "as well ' " in all spiritual and ecclesiastical things ' " and causes as temporal." ' After further dealing with the principle of spiritual independence, the Claim proceeds to discuss the second fundamental principle above-mentioned, viz., non -intrusion, — ' Whereas this Church required, as neces- ' sary to the admission of a minister to ' the charge of souls, that he should have ' received » call from the people over ' whom he was to be appointed, and ' did not authorise or permit any one ' so to be admitted till such call had ' been sustained by the Church Courts, ' and did, before and subsequent to the ' passing of the said Act of Queen Anne, ' declare it to be a fundamental principle ' of the Church, as set forth in her ' authorised standards, and particularly ' in the Second Book of Discipline (ch. HOUSE OF LORDS ' in. sec. 5), repeated by Act of Assembly ' in 1638, that no pastor be intruded ' upon any congregation contrary to the ' will of the people.' It then sets forth various proceedings and decisions in the Church Courts and the civil courts which are said to have recognised this funda mental principle. The Claim then proceeds to state that certain recent decisions of the civil courts had violated these fundamental principles of the Church, and that further encroach ments were threatened. In that state of matters, the Claim proceeds to state that the government and discipline of Christ's Church cannot be carried on according to the laws and the constitution of His Church subject to the exercise by any secular tribunal of such powers as have been assumed by the said Court of Session, — 'And Whereas this Church ' must persevere in maintaining her liber- 1 ties as a Church of Christ and in carrying ' on the government thereof on her own ' constitutional principles and must refuse ' to intrude ministers on her congrega- ' tions,' therefore the Church claims as of right her said spiritual liberties and her people's constitutional rights and liberties, and declares that she cannot intrude ministers on reclaiming congrega tions or carry on the government of Christ's Church subject to the coercion attempted by the Court of Session, and must refuse so to do. Position op Establishment Principle in the Claim, Declaration, and Protest. It will be observed that when the two principles above stated are repeatedly de scribed as ' essential ' and ' fundamental,' what is meant by ' fundamental ' is that they are necessary to the Church's exist ence. Without them the Church cannot exist and carry on her work as a Church of Christ. It is not meant merely that they are ' distinctive principles ' of the Church, that is, held by her and by no other Church, nor merely that they are regarded by the members of the Church as of great importance. They are essential \o the Church's existence ; if she gives them up or permits them to be violated or taken from her, she ceases to be any longer the Church of Scotland. In striking contrast to all this is the position which the 'Establishment prin- ' ciple ' holds. It also appears in the same document, but in a totally different category. The duty of the civil magis trate (the State) towards the Church (not the duty of the Church towards the State) is stated parenthetically in the early portion of the Claim dealing with the principle of spiritual independence. It is in these terms, — ' While " God, the RESPONDENTS' CASE " Supreme Lord and King of all the " world, hath ordained Civil Magistrates " to be under Him over the people, for " His own glory and the public good, " and to this end hath armed them with " the power of the sword " (ch. xxiii. " sec. 1), and while " it is the duty " of people to pray for magistrates, to " honour their persons, to pay them " tribute and other dues, to obey their " lawful commands, and to be subject " to their authority for conscience sake, " from which ecclesiastical persons are "not, exempted" (ch. xxiii. sec. 4), and while the magistrate hath authority, and it is his duty in the exercise of that power, which alone is committed to him, viz. " the power of the sword " or civil rule, as distinct from the " power " of the keys," or spiritual authority, expressly denied to him, to take order for the preservation of purity, peace, and unity in the Church.' The only other references to State Establishment in the Claim are to the effect that ' this Church highly valuing ' as she has ever done her connection, in ' the terms contained in the Statutes ' hereinbefore recited, with the State, ' and her possession of the temporal ' benefits thereby secured to her for the ' advantage of the people, must never- ' theless at the risk and hazard of the ' loss of that connection and of these ' public benefits — deeply as she would ' deplore and deprecate such a result for ' herself and the nation — persevere in ' maintaining her liberty as a Church of ' Christ.' And again, ' at the risk and ' hazard of suffering the loss of the secular ' benefits conferred by the State and the ' public advantages of an Establishment, ' they must refuse ' to intrude ministers, etc., for, 'highly as they estimate these ' they cannot put them in competition ' with the inalienable liberties of the 1 Church of Christ which . . . they 'are bound to maintain notwithstanding ' of whatsoever trouble or persecution ' may arise.' Accordingly the final para graph of the Claim consists of an appeal to the Christian people, calling them to witness that it is for their adherence to that doctrine (i.e. the sole Headship of 121 Christ over His Church), and the freedom and privileges of the members of the Church from that doctrine flowing, that this Church is subjected to hardship, and that her rights are put in peril. Further, 'they especially invite all the ' office - bearers and members of this Church who are willing to suffer for ' their allegiance to their adorable King ' and Head, to stand by the Church and ' by each other in defence of the ' doctrine foresaid, and of the liberties ' and privileges, whether of office-bearers ' or people, which rest upon it, and to ' unite in supplication to Almighty God ' that He would be pleased to turn the ' hearts of the rulers of this kingdom to ' keep unbroken the faith pledged to this ' Church in former days by statutes and ' solemn treaty, and the obligations come ' under to God Himself to preserve and ' maintain the government and discipline ' of this Church in accordance with His ' Word; or otherwise that He would give ' strength to the Church — office-bearers ' and people — to endure resignedly the loss ' of the temporal benefits of an Establish- ' ment, and the personal sufferings and ' sacrifices to which they may be called, and ' would also inspire them with zeal and ' energy to promote the advancement of ' His Son's Kingdom in whatever con- ' dition it may be His will to place them, ' and that in His own good time He ' would restore to them these benefits, ' the fruits of the struggles and sufferings ' of their fathers in times past in the ' same cause.' It is submitted that it plainly appears from these passages that while the Church ' highly valued ' her Establishment by the State, she was very far from regarding that as fundamental and vital to her existence. On the con trary, she was prepared to surrender her State connection if that should be necessary to the conserving unimpaired of the two great fundamental principles without which her existence as a Church was impossible. Established or non- Established, she will exist and carry on her work : she prefers the advantages of State connection, but if these cannot be had, except on terms inconsistent with her essential and inalienable rights and liberties, she is prepared to forego 122 them, and devote her energies to carry ing on her work as a non-Established Church. The very act by which the Free Church of Scotland came into existence proved that in her view the principle of Establishment was a subordinate matter. And from 1843 till 1900 the Free Church of Scotland existed and carried on all her HOUSE OF LORDS work as a non-Established Church. She did not conduct a propaganda for the purpose of obtaining State Establishment as a thing fundamental and therefore essential to her existence. On the contrary, it is well-known that she re peatedly declared, by overwhelming majorities in her church courts, in favour of the disestablishment of the Church of Scotland. Establishment Principle in the Confession op Faith. Turning to the statement in regard to the civil magistrate in the earlier part of the Claim of 1842, it is to be observed that it is contained in three propositions taken from the Confession of Faith. The first is quoted from chapter xxiii. sec. 1 of the Confession. It states that God has ordained civU magistrates for His own glory and the public good. The second is from chapter xxiii. sec. 4 of the Confes sion, and is to the effect that it is the duty of people to pray for magistrates, pay them tribute, and obey their lawful commands. The third is taken from chapter xxiii. sec. 3, which is in the following terms : — ' The civil magistrate ' may not assume to himself the ad- ' ministration of the word and sacraments, ' or the power of the keys of the kingdom ' of heaven : yet he hath authority, and ' it is his duty, to take order that unity ' and peace be preserved in the Church, 1 that the truth of God be kept pure and ' entire, that all blasphemies and heresies ' be suppressed, all corruptions and abuses ' in worship and discipline prevented or 1 reformed, and all the ordinances of God ' duly settled, administered, and observed. ' For the better effecting whereof, he hath ' power to call synods, to be present at ' them, and to provide that whatsoever is ' transacted in them be according to the ' mind of God.' In regard to the first two propositions, no question arises. The third is simply a statement of the opinion which the Re formed Church held with regard to the duty of the civil magistrate. It rested not with the Church, but with the civil magistrate — £i third party — to perform it. He might neglect or refuse to perform it, and the Church could not compel him. He might propose to perform it in a manner or on conditions which the Church could not accept. But whether he fulfilled his duty or not, the Church existed as a Church none the less. In Scotland, differing from England, the Reformed Church existed without State establishment or endowment, and the history of the Presbyterian Church of Scotland — non- established, established, and dis-established, at all events that party in it, sometimes a majority and sometimes a minority, with which the founders of the Free Church agreed — has been a long-continued struggle to assert and maintain the Church's independence of State control. It is submitted that, from the nature of the case, the Church's view of the duty of the State towards her was not and could not be a principle fundamental to the Church's existence. But, further, the duty of the civil magistrate is here set forth in language so vague and general that diversity of opinion necessarily existed, and always has existed, in the Free Church of Scotland as to how the duty should be fulfilled. The civil magistrate is to 'take order' that unity and peace be preserved in the Church, that the truth, of God be kept pure and entire, that all blasphemies and heresies be suppressed. In one view, this would give the civil magistrate authority to use his office (' the power of the sword ') to secure purity of doctrine and suppress heresy. But to do this would be to violate the vital principle of spiritual independence, which was itself (in the RESPONDENTS' CASE 123 view of the Free Church of Scotland), taught by the Confession in chap. xxx. It is to be observed that the duty of the civil magistrate ' to maintain and support ' an Establishment of religion ' (the prin ciple contended for by the Appellants), is not laid down anywhere in the Confes sion of Faith. The principle maintained by the Appellants implies that the State is to recognise and support one Church — it may be one out of many existing Churches : a very different thing from ' taking order ' for the suppression of blasphemies and heresies, etc. In short, the Establishment principle contended for by the Appellants is not taught in the Confession of Faith. The Court of Session took this view of the teaching of the Confession in the Campbeltown case, Smith v. Galbraith, 21st February 1843, 5 Dunlop, page 665.1 This case arose out of a dispute among the members of the congregation at Campbel town of the Relief Dissenting Church. The Relief Church was formed in 1752, when the General Assembly of the Established Church of Scotland deposed the Rev. Mr. Gillespie for refusing to concur in and assist in giving effect to the right of patronage in the Establishment. He, and those who adhered to him, then formed the first Presbytery of Relief, the ground of secession being the exercise of the right of patronage in the Establish ment. The Relief Church, so formed, professed to adhere to the standards of the Church of Scotland as contained in the Confession of Faith, and to the Presbyterian form of church government and worship. Every minister on his admission into the body was required to make a declaration of his adherence to these standards. In the early part of last century voluntary principles spread largely in the Relief Church, and the congrega tion at Campbeltown was deeply divided on the question. Various proceedings took place, which need not be detailed, but ultimately an action was raised by certain proprietors of the church building against certain other proprietors thereof, 1 Campbeltown Case. Smith v. Galbraith, 21st February 1843, 5 Dunlop, p. 665. to have it found that the principles of the Relief Church, when the chapel at Campbeltown was built, and was joined to the Relief body, embraced tho Establishment principle, or duty of the State to maintain an endowed church as a scriptural doctrine, and that the pursuers in the action who adhered to that principle, were entitled to the use of the church building to the exclusion of the defenders, who had departed from it and held voluntary principles. This Establishment principle was said to be contained in and taught by the Confession of Faith, which was admittedly the standard of the Relief Church. The Court held that the pursuers had failed to prove that the Establishment principle was held origin ally as a fundamental and essential tenet of the Relief Church. The Court had to consider the question, whether the Establishment principle was taught in the Confession of Faith. The Lord Justice Clerk (Boyle) in regard to that matter said (p. 679) — 'The two chapters or sections in the Westminster Confession relied on, and which the Relief body subscribed, are to be found in the papers in this case, and I need not stop to read them [chap. xx. sec. 4, and chap, xxiii. sec. 3], It is pretty material, however, to observe that there are in these chapters no words whatever which directly amount to an obligation on the civil magistrate either to endow or mamtain the Established Church.' Lord Medwyn (p. 681) — It is true, when they separated from the National Church and set up a separ ate one, they adhered to the doctrine and discipline of the Church of Scotland as contained in the Westminster Confession of Faith. I cannot say that I am satis fied that in this Confession I can discover anything about endowment by the State. ... In the papers, the portions of the Confession are given which are said to import the endowment principle. But a State might do all these mentioned for the sake of policy and good government without endowing a church. I am glad to find that on this point your Lordship's opinion concurs with mine. ... It is not every opinion held by the Church of Scotland at the time the Westminster. Confession was adopted, a departure from 124 HOUSE OF which will warrant the pursuers to insist, that if they retain the same opinions, they are entitled to the exclusive property of this church.' Lord Meadowbank (p. 685) — ' The argument of the pursuers rests on several propositions. (First) It is said that it is a fundamental and essential part of the faith of the Church of Scotland, that the State shall main tain and endow that Church for the religious instruction of the people. . . . 1. On the first of these propositions I entirely concur in the views which have been taken, and in so luminous a manner explained by your Lordship. I never heard that, spirituaUy speaking, it was required in the Established Church that the principle of a religious Establishment in connection with and endowed by the State should be professed as an article of its faith, — sure I am, not a word having any tendency that such a doctrine is to be found in any one of the recognised Confessions of Faith promulgated by the Church, from the period of the Reforma tion down to the present hour. On the contrary, the whole history of those tenets which our Church has ever main tained is hostile to such a principle, commencing with the declaration of be lief respecting " the Kirk " in the seven teenth chapter of the Confession of Faith, recognised and enjoined by Parliament 1567, c. 3, which is utterly and entirely repugnant to every notice of this de scription. Renouncing all adherence to the Church Malignant or Roman Church, the Kirk professed itself as the true Church which had existed from the beginning, but which assuredly had never been an Estabhshed Church or one en dowed by the State. In fact, at its origin, our Church laid no claim jure divino to civil endowments. It would have been, considering the personages who were then its chief supporters, a very hazardous claim to have preferred. The great barons of Scotland were then engaged in the pillage of the Roman Church ; and, as matter of history, we know that it was not for many years that the founders of the Reformed faith could obtain from the rapacity of these lords of the congregation a miserable pittance for the parochial clergy. But LORDS in truth, Knox and his brethren were too earnest in their spiritual warfare with the idolatries of the Roman wor ship to think of establishments and en dowments. Their thoughts were directed to the Church Universal; and it was not for years afterwards, as your Lord ships know, when they were in expecta tions of being assumed by Parliament as the Church of the Realm, that endow ments and benefices came to be in con templation. But these in truth were subjects of civil consideration, and noth ing regarding them could ever have been taken as a matter of spiritual belief. In short, my Lords, the fathers of our Con fessions of Faith knew too well what were the boundaries by which civil and ecclesi astical rights and subjects were separated, to confound them together in the way which we have very ignorantly been required to believe they did at the foundation of our National Church ; and I must confess that it seems to me most singular and extraordinary that such doctrines should be maintained in the face of those articles in that Confession to which your Lordships referred, when we see that the Church in express terms reserved to herself nothing but the power to determine controversies of faith, "to handle or conclude nothing " but that which is ecclesiastical, and " not to intermeddle with civil affairs, " except by humble petition or by " advice, if required, by the civil magis- " trate " ; while, on the other hand, it even left to the latter authority and power to suppress heresies and prevent corruptions. With these distinctions so clearly drawn, how that which is and can be solely the act of the civil govern ment, namely, the forming and endowing out of the funds of the State an Estab lished Church, when the power of inter ference with the proceedings of the magistrate was so expressly renounced, could without gross inconsistency have been made an article of spiritual faith is, I confess, altogether unintelligible and beyond my comprehension — no less than I have no doubt it was to those great Christian divines to whom and to whose exertions we owe our being a Protestant; kingdom,' RESPONDENTS* The Protest of 1843 is the second constitutional document founded on by the Appellants. The Claim of 1842 having been rejected by the Legislature, the party whose views wet e embodied in the Claim of 1842 quitted the Establish ment protesting (as they did in this document) that the conditions which must now — since the rejection of the Claim of 1842 — be held to be the con ditions of the Establishment 'are at ' variance with God's word, in opposition ' to the doctrines and fundamental ' principles of the Church of Scotland,' CASE 125 etc. They then protest that ' in the ' circumstances in which we are placed, ' it shall be lawful for us to withdraw to ' a separate place of meeting for the ' purpose of taking steps for ourselves ' and all who adhere to us — maintaining ' with us the Confession of Faith and ' Standards of the Church of Scotland ' as heretofore understood — for separat- ' ing in an orderly way from the Es- ' tabhshment, and thereupon taking ' measures for the administration of the ' affairs of Christ's House according to ' His Holy Word.' Establishment Principle in the Protest op 1843. In this Protest, one passage is intro duced in a parenthesis, making reference to the civil magistrate. It is as follows— ' While firmly asserting the right and ' duty of the civil magistrate to maintain ' and support an Establishment of religion ' in accordance with God's Word, and ' reserving to ourselves and our successors ' to strive by all lawful means, as oppor- ' tunity shall in God's good providence ' be offered, to secure the performance ' of this duty agreeably to the Scriptures, ' and in implement of the Statutes of the 1 kingdom of Scotland, and the obligations ' of the Treaty of Union, as understood ' by us and our ancestors, but acknow- ' ledging that we do not hold ourselves ' at liberty to retain the benefits of the ' Establishment while we cannot comply ' with the conditions now to be deemed ' thereto attached.' This parenthetical statement no doubt shows the sense in which the signatories of the Protest at that time interpreted the teaching of the Confession, but as the Protest pointedly refers back to the 'Claim, Declaration, ' and Protest of the General Assembly ' which convened at Edinburgh in May ' 1842,' stating that said Claim 'as the ' act of a free and lawful Assembly of ' said Church, shall be holden as setting ' forth the true constitution of said ' Church,' it is necessary to examine the document of 1842 for a full statement of the Church's view of the relations of the civil magistrate to the Church. The protest of 1843 does not add anything, and was not intended to add anything thereto, and as the Claim of 1842 has already been discussed, nothing more need be said here. The next documents named by the Appellants — the Act of Separation and Deed of Demission — were necessary for the formal carrying out of the separation from the Establishment, but they add nothing of importance on the question under discussion. The foregoing are what are commonly known as the Disruption Documents. Position op the Establishment Principle in the Questions and Formula op the Free Church op Scotland. The next thing to be considered is the Act of the Free Church Assembly of 1846, cap. 12, and the Questions and Formula thereby sanctioned. This is an Act of very great importance, inasmuch as it provides for the profession of faith to be made by entrants to the ministry, and by other office-bearers of the Church. It proceeds on the preamble that 'it ' has become necessary in consequence ' of the late change in the outward con- ' dition of the Church to amend the 126 HOUSE OF LORDS ' Questions and Formula to be used at ' the licensing of probationers and the ' ordination of deacons, elders, and ' ministers respectively.' Then follows the enactment of the new Questions and Formula. The Act then proceeds — 'The ' General Assembly in passing this Act ' think it right to declare that whUe the ' Church firmly maintains the same ' Scriptural principles as to the duties of ' nations and their rulers in reference to ' true religion and the Church of Christ, ' for which she has hitherto contended, ' she disclaims intolerant or persecuting ' principles, and does not regard her ' Confession of Faith, or any portion ' thereof, when fairly interpreted, as ' favouring intolerance or persecution, or ' consider that her office-bearers by sub- ' scribing it profess any principles incon- ' sistent with liberty of conscience and the ' right of private judgment.' The point emphasized here is the disclaimer of intolerant or persecuting principles. The mode in which nations and their rulers are to discharge their duties to the Church is left undefined. Nor are candidates for the ministry or ministers taken bound to more than 'the whole doctrine contained ' in the Confession of Faith.' The only spe cific reference to the civil magistrate occurs in Question 5 to be put to probationers after being called by a congregation. That question is as follows : — ' Do you ' believe that the Lord Jesus Christ, as ' King and Head of the Church, has ' therein appointed a government in the ' hands of Church Officers distinct from and ' not subordinate in its own province to ' civil government, and that the Civil ' Magistrate does not possess jurisdiction ' or authoritative control over the regulation ' of the affairs of Christ's Church ; and do ' you approve of the general principles ' embodied in the Claim, Declaration, and ' Protest adopted by the General Assembly ' of the Church of Scotland in 1842, and ' in the Protest of Ministers and Elders, ' Commissioners from Presbyteries to the ' General Assembly, read in presence of ' the Royal Commissioner on 18th May ' 1843, as declaring the views which are ' sanctioned by the Word of God and the ' Standards of this Church, with respect ' to the spirituality and freedom of the ' Church of Christ, and her subjection to ' Him as her only Head, and to His Word ' as her only Standard 1 ' This simply emphasizes the doctrine of spiritual inde pendence, and takes the candidate bound to approval of the 'general principles' of the Claim and Protest, but even these only as declaring the views which are sanctioned by the Word of God and the Standards of this Church with respect to the spirituality and freedom of the Church of Christ and her subjection to Him as her only Head, and to His Word as her only Standard. If the so-called principle of Civil Establishment was a fundamental principle of the Church, it is submitted that it would have been found in this Act, and in the questions and formula, and that the Church would not — only three years after the Disruption — have deliberately framed the conditions of admission to office and emolument in such terms that not a single minister or lay office-bearer of the Church need hold the principle of Civil Establish ment. The Appellants next cite an Act of Assembly, 1851, chap. 9. This was an Act and Declaration adopted by the General Assembly when sanctioning the publication of a volume of Subordinate Standards and other authoritative docu ments of the Church. It is a rdsume^ of the leading events in the Church's history from the Reformation onwards. The two fundamental principles set forth in the Claim — spiritual independence and non intrusion — are again referred to in similar terms. The teaching of the Church re garding the duty of the State is thus described — 'that nations and their rulers ' are bound to own the truth of God and to ' advance the kingdom of His Son.' It is not open to dispute that the United Presbyterian Church has always accepted that principle equally with the Free Church of Scotland. Then the narrative states that Prelatic Church Government, which had been set up in 1661, followed by a dark period of persecutions under Charles II. and James II. , was again set aside, and Presbyterian Church Govern ment was re-established at the Revolution RESPONDENTS of 1688, when 'this Church rose from her ' ashes, and was recognised as the same ' Church which, whether in freedom or in ' bondage, whether under the shade of ' royal favour, or hunted as a partridge in ' the mountains, could trace its unbroken ' identity downwards from the very begin- ' ning of the Reformation.' CASE 127 Again, referring to the Disruption of 1843, it is stated that the founders of the Free Church of Scotland resolved to maintain the Church's spiritual liberties, ' not by prolonged resistance to the Civil ' Courts, should the Crown and Parliament ' of Great Britain refuse the redress craved ' in the above-mentioned Claim of Rights, ' but by publicly renouncing the benefits ' of the National Establishment, under ' protest that it is her being free, and not ' her being established, that constitutes the ' real historical and hereditary identity ' of the Reformed National Church of ' Scotland.' Once more, the Church, in renouncing those benefits, ' could not con- ' template without anxiety and alarm the ' prospect of losing for herself important * means of general usefulness — leaving the ' whole machinery of the Establishment in ' the hands of parties who could retain it ' only by the sacrifice of her fundamental ' principles.' This Act, it is submitted, reaffirms the position taken in the Claim that spiritual independence is fundamental and essential to the Church's existence, while the possession or absence of State recognition and support is a matter which does not affect her existence and identity. Establishment Principle in Act op Assembly op the Free Church op Scotland op 1873. Twenty years later, the Church had occasion again to express in an Act of Assembly her view of the duty of the State in regard to the Christian religion. In 1872, a Committee of the Church suggested in a report to the General Assembly that legislation should be passed to make lawful on the part of the Free Church of Scotland the mutual and reciprocal eligibility of ministers in fixed charges in the United Presbyterian and Reformed Presbyterian Churches to fixed charges in any of the others. Accordingly, in 1873, the General Assembly passed an ' Act anent the mutual eligibility of ' ministers of the United Presbyterian, ' Reformed Presbyterian, and Free Church ' of Scotland Churches.' It is not nec essary to cite the provisions by which this was accomplished. But attention is directed to the latter portion of the Act, which states that ' in passing this overture ' into a standing law, the General ' Assembly think it right to declare, as ' they hereby do declare, their adherence ' to the great fundamental principles of ' this Church regarding (First) the sole ' Headship of Christ and spiritual inde- ' pendence, and regarding (Secondly) the ' prerogative of the Lord Jesus Christ as ' Head over all things to His Church, and ' supreme over nations and their rulers, ' who are consequently bound, collectively 1 and officially, as well as individually and ' personally, to own and honour His ' authority, to further the interests of His ' holy religion, and to accept the guidance ' of His Word as making known His mind ' and will.' In 1874 a short Act was passed 'Anent ' signing of the Formula,' the purpose of which was to ensure that the terms of the said Act of 1873 were brought under the notice of every minister proposed to be called to a Free Church of Scotland con gregation who belonged to another branch of the Presbyterian Church. It is to be observed that the declaration of funda mental principles contained in the Act of 1873 expressly deals with the duty of the State to the Church, but it is silent as to the right and duty of the civil magistrate to maintain and support establishments of religion. Additional point and emphasis are given to this omission by the fact that certain persons in the Church objected to the Aet in question on that very ground, maintaining that the language of the Act did not sufficiently express and cover Free Church principles. The dissents of these persons are in the 128 HOUSE OF LORDS productions before the House. The Church, however, avowedly and inten tionally treated the question of the civil magistrate's right and duty in regard to establishments of religion as an open question, and passed the declaration into a law of the Church in the terms above quoted. And in the following year, the short Act above referred to, emphasizing and approving the Act of 1873, was passed by the General Assembly unan imously. Establishment Principle an Open Question in the Free Church op Scotland. It was open for any member of the Free Church of Scotland to interpret the teaching of the Confession of Faith on the question of the duty of the State in the sense maintained by the Appellants, viz., that it was the right and the duty of the State to maintain and support a Civil Establishment of religion. That view was all along held by a party in the Free Church of Scotland, whUe, on the other hand, some took the exactly opposite view, namely, that the State was neither en titled nor bound to support a Civil Establishment of religion. The great majority, however, declined to read the Confession as laying down any universal rule either for or against a Civil Establish ment of religion. They held that the Confession merely taught the general principle, that nations and their rulers are bound to own the authority of Christian truth, without laying down the particular mode or modes in which the principle should be applied. They further held that this duty of the civil magistrate is generaUy most properly discharged in the modern state in other ways than by selecting one denomination of the Christian Church, and setting it up as a CivU Establishment of religion, and that the supporting and maintaining of such an Establishment is merely a particular application of the general principle as to the civU magistrate's duty in regard to religion — an application which may be expedient or inexpedient according to circumstances. The matter of establish ment and endowment, whether of one or of many churches, was an open question in the Free Church of Scotland, in regard to which liberty of opinion was aU along permitted and exercised. And this hberty of opinion was fully conserved in the Union. The General Assembly of the United Church, in passing the Uniting Act, on 31st October 1900, adopted at the same time certain declarations which are appended to the Aet. The third of these declarations is as follows : — 'As 1 this Union takes place on the footing of ' maintaining the liberty of judgment and ' action heretofore recognised in either of ' the churches uniting, so, in particular, ' it is hereby declared that members of ' both churches, and also of all churches ' which in time past have united with ' either of them, shall have full right, as ' they see cause, to assert and maintain the ' views of truth and duty which they had ' liberty to maintain in the said churches.' The Respondents accordingly submit that the main ground of action pleaded in the Court below entirely fails. Position op the United Presbyterian Church as to Establishment Principle. It may be convenient to explain at this point what position the United Presby terian Church held on the Establishment principle. That Church was formed in 1847 by a union between two dissenting churches, the Secession Church and the Relief Church, which had at different times separated from the Established Church of Scotland. The terms of union were set forth in a document known as the Basis of Union, adopted by the two churches in May 1847. It states that the Scriptures are the only rule of faith and practice, and further 'that the West- ' minster Confession of Faith and the 'Larger and Shorter Catechisms are the RESPONDENTS' confession and catechisms of this Church, ' and contain the authorised exhibition of ' the sense in which we understand the ' Holy Scriptures, it being always under- ' stood that we do not approve of anything ' in these documents which teaches, or ' may be supposed to. teach, compulsory or ' persecuting and intolerant principles in ' religion.' The only other statement in the Basis of Union which need be referred to is in Article 10, to the effect that the two churches ' unite in regarding as still valid ' the reasons for which they have hitherto ' maintained their state of secession and ' separation from the judicatories of the ' Established Church.' In regard to this, it need only be said that it is well known as matter of history that the question of the State's duty to support and maintain a civil establishment of religion had nothing whatever to do with the formation either of the Secession or the Relief Church. Along with the Basis of Union, it is necessary to have regard also to the questions and formula for ministers at ordination prepared in 1847. The second question is as follows : — ' Do you acknow ledge the Westminster Confession of ' Faith and the Larger and Shorter Cate- ' chisms as an exhibition of the sense in ' which you understand the Holy Scrip- ' tures, it being understood that you are ' not required to approve of anything in ' these documents which teaches, or is ' supposed to teach, compulsory or per- ' secuting and intolerant principles in ' religion ? ' It is apparent therefore that there was nothing in the principles of the United Presbyterian Church requiring members, or binding the Church as such, to hold any particular view in regard to the Establishment principle. It is simply left on the language of the Westminster Confession, with the single proviso that compulsory or persecuting and intolerant principles are disavowed. The Free Church had taken the same position the previous year when the General Assembly passed the Act of 1846 anent questions and formula, disclaiming therein intolerant and persecuting principles. So matters stood in the United Presby- CASE terian Church until Synod (the Supreme Declaratory Act questions of doctrine 129 1879, when the Court) passed a to various The only portion relating calling for attention here is Declaration 5, in the following terms : ' That in regard ' to the doctrme of the civil magistrate, ' and his authority and duty in the sphere ' of religion, as taught in the Standards, ' this Church holds that the Lord Jesus ' Christ is the only King and Head of the ' Church, and "Head over all things to ' " the Church which is His body," dis- ' approves of all compulsory or persecuting ' and intolerant principles in religion, ' and declares, as hitherto, that she does ' not require approval of anything in her ' Standards that teaches, or may be ' supposed to teach, such principles.' This, however, is simply re-affirming the earlier position of 1847. The question of the civil magistrate's right and duty in regard to civil establish ments of religion was thus in the United Presbyterian Church an open question. It is not denied that the majority of her office-bearers— clerical and lay — held the view that it was beyond the functions of the State to maintain and endow a civil establishment of religion. But a minority did not hold that opinion : there never was uniformity of opinion with respect to civil establishments of religion, and the holding of any particular opinion on the subject never was a term of communion in the Church. It further appears that the Church took up and adhered to this position deliberately. In 1870, an over ture was presented to the Synod by members holding views adverse to civil establishments of religion, proposing a revisal of the Church's Confession in a sense favourable to their views. The overture, however, was rejected by the Synod in these terms : ' That forasmuch as ' the interpretation of the terms of the Basis ' is regulated by the terms of the Formula ' of October 1847, declaring that office- ' bearers of the Church are not required ' to approve of anything in the subordinate ' Standards that teaches or is supposed to ' teach compulsory or persecuting and in- ' tolerant principles in religion, thereby ' securing full liberty of opinion with i3o HOUSE OF LORDS ' reference to Civil Establishments of harmony with this position was the fifth ' Religion, the Synod dismiss the overture portion of the Declaratory Act of 1879 ' as uncalled for and inexpedient.' In referred to above. Power op the Free Church of Scotland to Modify her Original Constitution. The Respondents submit, iu the next place, that whatever view be taken of the Establishment principle, it was competent for the Free Church of Scotland, in entering into the Union, to make that principle an open question, if it were not so before, and to that extent to alter her original constitution without forfeiting the property in question. The Church was a voluntary association of persons united together for religious purposes. It possessed at common law the right to control and regulate its own affairs, and, if it saw fit, to change any of its own doctrines or principles. The power inherent in its Supreme Court — the General Assembly — was a legislative power. Reference is made to the case of Forbes v. Eden, 11th April 1867, 5 Macpherson (H.L.) 36.1 In that case a clergyman of the Episcopal Church in Scotland brought an action against the members of the General Synod of that Church, concluding (1) for reduction of certain canons enacted by them, which the pursuer alleged to be in violation of the previous canons in force when he was ordained, and injurious to the pursuer as rendering him liable to deprivation of office for want of conformity thereto ; (2) for declarator that it was ultra vires of the Synod to enact these, and that the pursuer was entitled to celebrate divine service according to the former canons; and (3) for damages for injury done to him through his bishop refusing to license a curate engaged by the pursuer who would not subscribe the new canons. The ground of action laid by him was that the General Synod, in making alterations in the code of canons of 1838 by new canons of 1863, had departed from the recognised constitution and acknowledged practice of the Scotch 1 Forbes v. Eden, 11th April 1867, 5 Mac pherson (H.L.) 36. Episcopal Church, and had therefore violated the contract into which he entered by subscribing the code of 1838. He maintained that by his ordination as a minister of the Scotch Episcopal Church he became a member of a voluntary religious association under a contract, the terms of which were contained in the canons of 1838 which he subscribed; further, that it was not competent to any number of the members of the association, short of the whole body, to change its fundamental character, and that the enactment of the canons of 1863 was a violation of the contract into which he had entered, and materially and injuriously affected his position as a member of the association. Lord Cranworth, in giving judgment, spoke as follows (page 51 of the report) — ' The appellant rests his case on the analogy which he supposes to exist between the body associated as the Scotch Episcopal Church, and an ordinary commercial partnership. He contends truly that, unless so far as the articles of partnership authorise it, no change can be made in its provisions by the mere will of a majority of the partners, nor indeed without the concurrence of every individual of which the partnership is composed. And he contends that, on the same principles, the Synod or General Assembly of persons, associated as a Church or religious body, can have no power to alter the canons or rules of that Church or religious body without the assent of every member of it, except so far as they are expressly authorised to do so by the terms of their constitution. But the Synod of a Church seems to me to resemble rather the Legislature of a State, than the articles of association of partnership. A religious body, whether connected with the State or not, forms an imperium in imperio, of which the Synod is the supreme body, when there is not, as there is in the Church of RESPONDENTS' CASE 131 ' England, a temporal head. If this is so, ' I feel it impossible to say that any ' canons which they establish can be ' treated as ultra vires. The authority of ' the Synod is supreme.' If the change of doctrine was competently made by the General Assembly, the Church so acting within her powers carried with her the property in question, because the property was not held on any special or restricted title, but on a general title for behoof of the Free Church of Scotland. Whether or not the argument just stated would apply to a Church connected with the State, or could have applied to the Church before 1843, it is submitted that a con sideration of the Barrier Act and of the view all along taken of that Act by the Free Church, makes it plain that at all events the Free Church possessed the power of change here claimed. The Barrier Act expressly recognises the power of the Church to make alterations or innovations ' in either doctrine or worship or discipline ' or government,' and provides means for securing that any such change shall be made only after the Church has been deliberately consulted, and 'the more ' general opinion of the Church ' has agreed to the proposed change. There after, the Act embodying the change becomes ' a binding rule and constitution ' of the Church.' Before 1843 the Church repeatedly exercised its legislative powers under the Barrier Act. Instances of this are — The Declaratory Act as to Parlia mentary Churches 25th May 1833; De claratory Act as to Chapels of Ease 31st May 1834, when the Church admitted to the membership of its church courts the pastors of 200 non-parochial congregations ; Act 1st June 1835 putting an end to the appointment of ministers against the veto of a majority of the people although such appointments had been submitted to for 120 years or thereby under the Statute of Queen Anne 1711; Act 25th May 1839 anent reunion with Seceders, including in its own body the ministers and members of the Original Secession Church. These Acts were passed by the Church when the majority in the General Assemblies belonged to the party who afterwards quitted the Establishment and formed the Free Church of Scotland, and in the exercise of the legislative powers which, in the view of the majority, the Church, acting under the Barrier Act, possessed. It is true that the Civil Courts refused to acknowledge such rights in the Church, on the ground that they were inconsistent with the conditions of Establishment. The claim of the Church to legislative powers, and the view of the Civil Courts rejecting this claim, is well brought out in the case of Cruickshank v. Gordon, 10 th March 1843, 5 Dunlop, p. 909,1 see in particular the opinion of the Lord Ordinary (Cuning- hame)at page 919. ' They (the Church) ' contend that they are not responsible to ' any civil court in the kingdom for their ' censures, even when illegal and incom- ' petent ; that the church is a body having ' rights and interests separate from the ' State ; that they possess a supreme 1 legislative body and a supreme court, and ' have ultimate jurisdiction in things ' spiritual. . . . They insist that they ' are themselves the interpreters of all ' statutes even of the civil legislature ' applicable to ecclesiastical affairs ; that ' they are the sole judges what causes are ' spiritual and what are of a temporal ' nature ; and it is added that the present ' is just an unfortunate case of collision or ' conflict between two supreme courts, not ' provided for by the law — and that the ' civil court is unduly interfering with the ' ecclesiastical in matters in which the ' latter admit of no control.' These rights claimed by the Church having been negatived by the civil courts, the Free Church of Scotland was constituted in order that as a Church, apart from and not in alliance with the State, she might freely enjoy these rights. The State was no party to the Barrier Act, and it might therefore object to the exercise by the Church of powers under it, but no one in the Free Church of Scotland could call in question the exercise of such powers, because in the Free Church of Scotland the Act was part of the constitution. It continued to be part of the constitution of the Church quitting the Establishment in 1843, and at various times since then the Church has modified its doctrine, worship, discipline, and government, as it saw fit, 1 Cruickshank v. Gordon, 10th March 1843 5 Dunlop, p. 909. ' 132 by proceedings taken in conformity with the Barrier Act. It has been suggested that changes may be figured of so far- reaching or revolutionary a character that even the wide powers of the Barrier Act would not cover them. The Respondents contend for supreme and unrestricted HOUSE OF LORDS legislative power, but in any event they submit that making the so-called Estab lishment principle an open question among the office-bearers and members of the Church, even if it were not so before, would he an exercise of power undoubt edly competent to the Church. Model Trust Deed. The position of the Church in reference to the Establishment principle is further elucidated by reference to the terms of the document known as the Model Trust- Deed. This was prepared immediately after the Disruption — in 1844 — by a committee appointed by the General Assembly. The purpose was to provide a Model Trust-Deed under which church buildings and other property belonging to congregations of the Free Church of Scotland should be held for behoof of the Church. It has been in use ever since 1844, and the greater part of the heritable property (churches and manses) belonging to or held for behoof of the Church is held in terms of the Model Trust-Deed. Two matters call for attention here. The deed recites the reasons which had caused the persons who formed the Free Church of Scotland to separate from the Establishment, and the principles for which they contended in so doing. For that purpose, it cites the material and essential portions of the Protest of 1843. But it contains no assertion or even mention of the Establishment principle founded on by the Appellants. Further, the Model Trust-Deed plainly shows that it was the intention and desire of the Free Church of Scotland from the beginning to enter into unions with other Christian churches as opportunity arose, that these other Christian churches need not hold identical views with the Free Church of Scotland itself, and that in entering into such unions the Free Church of Scotland might alter its name. The first trust purpose is in these terms — '(First) Upon ' trust that the building or place of worship 1 erected or in course of being erected ' upon the ground hereby disponed, or ' any building or place of worship that ' may hereafter be buUt and be erected ' thereon, with the appurtenances thereof, ' shall in all time coming be used, ' occupied, and enjoyed as and for a place ' of rehgious worship by a congregation of ' the said body of Christians called the ' Free Church of Scotland, or of any ' united body of Christians composed of ' them and of such other body or bodies ' of Christians as the said Free Church of ' Scotland may at any time hereafter ' associate with themselves under the ' foresaid name of the Free Church of ' Scotland, or under whatever name or ' designation they may assume, and to be ' made use of by such congregation ' occupying and enjoying the same for the ' time being in the way and manner in ' which, by the usages of the said body or ' united body of Christians, places of ' religious worship may be or are in use to ' be occupied and enjoyed.' Unions with Other Churches. The Free Church accordingly, in the exercise of its inherent liberties and powers, and in harmony with the inten tions and provisions of its founders has entered into unions with other Presby terian Churches in Scotland. In 1852, the Free Church entered into an incorpor ating union with the United Associate Synod of Original Seceders. The said Church claimed to represent the Original Seceders from the Church of Scotland in 1733, and its principles in regard to the relations of Church and State differed in several important respects from the RESPONDENTS' CASE 133 opinions held by any parties in the Free Church. In particular the Original Seceders held that the National Covenant of Scotland and the Solemn League and Covenant of the three kingdoms were still binding on the nation, and were of perpetual obligation, and also that the Revolution Settlement was defective and unsatisfactory in respect that it did not give sufficient prominence to the prin ciples of the Second Reformation. These principles — especially in regard to the perpetual obligation of the Covenants — were not held by the Free Church or any parties in it, and shortly after the union took place, it was judicially determined in the civil courts that the principles of the Original Secession Church were in this and other respects materiaUy different from the principles of the Free Church. But the Original Seceders uniting with the Free Church stipulated that they should enter the Free Church as ' adhering to the ' original standards and constitutions of ' the Church of Scotland, not merely as ' asserted and vindicated in any of the ' Acts and Declarations of the Free ' Church, but also as asserted and ' vindicated in our own Testimony, to all ' the principles of which we still adhere.' The General Assembly of the Free Church, recognising the differences be tween the views held by the two Churches, passed an Act (Act IX. 1852) in which they 'cordially agreed to the proposal of re-union made,' by the Orig inal Seceders as above stated, 'and fully consent that their brethren continue free to hold the views therein set forth, and to enjoy the liberty therein claimed, in subordination to the dis cipline and government of this Church.' The union thereafter took place on this footing, and the office-bearers of the Original Secession Church became office-bearers of the Free Church with out being required to sign the Free Church formula, and continued to hold the principles which they held previous to the union. The union recognised that hberty existed within the Free Church to hold different views as to the application of the principle of the duty of nations and their rulers to acknowledge Christian truth. Again, in 1876, the Free Church entered into an incorporating union with the Reformed Presbyterian Church of Scotland. This Church represented that portion of Scottish Presbyterians generaUy known as Cameronians, who were dis satisfied with and repudiated the Revolu tion Settlement in 1689, and in consequence declined to enter or become members of the Church of Scotland as established at the Revolution, and continued as a separate Church apart from the State. They en tirely disapproved of the alliance between Church and State in Scotland, as embodied in the Revolution Settlement, and as existing from 1692 to 1843, a period of more than 150 years, and therefore differed materially in their views from the views and opinions entertained at any time by any parties in the Free Church. The Claim of Right of 1842 and the Protest of 1843 were based chiefly upon the Revolution Settlement which the Re formed Presbyterian Church all along repudiated. The Reformed Presbyterians accepted without reserve the formula of the Free Church as the basis of union, but before uniting with the Free Church they expressly stipulated as follows : ' We stUl ' abide by our objections to the Revolution ' Settlement, nor do we commit ourselves ' to an approval of an alliance of the ' Church with the British State as at * present constituted, having in view ' especially the unscriptural character of ' its ecclesiastical relations.' They further stipulated that in entering into the union, the members of the Reformed Presbyterian Church were free to retain and abide by the views and principles hitherto held by them. The Free Church, recognising the difference of views as, to these matters in the two Churches, agreed to the said stipulations, and the union took place upon this footing, and the office-bearers of the Reformed Presbyterian Church became office-bearers of the Free Church without being required to sign the Free Church formula. The union necessarily recognised that complete liberty existed within the Free Church to hold different views as to the application of the principle of the duty of nations and their rulers to religion, set forth in the Declaration in the Eligibility Act of 1873. The alleged 134 HOUSE OF LORDS principle of the civil magistrate's right and duty in regard to establishments of rehgion was not treated as a fundamental principle of the Free Church, but was deliberately left an open question. Second Ground op Action. The second ground of action in this case relates to the formula to be signed by ministers and elders in the United Church. It is said that this formula applies a different test to candidates for ordination from that applied by the Free Church of Scotland, because it involves recognition of doctrines which might be ' approven by General Synods.' It is said that the difference in the formula introduced a fluctuating standard in place of a fixed and unchangeable standard of belief. The first point to which attention is drawn is the fact that the Free Church Formula, as it stood immediately before the Union in October 1900, had itself been modified from the Formula adopted in 1846. Declaratory Act, 1892. In 1892 the Church, in the exercise of its legislative power, and in accordance with the right to alter and interpret the subordinate standards of the Church expressly recognised in the Confession of Faith itself, passed into law under the Barrier Act an Act entitled ' Declaratory ' Act anent Confession of Faith.' This Act proceeds on the preamble that ' it is ' expedient to remove difficulties and ' scruples which have been felt by some ' in reference to the declaration of belief ' required from persons who receive ' licence or are admitted to office in this ' Church.' It deals with a variety of matters of doctrine, and concludes with these statements, 'That this Church dis- ' claims intolerant or persecuting prin- ' ciples, and does not consider her office- ' bearers, in subscribing the Confession, ' committed to any principles inconsistent ' with liberty of conscience and the right ' of private judgment.' ' That while diversity of opinion is ' recognised in this Church on such points ' in the Confession as do not enter into ' the substance of the Reformed Faith ' therein set forth, the Church retains full ' authority to determine in any case* ' which may arise what points fall within ' this description, and thus to guard ' against any abuse of this liberty, to the ' detriment of sound doctrine, or to the ' injury of her unity and peace.' After the Act of 1892 was passed, those who were licensed or ordained to office in the Church were entitled in subscribing the Formula to do so in view of the said Act. The Act of 1892 was objected to by some persons in the Church. Some of these left the Free Church of Scotland, setting forth their views in a 'Deed of Separation by ' Ministers and Elders from the Free ' Church of Scotland, dated 14th August ' 1893.' The Deed objects to the De claratory Act, on the ground that it 'has ' destroyed the integrity of the Confession ' of Faith,' and instead of the Westminster Confession of Faith, 'has substituted ' what is called the substance of the ' Reformed Faith therein set forth.' The Appellants, however, remained in the Free Church, they raised no question, and those of them who are ministers continue to draw their emoluments from the Church as before. The alteration in the questions and formula made at the Union in 1900 is as follows. Prior to 1900, the question put to the candidate was as follows — ' Do ' you sincerely own and declare the Con- ' fession of Faith approven by General ' Assemblies of this Church to be the ' Confession of your Faith,' etc. This was altered to read as follows — ' Do you ' sincerely own and believe the Doctrine ' of this Church set forth in the Confes- RESPONDENTS' CASE 135 ' sion of Faith approven by Acts of ' General Synods and Assemblies,' etc. The expression 'General Synods' was introduced to show that the Confession of Faith had been approved by the Supreme Courts of the two uniting Churches — the Synod being the Supreme Court of the United Presbyterian Church, as it had also been of the Original Seces sion Church and the Reformed Presby terian Church, while the General Assembly was the Supreme Court of the Free Church. The phrase ' approven by Acts ' of General Synods ' must refer to past Acts, because ' General Synods ' (the title of the Supreme Court of the United Presbyterian Church which met annually) ceased from the time of the Union in October 1900, the Supreme Court of the United Church being the General Assembly. But this involves no de parture from Free Church principles, nor does it introduce any new or different test. The question is concerned only with faith or religious doctrine, and no attempt has been made to show that with regard to articles of rehgious doctrine any difference existed between the two Churches. H the question be read as covering also the civU magistrate's right and duty in regard to Establishments of Religion, stUl no new test is introduced. The General Synods had passed no Acts defining that right and duty. The matter stood in both Churches simply upon the language of the Confession of Faith, chap. xxiii. sec. 3, modified or relaxed in the Free Church of Scotland to this extent, that the Declaratory Act of 1892 dis claimed intolerant or persecuting prin ciples, and gave her office-bearers full liberty of conscience and the right of private judgment, and entitled persons signing the formula to do so in view of the Act of 1892. In the United Presby terian Church the Declaratory Act of 1879 ' disapproves of all compulsory or 'persecuting and intolerant principles _ in 'religion,' and altered the question relating to the Confession to read as follows — 'Do you acknowledge the Westminster ' Confession of Faith and the Larger and 'Shorter Catechisms as an exhibition of 'the sense in which you understand the 'Holy Scriptures,— this acknowledgment ' being made in view of the explanations 'contained in the Declaratory Act of ' Synod thereanent.' In regard to the alternative case pre sented by the Appellants, the contention of the Respondents is that it necessarily fails. The claim is that the Appellants are entitled to participate in the funds and property of the Free Church of Scotland, although the Appellants have never for mulated in what proportion or according to what standard, — whether in proportion to the amount of the funds contributed by them, or according to the number of their ministers, or elders, or members, or ad herents, — the property heritable or move able should, with or without realisation, be divided. But it is to be observed that it is the Appellants' case, that what happened in October 1900 was not a union of the Free Church of Scotland with the United Presbyterian Church, but an exodus from the Free Church of Scotland of a number of its members, and a resignation by them of their membership of the Church. In the Free Church Assembly there remained according to the Appellants — after the exodus — only twenty - seven members. These constituted the Assembly, and proceeded to appoint committees and transact business. If that view be sound, the Appellants may possibly be entitled to the whole of the property. If, however, the Union was a valid Union, competently entered into by the Free Church of Scot land, as the Respondents contend, then the Appellants in refusing to enter the United Church have deliberately severed themselves from the Free Church of Scot land, and have ceased to be members of it, or to have a right to any part of its property. In either view, the alternative claim put forward by the Appellants is, it is submitted, unfounded and unten able. The grounds of judgment of the Lord Ordinary (Lord Low) and of their Lord ships of the Second Division, are con tained in the following citations from their opinions : — 136 HOUSE OF Lord Low. — . . . 'The Free Church ' was framed as regards its judicatories — ' their powers, functions, and forms of ' procedure — upon the model of the Established Church of Scotland, and the General Assembly of the Established ' Church is a body which has not only judicial and executive but legislative ' powers. To go no further than the ' Barrier .Act, which I have mentioned, ' its terms are instructive, as showing ' the scope of the power of the General ' Assembly in the way of legislation. ' That Act speaks of Acts of Assemblies ' making "alterations or innovations "... in either doctrme or worship or " discipline or government," not for the ' purpose of restricting the powers of the ' General Assembly, but to secure, by the procedure enacted, that such alterations and innovations should not be sudden ' or to the prejudice of the Church. ' And, indeed, it was necessary that the ' Supreme Court and CouncU of the ' Church should have large powers of a ' legislative nature even in regard to ' matters of faith and doctrine. For ' example, the Established Church accepted the Westminster Confession as containing the sum and substance ' of the doctrine of the Reformed ' Churches. That confession is a docu- ' ment which is open to interpretation, ' and which has been interpreted in different senses, with equal confidence, by different sects. Accordingly, it was ' necessary that the Supreme Council of the Church should have the power, not ' only of deciding questions of doctrine ' which came before it judicially, but of ' declaring and enacting, as occasion required, for the peace or welfare of ' the Church, what was the sense in which the Church interpreted particular ' passages in the Confession of Faith, or, in other words, what the doctrine of the Church was. I am accordingly of opinion that the Declaratory Act ' of 1892, in regard to which there was a great deal of argument, passed as it ' was after a reference to the presbyteries ' under the Barrier Act, was a legitimate ' exercise of the power belonging to the ' General Assembly of the Free Church, ' and that the pursuers' case is not well ' LORDS founded in so far as it is rested on the averment that that Act was ultra vires of the Assembly. ' It is therefore necessary to examine the place which the Establishment principle held in the constitution of the Free Church, to see whether it was so essential that the majority of the Church, acting through the General Assembly and the presbyteries, having taken a step which involved that the principle was no longer regarded as essential, but as a matter of opinion, the dissentient minority are entitled to have it declared that they are truly the Free Church, and are entitled to the civil rights belonging to the Free Church. ' The claim, therefore, does not refer to the Establishment principle as an essential principle of the Church, but the principle is nevertheless affirmed, although in a parenthetical way, in the clause in which the essential doctrine and fundamental principle of the Headship of Christ is stated. ' The principle is stated in the form of three propositions, the first two being quotations from the Confession of Faith, and the third an adaptation of the language of the Confession. ' The first proposition is, that civil magistrates are ordained by God for His own glory and the public good ; and the second is, that it is the duty of people to pray for the magistrates, to pay them tribute, and to obey their lawful com mands. ' I do not suppose that any Protestant Church, which accepts the Confession of Faith, would take objection to these propositions. ' The third proposition, however, is in a different position, and as it is an adapta tion of Article 3 of chapter xxiii. of the Confession, I shaU take the exact words which I find there, a course to which the pursuers cannot object, as their view is that the Confession is unalterable. The article first declares that " the civil " magistrate may not assume to himself " administration of the word and sacra- " ments, or the power of the keys of the RESPONDENTS' CASE 137 ' " kingdom of heaven." It then pro- ' ceeds (and this is the part referred to in ' the third proposition in the claim) : ' " yet he hath authority, and it is his ' " duty, to take order that unity and ' " peace be preserved in the Church, ' " that the truth of God be kept pure ' " aud entire, that all blasphemies and 1 " heresies be suppressed, all corruptions ' " and abuses in worship and discipline ' " prevented and reformed, and all the ' " ordinances of God duly settled, ad- ' " ministered, and observed." ' It is plain that that passage is open ' to construction, because many different 1 views might be taken as to the method ' by which the civil magistrate ought to ' perform the duties ascribed to him. Let ' me take one example. It is laid down ' that the civil magistrate is " to take ' " order . . . that the truth of God ' " be kept pure and entire." To " take ' " order " means, I apprehend, to use the ' magisterial power, or (as the claim puts ' it) " the power of the sword." Then to ' keep " the truth of God pure and ' " entire " seems to me to be equivalent 'to saying "to maintain sound doctrine." ' Is it then the right and duty of the ' magistrate to intervene with the power ' of the sword to maintain sound doctrine ' in the Church ? The Free Church could ' not hold that view, because she left the ' Establishment on the ground that the ' civil magistrate had no right to interfere ' at all in spiritual matters. How the ' Free Church interpreted the third article ' of the chapter I do not know, nor do I ' know how the Established Church inter- ' preted it prior to the Disruption, because ' I am not aware of any Act of Parliament, ' or Act of Assembly, or other con- ' stitutional document, which defines the ' duty of the State to the Church, except ' the Westminster Confession. 'It seems to me that in face of that ' Act [Act of 1846] (providing as it does ' for so vital a matter as the profession of ' their faith to be made by entrants to the ' ministry) it is impossible to say that the 'Free Church regarded any particular ' method for the fulfilment by the civil ' magistrate of his duty to the Church as an essential and fundamental doctrine of the Church. ' It therefore appears to me that as a matter of creed the Free Church simply accepted the statement of the West minster Confession in regard to the duty of the civil magistrate, although as matter of opinion the founders of the Church gave their adhesion to the par ticular application of the duty to which effect had been given in Scotland. I have already pointed out that the Con fession states the duty of the magistrate in very general terms, which may be interpreted in different ways. I take it that the doctrine was so stated de signedly, because the question how best the civU magistrate may perform his duty to the Church is necessarily one of circumstances. Now, in Scotland, the State had recognised as the State Church, and had endowed, the Reformed Presby terian Church, and the founders of the Free Church accepted at the time of the Disruption that recognition and endow ment as being (so long as the State did not intervene in matters spiritual) a proper and sufficient carrying out by the State of the doctrine of the Confession. Until the Disruption, although there had been various secessions, the Established Church included a very large majority of those in the country who professed the Reformed Presbyterian faith. With the Disruption, however, there arose a Church — the Free Church — whose adherents were numerous and which was not in connection with the State. Then in 1847 two bodies, the Secession Church and the Relief Church, joined together and formed the United Presbyterian Church, which also came to be an important Church with numerous adherents. Thus in the latter part of the nineteenth century there were three large and important Presby terian Churches in Scotland, one of which alone was recognised and sup ported by the State. That was an entirely different position of matters from that which had been in the con templation of the founders of the Free Church when they declared their adherence to the form in which 138 HOUSE OF LORDS ' the State had discharged its duty ' to the Church in Scotland. There had ' come to be three Churches instead of 1 practically only one Church, and it ' seems to me that it was competent for ' the Free Church, without sacrificing 1 anything which was essential in her ' faith, doctrine, or constitution, to take ' the view that in the changed circum- ' stances it was expedient that each ' Church should be maintained by the ' liberality of its members, rather than ' that the State should select one alone ' to be supported out of public funds. ' I am therefore of opinion that the ' Union did not involve the giving up by ' the Free Church of any doctrine or ' principle which formed an essential or ' fundamental part of her creed or her ' constitution, but only involved the ' modification of views which the Church ' had held under different circumstances ' in regard to the apphcation of the ' doctrme of the Confession as to the ' duty of the State — a modification which, ' it appears to me, it was entirely within ' the power of the General Assembly to ' make. ' I have but one more remark to make ' upon this branch of the case, and ' that is, that the history of the Free ' Church since the Disruption shows that 1 the particular form of the duty of the ' State to the Church for which the pur- ' suers contend was not regarded as an ' essential matter. If the Establishment ' principle was an essential and funda- ' mental doctrine of the Church, then it ' must be conceded that until that ' principle received practical effect the ' Church was an imperfect and incomplete ' Church. As therefore the Free Church ' was from the beginning a Church of great ' zeal and possessed of considerable power ' and influence, one would have expected ' to find it straining every nerve to bring ' about such an alteration in the law that ' it might without sacrifice of principle ' resume its. connection with the State. ' But not a single act of that nature is ' averred, nor is any such act disclosed by ' the voluminous documents produced. ' On the contrary, the documents seem to ' me to show that the tendency of the Church was towards a permanent and avowed separation from the State ; and further, I imagine it to be a matter of common knowledge, that, if the views and efforts of the majority of the Free Church had been successful, an Established Church would have ceased to exist in Scotland long prior to the Union. ' For these reasons I am of opinion that the first ground upon which the pursuers claim the property, held in trust for the Free Church, fails. ' I think that the power to effect such a Union could be maintained upon the general ground of the duty of unity among Christians, but it seems to me that it is sufficient to say that the Free Church from a very early period re cognised and asserted that it had the power to unite with any other body of Christians holding the same faith. Thus immediately after the Disruption it became necessary to settle the terms under which the places of worship of the Free Church should be held, and in 1844 a Model Trust-Deed was prepared and approved of by the General Assembly. That Trust-Deed has been in use ever since, and the titles of nearly all the places of worship belonging to the Church are framed according to its terms. Under it the place of worship is vested in trustees " to be used as and for a " place of religious worship by a con- " gregation of the said body of Christians " called the Free Church of Scotland, or " of any united body of Christians com- " posed of them and of such other body " or bodies of Christians as the said Free " Church of Scotland may at any time " hereafter associate with themselves " under the foresaid name of the Free " Church of Scotland, or under what- " ever name or designation they may " assume." These words contemplate the very case which has now occurred, and make it plain that the Church all along asserted that she had power to make such a Union ; and if she had that power, it seems to me to be absurd to say that she could only exercise it if there was absolute unanimity among her members. RESPONDENTS' CASE 139 ' The pursuers claim alternatively that * they have right to participate in the ' funds and property of the Free Church. ' Now it seems to me that either the ' pursuers are the Free Church of Scot- ' land, and are therefore entitled to the ' whole funds and property held in trust ' for that Church, or they have entirely ' separated themselves from the Free ' Church, and have therefore no right to ' any part of its property. As my opinion ' is that the pursuers are not the Free ' Church of Scotland, it follows that I ' cannot hold them to be entitled to ' participate in the property of the ' Church.' Lord Justice Clerk. — . . . ' Upon the ' question whether it was an essential ' principle, without which the Free ' Church as constituted could not subsist, ' it is important to notice that it never ' was maintained that the Church could ' not fulfil all her functions without the ' aid of a State Establishment. This is ' self-evident, for the Christian Church in ' its early days had no king or government ' in any place in which its work was ' carried on that accepted Christianity. ' And it was plainly a question depending ' upon the circumstances and conditions ' whether, when any State became ' Christian in faith, its support should be ' accepted officially by the Church. It ' had to be considered necessarily with ' regard to the circumstances and the ' conditions coupled with it. Indeed, as ' regards the Church of Scotland itself, it ' affords historical illustration on this ' point. For it originally was a seceding ' Church, renouncing the Episcopal ' authority to which up to the Reforma- ' tion the whole Christian community had ' been submissive. ' Again, when later the State en- 'deavoured to reimpose Episcopacy, the ' Church of Scotland carried on _ its ' organisation and work, not only with- ' out connection with the State, but in ' active and determined opposition to it. ' The principle was throughout strenuously ' maintained that where there was an ' Establishment, if the State took up any 'position which was contrary to the ' conditions on which alone the Church ' could accept its aid, the Church could ' withdraw from its association with the ' State, and if it did so it would not the ' less continue to be the Church, as it was ' before. This was indeed the very ' ground taken up in the case under con- ' sideration by those who objected to ' the action of the State before the Dis- ' ruption, and which was expressed by ' those who formed the Free Church on ' the very day when they left the building ' in which the General Assembly was ' sitting in presence of the Lord High ' Commissioner of the Queen, and took ' upon themselves to assemble elsewhere. ' In more than one of the passages ' referred to, the expressions " fundamental ' " principle " and " great fundamental ' " principle " are used. An examination ' of the documents shows that the ex- ' pression " fundamental principle " was ' not one which was employed indis- : criminately and applied to numerous ¦' doctrines, but was specially used for : emphasis in regard to such things only ; which those using it held were essential ' to the Church's existence as a Church, : and which, if they gave up, she would cease to be a Church of Christ at all. ... I find in the documents only two declarations in which the expression " fundamental principles " is used in connection with a statement as to the relation of the State to the Church. The Free Assembly in 1871 formulated the following declarations : — " Having respect to the past history, " the present position, and the future " prospects of this great Union question, " the Assembly think it fitting at this " juncture to declare their unalterable " adherence, in common, as they believe, " with that of all their people, to the : " great fundamental and characteristic " principles of this Church regarding — ' " (1) The sole and supreme authority " of the Lord Jesus Christ, and His : " exclusive right to rule in and over His " Church, and the consequent obligation " of His Church to be regulated in all " her proceedings by His Word alone. ; " For which end she claims, in all " spiritual matters complete independ- " ence and immunity from all coercion 140 HOUSE OF LORDS " and control from without. And re- " garding — ' " 2. The prerogative of the same Lord " Jesus Christ as Head over all things " to His Church, and supreme over " nations and their rulers, who are con- " sequently bound, collectively and " officially, as well as individually and " personally, to own and honour His " authority, to further the interests of " His holy religion, and to accept the " guidance of His Word as making " known His mind and wUl. ' " And the Assembly in the circum- " stances foresaid think it fitting also " to declare that this Church can never " consistently or conscientiously enter " into any union that would imply the " abandoning or compromising of either " of these essential principles, which are " divine and unalterable truths." ' The other declaration is in the Act re lating to Mutual Eligibility of Ministers, passed by the Free Church Assembly in 1873. I agree with the Lord Ordinary in thinking that these declarations are not such as affirm anything which could not be affirmed by those who are opposed to a State Establishment or endowment. They seem only to emphasize what it must be the duty of the Church, in the exercise of its spiritual functions, to preach and teach to the State as a matter of duty, and only repudiate the idea that in a Christian community the civil ruler can consistently with his duty fufil his functions, regardless of the Divine authority and principles as ex pressed in the Holy Scriptures. And accordingly it was with these declara tions standing that the Union was ultimately effected. They show that the negotiations which led up to the Union were conducted by the great majority of the Free Church, who were favour able to it, on the footing that "there "was no objection in principle to the " formation of an incorporating union " (resolution of the General Assembly of the Free Church in 1871), while they acknowledge that "much consideration "is due to the difficulties which still "appear to an important minority of " esteemed and honoured brethren to "stand in the way." ' It thus appears that while in the ' early days of the Free Church's exist- ' ence very great importance was attached * to the principle of a Civil Establishment ' of religion, it was treated as subordinate, ' in the sense that it was in no way vital ' to the existence of the Church, and ' must be repudiated, and its benefits ' rejected, if the terms upon which the ' State might insist should be contrary to ' the spiritual liberty and authority of the ' Church in its own region. This view ' of the matter is very forcibly put by ' the Judges in the case of Smith v. ' Galbraith, and the views there expressed ' seem to me in their essential particulars ' to bear upon this case. I abstain from ' quotation, but the opinions are well ' worthy of study, and it is not easy to ' say how a judgment in favour of the ' pursuers in this case could be reconciled ' with that decision, which is, I think, ' substantially in point as regards the ' opinion expressed by the Judges, ' although the case may not rule the ' present. ' What, then, are the matters to which ' this Barrier Act is to be apphed 1 They ' are four — doctrine, worship, discipline, ' and government — and certainly they are ' very comprehensive, and there is no ' restriction or limitation, but absolute ' generality. It might be a question ' whether, under the head of doctrine, an ' unlimited power existed — whether, for ' example, doctrines which go to the ' foundations of Christianity, such as the ' doctrine of the Incarnation, or of the ' Resurrection, could be declared no longer ' to be the doctrines of the Church. It ' would be difficult to say that a majority, ' however great, could, under a power to ' innovate, so subvert the very foundations ' of the faith, and shut out a minority ' who held fast by these doctrines and ' refused to become anti-Christian. But ' can it be said that, given a power to ' change declaration of doctrine, that power ' cannot be exercised on such a question as 1 that involved in the present case, which ' touches only the relations of the State ' to the Church, not as fundamental, to ' the Church's existence, nor as regards ' either the Free Church or the United RESPONDENTS' ' Presbyterian Church having ever formed ' a test of membership, or of admission to ' communion ? I cannot answer that ' question affirmatively. However strong- ' ly the doctrine of State Establishment ' of religion may have been held at the ' time of the Disruption, I cannot hold ' that if the " general opinion " of the Free ' Church agreed to an innovation, under ' which that doctrine, either in whole or part, ceased to he officially held by CASE 141 as a whole, unless some act has been 'in _ ' the Church through its Assembly, after ' the proper and regular procedure, that ' the minority who dissented were entitled ' to a declarator and interdict in a court of ' law such as the pursuers here demand. 'It is worthy of notice, in conclusion, ' that the matter in dispute in this case ' relates really to the question whether it ' is the majority which has united with ' the United Presbyterian Church, or the 1 minority who repudiate the Union, that ' is carrying out the objects of the great 'Protest of 1842 and 1843 "more faith- ' " fully " the one than the other. Now, ' such a case is expressly provided for in ' the Model Trust-Deed of the Free Church, ' which has a strong bearing upon the ' cases in which office-bearers and persons ' connected with individual congregations ' have raised actions against the United ' Free Church in regard to the right to ' churches occupied by these congregations. ' These churches are all held by trustees ' under this Model Trust-Deed, and are ' therefore to be administered by the trus- ' tees, under the authority and direction ' of the Church through its courts. That ' deed gives a power of secession, carrying ' the property with it, to a minority in ' certain circumstances. Had it been the ' case here that one-third, or more than ' one-third, of the ordained ministers of ' the Free Church separated from the Free ' Church on this question, then a majority ' of a congregation, who agreed with the ' minority dissenting, would have been ' entitled to keep the church in which ' they worshipped, or to have it made over 'by the trustees of the Free Church to ' trustees to be nominated. But this very ' right conferred on a minority of a certain ' strength is a negative to the claims of a ' small minority of persons to claim the ' property belonging to the Free Church ' done by the great majority which they ' had no right to do under the constitution ' which the Free Church had established ' for itself. Holding, as I do, that the ' Free Church had the right, by its ' Assembly, to do what has has been done, ' and that the regularity of the procedure ' in doing it cannot be impugned, I would ' move your Lordships to adhere to the ' judgments of the Lord Ordinary in the ' different cases before us, with this differ- ' ence, that in the principal case, as it has ' been heard before us, as on a concluded ' proof, the Interlocutor should be one of ' absolvitor as in a concluded cause.' Lord Young. — . . . 'What, then, are the legal grounds on which the union in question is challenged ? The first is, that the assent of the Free Church Assembly was not unanimous, which is, I think, too obviously untenable to call for an answer. The second is stated by the Lord Ordinary as presenting what seem to his Lordship to be the serious questions in the case, viz., whether it was "an essential doctrine and funda- " mental principle in the constitution of "the Free Church, that it is the right " and duty of the civil magistrate (the "State) to maintain and support an " Establishment of religion in accordance " with God's Word, and whether the " union with the United Presbyterian " Church necessarily involved an aband- " onment of that principle " by the Free Church. The pursuers ask for an affirmative answer to both questions. Neither of them is a question of law — at least I know of no statutes or rules of the common law, and we were referred to none, which inform us what is or is not an essential doctrine and fundamental principle of the Free Church or of the United Presbyterian Church, or whether they are in conflict or agreement on any specified doctrine and principle. Re garded as questions of fact, supposing we had jurisdiction to dispose of them, we could not possibly do so without allowing a proof at large or sending them for trial by jury. Of course, if it be the law that no two dissenting churches ean lawfully unite if either differ from the other 142 HOUSE OF LORDS upon any religious doctrine or funda mental principle, and that the question whether they do or not must be deter mined by a court of law, on being ap pealed to by a member of either who dissents from the Union, — I say, if the law be so, we must encounter and deal with the difficulties, whether of fact or law, which such appeal, when made to us, may present. ' I think, however, that the law is not so, my opinion being that any two or more dissenting churches may lawfully unite so as to form themselves into one Church, and that nothing more is necessary to the union than their own consent, which they are respectively free to give or -withhold, and that this Court has no jurisdiction to annul a union so made, on the ground that the churches who made it proceeded on views of their respective doctrines and religious principles which we think erroneous. Before proceeding to questions regarding the property referred to in the summons and claimed by the pursuers, I desire to say that there is, in my opinion, no rule of law to prevent a dissenting church from abandoning a religious doctrine or principle, however essential and fundamental, or from return ing to it again with or without qualification or modification. ' Whether or not a property title is such that a forfeiture of property will follow such abandonment or return is another matter. The property claimed by the pursuers is thus specified in the first declaratory conclusion of the summons : " The whole lands, property, " sums of money, and others which " stood vested as at 30th October 1900," in the persons named in the conclusion, and there designated " as general trustees " of the Free Church of Scotland." These persons were appointed by the Church to hold its property and use it as ordered. The words of the conclusion taken literally might (seem to) import that these "general trustees of the Free "Church" held the property "under "various trusts" for various purposes specified in various deeds. But, as was explained to us by counsel, this was not meant, and is not according to fact, the truth being that the whole property, land, and money which, at the date of the Union, stood vested in the general trustees of the Free Church was the absolute property of that Church. No special or limited title has been produced or referred to as existing. But this is a topic which I need not dwell upon, for taken either way the result as regards the point I am about to deal with is the same. That point is, that dissenting Churches who unite together, as the Free Church and the United Presbyterian Church did here, and assuming the validity of the Union, may lawf uUy take their respective properties with them into the Union, and indeed always do so, the United Church having the title thereto (absolute or limited) which the several Churches respectively had before the Union. It f oUows that no person or class of persons who before the Union had a legal right to require the Free Church to use in a certain manner specified property vested in its trustees, or to refrain from using it in a certain manner, can be prejudiced by the Union, the same legal right existing against the United Church which existed against the Free Church. The United Church is, indeed, the Free Church with an increased membership. I do not think it is reasonably arguable that dissenting Churches with property possessed on titles, whether absolute or limited by qualifications favourable to others, cannot unite without clearing themselves of it so as to enter the Union landless and penniless. When the two Churches united, they, as matter of course, took into the Union their respective churches and manses to be used as churches and manses of the United Church, and exactly as they had been, with only this change (hardly, if at all, appreciable, considered as a use of property) that members of the United Church might become seatholders in any of them ; and pastors of the United Church, if regularly chosen and elected, become incumbents of any of them and occupiers of their manses. The only objection to this which the pursuers' argument suggests is, that members of the Free Church are (as they say), by the terms of the titles on which its churches are held, protected against RESPONDENTS' CASE 143 ' being associated therein with seatholders ' and worshippers who do not hold it ' an essential doctrine and fundamental 1 principle of religious belief, that it is the : duty of the State to maintain and support ' an Estabhshed Church. It is, I think, ' enough to say, although I have already ' perhaps sufficiently expressed my views ' on the subject, that no church or manse ' of the Free Church is held on a different ' title now than it was before 30 th ' October 1900, and that any of His ' Majesty's subjects who can relevantly ' aver and establish that any such church or ' manse is being used to his prejudice in ' violation of the title, or otherwise than ' the title warrants, will have remedy and ' protection in a court of law. No such ' case is presented by the pursuers, who ' found on no special title to any property, ' and allege no use by the United Church, ' or by any of the defenders, of the ' property in question other than was ' lawfully made of it before 30th October ' 1900. ' H the Union in question is a valid ' Union, which we cannot annul, the ' whole case presented by the pursuers ' necessarily fails, for the property in ' question belongs to the Free Church, ' which is in the Union, which the pur- ' suers admittedly are not. Their case, ' indeed, is that the Act of the General ' Assembly of 30th October 1900 was not ' a consent to or enactment of union with ' the United Presbyterian Church, but an ' exodus of 643 individuals from the ' Church, and resignation by each of them ' of his membership of its Assembly, ' leaving in it a residue of 27, who there- ' upon constituted the Assembly, which, ' with this remnant of members, was en- ' titled to immediately proceed to business, ' as it did, passing Acts, appointing ' trustees to receive and hold the property ' of the Church, and within six weeks, I ' think, raising this action. I have ' already noticed that the argument for ' the pursuers went the length of eon- ' tending that a remnant of only one man ' who, with sound views on the subject ' of Church Establishment, voted against 1 the proposed Union, would have been ' equaUy fatal to it, and entitled him to * have vested in himself, or trustees ' nominated by him, the whole property ' of the Church from which all but him- ' self had fled. 'I have, I hope, sufficiently expressed ' and explained the grounds of my opinion, ' that we can in this action take no ' account of or adjudicate upon the re- ' ligious views and opinions of either the ' Free or the U.P. Church or the propriety ' and expediency (or the reverse) of their ' union. We can, and indeed must, ' decide any dispute which may be brought ' before us regarding the disposal or use ' of property vested in either or in both * united, but we can and must do so upon ' the law which governs the rights and ob- ' ligations of the disputants, having regard ' to the titles on which the property is held ' and contracts affecting it. A question of ' creed and form of worship may thus ' possibly come before a court of law, in a : dispute regarding the use of a church or ' manse, held on a title which specifies ' and limits the use. Money vested in ' the trustees of a beneficent donor, to a ' church or association of worshippers to ' be used in promoting a specified or ' otherwise clearly indicated religious ' creed, may in like manner be the ' subject of question in a court of law — ' the question, of course, being whether or ' not the money is being used according to ' the trust on which it is held. But when ' land is conveyed or money is bequeathed ' in ex facie absolute property to a church ' or association of religious worshippers, I ' cannot assent to the proposition that a ' court of law must or may regard the ' title as limited and qualified by reference, ' not expressed but assumed, to be implied ' to " the essential doctrines and f unda- ' "mental principles in the Constitution ' "of the Church" or association, the ' questions (for they may be numerous) ' what these are being, in case of dispute, ' decided by the Court as questions of law ' or fact. In this case we have been de- * sired to read and consider over ninety ' pre-Disruption, post-Disruption, and Free ' Church documents, all produced as show- ' ing " the essential doctrines and funda- ' " mental principles " of the Free Church, ' and to read and consider them with the ' aid of much argument as to their import ' and meaning, about which the parties 144 HOUSE OF LORDS 1 differ, i am clearly of opinion that an ' ex facie absolute property title, whether ' in land or money in a Church or associ- ' ation cannot be thus limited and qualified, ' or the Church or association thereby ' hindered from exercising its otherwise ' undoubted right of modifying or even ' renouncing any doctrine or principle ' however fundamental. I am not to be ' understood as indicating an impression, ' created by anything which the pursuers ' have brought under our notice, or any- ' how, that the defenders by the Union in ' question renounced or modified any ' doctrine or principle whatever of their ' Church. I mean only that it was for ' them, and the Church with which they ' united, and not for this Court, to judge 1 of the matter, and that no good ground ' has been presented for our interference ' with their decision. Upon these grounds ' and for these reasons the pursuers must ' fail and the defenders must succeed.' Lord Trayner. — . . . ' The grounds of ' complaint alleged by the pursuers against ' the defenders are, as far as I could dis- ' cover, two — First, it is said that whereas ' the Free Church held as essential and ' fundamental, and as part of its constitu- ' tion, the doctrine of Church Establish- ' ment, the defenders had departed from ' that by uniting themselves with another ' association which repudiated that doct- ' rine and professed the contrary doctrine of ' Voluntaryism. Second, that whereas the ' Free Church had required from its ' ministers and elders subscription to a ' formula, by which they acknowledged ' the Westminster Confession of Faith ' "approven by former General As- ' " semblies " to be the confession of their ' faith, the formula now adopted by the ' Free Church (in conjunction with the 1 other Church it had joined) requires ' ministers and elders to profess their 1 belief in the Westminster Confession '¦ "approven by Acts of General Synods ; " and Assemblies." It was said that the '• difference in the formulae introduced a - fluctuating standard for a fixed and un changeable standard of belief. ' I think it convenient to deal first with this second ground of complaint. I have been unable to discover any real or tangible ground upon which it can rest. The formulae appear to me to be essentially the same. The introduction of the words " General Synods and "Assemblies" became appropriate, if not necessary, in the formula of the United Church, because it requires candidates for orders to recognise the construction put upon the Westminster Confession, by the chief judicatory of each of the Churches — now united — when they were separate bodies, that is, the General Assemblies of the Free Church and the General Synods of the United Presby terian Church. It would have been important if it could have been shown that the interpretation or construction put by these bodies respectively on the Westminster Confession was inconsistent or contradictory. But this the pursuers have failed to show. So far as appears, the Churches which now form the United Church are, and have always been, agreed on the meaning and con struction of the Westminster Confession in so far as any matter of faith or religious doctrine is concerned, and it is with matter of faith and religious doctrine that the formulae are alone concerned. That the Free Church and United Presbyterian Church differed as to the 3rd section of the 23rd chapter of the Westminster Confession to some extent is true. The difference, however, was not concerning a matter of faith, but of polity. Nor do I see anything in the new formula to suggest that the standard which has now to be acknow ledged and professed is less rigid than it was before. If any change is introduced it must be one "approven" by the principal judicatory of the Church, and in regard to this the formulas do not differ. ' 2. Was the Establishment principle an ' essential or fundamental principle of the ' Free Church 1 or did its abandonment ' violate the terms of its constitution 1 I ' answer both of these questions in the 1 negative. The principle in question ' was never regarded or put forward as de ' fide ; at the most it was a principle of ' polity, of government, of management. ' The essential principles of the Free RESPONDENTS' CASE Church, as they were in the earlier years of its history, repeated again and again, were the Headship of Christ, and the consequent independence of His Church (independence, that is, of the civil ruler) in matters religious or ecclesiastical. The Establishment prin ciple is never once referred to as essential or fundamental, nor presented as a principle on the same platform with : those I have named. That it was frequently referred to in the Protest and ; other documents at the time of the ' Disruption as a principle which, not- ; withstanding their separation from the -' State, they still professed, is true, and ' the Lord Ordinary has shown how ' natural it was that it should be so. But, ' I repeat, it was never set forth as an ' essential principle of the constitution of ' the Free Church. What after all is this ' principle to which the Free Church at ' the Disruption declared its adherence ? ' It is that contained in the 3rd section of ' the 23rd chapter of the Westminster ' Confession, which sets forth the view or ' opinion which the Reformed Church ' held regarding the duty of the civil ' magistrate. Now it appears to me ' difficult to hold that a mere opinion as ' to what some third person was bound to ' do, which he might neglect or refuse to ' do, and which the Church could not ' compel him to do, could in any way be ' an essential part of the constitution of ' the Church which held that opinion. ' The Church existed whether the civil ' magistrate did his duty or not. Indeed, ' the Establishment principle could scarcely ' be regarded as an essential or funda- ' mental principle which all the members ' of the Free Church were bound to hold ' and maintain, because that principle, as ' laid down in the Westminster Confes- ' sion, was so vague, both as to the ' character of the civil magistrate's duty ' and the manner of performing it, that a ' great variety of opinion might exist (and 1 doubtless did exist) in regard to it. It ' was not a well - defined principle like ; spiritual independence in matters sacred : of ecclesiastical, or the non-intrusion of 1 ministers. " Besides what I have said, it is not without importance to keep in mind 145 that the history of the Free Church shows that as a Church, and apart from the opinions held by some individual members of it, it did not regard the Establishment principle as one of its fundamental or essential principles. It was from the commencement of its ex istence down to the date of its union a Church conducted and maintained, in point of fact, according to the voluntary principle. If in theory it was something else, the theory did not square with the fact. But even the theory that it was based upon the Establishment principle can scarcely be maintained in face of this other fact— that the Free Church not only did nothing to give effect to the Establishment principle so as to make it of any practical avail, but on the contrary devoted much of its time and energy to bring about (if it could) the disestablishment of the Church of Scotland. In a word, the principle of Establishment was, from an early period in the history of the Free Church, treated as a dead letter. ' Lastly, on this branch of the case, while I cannot say (as was urged by the defenders) that the decision in the case of Smith v. Galbraith is a decision of the question here at issue, yet it appears to me that the opinions delivered by the Judges who decided that case are in principle adverse to the pursuers' contention here. ' But esto that the Establishment prin ciple had been explicitly declared in 1843 to be an essential principle of the Free Church, I think the Church had the power to abandon that principle and to that extent alter the original constitution. ' In the first place, if that principle had no bearing upon the constitution of the Free Church, except as affecting its polity or management, I am disposed to think that it could be modified, altered, or abandoned by the voice of the majority duly or deliberately taken. But, in the second place, I think the Free Church (before the Union) had the power under its constitution to alter its principles, if in order to do so it observed certain well-defined pro cedure.' 146 HOUSE OF LORDS In the Act of Separation and Deed of Demission, by which 'at the Disruption ' in May 1843 the ministers and elders ' abdicated and renounced their status as • ministers and elders of the Established ' Church, it was declared they they did ' not abandon their right to "perform freely ' " and fully the functions of their offices ' " towards their respective congrega- ' " tions " ; and, further, " that they are ' " and shall be free to exercise govern- ' " ment and discipline in their several ' " judicatories separate from the Establish- ' " ment according to God's Word, and ' " the constitution and standards of the 1 " Church of Scotland as heretofore under- ' " stood." The effect of that declaration 1 was just this, that the Free Church ' should, as regards its judicatories and ' their jurisdiction, be as they had hitherto ' been in the Established Church, the only ' difference between the two Churches (as ' was indeed much emphasized) being that ' the Free Church declined to recognise ' that exercise of its powers by the civil ' court in which the Established Church ' had acquiesced. Now, at the time when ' that declaration was made, one of the ' Acts of Assembly of the Established ' Church, in full force and observance, was ' the Barrier Act. By that Act it was ' provided that, to prevent sudden alteration ' or innovation or other prejudice to the ' Church in either doctrine or worship or ' discipline or government, the General ' Assembly should not pass any Acts " to ' " be binding rules and constitutions to ' " the Church " until the same had been ' submitted to the several presbyteries, ' after which the Assembly might " pass ' " the same in Acts, if the more general ' " opinion of the Church thus had agree ' " thereunto." That Act became part of ' the law of the Free Church by adoption, • and they certainly acted upon it before ' the Union. In connection with this Act ' the Lord Ordinary points out that it ' conferred on the Assembly of the Estab- ' lished Church a certain legislative power, ' and I agree with him. But the State ' was no party to the Barrier Act, and ' therefore the exercise of any power under ' it by the Established Church would be ' liable to be called in question by the 1 State. No one, however, in the Free Church could call in question the exer cise of powers (conferred by the Barrier Act) by the Free Church, because no one was concerned in its adoption except the members of the Free Church themselves. It was among them part of the contract — the constitution — by which and under which they were united. Each member of the Free Church in 1843 was a party to the adoption of the Barrier Act, and every one who subsequently became a member did so on the condition that that Act formed part of the law of the Association. It may be that under the Barrier Act the Free Church had not absolutely unrestricted power of legisla tion, or that it did not authorise any or every change in matter of doctrine, worship, discipline, or government, although it conferred large powers in that direction. For example, it may be thought that the Barrier Act would not be held to authorise an Act declaring that the Church no longer held the doctrine of the divinity of Christ, because then it would have ceased to be a Christian Church; nor to authorise the declaration that the Church was there after to be governed by bishops, because then it would have ceased to be a Presbyterian Church. I am not prepared to say that even these extreme cases would not have been covered by the wide terms of the Barrier Act, for that Act contains no limitation of the power to make alterations regarding the doctrine, worship, discipline, or government of the Church. But changes less radical than these which I have supposed, or changes which did not materially alter the character and rehgious tenets of the Church or its peculiar form of govern ment, were, in my opinion, authorised by the Barrier Act. I am of opinion, therefore, that assuming the principle of Establishment to have been a distinctive doctrine of the Free Church, it was quite competent for the General Assembly to alter or abandon it, if it was found — on adopting the procedure appointed to be observed by the Barrier Act (which was done) — that "the more general opinion " of the Church agreed thereunto." ' On the whole matter, the Respondents RESPONDENTS' CASE Submit that the Interlocutors appealed Appeal should against are well founded, and that the be dismissed following among other 147 for the REASONS. 1. Because the Free Church of Scotland in entering into the Union with the United Presbyterian Church in October 1900, took no step which was not consistent with the principles of her constitution. 2. Because the Union was a Union upon the standards professed by each of the two Churches concerned, and these standards were in substance identical. 3. Because even if the steps taken by the Free Church in entering into the said Union amounted, as the Appellants contend, to a modification of the standards of the Church, the Free Church of Scotland was en titled, in virtue of her inherent rights and liberties as a voluntary association of persons united to gether for religious purposes, to make the modification in question. 4. Because independently of and apart from the last foregoing reason, having regard to the terms of the Barrier Act, it was within the competency of the Free Church of Scotland, by observing the provisions and adopt ing the procedure prescribed by the said Act, to effect the Union in question, and the Union was in point of fact effected in this manner. 5. Because there is no averment in the present case of any trust except for the Free Church of Scotland, which is a self-governing body, and there is accordingly no averment of any special trust for the Appellants or those whom they represent. 6. Because the funds and property in question having been held by trustees 'for behoof of the Free ' Church of Scotland,' and the Church having competently entered into said Union, the said funds and property now belong to the United Free Church of Scotland. 7. Because the Appellants have separated themselves from the Free Church of Scotland and set up a distinct and separate organisation, and in so doing have ceased to have any right or title to property formerly held for behoof of the Free Church of Scotland, and now held for behoof of the United Free Church of Scotland. A. Asher. R. B. Haldane. Charles J. Guthrie. R. L. Orr. YII IN THE HOUSE OF LORDS MODEL TRUST DEED CASE APPELLANTS' CASE This is an Appeal against a judgment of the Second Division of the Court of Session in an action of declarator and interdict raised of this date at the instance of (1) Robert Young, residing at 2 Merchiston Place, Edinburgh, and James Harvey Clason, residing at 8 Merchiston Crescent, Edinburgh, describing themselves as the whole existing and acting Trustees of the Congregation belonging and adhering to the Body of Christians caUed the United Free Church of Scotland, and now or lately worshipping at the Church known as the Free Buccleuch and Greyfriars Church, Edinburgh ; (2) The Reverend Robert Rainy, Doctor of Divinity, Moderator of the General Assembly of the United Free Church of Scotland held in Edinburgh in October and November 1900, and the Reverend Andrew Melville, Doctor of Divinity, Reverend Archibald Henderson, Doctor of Divinity, Reverend Thomas Kennedy, Doctor of Divinity, and the Reverend Thomas Blair, Doctor of Divinity, principal Clerks of the said General Assembly, — ¦ Pursuers ; against the present Appellants, the Reverend Donald M'Kinnon Macalister and Others, — Defenders. [Then follows the Closed Record as printed on pages 44 to 55.] The cause having come to depend before Lord Low, Ordinary, his Lordship of the respective dates specified pronounced the interlocutors under written : — INTERLOCUTORS. Edinburgh, 8th June 1901. — The Lord Of this date,1 the Lord Ordinary having Ordinary appoints the cause to be put to heard counsel for the parties, made avizan- the Adjustment Roll of Tuesday, 11th dum. Of this other date2 the Lord curt. A. Low. Ordinary pronounced the following inter locutor : — 11th June 1901. — Lord Low — Act. Orr — A It. Christie. — The Lord Ordinary 'Edinburgh, 9th August 1901. — The closes the Record on the Summons, ' Lord Ordinary having considered the Defences, and Answers, Nos. 1, 9, and ' cause, finds, decerns, and declares hi 10 of Process, and appoints the cause to ' terms of the conclusions of the summons be put to the Procedure Roll. ' for declarator : Finds, decerns, and ordains A. Low. i 21st June 1901. 2 9th August 1901. MODEL TRUST DEED ' in terms of the conclusion for possession ' of the subjects and others described in ' the summons, and interdicts, prohibits ' and discharges in terms of the conclusions ' for interdict, and decerns : Finds the ' pursuers entitled to expenses : Allows an ' account thereof to be given in, and remits ' the same when lodged to the Auditor to ' tax and report. A. Low.' The foUowing note was appended to the interlocutor : — ' I refer to my opinion in ' the cases of the Reverend Colin A. ' Bannatyne and Others v. Lord Overtoun ' and Others, and the Reverend Ronald ' Dingwall and Others v. John M'lver ' and Others. — A. L.' The opinion referred to in said note pronounced in the case of Reverend Ronald Dingwall and Others against John M'lver and Others will be found on pp. 64 and 65. The case of the Reverend Colin A. Bannatyne and Others v. Lord Overtoun and Others has been appealed to your Lordships' House of the same date as this present case, and the opinion of the Lord Ordinary therein is printed in the Appen dix to that case, to which reference is respectfully made. That case is the lead ing one of a series, of which the present case is also one, in which questions as to interest in church property, arising out of an alleged union between a large number of ministers and members of the Free Church of Scotland and the United Presbyterian Church, are submitted for the determination of the Court. In that leading case a large number of productions were submitted and certain admissions made, which, of consent of parties, were treated as applicable to all the cases, CASE: APPELLANTS 149 including the present one. These are printed in the Appendix to the case of Reverend Colin Bannatyne and Others against Lord Overtoun and Others, lodged before your Lordships' House of even date with this case, and reference is respectfully made to said Appendix, a copy of which is produced as a production in this case. Against the interlocutor of the Lord Ordinary the pursuers of this date appealed to the Second Division of the Court of Session, and of this other date the said Division having heard counsel for parties made avizandum. Of this other date said Division nounced the following Interlocutor :- the pro- ' Edinburgh, 4th July 1902.— The Lords ' having heard counsel for parties on the 1 defenders' Reclaiming Note against Lord ' Low's interlocutor of 9th August 1901, ' Refuse the Reclaiming Note, Adhere to ' the said interlocutor reclaimed against, ' and Decern : Find the pursuers entitled ' to additional expenses : Remit to the ' Auditor to tax the same and to report. ' J. H. A. Macdonald, I.P.D: Their Lordships did not pronounce separate opinions in this and the other subsidiary cases, their views in regard to them being expressed in their opinions delivered in the case of Bannatyne and Others against Lord Overtoun and Others, to which reference is respectfully made as printed in the Appendix to that case. The appellants being humbly of opinion that the said interlocutors are erroneous and contrary to law aud equity have appealed therefrom to your Lordships' Right Honourable House. SUPPLEMENTARY STATEMENT for Appellants. The action in which this Appeal is brought is one of a series arising out of the course pursued by a large majority of the members of the General Assembly and Presbyteries of an association or body of Christians known as the Free Church of Scotland, entering into an in corporating union with another association of Christians known as the United Pres byterian Church, and forming a new association known as the United Free Church of Scotland. Upon said majority of General Assembly on 30th October 1900 resolving to enter into this union, a minority of members of Assembly refused, to follow them, arid elected to i5o remain associated under of the Free Church of Scotland as there tofore existing, and claimed to carry on the corporate existence of that Church, maintaining that the proposed Union in volved departures upon essential points from doctrines and principles peculiar to the Free Church, and that it was ultra vires of the majority. To this minority there subsequently adhered about ninety congregations scattered over Scotland, but mainly in the Highlands, representing a very large number of office-bearers, mem bers, and adherents of the Free Church. An action was raised by the representa tives of this minority in the Court of Session (Bannatyne and Others v. Over toun and Others),1 in which an Appeal has been taken to your Lordships' House of even date with the present Appeal. The appellants respectfully refer to the case for the appellants in that action (hereinafter referred to as 'the principal ' action ') for a full statement of the grounds upon which they, in common with those to whom they adhere, main tain the illegality of the Union in question. Upon the formation of the United Free Church it was found that in many cases large majorities of congregations, and in some instances practically the entire congregation, adhered to the min ority, and desired to continue to worship in the church buUdings hitherto enjoyed by them in connection with the Free Church of Scotland. The General As sembly of the United Free Church or its Commission thereupon instructed pro ceedings to be taken with the view of ousting these congregations from and obtaining possession of the Church buUd ings occupied by them. Of such actions at least five have been raised in the Court of Session, four of which were disposed of by the Lord Ordinary and the Second Division of the Court of Session of even date with the principal action, which itself related to property held, not for particular congregations, but for the Church as a whole. The present Appeal is taken in one of these four actions which the parties have agreed to treat as typical of, and as a test case in which to try the 1 4 Fras. (Ot, of Sess. Rep. 5th Ser.), 1083, HOUSE OF LORDS the constitution questions raised in, them, all relating to Church fabrics, congregations. etc., held for particular The special action in which this Appeal is taken is brought (first) by two gentle men describing themselves as ' the whole ' existing and acting trustees for the ' congregation belonging and adhering to ' the body of Christians called the United ' Free Church of Scotland, and now or ' lately worshipping at the church known ' as "the Free Buccleuch and Greyfriars ' " Church, Edinburgh," ' and (second) ' the ' Moderator and principal clerks of the ' General Assembly of the United Free ' Church of Scotland, held in Edinburgh ' in October and November 1900.' It is directed against (first) the two ministers in pastoral charge of the said congrega tion as at 30th October 1900, and (second) twelve other gentlemen, of whom, it is stated in the Condescendence,1 that the first five named were elders, and the remainder were deacons in the congrega tion prior to said date. The action con cludes (first) for declarator that certain subjects (four in number) described in the summons, and which are stated to be now occupied by the buildings of said 'Free ' Buccleuch and Greyfriars Church,' and appurtenances thereof, 'pertain heritably ' and in property with the said buildings ' now erected thereon to the pursuers, the ' said Robert Young and James Harvie ' Clason, as trustees for the said congrega- ' tion of the United Free Church of Scot- ' land, in terms of and for the trust ' purposes contained and referred to in ' the Feu Charter of said subjects granted ' to the said pursuers and others as ' trustees, by one James Watson, dated ' 13th, and recorded in the Register 'of Sasines 14th November 1865'; (second) for declarator that the said pur suers as trustees foresaid are entitled to possession of the said pieces of ground and the buUdings of said church and appurtenances thereof for the purposes contained and referred to in said Feu Charter; (third) for declarator that the defenders have no right or title of property or possession in the said subjects and others; (fourth) for a decree ordaining * Cond. 3 and 5, MODEL TRUST DEED the defenders to cede to the pursuers first named as trustees foresaid the said sub jects ; and (fifth) for interdict against the two defenders first named (the ministers of the congregation) ' from preaching and ' expounding the holy Scriptures and ' administering ordinances within said ' church, by themselves or by others ' acting under their permission or autho- ' rity,' and against the whole defenders ' from interfering with the said pursuers ' in the peaceable enjoyment of their ' rights in and over the said subjects.' In their Condescendence x the pursuers, after setting forth the title upon which the subjects are said to be held, narrate that in 1897 the Free Buccleuch Church, of which the defender, the Rev. Robert Gordon, was minister, united with another Free Church congregation in Edinburgh, named Free Greyfriars Church, of which the defender, the Reverend Donald Mac kinnon Macalister, was minister. Since then, the name of the united congrega tion has been Free Buccleuch and Grey friars Church, and both these defenders have been ministers of the said united congregation.2 Until 31st October 1900, the congregation worshipping in Free Buccleuch and Greyfriars Church, under the pastoral charge of the defenders, the said Reverend Robert Gordon, and the said Reverend Donald Mackinnon Mac alister, was a congregation in connection with the Free Church of Scotland, and the survivors of the trustees named in said feu-charter, viz., the two first-named pursuers and the said Reverend Robert Gordon, held the subjects therein de scribed for their behoof as such. They further allege that upon 31st October 1900, the Free Church of Scotland united with another body of Christians known as the United Presbyterian Church, under the name or designation of the United Free Church of Scotland, and they narrate certain pretended Acts of Assembly by which the said Union is said to have been effectuated, and the whole property of the Free Church directed to be held by trustees for the United Free Church of of Scotland.s They further state that ' Cond. Art. 3 z Cond. Art. 4, s Cond. Art, 5. CASE: APPELLANTS 151 shortly after the said alleged Union took place the defenders the Reverend Donald Mackinnon Macalister, and the Reverend Robert Gordon, intimated that they de clined to be members of the United Free Church of Scotland. Of the other persons called as defenders, William Bell, George Ross, Henry Christie, Sin clair Gunn, and James Waters, were elders, and the others were deacons in said congregation prior to the said Union. It is believed that all of said defenders, except the two last called, have intimated their intention not to become members of the United Free Church of Scotland. The two defenders last called have not, it is understood, expressed any opinion. The whole of these are called as de fenders for any interest they may have or claim. On 5th March 1901, the Edinburgh Presbytery of the United Free Church of Scotland, in view of intimations made in writing to the clerk of Presbytery by the said Reverend Mr. Macalister and Reverend Mr. Gordon, to the effect above set forth, declared that they had ceased to be ministers of the Free Church of Scotland, now incor porated with and represented by the United Free Church of Scotland, and directed their names to be removed from the roll. They also declared that the charge of Buccleuch and Greyfriars Church in connection with the United Free Church was vacant.' It is to be observed that the respondents do not aver any contract under which the said defenders, the Rev. Mr. Macalister and the Rev. Mr. Gordon, or the congrega tion to which they ministered, became subject to the ecclesiastical jurisdiction of the Edinburgh Presbytery of the United Free Church of Scotland. The said Presbytery has no jurisdiction over them, and its alleged proceedings are void and ineffectual. Even had the proceedings been proceedings of a judicatory of the Free Church, they would have been null and irregular in respect the prescribed forms of process were not followed in dealing with the said ministers.1 The respondents further aver that ' since 1 Cond. 6. 152 HOUSE ' the said Union the two first-named pur- ' suers who were members of the Free ' Church of Scotland and of the said ' congregation previous to the said Union, ' and who are both members of the United 1 Free Church of Scotland, have, in terms 1 of the said feu-charter, been vested in ' the said subjects therein disponed for 1 behoof of the said United Free Church. 1 The other surviving trustee prior to the ' said Union, namely, the said Reverend ' Robert Gordon, not being a member of ' the said United Free Church, has ceased ' to be a trustee or to have any right to act ' as such, and the first-named pursuers are ' now, in terms of the Model Trust-Deed, ' the sole existing and acting trustees.' The respondents then go on to narrate certain clauses of a Deed known as the Model Trust-Deed, alleged to be incor porated in the title to the ' Free Buccleuch ' and Greyfriars Church ' Congregational property which they contend entitle them to declarator of their right of property and possession of the subjects as concluded for, and state that 'the pursuers second ' named are the moderator and principal ' clerks of the General Assembly, which ' was held in October and November ' 1900. As such they are entitled, in ' terms of the Model Trust-Deed, to en- ' force, maintain, and protect the rights of ' the said United Church in the subjects ' disponed by the said feu-charter.' ' Not- ' withstanding that the charge has been ' declared vacant,1 as above narrated, the ' defenders, the Reverend Donald Mac- ' kinnon Macalister and Robert Gordon, ' still maintain that they are entitled to ' conduct public worship in said building, ' by themselves or by substitutes appointed ' by them, and in point of fact they con- ' tirme to do so. The other defenders ' who have refused to become members of ' the United Church still maintain their ' right to continue in charge and manage- ' ment, and in use and possession of the ' said church, and in point of fact do so at ' the present time.' In their Answers and Statement of Facts the respondents admit that the two first-named defenders were the pastors and 1 Cond. 8. OF LORDS the remaining defenders were elders, deacons, and members of the congregation, which worships and has for long wor shipped under the name of the ' Buccleuch ' and Greyfriars Church,' in connection with the Free Church of Scotland, and for which the subjects under the feu-charter founded on are held in trust; that the trustees as at 30th October last were the defender, the Reverend Robert Gordon, and (assuming them not to have been dis qualified) the pursuers, Robert Youug and James Harvie Clason. They, however, aver that the two last-named have not for very many years been members of the con gregation, nor have they taken any active concern in its affairs. The respondents do not state any specific grounds for denying this. ^The appellants go on to narrate the circumstances of the original constitution of the Free Church, and of the Union into which the pursuers and others endeavoured to enter on 31st October 1900 with the United Presbyterian Church, and they refer brevitatis causa to the Record in the principal action for a statement of the grounds upon which they maintain the said union to have been ultra vires, un constitutional and ineffectual, either to extinguish the Free Church of Scotland or to affect rights in property held for it. They state that the minority of the Free Church refused to follow the majority of the General Assembly into union with the United Presbyterian Church and con tinued in session as the General Assembly of the Free Church, and that there adhered to them a large number of members of the Church throughout the country who with them continue to main tain the existence of the Free Church under its own distinctive constitution and principles. In particular, they state that ' there are adhering to them the defenders, ' the pastors, elders, and deacons of the ' said congregation worshipping in con- ' nection with the Free Church of Scot- ' land in the Free Buccleuch and Grey- ' friars Church. There are also adhering ' to them all the members and practically ' all the adherents of said congregation. ' The two pursuers Robert Young and ' James Harvie Clason, named in the ' feu-charter as trustees, who were not, 'as at 31st October, members of the MODEL TRUST DEED ' congregation, have severed their con- ' nection with the Free Church of Scot- ' land, and entered the United Free ' Church of Scotland.' 1 It is admitted by the respondents that a majority of the members of the Free Buccleuch and Greyfriars congregation refused to enter the United Free Church. The appellants after referring to an Act of the General Assembly of the Free Church of 31st October 1900, passed after the withdrawal from it of the seceding majority, which provided for the continued holding of all Free Church property by trustees for its behoof, set forth the election, conform to the trust-deed, of a large number of persons as trustees, in addition to the former trustees, and they aver that this was done, and that posses sion of the subjects by the congregation is maintained, and the present action defended, with the approval of the General Assembly of the Free Church of Scotland or its Commission for the time being, as required by the terms of the Model Trust-Deed, and they main tain that those trustees, the congregation for the use of which the subjects are beneficially held, and the General Assembly of the Free Church of Scot land should have been convened in the process. They deny that the pursuers are entitled to sue under the deed, and they submit that the two first named pursuers have no title to the description to which they lay claim, viz. : — ' The ' whole existing and acting trustees for ' the congregation belonging and adhering ' to the body of Christians called the ' United Free Church of Scotland, and ' now or lately worshipping at the Church ' known as " The Buccleuch and Grey- '" friars Church, Edinburgh."' The appellants maintain that no such congre gation in fact exists, and the respondents do not allege that it does so in fact. It thus appears that, in the present action, two parties who are not members of the congregation along with the officials of a body to which neither the defenders nor any of the members of the congrega tion ever contracted to be in any way subject, either as regards their status or 1 Stat. 7. CASE: APPELLANTS 153 property, seek to exclude from the posses sion of congregational buildings, hitherto occupied by them, the ministers, office bearers and (as is alleged by the appellants) practically the whole or (as is admitted by the respondents) at least a majority of the congregation which has for years wor shipped there, and that for no other reason than that they have refused to depart from tho principles and standards hitherto consistently professed by them in common with the whole Church, or to enter into a union which they regard as destructive of the identity of the Church to which they have so long belonged. The validity of the alleged sentence of removal of the two ministers from their charge is denied. No ground affecting either their conduct or character is sug gested for it, except their refusal to acquiesce in the Union or to submit themselves to the jurisdiction of the Pres bytery or other courts of the new United Free Church, which they had come under no contract or other obligation to do. In these circumstances the appellants submit that the judgments of the Lord Ordinary and of the Second Division, decerning in terms of the conclusions of the summons, are contrary to law and equity, and should be reversed. The questions at issue depend upon a construction of the titles upon which the subjects described in the summons are held. The leading writ is a feu-charter, dated 13th and recorded 14th November 1865, by which one James Watson sold, alienated, and in feu farm disponed to the pursuers Young and Clason and certain others, as trustees, the subjects described in the summons. In the dis positive clause the disponees are described as trustees for the congregation of the body of Christians called the Free Church of Scotland and presently worshipping in the Free Buccleuch Church, West Cross- causeway, Edinburgh. In a subsequent part of the feu-charter it is provided that the said subjects are disponed 'upon the ' trusts, and with the powers, and under 1 the conditions, provisions, and declara- ' tions contained and specially enumerated ' from primo to duodecimo, both inclusive, ' in the disposition made and granted by 154 HOUSE OF LORDS John Hamilton, Esquire, advocate, and others, to John CadeU, Esquire, advo cate, and others, trustees for the Con gregation of Saint George's Free Church of Edinburgh, dated the 9th, 11th, and 12th, and registered in the Books of Council and Session the 13th, days of November in the year 1844, all which trusts, ends, uses and purposes, powers, conditions, provisions, and declarations are here held as repeated brevitatis causa, declaring always, as it is hereby expressly provided and declared, that the said trusts, ends, uses, and purposes, powers, conditions, provisions, and declarations before referred to, which, by the said disposition, as made applic able to the subjects thereby disponed in the persons of the trustees therein named, shall be all equaUy applicable to the several subjects hereby disponed, as the same shall be held by the trustees hereinbefore named and appointed, and their aforesaid, and that as fully as if the said trusts, ends, uses and purposes, powers, conditions, provisions, and declarations had been aU engrossed ad longum herein, and that the several subjects hereby disponed shall be held by the said trustees for the use of the said congregation, and for hke ends, uses, and purposes, and upon hke trusts, with the same powers and under the same conditions, provisions, and declara tions, as the subjects disponed by the said disposition are held for the said congregation of St. George's Free Church of Edinburgh, and that as fully as if the said trusts, ends, uses, and purposes, powers, conditions, provisions, and declarations had been all ad longum en grossed herein.' The disposition by John Hamilton, Esquire, advocate, and others, referred to, is said to be commonly known as the ' Model Trust-Deed' of the Free Church. It is not admitted by the appellants that the provisions of the said Model Trust-Deed are validly imported into the feu-charter above referred to, dated 4th November 1865, so as to affect the lands held under it. They contend that the statutory requisites as of that date for the incorporation by reference of real con ditions or burdens in feudal titles are not complied with, in respect that the deed in which the alleged burdens and conditions are set forth ad longum, is not a deed forming part of the progress of titles of, or even affecting the lands here dis poned, but as a deed relating to entirely different subjects.1 At common law, burdens and conditions, in order effectu ally to attach to feudal subjects, require to be set forth at full length. By a series of statutes provision has been made for the shortening of writs by inter alia in corporating such clauses by reference — the condition of incorporation being that the deed in which the burdens appear at length be either part of the progress of titles, of, or applicable to the particular lands, or to lands of which they form part. The benefit of the statutory facUities can only be obtained by compliance with the statutory conditions, and this the appeUants submit has not been effectually given. Assuming, however, that the Model Trust-Deed is, in regard to the particular purposes primo to duodecimo, validly in corporated, the following appear to be the trust purposes which most obviously bear on the questions raised in this case. 'First, upon trust that the building or ' place of worship, erected, or in the ' course of being erected upon the ground ' hereby disponed, or any building or place ' of worship that may hereafter be built ' and be erected thereon, with the appur- ' tenances thereof, shaU, in all time coming, ' be used, occupied, and enjoyed, as and ' for a place of .religious worship, by a ' congregation of the said body of Chris- ' tians called the Free Church of Scotland, ' or of any united body of Christians com- ' posed of them, and of such other body ' or bodies of Christians as the said Free ' Church of Scotland may at any time ' hereafter associate with themselves, under ' the foresaid name of the Free Church of ' Scotland, or under whatever name or 1 Duke of Argyle v. Creditors of Barbreck, Mor. Diet. 10306. Titles to Land (Scotland) Acts, 1847 (cap. 48), § 5, and 1868 (cap. 101), § 10. Conveyancing Aet, 1874 (cap. 94), § 32. Thomson v. M'Crummen's Trs., 18 D. (Ct. of Ses. Rep., 2nd ser.), 470, 482 ; 21 D. (H. L.), 3. Johnstone v. Pettigrew, 1S65, 3 M. (Ct. of Ses. Rep., 3rd ser.), 954, MODEL TRUST DEED ' designation they may assume, and to be ' made use of by such congregation occupy- ' mS and enjoying the same, for the time ' being, in the way and manner in which, ' by the usages of the said ibody or united ' body of Christians, places of religious ' worship may be or are in use to be ' occupied and enjoyed ' Thirdly, Upon further Trust, That the ' said building or place of worship, erected, ' or to be erected, as said is, and whole appur- ' tenances thereof, and generally the whole ' subjects hereby disponed, shall be under ' the immediate charge and management ' (except always as regards theauthority and 1 appointment, and relative permission and ' sufferance before-mentioned), of the elders ' and deacons, or elders acting as deacons, ' for the time being, of the congregation, ' in the use, occupation, and enjoyment, ' for the time, of such building or place ' of worship ; such elders and deacons, or ' elders acting as deacons, being always ' subject to such control as shall, or may, ' be provided from time to time by the ' said body or united body of Christians, ' through the medium of its kirk-sessions, ' presbyteries, provincial synods, and ' General Assemblies, or in the way and ' manner generally in use in the said body ' or united body, for the time ' Fourthly, upon further trust, that the ' said trustees or trustee acting for the ' time shall at all times be subject in the ' management and disposal of the said 1 building or place of worship and appur- ' tenances thereof, and whole subjects ' hereby disponed, and in all matters and ' things connected therewith, to the regula- ' tion and direction of the General As- ' sembly, for the time being, of the said ' body or united body of Christians, and ' shall be liable and bound to conform to, ' implement and obey, all and every the ' Act or Acts of the General Assembly for ' She time being of the said body or united ' body of Christians in reference thereto ; ' and the moderator and clerk of the said ' General Assembly, for the time being, 'or of the then immediately preceding ' General Assembly of the said body or ' united body of Christians, or the parties ' generally known or understood to hold 'these offices for the time, shall at all ' times have full power and sufficient status CASE: APPELLANTS 155 ' and right and interest to pursue or defend ' any action or actions, in whatever Court ' or Courts of law or justice, for the en- ' forcement, maintenance, or protection of ' the rights, interests, or privileges of the ' said body or united body of Christians, ' or General Assembly thereof, in or in ' any way connected with the subjects ' hereby disponed, and building or place ' of worship erected or to be erected there- ' on, and appurtenances thereof. . . . ' Fifthly, it is hereby expressly provided ' and declared that the said trustees or ' trustee, acting for the time, shall always ' have fuU power and liberty to raise, pro- ' secute and follow forth whatever action, ' suit, or proceeding they may think proper ' in whatever Court or Courts of law or ' justice, for the purpose or with the in- ' tent and object of excluding any party ' or parties whatsoever from all or any ' use, possession, occupation, or enjoyment ' of the building or place of worship ' erected, or to be erected, as said is, or ' any part thereof, or generally of the ' subjects hereby disponed, or any part ' thereof , ' Seventhly, it is hereby also expressly ' provided and declared that it shall at ' all times be in the power of any trustees ' or trustee, whether hereby named or that ' may be appointed in virtue of the powers ' and provisions hereinafter contained, who ' may have acted in the said trust, to re- ' sign the trusteeship, and that in the ' event of any trustees or trustee, whether ' named or to be appointed, as said is, ' ceasing to be members of the said body ' or united body of Christians, then and ' in that case such trustees or trustee shall ' ipso facto cease to have any right to act ' under these presents, and the trust shall ' be thenceforward conducted by the other ' trustees, as if such trustees or trustee ' ceasing as said is were actually dead. . . ' Eighthly, it is hereby further expressly ' provided and declared that it shall be at ' all times in the power of the oongrega- ' tion, in the use and occupation of the said ' building or place of worship for the time ' being, and such congregation is hereby ' expressly empowered from time to time, ' and as often as to it shall seem proper and ' expedient, to appoint at a meeting called ' on ten free days' notice given from the. 156 HOUSE ' pulpit immediately after divine service in ' the forenoon, such notice always specify- ' -ing the object for which the meeting is ' called, additional trustees to act under ' these presents along with the trustees ' who at the date of such appointment are ' surviving and acting ; and each and every ' additional trustee so appointed shall by ' virtue of such appointment be ipso facto ' instantly vested with the same right of ' property, and with all and every the ' same rights, powers, and privileges as ' any individual trustee who is actually ' named and designed in these presents ' and infeft or who may be infeft under ' the same ; such additional trustee being " at the same time always subject and ' liable, in the same way as such original ' trustee, to the whole conditions, pro- ' visions, and declarations herein set forth : ' And the said trustees or trustee acting ' for the tune shall on every occasion of ' such appointment of additional trustees ' be bound and obliged to execute a formal ' Deed of Assumption of such additional ' trustees containing a formal and in all ' respects complete conveyance of the sub- ' jects hereby disponed in favour of such : additional trustees, and of themselves and otherwise in terms of these presents ; ' but such additional trustees shall, even ' before the execution of such conveyance, ' and immediately on their appointment as ' said is, have the full right, power, and ' privilege of acting in the trust in the ' same way as any individual trustee ' actually named and designed in these ' presents, and infeft, or who may be infeft ' under the same.' The principal clauses of the said Model Trust-Deed are printed in extenso in the Appendix to the principal case, to which reference is made. As preliminary pleas the appellants sub mit that the pursuers have no title to sue, and that all the parties who should be convened are not called. To some extent the determination of these pleas turns upon considerations similar to those upon which the merits of the case fall to be determined, and, so far as this is so, the appellants will indicate their views as to title and as to the parties proper to be called in stating the main argument. At this stage, however, they would OF LORDS point out that so far as the pursuers, first- mentioned and claiming to be trustees, are , concerned, their title is open to the objec tion that the defender the Rev. Robert Gordon has not, even in the strictest application of the terms of the Model Trust-Deed, ceased to be qualified as a trustee, never having ceased to be a member of the Free Church ; and while it is no doubt true that the remaining trustees (assuming that they are still qualified) are a majority,1 they are not entitled to take any step as trustees without formal con sultation and discussion with their col league ; and it is not averred nor is it the case that any meeting of the trustees was held or that Mr. Gordon was consulted as to the present proceedings. As regards the parties called — the case for the respondents entirely depends upon the proposition that the subjects are primarily held for the Church rather than for the congregation, and subject to the unlimited control of the Church. But if this be so, the proper contradictors are the body claiming to be the General Assembly of the Free Church of Scotland or its officials, who are not called as defenders. On the other hand, according to the trust- deed the primary cestuis que trust are the congregation of the body of Christians called the Free Church of Scotland at present worshipping in Free Buccleuch Church. Their interest in the present action is clearly not represented by the pursuers. For the pursuers first-named, and calling themselves the trustees, con join themselves with and give their names to the officials of a church which is not the Free Church of Scotland in the institu tion of a proceeding admittedly, on their own averments, hostile to this congrega tion. However properly the defenders actually called may be convened to answer to the conclusions for interdict agamst them personally, they cannot be said to represent fully the interests of these cestuis que trust ; and the appellants submit that the declaratory conclusions cannot be com petently affirmed in the absence of citation of the congregation. Moreover, it is averred by the appellants that a large 1 Wyse v. Abbott, etc., 1881, 8 R. (Ct. of Sess. Rep., 4th Ser.), 983; Managers of Forth Church v. Darling, 1898, 25 R. 747, MODEL TRUST DEED CASE number of additional trustees were, by process begun prior to the institution of this action, duly elected in terms of the Model Trust-Deed by ' the congregation in ' the use and occupation of the said build- ' ing or place of worship for the time ' being ' ; and no step in the present action has been taken by or against the trustees as at present constituted, nor are they con vened as parties to it. Upon the merits the respondents have maintained their case upon the view that although by the dispositive clause the primary object of the trust is the ' congre- ' gation of the body of Christians called ' the Free Church of Scotland,' this trust is qualified by the incorporation of the clauses of the Model Trust-Deed, so as to make the trust one for a congregation not necessarily of the Free Church alone, but for one 'of the said body of Christians ' called the Free Church of Scotland or ' of any united body of Christians composed ' of them, and of such other body or bodies ' of Christians as the said Free Church of ' Scotland may at any time hereafter ' associate with themselves, under the fore- ' said names ofthe Free Church of Scotland ' or under whatever name or designation ' they may assume ' ; and they further con tend, that the effect of the subsequent provisions is to make the trust for the congregation in effect a trust subservient to and entirely at the discretion of the General Assembly of the Free Church of Scotland, or of such united body as afore said. They maintain that the General Assembly of the United Free Church answers to this latter description, and is entitled arbitrarily to exclude from the use of the subjects a congregation which, although at 31st October 1900 in full communion with the Free Church, refused to join the United Church. The appellants submit that, allowing the fullest effect to the incorporated clauses of the Model Trust-Deed, the primary purpose of the trust, which controls all others, is that contained in the dispositive clause of the feu-charter which is the regula regulans of the deed, and is thus fixed as a trust for a congregation using the subject as a place of worship; and that the action fails m relevancy for the want of averment that APPELLANTS 157 there is any congregation (in connection with the United Free Church or otherwise) in existence satisfying this condition other than the congregation which it is sought to oust.1 Further, it is to be observed that the conditions of the clauses of the Model Trust-Deed are satisfied if the trustees be members and if the congregation be a congregation of the Free Church, or of such united body as aforesaid ; and, — while it is averred that the defenders, the Reverend Mr. Macalister and the Reverend Mr. Gordon, have been (although without compliance with the forms of process of the Church) declared not by the Assembly of the Free Church to which they belong and to which they owe allegiance, but by the Assembly of the United Free Church to which they do not belong and to which they are not amenable, not to be ministers of the Free Church of Scotland,— it is nowhere relevantly averred that either they or the other defenders have ceased to be members, or that the congregation has ceased to be a congregation of the Free Church of Scotland.2 Any action alleged to have this effect would be an action affecting status and property rights, and as such subject to the control of the Civil Courts. To meet the respondents' case fully, it may, however, be necessary to consider the effect of the provisions of the first purpose of the Model Trust-Deed above quoted, importing the alternative, 'or of any ' united body of Christians,' etc., and the recurring expressions, 'or united body of ' Christians ' in the subsequent clauses. Upon this the appellants submit the following considerations : — 1. The alternative, 'or any united body ' of Christians,' etc., particularly when taken along with the manner in which it is introduced, cannot by any legitimate construction be raised into a substantive provision, subverting the common law to the effect that a majority of Assembly or of the Church may, against the wUl of the congregation or even of a minority of the congregation, divert congregational property from the congregation. If such was the 1 Record, 1st Plea in Law for Defenders. "Forbes v. Eden, 5 M'P. (H. L.), 36. (The O'Keefe Ca.se (O'Keefe v. Cullen), Separate Report. 158 idea in the mind of Model Trust-Deed, which there is no ground for thinking was the case, they have inadequately provided for carrying it out. All that the clause can be held to con template is the congregation, with its property, foUowing the Church into a union which the Church has power to make, i.e., can make without sacrifice of principle, and which leaves the Church just where it was before, except with increased numbers. 2. If it be the case that properties held under the Model Deed were intended so to be held in order to emphasize the fact that they were properties held for the Church and not for the congregation, then the whole trust is ab initio limited by the directions given by the General Assembly with regard to properties in this situation, and any trusts relating to them are accord ingly qualified by and created in view of the expressly declared will of the Assembly of 1844, which is an implied condition of the trust title being so taken. But the Act XVIII. of the Assembly of 1844 expressly provides that the property in each place of worship is to be vested in trustees chosen by the congregation . . . ' to be held for the congregation, in com- ' munion with the Free Church, as attested ' to be so by the Moderator and Clerk of ' the General Assembly ' — there being no reference in the Act itself to any ' United ' Body.' The appellants respectfully refer to the account of the preparation of the Model Trust-Deed, and to their argument founded thereon, as fully set forth in the Appendix to their case in the principal action. Not only was provision for the ' United Body ' not embodied in any Act of Assembly, but the Model Trust-Deed was not sent down to Presbyteries for their approval in terms of the Barrier Act, which the respondents themselves put forward as an Act binding on the General Assemblies of the Free Church; and it could thus have no constitutional validity such as to authorise titles to congregational properties of the Free Church to be diverted from that Church to another. 3. The appellants submit that, what ever may be the conveyancing effect of the expressions relied on by the respondents, they have no legislative or constitutional HOUSE OF LORDS the framers of the import to the effect of declaring a trust for any body whatsoever, which claims to be a united body composed of the Free Church and some other body of Christians — but that their import is limited to expressing a feudal tenure in favour of such united body, if it is created in a manner within the legal competency of the Free Church, as ascertained by its constituting documents and dehors the terms of the trust-deed altogether. Now, the appellants maintain that the United Free Church is not such a body, because In the first place, the constitution of the Free Church contains no provision for union, and any incorporating union extinguishing the separate existence of the Free Church could only lawfully be made by the unanimous consent of the Church, and this was not given to the present Union ; and In the second place, the Free Church could, in a question as to civil rights, only lawfully enter into such unions as did not involve departure from or sacrifice of doctrines and principles which were distinctive of it as a separate branch of the Christian Church. But the present union involves as an inherent condition of it such departure and sacrifice. The appellants humbly conceive it to be unnecessary to repeat ad longum the argu ments upon these points which are set forth in the principal case, and they respect fully refer for a full statement of them to the case submitted by them to your Lordships' House in the principal action. 4. The very language used in the Model Trust-Deed emphasizes, in regard to pro perty held under it, the view submitted as to the class of union contemplated. The united body, which appears in the deed as an alternative to the Free Church, is declared to be a united body ' composed of ' them and of such other body or bodies ' of Christians as the said Free Church of ' Scotland may at any time hereafter ' associate with themselves under the fore- 1 said name of the Free Church of 1 Scotland, or under whatever name or ' designation they may assume.' 1 These words, it is submitted, clearly apply only to a union in which the Free Church 1 Cf. Att. ¦ Gen. Times, 235. v. Aust., 1868, 13 Law MODEL TRUST DEED CASE: APPELLANTS 159 remains the paramount body, or at all events to one in which its individuality and distinctive testimony are conserved and preserved. The very expression ' associate with themselves ' implies the continued existence of the 'self con tinuance of the identity. It is singularly aptly chosen to express the type of union to which the Church looked forward at the time of the preparation of the Model Deed, viz., the absorption of small bodies of dissenters (such as the Original Seceders and Reformed Presbyterians) which had maintained themselves in separation from the Established Church on grounds analo gous to those which led to the Disruption, and which held doctrines and principles practically identical with those of the Free Church. But they are just as inapt to describe (what was certainly not within the contemplation of the Church at the time) incorporating union with bodies holding views alien to those of the Free Church, — union with which would involve the departure from or modification of the distinctive testimony of that Church.1 Especially are they inapt to describe an incorporating union in which the Free Church accepts the standards of and yields up its own practice and principles to those of a body practioally of equal weight with itself. On these grounds the appellants submit that the United Free Church is not, in the sense of the Model Trust-Deed, a united body consisting of the Free Church and a body which they have ' associated with themselves,' but is an entirely new and independent associa tion consisting of former members of the Free Church and United Presbyterian Church associated de novo under a con stitution, and professing principles and doctrines different from those of the Free Church. They submit that the Free Church of Scotland continues its exist ence through the organised body which adheres, as it has all along adhered, to its original constitution, standards, and testi mony—that the General Assembly of this body is the General Assembly of the Free Church of Scotland, and that congrega tions in connection with the body remain, as they have all along been, congregations 1 See Assembly Proceedings, 1846, p. 52, and prinoipal ease. in full communion with the Free Church of Scotland. Of these the congregation of Buccleuch and Greyfriars is one, If this be so, it follows that the con gregation which the respondents choose to treat as represented by the defenders is the congregation entitled to the use and enjoyment of the subjects; that the de fenders remain ministers, elders, and deacons, respectively, of the Free Church of Scotland, and defend this action with the sanction of its General Assembly, and that the defenders, the Rev. Robert Gordon and the other trustees appointed by the congregation, are the trustees entitled to hold the subjects for the congregation in terms of the said feu- charter. It also follows that the pur suers first named, having voluntarily withdrawn themselves from membership of the Free Church of Scotland and entered another communion, have ipso facto ceased to be qualified as trustees, and that neither they nor the pursuers second enumerated have any title to sue this present action. There is one other clause in the Model Deed on which an argument was founded by the respondents, viz., the ninth trust purpose, which is in these terms : — ' Ninthly, it is hereby specially provided ' and declared, that if at any time here- 1 after one-third of the whole ordained ' ministers having the charge of congre- ' gations of the said body or united body ' of Christians, or any larger number of ' the said ordained ministers having charge ' as aforesaid shall simultaneously, or ' within a consecutive period not exceed- ' ing three calendar months, not only ' publicly separate from the said body or ' united body of Christians, but at the ' same time publicly claim and profess to ' hold truly, and in bona fide, the prin- ' ciples of the Protest of 18th May 1843 ' hereinbefore recited, and to be carrying ' out the objects of the said Protest more ' faithfully than the majority of the minis- ' ters of the said body or united body of ' Christians, and shall unite in forming one ' body of Christians having kirk-sessions, ' presbyteries, provincial synods, and a ' General Assembly, then and in that i6o HOUSE OF LORDS ' case, and anything herein to the con- ' trary notwithstanding, it shall be com- ' petent to and in the power of a majority ' of the congregation in the use, occupa- ' tion, and enjoyment of the said building ' or place of worship for the time, to ' provide and declare, by a deed of ¦* declaration and appointment under their ' hands to that effect, duly executed, that ' the ground hereby disponed, and building ' or place of worship then upon the same, ' shall from thenceforward be held as in ' connection with the body of Christians ' adhering to the ministers who shall have ' separated as aforesaid, and, for this pur- ' pose, to require and appoint the said ' trustees or trustee acting under these 1 presents for the time to convey and dis- ' pone the ground hereby disponed, and ' the building or place of worship then ' upon the same, and whole appurtenances ' thereof, to any three or more trustees in ' the said deed of declaration and appoint- ' ment named/ to be held by such new ' trustees and their successors in trust as ' after mentioned : And on such deed of ' declaration and appointment being exe- 1 cuted as said is, the trustees or trustee ' acting under these presents for the time ' shall be bound and obliged, as they are ' hereby bound and obliged, at the expense ' always of the receivers, and on being ' entirely freed and relieved of all ' pecuniary obligations then affecting the ' subjects hereby disponed, or buildings ' thereon, or affecting them as trustees or ' trustee under these presents or for or to ' which they as such trustees or trustee ' may be subject or liable, but no sooner, ' or otherwise to convey and dispone the ' ground hereby disponed, and the build- ' ing or place of worship then upon the ' same, and whole appurtenances thereof, ' to the said new trustees who shall be in ' the said deed of declaration and appoint- ' ment named and their successors, in 1 trust for the said persons, subscribers of ' the said deed of declaration and appoint- ' ment, as a congregation of the said body ' of Christians who shall have separated ' as aforesaid, and for the successors of ' such persons forming such congregation ' for the time being ; such new deed of ' trust to be mutatis mutandis, as nearly ' as possible, in the terms and of the ' import of these presents, and to have ' for its object the placing the said con- ' gregation of the said. body of Christians ' who shall have separated as aforesaid, ' and the minister of such congregation ' and the elders and deacons and elders ' acting as deacons thereof, and the said ' body of Christians who shall have ' separated as aforesaid, and its kirk ' sessions, presbyteries, provincial synods, ' and General Assembly, and the said new ' trustees themselves, in the same relation ' respectively to the ground hereby dis- ' poned, and buildings thereon and appur- ' tenances thereof, and in the same relation ' to each other in reference thereto as was ' held before the granting of the said new ' deed of trust by the congregation using, ' occupying, and enjoying the same in ' virtue of these presents, and the minister ' of such former congregation and the ' elders and deacons and elders acting as ' deacons thereof, and the said original ' body or united body of Christians and ' its kirk - sessions, presbyteries, pro- ' vincial synods, and General Assemblies, ' and the said trustees or trustee acting ' under these presents.' To this clause, the tenth, in the following terms, is ancillary : — ' Tenthly, it is hereby ex- ' pressly provided and declared that, in ' the event of a deed of declaration ' and appointment and new deed of trust ' being executed as aforesaid, the parties ' signing such deed of declaration and ' appointment shall be subject and liable ' to pay and make good to the minority of ' the congregation with whom they were ' previously connected, who did not sign ' the said deed, and for behoof of the said ' body or united body of Christians with ' which also they were previously con- ' nected, a proportion of the net value of ' the subjects disponed by such new deed ' of trust corresponding to the number of ' such minority as compared with the ' number of subscribers to said deed of ' declaration.' The respondents profess to find in this clause a provision designed to meet just such a case as has occurred in connection with the union with the United Presby terian Church, had the numerical propor tions of the ministers adhering to the two parties satisfied its requirements. They, MODEL TRUST DEED CASE: APPELLANTS 161 however, maintain that, as the number of ministers who adhere to the appellants in refusing to join the United Church is less than one-third of the whole, the effect of the clause is to leave congregations adher ing to the minority no rights of any sort in the Church fabrics. But the conten tion entirely begs the question. The re spondents must first bring the appellants within their new United Church before they can denounce them as separating from it. The appellants dispute the soundness of both the respondents' positions. In the first place, they contend that the clause has no application to a separation which is due to a refusal of any minority to terminate the separate existence of the Church by uniting with another body. The clause is intended to meet the case of separation arising upon a difference of clerical interpretation of the principles of the Protest of 1843, as recited in the narrative clause of the Model Trust-Deed, and its scheme is obviously to provide for schism arising upon doctrinal points so ambiguous that ministers may fairly and honestly entertain different views as to their import, and yet either view be con sistent with a claim to maintain the identity of the Free Church as it was founded at the Disruption. But union with other churches alien in their testi mony from the Free Church formed no part of the principles of the Protest, or of the early Free Church.1 The resolution of Assembly of 1846, and the whole action of the Church at the time of the formation of the United Presbyterian Church, sufficiently attest this. On the contrary, adherence to the principles of the Protest kept the Free and United Presbyterian Churches separate for over fifty years, and certainly the United Presbyterian Church has not of late drawn nearer to the principles of the Protest, but rather the reverse. It is to be observed, too, that no provision is made in these clauses for anything but difference of opinion on the part of the ministers of the Church; the requisite proportional difference among the minis ters of the Church bringing the machinery 1 Acts and Proceedings of Assembly, 1846, p. 52 ; and principal case. L into operation, although the lay repre sentatives of the Church may be unani mous on one side or the other. It is not conceivable that such a provision should be designed to cover the case of a pro posal to sink the identity of the Church in a union with another, with the result of terminating the existence of the Free Church as a separate institution and carrying its property away to other pur poses. Had it been intended to apply to such a case, a place would have been found in the scheme for the views of the accredited representatives of the laity of the Church from whose Christian liberality its property had so largely flowed. But even allowing that the clause might conceivably be operative in certain cases of union, its conditions render it inapplicable to the present, apart altogether from any question of numbers. For it is only to be operative if the separating party publicly claim and profess to hold truly and in bond fide the principles of the Protest of 18th May 1843, and to be carry ing out its objects more faithfully than the party remaining. Now, in the present instance, even treating the majority as the separating body (which it is necessary to do to permit of the clause being applicable at all), they entirely fail to meet the re quirements of this condition. For they cannot bond fide profess to be carrying out the objects of the Protest more faith fully than the minority remaining. If the principle of the duty of national recognition and support of the Christian religion be (as the appellants have in this and the principal case contended), em bodied in the Protest, then no persons who have been parties (as the respondents have) to the deliverances of the General Assembly of the United Free Church since the Union, on the relations of Church and State, can bond fide claim to be carrying out its principles more faith fully than are the minority who adhere to the views of 1843 in their integrity or even to be faithful to them at all. The same is true in regard to the doctrinal differences which received definitive recog nition in connection with the Union. The attitude of the uniting party is truly l62 HOUSE OF LORDS not a claim to more faithful adherence to the principles and objects of the Protest, but an assertion that changed times demand a reconsideration and modification of these principles and a departure from at least one of these objects, viz., that of securing the performance by the civil magistrate of the duty of national recog nition and support of religion upon the lines of the Protest. For these reasons it is submitted that, even were the proportion of separating ministers other than it is, the 9th and 10th purposes would have no bearing upon a separation, the effective cause of which was a resolution on the part of certain members to enter into such a union as is here complained of. It is, of course, admitted on both sides that, having regard to the relative num bers of the majority and minority of ministers, the provisions of the clause cannot (except on the footing of the majority being taken as the Separatists) be applied to the solution of the present question. But the parties are at variance as to the effect of its presence in the deed. The respondents maintain that, provision having been made for the particular event of one -third of the ministers, or more, differing from a majority, then if less than one-third should so differ, all remedy to them is implicitly excluded. The ap pellants, en the other hand, regard the clause as a conventional modification, in a certain case, of the Common Law ; and their submission is that if the conditions necessary for the operation of the con tractual provision be wanting, the result is, not that the minority have no rights, but that their rights fall to be regulated by the Common Law. A deduction is to be avoided, which would make the pre sence of these clauses lead to a result involving a possible wrong, and excluding a remedy. Especially is this so, when it is obvious from the construction of the ninth clause, that, so reading it, a condi tion of things might very well arise in which an immense majority of the laity (from whom the property has mainly been derived) might adhere to a minority of the clergy just too small to meet the exact requirements of the clause, with the result, on the respondents' contention, that the entire property which they had contributed would inevitably pass, without any com pensation, to the followers of the minis terial majority. But if the Common Law be applicable, it is well settled that property follows the origmal principles — departure from principle inferring loss of property.1 No doubt congregational property may be so connected with the sect as to make its ownership depend upon the principles of the sect rather than upon those of the congregation ; but even where that is so, a majority of the sect cannot, it is sub mitted, without loss of property rights, innovate upon principles which are funda mental to the identity of the sect. In ascertaining what are so fundamental, the resolution of a majority for the time being of the General Assembly is not to be taken as probatio probata ; but — at least where there is a written constitution — regard ought to be paid to the terms of that constitution. It is impossible to main tain that the appellants' party have in any way abandoned essential doctrines or principles. The only ground of complaint against them is that they too strenuously adhere to the standards of 1843. The respondents' party have made a departure from the old order ; and it is on them to show that in making it they conserve the essential principles, and the identity of the denomination. Upon the portion of the interlocutors appealed from, finding the appellants liable in expenses, the appellants submit that they, being the parties who at the time of the Union were in lawful possession and enjoyment of the subjects under the titles thereof, and who have in no way inverted possession or altered their own position towards the Church or its stand ards, it is equitable, even if the respond ents should be found entitled to decree of declarator, etc., that, as they have sub verted the original status, they should bear the expense of establishing their title to the subjects held under the trust 1 Craigdallic Case, 6 Paton's App. 618. Kirk intilloch Case (1850), 12 D. (Ct. of Sess. Reps., 2nd Ser.), 523. Thurso Case (1859), 22 D. 120, etc., etc. MODEL TRUST DEED purposes. Upon the whole matter, the appellants submit that the interlocutors CASE: APPELLANTS 163 appealed from should be reversed for the foUowing, among other REASONS. 1. Because the respondents have no title to sue. 2. Because the proper contradictors are not made parties to the action. 3. Because the respondents have not stated a relevant case to support the con clusions of the summons. 4. Because the provisions and conditions of the Model Trust-Deed have not been competently and effectually imported into the titles of the congregational property in question. 5. Because on a sound construction of the Model Trust-Deed it does not im part a power to the majority of the General Assembly of the Free Church, or of the Free Church itself, to divert the said property from the congregation. 6. Because the congregation of Buccleuch and Greyfriars, of which tho appel lants are ministers and office-bearers respectively, is a congregation of the Free Church of Scotland, lawfully possessed of and enjoying the sub jects described in the summons in terms of the title deeds thereof, and under the sanction of the General Assembly of the Free Church of Scotland. Lastly, Because the interlocutors appealed from are contrary to law and equity. H. Johnston. J. Roberton Christie. VIII IrT THE HOUSE OF LORDS MODEL TRUST DEED CASE RESPONDENTS' CASE This action relates to a Church in Edin burgh, known as the Free Buccleuch and Greyfriars Church, which, prior to the Union in October 1900, belonged to the Free Church of Scotland. The feudal title on which the property is held — a feu-charter dated in 1865 — incorporates the Model Trust-Deed of the Free Church, and this action is one of four which have been raised as test cases. The greater number of the churches and manses of the United Free Church throughout Scotland, some eleven hundred in number, are held on similar Model Trust-Deed titles, and these churches and manses constitute the bulk of the heritable property which belonged to the Free Church of Scotland at the time of the Union. The action is raised by the trustees in whom the property is vested, and also by the moderator and principal clerks of the General Assembly for the time being, the latter having, in terms of the Model Trust- Deed, a title to sue. The defenders and Appellants are the two ministers of the congregation, and certain other office-bearers and members. They disapproved of the Union, and are not members of the United Free Church of Scotland, but they have continued to retain possession of the Church since the Union, and refuse to recognise the rights of the pursuers therein. The conclusions of the summons are to the effect that the heritable subjects disponed by the feu- charter, with the buildings erected thereon, pertain heritably in property to the pur suers, the said trustees, in terms of and for the trust purposes contained and referred to in the feu-charter ; that the said pursuers are entitled to possession of the ground and buUdings ; that the de fenders have no right or title thereto, and should cede possession to the pursuers as trustees, in order that they may possess and enjoy the same, subject to the terms and conditions, and for the purposes set forth and referred to in the feu-charter. The feu-charter itself sets forth that the subjects are disponed for the trust purposes contained in the Model Trust-Deed. The language in which this is done is as follows : — ' In trust always for the ends, ' uses, and purposes, and upon the trusts ' and with the powers, and under the ' conditions, provisions, and declarations ' contained and specially enumerated from ' primo to duodecimo, both inclusive, in ' the disposition made and granted by ' John Hamilton, Esquire, advocate, and ' others, to John CadeU, Esquire, advocate, ' and others, trustees for the congregation ' of Saint George's Free Church of Edin- ' burgh, dated the 9th, 11th, and 12th, ' and registered in the Books of Council ' and Session the 13th days of November ' in the year 1844, all which trusts, ends, ' uses and purposes, powers, conditions, ' provisions, and declarations are here held ' as repeated brevitatis causa, declaring ' always, as it is hereby expressly provided ' and declared, that the said trusts, ends, ' uses and purposes, powers, conditions, ' provisions, and declarations before re- ' ferred to, which, by the said disposition, ' are made applicable to the subjects MODEL TRUST DEED CASE: RESPONDENTS 165 thereby disponed in the persons of the ' trustees therein named, shall be all ' equally applicable to the several subjects ' hereby disponed, as the same shall be held ' by the trustees hereinbefore named and ' appointed, and their aforesaid, and that ' as fully as if the said trusts, ends, uses ' and purposes, powers, conditions, pro- ' visions, and declarations had been all ' engrossed ad longum herein, and that ' the several subjects hereby disponed ' shall be held by the said trustees for the ' use of the said congregation, and for like ' ends, uses, and purposes, and upon like ' trusts, with the same powers, and under ' the same conditions, provisions, and de- - ' clarations as the subjects disponed by the ' said disposition are held for the said ' congregation of St. George's Free Church ' of Edinburgh, and that as fully as if the ' said trusts, ends, uses and purposes, ' powers, conditions, provisions, and de- ' clarations had been all ad longum en- ' grossed herein.' The said disposition by John Hamilton, Esquire, advocate, and others, is commonly known as ' the Model ' Trust-Deed ' of the Free Church. It becomes necessary therefore to ex amine the Model Trust-Deed itself. It is printed in the Appendix, and special reference is made to the first five purposes with the seventh and the ninth. These trust purposes are as follows : — ' First. Upon trust, that the building ' or place of worship erected, or in the ' course of being erected upon the ground ' hereby disponed, or any building or ' place of worship that may hereafter be ' built and be erected thereon, with the ' appurtenances thereof, shall, in all time ' coming, be used, occupied, and enjoyed ' as and for a place of religious worship, ' by a congregation of the said body of ' Christians called the Free Church of ' Scotland, or of any united body of ' Christians composed of them, and of ' such other body or bodies of Christians ' as the said Free Church of Scotland ' may at any time hereafter associate with ' themselves, under the foresaid name of 'the Free Church of Scotland, or under ' whatever name or designation they may ' assume, and to be made use of by such ' congregation occupying and enjoying ' the same, for the time being, in the way ' and manner in which, by the usages ' of the said body, or united body of ' Christians, places of religious worship ' may be, or are in use, to be occupied ' and enjoyed : Secondly, Upon trust, ' that the said trustees, or trustee, acting ' for the time, shall at all times, and ' from time to time hereafter, permit, and ' suffer to preach and expound the Holy ' Scriptures, and administer ordinances, ' and perform the usual acts of religious ' worship within the said building or ' place of worship, erected, or to be erected, ' as said is, such person or persons, and ' such person or persons only, as may or ' shall, from time to time, be authorised or ' appointed so to do, by the said body, or ' united body, of Christians, acting through ' the medium of its kirk-sessions, presby- ' teries, provincial synods, and general ' assemblies, or according to the form, or ' forms, in use with the said body, or ' united body, for the time : Providing ' always, as it is hereby expressly provided ' and declared, that no person, or persons, ' even holding such authority and appoint- ' ment as aforesaid, nor any person or ' persons whatsoever, shall have any right : or title to pursue the said trustees, or ' trustee, acting under these presents for ' the time, in any Court of Law or Justice, ' for the purpose, or with the object and ' intent, either of obtaining such permission ' and sufferance, as said is, or the con- ' tinuance thereof, or of obtaining, in any ' manner of way whatever, liberty, or the ' continuance of liberty, to preach and ' expound the Holy Scriptures, or ad- ' minister ordinances, or to do or perform ' any act of religious worship, or other act ' or thing whatsoever, within the said ' building or place of worship, erected, or ' to be erected, as said is, or with the ' object and intent of in any way con- ' trolling the said trustees, or trustee, in ' reference to the use, occupation, manage- ' ment, or disposal of such building or ' place of worship, unless with the express ' consent and concurrence of the General ' Assembly of the said body, or united ' body, of Christians, or of the Commission ' of such Assembly, previously had to ' such pursuit ; of which consent and ' concurrence the only legal or admissible i66 HOUSE OF LORDS ' evidence shall be, a written certificate, ' under the hand of the moderator and ' clerk of the General Assembly of the ' said body, or united body, of Christians, ' or of their then immediately preceding ' General Assembly, or under the hand of ' the parties generally known or under- ' stood to hold those offices for the time ' being; which written certificate shall ' be produced along with the summons or ' other proceeding commencing such pur- " suit, otherwise the same shall be utterly ' incompetent, void, and null, albeit such ' certificate really may exist : Declaring, as ' it is expressly provided and declared, ' that, in the event of any person or ' persons, even holding such authority or ' appointment as aforesaid, or any person ' or persons whatsoever, pursuing the said ' trustees, or trustee, as aforesaid, unless ' with such express consent and con- ' currenee as aforesaid, previously had to ' such pursuit, as said is, evidenced as ' aforesaid, such person or persons shall, ' immediately on such pursuit being ' commenced, ipso facto, forfeit and lose ' all and every right, title, and interest, ' and claim, and demand, of whatever ' description, under these presents, and ' shall, from thenceforward, cease to have ' any concern therewith, or interest there- ' in : And providing further, as it is hereby ' further expressly provided and declared, ' that, whensoever any person holding ' such authority or appointment as said is, ' and enjoying the permission and suffer- ' ance foresaid, shall, by a sentence of the ' said body, or united body, of Christians, ' pronounced by one or other of its ' presbyteries, provincial synods, or by its ' General Assembly, or Commission of ' such Assembly, for the time being, or in ' any other way or manner in use in ' such matters, for the time, by the said ' body or united body of Christians, be ' deposed or suspended from office, or cut ' off from the said body, or united body, of ' Christians, or declared no longer a ' minister thereof, his authority and ' appointment foresaid shall, ipso facto, ' cease and determine ; and the said ' trustees or trustee, acting for the time, ' shall not only be no longer bound, but ' be no longer entitled, to permit or suffer ' him to preach and expound the Holy Scriptures, or administer ordinances, 01 do or perform any act of religious worship, or other act or thing whatso ever, within the said building or place of worship, erected, or to be erected, as said is ; and shall be bound and obliged to debar him therefrom, aye and so long as he remain deposed or suspended or cut off as aforesaid : Thirdly, Upon further trust, That the said building or place of worship, erected, or to be erected, as said is, and whole appurten ances thereof, and generally the whole subjects hereby disponed, shall be under the immediate charge and management (except always as regards the authority and appointment, and relative permission and sufferance before-mentioned), of the elders and deacons, or elders acting as deacons, for the time being, of the con gregation, in the use, occupation, and enjoyment, for the time, of such building cr place of worship ; such elders and deacons, or elders acting as deacons, being always subject to such control as shall, or may, be provided from time to time by the said body, or united body; of Christians, through the medium of its kirk -sessions, presbyteries, provincial synods, and general assemblies, or in the way and manner generally in use in the said body, or united body, for the time : declaring always, as it is hereby expressly provided and declared, that it shall not be in the power of the said deacons, or elders, or any of them, or of any, or all, of the individual members of the congre gation, in the use, occupation, and enjoy ment, for the time being, of the said building, or place of worship, and appur tenances thereof, or of any or all of said parties, either to maintain themselves in any use, possession, occupation, or enjoy ment of the same, as against the said trustees, or trustee, acting for the time, or to institute against the said trustees or trustee, acting for the time, any action, suit, or proceeding, before any court of law or justice, for the purpose either of obtaining, or maintaining, such possession, use, occupation, or enjoyment, or of controlling in any way the said trustees or trustee, in reference to the use, possession, occupation, or enjoyment, or management and disposal, of such build MODEL TRUST DEED CASE: RESPONDENTS 167 ing, or place of worship, unless with the express consent and concurrence of the General Assembly of the said body, or united body, of Christians, or Com mission of such Assembly, previously had; of which consent and concurrence the only legal or admissible evidence shall be a written certificate, under the hand of the moderator and clerk of the General Assembly of the said body, or united body, of Christians, or of their then immediately preceding General As sembly, or under the hand of the parties generally known, or understood, to hold those offices, for the time being, which written certificate shall be produced along with the summons or other proceeding commencing such action, suit, or pro ceeding, otherwise such action, suit, or proceeding, shall be utterly incompetent, void, and null, albeit such certificate may really exist: declaring, as it is hereby expressly provided and declared, that, in the event of any elders and deacons, or elders or deacons, one or more, or members or member, of any congregation, as aforesaid, or all or any of them, instituting against the said trustees, or trustee, any action, suit, or proceeding, as aforesaid, for the purposes foresaid, or any of them, unless with such express consent and concurrence as aforesaid, previously had, as said is, evidenced as aforesaid, such party, or parties, instituting said action, suit, or proceeding, as aforesaid, shall, immedi ately on the same being instituted, ipso facto, forfeit, and lose all and every right, title, and interest, and claim, and demand, of whatever description, under these presents, and shall, from thence forward, cease to have any concern therewith, or interest therein : Fourthly, Upon further trust, that the said trustees or trustee, acting for the time, shall, at all times, be subject, in the management and disposal of the said building, or place of worship, and appurtenances thereof, and whole subjects hereby dis poned, and in all matters and things connected therewith, to the regulation and direction of the General Assembly, for the time being, of the said body, or united body, of Christians, and shall be liable and bound to conform to, imple- ' ment, and obey, all, and every, the act, ' or acts, of the General Assembly, for the ' time being, of the said body, or united ' body, of Christians, in reference thereto ; ' and the moderator and clerk of the said ' General Assembly, for the time being, ' or of the then immediately preceding ' General Assembly of the said body, or ' united body, of Christians, or the parties ' generally known, or understood, to hold ' those offices for the time, shall, at all ' times, have full power, and sufficient * status, and right and interest, to pursue, ' or defend, any action, or actions, in ' whatever court, or courts, of law or ' justice, for the enforcement, mainten- •' ance, or protection, of the rights, ' interests, or privileges of the said body, ' or united body, of Christians, or General ' Assembly thereof, in, or in any way ' connected with the subjects hereby dis- ' poned, and building, or place of worship, ' erected, or to be erected, thereon, and ' appurtenances thereof : Declaring always, ' that a certified copy, under the hands ' of the moderator and clerk of the said ' General Assembly, for the time being, ' or of the then immediately preceding ' General Assembly of the said body, or ' united body, of Christians, or of the ' parties generally known, or understood, ' to hold those offices for the time, shall ' always be legal and admissible evidence, ' in all actions, matters, and things, arising ' under, or out of these presents, of the ' terms of any Act or Deliverance of the ' General Assembly of the said body, or ' united body, of Christians, or Commission ' thereof, pronounced, passed, or that may ' be passed or pronounced, and that a certifi- ' cate, under the hand of the moderator and ' clerk of the said Assembly, for the time ' being, or of the parties generally known, ' or understood, to hold those offices for the ' time, attached to such certified copy, and ' bearing the date of such Act or Deliver- ' ance, and certifying that the same is, either ' wholly or in part, an existing Act of the ' said Assembly, or Commission thereof, ' shall always be legal and admissible evid- ' ence, in all actions, matters, and things, ' as aforesaid, of the date of such Act or ' Deliverance of the said Assembly, or ' -Commission thereof, and of its being still, ' either wholly or in part, an existing Act i68 HOUSE OF LORDS ' or Deliverance as aforesaid : And declar- ' ing further, that a certified copy of any ' Act or Dehverance of any of the Synods , ' or Presbyteries of the said body, or united ' body, under the hands of the Moderator ' and Clerk of any such Synod or Presby- ' tery respectively, or of the parties gener- ' ally known and understood to hold those ' offices for the time, shall always be legal ' and admissible evidence in all actions, ' matters, or things, arising under, or out ' of, these presents, of the terms and date ' of any Act or Deliverance pronounced by ' any such Synod or Presbytery respec- ' tively : Fifthly, It is hereby expressly ' provided and declared, that the said ' trustees, or trustee, acting for the time, ' shall always have full power and liberty ' to raise, prosecute, and follow forth, ' whatever action, suit, or proceeding, they ' may think proper, in whatever court, ' or courts, of law or justice, for the purpose, ' or with the intent and object, of exclud- ' ing any party or parties, whatsoever, from ' all, or any, use, possession, occupation, or ' enjoyment, of the building, or place of ' worship, erected, or to be erected, as said ' is, or any part thereof, or generally of the ' subjects hereby disponed, or any part ' thereof ; and that no party or parties, ' whatsoever, shall have any right or title * whatsoever to defend such action, suit, ' or proceeding, either in virtue of these ' presents, or otherwise, unless with the ' express consent and concurrence, as afore- ' said, of the General Assembly of the said ' body, or united body, of Christians, or ' the Commission of such Assembly, pre- ' viously had to such defence ; of which ' consent and concurrence the only legal ' or admissible evidence shall be, a written ' certificate, under the hand of the ' moderator and clerk of the General ' Assembly of the said body, or united ' body, of Christians, or of their then ' immediately preceding General Assembly, ' or under the hand of the parties gener- ' ally known, or understood, to hold those ' offices for the time being, which written ' certificate shall be produced along with ' such defence, otherwise the same shall ' not be maintainable, but be incompetent, ' void, and null, albeit such certificate ' may really exist ; . . . Seventhly, It is ' hereby also expressly provided and de- ' clared that it shall, at all times, be in ' the power of any trustees, or trustee, ' whether hereby named, or that may be ' appointed in virtue of the powers and ' provisions hereinafter contained, who ' may have acted in the said trust, to ' resign the trusteeship ; and that, in the ' event of any trustees, or trustee, whether • named or to be appointed, as said is, * ceasing to be members of the said body, ' or united body of Christians, then, and ' in that case, such trustees, or trustee, ' shall, ipso facto, cease to have any right ' to act under these presents, and the trust ' shall be thenceforward conducted by the ' other trustees as if such trustees, or trustee, ' ceasing as said is, were actually dead.' Now it is to be observed upon these trust purposes that the property in question in this action was not held by this congregation as a congregation, but was held by the trustees for it only as a congregation of a certain Church or body of Christians, viz., the Free Church of Scotland, or any united body of Christians composed of them, and of such other body or bodies of Christians as the Free Church might at any time associate with them selves under whatever name or designation they might assume. The particular build ings are held in all respects subject to the orders and disposition of the Church, act ing through its General Assembly for the time being. In other words, the element of property in the congregation as a congre gation, apart from the Church with which it is connected, does not exist here. It is ex pressly provided, indeed, that the Church ' shall in all time coming be used, occupied, ' and enjoyed as and for a place of religious ' worship by a congregation ' — not this specific congregation — ' by a congregation ' of the said body of Christians called the ' Free Church of Scotland, or of any united ' body of Christians,' and so on. The present is a typical illustration of the kind of case figured by Lord-Chancellor Eldon in Craigdallie v. Aikman, 21st July 1820, Paton's Appeal Cases, vol. vi. page 618, at the passage in page 635. That case arose out of a difference of opinion which occurred in the Associate Synod of Burgher Seceders in reference to the principles of their Church in regard to the power of MODEL TRUST DEED the civil magistrate and the ordination of ministers. The majority proposed an altera tion in the formula, which was alleged to be a departure from the original principles. In the passage referred to, Lord Eldon says: 'li it can be made out that this ' society originally said this, We will con- ' tribute our money for the purposes of ' building a meeting-house, and we will ' place ourselves under the jurisdiction of ' the Associate Presbytery, and afterwards ' of the Associate Synod ; and placing ' ourselves under the jurisdiction of the ' Associate Synod we agree that the ' Associate Synod shall direct the applica- ' tion of this place so built, that is matter ' of law, and the contract will apply to the 'law.' It is submitted that, if the Church's action in entering into the Union was competent and valid, as is contended for by the Respondents in General Assembly of Free Church of Scotland and Others v. Overtoun and Others, it follows that the property here in question is now held for behoof of the United Free Church, and subject in all matters to the regulation and direction of its General Assembly. But further, it is submitted that the same conclusion is reached irrespective of the condition above referred to. The kind of Union contemplated by this Deed as a union into which the Free Church may enter is a union ' with any other ' body or bodies of Christians.' Provided, therefore, the Free Church enters into a union with any other Church, of which it cannot be said that they are not a body of Christians, then so far as the terms of this particular title are concerned, the Free Church having entered into such a union is entitled to maintain that the property held under the title here in question is held for behoof of, and subject to the dis position of the united body. It was argued in the Court below that the Free Church in entering into union must be unanimous, otherwise the pro visions of the Model Trust-Deed do not apply, but it is submitted there is nothing either in this Deed or in the constitution of the Free Church or at common law to CASE: RESPONDENTS 169 disable the Church from taking the step of union even though there be a minority opposed to it. In this connection the terms of the Barrier Act giving tho Church wide powers of making changes, discussed in the Respondents' Case in the Appeal, General Assembly of Free Church of Scot land and Others v. Overtoun and Others, are referred to and founded on. Attention is directed to the ninth trust purpose of the Model Trust-Deed. It is in the following terms : — ' Ninthly, It is hereby specially pro vided and declared, that if, at any time hereafter, one-third of the whole ordained Ministers, having the charge of congre gations, of the said body, or united body, of Christians, or any larger number of the said ordained Ministers, having charge, as aforesaid, shall simultaneously, or within a consecutive period, not exceed ing three calendar months, not only publicly separate from the said body, or united body, of Christians, but, at the same time, publicly claim and profess to hold, truly, and in bond fide, the principles of the Protest of 18th May 1843, herein before recited, and to be carrying out the objects of the said Protest more faithfully than the majority of the Ministers of the said body, or united body, of Christians, and shall unite in forming one body of Christians, having kirk - sessions, presbyteries, provincial synods, and a General Assembly, then and in that case, and anything herein to the contrary notwithstanding, it shall be competent to, and in the power of, a majority of the congregation, in the use, occupation, and enjoyment of the said building, or place of worship, for the time to provide and declare, by a deed of declaration and appointment under their hands, to that effect, duly executed, that the ground hereby disponed, and building, or place of worship, then upon the same, shall, from thenceforward, be held as in connection with the body of Christians adhering to the Ministers who shall have separated as aforesaid, and, for this purpose, to require and appoint the said trustees, or trustee, acting under these presents for the time, to convey 1J6 and dispone the ground hereby disponed, and the building, or place of worship, then upon the same, and whole appur tenances thereof, to any three or more trustees in the said deed of declaration and appointment named, to be held by such new trustees, and their successors, in trust, as after mentioned : And, on such deed of declaration and appoint ment being executed, as said is, the trustees, or trustee, acting under these presents for the time, shall be bound and obliged, as they are hereby bound and obliged, at the expense always of the receivers, and on being entirely freed and relieved of all pecuniary obligations then affecting the subjects hereby disponed, or buildings thereon, or affecting them as trustees, or trustee, under these presents, or for or to which they, as such trustees, or trustee, may be subject or liable, but no sooner, or otherwise to convey and dispone the ground hereby disponed, and the building, or place of worship, then upon the same, and whole appurtenances thereof, to the said new trustees who shall be in the said deed of declaration and appointment named, and their successors in trust, for the said persons, subscribers of the said deed of declaration and appointment, as a con gregation of the said body of Christians who shall have separated as aforesaid, and for the successors of such persons forming such congregation for the time being ; such new deed of trust to be mutatis mutandis, as nearly as possible, in the terms, and of the import, of these presents, and to have for its object the placing the said congregation of the said body of Christians who shall have sepa rated as aforesaid, and the minister of such congregation, and the elders and deacons, and elders acting as deacons thereof, and the said body of Christians who shall have separated as aforesaid, and its kirk-sessions, presbyteries, pro vincial synods, and General Assembly, and the said new trustees themselves, in the same relation respectively to the ground hereby disponed, and buildings thereon, and appurtenances thereof, and in the same relation to each other, in reference thereto, as was held, before the granting of the said new deed of HOUSE OF LORDS ' trust by the congregation using, occupy- ' ing, and enjoying the same in virtue of ' these presents, and the Minister of such ' former congregation, and the elders and ' deacons, and elders acting as deacons ' thereof, and the said original body, or ' united body, of Christians, and its kirk- ' sessions, presbyteries, provincial synods, ' and General Assemblies, and the said ' trustees, or trustee, acting under these ' presents.' This clause provides for a split or schism in the Church and for the allocation of property in the event provided for. A number of ordained ministers did in point of fact separate ' from the said body or ' united body of Christians,' and they maintained that they held the principles of the Protest of 1843 more faithfully than the majority. But the number who so separated was greatly less than ' one-third ' of the whole ordained ministers having ' the charge of congregations of the said ' body.' Assuming the principle that ' if ' the instrument contains in it a provision ' for the case of schism and separation ' among the members themselves, the ' Courts will act according to the pro- ' visions so contained ' (the language of Lord Chancellor Eldon in Craigdallie v. Aikman, cited above, 6 Paton's Reports, page 635), it is submitted that this trust purpose has no application to the circum stances of the present case. The minority of ministers who separated from the Church not being one-third of the whole ordained ministers of the Church, but greatly less (26 out of 1100), no claim can be made for the property in question in this action under the ninth trust purpose, seeing that the circumstances which alone bring the principle of division therein set up into operation do not here exist. An objection was taken by the Ap pellants to the terms of the Model Trust- Deed being held as incorporated into the title of the property here in question. The feu-charter states that the subjects therein disponed are disponed in trust. It does not enumerate the trust purposes in detail, but refers to another deed as specially enumerating them, said deed being identified by the names of granters MODEL TRUST DEED and grantees, by its date, and by the date of its registration in the Books of Council and Session. The objection taken is that the trust purposes are not validly incor porated into the feu-charter because they are not referred to as being set out ad longum in a deed recorded in the Register of Sasines. It is submitted that the objection is groundless. It proceeds upon the pro visions of certain conveyancing statutes, which provide that real burdens may be created on heritable subjects not merely by setting them out at length in the deed making the grant, but by referring to them as set out ad longum in a deed or instrument already on the Register of Sasines. The Appellants seek to apply these provisions to a purpose for which they were never intended. No question is here raised as to the effectual creation of real burdens so as to bind singular successors in the property. The present question relates only to the terms of a trust. Certain trustees obtain a convey ance of property which bears expressly to be merely in trust. As between the trustees, and the beneficiaries — or persons who claim to be beneficiaries (which is the Appellants' position) — the trust purposes may be ascertained by reference to any document which enumerates the trust purposes. Indeed the position of the Appellants compels them to appeal to the Model Trust-Deed. Apart from the trust purposes there enumerated, they have no title whatever to the property in question. It is only by reference to these trust purposes that they can maintain any defence to the present action. CASE: RESPONDENTS 171 The grounds of the Lord Ordinary's opinion are to be found in his Lordship's judgment in the case of Dingwall v. M'lver (the Aultbea Case), another of the four test cases. His Lordship there says: — ' The title to the church is a feu-charter by which the site is disponed to trustees " for the congregation of the body of " Christians called the Free Church of " Scotland worshipping at Aultbea," and it is declared that " these presents are " granted ... in trust that the place " of worship erected upon the ground " hereby disponed shall, in all time " coming, be used as and for a place of " religious worship by a congregation of " the said body of Christians called the " Free Church of Scotland, or of any " united body of Christians composed of " them, and of such other body or bodies " of Christians as the said Free Church " of Scotland may at any time hereafter " associate with themselves under the " foresaid name of the Free Church of " Scotland, or under whatever name or " designation they may assume." ' These words seem to me to apply in terms to the ease which has occurred, and if I am right in holding that the union with the United Presbyterian Church cannot be challenged by the members of the Free Chiirch who did not accede to it, it follows that the trustees in whom the Aultbea Church is vested now hold it for the United Church.' The Respondents submit that the inter locutors appealed against are well founded, and that the Appeal should be dismissed for the following among other REASONS. I. Because the property in question is held by the trustees in whom it is vested, subject to the control and disposition of the Free Church of Scotland, or of the Free Church and any other body of Christians with whom it might unite. II. Because the union with the United Presbyterian Church was competently and validly formed by the Free Church of Scotland, and the pro perty in question is now held subject to the control and disposition of the United Free Church of Scotland. 172 HOUSE OF III. Because under the title in question, the Free Church of Scotland was entitled to unite with any other body of Christians, and the property is now held in terms of the feu-charter for the united body. IV. Because the trust purposes enume- LORDS rated in the Model Trust-Deed are validly incorporated and referred to in the said feu-charter. A. Asher. R. B. Haldane. Charles J. Guthrie. S. L. Orr. IX IN THE HOUSE OF LORDS RE-ARGUMENT IN BOTH CASES Lords Present. The Lord Chancellor (Lord Halsbury). Lord Macnaghten. Lord Davey. Lord James of Hereford. Lord Robertson. Lord Lindley. Lord Alverstone (The Lord Chief Justice). Mr H. Johnston, K.C., Mr Edward T. Salvesen, K.C., and Mr J. Roberton Christie appeared as Counsel for the Appellants. The Dean of Faculty, K.C., Mr R. B. Haldane, K.C., Mr Charles J. Guthrie, K.C., and Mr R. L. Orr appeared as Counsel for the Respondents. FIRST DAY. THURSDAY, 9th JUNE 1904. The Lord Chancellor: I think I is. My Lords, there were, prior to 1900, ought to mention that I have received a two Churches in Scotland non-established, letter from my noble and learned friend, the Free Church of Scotland and the Lord Kinross, whom I had asked to give United Presbyterian Church of Scotland. us the weight of his great authority and In the year 1900 the majority of the Free learning, but he writes to me that he Church of Scotland and, I think perhaps thinks it might be supposed that he would unanimously, the United Presbyterian be prejudiced in hearing the case by Church of Scotland formed a Union, and former opinions he had entertained, and now call themselves the United Free he asks therefore to be relieved from the Church of Scotland. But of the Free duty of attending on their Lordships. Church of Scotland a minority, or Mr Johnston : My Lords, as there are remnant, maintained that they were not members of the Court who were not justified in forming that Union, and con- present on the former occasion, I should tinued to maintain the continuity of desire at the outset to explain shortly existence of the Free Church as it had what the nature of the question at issue existed before 1900. 174 HOUSE Lord DaveY: Would you mind my asking you, Mr Johnston, on that, Are these congregations of the Free Church of Scotland who stand out, or are they individuals 1 Mr Johnston : They are congrega tions, my Lord ; of course I cannot say absolutely unanimous. There are, no doubt Lord Davey : There are congregations, the majority of whom stand out, who maintain the old Mr Johnston: There are, and I may say, my Lord, that you have a very good example of that in the second Appeal, the Case of the Free Buccleuch and Greyfriars Church. I propose, my Lord, as I hope it may shorten the matter, to take both these Appeals together. Therefore, my Lord, the question at issue is that of the majority of the Free Church who form this Union with the United Presbyterian Church, and now maintain, as though it were the Free Church under another name, the United Presbyterian Church ; but of course the Case comes before your Lordships because not only do the majority of the Free Church maintain their right to form along with the United Presby terian Church a new Body, but to carry with them into that Union the property of the Free Church. There are two Appeals before your Lordships, one of which — the major Appeal — the first — ¦ deals entirely with property which belongs to the Church as a whole. The second Appeal deals with property which belongs to a par ticular Congregation, that Congregation having been a Congregation of the Free Church. The second Case is taken, of course, as a test Case ; there are, I think, six different Cases in Court, and a num ber which might have been brought, but the Case of the Buccleuch Church is taken as a test Case on the subject of Congregational property. The question, therefore, upon which the Case depends, is the right of the majority of the Free Church to unite with the United Pres byterian Church against the will of the minority, and to carry with them into, as we think, the new Body, both the Church and the Congregational property. My Lord, at this point I would like — because OF LORDS it runs through the Case — to explain to your Lordship that there is a technical term used in a great many of the docu ments and speeches which does not bear the meaning which it would probably have to anyone reading it from England ; I mean the word "Voluntary." A "Voluntary" in the ordinary sense means of course when applied to a Church or other organisation — as I think to the Schools in England — that which is being maintained by voluntary dona tions or subscriptions. In the use of the word "voluntary" in the present controversy, " voluntary " has always meant — has had the secondary or tech nical meaning, "independent of State aid" — and not merely independent of State aid, but resenting and holding State aid to be illegal. One of the grounds upon which we, the Appellants, maintain that the majority of the Free Church in departing from the Free Church, and forming this Union have erred against the Constitution of their Church, is that they have adopted what in that technical sense are voluntary principles, the principles of the United Presbyterian Church having been all along voluntary in that sense. Now, my Lord, I should state now shortly for your Lordship's assistance that the Free Church was formed in 1843, by what has been known as the Disruption of a large number, probably even then a majority, of the Established Assembly and those who adhered to them — the disruption or severance, because they did not admit that it was schism — the severance or disruption from the Established Church of a large number of its members. Now the terms upon which they so severed themselves are unfortu nately in one sense not defined in any Constitution which was specially prepared for the purpose of a Constitution, but they are defined, and defined very accu rately as we think, in a series of docu ments, four, I think, in number, which documents were documents connected with this Disruption. They are printed for your Lordships, and I shall explain them, of course. Now from those docu ments you find, of course, the cause of the Disruption was something definite ; MR. the cause of disruption speaking, a difference of opinion between the majority of the Assembly and the Judicial Authorities in Scotland, and in the House of Lords as Sitting on Appeal, a difference of opinion as to the right of the Church in connection with the selec tion and induction of Ministers. To use a short phrase which was current in those days, the Church by its majority, main tained what was termed non-intrusion principles ; that is to say, anti-patron age — that Ministers were not to be in truded upon unwilling Congregations — in fact that patronage was illegal and ought to be abolished, and that the choice of Ministers should rest with those to whom they were going to minister. Now, that was the standing cause of the Disruption. In the Dis ruption Documents, you will find that they set forth certain fundamental prin ciples of the Church, of course leading up to that conclusion. My learned friends in the previous Argument termed these principles principles of " Spiritual inde pendence," but you will find that the term " Spiritual independence '' is never used in any of their documents. You will find also that they never defined what " Spiritual independence " meant. I think you will find that so far as it can be applied to what was the subject of dispute at the time — 1843 — of the Disruption it had a very limited sense. My learned friends now endeavour to place upon it an absolutely uncontrolled and unlimited sense, and to define for themselves, as it seems to me, what the meaning of " Spiritual independence " or independence in spiritual things is. I find it defined — I was going to say in their Articles, but I must not use that, as it is a term from Company Law — in the documents which constitute their Constitution, and they do, I think, come very near to Articles of a pros pectus, when you come to examine them. But, my Lords, in addition to this prin ciple of non-intrusion which they now call ''spiritual independence," the two other main features in the Disruption were the maintenance of the principle of State Establishment — not merely the power JOHNSTON'S SPEECH 175 was, roughly but the duty of the State to maintain and support — establish and endow — the Church ; and the second principle was the unqualified adoption of the Westminster Confession of Faith. Now I have to maintain to your Lordships — and to sup port my case by maintaining — that it was part of the Constitution of the Free Church in 1843 that that Church maintained the doctrine of State Establishment as opposed to Voluntaryism, and that it maintained unqualified the adoption of the Westmin ster Confession. Now, in the Union the complaint of the minority of the Free Church and their refusal to enter the Union with the United Presbyterian Church is based upon these two things : first of all, that the Church in so doing departed from its principles of State Estab lishment and embraced Voluntaryism; and in the second place, that it has qualified, and in fact abolished as its Creed, the Westminster Confession. Those two mat ters, my Lord, are the matters which I have to maintain. Now in answer to me there my learned friends maintain in the first place that these two principles upon which I have founded — State Establish ment and the Confession of Faith — are not constitutional or distinctive founda tions of their Church ; secondly, that they are not abandoned; but thirdly — and I think it is on this that they mainly rest their case, if I may judge from the argu ment of the learned Dean of Faculty — that the Free Church as it existed in 1900, and from 1843 to 1900, had abso lutely uncontrolled legislative power — that is power to alter anything, even fundamental. I shall, therefore, have to maintain to your Lordships first of all, that those two principles underlie the Constitution of the Free Church in 1843 ; secondly, that in union they have been departed from; and, thirdly, that the Free Church of Scotland had not, either in herently as a Church or in consequence of any terms of its Constitution, any power to alter that which was a foundation of its constitution as an independent body. Now, I should say further in introduction, that I do not think there is any question that the minority of the Church who have maintained its continuity have un questionably adhered to all its original 176 principles ; and the further question is whether the majority have power to com pel this minority to follow them into Union under pain of loss of all interest and under pain of being treated as seceders and under pain of loss of all interest in the Church's property. Now, I think before I pass to the Sum mons, it may be convenient for those of your Lordships who have not heard the Case before, if I give you a few essential dates, because it assists to the understand ing of the history of the Church. I would remind your Lordships that Queen Mary of Scotland succeeded as an infant in 1542, and that it was during her minority that the first struggle for Reformation in Scotland occurred. It was in 1560 that practically the history of the Established Church of Scotland commences, because it was in 1560 that the Scots — or what is also known as Knox's Confession — was adopted. That Confession is, of course, different from the Westminster Confession, but was the Confession of the Church from 1560 down to the date, say 1647, when the Westminster Confession was adopted. My Lord, the next date of importance is that in 1567 Queen Mary resigned and her infant son James was called to the Throne with Moray as his Regent, and in 1567 you will find impor tant Acts passed by the Scots Parliament. The third important date is 1592. In 1560, and 1567 you will find that a Con fession was adopted, but it was only in 1592 that Presbytery was for the first time adopted as the Established form of the Religion in Scotland. Things may be said to have crystallised into Presbytery in that year. King James reigned until 1625, when Charles I. succeeded, and from the end of the Sixteenth Century down to the end of Charles's reign there were of course ups and downs between Presby tery and Episcopacy; but in 1638 there occurred the Presbyterian uprising against Episcopacy synchronous with the uprising of the Nation generally against Charles's demand for Royal Supremacy, and be tween 1638 and 1647 there occurred many of the transactions upon which I shall have to found, which resulted in HOUSE OF LORDS the appointment of the Westminster Assembly and in the adoption of the Westminster Confession and other docu ments produced by that Assembly from 1638 to 1647. Then, of course, your Lordships remember that the Restoration took place in 1661 and the Revolution Settlement in 1689 and 1690. Now, both the Revolution Settlement and the Union of the two Kingdoms under Queen Anne are important dates in connection with the history of the Church — and I should explain to your Lordship that the reason they are important is this, that the Free Church claims to be the Established Church of Scotland carried on under the same Constitution but freed from the interference of the Courts of the Country. The history, therefore, of the Constitution of the Established Church is essential to my purpose in ascertaining what was not only the question, but what was done in 1843 when the Disruption took place. Now, my Lord, with that introduction let me, as shortly as I can, explain to your Lordship the nature of the Summons. The parties — the Pursuers — you will find it at page 1 of the Case : * the volume before your Lordships is divided into, first of all, the Cases for the Appellants and the Respondents; secondly, four Appendices, and your Lordships will find prefacing these four Appendices a General Index, as much as possible in chronological order, giving the References to the particular Appendix and the page upon which the documents are found. My Lord, at page 1a of the Appellants' Case you find the Summons. The Pursuers are the members of the Assembly of the Free Church, by which your Lordships will understand the minority Church — those who remained in the Free Church at the date of the Union ; and the Defendants are three different sets, and I ask your Lordships' attention to page 2 of this ; at page 2, letter C, you have the list of the Old General Trustees of the Free Church ante the Union, that is to say, those who held General Church property before 1900. At the bottom of the page, under the word ("second"), in the second last line of the page, you have * The references throughout the argument to pages are to pages of the printed Case before the Court, not of the present volume. MR JOHNSTON'S SPEECH 177 the New General Trustees or post Union Trustees — the Trustees for the United Free Church of Scotland ; and at letter E on page 3 you have the members of the General Assembly of the United Free Church. Now, my Lord, of course, they were nearly a thousand in number, and therefore it takes some forty pages to give their names. Lord Davey : The first set are the old Trustees. Mr Johnston : The first set are the old Trustees ; the second set are the new or post Union Trustees, and the third set are the members of the General Assembly of the United Free Church. Lord Davey : Has the property actually been conveyed by the old Trustees to the new Trustees — transferred t Mr Johnston : I cannot answer that question, except in this way, my Lord ; I cannot say that conveyances have been made — I do not know whether convey ances have been made — but for your pur pose Acts of Assembly have been passed transferring; they are important Acts, and I will have to refer to them. The Lord Chancellor: They claim at all events to do so ; that is enough for your purpose. Mr Johnston : Yes. Your Lordship will find at the bottom of page 41 the con clusions, and I wish before referring to them at this stage to disclaim any per sonal attitude qn the part of the Pursuers. My learned friends have rather taken the case, both in this House and in the Court below, as if we were claiming some ex clusive right in the property of the Church. My Lord, we merely claim here • — and we could not have raised the ques tion, I think, otherwise — to vindicate the property for the Free Church, as, accord ing to its present Constitution, it exists, for ourselves, and we very carefully note " and for those adhering to us." The Lord Chancellor: I did not understand, and I do not understand now what the distinction is. Mr Johnston : The distinction is this, my Lord, that it is open — if your Lord ships agree with the Appellants here in thinking that this Union ought not to have taken place — it is open to the mem bers of the Free Church to return to their adherence to the Church which has con tinued in existence. The Lord Chancellor : Yes, yes ; I understand that, but I do not understand what you call the personal ground ; those who are beneficiaries of a Trust say the Trust has been used in a manner that is not authorised by the Trust. Mr Johnston : Quite. The Lord Chancellor : And they ask that the Trust should be duly adminis tered ; that is all ? Mr Johnston : That is so, my Lord. I merely wanted to disclaim any idea of our making a claim in any other sense. The Lord Chancellor : I do not remember that it was suggested before by the learned Counsel, the Dean of Faculty, but, whether it was suggested or not, it appears to me to be untenable, because the only question is the due administration of the Trust. Mr Johnston : I wanted merely to make that clear, my Lord, and I say nothing further. My Lord, the first con clusion at the bottom of page 41 is, to summarise it, that the whole property which at the 30th October 1900 stood vested in the first Defenders — that is, the old Free Church Trustees — was so " vested in " (I read now from page 42, the third line) " and held by the said Defenders as Trustees under various Trusts for behoof of and in connection with the association or body of Christians known as the Free Church of Scotland, and that no part of the said lands, properties or funds so vested in or held by them might lawfully be diverted to the use of any other associa tion or body of Christians, or at least of any other association or body of Christians not professing, adhering to, and maintain ing the whole fundamental principles embodied in the constitution of the Free Church." My Lord, that really is the main Conclusion for the purpose of vindi cating the funds, but of course we have to follow that up by other efficient Con clusions, and accordingly the second is that the United Free Church associated under its Constitution " does not embody, adopt, and provide for maintaining intact the whole principles which are funda mental in the Constitution of the Free Church of Scotland ; (3) that the United M i78 HOUSE Free Church of Scotland has " therefore " no right, title, or interest in '' the pro perty ; and "(4) that such of the De fenders as, having formerly been members of the Free Church of Scotland, have adhered to and associated themselves as members of the said United Free Church, have thereby amitted, lost, and forfeited all right and title to and beneficial interest in the said " property ; (5) that the Trustees first enumerated, or the Trustees secondly enumerated, or such others of the Defenders as may now be possessed of the funds, "may not lawfully apply the same or any part thereof for behoof of said association or body of Christians known as the United Free Church of Scotland "; and " (6) that the Pursuers and those adhering to and lawfully associated with them conform to the Constitution of the Free Church of Scotland are and lawfully represent the Free Church of Scotland, and are entitled to have the whole of the said lands, property, and funds applied according to the terms of the Trusts upon which they are respec tively held." It seems to me that the first and the sixth are the really important Conclusions, namely, for the purpose of vindicating this property for the Trusts upon which it was held. Now, I should further add, my Lord, that at the bottom of the page, letter F, there is an alter native Conclusion which it is right I should read to your Lordship ; " that the Pursuers, and those who may adhere to them, bave not, by declining to adhere to the said association or body of Christians known as the United Free Church of Scotland, aud by electing to maintain themselves in separation therefrom as an association or body of Christians under the name, and maintaining the whole standards, constitution, and distinctive principles of the said Free Church of Scotland as heretofore existing, thereby lost or forfeited any right, title, or interest which they had at or prior to the 30th day of October 1900, in the said lands, property, and funds, but that they are entitled to the use and enjoyment of the same (subject to the Trusts aforesaid), either by themselves or along with such of the Defenders as, being formerly members of the Free Church of Scotland, OF LORDS have now associated themselves as mem bers of the said United Free Church of Scotland, or others having right thereto or interest therein, and that in such pro portion and upon such conditions as may be determined by our said Lords in the course of the process to follow hereon." My Lord, I read that Conclusion merely, however, to say this : that how ever reasonable, possibly some people may think convenient, such a result of proportional division might be, I feel I cannot in law maintain it. I do not see how, according to the law as it stands, there can be division. Your Lordships, however, may think differently, and I therefore read the Conclusion. My Lord, the rest of the Summons is merely re lative, interdicts or injunctions against diverting the property, and reduction or recission of certain Acts of the Free Church, if that be found necessary. Your Lordship will find that neces sarily what we call the Condescendence, the Statement of Facts for the Parties is lengthy here, but I trust I shall be able to assist your Lordships to come in a very few passages to the position taken up on Record by the different Parties. My Lord, the first nine Articles merely give the history of the immediate cause of the Disruption, and I do not refer to any of them except Condescendence 6 at the bottom of page 50. Your Lordships see that we start with this statement that one of the constituting documents set forth is the object of the severance of the Free Church from the Establishment. Lord James of Hereford: Where is that, Mr Johnston. Mr Johnston : Page 50, letter F. I read the words quoted : that they should " be able to exercise government and discipline in their several judicatories, separate from the Establishment, accord ing to God's Word, and the Constitution and Standards of the Church of Scotland as heretofore understood." Now I read those words because they are an intro duction to what is in dispute between us. in the first place, you see the words "Government and discipline," and you also see the word "judicatories." Our contention is that those words (and they are the words of the Free Church them- MR JOHNSTON'S SPEECH selves) define distinctly what were the powers of the bodies — I do not want to use a word that may have a double meaning — the bodies constituted in the Free Church — the authorities I should say. " Government and discipline " — there is nothing of legislation ; they are judicatories, not legislatures. I maintain that they are Church Courts and that they have powers both of government and of discipline. My learned friends main tain they are not only Church Courts, but they are bodies with legislative power — they are assemblies with legislative power — and that they not only exercise government and discipline, but that they have the power of legislation. I ask your Lordships also to note the words with which that short passage concludes : " as heretofore understood," because I think my learned friend in previously addressing the House rested very largely upon those words and endeavoured, as it seemed to me, to extend the understanding to what he and the party he represents understand now, which is a very different thing from what the Free Church understood in 1843, and I think your Lordships will be with me ultimately when I say that the Constitution of the Church was fixed in 1843, and that if you are to find out what was theretofore understood, you must take yourselves back to the point of time at which those words were written, and that so taking it you will find that the Constitution of the Church as there understood was something very different from what my learned friend now main tains, and did not include any claim to such legislative powers as he now puts forth. My Lord, I will now pass with your Lordships' permission to Condescendence 10 on page 52, and I must read that because it is there that the constituting documents of the Free Church are set forth : " The said Free Church of Scot land is a voluntary association or body of Christians associated together under a definite contract involving the mainten ance of definite principles. That con tract is constituted by the foresaid Claim of Right, Declaration, and Protest of 1842, Protest of 1843 "—let me pause for one moment to say, my Lord, that that document was originally a document of 1/9 the Established Church ; it was a Claim of Right, Declaration, and Protest of the Established Church just before the Dis ruption, presented to Her Majesty, and when Her Majesty declined, and Parlia ment declined, to entertain it, it then became the basis of the next document, the Protest of that portion of the Assembly of the Established Church which disrupted and formed the Free Church — the " Pro test of 1843, and Act of Separation and Deed of Demission of 1843, and the Acts of Assembly of the Church of Scotland in so far as not modified thereby." Then " The foresaid " (because they have been already mentioned in the Conde scendence) "contemporaneous documents " — that is to say documents which were not part of the Constitution, but which were so closely contemporaneous as to make it justifiable to refer to them — were "the Act of Assembly of 1846, cap. 12, and the Questions and Formula thereby sanctioned." That Act of the Free Church Assembly was the Act which fixed the Questions which were to be put to Probationers and to Ministers elected to congregations, and the Formula which they were required to sign — " and the Act of Assembly of 1851 " — which you will find sets forth the history and principles of the Church — "are in accord therewith " (that is in accordance with the constituting documents) and exposi tory thereof. Said constituting documents recognise as an essential principle of the Free Church the assertion of the duty of the State ' to maintain and support an establishment of religion in accordance with God's Word ' and as an essential standard of her belief, the Westminster Confession." In Article 11, you will find this important statement. I shall not read it, but the assertion that " the con tract of association or Constitution of the said Free Church of Scotland under which it was first associated, contains no provision for any alteration " either by a majority or otherwise. Then, my Lord, in Condescendence 12 it is set forth that the Free Church of Scotland has from time to time acquired property ; and I read from above letter B : " Said contract of Association or con tract of constitution does not provide for i8o HOUSE OF LORDS or admit of any majority of the members of the Free Church of Scotland thereby constituted diverting the said property from the uses of said Church to the uses of any other Christian Association of Christians, and particularly to the uses of any such Church or Association holding principles and Standards of Belief differ ing from those of the said Free Church of Scotland as originally constituted. The individual pursuers became members, ministers, or office-bearers of the said Free Church of Scotland under and in reliance upon its constitution as herein before defined." In Condescendence 13 the Establish ment principle is defined and set forth, and I ask your Lordship's particular notice to the passage at the bottom of the page just below letter G : " The said principle formed an essential principle of the Free Church of Scotland, and its maintenance was one of the main reasons for the formation of that Church as a separate association or body of Christians, distinct and apart from those who pro fessed themselves to be 'voluntaries.' There were several such associations of seceders from the Established Church of Scotland" — and I may add to that two of them are of considerable importance from their size. "There were several such associations of seceders " " in exist ence at the time of the Disruption of 1843, holding views practically identical with those of the founders of the Free Church in matters of doctrine and as to the encroachments of the civil courts, but differing from them as regarded the duty above referred to. In regard to this, these bodies were 'voluntaries' in the sense of holding such action of the State to be unlawful. The foundation of the Free Church was a protest against the position of such Churches on the one hand, just as it was against the encroach ments of the civil power on the other," our meaning there being that if they did not hold that doctrine there was no reason why they should establish themselves as a separate organisation instead of joining those who on every other point entirely agreed with them. My Lord, from Articles 14 to 22 I do not ask permission to read anything to your Lordship, but I merely say that they contain a statement practically to this effect, that about the year 1864 was the commencement of the party favouring union with the United Presbyterian Church, which I should have said was started in 1847. In 1864 a party arose favouring union. They were opposed by a majority at the time, and in 1871 the movement was abandoned, but apparently only abandoned pro tem., because it was started again in 1896, and resulted in 1900 in the union of which we complain. There is set forth in these Articles to which I am referring two important matters — first of all, that in 1873 and 1874 there was passed by the Free Church of Scotland an Act for the pur pose of making mutually eligible ministers of the United Presbyterian Church and ministers of the Free Church ; that is to say, to make eligible for a charge in the Free Church a minister then holding a position in the United Presbyterian Church. Those Acts I shall have to refer to at length, because they are founded upon as though there were acquiescence on the part of the minority in something which meant a departure from original principles in order to admit of the eligibility of the United Presbyterian ministers. I shall maintain to your Lordship that they do no such thing, because, on the contrary, they very care fully safeguard the views of the majority of that day. The second point, my Lord, set forth is that in 1892 the Free Church J passed, as a necessary preliminary to the union which the majority was then aim ing at, what is termed a Declaratory Act. That Declaratory Act of 1892, with a sequel of 1894, we maintain, were Acts which really abolish the authority of the Westminster Confession ; and on the other side, my learned friends maintain that they do not ; and I think they also plead that in consequence of their passing, we must be held as having acquiesced in them, and therefore as having acquiesced in the union which followed them. The Lord Chancellor : I am not quite certain that I follow that last pro position. I do not know how a bene ficiary can acquiesce in a breach of trust. Mr Johnston : I confess MR JOHNSTON'S SPEECH 181 Although there is a volved a departure from the essential and distinctive principles of the Free Church as originally constituted, and from its which created Lord Davey breach of trust, you are not bound to allow your trustees to go on committing breaches of trust. Mr Johnston : I have not understood it either, my Lord, and I merely state it because it is on the Record. Lord Davey : It can be only personali exceptione, unless they prove that every single individual included in that Act who are now pursuers acquiesced. Mr Johnston : I did not intend to argue the point. The Lord Chancellor: The bene ficiaries at one period have no right Lord Davey : Because out of desire to preserve the peace, or whatever may be the motive, I look over one breach of trust by my trustee, I am not bound to go on doing it if he commits other ones. Mr Johnston -. My Lord, I do not propose to say anything upon it ; I merely mention it because it is one of the points taken against me. The Lord Chancellor: All I mean is that you cannot alter the trust ; the trust is a trust, and the beneficiaries cannot alter the trust. Mr Johnston : In these Articles, my Lord, the only other point of importance to inform your Lordships of is that they contain a very definite statement by reference to documents of the United Presbyterian Church showing that it was a principle of the United Presbyterian Church not only that they would reject State Establishment and State endowment as a principle, but that they held it illegal ; that therefore they could not in entering into the union with the Free Church be doing anything but carrying their own principle of an anti-establish ment with them. Now, my Lord, I pass therefore to Article 22, which takes up matters at the stage when the Declaratory Act of 1892 had been passed, and when negotiations for union were reopened; and I merely refer to the passage at the bottom of the page in which we aver that : " The General Assembly of the Free Church had no power in itself to pass an Act of Union with any other Church, and particularly an Act of Union which in- * The "Prints '' referred to throughout the argument are not printed in extenso in the present volume standards of faith, and and constituted a new and independent Church or association of Christians dis tinct from the Free Church of Scotland." Then the union proceedings of 1900 are narrated in Articles 23 to 28 ; Article 29 shows that a new Formula for Ministers was necessary — required in consequence of the union proceedings — and was passed; Article 30 narrates the appoint ment of new general trustees; and Articles 31 and 32 are statements of the nullity of the proceedings and our reasons therefor. Then, my Lord, from Article 33 to Article 41 you have the actings of the minority narrated, and I pass them over with this remark, my Lord, that it is quite admitted that we have maintained in continuity, if it was legal to do so, the Free Church, and that we have a good title to sue this present action. My Lord, at Articles 42 and 44 you have the reasons for our contentions, and at Article 45 you have a statement with regard to the property. My Lord, let me say at once with regard to the property, your Lordships are not con cerned with any detail of the property; the question of principle only is before your Lordships. The property is very various, and I may take just as one instance of it the property in the general buildings, library, and offices belonging to the Church ; that is quite a good enough representation to show what the class of property is ; there are many other funds, but it is quite sufficient for your Lord ships to understand that no detail is before you, and that it is merely a question of principle. Now, my Lord, that being the position with regard to our statements, I am going to ask your Lordship now to permit me to refer to the Acts under which the title has been transferred, because I think at this stage it is convenient that your Lord ships should know how the question of title stands in the defenders. At Print A, page 55,* you have the first Act in 1844, which created a general body of trustees to hold (it is at the bottom of l82 HOUSE OF LORDS page 55 of Print A, the first of the Appendices) an Act appointing a general body of trustees "to hold any property which may be bequeathed or conveyed to them for behoof of the Free Church ; and also to hold such places of worship as may be erected on sites granted on entailed estates." I should say that the latter was only to hold them temporarily until local trustees were provided. I may pass to page 116 of the same print, letter E; there is an Act of Assembly passed direct ing the several Committees of the Church to whom money may be left "to invest the same not in their own names but in the names of the General Trustees ; and they also direct all committees holding any heritable property appropriated to general purposes, to transfer the same, as soon as circumstances will admit, to the General Trustees." These trustees ex isted, with certain reappointments which I do not need to trouble your Lordships with, down to 1900, and if you would kindly turn to page 149 you will find what is done at the time of the union, and therefore what is really the Act com plained of. That is an Act of Assembly of the Free Church of Scotland just the day before the union was completed. After narrating the two Acts of Assembly to which I have referred at the top of page 150, it declares that : "Whereas the body of Trustees has been maintained by successive additions," and now consists of a certain number of gentlemen ; and then at letter F : " And whereas a Union of the said Free Church of Scotland and of the United Presbyterian Church " "is in contemplation and is about to be con summated ; And whereas the property belonging to the United Presbyterian Church is held in the names of the mem bers of the Finance Committee of that Church ; And whereas, in the event of the proposed Union," " it is proper that the whole property of both Churches should be held by one body of Trustees, consisting of the present General Trustees of the Free Church of Scotland and cer tain Members of the United Presbyterian Church who have been named by the Synod of that Church. The General Assembly " (that is, of the Free Church), "in virtue of the powers belonging to them under the rules and regulations of the said Free Church or otherwise, be longing or competent to them, hereby declares and enacts that the following " — Now these are the second set of defenders, — the post-union Trustees, — consisting of the Free Church element and of the United Presbyterian Church element, — and at the bottom of the page you will see, "shall be the General Trustees for holding the said whole property of the Free Church of Scotland, from and after the 31st day of October 1900" (that is the next day to the date of the Act), "and hereby enacts and declares that they and their successors in office, to be from time to time appointed by the General Assembly of the United Free Church of Scotland, shall be the suc cessors in office of the present General Trustees of the Free Church." Now your Lordships will see that that is an un questionable transfer to the Trustees for the Free Church of property held in trust by them to trustees for the United Free Church, to be for the future held in trust for that new body; and would your Lordships kindly note that at the top of page 151 this is done in virtue of the powers said to belong to them under the rules and regulations of the Free Church. Now there are no such rules and no such regulations that I know of — "or other wise." What is covered by the " or otherwise" is for my learned friends to show; but the Act continues: "Further, the General Assembly, with the view of facilitating the administration of the said enlarged body of Trustees, hereby directs and empowers the General Trustees of the Free Church of Scotland, as soon as required after the Union is effected, to transfer and convey all property and funds held by them in terms of the afore said Acts of Assembly at the time of the Union to the said enlarged body of Trustees of the United Free Church of Scotland, whose acceptance shall be a full discharge. Declaring at the same time that the body of General Trustees of the Free Church of Scotland shall continue to act as such after the Union for the pur pose of receiving and transferring to the Trustees of the United Church any pro perty or funds which may be or which MR JOHNSTON'S SPEECH may come into their hands as Trustees of the Free Church." My Lord, I think that deed answers the question my Lord Davey put to me at the very beginning. That therefore gives your Lordships an indication of the powers that the Free Church Assembly, prior to the Union, claimed to hold in the way of passing property to Trustees for this new Church. Now, my Lord, it is right that as I have referred to the statement for the pursuers, I should also give your Lord ships certain references to the statements for the defenders, because I think when your Lordships come to see them your Lordships will find they crystallise the points at issue between us. Your Lord ships will find these at page — I think the only passage in the Answers to our Condescendence which I need refer to is one of four lines at page 78, in which they say that we are not entitled to and do not in point of fact represent the Free Church of Scotland, and the pursuers and others who adhere to them having voluntarily separated themselves from said Church have no right or title to the property." They take, therefore, the attitude at once that we are in separation, that we are schismatics, and that therefore we have no right or title under the trusts to the property. The Lord Chancellor : Is that the Answer to the 43rd Condescendence ? Mr Johnston : The 42nd, I think, my Lord. No, I am wrong, it is the Answer to the 41st between A and B upon page 78. Lord Lindley : Appendix A, or your Case 1 Mr Johnston : The Case. I merely read those lines because they in very short words state the position which they take up with regard to us, that we are in schism, that we have departed from the Church, and that we are no longer mem bers of it, and have therefore no longer right to any of its property or any interest in it. Now turn, my Lord, to their own statements which commence at page 83. Their first Statement is that for some years prior to 1843 differences of opinion existed within the Church of Scotland as to the nature and extent of the separate jurisdiction of the Church in matters 183 spiritual. Now I pause for one moment, my Lord, to say that I do not find any where, either in the Record or in their deeds, any definition of what "matters spiritual " mean. If they are to be found in the documents constituting the Church, you will find that the term, if it describes what is to be found there, — because the term itself is not to be found there, — is of very limited application. My learned friends on the other hand stretch it to the widest and most unlimited meaning that man can apply to it, but we are certainly agreed that differences did occur as to the nature and extent of the separate jurisdic tion of the Church and of the Civil Courts in certain matters. Now Statement 2 : " The said alleged principle" (that is the Establishment principle) " referred to by the pursuers in Condescendence 13 was not a fundamental or integral principle in the constitution of the Free Church, and it has not at any time formed part of the doctrines, articles of faith, tenets, creed or contract binding upon ministers or other office-bearers or members of the Free Church of Scotland. The said Free Church as soon as possible after 1843 modified its constitution as a Church separate from the State, and settled the conditions which should be binding on its ministers and other office bearers." My Lord, for one moment, let me put it to your Lordships ; I maintain that the constitution of the Free Church was established in 1843, could not be modified, and was not modified, by any document which followed. My learned friends apparently not relying on or not liking the documents of 1843, attempt to base their constitution upon something done at a later date, namely, in 1846, when settling the conditions which should be binding on its ministers and other office-bearers. I dispute in toto that in 1846 they did anything constitu tional ; the constitution was fixed in 1843, but they say that " this was done by an Act of the General Assembly in 1846, viz., Act xii., 1846; The Church therein adopted certain questions to be put to, and a certain formula to be subscribed by office-bearers on their admission to office. The said questions and formula were adopted ad interim in 1844 and 1845, and 1 84 in 1846 said Act was General Assembly, entitled 'Act anent Questions and Formula,' which, having received the consent of the majority of Presbyteries in terms of the Barrier Act " (I will explain afterwards what the Barrier Act means), "hereinafter referred to, became a law of the Church. The said Act and the Questions and Formula are referred to for their terms and founded on. The only new Question added to those in use in the Church of Scotland previous to 1843 was the fifth question. The declaration in the Preamble of the said Act as to the Church disclaiming intolerant principles, etc., was not part of the Act, as it received the approval of Presbyteries under the Barrier Act. It was added by the General Assembly in passing the Act, and was not, therefore, at that time made (as it subsequently was) binding as a law of the Church. The only documents incorporated into the said Act of 1846, and made binding on ministers and office-bearers of the Church are the Scriptures, the Confession of Faith, the Claim of Right, and the Pro test, but the two latter only in so far as concerns their general principles with respect to one point, namely, the spirit uality and freedom of the Church. No other articles or conditions or agreements were required to be accepted or assented to, and on subscribing the above formula ministers of the Church became entitled to the status and emoluments of office, and to share in and beneficially enjoy the property of the Church. In particular, ministers were not required as a condition of office and of receiving the emoluments of office in the Church, or of beneficial enjoyment of the property of the Church, to declare their acceptance of a doctrine or principle that it is the right and duty of the civil magistrate to main tain and support an Establishment of Re ligion. Office-bearers other than ministers were likewise not required to accept the said alleged principle. Private members of the Church were not required to sub scribe the above formula or any formula, or to make any profession on the subject. The Confession of Faith does not contain or set forth the said alleged principle in respect to the right and duty of the civil HOUSE OF LORDS passed by the magistrate in regard to Establishments of Religion as an article of faith or doctrine or belief. It teaches that nations and their rulers are bound to own the authority of Christian Truth, but the Free Church has always held that the teaching of the Confession in this matter is to be read and understood in harmony with the principle (which the Confession also teaches), that the Christian Church has an independent government and jurisdic tion in matters spiritual, distinct from the civil magistrate, and also in harmony with the view that the Confession is not to be accepted as favouring intolerance, or persecution, or interfering with liberty of conscience. The alleged principle as to the right and duty of the civil magis trate to maintain and support an Establish ment of Religion has always been in the Free Church an open question in regard to which liberty of opinion has been per mitted and exercised, and as to which wide differences of opinion have all along prevailed. The most widely accepted opinion in the Free Church has been that the duty of the civil magistrate to own the authority of Christian Truth is generally most properly discharged in the modern state in other ways than by setting up a Civil Establishment of Religion, and that the supporting and maintaining of such an Establishment is merely a particular application of the general principle as to the civil magis trates' duty in regard to religion — an application which may be expedient or inexpedient according to circumstances." Your Lordships will therefore see from that statement that we are clearly in dispute as to what is the constitution of this Church. We maintain that the con stitution was fixed in 1843. My learned friends maintain that 1843 did not ap parently fix it, but that they fixed it for themselves when they framed certain questions to be put to probationers and ministers, and a certain formula to be signed by them. Your Lordships will have to judge as to which of us is right on that question. Lord James of Hereford : Mr John ston, do you go to the extent of saying that a constitution of principles once fixed, the constituent body cannot be MR JOHNSTON'S SPEECH 185 altered by machinery which we shall assume is sufficient for action. Mr Johnston: I must answer that, my Lord, in this way, that if the machin ery is such as contemplates alteration and provides machinery to carry out the alteration, then I must say, Yes. But if there is not such provision for alteration, and not such machinery, then I maintain that in a body such as this there is no power to alter. Lord James of Hereford : Do you contend that the machinery also has to be fixed by the original Constitution and cannot be an amended machinery t Mr Johnston : Yes. Lord James of Hereford : You go to that extent ? Mr Johnston : Yes. Now, my Lord, may I refer to Statement 3, where the United Free Church set forth what, I think, is another most material point in dispute between us. They say : " The Free Church as a voluntary association of persons united together for religious pur poses possessed from the beginning the right at common law to control and regu late its own affairs, and, if it saw fit, to change its own doctrines or tenets by virtue of its legislative power inherent in the General Assembly — its Supreme Court — acting by a majority of its mem bers." That is a most absolute statement of their power to alter inherent in them at common law in virtue of the legislative power inherent in their General Assembly. The Lord Chancellor : I missed the reference to that, Mr Johnston. Mr Johnston : It is the first part of Statement 3, on page 87, my Lord. We maintain, in the first place, that there is no such right at common law; in the second place, to regulate its own affairs is one thing, but to change its own doctrines or tenets is a totally different thing. Lord Davey : Do you think they mean that at common law every voluntary asso ciation of persons united together for religious purposes possesses the right to control and regulate its own affairs 1 If it means nothing more than that it is a truism ; of course everybody may change his opinions, and every association may change its opinions, but if it means that they have a right to alter the trust which has been imposed upon the property by the founders of the trust, that is a totally different question. Mr Johnston : I understand, my Lord, their meaning is the latter; but may I say at once The Lord Chancellor: It is not stated in that form at all. Mr Johnston : I should merely de sire to say in reading this, as I shall have to argue the matter afterwards, that I do not dispute their right to control and regulate their own affairs in the sense in which one of the Judges in one of the leading cases speaks of their right to make bye-laws for the conduct of their own affairs ; but I do dispute their right at common law to change their doctrines or tenets ; and I do dispute that they have any legislative power inherent in the General Assembly which would enable them to do so. Of course your Lordships have no jurisdiction to enter tain that question if it does not lead to something relating to property. If it leads to an alteration of the trusts upon which property is dealt with, or the in terests of individuals, then your Lordships have to entertain it. Lord James of Hereford : Had not you also better differentiate a little be tween unanimity on the one hand and the right of a majority to alter as' against a minority 1 Mr Johnston : As I understand, my Lord, their contention is that the majority of the Assembly, as the main body in the Church — the highest body in the Church — the majority in that Assembly has a right, by virtue of legislative power, to make the alterations they state here. Lord James of Hereford : Apart from the question of trust is the con tention, to its fullest extent, to say that the majority — assuming any Reformed Church to-day — have the right to say, We will become a Roman Catholic body as against a minority 1 Is that the con tention ? Mr Johnston : I presume it is, my Lord. My learned friend did in his argument state, as it seems to me some what inconsistently — " I maintain this — utter independence and absolute legis lative control, but it must be within i86 HOUSE limits." Now, if he is to maintain it at all, I do not see where he is to stop ; I do not see where his limits are to be. It was put in one of the previous cases: " Would they be entitled to turn Moham medan?" I think my learned friend stated that the Church, " in making such alterations, must at any rate remain a Christian Church." That was one limita tion I think he added, but he went on to add, what it was very difficult at any rate for me to follow, that the Church must not change its identity; the word "identity" was very frequently used by him. There, again, I confess I have some difficulty in following, because if the Church changes its doctrines and tenets it seems to me to become a new Church. The Lord Chancellor : What consti tutes the identity of the Church 1 Lord James of Hereford : The differ ence between changing to the Moham medan Religion and from that same Religion to Roman Catholicism is only a matter of degree. Mr Johnston : It is, there is no doubt. The Lord Chancellor : I suppose you could illustrate it in this way : take the most marked difference between the Church of Scotland and other religious bodies, and one marked proposition is the Headship of Our Lord. Mr Johnston : Yes. The Lord Chancellor : Suppose the Church could claim to make the Headship- the Bishop of Rome, could they do that 1 If this is to be understood in the un qualified sense in which you are saying it is, they must maintain that they could. Mu Johnston : I think with deference my Lord, that it is rather for my learned friends to explain their own statement than for me. The Lord Chancellor : That is true ; you are not bound to explain his diffi culties. Mr Johnston : I think I must, how ever, because this Statement is of im portance read further from it : " Further the Church of Scotland " (I am reading from page 87 between letters D and E) "had claimed such right even when in statutory connection with the State and the Free Church inasmuch as it claimed to be the historic Church of Scotland, con- OF LORDS tinued after 1843 to exercise said right as a Church separate from the State in terms of the Barrier Act (Act 1697, cap. 9)." Now, as I understand this statement, it is that the claim of such right to alter is to be found in this Barrier Act — not that there is any in stance of their having exercised it, but that the claim is to be found in this Act. Now the argument upon the Barrier Act I desire not to take at the present time, but it is right I should read it to your Lordship as it is stated here ; but if you would be so good as to refer to Print A, page 15, because there is a very im portant element in the Barrier Act which is not quoted ; the Act itself is quite correctly quoted, but there is an im portant introduction to the Act which is not quoted but which you find at the top of page 15 of Print A. My Lord, the purpose of the Barrier Act was to oblige the General Assembly to take time before it legislated — to prevent them legislating in one Session or passing Acts in one Session ; and the Barrier Act commences with a Preamble : " Act anent the method of passing Acts of Assembly of General Concern to the Church, and for prevent ing of Innovations." I am not going to argue upon the Act, but I merely say that the Preamble is "For preventing of Innovations." Then comes the Act " Commonly called the Barrier Act," which is as quoted by them in their Statement : " The General Assembly, tak ing into their consideration the overture and Act made in the last Assembly con cerning innovations, and having heard the report of the several commissioners from Presbyteries to whom the considera tion of the same was recommended, in order to its being more ripely advised and determined in this Assembly, and considering the frequent practice of former Assemblies of this Church, and that it will mightily conduce to the exact obedience of the Acts of Assemblies, that General Assemblies be very deliberate in making of the same, and that the whole Church have a previous knowledge thereof and their opinion be had therein, and for preventing any sudden alteration or in novation, or other prejudice to the Church, in either doctrine or worship or discip- MR JOHNSTON'S line or government thereof, now happily established; do therefore appoint, enact and declare, that before any General Assembly of this Church shall pass any Acts, which are to be binding rules and constitutions to the Church, the same Acts be first proposed as overtures to the Assembly, and, being by them passed as such, be remitted to the consideration of the several Presbyteries of this Church, and their opinions and consent reported by their Commissioners to the next General Assembly following, who may then pass the same in Acts, if the more general opinion of the Church, thus had, agree thereunto." I desire to postpone any argument upon that document itself, but merely to read it as it is quoted by them, and to read it with its Preamble and to ask your Lordship to notice that it is not an Act of Parliament ; it is only an Act of Assembly, and it cannot confer upon them anything which they have not at that stage the right to in terms of their constitution as an Established Church. Now it might, of course, as it is put forward as an assertion — I demur to the idea that it is an assertion because I think it is misconstrued by my learned friend in so founding upon it; but admitting that it is an assertion of a right to innovate and therefore to do something which might come within the sphere of legislation (assuming that it does), then it is a claim only and the question would be : Have the Established Church ever exercised that alleged claim ? Now you will find that Lord James of Hereford : 1 do not know how you are to apply this at present; I do not anticipate, but when in 1843, the Free Church left the Estab lished Church, does this Barrier Act pre vail to control the Free Church after 1843? Mr Johnston : Yes, I think we are at one upon that, my Lord, because of the idea which ran through the Free Church Constitution that they were the Estab lished Church. The Lord Chancellor: They still claimed to be the same Established Church. Mr Johnston : They still claimed to be the same church as the Established SPEECH 187 Church, carrying everything on, but giving their own interpretation of wnat ought to have been in the years prior to 1843. My Lord, I say that my learned friends might make something of it if they found that the Established Church had, in the years succeeding 1697, acted upon what they said was their claim in 1697. The Lord Chancellor: But you do not admit that they had that power. Mr Johnston : I do not admit that they had that power, but what is more, I dispute that they ever acted- The Lord Chancellor : They neither had it, you say, nor did they purport to act upon it. Mr Johnston : Nor did they purport to act upon it : " According to the view which the Free Church has always taken of this Act, it contemplated that the Church might competently make 'altera tions or innovations ' in doctrine, worship, discipline or government, and provided means whereby such changes should be carried out only after deliberate pro cedure, and after full opportunity had been given to the whole Church to ex press its opinion. When the procedure set forth in the Act had been adopted, an Act of Assembly passed with the approval of a majority of the Presbyteries of the Church became a ' binding Rule and Con stitution of the Church.' On the other hand, no Act of Assembly which had not so obtained the approval of a majority of Presbyteries was ' a binding Rule and Constitution' of the Church. Prior to the passing of the Barrier Act " (that is prior to 1697) "the supreme legislative power to innovate upon doctrine, worship, etc., resided in the General Assembly act ing by a majority of the members of any single General Assembly." (That, of course, is a matter which I entirely dis pute, but that is their statement.) "Pre vious General Assemblies had made funda mental changes in doctrine, etc., by votes of a single Assembly. An illustration of this is the adoption by the Assembly of 1647 of the Westminster Confession of Faith, subject to the declarations in the Act of 1647 (which were never acknow ledged by Parliament), as the binding creed of the Church in place of its former 1 88 HOUSE OF LORDS Confession." (I pause there to say that I dispute that in point of fact ; it is not the Church but it is the State that adopted the Westminster Confession, although the Church certainly assented to the adoption in one of its Acts of Assembly.) " The Barrier Act was a limitation and regula tion of the hitherto unlimited powers of any single Assembly to make changes in doctrine, worship, discipline, or govern ment of the Church. The Established Church repeatedly exercised its legislative powers under the Barrier Act." Now, will your Lordships notice that the in stances upon which the exercise of this power is founded pass over the 130 or 140 years between 1697 and 1833, and that the first instance they can give is the Declaratory Act as to Parliamentary Churches in 1833, as to Chapels-of-Ease in 1834, and what is known as the Veto Act — putting au end to the appointment of ministers against the majority of the people in 1835. Now, those three Acts were, as your Lordships will shortly find, just the very contest which caused the Disruption. They are not, therefore, part of the actings of the Church in its normal condition, but they are just the actings of the Church at a point of time at which that Church was turning to rebel against the Established law of the Constitution of its Assembly. " By this and other Acts the Church had changed and modified its own ' doctrine, or worship, or discipline, or government.' " I think your Lordship will find, even in these Acts, they had not attempted to touch doctrine or worship, but they had attempted to touch discipline and government : "It claimed to exercise the right to do so in virtue of its own independent spiritual jurisdiction and without restraint from the State, even when the Church was in statutory con nection with the State. The Civil Courts refused to acknowledge such rights in the Church as being inconsistent with the conditions of Establishment, and the Free Church was constituted in order that as a Church apart from and not in alliance with the State, it might freely enjoy such rights." I have a little difficulty in under standing precisely what "such rights" refer to unless it be the right to modify according to its own will its "doctrine, or worship, or discipline, or government " ; "accordingly, at various times since 1843, it has modified its doctrine, worship, dis cipline, and government as it saw fit by proceedings taken in conformity with the Barrier Act, and the Acts so passed became laws binding on the whole Church, affect ing and controlling both the members of the Church and the property vested in or belonging to it. The Act XII., 1846, above referred to, is one of these." Now, it is somewhat strange that my learned friends in one passage found upon this Act of 1846 as their Constitution, and that in another breath they found upon it as an alteration. These, I think, my Lord, are the important statements, but let me add here that my learned friend the Dean of Faculty, finding it necessary to support his claim to legis lative power by instances in his speech, founded not merely upon the instances stated here, but upon certain other and important phases of the history of the Established Church. On his facts I had to dispute him, and I shall have to dis pute him again ; but it is right that I should state to your Lordship what the points were, although not stated here, upon which he founded, because I shall have to deal with them. He asserted in the first place that in 1560 the original Scotch Confession was adopted by the Church on the Church's own authority, — that it was not a matter of State but a matter of Church. I shall have to dispute that entirely. That in 157S they adopted as one of the Standards of the Church what you may call the Second Book of Discipline, which will have to be referred to. That again I dispute as matter of fact; the Second Book of Discipline is not, and never was one of the Standards of the Established Church, and therefore could not be, and was not, adopted by the Church mero motu. In the next place, in the third place, my learned friend main tained that the Church had shown its independence by, in 1638, of its own authority, abolishing Episcopacy. That I shall have to deal with at more length, because you cannot understand what the Church did or what the Church had power to do with without recollecting what the state of civil matters was at that MR JOHNSTON'S SPEECH period, which was the beginning of the read a very small Rebellion against King Charles ; and that adopted — again in 1647 it adopted — again of its own authority — the Westminster Confession. My view upon that point, again, is that that is the State's doing and not the Church's. However, my learned friend founded as in support of his claim to legislative authority in addition to what was stated, in the article to which I have referred, upon these four different episodes in the history of the Established Church. Now, my Lord, I do not think that I need refer any further to my learned friend's statements ; I think they narrate the circumstances. I do, however, ask your Lordship just to note one short passage in Statement 11 which is some what crucial, on page 105, in dealing with the proceedings which preceded the union of 1900, and referring to the doctrinal basis of the two Churches which then united. Above Letter F it is stated : " The Basis of Union and the Declaratory Acts of the United Presbyterian Church are in entire harmony with the principles con tended for by those who formed the Free Church in 1843 with respect to " The Lord Chancellor: Where are you reading ? Mr Johnston : A little above F on page 105 of the Record in the Case, my Lord, "with respect to the spiritual in dependence of the Christian Church, and in harmony also with the Declaratory Act of the Free Church. The Free Church in said negotiations for Union was not asked, and did not agree, to renounce, change, or modify any principle which it had hitherto held. Accordingly it was found unnecessary to formulate any Articles of Agreement or Basis of Union." I venture to say, my Lord, this is a very strange situation, to find these two Churches uniting and the Free Church asserting that the United Free Church was just a continuation— just the same thing as the Free Church when in their Union they neither are asked nor find it necessary to formulate any Articles of Agreement or Basis of Union. Now, I do not think that I need delay your Lordship any further on the Record as to which I think, although I have only 189 part of it, I have as far as I could, given your Lordships the conclusions of it. Now, let me state the position as matter of procedure in which the case comes before your Lordships. If you will kindly turn to Print B at page 70 you will find a Joint Minute of admissions, ad mitting the documents which are printed in the Prints. That is merely an admission of the authenticity and correctness of Copies. When the case was in the Inner House on reclaiming note, it was seen that the matter had come somewhat irregularly before the Court upon a Judg ment proceeding upon partial production and evidence not led, and accordingly it was deemed proper that the Parties should take up their attitude as on a concluded proof, and accordingly before the Judgment of the Inner House, a further Joint Minute was entered into upon page 51 of Print D, in which the parties admitted "that the Acts and Proceedings of the General Assembly of the Church of Scotland, of the Free Church, of the minority represented by the pursuers in the present action and claiming to be the Free Church, and of the United Free Church and of the synod of the United Presbyterian Church officially published by authority of said Assemblies and Synod, correctly set forth what therein is alleged to have occurred. Second. — Subject to the right of both Parties to refer to said Acts and Pro ceedings the Parties " make admissions which are there set forth with regard to the documents. Then lastly, at the bottom of page 53 : " The Parties reserve for future inquiry, should the course of the case render it necessary, first, the numbers of those who being members and adherents of the Free Church before 31st October 1900 have adhered to the pursuers in remaining outside the United Free Church and who have adhered to the defenders respectively ; and second, particulars of the properties held by the defenders falling within the conclusions of the summons and the terms of the titles thereto and subject to this reserva tion, they on the footing of the foregoing articles consent to renounce further pro bation, and they concurred and hereby 190 concur in craving the Court to interpone authority to this Joint Minute." Ac cordingly, the Judgment of the Inner House was given as upon a concluded proof, that proof consisting of the docu ments which are printed for your Lord ships here, coupled with a right to either party to refer to the Acts and Pro ceedings of the various Assemblies that are narrated in Article 1. The Judgment of the Court your Lord ship will find in the Case at page 118 and page 119. The Lord Ordinary, at page 118, Letter F, dismisses the action and decerns, finding the pursuers liable in expenses. On appeal the Inner House, at page 119, in lieu of merely dismissing the action, assoilzied the defenders from conclusions of the action, and decerned, and found the pursuers liable in addi tional expenses, and it is against both these interlocutors that the Appeal is taken. I think, before I deal with the evidence, it is right I should let your Lordship know what the view of the Lord Ordinary in the Outer House was in coming to the conclusion which he did because it is against the Judgment, of course, that I am appealing. Your Lord ship will find his Judgment at page 55 of the last Print, Print D ; I shall endeavour to summarise it as much as possible. At page 55 and top of page 56 his Lordship merely narrates the circumstances which are now open to your Lordship under which the Case came before him, and at page 56, Letter D, he states the matter thus: "The case of the pursuers is that the Union was incompetent, 1st, because it involved a sacrifice of principles which formed a fundamental and essential part of the constitution of the Free Church ; and 2ndly, because the Free Church could not unite with any other Church except with the consent of all her mem bers." I merely pause there to say that that second is not our contention ; we do not put it absolutely in that form, but subject to the condition that the Church uniting should adopt the principles, of course, of the Free Church, and if they do there is no reason why they should not unite. Our objection is to union with another Church ¦ not holding the same principles. "The defenders, on the HOUSE OF LORDS other hand, maintain that no fundamental or essential principle was violated by the Union, and that that being so, it was competent for the General Assembly to carry out the Union, acting by a majority of its members, after the sense of the Church had been taken in the manner provided by the Barrier Act. The de fenders, however, further propounded a view which, if sound, would admit of a very easy determination of the question at issue. They argued that the constitu tion of the Church — its principles and doctrine — were whatever the General As sembly might declare them to be. I am not prepared to assent to the latter argument. Large as the powers of the General Assembly of the Free Church were, in my opinion I do not think that they were unlimited. In the case of the Free Church (as in the case of every Church) there were certain doctrines and principles so essential that without them the Church would cease to exist. I do not think that the General Assembly could repudiate or materially alter such doctrines and principles. For example, the General Assembly could not, in my opinion, have competently passed an Act declaring that the Westminster Confession of Faith was no longer accepted by the Church, and enacting that the Govern ment of the Church should in the future be Episcopalian and not Presbyterian, because that would have been to change the Church from being a Reformed Pres byterian Church into something very different. On the other hand, with regard to matters which were not of the essen tial nature to which I have referred, I am of opinion that the General Assembly of the Free Church was supreme." I should pause there to say, my Lord, that the difference of opinion between us and the Lord Ordinary is as to this question of essential and non-essential; the Free Church was framed as regards its judi catories Lord Davey : What is the test by is the test which you discover what is essential ? Mr Johnston : My Lord, what I have found stated as the necessary basis of the Church and its constitution. Lord Davey : The declaration of the Parties themselves ? MR JOHNSTON'S SPEECH Mr Johnston : The declaration of the For example, the Parties themselves. The Lord Chancellor : At the time 1 Mr Johnston : At the time. Lord Davey: At the time of its foundation. Mr Johnston : " The Free Church was framed as regards its judicatories — their powers, functions, and forms of pro cedure — upon the model of the Estab lished Church of Scotland, and the General Assembly of the Established Church is a body which has not only judicial and executive, but legislative powers." (Now, that may be his Lord ship's opinion, but he states no authority for it, and I fail to find in the history of the Church any authority, and therefore that is a matter which I dispute his Lord ship's ruling upon.) "To go no further than the Barrier Act, which I have men tioned, its terms are instructive as show ing the scope of the power of the General Assembly in the way of legislation." (Now, there it seems to me his Lordship writes as if he thought this Barrier Act was an Act of Parliament, and not a mere Act of the Assembly itself.) " That Act speaks of Acts of Assemblies making 'alterations or innovations . . . in either doctrine or worship or discipline or government.' " The Lord Chancellor : I think you understate that ; it does not do so ; what it does do is to speak of a mode by which innovations should be prevented. Mr Johnston -. I think his Lordship has misunderstood that. The Lord Chancellor: It does not give any power to do those things. Mr Johnston : No, and it could not. The Lord Chancellor : It does not purport to give the power. Mr Johnston : No ; his Lordship has misunderstood the Barrier Act and its effect — "not for the purpose of re stricting the powers of the General Assembly, but to secure by the procedure enacted that such alterations and innova tions should not be sudden or to the prejudice of the Church. And, indeed, it was necessary that the Supreme Court and Council of the Church should have large powers of a legislative nature, even in regard to matters of faith and doctrine. 191 Established Church accepted the Westminster Confession as containing the sum and substance of the doctrine of the Reformed Churches. That Confession is a document which is open to interpretation, and which has been inter preted in different senses, with equal confidence, by different sects. Accord ingly it was necessary that the Supreme Council of the Church should have the power, not only of deciding questions of doctrine which came before it judicially, but of declaring and enacting as occasion required, for the peace or welfare of the Church, what was the sense in which the Church interpreted particular passages in the Confession of Faith, or, in other words, what the doctrine of the Church was." The Lord Chancellor : If you pause there for a moment, it is necessary to see the learned Judges' argument. Assuming that that latter part is accurate, does it follow that legislative power is necessary for the exercise of that power 1 Mr Johnston : I should say not, my Lord. The Lord Chancellor : It is one thing to say that you may have- an authoritative tribunal to determine what is the doctrine, and another thing to say that you can alter the doctrine ; they are two totally different propositions. Mr Johnston : That is exactly the difference of opinion between the Ap pellants and the Lord Ordinary here. I think what his Lordship is calling legislative power, if it be confined to the mere interpretation of the doctrine of the Church with a view to a question arising before them, might be within their power, but then the question is whether they have confined themselves to the exercise of such power, or have proceeded to something much wider, which is really the alteration of the Confession of Faith or Creed of the Church. " I am accord ingly of opinion that the Declaratory Act of 1892, in regard to which there was a great deal of argument, passed as it was after a reference to the Presbyteries under the Barrier Act, was a legitimate exercise of the power belonging to the General Assembly of the Free Church, and that the pursuers' case is not well founded in 19: HOUSE OF LORDS so far as it is rested on the averment that that Act was ultra vires of the Assembly." My Lord, he then passes to the question of the essential doctrine of what is termed in the Confession the civil magistrate, but which is the same as I have called the State Establishment question, and at Letter D he says : " There is no doubt that the founders of the Free Church, when they left the Established Church in 1843, did so declaring that they adhered to the principle of an Established Church, and that they seceded only because, as the law then stood, the Church did not possess that independence in what they regarded as matters spiritual which in their view was essential in order to give effect to the cardinal doctrine of the Headship of Christ." But then he goes on at the bottom of the page : " I there fore think that it must be conceded that the original Free Church could not con sistently with its avowed opinions, have joined the United Presbyterian Church. The Establishment Principle (to use a convenient short phrase) was one which was regarded as of great importance by the Free Church at the commencement of its history, and naturally so, because, in the first place, it justified the action of those who had seceded by proclaiming that they were not schismatics, and, in the second place, the founders of the Church hoped that a change in the law might be effected which would enable them to return to the Establishment. But seven and fifty years elapsed between the Disruption and the Union of 1900, and in the meantime the Free Church had grown and prospered as a voluntary Church in fact. There was no longer any need to justify the posi tion of the Church, because that was assured, and long prior to the Union, I take it, all hope, or intention, or desire, of returning to the Established Church had passed away. The Establishment principle therefore had ceased to have the practical importance which it had in 1843, and the sense of the Church, as exhibited by large majorities in successive General Assemblies, was that the principle might be regarded as an open question, upon which the individual members of the Church might be guided by their own consciences. It is therefore necessary to examine the place which the Establish ment principle held in the constitution of the Free Church, to see whether it was so essential that the majority of the Church, acting through the General Assembly and the Presbyteries, having taken a step which involved that the principle was no longer regarded as essential, but as a matter of opinion, the dissentient minority are entitled to have it declared that they are truly the Free Church, and are entitled to the civil rights belonging to the Free Church." Now, my Lord, we maintain that it was an essential principle, and that because a certain portion of the Church may have changed their minds and taken to Disestablishment views, that does not make it any less part of the constitution of the Church as it originally existed, and that his Lordship is wrong in his conclusion at which he arrives in the following pages, that it is parenthetical merely, and not essential to the constitution. His Lordship reasons on the documents which I shall have to refer to, and which I will not trouble your Lordship with at this present moment. He says at page 61, Letter B : "The claim, therefore, does not refer to the Establish ment principle as an essential principle of the Church, but the principle is neverthe less affirmed, although in a parenthetical way, in the clause in which the essential doctrine and fundamental principle of the Headship of Christ is stated " ; but in the end of his conclusions he finds that it is not stated as an essential, but merely as an incidental, and that therefore it is changeable. I look, for instance, at page 63, Letter E. He finds in the protest of 1843 the most precise statement of the principle, and then he says : " That is the most precise statement of the principle which I find anywhere, and it must be taken as representing the sense in which the founders of the Free Church at that time interpreted the Confession of Faith. It does not, however, follow that that view was fixed and unchangeable, and could not be modified or reviewed by the Church so as to meet changed circum stances " ; and then he founds upon two documents the questions and formulae of 1846 and certain other documents as supporting him in that, and at page 65 he MR JOHNSTON'S SPEECH 193 says, at Letter F : "It therefore appears to me that, as a matter of creed, the Free Church simply accepted the statement of the Westminster Confession in regard to the duty oi the civil magistrate, although as matter oi opinion the founders of the Church gave their adhesion to the par ticular application of the duty to which effect had been given in Scotland." My Lords, our contention is that, as regards the Westminster Confession, his Lordship does not give the Westminster Confession the full force to which its language entitles it. Lord James of Hereford : In regard to the duty of the civil magistrate, was that to maintain the Church ? Mr Johnston : Yes, that is the Estab lishment principle. I think I will satisfy your Lordship from the Westminster Confession itself that it contains just as amply as the documents of the Free Church constitution the doctrine of the duty of civil magistrate on the Establish ment principle, and that there is no jus tification for his Lordship's minimising, as my learned friends do, the effect of tho Westminster Confession, and finding that it is a mere matter of opinion — that as a matter of opinion merely the founders of the Free Church had a particular view. His Lordship does not, I think, deal with the question of the modification of doc trine; that is dealt with by one of the Lords in the Inner House; but he pro ceeds, at page 68, to a further question whether, assuming that there was no obstacle in the way of difference in doc trine, union was incompetent so long as there was a dissentient minority, and he founds his affirmative conclusion in favour of the Union, even on the assumption of there being a different doctrine, upon a certain document which is not part of the Constitution of the Church, but which is the Model Trust Deed upon which their property was taken. They framed, a year or two after the Church was founded, a Trust Deed which was to be the model of deeds taken for congregational purposes, and because he finds that they contem plate in that deed, and in that deed alone, the possibility of union with other Churches ; therefore that union was com petent notwithstanding that there might be obstacles in the way of difference of doctrine. That seems to us to be a non sequitur. First of all, I think he misin terprets the deed itself; and secondly, I think it is clearly a non sequitur from his Lordship's premises. Those are the grounds upon which the Lord Ordinary Lord James of Hereford : You will go back to this Model Trust Deed, Mr Johnston ? Mr Johnston : Oh yes, my Lord. The Lord Ordinary's grounds, then, are virtu ally, I think, that the principle for which we contend was not essential, that it was a principle which was held by the founders of the Free Church in 1843, that at that date they could not have united with the United Presbyterian Church holding those opinions, but that in respect that it was not essential they were entitled to change with the changing circumstances, and that finding a majority of the Church now to be in favour of disestablishment rather than of establishment, they were perfectly entitled to unite with a Church, one of whose tenets was that of disestablishment, and that he finds support for his Judgment to that effect in certain words which he deduces from the Model Trust Deed in which they do contemplate the possibility of a union, but, as I shall maintain to your Lordship, only a union which was legal and not any union. The Lord Chancellor : The assump tion of the learned Judge's Judgment is that the two Churches, as he calls them, were identical in doctrine, worship, and form of government. Mr Johnston : I think that is so, my Lord — identical so far, of course, as he holds such matters to be essential. The Lord Chancellor : I am using his words. Mr Johnston : Might I ask what pas sage, my Lord 1 The Lord Chancellor : Page 68 B. Mr Johnston : " There were two Churches identical in doctrine, worship, and form of government, and they were working together in the same field " ; well, my Lord that is his The Lord Chancellor : He com mences by saying, " Now, the position ot matters is this " ; that, therefore, is an i94 HOUSE assumption upon which his Judgment is rested. Mr Johnston : I think he only arrives at that position of matters by holding that the doctrine of the Church at the period in question The Lord Chancellor : Yes, that is the course on which his Lordship's mind proceeds, but still the proposition upon which the Judgment rests is the identity of doctrine, worship, and government. Mr Johnston : My Lord, worship and government are out of the question. I mean that is not within the present dis pute, but I think his Lordship arrives at that by coming to the conclusion that whatever the original situation in 1843 was, they had come to be identical in 1900. The Lord Chancellor : They had come to an identity of doctrine. Mr Johnston : And I concede to his Lordship that the majority had done so, and it is just my complaint that they had done so ; if the majority The Lord Chancellor : I cannot help thinking that there is a little fallacy in using the words "the Church" and "the Churches " ; the beneficiaries of those Trusts is what is really meant, you know. Mr Johnston : Quite, my Lord ; it is very difficult to avoid the use of the word ¦ " Church," because it is a convenient form. The Lord Chancellor : It is a con venient form of expression, but that is what we mean by it. Mr Johnston : Yes, I have stated to your Lordship the position with regard to the property of the body as a whole, and I think it might conduce to brevity in disposing of the cases if I take the two cases together, and explain to your Lord ship very shortly how the other case arises. The Lord Chancellor : Does it differ in any respect except this, that this is the particular property of a particular con gregation. Mr Johnston : I do not think it does. Lord Davey : There are words in the Trust Deed which are founded upon as showing that the union with other Churches was in contemplation. Mr Johnston : Yes, my reason OF LORDS Lord Davey : I suppose you say it means lawful union. Mr Johnston : I do, my Lord. With regard to the Congregational Cases I think I am bound to refer to them for two reasons; my learned friend main tained, as it seemed to me, a distinction between the situation as it affected the Church generally and as it affected the congiegations individually. He seemed to claim for the Church generally in this matter wider powers than in relation to the congregations. I do not think that is souud, but in the Congregational Cases you have further the terms of its own particular Trust Deed. The property in question in this Buccleuch and Grey friars Church was taken as a feudal con veyance, but importing by reference all the terms contained in the Model Trust Deed. It is an illustration, however, my Lord, of the length to which the conten tion of the United Free Church, the Respondents, goes, if you consider what are the circumstances of this case. The trustees of the Buccleuch Church, two of whom became United Free Churchmen, sue the action with the concurrence of the Moderator and Clerks of the Assembly of the United Free Church, and they pro ceed against the two ministers, because it was a united charge, and the office-bearers and the Kirk-session, as they are called, of the Free Greyfriars Church, and they seek to have it declared that the property of the Church fabric belongs to the Pur suers as trustees for the United Free Church congregation in terms of the Trust contained in their Charter. Of course the Trust contained in their Charter is a Trust for a Congregation ofthe Free Church or of any United Free Church with which that Church might join, but as I shall maintain, join legally and under its constitution; and in this particular case the situation is this, that the two ministers, the whole of the Kirk-session and the Congregation all remain with the old Free Church, and yet to such a length must my learned friends carry their con tention that they are to oust us' as no longer entitled to the use of the Church, because the Action seeks to prohibit the Ministers officiating in the Church and the Kirk-session interfering in any way MR JOHNSTON'S SPEECH 195 with its management. Now, this is an alleging adherence to the original prin- extreme case. I do not found upon it as ciples of the Body. The Appellants, excluding the case, but it is a curious thing that in the Condescendence the Pursuers do not set forth that there is any United Free Church congregation at all ; it merely emphasises the length to which they have got to carry their con tention, because 1 know that it might be the ground of rejecting the case alto gether, but I know that in some of the other cases they have brought there are members. Now in dealing with that case the Lord Ordinary has simply granted them Decree under all the terms of their Conclusions ; he does not give any ex tended note of his Judgment, but what he says you will find on pages 27 and 29 of the small print in the case for the Apel- lants. I am not going to read it, but just to refer your Lordships to it— as the view upon which, following the Decision he had already given in the larger case, he had come to the conclusion that the Pursuers in that case who represented the United Free Church must succeed in vindicating the property to the entire exclusion of those who held it and were ministering in it as members of the Free Church. My Lord, I should now state to your Lordships the law on this matter. I think I need deal with the law of this matter very shortly, my Lord, because it is to be found in a Case which occurred early in the last century in this House. It is termed the Case of Craigdallie v. Aikman, convenient reports of which are found in I. Dow's House of Lords Appeals, page 1, and in II. Bligh's House of Lords Appeals, page 529. The circumstances of the Case are not so material that I should go into them at any length, but just in order to show how the question of prin ciple arises. I may state that this Con gregation was a Congregation of one of the secession Churches which had hived off from the Established Church in 1733. It was a Congregation in Perth, and the parties to it were these : Craigdallie, the Appellant, represented the senior Minister, because there were two Ministers, with a majority of the money-contributors to the Church edifice and property, but with a minority of the Congregation of therefore, were the majority of money contributors and the minority of the Con gregation, but they maintained adherence to general principles, and in doing so they revolted from the General Assembly of the Church. The Respondents repre sented, on the other hand, the minority ofthe money-contributors, but the majority of the Congregation, and they adhered to the Synod or General Assembly of the Church. Now, the question was, which of them were entitled to the Church pro perty, and your Lordship will find at page 4 of Dow's Appeals that the Court of Session on the 16th November 1803 determined in favour of that Body, that is, Craigdallie and his adherents, which represented the majority in interest, that is to say, the majority of money-con tributors. That was their first view, but on re-hearing the case on 1st February 1804 at page 5 of Dow, they changed their view, and gave Judgment favouring that party which continued in com munion with, and subject to the ecclesias tical discipline of the General Assembly. That, therefore, was the Judgment upon which the Case came to the House of Lords, and the House of Lords held that the principle upon which the Case had to be determined was neither on the majority of money-contributions nor on adherence to the General Assembly, but adherence to original principles, and I shall merely read to your Lordship two or three lines from Lord Eldon's Judgment at page 15 of Dow's Appeals : " Independent of any other consideration, then, the extreme difficulty, if not impossibility, of applying these interlocutors as they stood, rendered it highly desirable that the matter should be reviewed. But if the judges below still adhered to the principle, it was this principle, that, because in 1737 a society then agreeing in their religious opinions adhered to a Presbytery or Synod theii holding the same opinions with them selves, the property belonging to that society should be held in tiust, not for those who adhered to their original prin ciples, but in trust for those who adhered indeed to the Synod, but who did not adhere to their original principles; that 196 was a proposition very difficult to be maintained in law. But if the Court below should still adhere to that principle, then the objection arose, 'How could the principle be applied in practice ? It was true the Court could not take notice of religious opinions, with a view to decide whether they were right or wrong, but it might notice them as facts pointing out the ownership of property. With respect to the doctrine of the English law on this subject, if property was given in trust for A, B, C, etc., forming a congregation for religious worship ; if the instrument pro vided for the case of a schism, then the Court would act upon it ; but if there was no such provision in the instrument, and the congregation happened to divide, he did not find that the law of England would execute the trust for a religious society, at the expense of a forfeiture of their property by the cestui que trusts, for adhering to the opinions and principles in which the congregation had originally united. He found no case which author ised him to say that the Court would enforce such a trust, not for those who adhered to the original principles of the society, but merely with a reference to the majority, and much less if those who changed their opinions, instead of being a majority, did not form one in ten of those who had originally contributed, which was the principle here. He had met with no case that would enable him to say that the adherents to the original opinions should, under such circum stances, for that adherence forfeit their rights. If it were distinctly intended that the Synod should direct the use of the property, that ought to have been a matter of contract, and then the Court might act upon it; but there must be evidence of such a contract, and here he could find none." My Lord, that case went back to the Court of Session for re consideration, and that further Report is in II. Bligh, 535, but though it amplifies matters, it does not, I think, alter the law as laid down by Lord Eldon, and, as your Lordships will find, has been adopted since, that adherence to original principles must be the test whenever you come to a question raised as to property held in trust for a body such as the Congrega- HOUSE OF LORDS tion with which the Case there had to deal. Lord Davey : Mr Johnston, Lord Eldon referred to his Judgment in an English case which came before him in the year 1817 between the two great Craigdallie Cases. Mr Johnston: I was going to give the reference to that. What I was on the point of saying is that although this, which is the leading case on the subject, dealt with the property of a congrega tion merely, I cannot conceive that any different law applies when you are dealing not with the congregational property, but with general Trust property. The Lord Chancellor : It is a body of persons associated together for the maintenance of a particular doctrine. Mr Johnston : I cannot see any dis tinction between the one and the other. My Lord, it is true that in The Attorney General v. Pearson in 1817 which was reported in III. Merivale, page 353, and which is again reported at date 1835 in 7 Simons, 290, your Lordship has a similar question arising, and the Judg ment in the Case of Craigdallie accepted as the ruling case, and I would refer your Lordships Lord Davey: It is only interesting because Lord Eldon referred to his own Judgment. Mr Johnston -. Quite so, my Lord, in that case, but the only thing I would do is to give — it is a very long report — the pages at which Lord Eldon does do so; they are pages 417 to 419 of III. Merivale. At page 418 he referred eo nomine — he does not give the name, but he refers to the Case : " I must here again advert to the principle which was, I think, settled in the case to which I referred the other day as having come before the House of Lords on an appeal from Scotland — viz., that if any persons seeking the benefit of a Trust for charitable purposes should incline to the adoption of a different system from that which was intended by the original donors and founders; and if others of those who are interested think proper to adhere to the original system, the leaning of the Court must be to support those adhering to the original system, and not to sacrifice the original MR JOHNSTON'S SPEECH system to any change of sentiment in the persons seeking alteration, however com mendable that proposed alteration may be. Upon these grounds, I have nothing at all to do with the merits of the original system, as it is the right of those who founded this meeting-house and who gave their money and land for its establish ment to have the Trusts continued as was at first intended." It is right that I should give your Lordship the other reference. There was another case of the Attorney General v. Shaw in 1833, which is reported in a Note to the second half of the Pearson cases in 7 Simons, pages 309-11. Lord Davey : Is that Lord Lynd- hurst's decision that is reported in that Note? Mr Johnston : Yes, my Lord, the appeal was re-argued before Lord Lynd hurst, Chancellor. Lord Davey : I believe it is reported under the name of Shaw v. Wilson, in this House (9 Clark and Finnelly). Mr Johnston : I was not aware of that. This is the only Report of it I knew. I only refer to it because the Judge who gave Judgment there adopted the views of Lord Eldon in the previous case. I think, therefore, I may now pass to the documents themselves, but before doing so I feel that I have necessarily, in order to present the case which the Appellants hold, to place your Lordships in a position of understanding how the disruption arose by reason of two things. It is necessary for my argument to give your Lordships the statutory history of the Established Church, and in the second place to show your Lordships what were the questions which caused the disruption. The one thing involves a reference to the Statutes, the other involves a reference to litigations which took place during the ten years preceding the disruption. I shall refer to the Statutes at once, and I shall do so with a view not merely to paving my way to the argument upon the documents themselves, but also with a view to paving the way to the argument upon the legislative power, because from this side of the Bar we consider that the historical position of the Established Church at the date of 1843, as that position 197 is disclosed not in the writings of contro versial historians, but from the Acts of Parliament themselves, is absolutely essen tial to determine what the rights which the Free Church carried from the Estab lished into their position of freedom, were. On the occasion when the case was before your Lordships before, I made large reference to these Statutes, but I felt that in doing so I was referring to Acts which were not before your Lordships, because the prints of those Acts are in the large edition, which is a huge thing in ten volumes, and the small edition was very difficult to follow, and accordingly for your Lordships' convenience I have asked the parties whom I represent to reprint from the standard edition, Thom son's Acts, the Statutes which were of importance for this hearing. I have the Statutes here, but they are so cumbersome that it is almost impossible to refer to them. Will your Lordships allow me to hand you a print of them ? The Lord Chancellor : By all means. Mr Johnston : I should say that the archaic language in which many of them are framed has had to be followed, but I think your Lordships will have no diffi culty in tracing them. Your Lordships will find that each of the statutes has the reference to Thomson's Folio Acts in the margin. [Copies were handed to their Lordships.] The first position that I have to refer to this for, is to show your Lordships how the original Confession of Faith was adopted. The historical situation was this. In 1560 Queen Mary had not yet returned to Scotlaud. She was still in France, and this first Statute here quoted was passed while her mother, Mary of Guise, was Regent of Scotland, and your Lordships will find that the first set of Statutes are re-enacted in 1567, because of a doubt as to the validity of this Parliament, and as to the Queens' subse quent consent. It is also historically known that the endeavours for tho Reformation had been proceeding for some years prior to 1560 under the guidance of what was styled the Lords of Convention, and that they had entered into the first Covenant in 1557. They come to Parliament in 1560 198 with a supplication, and Parliament sends them to draw a Creed, and that Creed is generally credited to Knox. I do not know whether it is wholly so, but it is either called Knox's Confession or the Scots Confession. Lord Davey : As opposed to the Westminster Confession. Mr Johnston : It is the Confession of 1560. It was prepared at the request of the Estates of Parliament. The Lord Chancellor : I observe in the first one, this: "Then follows the Confession of Faith in all its Articles." Is that only put there by reference in your reprint, or is it so in the original Act? Mr Johnston : The whole Articles of the Confession of the Faith are printed as part of the Act. We did not want to lengthen the print by reprinting them. The parenthesis is ours, and not that of the Act of Parliament. In the first place the heading is, " The Confessioun of Fayth professed and beleved be the protestants within the Realme of Scotland publischeit be thame in Parliament and be the estaitis thairof ratifiet and apprevit as hailsome and sound doctrine groundit uponn the infallibill trewth of God's word." Then after a reference to Matthew. "The estaitis of Scotland with the In- habitantis of the samyn professing Christ Jesus his holy evangell to thair naturall cuntreymen and to all utheris Realmes and nationnis professing the samyn Christ Jesus with thame wische grace mercie and peace from God the father of our Lord Jesus Christ with the spreit of ryteous jugement for salvation. Lang- have we thristit deir bretheren to have notifieit unto the warld the soume of that doctrine quihilk we professit and for the quhilk we have sustenit infamy and danger." Then a few lines lower down : "Bot seing that of the infinite gudenes of our God (quha nevir sufferethe his afflictit utterlie to be confoundit) above expecta tion we have obtenit sum rest and libertie we culd not bot sett furth this breve and playne confessioun of sic doctrine as is proponit unto us and as we beleive and prof esse." I read those words to your Lordships that it is the Act of the Estates of Scotland. Then at page 2 HOUSE OF LORDS they proceed to table this simple Con fession, and to protest "that gif any man will note in this our confessioun any artickle or sentence repugning to Godis holie word that it wald pleise him of his gentilnes and for christeane cherities saik to admoneish us of the samyn in writt and we of our honoures and fidelitie do promeis unto him satisfaction fra the mowthe of God (that is fra his holy scriptures) or ellse Reformationn of that quhilk he sail prove to be amyss," and at Letter E, "and thairfor be the assistance of the michtie spritt of the same Lord Jesus we firmlie purpoise to abj de to the end in the confessioun of this our fayth." It is historically known that the Articles were dealt with one by one by the Assembly of Estates, and that at the con clusion they passed what is the last four lines of page 2 : " Thir Actis and Articklis are red in the face of Parliament and ratifyit be the thre estatis of this realme at Edinburgh the sevintene day of August the yeir of God fifteen hundred and thre scoir yeiris." That therefore is the adop tion, and your Lordships see the intended permanent adoption to abide to the end of the Confession or Creed of the Faith of the Reformers, but the Church had not yet come into existence as an Established Church. The Creed precedes the Church. The next Statute is one which I do not need to read, but at page 3, what the Estates do next is shown at Letter C : "Thairfor hes statute and ordainit that the bischope of Rome has na Jurisdictioun nor autoritie within this realme in tymes cuming." That is to say they abolish popery. Then in the next Act of 1560, Chapter 3, they rescind — to put it shortly — any statutes favouring idolatry and superstition, and if your Lordships will note the passage at the top of page 4, it says : " The thre Estaitis of parlia ment hes annullit and declairit sik actis maid in tymes bipast not aggreing with Goddis ward and now contrair to the confessioun of oure fayth according to the said ward publist in this parliament to be of nane avale force nor effect." The confession therefore which has been adopted is there made the measure of their views as to the previous Statutes, and the previous Statutes not agreeing MR JOHNSTON'S SPEECH with the Confession of that Faith are rescinded. Then in the same year, Chapter 4, at the bottom of page 4 — to put it again shortly — the Mass is pro hibited — the celebration of or attendance or presence at the Mass is prohibited. There, my Lords, ends what was done in Queen Mary's time, which was the aboli tion of Popery in all its forms, and the adoption of the Confession as the Con fession of the Faith of the Kingdom, but not yet the establishment of any Church. The next Statute is in 1563, Chapter 8. The Lord Chancellor : That is still in Queen Mary's time. Mr Johnston : Yes, my Lord. This Statute, and two others to which I shall refer, show that although not formally established, the Ministers — I will not say the Church — were at once endowed. There was a question when we were last before your Lordships as to whether the Church was endowed from the beginning, but you will see that was as early as 1563. I will read from just above Letter F at page 5 : " That thay that ar appointit or to be appointit to serve and minister ony Kirk within this Realme have the prin- cipall mans of the persoun or Vicar or samekill thairof as salbe fundin sufficient for staiking" ("staiking" is an old Scotch word, the English interpretation of which is "accommodating") "for accommodat ing of thame to the effect that they may the better await upon the charge appointit and to be appointit to thame quhidder the saidis gleibis be set in few or tak of befoir or not or that ane reasonabill and suffi cient hous be beggit to thame besyde the Kirk be the Persoun or Vicar or uthers havand the saidis mansis in few or lang- takkis." That, therefore, at any rate recognised the right of the Reform Ministers to accommodation so far as what we call in Scotland a Manse, and what is known in England as a parsonage is concerned. But from the pecuniary point of view it is also clear that the Ministers of the Reformed Faith were at once put in possession of incomes from the Church property. If your Lordships will turn to the print at page 14, you will find that this was done so early as 1561, the year after the Confession of Faith was adopted. It is the Act of 1567, Chapter 10, but 199 it proceeds upon something that had been done previously, not by Parliament, but by the Privy Council : " Anent thriddis of benefices, grantit in the Moneth of December the yeir of God 1561 yeiris, for sustening of the Ministeris, and uther effairis of the Prince." That refers to an Act of the Secret Council, as it was called. Your Lordship sees a Note at the end of that Act : " The reference is to Act of Secret Council No. 2 of 22nd December 1561, Thomson ii, 606." That shows that within a year of the adoption of the Confession of Faith, pro vision was made for the Ministry and for the sustaining of the Ministers, and this Statute merely proceeds upon that and says : " Because the Ministers hes bene lang defraudit of thair Stipendis, swa that they ar becumin in greit povertie and necessitie," and then proceeds the Statute " hes statute and ordanit that the haill thriddis of the haill benefices of this Realme" — their right had been by that Act of the Secret Council confined not to the whole benefice but to one-third of the benefice — "sail now instantlie, and in all tyms to cum first be pay it to the ministeris of the Evangell of Jesus Christ, and thair successouris." I refer to these Acts merely to show that there was no foundation for the idea that at any time the ministers of the Reformed Church were without a right to stipend from the Church property. The next series of Statutes commence at page 6. I have already explained the reason for passing them. They are all re-enactments of the Marian Enactments. They are re-enactments because, as I ex plained, there were doubts as to the validity of the actings of Parliament in con sequence of Mary's absence from the Kingdom, and I believe also, though I am not sure, in consequence of Mary having declined, on her arrival in Scotland, to give confirmation of them. The first two of these Acts I do not refer to. They are merely there to show that the Crown had been demitted by Queen Mary while she was in Loch Leven Castle in 1567, in favour of her infant son James, and that James Murray had been appointed Regent of the Kingdom. Then at page 8 you have the confirmation by James, or in 200 James's name, of the former Act abolishing the Pope's authority and merely quoting the Act and re-enacting it. At page 9, you have an Act which does double duty. It not only rescinds all Acts favouring idolatry and " contrare to the Confessioun of faith according to the said worde publist in this Parliament to be of nane avail," but in the same Act, at the bottom of the page, it ordains, " the contravinaris of the samin act in ony time heirafter to be puneist according to the Lawis. Of the quhilk Confessioun of the faith the tennour followis." Then the Confession of Faith is again contained in that Act headed : " The Confessioun of the Faith and doctrine belevit and professit be the Protestantis of the Realme of Scotland, exbibitit to the Estatis of the same in Parliament and by thair public votis authorisit as a doctrine groundit upon the infallibill word of God." Then in articu late chapters it is printed. Again, re ferring not to the date 1560 but to the date 1567, "Thir actis and artiekles are red in the face of Parliament and ratifyit be the three Estatis at Edinburgh, the sevintene day of August, the yeir of God 1567 yeiris." The next Act again abolishes the Mass. Lord James of Hereford : Was there any specific change in 1567 in the form of worship ? Mr Johnston : No, my Lord. There is no change between 1560 and 1567; it is mere repeating; in fact the Act is quoted verbatim and it is re-enacted. Lord James of Hereford : In con sequence of the Regency ? Mr Johnston : Yes, in consequence of the doubt, as I think, about the power of the original Parliament on account of Mary's absence from the Kingdom. Your Lordship will notice, however, that the only difference in adopting the Confession of Faith is that they do not insert that address which is printed upon pages 1 and 2 containing the protestation that if any Article is disputed they are open to consider it, but they take the Confession as it stands fixed. The Act of 1567, Chapter 6, is the first establishment of the Church. The previous ones have established a Confession, but the Act of 1567, Chapter 6, at page 11, for the first HOUSE OF LORDS time establishes the Church : " forsamekl as the ministeris of the blissit Evangell of Jesus Christ quhome God of his mercie hes now rasit up amangis us or heirefter sail rais aggreing with thame that now levis in doctrine and administratioun ol the sacramentis and the pepill of this Realme that professis Christ as he now is offerit in his Evangell and do com- municat with the holy sacramentis (as in the reformit kirkis of this Realme ar publictlie administrat) according to the confessioun of the faith our soverane Lord with avise of my Lord Regent and the thre estatis of this present Parliament hes declarit and delaris the foirsaid Kirk to be the onlie trew and haly Kirk of Jesus Christ within this Realme and decernis and declaris that all and sundrie quha outher gainsayis the word of the Evangell ressavit and apprevit as the heidis of the confessioun of faith professit in Par liament of befoir in the yeir of God 1560 yearis as alswa specifyit in the Actis of this Parliament mair particularlie dois expres and now ratifyit and apprevit in this present Parliament or that refusis the participatioun of the haly sacramentis as they ar now ministrat to be na memberis of the said Kirk within this Realme." My comment upon that Statute is that the Confession of Faith is made the measure of the Church — that the Church so established is the Church which adopts and adheres to the Confession of Faith which has been already concluded by the Parliament. The next Act I refer to as the first which does in any way commence to define the jurisdiction of the Church : " It is statute and ordanit . . . that the examination and admissioun of Ministeris within this Realme, be only in power of the Kirk, now oppinlie and publicklie professit within the samin" — saving the rights of lay patrons so far as presentation goes. That Statute is of value as at once placing in the hands of the Church, as your Lordships might expect, the question of the sufficiency of the candidate for the ministry — the examination and admission of ministers within the realm. The next Act is the Coronation Oath. I do not know whether there were Coro nation Oaths before; I suppose there were ; but this is the first Act providing MR JOHNSTON'S SPEECH 201 the Coronation Oath after the establish ment of the Reformed Church. It pro ceeds : " Because that the incres of virtew, and suppressing of Idolatrie cravis that the Prince and the people be of ane perfyte Religioun quhilk of goddis mercie is now presentlie professit within this Realme. Thairfoir it is statute and ordanit be our Soverane Lord, my Lord Regent and thre Estatis of this present Parliament, that all Kings and Princes, or magistratis quhatsumever halding thair place quhilkis heirefter in ony tyme sail happin to Reyne and beir reule ouer this Realme, at the tyme of thair coronation and ressait of thair princely authoritie, mak their faithfull promise, be aith, in presence of the eternall God that induring the haill cours of their lyfe they sail serve the samin eternall God, to the uttermaist of thair power, according as he has requyrit in his maist haly word revelit and contenit in the new and auld Testamentis. And according to the samin word sail mantene the trew Religioun of Jesus Christ, the preiching of his holy word and dew and rycht ministration of the Sacramentis now ressaifit and preichit within this Realme" — that is to say shall maintain the religion of the previous Statutes which have defined the true religion and the right of administration of the Sacra ments and preaching. May I say in passing that the word "Religion" as used in these Statutes appears to me to be virtually equivalent to "Creed" or " Confession." The Lord Chancellor : You have the original Statute here as I understand. Will you let me look at it for a moment — the first one ? Mr Johnston : Certainly, my Lord, the Act of 1560, Chapter 1. The Lord Chancellor : I know it is very inconvenient to have the old editions, and these copies are very convenient for us to refer to, but there is just a little thing I want to look at it for. Mr Johnston : It shall be handed to your Lordship. I have referred to one Statute which touched the power or jurisdiction of the Church, namely in con nection with the admission and examina tion of ministers. At the end of 1567 there is a Statute which more directly bears upon the Jurisdiction of the Church, at page 15, Letter D : " Anent the article proponit, and gevin in be the Kirk to my Lord Regent and the Estatis of his present Parliament anent the jurisdictioun justlie pertening to the trew Kirk, and immacu- lat spous of Jesus Christ : to be declarit and expressit as the artickle at mair lenth is consavit." That means that the Church have proposed an Article and with regard to their Article the Estates have con sidered it, and " The Kingis Grace with avise of my Lord Regent and three Estatis of this present Parliament, hes declarit, and grantit jurisdictioun to the said Kirk ; quhilk consistis and standis in preicheing of the trew word of Jesus Christ, correctioun of maneris, and ad ministration of holy Sacramentis. And declaris that their is na uther face of Kirk, nor uther face of Religioun, than is presentlie be the favour of God estab- licheit within this Realme : And that thair be na uther jurisdictioun ecclesiasticall acknowlegeit within this Realme, uther than that quhilk is and salbe within the same Kirk, or that quhilk flowis thairfra concerning the premissis." Your Lord ship sees according to that Statute the jurisdiction of the Church is confined to or defined to consist of first, preaching; secondly, correction of manners, which in subsequent Acts is termed under the head of discipline ; and thirdly, the administra tion of the sacraments. But that Act appoints a Commission " to seirche furth mair speciallie " — I am reading from page 16, Letter B — "and to considder quhat uther speciall pointis or clausis, should appertene to the jurisdictioun, privilege, and authoritie of the said Kirk, And to declair thair myndis thair anentis to my Lord Regent and there Estatis of this Realme at the nixt Parliament. Swa that they may tak ordour thairintill." The next Act is one also of important bearing because it is the first that pro vides, if I may say so, for a religious test by requiring the subscription to the Con fession. At page 16, Letter F, it pro vides : "That every persoun quha sail pretend to be ane Minister of Goddis Word and Sacramentis or quha presently dois or sail pretend to have and bruke ony 2o2 HOUSE benefice use of the frutes Stipend pension or portionn furth of Benefice and ar not alreddy under the discipline of the trew Kirk and participatis not with the sacra mentis thairof sail in the presence of the Archebischop, Bischop, Superintendent or Commissionar of the Diocie or Province quhair he hes or sail have the Ecclesiasti- call leving gif his assent and subscrive the articklis of Religioun contentit in the actis of our Soverane Lordis Parliament and gif hes aith for acknowledgein, recog- noscing of our Soverane Lord and his authoritie and sail bring ane testimoniall in wryting thairupon. And oppenly on sum Sonday in tyme of sermone or pub lick prayeris in the Kirk quhair be ressoun of his ecclesiasticall leving he aucht to attend or of the frutes quhairof he ressavis commoditie reid baith the Testimoniall and Confessioun and of new mak the said aith within the space of ane moneth efter the Publication of this present Act. And gif he be furth of the Realme within thre scoir dayis efter the Publication heirof. And in tyme cum ming within ane moneth efter his admis- sioun under the pane that everie persoun that sail not do as is above appointed salbe ipso facto depryvit and all his ecclesiasticall promotiounis and leving salbe vacand as gif he war than naturally deid. And gif ony persoun ecclesiasticall or quhilk sail have ecclesiasticall leving sail wilfully mantene ony doctrine directly contrair or repugnant to ony of the saidis articklis and feeing convenit and callit as followis sail persist thairin and not revoke his errour or efter his revocatioun sail of new affirme sic untrew doctrine sic man- tening affirming and persisting salbe just causs to deprive him of his ecclesiasticall leving." Your Lordship will note there that there is a reference to Archbisnops and Bishops, .and the explanation of that is that during these years and up to 1592 the Presbyterian form of Church govern ment had not been statutorily adopted ; although Presbytery up to a certain point existed, the General Assembly sat with the Archbishops and Bishops and Priors present as part of the Assembly along with the ministers, and it was during this period we have not an actual Presbytery established, and accordingly you find at OF LORDS the end of this Act there is another provi sion which is virtually a provision of jurisdiction to the Church over its own ministers. I will read the passage, be cause I think, my Lords, it is important. It is at pnge 17, just above Letter E : " And it salbe lauchfull to theme befoir quhome he is callit and convenit^ to deprive him quhilk sentence of depriva- tioun pronouncit he salbe deprivit in deid and his leving vacand as gif he war naturally deid. And that all Arche- bischopis, Bischoppis, Superintendentis, Professouris, or Titularis of Prelattis be callit and convenit for this effect befoir the General Assemblie of the Kirk and all Inferiour personnis before the Arche- bischoppis, Bischoppis, Superintendentis or Commissionaris of the Dioceis or Pro vinces within the quhilkis they dwell." That, my Lord, said that in addition to the power and duty with regard to the examination and admission of ministers, this places in the hands of the Church, also the power of depriving, makes them a Church Judicatory or Court in the proper sense, and gives them the power of depriving of office those who do not adopt, maintain and subscribe to the Confession or Creed ofthe Church. That therefore is another step in the jurisdic tion of the Church, but distinctly juris diction as a Church Court, and not in any sense as a Legislature. The next Chapter I shall not read, because it is merely in another form making subscription to the Confession, a condition of the restoration of certain rebellious subjects to His Majesty's favour, but it treats the Confession as that which must be subscribed to by them. The next Statute, at the bottom of page 18 (1572, Chapter 14), I refer to for this purpose. I have in one of the last Statutes shown that jurisdiction is con ferred upon the Church to deal with contumacious ministers, but this Statute of 1572, Chapter 14, does what I may describe as affording a Civil sanction to the Church's censure or deprivation, because in the event of a minister having been deprived, it gives to the civil Courts power to enforce that by depriving him of any Civil rights. After a short adjournment. Mr Johnston : My Lords I have referred your Lordships to Acts down to 1572, the last of which gives civil sanction to Church excommunication. From 1572 to 1592 there are no Acts that I require to refer to at length, but your Lordships will find that at page 19, the Act of 1579, Chapter 6, re-enacts the Act which established the True and Holy Kirk (1567, Chapter 6) by reason of a printer's error merely. Then in the same year you have the further Act in regard to the jurisdiction of the Church, but it does nothing but appoint a new Commission to consider any further points. In itself it does not enact anything new. It repeats what the Act of 1567, Chapter 12, had already done, and re-appoints a Commission to consider as to any further heads of the jurisdiction of the Church. In reference to that, I should explain to your Lordships that there were during these twenty years various communi cations between the Church and the Crown. The Church did about this time, 1579, prepare what is termed and what will have to be referred to later as the Second Book of Discipline. The Free Church maintain that that became a Standard of the Church. I think your Lordships will find that it never did do so, but that certain parts of it were accepted by the Crown, and enter the Act of 1592, which is the real establishment of the form of Presbyterian Church government. The Act of 1581, Chapter 21, is an Act of ratification of, I may say, almost all the Statutes which had been passed since 1560. In that year the King had put his Sign to what is known as the King's Confession, aud in connection with that it re-enacted or confirmed all the previous laws which are enumerated in that Statute. In the Act of 1584, Chapter 1, at page 23, he again ratifies and approves the liberty of the preaehing of the True Word of God and administration of the Sacrament, again according to the Con fession of Faith received and authorised, therefore making again the Confession of Faith, as it had been before, the measure of everything. The next three Acts are MR JOHNSTON'S SPEECH 203 only printed because it is necessary for the sequence ; they are known in History as the " Black Acts," by which King James the Sixth of Scotland attempted to re-establish the Royal Supremacy in matters ecclesiastical, and to withdraw the jurisdiction as a Church Court in Cases Ecclesiastical from the Church. I do not read them, my Lord, because that is really the description of them. Lord James of Hereford : It is merely of historical interest, but were they successful? Mr Johnston: They had to be departed from afterwards. In 1587, at page 26, Letter F, there is another Act ratifying the previous Acts : •' Anent the libertie of the Kirk of God and religioun now presentlie professit and be the lawis establischit within his realme." Those are the Acts which precede the Act of 1592, and that Act I shall ask leave of your Lordships to deal with more at length, because up to this time Presbytery and Episcopacy had been going hand to hand together in the Church — the Church was neither one thing nor the other. The Lord Chancellor: That had been going on for some time? Mr Johnston : Really from the begin ning when you come to look at the Acts of Assembly of 1560 onwards. The Lord Chancellor: I suppose some questions had arisen between the claims of the rival authorities ? Mr Johnston : I think, so far as I can ascertain the history, this Act of 1592 is the outcome of the King's consideration of the Church's demand which the Church itself had put in the form of its Second Book of Discipline. This Act, which is at page 27, Letter B, " ratifies and appre- vis all liberties privileges immunities and fredomes quhatsumevir gevin and granted be his hienes his regentis in his name or any of his predecessoris to the trew and hally Kirk presentlie estabisht within this realme." I should have stated that the King came of age in 1587, and that is the reason of the preceding Act ratifying the liberty of the true Church — it was on his majority. The Lord Chancellor : He was 14 then. Mr Johnston : 21. 204 The Lord Chancellor ing from an unrefreshed memory, but I rather thought, with reference to the Crown, the age was not 21 but 14. Mr Johnston : Your Lordship is no doubt right. Lord James of Hereford : In the Act of 1857 it speaks of 21 being the full age. Mr Johnston : He perpetually con firms Acts made "during his young aige." The Act of 1592 then proceeds : " establisht within this realme and declairit in the first Act," which is already printed, 1579, Chapter 6, and 1581, Chapter 1, " and all uther actis of Parliament maid sensyne in favouris of the trew Kirk aud Siclyk" (that is "also") "Ratifies and apprevis the general Assemblies appoyntit be the said Kirk And declairis that it salbe lauchfull to the Kirk and ministrie ever- ilk yeir at the leist and ofter pro re nata as occasioun and necessitie sail require To hald and keip general assemblies Provid ing that the Kingis Majestie or his Com missioner with them to be appoyntit be his hienes be present at ilk general assem blies befoir the dissolving thairof nominat and appoint tyme and place quhen and quhair the next general assemblie salbe haldin." Then if you pass to Letter G : "And als ratifies and apprevis the sinod- all and provinciall assemblies To be haldin be the said Kirk and ministrie twyiss ilk yeir as they haiv bene and are presentlie in use to do within every province of this realme And ratifeis and apprevis the pres- biteries and particulare sessionis appointit be the said Kirk with the haill jurisdic tioun and discipline of the same Kirk agreit upounbe his Majestie in conference had be his hienes with certane of the ministrie convenit to that effect Off the quhilkis articles the tennour followis Materis to be Intreatit in Provinciall Assemblies Thir assemblies are constitute for wechtie materis necessary to be in treatit be mutual consent and assistance of brethrene within the province as neid requyris This assembly hes power to handle order and redress all thinges omit- tit or done amiss in the particulare assem blies. It hes power to depose the office beraris of that province for gude and just caussis desserving deprivation And gene- HOUSE OF LORDS : I was speak- rallie thir Asst mblies hes th e haill power Of the particular elderschippis quhair of thay ar collectit." Then: "Materis to be Intreatit in the Presbyteries. The Power of the Presbyteries is to give diligent labouris in the boundis committit to their chairge. That the Kirkes be kepit in gude ordour. To enquire diligentlie of nauchtie and ungodly personis and to travell to bring thame in the way agane be admonitioun or threatening of Goddis Judgmentis or be correctioun. It apper- tenis to the elderschip to tak heid that the word of God be puirlie preachit within their boundis the sacramentis rich tlie ministrat the discipline intertenyit. And the ecclesiasticall guidis uncorruptlie distributit It belangis to this kind of assembleis, to caus the Ordinances maid be the assembleis provinciallis, nationallis and generallis to be kepit and put in execution To mak constitutionis qlkis concernis To prepon in the Kirk for decent ordour." Then lower down : " It hes power to excommunicat the obsti- nat, formall proces being led and dew intervall of tymes observit." Then : "Anent Particulare Kirkis Gif they be lauchfullie rewlit be sufficient ministeris and sessioun they haif power and juris dictioun in thair awin congregatioun in matteris ecclesiasticall and decernis and declairis the saidis assembleis presbiteries and sessiounes, jurisdictioun and discipline thairof foirsaid to be in all tymes cuming maist just gude and godlie in the selff Not- withstandingofquhatsumeverstatutesactiscannon civile or municipale lawes maid in the contrair." I have read that to show that in their inception in the Church in 1592 there is nothing which can justify the contention, that to them was any legislative power conferred with reference to doctrine or otherwise. What is con ferred upon them is power of government and power of discipline, and certain duties with regard to what I may call the domes tic affairs of the Church. I pass over the major part of it because it is recital of certain Acts, but at Letter F, at the bottom of page 29, it says : "Item the Kingis Majestie and Estaittis foir- saids declaris that the secund act of the parliament haldin at Edinburgh the xvij. day of May the yeir of God Jm v° MR JOHNSTON'S lxxxiiij. yeirs"— that was one of the "Black Acts" to which I referred, the Acts asserting the King's Supremacy — " sail na wayes be prejudiciall nor dirogat any thing to the privilege that God has geven to the Spirituall office beraris in the kirk concerning headis of religioun materis of heresie excommunicatioun col- latioun or deprivatioun of ministeris or ony sic essentiall censoris speciall groundit and havand warrand of the word of God." That is to say, as a Church Court they are to deal with all such matters leading up to censure or deprivation. In con clusion, this Statute confers upon the Presbytery the duty of admitting pre sentees, whether they be original pre sentees or collated from other parishes, " and to put ordour to all materis and caussis ecclesiasticall within their boundis according to the discipline of the Kirk." That statute the Presbyterian Church has always styled the Charter of Presbyterian ism, and it is certainly the first legislative recognition of the Presbyterian system. I refer to it as that foundation because if the Free Church have what they assert, inher ent legislative power, they have it because they derive it from the Established Church. The next Act I may shortly define as again conferring civil sanction upon sent ences of deprivation and otherwise of the Presbyteries and other Assemblies. Its latter part is important in the matter of patronage, which must be considered. On page 31 it provides that in the event of the sentence of deprivation being given effect to, then the right of patronage arises as if the person deprived was naturally dead, but the patron shall be bound to present a qualified person anew to the Kirk within the space of six months, and in the event of his failing to do so a jus devolutum arises to the Presbytery. In 1603 King James had succeeded to the Crown of England, and in the following year there being on hand between the two Parliaments the matter of the Union of the Crowns — not yet the Union of the Kingdoms — there is a very special provision in that Statute (page 32, letter B) : " That the commissionaris votat and electit in this present Parlia ment for treating upoun the Union betuix the Realmes of Scotland and England sail SPEECH 205 have na power in vertue of thair said Commissioun of the date of thir presentis to treat confer deliberat nor do anything that in ony maner of way may be hurt- full or prejudiciall to the Religion pre sentlie professit in Scotland actis of parliament maid in favouris of the samyn religion and discipline establissed and observit for Intertenement and pre servation thairof." On the King's arrival in England he reverted to his Episcopalian leanings, and from the beginning of the 17th century down to 1638 you have the Episcopalian interlude when King James had by his Sovereign power attempted to restore Episcopacy to Scotland. There is no Act to refer to until 1633, which is an Act of Charles I. where he (at page 32) ratifies the Religion presently professed within this Realm. From 1633 onwards to Charles the First's death, there was the struggle which I shall afterwards have to deal with as bearing upon the effect of what the Church did in 1638, but for my present purpose I shall ask your Lord ships to pass over the thirty or forty pages of this print to page 73. The struggle of the Revolution does not affect the parts of the question with which I have to deal, but what follows does. At page 73 your Lordships have the Claim of Right which was presented to King William and Queen Mary when they were invited to accept the Crown. It is the Act of 1689, Chapter xxviii. It proceeds upon a preamble that James the Seventh — that is James the Second of England — had acted as King without ever taking the Oath required by law ; that he did " by the advyce of wicked and evill Counsellers, Invade the fundamentall Constitution of this Kingdome And altered it from a legall limited Monarchy, to ane Arbitrary Despotick power, and in a publick pro clamation, asserted in ane absolute power to cass annul and dissable all the lawes, particularly arraigning the lawes Estab lishing the protestant religion and did Exerce that power to the subversion of the Protestant Religion, and to the vio lation of the lawes and liberties of the Kingdome . . . All which are utterly and directly contrairy to the knowne lawes, statutes and freedomes of this realme." And therefore they proceed to deal with 2o6 HOUSE OF LORDS King James, and at page 74, letter C, to state that whereas King William of Orange did " In order to such an Establishment, as that their religion lawes and liberties might not be again in danger of being subverted, And the saids Estates being assembled in a full and free respresenta- tive of this Nation, Takeing to their most serious consideratione, the best meanes for attaining the ends aforesaid Do In the first place, as their ancestors in the like cases have usually done for the vindicating and asserting their antient rights and liberties, Declare That By the law of this Kingdome no papist " can rule. Then between the letters E and F is a passage which is most important: "Declared That Prelacy and the superiority of any office in the Church, above presbyters is, and hath been a great and insupportable grievance and trouble to this Nation, and contrary to the Inclinationes of the generality of the people ever since the reformatione (they haveing reformed from popery by presbyters) and therefor ought to be abolished." That, in the Documents of the Church, is termed the Reformation from Episcopacy, just as the first Reformation was from Popery. The maintenance or rather re-establish ment of Presbyterian Church government was one of the points in the Claim of Right. The next passage is at page 75, which is the Introduction to the important Act of 1690, chapter 7, and it shows how the Westminster Confession of Faith is dealt with. That Confession had been finished by 1647, and had been then adopted, but, of course, it had been abandoned by the King's actions. Thom son's Acts show that on the 23rd of May 1690 (at letter E) it was ordered : " that the Clerke of Register cause transcryve a just double of the Westminster printed Confession of Faith to be brought in and presented in Parliament the next dyet." Then on the 26th of May : " The Con fession of Faith under writt.n was this day produced read and considered word by word in presence of their Majesties Hi»h Commissioner and the Estates of Parlia ment and being voted and approven was ordained to be recorded in the bookes of Parliament off the which Confession of Faith the Tenor follows." Then the Acts of Parliament contain the whole tenor of the Confession. That precedes the pass ing of the Act of 1690, which is the ratifi cation of the Confession of Faith and the settling in Scotland of the Presbyterian Church government. Then letter E, page 76 : "In the first place to settle and secure therein the true protestant Religion accord ing to the truth of God's Word as it hath of a long tyme been professed within this Land as also the Government of Christ's Church within this Nation agreeable to the word of God and most conducive to the advancement of true piety and Godliness and the establishing of peace and tran quility within this Realme. And that by ane Article of the Claime of Right It is declared that the prelacie and the superi ority of any office in the Church above presbyters Is and hath been a great and insupportable grievance," and so on. " Lyke as by ane Act of the last session of this Parliament Prelacie is abolished: Therefore Their Majesties with advyce and consent of the saids three Estates Doe hereby revive ratifie and perpetually confirm all lawes statutes and Acts of Parliament made against popery and papists And for the maintenance and preservation of the true reformed pro testant religion and for the true Church of Christ within this Kingdom. In swa far as they confirme the same or are made in favours thereof: Lyke as they by these presents Ratifie and establish the Confession of faith now read in their presence and voted and approven be them as the publick and avowed Confession of this Church containeing the summe and substance of the doctrine of the reformed Churches which Confession of Faith is subjoyned to this present Act : As also, They doe establish ratifie and confirme the presbyterian Church Government and discipline. That is to say the Govern ment of the Church by Kirk Sessions, presbyteries, provinciall synods, and general Assemblies ratified and estab lished"— by the Act to which I have just recently referred, the Act of 1592, chapter viii., which is at page 27 : "And thereafter received by the generall consent of this Nation to be the only Government of Christ's Church within this Kingdome Keviveing Renewing and Confirmeing the forsaid Act of Parliament in the haill MR JOHNSTON'S SPEECH heids thereof except that paro of it relate- of purging the Church Then there is a long ing to patronges. clause rescinding a number of Popish and Prelatic Acts, and at the foot there is this: These Acts being "prejudicall to, Inconsistent with, or derogatory from the protestant Religion and presbyterian Government now established." Then there is a provision for the restoration of the ministers who had been extruded during the Episcopalian period since 1661, and at letter C, page 78, it says : — " In pur suance ofthe premises Their Majesties doe hereby appoint the first meeting of the Generall assembly of this Church as above established to be at Edinburgh the third Thursday of October nextocome in this instant year 1690." The remaining pro visions are with reference to certain non- juring clergy who might come in, and between letters F and G it says : — " And to the effect thedisorders that have hapned in this Church may be redressed Their Majesties with advyce and consent foresaid Doe hereby allow the Generall meeting and representatives of the foresaid pres byterian Ministers and elders in whose hands the exercise of the Church Govern ment is established either by themselves or by such Ministers and elders as shall be appointed and authorised visitors by them, according to the custom and practice of Presbyterian Government throughout the whole kingdom and severall parts thereof to try and purge out all in sufficient, negligent, scandalous and erroneous Ministers by due course of ecclesiasticall processes and censures, and Hkeways for redressing all other Church disorders." And then it provides for civil sanction to the Church censures and decrees and depositions. That, my Lords, is the Statute upon which the present Establishment of the Established Church in Scotland now depends, and I draw your Lordships' attention to the fact that it is based upon the public avowal of the Westminster Confession, as containing the sum and substance of the doctrine; that the Presbyterian Church Government is re-established by the re-enactment of the provisions of the Act of 1592; and that in the matter of jurisdiction it is made perfectly clear that the Church Judica tories are Church Courts for the purpose 207 1 that in the event of their pronouncing censures or Judgments of Deprivation then the Civil Court is to lend their aid. As I pointed out, in that Act the question of patronage had been reserved. In the next Act Parliament deals with that question of patronage, and it abolishes patronage. At letter G your Lordships will see : "And to the effect the calling and enter ing Ministers in all tyme comeing may be orderly and regularly performed Their Majesties with consent of the Estates of Parliament Doe Statute and Declare That in case of the vacancie of any particular Church and for supplyeing the same with a Minister the Heretors of the said parish (being protestants) and the Elders are to name and propose the persone to the whole congregatione to be either approven or disapproven by them. And if they disapprove, that the disapprovers give in their reasons to the effect the affair may be cognosced upon by the presbytery of the bounds." That therefore abolishes patronage but gives the right of presenta tion, not to the congregations, but, as will be noticed at the top of page 80, to the Heritors (that is the owners of property who have to pay the Tithe) and the Elders ; they are to name and the congre gation is given a right of reasoned dis sent ; that is to say, not a right of dissent absolute without reason stated, but the right of stating reasons for consideration, and then there is the jus devolutum to the Presbytery in the event of failure within six months to make the appointment. Three years afterwards there is another most essential Act of the Church — the Act of 1693, Chapter viii. at page 80. It is essential, for this reason, that it demands the subscription of the Confession in a totally different form from that which the Free Church will now acknowledge. It ratifies the Act of 1690 to which I have just referred, and then at the bottom of page 80, it ordains "that no person be admitted or continued for hereafter to be a minister or preacher within this Church, unless that he having first taken and sub scribed the Assurance in manner appointed by another Act of this present Session of Parliament" — that is the declaration of allegiance, and those words are extremely 208 HOUSE OF LORDS pertinent — " do also subscribe the con fession of faith ratifyed in the forsaid fifth Act of the second Session of this Parlia ment declaring the same to be the Con fession of his Faith and that he owns the doctrine therein contained to be the true doctrine which he will constantly adhere to." That provision with regard to the subscription to the Confession of Faith was and is incumbent upon the Established Church — it was so in 1843 and it con- sinued to be accepted by the Church up to the date of the Union, but as I shall thow your Lordships it is so no longer. There is no longer the obligation to declare the same to be the Confession of his Faith or the owning of the doctrine therein contained to be the true doctrine which he will constantly adhere to. Then the Act provides for uniformity of worship, and with regard to a crave for the appoint ment of a meeting of a General Assembly it provides, at letter E, to the end that all the present ministers possessing churches not yet admitted to the exercise of the aforesaid Church government shall be so on qualifying themselves by the above subscription to which I have just referred, and that, failing that subscription, they shall suffer the pain of deprivation from their office and benefice. Lord James of Hereford : It is the Confession of Faith ratified by the afore said Act of this Parliament. Is there any name given to that particular con fession of faith ? Mr Johnston : If your Lordship will turn back to the Act of 1690, Chapter vii., page 76, that is the Act. The Lord Chancellor: It is the Westminster Confession. Lord James of Hereford : That is the one. Mr John sion : That is so, my Lord. The Lord Chancellor : It is actually contained in the Act of Parliament itself. Lord James of Hereford : Why is it called the Westminster Confession ? Mr Johnston : It is never called the Westminster Confession. That is only its popular name. It was the Confession which was framed by the Assembly of Divines at Westminster, between 1643 and 1647. The Lord Chancellor: It was a Confession which was intended to be the Confession of Faith in all the Churches. Mr Johnston : It was. At that time the Solemn League and Covenant existed, the object of which was uniformity, and the framing of that Confession was one step towards the uniformity iu religion or faith which the Puritan party were striving for during the period of the Revolution. Might I give your Lord ships, for convenience, this explanation. The Acts of the Scotch Parliament bear different numbers in different editions, and a great deal of confusion occurs in any prints like these, because there are sometimes references to Statutes by num bers which they do not hold to in the main or authorised Thomson's Edition ; as for instance, in the one to which your Lordship is referring, the aforesaid fifth Act of the Second Session is really in Thomson's Edition, the seventh Act. Al most all the Acts have different numbers in the different editions, but you may take it that it is the one on page 76. I give that explanation because repeatedly it occurs that there is a difference in num bers. There is nothing further in that Statute except a further giving of the Civil sanction to the Ecclesiastical Cen sures. The Church having been established at the Revolution Settlement, I have nothing further to deal with, except what occurs at the Union of the Crowns. You will find at the bottom of page 82, an Act of Queen Anne, the Act of 1703, ratifying and approving of laws for "establishing, maintaining, and preserving the true reformed Protestant religion and the true Church of Christ as at present owned and settled within this Kingdom as like- way es for establishing, ratifieing and con firming Presbiterian Church government and discipline," and particularly the Act of 1690, to which I have referred. Then comes the Act for a Treaty with England, the last four lines of which, at the top of page 85, provide that the Commissioners "shall not treat of or concerning any alteration of the worship, discipline, and government of the Church of this King dom as now by law established." Then you have the Act for -securing the Protestant religion, at page 85, to which MR JOHNSTON'S SPEECH I must refer — that refers to the previous Universities, Principals Acts, and " It is provided that the Com missioners for that Treaty should not treat of or concerning any alteration of the Worship Discipline and Govern ment of the Church of this Kingdom as now by Law Established which Treaty being now reported to the Parliament, and it being reasonable and necessary that the true Protestant Religion as presently professed." — I again draw your Lordships' attention to the fact that the word "Religion" is used there, and in previous Acts rather as " Creed " ; the worship, discipline and government is therefore the " creed worship discipline and government," or "confession wor ship discipline and government " — " of this Church should be effectually and unalterably secured. Therefore Her Majesty with advice and consent of the said Estates of Parliament doth hereby establish and confirm the said true Protestant Religion and the wor ship discipline and government of this church to continue without . any altera tion to the people of this land in all succeeding generations." It confirms the Act of 1690, and then at the foot it provides and declares : " that the foresaid true Protestant Religion contained in the above mentioned Confession of Faith" (that is the Westminster Confession) "with the form and purity of worship presently in use within this Church and its Presbyterian Church Government and discipline, that is to say the Government of the Church by Kirk Sessions Pres byteries Provincial Synods and General Assemblies all established by the fore said Acts of Parliament pursuant to the Claim of Right, shall remain and con tinue unalterable, And that the said Presbyterian Government shall be the only government of the Church within the Kingdom of Scotland and further for the greater security of the foresaid have patronage existing originally; then Protestant Religion and of the Worship in 1690 patronage abolished, and a Discipline and Government of this Church modified form of popular call to the 209 Professors and Masters connected therewith. Between letters D and E it says, " they shall subscribe to the foresaid Confession of Faith as the confession of their faith and that they will practice and conform themselves to the worship presently in use in this Church and submit them selves to the Government and Discipline thereof." Then the Act further provides that there shall be no test act other than that subscription. The Lord Chancellor: This is still the Scotch Parliament in 1707. Mr Johnston: It is still the Scotch Parliament : and that this Act shall be made a provision of any Treaty or Union between the two countries : " As also that this Act of Parliament and settle ment therein contained shall be insert and repeated in any Act of Parliament that shall pass for agreeing and concluding the foresaid Treaty." Accordingly you have in the next Act, which is the Act ratifying - and approving the Treaty of Union, re-enacted and embodied in it these provisions with regard to the established Religion of Scotland. I have nothing further in the Statutes except to ask your Lordships' permission to refer to the Act of the British Parlia ment, 10 Anne, Chapter xii., in 1711. I find it is sufficiently quoted for my purpose in one of the Court of Session Reports, Volume 16 of the first series of Scotch reports, -at page 681. The purport of that Act is the restoration of the right of patronage. Your Lordships remember that at a previous stage at the Revolution Settlement patronage had in 1690 been abolished, but on the narrative that its abolition had not proved satisfactory, in 1711 the Parliament of Queen Anne restores patronage in Scotland. That was the state of matters under which the questions at the disruption arose. You as above established Her Majesty with advice and consent foresaid Statutes and Ordains" — it has already been ordained that the subscription to the Confession shall be made by ministers, and it is now ordained that it shall also be made by all minister given, namely, the heritors, or landed proprietors who paid the tithe, with the Elders; and you have, in 1711, patronage again re-established. That is the statutory history of the Church at the time when in 1833 various 2IO Acts of the Assembly of the Established Church were passed, which caused the ten years of dispute which preceded the formation of the Free Church in 1843. The first thing done by, I think I may term them in modern language, the Progressive Party in the Established Assembly was this. In 1833 they did what my learned friends found upon by this progre-sive majority — they passed an Act of Assembly which is printed at page 1024, declaring that the ministers of the Parliamentary Churches, that is to say, the churches which were erected in the Highlands and outlying districts, under certain public statutes should have seats in the Church Courts. The next Act in the same year, which my learned friends also found upon as an Act of Legislation, is the Act of 1834, page 1035 of the same Acts, which provides in the same way for not merely the ministers occupying seats in the Assembly, but in the case of those Chapels of Ease, as they are called there, allocating to them parochial bounds. Then you come to the important Act, which really started the litigation which ensued, known as the Veto Act, which is quoted, I think, in the same Acts of Parliament to which I have referred, but it is a short Act, and I shall have to read it. It proceeds to say, " The General Assembly declare that it is a fundamental law of this Church that no pastor shall be intruded on any congregation contrary to the will of the people ; and in order that this principle may be carried into full effect the General Assembly, with the consent of a majority of the Presbyteries of this Church, do declare, enact, and ordain that it shall be an instruction to Presbyteries, that if, at the moderating in a Call to a vacant pastoral charge, the major part of the male heads of families, members of the vacant congregation, and in full communion with the Church, shall disapprove of the person in whose favour the Call is proposed to be moderated in, such disapproval shall be deemed sufficient ground for the Presbytery rejecting such person, and that he shall be rejected accordingly, and due notice thereof forth with given to all concerned ; but that, if the major part of the said heads of families shall not disapprove of such HOUSE OF LORDS person to be their pastor, the Presbytery shall proceed with the settlement accord ing to the rules of the Church : And further declare that no person shall be held to be entitled to disapprove as aforesaid, who shall refuse, if required, solemnly to declare in presence of the Presbytery that he is actuated by no factious or malicious motive." Lord James of Hereford : What is the date of that ? Mr Johnston : That is 1835, the Act of Assembly. That Act was the occasion, the causa causans, of the Disruption. I am going immediately to refer to what is known as the Auchterarder Case, reported in the 16th Volume of the First Series of the Court of Sessions Cases. The Lord Chancellor : Is it necessary to do more than show what was the cause of the Disruption ? You have brought down the narrative to Disruption. There is nothing in the case itself. Mr Johnston : Why I am referring to it is, that it quotes the Veto Act, and I was going to give your Lordship a passage in which that Act is quoted. The Lord Chancellor: Most of us know historically the Auchterarder Case, and inasmuch as there is nothing more in it than the fact that it was the attempted intrusion, as they thought, of the right of the congregation to choose its own Minister, is not that enough for our present purposes ? Mr Johnston : Probably it is, my ^ Lord. My reason in referring to the Report is because it contains printed in the narrative this Act which I have read. The Lord Chancellor : I was afraid you were going further into the Auch terarder Case. Mr Johnston : No, my Lord ; but I must refer to it. The Lord Chancellor : I do not want to interfere with the course of your argument; I only did not want you to read more than was necessary. Mr Johnston : I assure your Lordship I was not going to read anything from this, but at the same time, as there are two of your Lordships who have not heard the Case before, I thought it right to give them the reference to where it is. It is in 16 Court of Session Cases, 1st MR JOHNSTON'S SPEECH Series, page 661. That Case arose in consequence of this Veto Act, and the circumstances of the Case and the Judg ment are certainly material for under standing the situation which arose at the Disruption, and I may most shortly, I think, state it to your Lordships thus : Notwithstanding the law against patron age, it had been held by a section of the Established Church that it was their spiritual function to supervise the pastoral relation ; that is to say, the formation of the relation between the pastor and his people was part of the spiritual affairs of the Church, which was committed to the Church, and that they considered that that relation could only be properly established, not by imposing Ministers from outside upon the congregation, but by the voluntary Call by the congregation to the Minister. Accordingly this majority in the Assembly had passed that Veto Act. That Veto Act at once brought them into sharp contest with Patrons, and the Earl of Kinnoull in the Auchterarder Case and his presentee became opposed to the Presbytery, by the Presbytery's attempt to override the presentation of the patron and to give obedience to the unreasoned disapproval of the members of the congregation. That matter was litigated through all the Courts up to the House here, and the Court of Session by a majority, and the House of Lords unanimously, determined that by their Veto Act the Established Church had attempted to override the Act of Parlia ment — that what they had done was ultra vires, and that the Patron's presentee must be accepted unless there were from. members of the congregation under the previous statutes reasoned objections, and not mere veto. That is one of the many Cases which during that ten years' contest agitated the Courts, and I have only to say with regard to them that they appear in various guises — sometimes the Presbytery obeying the Church Courts and disobeying the Civil Courts ; in some of them the Presbyteries giving obedience to the Civil Courts and the Ecclesiastical Judicatories attempting to accuse them. There is no need to make further refer ence to that, but there are, however, two branches of this litigation which I must 211 just mention. Not only was the Veto Act condemned, but they attempted to make quasi-parochial Ministers of the clergy in the outlying Churches established under the special Act of Parliament. They not merely attempted to give them parochial bounds, but to give them seats in the Church Judicatories. That also raised litigation, and although the Church maintained their right to determine who were members of their Church Judica tories, the Court held that by so doing they had interfered with existing parochial rights according to the then present Establishment. Therefore the proceed ings of 1842 and 1843 follow upon not only that statutory history of the Church of Scotland, but those recent attempts in the previous ten years to establish a right of the Church to interfere in the way in which I have explained. My reason for having thus dealt with the statutory history of the Church and with these litigations prior to 1843 is, that without knowing the constitution of the Church and what caused the Disruption, it is hardly possible to give a fair and accurate meaning to the words of the Constitution themselves, because my learned friends endeavour to stretch those words away, so to speak, from their context — away from the circumstances under which they were used. They can only, I conceive, be interpreted from a knowledge of the circumstances under which they were used, and not by divorcing them from those circumstances. The constitution of the Free Church commenced with the Document in Print A, page 17. It is termed, " Claim, Declaration, and Protest anent the En croachments of the Court of Session, General Assembly, 1842." Before re ferring to it I must remind your Lord ships that this is a document of the Established Church, because the Estab lished Church was then one and un divided, and was not divided until 1843 ; and I do wish to emphasise this : that in the document of the Established Church you can hardly expect to have put for ward as one of the essential and funda mental principles the principle of Estab lishment. The document subsumes the principle and necessarily does so. This 212 document proceeds : sembly of the Church of Scotland, taking into consideration the solemn circum stances in which, in the inscrutable pro vidence of God, this Church is now placed; and that, notwithstanding the securities for the government thereof by General Assemblies, Synods, Presbyteries, and Kirk-Sessions, and for the liberties, government, jurisdiction, discipline, rights and privileges of the same provided by the statutes of the realm by the constitu tion of this country, as unalterably settled by the Treaty of Union, and by the oath, ' inviolably to maintain and preserve ' the same, required to be taken by each Sove reign at accession" — missing the next five lines — "these have been of late assailed by the very Court to which the Church was authorised to look for assistance and protection, to an extent that threatens their entire subversion, with all the grievous calamities to this Church and nation which would inevitably flow there from; did and hereby do, solemnly and in reliance on the grace and power of the Most High, resolve and agree on the following Claim, Declaration, and Pro test." This was, I should say, for the pur pose of being presented to Her Majesty. They set forth, first : " Whereas it is an essential Doctrine of this Church, and a fundamental principle in its constitution, as set forth in the Confession of Faith thereof, in accordance with the Word and law of the most holy God, that ' there is no other Head of the Church but the Lord Jesus Christ,'" and a reference is given to the Confession, Chapter xxv., "and that while 'God the supreme Lord and King of all the World hath ordained Civil Magistrates to be under him over the people, for his own glory, and the public good, and to this end hath armed them with the power of the sword ' (Chapter xxiii., Sec. 1); and while 'it is the duty of people to pray for magis trates, to honour their persons, to pay them tribute and other dues, to obey their lawful commands and to be subject to their authority for conscience sake,' ' from which ecclesiastical persons are not exempted' (Chapter xxiii, Sec. 4); and while the magistrate hath authority and it is his duty, in the exercise of that HOUSE OF LORDS The General As- power which alone is committed to him, namely ' the power of the sword ' or civil rule, as distinct from the ' power of the keys' or spiritual authority, expressly denied to him, to take order for the pre servation of purity, peace, and unity in the Church, yet ' the Lord Jesus as King and Head of his Church hath therein appointed a government in the hand of Church officers distinct from the civil magistrate ' (Chapter xxx., Sec. 1) ; which government is ministerial, not lordly, and to be exercised in consonance with the laws of Christ, and with the liberties of His people." I take permission to ask your Lordships to note that what is sharply contrasted there is the Power of the Keys and the Power of the Sword, and nothing else. There is nothing in this whole document bearing in any way upon anything like legislative powers; but the Power of the Keys is claimed, and it is the Power of the Keys as inter preted by that and as interpreted with reference to the history of the previous ten years which the Courts are said to have interfered with. Lord James of Hereford : What is the meaning of " the Power of the Keys "? What effect do you give to those words ? Mr Johnston : The right of discip line, and therefore the right of determin ing the relation between the pastor and his congregation and everything connec ted with the selection and admission or induction of the Minister. Your Lord ship will find the next passage bears me out. The Lord Chancellor: I think in the theological controversies of those days the Power of the Keys was a ques tion well understood. The Power of the Keys had reference really and truly to what was claimed by the Church of Rome. Lord James of Hereford : You have " the Power of the Keys or spiritual authority." I do not know whether that means an equivalent for the Power of the Keys. Mr Johnston : I think, if your Lordships will let me read the next passage, you will see what they mean. It proceeds : " And whereas, according to the said Confession, and to the other MR JOHNSTON'S SPEECH standards of the Church, and agreeably jurisdiction independent of to the Word of God, this government of the Church, thus appointed by the Lord Jesus, in the hand of Church in tne nantt ot (Jhurch officers, distinct from the civil magistrate or supreme power of the State, and flowing directly from the Head of the Church to the office-bearers thereof, to the exclusion of the civil magistrate, comprehends" — this is their definition of what this govern ment arising from the Power of the Keys or spiritual authority comprehends " the preaching of the Word, administration of the Sacraments, correction of manners, the admission of the office-bearers of the Church to their offices, their suspension and deprivation therefrom, the infliction and removal of Church censures, and, generally, the whole ' power of the keys.' " The " generally," of course, does not add anything, because they have defined what they mean by " the Power of the Keys," and for the special purposes in view arising out of the troubles of the previous ten years. The real bone of contention then, was the right of the admission of office-bearers, their suspension and de privation, and infliction of church cen sures. They proceed at letter D : " And whereas this jurisdiction and government, since it regards only spiritual condition, rights and privileges, doth not interfere with the jurisdiction of secular tribunals whose determinations as to all temporali ties conferred by the State upon the Church, and as to all civil consequences attached by law to the decisions of Church Courts in matters spiritual, this Church hath ever admitted, and doth admit, to be exclusive and ultimate, as she hath ever given and inculcated implicit obedi ence thereto : And whereas the above- mentioned essential doctrine and funda mental principle in the constitution of the Church, and the government and exclusive jurisdiction flowing therefrom, founded on God's Word, and set forth in the Confession of Faith and other stan dards of the Church, have been, by diverse and repeated Acts of Parliament, recog nised, ratified, and confirmed." One has to ask, what is precisely " the above-men tioned essential doctrine"? Apparently it is the above-mentioned essential doctrine that there is in the Church a spiritual 213 the Church Courts, but a spiritual jurisdiction care fully limited and defined in the terms which you have above, on page 19, as defining what the Power of the Keys means. Accordingly the reference is made to a series of Acts of Parliament, all of which I have referred to, and which we ask your Lordships to note most carefully are the Acts in which there are various gradual definitions of the jurisdiction of the Church, beginning with the first one to which I referred, which placed the examination and ad mission of Ministers in the hands of the Church, and proceeding through them, and I carefully emphasized in passing those which defined the jurisdiction of the Church, and which, as the Church very properly puts it, did confine them to preaching, administration of sacraments, correction of manners or discipline, as the Church calls it, and everything connected with the ministerial relation, either in its original formation or in its suspension or deprivation. I pass over pages 20 and 21, which contain a mere narrative of all these Acts of Parliament, down to letter F upon the latter pages, " by which enact ment" — that is, one of the last ones — "declaration and acknowledgment, the State recognised and established as a fundamental principle of the constitution of the kingdom, that the jurisdiction of the Church in these matters was ' given by God ' to the office-bearers thereof, and was exclusive, and free from coercion by any tribunals holding power or authority from the State or supreme civil magis trate." That is a very good definition, as it seems to me, of what their claim was in 1843. It was a claim to have their judgment in these very matters left un fettered by the Court. Lord James of Hereford : Is there any particular meaning given to the word "Church" in application to different things, such as the admission of Ministers or discipline ? Does " Church " mean the general body or a congregation ? Mr Johnston : The jurisdiction of the Church is exercised by the recognised Assembly. Lord James of Hereford : That is the general body. 214 Mr Johnston : The General Assembly, but not necessarily so, because there are jurisdictions for some purposes in the Synod and the Presbytery. I know that the word "Church" is loosely used. It is not possible to find precisely the same meaning given to it at eveuy passage where it occurs, but in that way which you have there, " the jurisdiction of the Church," I think I am justified in saying, means the jurisdiction of the Church as embodied in its recognised Judicatory — the Assembly, if the matter is before the Assembly ; the Presbytery, if the matter is before the Presbytery. It treats these Assemblies as representative of the Church, exercising the Church's power, and so it uses the phrase that 1 have just read. Lord James of Hereford : You will have to deal with the selection of Ministers for particular Congregations, that is, the admission of the Minister. The election there was made by the congregation afterwards in the Free Church. Mr Johnston : That is so, my Lord, that is the very outcome of the disruption. Lord James of Hereford-. The "Church" will work out probably as you proceed, but there it is not the general body of the Church, but it means the particular body as to the admission of ministers. Mr Johnston : The admission of ministers after 1843, in the Free Church, is thus : The congregation select them by votes, and then, having selected them, the Presbytery has, as they say, to take the man on trial to see that he is qualified. He must, of course, not only be called by the congregation, but he must be qualified to occupy the position of minister. Hav ing satisfied themselves of that, he is then ordained by the Presbytery. Lord James of Hereford : Then the word "Church" would be there used in its broad sense. Mr Johnston : The word ' ' Church " is used in a broad sense, no doubt. Previous to 1843 the presentee was pre sented to the congregation. The congre gation had a right of objection, — that is, a right of reasoned objection, — and, if they stated reasons for objecting, these HOUSE OF LORDS were submitted to the Presbytery as a Church Court to entertain and consider. If they sustained them, the presentee was rejected and a new presentee had to be offered. If they rejected the opposition, he was accepted and ordained. But the caU which the Presbyterian Church attempted to introduce, that is, the call by the congregation, was not under the statute, and therefore a mere perfunctory matter. It is so no longer, and that is, I say, the outcome of the disruption. Passing through all these statutes which I purposely refer to ab initio, because, as I say, it is upon the constitutional posi tion of the Church as they read it that the majority in the Assembly took their stand, I will read now at the top of page 23: "And whereas, not only was the exclusive and ultimate jurisdiction of the Church Courts in the government of the Church, and especially in the particular matters, spiritual and ecclesiastical, above mentioned, recognised, ratified and con firmed — thus necessarily implying the denial of power on the part of any secular tribunal, holding its authority from the Sovereign, to review the sentence of the Church Courts in regard to such matters, or coerce them in the exercise of such jurisdiction ; — but all such power, and all claim on the part of the Sovereign to be considered supreme governor over the sub jects of this kingdom of Scotland in causes ecclesiastical and spiritual, as he is in causes ciijil and temporal, was, after a long-con tinued struggle, finally and expressly re pudiated and cast out of the constitution of Scotland, as inconsistent with the Presbyterian Church government established at the Re volution, and thereafter unalterably secured by the Treaty of Union with England ; by the constitution of which latter kingdom, differing in this respect from that of Scotland, the Sovereign is recognised to be supreme governor, 'as well in all spiritual and ecclesiastical things and causes as temporal.' " May I for one moment refer to what is stated at letter B? What they speak of is a denial of power to the secular tribunal to review the sentence of the Church Courts in regard to such matters, or coerce them in the exercise of such jurisdiction. I ask, could any language be more apart from the MR JOHNSTON'S SPEECH idea of legislation or legislature, or more apposite to the true position which these Assemblies hold of being Church Courts with duties to perform of the nature of sentences ? That is supported by a long list of matters which I am able to pass over, because they are all out of these statutes to which I have referred, and your Lordships then find that this logical document — because it goes on from be ginning to end as one sentence — provides "And whereas, diverse civil rights and privileges were, by various statutes of the Parliament of Scotland, prior to the Union with England, secured to this Church, and certain civil consequences attached to the sentences of the Courts thereof, which were farther directed to be aided and made effectual by all magistrates, judges, and officers of the law ; and in particular " — then there are narrated various statutes, to all of which I think I have referred your Lordships, in which civil sanction is given to the decisions of the Church Courts. At page 28 you have a reference to what was done at the Union of the kingdoms : " And whereas, at the Union between the two kingdoms, the Parliament of Scotland, being determined that the 'true Protest ant religion,' as then professed, ' with the worship, discipline, and government of this Church, should be effectually and unalterably secured,' did, in their Act, appoint commissioners to treat with com missioners from the Parliament of England (1705, c. 4) as to an union of the kingdoms, provide ' That the said commissioners shall not treat of or concerning any alteration ' " of these, and accordingly it narrates what was done at the Union of the Crowns. Then, at page 30, letter C, commences the serious question which gives rise to the necessity of this declaration, namely, the question of patronage, and it proceeds to show how the question of patronage stood under the statute, and how it had been abolished in 1690, and how it had been by the Act of Queen Anne restored. Then I think I may pass to letter E, on page 31 : "And whereas while this Church protested against the passing of the above- mentioned Act of Queen Anne, as 'con trary to the constitution of the Church, so well secured by the late Treaty of Union and solemnly ratified by Acts of 215 Parliament in both kingdoms,' and for more than seventy years thereafter unin terruptedly sought for its repeal, she at the same time maintained and practically exercised without question or challenge from any quarter the jurisdiction of her Courts to determine ultimately and ex clusively under what circumstances they would admit candidates into the office of the holy ministry, or constitute the pastoral relationship between minister and people" — that phrase, my Lords, is essential to the dispute — "constitute the pastoral relationship between minister and people and generally to 'order and con clude the entry of particular ministers.' " Lord James of Hereford : This docu ment was drawn up in 1842, just before this disruption. On whose part was this document drawn up ? Mr Johnston : This is the document of the General Assembly of the Established Church, and therefore, of course, of the majority of that Assembly. Lord James of Hereford : They put that forward as against the Free Church rule. Mr Johnston : They were that section which became the Free Church — the majority. Lord James of Hereford : They were not in favour of the old Established Church view? Mr Johnston : It is the document of the Established Church, but written by the Free Church pen — by the majority — and taken with them into the Free Church as the foundation of their con stitution. I cannot read that passage without one further remark. I can only say that that is the representation of this majority of what took place ; their version of what took place after the passage of the Act of 10 Queen Anne. I could, if it were necessary, traverse their statement of it, but I think it right to take them on their statement, because that is the view on which they disrupted. Lord James of Hereford : It is the Free Church case ? Mr Johnston : Yes, my Lord. It may not be sound in fact, but it is the theory on which they are to be bound in looking at their constitution. They pro ceed to deal with the necessity of the call. 2l6 HOUSE OF LORDS and I read the next passage because it puts in their own words what the real question was : " And whereas in particular this Church required, as necessary to the admission of a minister to the charge of souls, that he should have received a call from the people over whom he was to be appointed, and did not authorise or permit any one so to be admitted till such call had been sustained by the Church Courts, and did, before and subsequent to the passing of the said Act of Queen Anne, declare it to be a funda mental principle of the Church, as set forth in her authorised standards, and particularly in the Second Book of Discipline (Ch. iii., Sec. 5), repeated by Act of Assembly in 1638, that no pastor be intruded upon any congregation contrary to the will of the people." Lord Davey : They seem to recognise the Second Book of Discipline there as one of the standards of the Church. Mr Johnston : There again, my Lord, I must take their statements, but, so far as your Lordship puts it, I traverse it at once. It never was a standard. They assert it to be a standard. Lord Davey: They treat it as such, and the inquiry is, What were the tenets and what were the standards of the Free Church at its foundation? and if they declare the Second Book of Discipline to be one of their authorised standards, it is very difficult for us to say that it is not. They may be wrong. Mr Johnston: I say three things. They were wrong, but they do state it, and therefore it is to be accepted. They do not take it as one of the standards of the Free Church, because it had been departed from. You will see what their standards are afterwards. It is not one of their recognised standards, although they mention it as a standard of the Church here. Lord Macnaghten : When you say they mention it, this is the Established Church document. It was not dissented from at the time. It was adopted. It was upon this they went out. That I quite understand, but this was a docu ment of the Established Church. Mr Johnston : I know, my Lord, but it was written as I have said, Lord Macnaghten : When you say it was written by them, you mean it was adopted by the body. Mr Johnston : I know it was adopted by the then majority of the Established Church. Lord Macnaghten : Was there any division about it ? Mr Johnston : Oh yes, my Lord. Lord Macnaghten : I thought this had been adopted unanimously by the Established Church. Mr Johnston : By no means. It was by the majority which became the Free Church. There was a large minority. Lord Macnaghten : Is that stated anywhere here ? Mr Johnston : No, my Lord ; I can only state that from knowledge. It is easily got from the cases, if your Lord ship has any difficulty about it. Lord Macnaghten -. I thought there was something in the books that you cited. Mr Johnston : No, my Lord. Lord Macnaghten : There is nothing in the books to state that there was a dissent from this protest ? Mr Johnston : There is nothing to shew the division of opinion which there was. Lord James of Hereford : This is a historical question, and perhaps "The Life of Dr Chalmers" speaks of it. Mr Johnston : I should think so, my Lord. In answering your Lordships upon any one point, I do not want to give any erroneous impression upon any other point. I did not for a moment mean to say it is not an Established Church doctrine. Technically it is, but at the same time it is carried by the majority, who immediately after became the Free Church. Lord Macnaghten: We all under stand that. Mr Johnston: Therefore, of course, any statement in it is necessarily the statement of the majority. Let me say further that, with regard to the Second Book of Discipline, I am not the least frightened by that, because, when one comes to look at it, I do not find anything in it which bears it out. It bears out this one thing, namely, that it was a prin- MR JOHNSTON'S ciple of those who desired the Book of Discipline to be a standard of the Church that there should not be intrusion of ministers, but that does not carry my learned friend very much towards raising this into the general and wide demand of spiritual independence and right to legis late which he reads out of this document, and for which he will not find any sup port in the Second Book of Discipline, even if it is given in to him as one of the standards of the Church. Then, my Lords, what they proceed to do is to set forth at very considerable length all that was done by the Courts of the country in maintaining against the view of the majority of the Establishment, that what ever they might say as to its being a fundamental principle of the Church that no pastor was to be intruded, still the law of the land was tbat patronage existed, and that the rights of patrons were to be supported by the Courts. They give various stages of the various litigations, occupying the next four or five pages, which arose round about the Veto Act. Then, if your Lordships pass to page 38, you will see at the foot: "And whereas farther encroachments are threat ened on the government and discipline of the Church as by law established, in actions now depending before the said Court, in which it is sought to have sen tences of deposition from the office of the holy ministry reduced and set aside and minorities of inferior judicatories authorised to take on trial and admit to the office of the holy ministry, in dis regard of, and in opposition to, the authority of the judicatories of which they are members, and of the superior judicatories to which they are subordinate and subject : and whereas the govern ment and discipline of Christ's Church cannot be carried on according to His laws and the constitution of His Church subject to the exercise by any secular tribunal of such powers as have been assumed by the said Court of Session : And whereas this Church, highly valuing as she has ever done her connection on the terms contained in the statutes hereinbefore recited with the State and her possession of the temporal benefits thereby secured to her for the advantage SPEECH 217 of the people, must nevertheless, even at the risk and hazard of the loss of that connection and of these public benefits — deeply as she would deplore and depre cate such a result for herself and the nation — persevere in maintaining her liberties as a Church of Christ, and in carrying on the government thereof on her own constitutional principles, and must refuse to intrude ministers on her congre gations, to obey the unlawful coercion attempted to be enforced against her in the exercise of her spiritual functions and jurisdiction, or to consent that her people be deprived of their rightful liberties." What is that but the assertion that non intrusion is a fundamental principle of the Church ; that as the Civil Courts have overridden the Church, the Church must refuse to obey these Courts, and must sacrifice the temporal benefits rather than submit to the Courts of the State in regard to this determination? Having prefaced it by that, the declaration they claim at page 39, letter F, is : " Therefore the General Assembly, while, as above set forth, they fully recognise the absolute jurisdiction of the Civil Courts in relation to all matters whatsoever of a civil nature, and especially in relation to all the tem poralities conferred by the State upon the Church, and the civil consequences attached by law to the decisions, in matters spiritual, of the Church Courts, — Do, in name and on behalf of this Church, and of the nation and people of Scotland, and under the sanction of the several statutes, and the Treaty of Union herin- before recited, claim, as of right, That she shall freely possess and enjoy her liber ties, government, discipline, rights and privileges, according to law, especially for the defence of the spiritual liberties of her people, and that she shall be protected therein from the foresaid unconstitutional and illegal encroachments of the Court of Session, and her people secured in their Christian and constitutional rights and liberties. And they declare that they cannot, in accordance with the Word of God, the authorised and ratified stand ards of this Church, and the dictates of their consciences, intrude ministers on reclaiming congregations, or carry on the government of Christ's Church, subject 2l8 HOUSE OF LORDS to the coercion attempted by the Court of Session as above set forth ; and that at the risk and hazard of suffering the loss of the secular benefits conferred by the State and the public advantages of an Establishment, they must, as by God's grace they will, refuse so to do." Then at page 40 you have the last limb of this document— the Protest: "And they protest that all and whatsoever Acts of the Parliament of Great Britain passed without the consent of this Church and Nation, in alteration of or derogation to the aforesaid Government discipline rights and privileges of this Church (which were not allowed to be treated of by the Commissioners for settling the terms of the Union between the two Kingdoms, but were secured by antecedent stipula tion provided to be inserted, and inserted in the Treaty of Union as an unalterable and fundamental condition thereof, and so reserved from the cognisance and power of the federal Legislature created by the said Treaty), as also all and whatsoever sentences of Courts in contravention of the same government, discipline, rights and privileges, are and shall be in themselves void and null and of no legal force or effect ; and that, while they will accord full submission to all such acts and sentences, in so far — though in so far only — as these may regard civil rights and privileges, whatever may be their opinion of the justice or legality of the same, their said submission shall not be deemed an acquiescence therein, but that it shall be free to the members of this Church, or their suc cessors, at any time hereafter, when there shall be a prospect of obtaining justice, to claim the restitution of all such civil rights and privileges, and temporal benefits and endowments, as for the present they may ba compelled to yield up in order to pre serve to their office-bearers the free exer cise of their spiritual government and discipline, and to their people the liberties of which respectively it has beenattempted, so contrary to law and justice, to deprive them." Then there is finally an appeal " to witness that it is for their adherence to that doctrine as set forth in their Con fession of Faith, and ratified by the laws of this kingdom, and for the maintenance by them of the jurisdiction of the office bearers, and the freedom and privileges of the members of the Church from that doctrine flowing, that this Church is sub jected to hardship, and that the rights so sacredly pledged and secured to her are put in peril; and they especially invite all the office-bearers and members of this Church, who are willing to suffer for their allegiance to theiradorable King and Head, to stand by the Church, and by each other, in defence of the doctrine aforesaid, and of the liberties and privileges, whether of office-bearers or people, which rest upon it ; and to unite in supplication to Al mighty God, that He would be pleased to turn the hearts of the rulers of this King dom, to keep unbroken the faith pledged to this Church, in former days, by statutes and solemn treaty, and the obligations, come under to God himself, to preserve and maintain the government and dis cipline of this Church in accordance with His word." And at the foot, " And that in His own good time, He would restore to them these benefits, the fruits of the struggles and sufferings of their fathers in times past in the same cause ; and, there after, give them grace to employ them more effectually than hitherto they have done for the manifestation of His glory." My Lords, that is the Claim, Declaration, and Protest by the Established Church, which was sent by the next document, accompanied by an Address to the Queen, and was presented to her in 1842. Adjourned to to-mmrow at 10.30, MR JOHNSTON'S SPEECH 219 SECOND DAY. FRIDAY, 10th JUNE 1904. Mr Johnston : My Lord, when your Lordships rose yesterday I was dealing with the first document, namely the Claim, Declaration, and Protest of the year 1842. I think that it will be con venient if I confine myself at this stage to the two questions, whether that document and those that follow it contain as essential principles of the Free Church the Estab lishment principle and the Confession of Faith, leaving over for the present the question of whether or not there exists in the Free Church a power to alter these bases. The Lord Chancellor : There is one question it strikes me you will have to deal with; as you pointed out very forcibly with reference to another question, this Protest, and so on, was made at the time by the Established Church. Mr Johnston: Yes. The Lord Chancellor : It is what I may call an Established Church document. Mr Johnston : It is. The Lord Chancellor : You will have, I think, to show the identity of the persons who framed that document and the persons who afterwards formed the Free Church. Do you see what I mean ? Mr Johnston : I see what your Lord ship means, but beyond examining the Sederunt of the two meetings, of course, it would be a little difficult. The Lord Chancellor : I do not say how you are to do it, but I mean you yourself have availed yourself of the allegations in that, and you have forcibly pointed out that something would natur ally be in it, because it was the Established Church itself which was making the Pro test ; but then, in order to avail yourself of that argument, I think you must show that the persons who afterwards formed the Free Church were persons identical in government and doctrine with the persons who had framed that earlier docume it— that is all. Mr Johnston : My Lord, I think I can take that matter at once. I should hardly think that the matter is in dispute between us. The Lord Chancellor : Quite pos sibly; I do not say that it is. Mr Johnston : Since yesterday after noon, with reference to a question put by my Lord Macnaghten, I have had the Proceedings of the day in 1842, when this was adopted, examined, and I find that, roughly speaking, the majority in favour of passing that Declaration was about three to two in a very full House. There was, therefore, a minority, which represents those who remained in the Established Church, of about two out of five in the Assembly of that day. Lord Davey : That Protest was after wards adopted by the seceders. Mr Johnston : That is what occurred to me as the answer to my Lord Chan cellor. The Lord Chancellor : That is what I wanted to have emphasised. Mr Johnston : It is put forward as part — it is adopted in the Protest and it is subsequently adopted in the Deed of Demission, and so on. The Lord Chancellor : Very good ; that may be sufficient. Mr Johnston : I think, my Lord, that is sufficient. The Lord Chancellor : It seemed to me that the one thing, the gap in the argument was what you say is supplied. Mr Johnston : I think it is supplied by that, but of course it could be supplied by a more exhaustive examination of the proceedings of the day. In dealing with the Claim, Declaration and Protest, I said, and must repeat it again, that necessarily assumes the estab- 220 HOUSE OF LORDS lishment principle because of its genesis ; it could hardly be otherwise, but I think we shall find that it is not only impliedly there, but that the principle of establish ment is made part of it by reference, as for instance at the foot of page 18 of Print A, where there is a reference made to certain passages in the Confession of Faith. Now it will be convenient if I at once take the Confession of Faith so far as it bears upon this question of the establishment principle. The passage to which I referred on page 18 is be tween E and G. Now the establish ment principle is to be found in the Con fession of Faith under the head " Of the Civil Magistrate " at the bottom of page 7. This is the Westminster Confession ; there it is set forth in Chapter xxiii. : " God, the supreme Lord and King of all the world, hath ordained civil magistrates to be under Him over the people, for His Own glory and the public good ; and, to this end hath armed them with the power of the sword for the defence and encour agement of them that are good, and for the punishment of evildoers." And then Article II. : " It is lawful for Christians to accept and execute the office of a magistrate." Article III. is the important one : " The Civil Magistrate " (and I think under that term we both under stand the Crown, the supreme magis trate) "may not assume to himself the administration of the word and sacra ments, or the power of the keys of the kingdom of heaven : yet he hath authority, and it is his duty, to take order, that unity and peace be preserved in the Church, that the truth of God be kept pure and entire, that all blasphemies and heresies be suppressed, all corruptions and abuses in worship and discipline pre vented or reformed, and all the ordinances of God duly settled, administered and observed. For the better effecting wh ereof he hath power to call Synods, to be present at them, and to provide that whatsoever is transacted in them be according to the mind of God." Now, my Lords, I should maintain upon that expression of the Confession of Faith that the Confession of Faith re cognizes, not merely the authority, but what is much more important for my purpose, the duty of the Civil Magistrates — by which we understand the Govern ment in the widest sense — to take order that unity and peace be preserved, that the truth be kept pure, that blasphemies be suppressed, that corruption and abuses in worship and discipline be prevented or reformed — that that imposes the duty upon the Government of at least estab lishing — I do not say at this stage endow ing, but at least establishing the Church ; Endowment may be implied, but Estab lishment certainly is asserted. Now to refer back again to page 18, in the first place the Confession of Faith is necessarily adopted as fundamental to the Constitution of the Church as it then stood. At the head of that passage which I am at present referring to at page 18, it commences : that " it is an essential doctrine of this Church, and a fundamental principle in its constitution, as set forth in the Confession of Faith thereof" — that is the Confession of the Church's faith — and then it goes on to draw the distinction between the spiritual Lord James of Hereford : W^ill you give me the letter you are reading from ? Mr Johnston: Between C and G— the passage with regard to the Confession of Faith is between C and D — "as set forth in the Confession of Faith thereof " ; it could not be otherwise looking to the situation. And then down below between F and G it draws the distinction between " 'the power of the sword,' or civil rule," and " 'the power of the keys,' or spiritual authority"; and it there proceeds to quote a part of the article regarding the civil magistrate upon which I have just commented upon page 8. My Lord, might I, as the words " power of the keys " is expressed there, say this in regard to the Disruption Document : it is quite true that the "power of the keys" is referred to in the Confession of Faith. The Lord Chief Justice: Page 8, between C and D ? Mr Johnston : No; it is page 10, my Lord, at D; in dealing with "Church Censures," after having said that "the Lord Jesus as King and Head of His Church hath therein appointed a govern ment in the hand of Church officers, dis- MR JOHNSTON'S SPEECH tinct from the civil magistrate," it con tinues : "To these officers the keys of the kingdom of heaven are committed by virtue whereof they have power respec tively to retain and remit sins, to shut that kingdom against the impenitent both by the word and censures ; and to open it unto penitent sinners, by the ministry of the Gospel and by absolution from censures, as occasion shall require." That undoubtedly is the understanding of what the meaning of "the power of the keys" is in its usual sense — the power of bind ing and loosing ; but I think if your Lord ships look at the various uses of the words " the power of the keys " in this Declara tion and Protest, you will find that in the minds of the writers it had a wider sense, not merely that more technical sense as it would have in the Roman Catholic Church, but the ecclesiastical power which they themselves define as "comprehending as the objects of it, the Preaching of the Word, administration of the Sacraments, correction of manners, the admission of the office-bearers of the Church to their offices, their suspension and deprivation therefrom, the infliction and removal of Church censures, and generally, the whole 'power of the keys.'" The Lord Chancellor : I think you might find certainly in the theology of the times with which we are dealing now that the "power of the keys" meant simply spiritual authority. Mr Johnston : That is what it meant. Lord James of Hereford : Then it becomes a question what is the meaning of the word "authority." Mr Johnston : In taking the two documents together the claim is the spiritual power of dealing just with those parts of the Church's relations which they define here as preaching, administra tion, and discipline — putting it shortly. The Lord Chancellor : I think that would be a little too short, but I do not know for your purposes that it is very important; the truth is in most of the theological writings you find that the "sword" represents the temporal power, and the "keys" represents the spiritual power; I think you will find almost always those distinctions observed. Mr Johnston : My only reason for 221 referring to this is that the Confession of Faith gives the limited and more technical sense of " the power of the keys," whereas I think these Disruption Articles give the wider. Now, my Lord, passing from that which I think unquestionably is based upon the establishment principle, I would simply refer to the latter end of that document at the bottom of page 40, where they claim " that it shall be free to the members of this Church, or their successors, at any time hereafter, when there shall be a prospect of obtaining justice, to claim the restitution of all such civil rights and privileges and tem poral benefits and endowments, as for the present they may be compelled to yield up, in order to preserve to their office bearers the free exercise of their spiritual government, and discipline, and to their people the liberties, of which respectively it has been attempted, so contrary to law and justice, to deprive them." Now that certainly Lord Davey : What page is that ? Mr Johnston : Letter G on page 40, and the top of page 41 ; that cannot be read as anything but founding their position still upon the establishment principle, which if they could get justice in the matter of their spiritual demands they still maintain ; and you find the same at the bottom of page 41, a prayer that in God's " Own good time He would restore to them these benefits, the fruits of the struggles and sufferings of their fathers in times past in the same cause ; and thereafter give them grace to em ploy them more effectually than hitherto they have done." Now, my Lord, I pass from that docu ment to the next. I think I must ask your Lordships to turn to Print D, page 9. That is the Pastoral Address by a Committee of the Assembly, which is dated 25th April, a few days before the actual Disruption. It is for the purpose of calling upon them to set apart a day of Humiliation and Prayer on the 4th of May in reference to the approaching crisis ; and I shall only ask your Lord ship to look at two short passages in it ; page 11, letters D to F, where they state, after referring to the ordinary civil 222 administration : " But in addition, the civil magistrate, as one of the kings of the earth of whom Christ is Prince, is to interest himself directly in the affairs of Christ's Kingdom, and to act as the guardian of religion in the land. In that capacity he has many important functions to discharge in reference to the Church ; and he has authority, as the minister of God for good, to take measures for pre serving peace and order in the Church, — for reforming abuses and remedying grievances, — for guarding purity of doc trine and discipline, and for supplying the means of grace, in efficiency and abundance, through the ministrations of the Church, to the people under his dominion." Now, that appears to me to contain not merely the establishment but the endowment principle. Lord James of Hereford : Who are the authors of this document ? Mr Johnston : The authors of this document, my Lord, are the " Special Commission of the General Assembly of the Church of Scotland authorised thereto" — a Pastoral Address to their Church for the purpose of calling upon them with a view to the ensuing crisis — a call upon them to appoint a day for fasting and prayer. Lord James of Hereford : This is still the Established Church ? Mr Johnston : Still the Established Church. Lord Davy : I did not get the refer ence to that document, Mr Johnston. Mr Johnston : If your Lordship will look at the last Print, Print D, page 11, is where I was reading from betWf en letters D and F. The only other short passage which I refer to there is on page 13, at letter D : " But it now appears that au entirely different construction is put upon the terms of the Church's establish ment by the civil authorities of this king dom, and that she is not only to be prevented from giving effect to her funda mental principle, 'That no pastor be intruded into any parish contrary to the will of the congregation,' but is to be held subject to the interference of the civil courts, in the exercise of her most sacred spiritual functions connected with the preaching of the Word, the adminis- HOUSE OF LORDS tration of sacraments, the correction of manners, and other matters expressly specified in the Statutes of the realm as exclusively under her control." For my purpose I think that reference to the Statute — " expressly specified in the Statutes of the realm as exclusively under her control " — is an important definition of where the Church stood in its view upon that subject. I am taking these docu ments chronologically ; that is on the 25th April 1843, and then on the 18th May following the Day of Fasting was held, and on the 18th May, at page 43 of Print A, you have the Protest on Disrup tion. This document is the first docu ment other than documents by adoption, and is the first express document of the Free Church, and you will notice that it is headed and that it is dated from Edin burgh : "At Edinburgh, and within a large Hall at Canonmills, the 18th day of May 1843 years, Se.-sion 1." It is the first Act of the first session of the Free Assembly gathering, not in the Established Assembly buildings, but " within a large Hall at Canonmills, and having appointed the Reverend Dr Chalmers to be their Moderator, the Protest above mentioned was produced and read and thereafter ordered to be recorded as follows : — We, the undersigned Ministers and Elders, chosen as Commissioners to the General Assembly of the Church of Scotland in dicted to meet this day, but precluded from holding the said Assembly by reason of the circumstances hereinafter set forth, in consequence of which a Free Assembly of the Church of Scotland, in accordance with the laws and constitution of the said Church, cannot at this time be holden." I think, my Lord, that makes it quite clear that those who were parties to that were prior to that date members of the Established General Assembly. Then it proceeds : " Considering that the Legis lature, by their rejection of the Claim of Right," "have recognised and fixed the conditions of the Church Establishment as henceforth to subsist in Scotland, to be such as these have been pronounced and declared by the said Civil Courts in their several recent decisions, in regard to matters spiritual and ecclesiastical, where by it has been held inter alia " — and then MR JOHNSTON'S SPEECH there are some eight different heads hav- with God's Word, in reference to the ing reference to the various decisions which have been pronounced. The Lord Chancellor : All of them having reference to the intruding upon them of pastors against the will of the congregation ? Mr Johnston : Yes : I cannot better summarise them than by reading two lines above letter E at page 44 : "and in particular in the admission to the office of the holy ministry, and the constitution oi the pastoral relation, and that they are subject to be compelled to intrude minis ters " ; and they are all in the same direction. Now, if your Lordships will turn on to page 46, letter F : " And Farther Considering, that in these circum stances, a Free Assembly of the Church of Scotland, by law established, cannot at this time be holden, and that an assembly, in accordance with the fundamental principles of the Church, cannot be con stituted in connection with the State without violating the conditions which must now, since the rejection by the Legislature of the Church's Claim of Right, be held to be the conditions of the Establishment: And Considering that, while heretofore as members of Church Judicatories ratified by law and recognised by the Constitution of the kingdom, we held ourselves entitled and bound to exercise and maintain the jurisdiction vested in these judicatories with the sanction of the Constitution, notwith standing the decrees as to matters spiritual and ecclesiastical of the Civil Courts, because we could not see that the State had required submission thereto as a condition of the Establishment" (a little lower down) " but we are now constrained to acknowledge it to be the mind and will of the State, as recently declared, that such submission should and does form a condition of the Establishment, and of the possession of the benefits thereof " ; and then they protest : " We, therefore, the Ministers and Elders foresaid," " Do protest, that the conditions foresaid, while we deem them contrary to and subversive of the settlement of Church government effected at the Revolution, and solemnly guaranteed by the Act of Security and Treaty of Union are also at variance 223 opposition to the doctrines and fundamental principles of the Church of Scotland, inconsistent with the freedom essential to the right consti tution of a Church of Christ, and incom patible with the government which He, as the Head of His Church, hath therein appointed distinct from the Civil magis trate : And we farther Protest, that any Assembly constituted in submission to the conditions now declared to be law, and under the civil coercion which has been brought to bear on the election of Commissioners to the Assembly this day appointed to have been holden, and on the Commissioners chosen thereto, is not and shall not be deemed a lawful and Free Assembly of the Church of Scotland according to the original and fundamental principles thereof; and that the Claim, Declaration, and Protest of the General Assembly " (now there you have their adoption of that document) " which con vened at Edinburgh in May 1842, as the Act of a free and lawful Assembly of the said Church, shall be holden as setting forth the true constitution of the said Church; and that the said Claim, along with the laws of the Church now subsist ing, shall in no wise be affected by whatsoever acts and proceedings of any Assembly constituted under the con ditions now declared to be the law, and in submission to the coercion now imposed on the establishment." Now that clearly lays down as the constitution of this new Church the constitution of the said Church as it is set forth and interpreted in the document of 1842 : "and that the said Document, along with the laws of the Church now subsisting, shall in nowise be affected by whatsoever acts and proceedings of any Assembly constituted under the conditions now declared to be the law, and in sub mission to the coercion now imposed upon the Establishment." Now, my Lord, the next part is the portion of this document where you find clearly imbedded the establishment principle — " And finally while firmly asserting the right and duty " — and again I emphasise the word " duty " as impor tant, as well as " right " — " of the civil magistrate to maintain and support an HOUSE OF LORDS religion in accordance stood " means in this document as under- 224 establishment of with God's Word, and reserving to our selves and our successors to strive by all lawful means, as opportunity shall in God's good Providence be offered, to secure the performance of this duty agreeably to the Scriptures, and in imple ment of the statutes of the Kingdom of Scotland, and the obligations of the Treaty of Union as understood by us and our ancestors, but acknowledging that we do not hold ourselves at liberty to retain the benefits of the establishment while we cannot comply with the conditions now to be deemed thereto attached — We Protest, that, in the circumstances in which we are placed, it is and shall be lawful for us, and such other Com missioners chosen to the Assembly appointed to have been this day holden as may concur with us, to withdraw to a separate place of meeting, for the purpose of taking steps for ourselves and all who adhere to us — maintaining with us the Confession of Faith and Standards of the Church of Scotland, as heretofore under stood — for separating in an orderly way from the Establishment; and thereupon adopting such measures as may be com petent to us in humble dependence on God's Grace and the aid of the Holy Spirit, for the advancement of His Glory." Now, that last passage is not only an implied, but it is a most express assertion of the Establishment principle. I do not think I need do more than read it, because its own words are so entirely clear. These latter words between E and F, — ¦ "maintaining with us the Confession of Faith and Standards of the Church of Scotland," — of course need interpretation to this extent, that one must know what the Confession of Faith is and what the Standards are; the Confession of Faith, there can be no question about it, is the Westminster Confession; and the Stan dards, your Lordships will find in one of the next documents I will refer to, are defined because they were the Standards which were left as the Standards of the Church at the Revolution Settlement ; but the words were much pressed upon your Lordships at the last discussion, |' as heretofore understood," and I must in justice admit that "as heretofore under stood by the writers of this document and as set forth by them in the Claim, Declaration, and Protest of 1842, and therefore as importing something into the constitution of the Established Church which the Established Church itself might not admit; but that that something is a very limited something and not the extreme independence for which my learned friend contends ; that it is that limited something which you find, namely, the non-intrusion principleand thespiritual jurisdiction in the matters which they there define to which this phrase refers. Now, my Lord, that is their protest, and I can very shortly, I think, pass over — the next document chronologically is two days afterwards at Print B, page 22 — that short minute at page 22 from the Proceedings of the General Assembly. I only refer to it because it is the authority for the next document, which is an im portant document. At Print B, page 22, you have the minute of the 20th May, in which it was agreed by the Assembly " that a ' Communication ' be addressed, in the name of this Assembly, to the members and friends of the Church throughout the land, giving a brief account of the proceedings of Thursday last, together with a list of the Protesting Commissioners, Ministers, and Elders; and also of the Ministers who have con curred in the Protest; and that the Clerks, with the assistance of Mr Jaffray, be instructed to prepare and publish the communication with the least possible delay. It was farther agreed that the account of these proceedings should contain the address delivered by the Moderator at theop ening of this Assembly." Lord James of Hereford : I suppose "Thursday last" without doubt is the 18th? Mr Johnston : It is the 18th. Now, you see the doings of the 18th were the doings of the majority of the members of the former Assembly ; they were actings of these Ministers and Elders who separated themselves from the Assembly ; they had not yet carried with them the body of the Church— the adherents of a Church. This communication is very much, as I think I said before, of the nature of the prospectus of the association addressed to the Church at large, for the purpose of drawing adherents from the individual members of the Church to these Ministers and Elders who had so disrupted. Now the importance of that is, that when one comes at Print C, page 6, to the communication which that Minute authorises, you have under the heading of " ' The Affectionate Represen tation of the Free Church of Scotland, 1843,' issued by direction of the General Assembly of the 20th May 1843," this address : " Dearly Beloved in the Lord " — and then they set forth what has taken place. I think I may shorten the matter by not reading the first two pages, because the important part that I want to direct attention to is on pages 11 and 12. That is the Address of the Moderator — the Address delivered by the Moderator at the opening of the Assembly. You will find it begins at the bottom of page 7 : " Dr Chalmers addressed the Assembly as follows." Now, of course, when those words were uttered by Dr Chalmers, they were uttered by him in his individual capacity as Moderator of this newly con stituted Free Assembly, but when they were inserted in this document and ad dressed to the Church at large, they became by adoption the words of the Church. Now, this important passage occurs at page 11 : "By giving up your connection with the State, and thus separating yourselves from the worldly advantages of such a connection, you may be said to have withstood a great tempta tion to sin in one form ; but such is the deceitfulness of the human heart that without the heedfulness and the humility which Apostles of old so pressed upon the early converts, there is danger of being carried away by temptation in another form — and temptation, too, to the very same sin. Rather than be seduced from one of your greatest principles, you have given up one earthly dependence ; but let principle have its perfect work, and have a care lest you be tempted from even the best of your principles " (I think " best " must be 'least' really) " by the promises and the allurements of another earthly dependence. Rather than compromise the authority of Christ over the affairs of MR JOHNSTON'S SPEECH His own Church countenance of 225 you have forfeited the men in power, that is, who have the power of this world's authority on their side. Beware of com promising another of your doctrines or articles of faith, and in the defence of which the Church of Scotland did lately signalise herself over the authority of Christ." " Over " must be " under." The Lord Chancellor : I have a note here that in the former argument it was admitted that that word must be " upon " — or " under." Mr Johnston : "Under," I think it was. Lord Lindley : I have it noted " under." The Lord Chancellor : I have it " upon " or " under." Mr Johnston : It is certainly not " over the authority of Christ," over the kings ; you see the word comes again — it is clearly a misprint. " Over the kings and government of earth, and the counter part of this government, to uphold religion in the world — beware, we say, of making any compromise or surrender of this your other principle, and this too to gain the countenance of those who may still be called men in power, that is, who have the power if not the authority and office, have at least the power of numbers on their side. This may be termed a less principle than the other, of inferior consideration in itself, and inferior consequence to the vital or spiritual well-being of Christ's Church upon earth. But let us not forget what the Bible says of those who break even the least of the Commandments, that they shall be called least in the Kingdom of Heaven. The men who stand opposed to us on this second, or, as many choose to term it, this secondary question might, with all the hay and stubble, and wood of this, and it may be of other errors, be reposing on the like precious foundation with our selves. They might be men with whom we differ, and yeb with whom we can agree to differ. They may be coadjutors in the great work of evangelising the people of our land — brethren with whom we can hold sweet and profitable counsel on the capita fidei or weightier matters of the law, having one faith, and one Lord, and one baptism. But we shall not, even for their friendship, violate the entireness 226 HOUSE OF LORDS of our principles, or make surrender of the very least of them. It is not for those ministers of Christ whom I am now addressing, and who, on the altar of principle, have just laid down their all — ¦ this quitting, and for the sake of one principle, the friendship of men who have the power of office — it is not for them to give up another principle for the sake of courting the friendship of men who have the power of numbers. We must not thus transfer ourselves from one earthly dependence to another. We have no other dependence than God. We ac knowledge the authority, and will submit to the influence of no other guide, than His Eternal and unalterable Truth as seen in the light of our own consciences. To be more plain, let me be more particular. The Voluntaries mistake us if they conceive us to be Voluntaries. We hold by the duty of government to give of their resources and their means for the maintenance of a Gospel ministry in the land : and we pray that their eyes may be opened, so as that they may learn how to aquit themselves as the protectors of the Church, and not as its corrupters or its tyrants. We pray that the sin of Uzziah into which they have fallen may be forgiven them ; and that those days of light and blessedness may speedily arrive when kings shall be the nursing-fathers and queens the nurs ing-mothers of our Zion. In a word, we hold that every part and every function of a commonwealth should be leavened with Christianity, and that every func tionary, from the highest to the lowest, should in their respective spheres, do aU that lies in them to countenance and up hold it. That is to say, though we quit the Establishment, we go out on the Establishment principle — we quit a vitiated Establishment, but would rejoice in re turning to a pure one. To express it otherwise, we are the advocates for a national recognition and a national sup port of religion, and we are not Volun taries." And hence, my Lord, they do not join either of the Voluntary Churches which then existed, but they originate one of their own. Now, my Lord, I again say if those words had been the words of the Moderator addressing the Assembly as an individual I could not have referred to them, but they are no longer his ; they are adopted by this Church as the basis upon which they present their proposed origination of a new Church to their members, and therefore I am entitled to refer to it as the voice not of the one in dividual but of the Church, and it could not — although the passage is a long one — more emphatically state what their position is than it does in the last two lines : " we are the advocates for a national recognition and a national support of religion, and we are not Voluntaries." Now, my Lord, that is followed by Print B, page 22 ; at the bottom of that same page from which I have already read, there is a resolution of the Assembly two days after this again, the 22nd May, re solving the course to be taken: "That this Assembly approve of the report " as to the course, " and following out the Claim, Declaration, and Protest," " do now, for themselves and all who adhere to them, separate from the Establishment ; protesting that, in doctrine, polity, and discipline, they truly represent the Church of their fathers, whose testimony in be half of the Crown Rights of the Redeemer as King in Zion, and Prince of the Kings of the Earth, they firmly purpose at ah hazards, and at whatever sacrifice, still to maintain ; and protesting that hence forward they are not, and shall not be subject in any respect to the ecclesiastical judicatories presently established by law in Scotland, but that they are and shall be free to perform their functions as pastors and elders towards their respective con gregations " ; and they reappointed a com mittee " with instructions to prepare the draft of an Act and Deed, to be adopted and subscribed at as early a period as possible during the subsequent sittings of this Assembly, renouncing and demitting the status, rights and privileges held by virtue of the establishment, the said draft to be reported." Now, the Deed which was in terms of that resolution prepared is at page 49 of Print A ; it bears to be "an Act of Separation and Deed of Demission by ministers." I shall only read a very short passage from it, the last line of page 49: "Declaring, that they hereby in no degree abandon or impair the rights belonging to them"; and just MR JOHNSTON'S SPEECH above letter B: "and that they are and essential standard shall be free to exercise government and discipline in their in tneir several judicatories, separate from the Establishment, ac cording to God's Word, and the Constitu tion and Standards of the Church of Scotland as heretofore understood-" Now note, my Lords, it is " to exercise govern ment and discipline in their several judi catories," " according to the Constitution and Standards of the Church of Scotland as heretofore understood." The following Deed is just the same thing, in other words applicable to elders but not to ministers. Then at page 52 The Lord Chancellor : I do not quite follow what you mean: "Deed of Demission by Elders." Mr Johnston : It is the similar deed applicable to the situation of elders. The Lord Chancellor : To the situa tion of elders ; now I understand. Mr Johnston -. It is two different offices, but it is slightly differently worded. The Lord Chancellor : It is only that I did not understand what you meant. Mr Johnston : It is the same in effect. Then, my Lord, at page 53, beginning at page 52 you have another Act of the same Assembly, the only important part of which is the last five lines of page 53 where the Assembly "farther enjoin the several Presbyteries to record the Protest taken on the 18th May, together with the Act of Separation and Deed of Demission at the beginning of their Presbyteries books as the ground and warrant of their proceedings," if it were necessary, making it more emphatic what is the constitution upon which they start. Then, my Lord, I think I may say that the Church is then founded ; its constitution is concluded, and any subsequent documents which I refer to are referred to on the ground as stated in Article 10 of our Condescen dence where we say : "The foresaid con temporaneous documents, namely the Act of Assembly of 1846 and the Act of Assembly of 1851 — the said constituting documents recognise as an essential prin ciple of the Free Church, the assertion of the duty of the state to maintain and support the Establishment, and as an 227 of their belief the Westminster Confession." I only refer to them therefore as contemporaneous docu ments, showing that the Church was quite consistent in the interpretation which I place upon the documents themselves. My Lord, the first of those documents is only a few days afterwards, at page 23 of Print B ; the Assembly, ten days after the disruption, appoint a day of thanks giving and a Pastoral Address to be delivered, and the Pastoral Address con tains some further passages of the same nature. The I ord Chancellor: I think the passage you quoted before, if I remember right, is between C and D on page 25. Mr Johnston : Yes, my Lord ; your Lordship is quite right ; pages 24 to 25 are the important pages; they set forth (and I wanted to avoid reading them if possible) very much in consistency with what I have already said : " And in like manner in regard to the State" (it is above letter B on page 25) " the same was held to be true on the same grounds, and to the very same extent in reference to its secular sovereignty. It was main tained that, as the spiritual liberties of the Church, bequeathed to her by her Divine Head, were entirely beyond the control of the State, so, upon the other hand, the State held directly and exclusively from God, and was entitled and bound to exercise, under its responsibility to Him alone, its entire secular sovereignty, in cluding therein whatever it was com petent for, or binding upon the State to do about sacred things, or in relation to the Church as, for example, endowing and establishing the Church, and fixing the terms and conditions of that establish ment.'' The Lord Chancellor: I may have interrupted you because there is a passage not without its importance on page 24 between E and F. Mr Johnston : " It was ever held by her, indeed, that the Church and the State, being equally ordinances of God, and having certain common objects, con nected with His Glory and the social welfare, might and ought to unite in a joint acknowledgement of Christ, and in the employment of the means and re- 228 HOUSE OF LORDS sources belonging to them respectively, for the advancement of His Cause. But while the Church in this manner might lend her services to the State, and the State give its support to the Church, it was ever held as a fundamental principle that each still remained, and ought, under all circumstances to remain, supreme in its own sphere, and independent of the other. On the one hand, the Church having received her powers of internal spiritual government directly from her Divine Head, it was held that she must herself at all times exercise the whole of it, under a sacred and inviolable responsi bility to Him alone, so as to have no power to fetter herself, by a connection with the State or otherwise, in the exer cise of her spiritual functions." The Lord Chancellor: And then follows the passage you have already read. Mr Johnston : Yes, my Lord, and of course the whole thing depends upon the definition of what are her spiritual functions, and for that I refer to the Claim, Declaration, and Protest. Now, my Lord, at that stage I ought to make a very brief reference to the series of documents which are found in Print D at page 18. They are of the most immediately contemporaneous nature, be cause they are addresses of sympathy from other — I do not know if I say Dissenting Churches. The Lord Chancellor: Religious bodies will do for you, will it not ? Mr Johnston: Religious bodies, not established; I wanted to get a short phrase, and the answers of the General Assembly to them. Now all of these bodies were voluntary bodies ; they were from all parts of the country, many of them from England, and they all wel comed the action of the Free Church as an assertion of their own voluntary prin ciples as siding with them, and they are all carefully disabused of that idea. They are at Print D, page 18. I will read just one passage at page 21, letters C, D (I merely read this as an example of what the others are), in reply to the Congrega tional Church in North WTales : " But you misapprehend the nature of the move ment which we have made, in supposing that we have in the least degree altered our views respecting the lawfulness and the desirableness of a right connection between church and state. We regard our late separation from the Establish ment as a testimony before all the world to the Scriptural character of such a con nection " ; and to the same effect at page 25, letters D to F, in addressing the Staf fordshire Congregational Union : they " are exceedingly sorry that they cannot sympathise with their brethren of the Union in the wish which they have ex pressed, that the Free Church of Scotland may 'unite with the Protestant Dis senters of Britain and Ireland in that arduous struggle which is now going on against every form of alliance between the civil and the ecclesiastical power.' History and experience have convinced us that there is a form of alliance which is at once practicable, and agreeable to Scrip ture, and highly beneficial. We have re nounced the temporal advantages of the Scottish Ecclesiastical Establishment, not in consequence of any alteration in our views on this subject, but because the civil courts had violated our constitution, and Parliament, under the guidance of an infatuated government, had sanctioned that violation." My Lord, that, I think, fully justifies the first view presented by the Lord Ordinary, Lord Low, who quite admits that, at any rate at this date, Establishment principles were the avowed principles of the Church, and that it would not have been possible for them to have then at that date united with any body which held non-establishing or disestab lishment principles. Now, my Lord, the next document to which it is my duty to refer, because I must take them chronologically, is a document which has had great weight in the mind of the Lord Ordinary, and I think has also influenced the Judges in the Inner House, and that is the Model Trust Deed. It is printed at A, page 56, but before touching upon its terms I think, my Lord, it is right that I should give your Lordship some knowledge of its genesis, because it does not arise in the same way as the documents which form the foundation of the constitution of the Church; and accordingly I must take MR JOHNSTON'S SPEECH 229 of its history from the meeting to be called for the purpose, with power to issue the deed and to recommend what we know Minutes of the Assembly. In the last Print, Print D, at page 14 — we found some difficulty in getting at the history — but at pages 14 to 17 you have the Minute of the Special Commission re specting the vesting of Church property in Interim Trustees, and at the top of page 15 you have in the form of a Feu- Charter, which was as a temporary measure proposed that it should in clude those words on page 15: "In Trust, for the use and behoof of the Body composed of the Ministers, Elders, and Members, who have recently, abandoned the Established Church of Scotland, and who constitute a religious community, under the name of the Free Church, or the Free Protesting Church of Scotland, or under whatever other name or title may be assumed by them." The Lord Chief Justice : Would you tell me, Mr Johnston, was this to deal with the property which Dr Chalmers had collected between May and November in that year ? Mr Johnston : This merely, 1 take it, had to do simply with Church Sites. The Lord Chief Justice : Sites only 1 Mr Johnston : Yes ; and of course the Model Trust Deed The Lord Chief Justice: Not for Church property. Mr Johnston : The Model Trust Deed is a feudal conveyance and has only to do with the sites of Churches and similar property. That is the first trust, but it is only of a temporary nature. At Print B, page 35, you get, I think, the commence ment of the proceedings which led up to the more elaborate Model Trust Deed ; at letter C: "The General Assembly did again convene, and being constituted with devotional exercises, the minutes of last diet were read and approved of. The Assembly having called for the report of the Committee appointed to consider the whole matter of the trust deed, the same was given in and read by Mr Begg, the convener. The General Assembly approve of and adopt the report, and remit to the law committee to prepare a deed in con formity with the principles thereof, and to report to the commission either at its stated meeting in August, or at a special its adoption to the several congregations of the Church." At Print A, page 54, you have again the General Assembly dealing with that Report: "The Assembly approve of the same, and enacted, and do hereby enact, in terms of the said Report, the tenor whereof follows, viz., Your Committee have had several meetings and deliberated very fully on the whole subject remitted to them, and they unanimously approve of and recommend the Assembly to adopt the third or inter mediate plan recommended by the Special Commission of last Assembly" — (now I read this because it is the only thing that the Assembly itself does) — "That the property of each place of worship be vested in Trustees chosen by the con gregation, to be held for the congregation, in communion with the Free Church, as attested to be so by the Moderator and Clerk of the General Assembly; that Church to be identified as in the Model Trust Deed; the management of the property to be in the Deacons' Court, — all, as nearly as possible, as under the first plan. That in the event of a certain proportion of the Ministers and Elders, members of the Church Courts, separating from the general body, and claiming still to be the true bond fide representatives of the original protestors of 1843, and to be carrying out the objects of the Protest more faithfully than the majority, then, whatever the Courts of law may deter mine as to which of the contending parties is to be held to be the Free Church, it shall be competent for each congregation, by a majority of its mem bers in full communion, to decide that question for itself, so far as the possession and use of their place of worship and other property are concerned, with or without ' compensation to the minority, — such compensation to be settled by arbitra tion.' It being understood that a dis ruption of the Church in the sense referred to in this extract shall consist only in the simultaneous departure " The Lord Chief-Justice : Separation ? Is it departure ? Mr Johnston : " Simultaneous separa tion " — (I read it wrong, my Lord) — that is, 230 the separation from the general body at once, or within a period not exceeding three months, of at least one-third of the ordained ministers of the Church, having the charge of congregations in Scotland ; and that such separation shall take place only on the professed grounds stated in the said deliverance of the Commission of Assembly ; and it being further under stood." Now the Assembly in that Resolution provides for nothing but a congregation in communion with the Free Church, but it does provide for this — for a possible severance in that Church, but severance upon the footing of the Protest of 1843, and merely upon the view that one portion maintained more emphatically than otherwise those principles. Now that is included in the Model Trust Deed, but there are some other matters also ; at Print B, page 35, the Assembly having left it to this Commission, which was a Law Commission, to provide, pages 35 and 36 show what they do. At page 36, letter C, of Print B: "The Commission having called for the report of the Law Committee relative to the Trust Deed, Mr Dunlop, Convener of the Committee, submitted a draft of the pro posed Deed, which, having been con sidered, was unanimously approved of, and recommended for adoption to the several congregations of the Church. The Commission returned their cordial thanks to Mr Dunlop and the Committee for the manner in which they have dis charged the duty committed to them, and particularly to John Clerk Brodie, Esq., W.S., by whom principally the Deed was framed. The Commission further direct the Moderator to communicate their thanks to Andrew Rutherfurd, Esq., M.P., for the very efficient assistance" which he had afforded to them. Now that Resolution of the Committee approving of the Deed does not seem ever to have been before the Assembly, but the Deed was prepared notwithstanding, and has been adopted by the Church, although not definitely adopted by the Assembly. Now under those circumstances of its origin I should say that it is unquestionably a convey ancer's deed, and that its narrative cannot in any sense be held to affect the constitu tion of the Church . It is f uU of inaccuracies. HOUSE OF LORDS I need only refer to one or two of them to show how inaccurate its Preamble is. Lord James of Hereford : You said adopted by the Church and not by the Assembly : what constitutes the Church for that purpose ? Mr Johnston : It is a loose phrase, my Lord : it has been used by the Church in the sense that all the titles, as far as I know, to all the Church property, Churches and Manses The Lord Chancellor : All the pro perty has been conveyed under this Deed; that is what you mean to say. Mr Johnston : Yes. The Lord Chancellor : Anything in the Deed has not been adopted by the whole of the Assembly as correctly set ting forth either the Preamble or any thing else. Mr Johnston : That is so. Lord James of Hereford : You mean that members of the Church have used it. Mr Johnston : I will tell you exactly how it has been done ; take the Free Buccleuch Church I referred to yesterday, when it took its title it took its title to Trustees for the Trusts contained in the Model Trust Deed, which it imports into the special conveyance by reference. The Model Trust Deed was used in the first Church that was acquired, one of the Edinburgh Churches. It therefore went on to the Records of heritable property in Scotland, and in the subsequent deeds what they do is to import by reference to that original deed as recorded at a certain date the trust purposes which are em bodied in this. Lord Davey: The Trusts of each Congregational property are to be found in the original deed. Mr Johnston : That is so, my Lord ; I do not say by any means all, because a great number of them did not choose to adopt precisely the Model Trust Deed, ana framed deeds of their own, but you may say that the majority of the property is held upon the titles which import the terms of the Model Trust Deed. Lord Davey : Do you attach any im portance to the fact of its not having been formally agreed or accepted by the Assembly, but only by a Committee of the Assembly ? MR JOHNSTON'S SPEECH 2^1 Mr JOHNSTON: Yes, my Lord, I do, because the narrative of it is not historic ally accurate, and therefore Lord Davey : The narrative, but so far as the trusts are concerned we must take those to be the trusts upon which the property is held. The Lord Chancellor : The legal operation of the Deed cannot be con tested. Mr Johnston : I quite agree. I find for instance The Lord Chancellor: Generally speaking, I suppose a person would be bound by a recital in a deed, would he not ? I do not say that there might not be some circumstances questioning the universality of that proposition, but speaking generally you would say a person is bound by a recital in the deed he has executed. Mr Johnston : Certainly. Dean of Faculty: Will you read page 37 at the top ? Mr Johnston : My learned friend quite properly refers me to a passage I had forgotten in Print B, page 37. Some years afterwards, in 1851, " The Assembly appoint a Committee to revise the minutes and print the Acts of Assembly ; and the Committee are instructed to bave the Model Trust Deed printed and sent down along with the Acts of this year." There fore that may be said to be at that date an adoption of the Deed. Now, my Lord, I would refer to the Deed itself at page 56, to show the inac curacy of its statements ; as I say it is clearly not drawn by the same hand which drew the very logical and exhaustive de claration and protest, or the protest, but it makes some extremely wild assertions. Lord Davey : What page do you refer to ? Mr Johnston : The bottom of page 57 of Print A. : "whereas in the year 1560, and from that year downwards, a Re formed Presbyterian Church existed in Scotland, professing to be reformed from Popery by Presbyters exercising the functions of a Church of Christ within these realms, and, in particular, adopting and approving of a Confession of Faith and two Books of Discipline still extant under these titles." I think I may stop there because your Lordship knows how inaccurate that is, how there was no Church in 1560, and when the Church did come to exist it was not the Church which adopted and approved the Confes sion of Faith, but the State, and there are repeated references of the same kind. What the Deed does is just to carve out of the Declaration and Protest and other documents various pieces and string them together, and I would particularly at page 65 refer to a most important omis sion. If you look between letters C and D in their narrative of what was done in the protest: "and did further protest that in the circumstances in which we are placed." Now in so excerpting from the Deed they omit the very important passage at page 48 B D, which prefaces that sentence — the very important asser tion of the right and duty of the Civil Magistrate to maintain and support the Establishment; they start omitting the whole of that passage, and therefore it shows how unfair a representation of the documents which it assumes to quote it is. The Lord Chancellor : I should have thought, although I am speaking generally, that a person is bound by the recitals in a deed ; where the recital itself purports to be a recital of something else, you cannot make that accurate which, on the face of it, is inaccurate. Mr Johnston: Leaving the narra tive The Lord Chancellor : The function of the Deed was to convey the propertj', and the gentleman who drew it seemed to have rather an imperfect knowledge of the circumstances. Lord James of Hereford : You speak of the unfairness of this, but is there any motive for the unfairness ? What is the reason you suggest for any unfairness ? Mr Johnston : I could only be guess ing ; I see that it is not a fair represen tation. Lord James of Hereford : It may be inadvertence or ignorance, but unfairness looks as if it was Mr Johnston : Pardon me, I said it was an unfair representation of the deeds which it purports to narrate. Lord James of Hereford : Inaccurate. 232 Mr Johnstone : I had better use the word inaccurate rather than unfair. Lord Davey : Mr Johnston, I see here in the recital to which you took exception they speak of the Reformed Presbyterian Church adopting and approving amongst other things the two Books of Discipline. Mr Johnstone : Yes. I read that purposely, my Lord, because that is just one of the inaccuracies. Of course I shall deal with the Books of Discipline after wards, but it is more emphatic when it asserts the adoption of the Confession which your Lordship knows already was not the act of the Church. Now let me at once pass to the pur poses. The Trust purposes commence at page 68 ; they are to hold the property upon trust: "That the building or place of worship erected, or in the course of being erected, upon the ground hereby disponed, or any building or place of worship that may hereafter be built and be erected thereon, with the appurten ances thereof, shall, in all time coming, be used, occupied and enjoyed, as and for a place of religious worship, by a con gregation of the said body of Christians called the Free Church of Scotland or of any unitedbody of Christians composed of them and of such other body or bodies of Chris tians as the said Free Church of Scotland may at any time hereafter associate with themselves, under the foresaid name of the Free Church of Scotland, or under whatever name or designation they may assume, and to be made use of by such congregation occupying and enjoying the same, for the time being, in the way and manner in which, by the usages of the said body, or united body of Christians, places of religious worship may be, or are in use, to be occupied and enjoyed." Now it is contended by my learned friend, and has been adopted by the Lord Ordinary, I think, to a large extent, that the fact of the Free Church allowing to enter into a Deed of Conveyance a provision for the contingency of union is to make it part of the constitution of that Body, and that union may take place irrespective of principle as far as I can see. That the Free Church of Scotland might unite with any Body holding the same principles I could not dispute ; if a HOUSE OF LORDS Body chooses to say : " We come into the Free Church because we adopt the principles of the Free Church"; that there should be such unions could not be disputed for a moment. The Lord Chancellor: I do not quite follow that, because I should have thought it was unnecessary for that pur pose ; they would still be the Free Church of Scotland without any such provision at all would they not ? They either would or would not be, and if they would, this is unnecessary, but if they were not I do not quite see that this helps them. Mr Johnston : With deference, my Lord, it seems to me that they would be the same if they came in as individuals, but I think it might be viewed a little differently if they are coming in as a Body. I do not say that that is quite clear, but I think that distinction must have been in the minds of the members of the Commission — the distinction between individual adherents and the adherents to what is already a separate Body. Lord Davey : In one case you cited to us, I forget which it was, there was some doubt thrown upon whether the associated Body of religious worshippers or a religious association could unite with any Body. Mr Johnston -. That is so in the case of Craigie v. Marshall ; I should probably have to say something on that. Lord Davey : Do not let me interrupt you. Mr Johnston: I can give the Refer ence at once ; it is Craigie v. Marshall in Volume 12 of the Second Series, page 523. The Lord Chancellor: The Second Series of what ? Mr Johnston : Court of Session reports. Lord Lindley : Do you mean Rettie ? Mr Johnston : No, it is Dunlop really. My Lord, referring again to this passage, which is one of the sheet anchors of my learned friend's argument, I again submit that it may have been quite right for conveyancers to provide for a possi bility, but the act of the conveyancer • The Lord Chancellor : Would you forgive me for one monent ; I want to have this reference right. Did you say the Second Series of Dunlop ? Mr Johnston: The Second Series, MR JOHNSTON'S SPEECH 233 Volume 12, page 523. I am sorry to say I have lost my reference to it ; I did not intend to refer to it at present, my Lord, but I may have to say a few words about it afterwards. The Lord Chancellor : Do not inter rupt yourself ; go on. Lord James of Hereford : I am sorry to interrupt you for a moment, Mr Johnston. Could you give me a little in formation, or would it be convenient another time, — to draw the line of the limit within which you say the Free Church might unite with any other Body ; you do not, as I understand, deny its right to unite with some bodies, but of course you contest its right to unite with other Bodies. Could you draw any line between the two ? Mr Johnston : The line of principle, my Lord — identity of principle. Lord James of Hereford : Belief and doctrine as well as management. Mr Johnston: Yes. Lord James of Hereford: Their principles apply to these two Heads. Mr Johnston : I think so. Lord James of Herefrd : That is the distinction. Mr Johnston : I think that the divid ing line must be, that if they do take any other Body into themselves, they must continue to be the Free Church, under the Free Church Constitution, although they may change their name if they please, because there is nothing in the name ; they must remain the same Church under the same constitution, and those who come in to join them must adopt that con stitution and not bring into it their own. The Lord Chancellor You get into a difficulty by the use of that word " church." I do not know what you mean by the word " church " ; if you mean an associated Body of Beneficiaries under thesameTrust,Ican understand you. Mr Johnston : That is what I do mean, my Lord. The Lord Chancellor: That word "church " leads to all the confusion. Mr Johnston : I know, my Lord, and I will withdraw it and use the word Association — Association of Christians for whom property is held under certain Trusts. What they may do independ ently of property, the Courts have no con cern with, but this is a matter of property. Lord James of Hereford : Do you ask for identity of Doctrine ? Mr Johnston : Certainly, my Lord, I do, because otherwise the result would be that the Union, just as it has done in this case, would be a departure, it is either no Union at all, as I think this really is, or it is a Union which involves the Free Church in a departure from its original principles. Lord James of Hereford : You are saying very much what Lord Low said, that it is a question rather of degree and consideration whether the principles are so far apart that they cannot be united. Mr Johnston : Well, of course I shall show The Lord Chancellor : Why should you shrink from that ? Mr Johnston : I do not shrink from that at all, my Lord. I shall show your Lordship in a few minutes that if I have satisfied your Lordship that the Establish ment principle is the principle of the one, I shall certainly equally satisfy your Lord ship that the disestablishment principle is the principle of the other. Lord James of Hereford: I only want to know the lines on which we are working following your argument. Mr Johnston : That is what I am working to, my Lord. Lord Davey : If this point were estab lished, would it apply to the big action as to the property held simply for behoof of the Free Church of Scotland, or would it apply only to the congregational cases where congregations have been formed, taking this Model Trust Deed for their declaration of trust. Mr Johnston : My Lord, it would, strictly speaking, of course, as an integral part of the trust, apply only to the con gregational cases, but it has been used by my learned friends and by the Lord Ordinary to found an argument by infer ence, that because they found that pro vision there, therefore the original Free Church contemplated union, and con templated union without defining that that union could only follow upon identity of principle. They use it as an inference in the larger case. 234 My Lord, I do not know that there are any other passages that I need refer to at length in the deed except Article 9 (page 76), and Article 9 is the one which carries out the direction of the Preamble with regard to the making it possible for a third of the ministers and their congrega tions departing from the Free Church on the ground of their claiming and profess ing to hold truly and in bond fide the principles professed, but more emphati cally than those who remained. I really do not see what the object of that was, and I do not see what the bearing of it is. It has been referred to, and I therefore tell your Lordships where the passage is. Now, my Lord, that is all that the Model Trust Deed does, and with regard to it, I can only repeat again that nothing can be drawn from it except inferentially, and that an inferential reference in a convey ancing deed of this sort cannot, I submit, be held, even if you could give the words, which I do not think you can, the mean ing, to affect the constitutional documents of the Free Church. Now, my Lord, the next document Lord Davey : That is a very curious provision in 9, Mr Johnston. Mr Johnston : It is no doubt a very strange provision. Lord James of Hereford : What is it ? Mr Johnston : It begins at letter G on page 76, and occupies the next page— " Ninthly " ; it is the provision which carries out the resolution which I read at a previous stage of the Assembly, to pro vide for the possibility of " one third of the whole ordained ministers " "or any larger number of the said ordained ministers " " simultaneously, or within a consecutive period not exceeding three months " publicly claiming and profess ing " to hold truly and in bona fide the principles of the Protest of 18th May 1843," and carrying out the objects of the Protest more faithfully than the majority of the ministers of the body, or united body of Christians, and forming them selves into a separate Church, but it does not indicate the suggestion that either is in any way to depart from those prin ciples. I refer to it, my Lord, because it is another part the Lord Ordinary had dealt with. HOUSE OF LORDS Lord Davey: They are to have the property conveyed to the dissentients. Mr Johnston : To be conveyed to the third, but with compensation to those who do not choose to go with them into this, more free than the Free Church. Lord James of Hereford : It does not touch amalgamation with another Church. Mr Johnston : No. The Lord Chancellor : Furthermore, I think the view is that the contingency contemplated is not a departure from the proposed disruption, but only a question whether or not they are faithfully carry ing out — as faithfully as the others Mr Johnston: More faithfully, in fact ; they are to be the elect of the elect. The Lord Chancellor: I mean the contingency upon which disruption is to take place is not any departure from the previous traditions. Mr Johnston : That is what I want to make out. The Lord Chancellor : But the con tingency of them not faithfully carrying out what that involves. Mr Johnston : But they believe that they carry it out more faithfully than the rest. The Lord Chancellor: I do not quite see the bearing of that on the argument on either side, to say the truth. Mr Johnston : I only referred to it because the Court had referred to it, and I thought it right therefore to lay it before you. Lord Lindley : Was not some impor tance placed on the Fourth Trust by your opponents — on page 72. Mr Johnston : Yes, your Lordship is quite right, and I should have mentioned that also: "Upon further trust" (page 72, letter C), "That the said Trustees, or Trustee, acting for the time, shall at all times be subject, in the management and disposal of the said building, or place of worship, and appurtenances thereof, and whole subjects hereby disponed, and in all matters and things connected there with, to the regulation and direction of the General Assembly, for the time being, of the said body, or united body of Chris tians, and shall be liable and bound to conform to, implement, and obey, all, MR JOHNSTON'S SPEECH 235 Act, or Acts, of the of this Church, and ratified by the law in the year 1690, to be the confession of and every, the Act, or General Assembly, for the time being, of the said body, or united body, of Christians, in reference thereto." I do not think anything can be founded upon that, for this reason : it does not carry you any further in the matter of union than the first; as far as union may be legal it does not help the first clause; so far as being under the regulation and direction of the General Assembly it ean only be so, provided the regulations and directions of the General Assembly are within the constitution of the associa tion. The Lord Chancellor: I suppose we may look at the marginal note here : "Trustees to be subject in all things to the General Assembly " ; that is the marginal note. Mr Johnston : It is certainly very wide, my Lord, but I do not think that could widen the express terms of the trust purposes themselves, and that the regulation and direction of the General Assembly can only be provided these regulations and directions are within the powers of the General Assembly according to the constitution of the association. The Lord Chancellor : If ultra vires they would not be any use for that pur pose. Mr Johnston : No. May I turn now to the Deed of 1846 at page 84, the "Act anent Questions and Formula." In doing so, I would remind your Lordships that in their defences my learned friends found upon this as the constitution of the Church, as imposing upon their ministers the terms of joining the Church and there fore is the constitution of the Church. I demur to that altogether ; the constitu tion of the Church had been fixed three years previously, and this Deed was only necessary in order to adapt the Questions and Formula required of ministers in the Established Church to the circumstances of the Free Church. At print B, page 11, you find the Formula of the Established Church, and I read these first; page 11 is the Act enacting them, but the Ques tions themselves are on page 12. The first Question is : "Do you sincerely own and declare the Confession of Faith, approven by former General Assemblies 1690, to your faith ; and do you own the doctrine therein contained to be the true doctrine which you will constantly adhere to ? " (2) "Do you own and acknowledge the Presbyterian Church government of this Church, now settled by law, by kirk sessions, presbyteries, provincial synods, and general assemblies, to be the only government of this Church ; and do you engage to submit thereto, and never endeavour, directly or indirectly, the prejudice or subversion thereof ? " That is a question to be put to Elders. My Lord, I think I should refer rather to page 13, where you have what is to apply to Ministers, Probationers being intending Ministers before election and ordination : " Second : Do you sincerely own and believe the whole doctrine of the Con fession of Faith, approven by the General Assemblies of this National Church, and ratified by law in the year 1690, and frequently confirmed by divers Acts of Parliament since that time, to be the truths of God contained in the Scriptures of the Old and New Testaments: and do you own the whole doctrine therein con tained as the confession of your faith 1 " Now, my Lord, that question is, I think, entirely consistent with the statute which required, as I read yesterday, the Minister to accept the whole doctrine of the Con fession of Faith as the confession of his faith. In the following passage: "Do you sincerely own the purity of worship presently authorised and practised in this Church, and asserted in the Fifteenth Act of the General Assembly, 1707, en titled, 'Act against Innovations in the Worship of God,' and also our Pres byterian government and discipline now so happily established in this Church : and are you persuaded," etc. Lord Davey : In three the latter part applies, both to (1) and (2) : " and are you persuaded that the said doctrine, worship, discipline, and Church government." Mr Johnston : " And Church govern ment are founded upon the Holy Scrip tures and agreeable thereto." Lord Davey : It is " doctrine and worship," so that must include (2). Mr Johnston : Yes ; but do you see 236 that the doctrine is Confession of Faith ? Now, my Lord, the Formula which, after having answered the Questions, and having satisfied the Presbytery, the Probationer is called upon to sign is on page 14 : "I ... do hereby declare that I do sin cerely own and believe the whole doctrine contained in the Confession of Faith approven by the General Assemblies of this National Church, and ratified by law in the year 1690, and subsequently con firmed by divers Acts of Parliament since that time, to be the Truths of God ; and I do own the same as the confession of my faith ; as likewise, I do own the purity of worship," etc. And in the same way, where you have the adoption of ministers, you have that provided at the bottom of page 14 — a separate set of questions for them, and a separate Formula. At page 16 the Formula provides : " and I promise that, through the grace of God, I shall firmly and constantly adhere to the same ; and to the utmost of my power," etc. Now the only alteration which is made by the Free Church is, if you will look, for instance, at the Questions to be put to Elders at page 12 they omit the words, "ratified bylaw in the year 1690," in Question 1, and they omit the phrase, "now settled by law" at letter B on the same page, and the same things occur throughout, and therefore what they put to Elders you find at pages 84 and 85 of Print A : "Do you believe the Scriptures of the Old and New Testaments to be the Word of God, and the only rule of Faith and Manners ? (2) Do you sincerely own and declare the Confession of Faith, ap proven by former General Assemblies of this Church, to be the confession of your faith ; and do you own the doctrine therein contained to be the true doctrine, which you will constantly adhere to ? " Now I do not think I am concerned with whether they insert the words, "and ratified by law," in a certain year or not. What they do do is to put to them, " Do you sincerely own and declare the Con fession of Faith " " to be the confession of your faith ? " and " do you own the doctrine therein contained to be the true doctrine which you will constantly ad here to ? " I ask your Lordships' notice to HOUSE OF LORDS the doctrine of the this, because, when I come to deal with the Formula which is now adopted, which was adopted as part of the Union proceed ings, you will find a very different thing, On page 86, above letter C, if you will kindly look, it says : "Do you sincerely own and believe the whole doctrine cf the Confession of Faith, approven by the Gene ral Assemblies of this Church, to be the truths of God, contained in the Scriptures of the Old and New Testaments, and do you own the whole doctrine therein con tained as the confession of your faith ? " The word " whole " is inserted in dealing with ministers, although not apparently for some reason in dealing with Elders. Now, in dealing with ministers, Question 4, at page 86, is new : " Do you believe that the Lord Jesus Christ, as King and Head of the Church, has therein appointed a government in the hands of church- officers, distinct from, and not subordinate in its own province to, civil government, and that the Civil Magistrate does not possess jurisdiction or authoritative con trol over the regulation of the affairs of Christ's Church ; and do you approve of the general principles embodied in the Claim, Declaration and Protest adopted by the General Assembly of the Church of Scotland in 1842, and in the Protest of Ministers and Elders, Commissioners from Presbyteries to the General Assembly, read in presence of the Royal Commis sioner on 18th May 1843, as declaring the views which are sanctioned by the Word of God and the standards of this Church, with respect to the spirituality and freedom of the Church of Christ, and her subjection to Him as her only Head, and to His Word as her only standard " ? That passage (4) is the most natural and consistent addition with a view to the position taken up by the Free Church in their Protest, but carries things nothing further; it leaves them exactly as they were in their Protest. Now I do not refer to the Formula, because really the Formula contained practically the same terms, only more briefly. Now, my Lord, that Act is prefaced by a Preamble which is not in the Established Church Formula, and that Preamble is, I think, important to this question ; it is at page 84, letter G : " Whereas it has become necessary, in MR JOHNSTON'S SPEECH 237 consequence of the late change in the outward condition of the Church, to amend the Questions and Formula to be used at the licensing of probationers and the ordination of deacons, elders, and ministers respectively, the General Assembly, with consent of a majority of Presbyteries, enact and ordain that the following shall be the Questions so to be used : And considering that the Formula, to this Act subjoined, embodies the sub stance of the answers to the said questions, the Assembly appoint the same to be subscribed by all probationers of the Church before receiving licence to preach the Gospel, and by all office-bearers at the time of their admission : And the General Assembly, in passing this Act, think it right to declare that while the Church firmly maintains the same Scrip tural principles as to the duties of the nations and their rulers in reference to true religion and the Church of Christ for which she has hitherto contended, she disclaims intolerant or persecuting prin ciples, and does not regard her Confession of Faith, or any portion thereof, when fairly interpreted, as favouring intoler ance or persecution, or consider that her office-bearers by subscribing it profess any principles inconsistent with liberty of conscience and the right of private judg ment." Therefore, even in the Preamble to this Act, which my learned friends found upon as their constitution, they take care again to preface it by a declara tion of maintenance of the same Scriptural principle, which is nothing but the prin ciple of national establishment, but dis claim, whatever its meaning and whatever its effect may be, intolerant or persecuting principles, which I understand to be the right of the State to compel or persecute in order to force its views upon its people. That, I think, is a little out of order, and I shall have to refer to it again, but it will be convenient if your Lordships will for a moment look at page 164 of Print A. I am not going to argue upon it just now, but as you have had before you the formula of the Free Church, will you look at the formula of the United Church. It is now for the future to be under the United Act : "Do you sincerely own and believe the Doc trine of this Church set forth in the Confession of Faith approven by Acts of General Synods and Assemblies : do you acknowledge the said doctrine as express ing the sense in which you understand the Holy Scriptures ; and will you con stantly maintain and defend the same, and the purity of worship in accordance therewith ? " I emphasise those words, " the doctrine of this Church," which your Lordships will find have a meaning, but I merely read that ad interim. The Lord Chancellor : In my view No. 3 is extremely important. Mr Johnston : The following question : "Do you disown all Popish, Arian, Socinian, Arminian, Erastian, and other doctrines, tenets, and opinions whatsoever contrary to and inconsistent with the said doctrine of this Church ? " It says nothing about "the Confession of Faith." The Lord Chancellor : It is expressly denounced as a heresy. Mr Johnston : Might I, for the sake of reference, contrast that with the Estab lished Church similar question on page 15 of Print B : " Do you disown all Popish, Arian, Socinian, Arminian and Bourignion, and other doctrines, tenets, and opinions whatsoever, contrary to and inconsistent with the foresaid Confession of Faith " — as distinguished from " the said doctrine of this Church." Apparently our print is not quite complete, because I find that that passage which I have just read is really the third of the Articles of the Free Church also up to a certain point. Up to these words : " Contrary to and inconsistent with the aforesaid Confes sion of Faith " they adhere to the same terms of the Established Church — " incon sistent with the aforesaid Confession of Faith." It is precisely the same as you have upon page 15, letter B. The Lord Chief Justice : " Erastian " is not there. Mr Johnston : " Do you disown all Popish, Arian, Socinian, Arminian, and Bourignion, and other doctrines, tenets and opinions, whatsoever, contrary to and inconsistent with the foresaid Confession of Faith ? " The contrast that I drew was between the use of " The foresaid Confes sion of Faith " in the Established Church and in the Free Church, and the use of 2 38 HOUSE OF LORDS "The doctrine of this Church" in the United Church. The Lord Chief Justice : Where shall I find that ? Mr Johnston : The proper place to find that is in the Free Church Standards. I will hand your Lordship the Process copy No. 30. I did not desire to argue upon that as a digression, but I now turn to the document of 1851, which is the last of those documents at page 90 of Print A. That, my Lord, is a document entitled "Act and Declaration anent the Publica tion of the Subordinate Standards and other Authoritative Documents of the Free Church of Scotland. Under their Declaration and Protest, while they refer to the Standards of the Church of Scot land, they do not define them. They do so here : The General Assembly on con sidering the Report of the Committee to which this matter was referred at a previ ous diet, unanimously agreed to sanction, as they hereby sanction the publication of a volume, containing the subordinate standards and other authoritative docu ments of this Church. And with the view of directing attention to ' all the way by which the Lord has led us ' as well as to the testimony which He has honoured this Church to bear for the whole truth of God regarding His Church, and His Glory therein, the General Assembly did, and hereby do, adopt the following Act and Declaration." That Document I shall only read some passages from. It is his torical according to their view of the history of the Reformation, but it bears emphatically upon this Establishment principle as well as upon the question, what are the Standards. At the bottom of page 91 it says : " Farther, while this Church has ever held that she possesses an independent and exclusive jurisdiction or power in all ecclesiastical matters, ' which flows directly from God, and the Mediator, Jesus Christ, and is spiritual, not having a temporal head on earth but only Christ, the only King and Governor of His Church ' ; she has, at the same time, always strenuously advocated the doctrine taught in Holy Scripture, — that nations and their rulers are bound to own the truth of God, and to advance the Kingdom of His Son. And accordingly, with unfeigned thankfulness, did she acknowledge the good hand of the Lord, when, after pro longed contests with the enemies of the Reformation, — and in particular with certain parties who sought not only to uphold a form of Prelatic government in the Church, but to establish the suprem acy of the Crown in all causes, spiritual and ecclesiastical, as well as civil and temporal, — a national recognition and solemn sanction of her constitution, as it had been settled by her own authority, according to the Word of God, was at last obtained ; — first, in the Act of Parlia ment 1567, and again more completely, in the Act of Parliament 1592 — then and since regarded by her as the great con stitutional charter of her Presbyterian government and freedom." I do not care that that ignores the proceedings of 1560, because what it does do is most emphati cally to represent as part of her principles the principle of national duty — it is there termed " national " for the first time — ot recognising the Church. At page 93, letter F, we have the enumeration of what the Standards are : " Thereafter, for the better prosecution of the work on hand, and in the face of the manifest pur pose of the King and his adherents to crush it altogether, this Church, by com missioners duly named by the General Assembly, took part in the Assembly of Divines which met at Westminster in 1643. And having in view the unifor mity contemplated in the Solemn League and Covenant, she consented to adopt the Confession of Faith, Catechisms, Direc tory for Public Worship, and Form of Church Government, agreed upon by the said Assembly of Divines. These several formularies, as ratified, with certain ex planations, by divers Acts of Assembly in the years 1645, 1646, and particularly in 1647, this Church continues till this day to acknowledge as her subordinate stand ards of doctrine, worship, and govern ment ; — with this difference, however, as regards the authority ascribed to them, that while the Confession of Faith con tains the creed to which, as to a confes sion of his own faith, every office-bearer in the Church must testify in solemn form his personal adherence — and while the Catechisms, Larger and Shorter, are MR JOHNSTON'S SPEECH sanctioned as directories for catechising ; upon the Westminster — the Directory for Public Worship, the Form of Church Government and the Directory for Family Worship are of the nature of regulations, rather than of tests, — to be enforced by the Church like her other laws, but not to be imposed by sub scription upon her ministers and elders." May I ask your Lordships to note the words, " rather than of tests." The Con fession of Faith therefore is a test, and one of the questions I have to submit to your Lordships is that that test has been withdrawn, and "These documents, then, together with a practical application of the doctrine of the Confession, in the Sum of Saving Knowledge — a valuable treatise, which, though without any ex press Act of Assembly, has for ages had its place among them, have, ever since the era of the second Reformation, con stituted the authorised and authoritative symbolic books of the Church of Scotland." The word "symbolic" has its technical meaning in that relation. The Lord Chancellor : I confess I do not follow what it does mean in that connection. Mr Johnston ; I regret, my Lord, that I cannot trust my memory. I saw that it had some special meaning, but it is adopted from the German. The Lord Chancellor : The Greek word for "Creed" is aufiBoXov, no doubt, and it may be used in that sense. Mr Johnston : It may be, my Lord. I looked it up to get at the bottom of it. The Lord Chancellor: But our ordinary English use of the word sym bolic certainly would not do. Mr Johnston : It is not used in the ordinary English way. It is used, as your Lordship sees, from the original definition of " Creed." I shall endeavour to get the information. The Lord Chancellor : It is only that you are calling attention to it, and in that connection I did not understand it. Are we to substitute the word "Creed"? Mr Johnston : I think you may. May I also note that that adopts as the Standards of the Free Church, not any thing which existed before the West minster Assembly, but it bases itself 239 Assembly and the Standards which were then provided. Accordingly, whatever may historically be the position of the Books of Discipline, they do not come within the ambit of the Standards of the Free Church so defined. Lord Davey : They are older than the Westminster Confession. Mr Johnston : Yes, they are at a prior date. The Volume which was published in connection with this De claration just contains exactly those Documents which are enumerated in the passage I have read. It contains the Confession of Faith, the Two Cate chisms, The Sum of Saving Knowledge, and then it inserts the National Covenant, The Solemn League and Covenant, and then adds the Directory for Public Worship, the Form of Presbyterian Government, and the Form of Family Worship. I will now pass to page 96 of Print A, letter G. The Document proceeds with a complaint as to Parliament ignoring in 1690 the history of what was done by the Church in 1638 and onwards : " Thus, for instance, in the civil sanction then given to Presbytery, the Parliament of 1690, overlooking altogether the higher attainments of the second Reformation, went back at once to the Act 1592, and based its legislation upon that Act alone, as being the original Charter of the Presbyterian Establishment." I shall show your Lordships afterwards that the reason for ignoring the second Reforma tion, as it is called, was that everything that was done in that second Reformation had not proper Statutory Confirmation — it was at a time of rebellion. " Accord ingly, it left unrepealed the infamous ' Act Recissory ' of King Charles by which all that the Church had done, and all that the State had done for her, in the interval between 1638 and the Restoration, had been stigmatised as treasonable and rebellious. Thus, the Revolution Settlement failed in ade quately acknowledging the Lord's work," and so on. Then a little lower down on that page : " For it would be in a high degree ungrateful to overlook the signal and seasonable benefits which the 24o HOUSE Revolution Settlement really did confer upon the Church as well as upon the nation. Not only did it put an end to the cruel persecution by which the best blood of Scotland had been shed in the field, on the hill-side, and on the scaffold ; not only did it reinstate in their several parishes the pastors who had been un righteously east out in the reign of the second Charles, and set up again the platform of the Presbyterian govern ment ; but by reviving and re-enacting the Statute of 1592, the original Charter and foundation of Presbytery, it recog nized as an inalienable part of the con stitution of this country the estabhshment of the Presbyterian Church. It secured also effectually, as was then universally believed, the exclusive spiritual juris diction of the Church, and her inde pendence in spiritual matters of all civil control. And by the arrangements which it sanctioned for the filling up of vacant charges it abolished those rights of pat ronage which had been reserved in 1592, and made provision for enforcing the fundamental principle of this Church that ' no pastor shall be intruded into a congregation contrary to the will of the people.' " That shows that establishment was in the minds of the writers of this — at any rate constitutional establish ment, 1592 is the first recognition of Presbytery. As I am dealing with this Statement, it is convenient here to refer to it for another purpose. One of my learned friend's supports of his right of inde pendent legislation and of his foUowing this Union, is founded upon the Union in 1839 with the Established Church of a certain body known as The Associate Synod. This Document, however, shows that that Union was exactly what one might expect ; it was the coming into the Establishment of a Body which did not differ from the Establishment. It is narrative of this deed, but it enables me at once to get rid of that question as to the Established Church having aUowed The Associate Synod to unite with it. At letter F, page 100, it says: "Among other tokens for good as the Church humbly considered them, it may be men tioned as one of the most gratifying, that OF LORDS a beginning was made during this re forming period, of the work of re-union among the true-hearted branches of the Presbyterian Church in Scotland. Over tures towards a junction with the Church of Scotland having been made by a highly esteemed body of those whose fathers had seceded from it, and ample delibera tion having taken place on both sides, the end in view was happily and har moniously attained in the year 1839, when the General Assembly, with the consent ol the Presbyteries of the Church, passed an Act to the following effect: ' Whereas proposals have been made by the Associate Synod for a re-union with the Church of Scotland, and a considerable number of overtures have been sent at the same time to the General Assembly ' " — and then at the top of page 101 — " 'and that their ministers and elders do firmly adhere to the Westminster Confession of Faith, the Larger and Shorter Catechisms and other standards of our Church ' " — this is a document of the Established Church, of course — " ' and whereas the members of the Associate Synod do heartily concur with us in holding the great principle of an ecclesiastical estab lishment, and the duty of acknowledging God in our national as well as our in dividual capacity; and we on the other hand, do heartily concur with the members of the Associate Synod in confessing the great obligation under which we lie to our forefathers in the year 1638, and several years of that century immediately following, and the duty, in particular circumstances, of uniting together in public solemn engagement in defence of the Church and its doctrine, discipline, and form of worship and government : and whereas our brethren of the Associate Synod have declared their willingness in the event of a re-union to submit to aU the laws and judicatories of this Church, reserving only to themselves the right which the members of the Established Church eujoy of endeavouring to correct, in a lawful manner, what may appear to them to be faulty in its constitution and government, — the General Assembly with the consent of the Presbyteries of this Church, enact and ordain, that aU the ministers of the Associate Synod, MR JOHNSTON'S SPEECH and their congregations in Scotland, desirous of being admitted into connec tion and full communion with the Church of Scotland, be received accordingly.' This step was hailed with lively satis faction by the supporters of the old hereditary principles of the Scottish Reformation." I do not think my learned friend can take very much from that Union, because, as you see, the Associate Synod accept emphatically the Westminster Confession and the other Standards of the Established Church, and heartily concur with the Established Church in the great principle of Ecclesi astical establishment, and the duty of acknowledging God nationally as well as individually, the real fact of the position of the Associate Synod having been that it held these things even rather higher than the Establishment did itself. It maintained all these, but in addition it had severed itself from the original body on the question of the national duty of covenanting. The Lord Chief- Justice : When was that? Mr Johnston : As far back as 1733, my Lord. The real difference of opinion had been the continuing obligation of the National Covenant. Of course, it might have been quite illegal, — and I think it comes under the Judgments in some of the cases — for the General Assembly of the Established Church to recognise these congregations as congregations, and to give these ministers seats in their As sembly ; but to allow them to enter and unite with the Established Church and to accept them as Members of it, there could be no objection to. That leads me to the last passage at page 103, just below letter B, in which they emphatically assert: "Holding firmly to the last, as she still holds, and, through God's grace, will ever hold, that it is the duty of civil rulers to recognise the truth of God, according to His Word, and to promote and support the kingdom of Christ, with out assuming any jurisdiction in it, or any power over it ; and deeply sensible, more over, of the advantages resulting to the community at large, and especially to its most destitute portions, from the public endowment of pastoral charges among 241 them : this Church could not contemplate without anxiety and alarm, the prospect of losing, for herself, important means of general usefulness, — leaving the whole machinery of the Establishment in the hands of parties who could retain it only by the sacrifice of her fundamental prin ciples, — and seeing large masses of the people deprived of the advantage of having the services of a gospel ministry provided for them independently of their own resources. But her path was made plain before her." That I have read as a document sent out along with her Standards to the Church at large so soon as eight years after the Disruption, and I think I am entitled to it as confirming the view that I have represented of the intention of the Church in those Deeds. I do not think that I need make any further reference to these documents. I shall only say that in 1853 there was a proposal by some members to issue to the Church a Statement of the Principles of the Church. At page 118 of Print A, " The General Assembly having resumed the consideration of the overtures on the Principles of the Church, did, and hereby do, resolve as follows : — 1. That this Church, maintains, unaltered and un- compromised, the principles set forth in the Claim, Declaration, and Protest of 1842, and the Protest of 1843; relative to the lawfulness and obligation of a Scriptural alliance between the Church of Christ and the State, and the conditions upon which such an alliance ought to be regulated, — as well as also the position which, in the maintenance of these prin ciples, the Church was called upon to take in 1842 and 1843, as a Church protesting against invasions of her just and constitutional rights, and demanding redress of the wrongs thus inflicted. 2. That while, in pursuance of the righteous protest and demand aforesaid, it is ' free to the members of this Church, or their successors, at any time,' as the Claim of Right asserts, ' when there shall be a prospect of obtaining justice, to claim restitution of all such civil rights and privileges, and temporal benefits and endowments as ' they ' were then com pelled to yield up,' — there is not any present call to take any such step in Q 242 HOUSE that direction, as would imply renewed negotiations with statesmen, or renewed application to the Legislature. 3. That is the duty of the Church, all the more on this account, to adopt measures for keeping before the minds of the people, and especially of the rising generation, the principles which this Church holds, and the position which she occupies as the Free Protesting Church of Scotland. 4. That the Committee be appointed to draw up a popular summary, in the narrative form, of the principles and contendings of the Church of Scotland from the earliest times to the present, adapted to the purpose indicated in the previous Resolution, and to report progress to the next General Assembly." There is some thing similar in 1857, and I think I may refer, in Print D, to page 28 as an in stance of how the Church at the end of 1843 and beginning of 1844 dealt with the case of the Rev. P. Hately Waddell. This gentleman and certain of his con gregation petitioned the Presbytery of Ayr in the following terms : "That your Petitioners are persuaded both by history and by present experience, that the con nection of a Christian Church with the State is dangerous and fatal to the cause of true, vigorous, and undefiled religion," and therefore they pray, " That it may please your venerable Court to take into consideration the above points, and (if it seem meet), in accordance with the Spirit, and the tenor thereof, solemnly and publicly to repudiate and renounce not only the principle upon which the Church of Scotland is presently established, but also the general principle of Civil legis lature interference for the establishment of religion in any shape, or under any pretence whatsoever." That is the Peti tion, and it is remitted by the Presbytery to the Assembly, and at page 33 it states : " The Assembly having resumed, took up a petition by certain persons professing to be members and adherents of the Free Congregation at Girvan, transmitted to them through their Committee of Bills. The said petition having been read, the Assembly refuse to entertain it, and remit to the Presbytery of Ayr, with instruc tions to enquire into the circumstances in which the petition originated and to do OF LORDS in the matter as they shall see cause." The result is that Mr Hately Waddell is, I may say, ejected from the Church. That is just a specimen of their dealing in this instance within six months of the Disruption, and it is just on the same lines as these contemporary documents to which 1 have just referred. I may now shortly state to your Lord ships that so early as 1864 there was a certain amount of movement amongst certain members of the Church for union — that is 21 years after the starting oi the Free Church. I would remind your Lordships that the United Presbyterian Church was formed in 1847. When the Free Church was about 21 years old, a certain movement did begin among cer tain members in favour of the Union which has ultimately been concluded. At Print B, page 48, you get the first germs of this Union question. The proposals as to Union went on for a few years at that time, but were ultimately suspended and were resumed again in 1896. I give that merely for the date, because I shall after wards deal with this as showing the difference between the views of the two parties. Before doing so it is right I should let your Lordships know what constituted the United Presbyterian Church, the other Uniting Body. The component elements of the United Presby terian Church were the Relief Church which went out from the Establishment in 1761. It went out on the question of the abuse of patronage. The cause of the split was an extravagant abuse in a particular case of patronage, but at the same time it adhered to the doctrine, discipline and government of the Estab lished Church according to the West minster Confession; but there was no doubt, I think, from the case of Smith v. Galbraith which arose connected with it (reported in 15 Shaw, page 808, and also in 5 Dunlop, page 565), that it had, by the time the Free Church started, advanced toward Voluntaryism at the date of the Disruption in 1843. It went out upon patronage only, independent of any ques tion of Voluntaryism. The other element of the United Presbyterian Church was the United Secession which was made up of certain parts of the Secession Church MR JOHNSTON'S SPEECH in 1733. If your Lordships will look at Presbyterian Church Print A, page 180, you get the basis of Union of this Church adopted in May 1847, which must therefore be taken as its Constitution. Paragraph 2 says : "That the Westminster Confession of Faith and the Larger and Shorter Catechisms are the confession and cate chisms of this Church, and contain the authorised exhibition of the sense in which we understand the Holy Scrip tures; it being always understood that we do not approve of anything in these documents which teaches, or may be supposed to teach, compulsory or perse cuting and intolerant principles in religion." Then paragraph 10 : " That the respective bodies of which this Church is composed, without requiring from each other any approval of the steps of pro cedure by their fathers, or interfering with the rights of private judgment in reference to these, unite in regarding as still valid the reasons of which they have hitherto maintained their state of secession and separation from the Judicatories of the Established Church, as expressed in the authorised documents of the respective bodies, and in maintaining the lawfulness and obligation of separation from ecclesi astical bodies in which dangerous error is tolerated, or the disciphne of the Church, or the rights of her ministers or members are disregarded." That union took place in May 1847, three years only after the Disruption of the Free Church from the Established Church, and one asks why, if this was taking place so soon, these two Bodiescould not join with the Free Church. Presumably at least at that date there must have been something between them or else the reasonable conclusion would have been that if these Bodies were going to join at all they would have joined with this new Church which had originated itself on, at anyrate, one principle which they adopted, namely, the resistance to the Civil Courts interfering with the Spiritual jurisdiction of the Church Courts. But they did not, and I think I may therefore take it that in 1847 there was some difference be tween the two Churches. In Print A, at page 190, you get their Rules and Forms of' Procedure in 1848— the year after their Union, and they became the United 243 After an intro ductory narrative which says that rules must be framed for the guidance of their office-bearers, it says : " The Church is a spiritual community, which has received from Christ, her Head, and holds within herself, all the power that is necessary for the administration of her affairs. She is entirely distinct from civil governments, and requires nothing from them but that civil protection to which all her members in their civil capacity are fully entitled. She addresses herself to the consciences and hearts of men, disclaiming all com pulsory power over their persons or pro perty, and the right of private judgment in all matters which relate to religion is universal and inalienable. This book of Rules and Forms is to be looked upon as shewing how the instructions given in the Word of God are reduced to practice in the government of the United Pres byterian Church." Then in the next sub-section: "Every minister ofthe United Presbyterian Church is bound to submit in the matter of temporal support, as in all other matters connected with his office, to the decision of Presbytery or Synod, and has no right to prosecute for stipend in the Civil Courts, it being a principle recognised in the Church that the high and sacred claim which Christ has given ministers on the consciences of their people for suitable maintenance, is a security perfectly adequate, and excludes any appeal to a Civil Court for its enforce ment." Then Article 4 : " Any proposal which involves a change in the constitu tion of the Church ought to be leisurely and carefully considered." I think you cannot read that document without coming to the conclusion that that Church was in the first place a voluntary Church, and, in the second place, that its constitution was not a fixed constitution, but one which might be changed as there pro vided. Then their early Formula is at page 192, the Formula which existed from the beginning, but which was some what changed in 1879. At page 192 of the same Print, at Letter F, the question is: "Do you acknowledge the West minster Confession of Faith, and the Larger and Shorter Catechisms, as an exhibition of the sense in which you 244 HOUSE understand the Holy Scriptures ; it being understood that you are not required to approve of anything in these documents which teaches, or is supposed to teach, compulsory or persecuting and intolerant principles in religion?" "3. Are you persuaded that the Lord Jesus Christ, the only King and Head of the Church, has therein appointed a government dis tinct from, and not subordinate to, civil government ? And do you acknowledge the Presbyterian form of government, as authorised and acted on in this Church, to be founded on, and agreeable to, the Word of God ? " " 4. Do you approve of the Constitution of the United Pres byterian Church, as exhibited in the Basis of Union." Now there is a very distinct difference in the phrase : " Do you acknowledge the Westminster Con fession of Faith, and the Larger and Shorter Catechisms, as an exhibition of the sense in which you understand the Holy Scriptures," from that which was contained in the original formula of the Free Church to which I have referred. After having shown the position of the United Presbyterian Church in its doctrine, I come back to that document at Print B, page 48, to which I referred for the date at which overtures for Union commenced, to show what at that date were the differences between these two Churches. The document from which you have an excerpt at page 48, is the Report of a Committee appointed to consider the points of agreement and the points of difference between these two Churches, and in their Report they say at letter F, page 48 : " The Committee of the Free Church and the Committee of the United Presbyterian Church have been engaged in considering the question of the relation of the Civil Magistrate to Religion and the Church." Then page 49 : " That the Civil Magistrate ought to further the interest of the religion of the Lord Jesus Christ among his subjects, in every way consistent with its spirit and enactments ; and to be ruled by it in the making of laws, the administration of justice, the swearing of oaths, and other matters of civil jurisdiction. III. That, while it is the duty of the Civil Magistrate to em brace and profess the Christian religion, OF LORDS it is not his province to impose a creed or a form of worship upon his subjects, or to interfere with that government which the Lord Jesus Christ has appointed in His Church, in the hands of Church Officers — it being the exclusive prerogative of the Lord Jesus to rule in matters of faith and worship ; and that the Civil Magis trate is not to further the interests of religion by means inconsistent with its spirit and enactments, which disclaim and prohibit all persecution." Lord James of Hereford : Under this document what becomes of the doctrine of Establishment ? The two parties were agreeing to this. Did they agree to put it on one side, or what became of it ? Mr Johnston : You will find in the next passage that I am going to read that they did not agree. They agree up to a certain point. At page 50, letter D : " With reference to the same question, the following are statements in parallel columns of distinctive principles about which the two Committees differ": — On the left hand side you have the Statement of the Free Church position and on the right hand side the Statement of the United Presbyterian Church position. Taking the Free Church first, you have at letter F : " As a further act of homage to Christ, it is his duty " (they are talk ing of the Civil Magistrate), " when neces sary or expedient, to employ the national resources in aid of the Church, provided always that in doing so, while reserving to himself full control over the tempor alities, which are his own gift, he abstain from all authoritative interference in the internal government of the Church. And while the Church must ever maintain the essential and perpetual obligation which Christ has laid on all His people to sup port and extend His Church by free-will offerings ; yet in entire consistency with said obligation, the Church may lawfully accept aid from the Civil Magistrate when her spiritual independence is preserved entire. But it must always be a question to be judged of according to times and circumstances, whether or not such aid ought to be given by the Civil Magistrate, as well as whether or not it ought to be accepted by the Church. And the question MR JOHNSTON'S must in every instance be decided by each of the two parties judging for itself on its" own responsibility." Your Lord ships will notice that in that passage they set forth the duty on the one side of the State employing the National resources in aid of the Church, and on the other hand the liberty of the Church to accept such assistance. I will read next the relative Statement of the United Presby terian Church at page 50; letter E : " That inasmuch as the Civil Magistrate has no authority, in spiritual things, and as the employment of force in such matters is opposed to the spirit and precepts of Christianity, it is not within his province to legislate as to what is true in religion ; to prescribe & creed or form of worship to his subjects, or to endow the Church from national resources ; that Jesus Christ, as sole King and Head of His Church, has enjoined upon His people to provide for maintaining and extending it by free-will offerings ; that this being Christ's ordi nance, it excludes State aid for these pur poses ; and that adherence to it is the true safeguard of the Church's independ ence." Again, at page 51, you have para graph 2 on the one side, contrasted with paragraph 2 on the other. In the Free Church case it is this : " It follows from the preceding Articles that any branch of the Christian Church consenting to be in alliance with the State, and to accept its aid, upon the condition of being subject to the authori tative control of the State or its Courts in spiritual matters — or continuing in such connection with the State as involves such subjection — must be held to be so far un faithful to the Lord Jesus Christ as King and Head of His Church. And upon this ground, in accordance with the history and the constitutional principles of the Church of Scotland, a protest is to be maintained against the present Establish ment in Scotland." I emphasise the word " present." Compare with that the oppo site Statement: " That the United Pres byterian Church, without requiring from her members any approval of the steps of procedure by their fathers, or interfering with the rights of private judgment in reference to them, are united in regarding as still valid the reasons on which they SPEECH 245 have hitherto maintained their state of secession and separation from the judica tories of the Established Church, as ex pressed in the authorisod documents of the respective bodies of which the United Presbyterian Church is formed; and in maintaining the lawfulness and obligation of separation from ecclesiastical bodies in which dangerous error is tolerated, or the discipline of the Church, or the rights of her ministry or members are disregarded. Moreover, though uniformity of opinion with respect to civil establishments of religion is not a term of communion in the United Presbyterian Church, yet the views on this subject held, and univers ally acted on, are opposed to these insti tutions ; and the statements set forth in these distinctive Articles are regarded by that Church as a protest against the Church Establishment in Scotland." The distinction is marked between the " pre sent," or " the Church as presently established " on the one side, and " The Church Establishment in Scotland" on the other. I think there can be no doubt, then, that at this date, in 1864, there was a distinct difference of view between the two Churches, the one holding, as it could not but hold, looking to its original con stitution, the Establishment principle, and the other rejecting it. At page 51 of the same document, you have Report No. 2" on the same subject by this Committee. I think it would be wasting your Lord ships' time if I referred to that, but you have in the next year, on page 55, a further Report giving Articles of Agree ment, and again distinctive Articles, just upon this particular head of the Civil Magistrate. The terms of the distinctive Articles are rather shorter, but they are equally emphatic. The Committees have been trying to bring things together, but they have failed to do so upon these dis tinctive principles. The one holds, at letter 0, page 57 : "As an act of national homage to Christ, the Civil Magistrate ought, when necessary and expedient, to afford aid from the national resources to the cause of Christ, provided always that in doing so, while reserving full control over his own gift, he abstain from all authoritative interference in the internal government of the Church," The other 246 HOUSE holds : "That it is not competent" — it is not a permissive question, but a question absolutely " not competent " — " to the CivilMagistrate to give legislative sanction to any creed in the way of setting up a civil establishment of religion, nor is it within his province to provide for the expense of the ministrations of religion out of the national resources." Those then are the differences of opinion be tween these two Churches, and at page 58 you have certain proceedings of the United Presbyterian Synod of 1870, which bear upon the question : " The Synod proceeded to take up an overture transmitted through the Presbytery of Kelso from Mr Henry Renton, proposing a revisal of the Church's Confession and Catechisms, with a view to the removal of statements not approved of in the Basis of Union. The overture was read, and Mr Renton heard in its support. The Synod then proceeded to give judgment on the subject of the overture, and, after reasoning, it was moved and seconded — That, forasmuch as the interpretation of the terms of the Basis is regulated by the terms of the formula of October 1847, declaring that office-bearers of the Church are not required to approve of anything in the subordinate standards that teaches or is supposed to teach compulsory or persecuting and intolerant principles in religion, thereby securing full liberty of opinion with reference to civil establish ments of religion, the Synod dismiss the overture as uncalled for and inexpedient." My Lords, I should have said that in the United Presbyterian Church their Supreme Judicatory is not called an Assembly but a Synod, and when it uses the words " The Synod," it means the General Assembly of the United Presby terian Church. You cannot read that without seeing that the object of that overture was to get rid from the basis of Union of anything which could imply approval of the Estabhshment principle, but that the Synod consider that that is quite sufficiently included in the terms of that basis by which they declare that the acceptance of the Westminster Standards is not to be supposed as teaching " per secuting and intolerant principles in re ligion, thereby securing full liberty of OF LORDS opinion with reference to civil establish ments of religion." "A vote having been taken on these three motions severally, it was found that the number voting for the first motion was greater than the united number voting for the second and third," and therefore that was adopted. The Lord Chancellor : What was the formal motion ? Mr Johnston : It is between letters A and B, but you will find the overture is printed at the foot : " Whereas a Church's Confession of Faith should contain nothing which is not a part of that Church's Faith ; and whereas, in the Basis of Union of the United Presbyterian Church, Article 2, which sets forth 'that the Westminster Confession of Faith, and the Larger and Shorter Catechisms, are the Confession and Catechisms of this Church,' it is also set forth, ' that we do not approve of any thing in these documents which teaches or may be supposed to teach, compulsory or persecuting and intolerant principles in religion,' so that the fact stands prominent, that the Con fession of the United Presbyterian Church contains, on the subject specified, state ments which the Church does not believe nor profess; it is for the vindication of truth and of the Church's character, that the statements in question be eliminated from its Confession, and therefore the undersigned humbly overtures the Synod of the United Presbyterian Church, to meet at Edinburgh on the 9th day of May next, to take these premises into considera tion, and to appoint a Committee to select those passages and expressions in the said Confession and Catechisms which teach, or may be supposed to teach, compulsory or persecuting and intolerant principles in religion, in order to the formal ex- punction of the same from the Confession and Catechisms of this Church." Lord James of Hereford : Where are the motions on which the voting took place ? The Lord Chancellor : " It was also moved and seconded — That, having heard the overturist, the Synod appoint a Com mittee to consider the whole subject of the overture, and report." The Lord Chief Justice : The first motion was that it should be dismissed as uncalled for, MR JOHNSTON'S SPEECH Mr Johnston: At two lines above letter B : "It was moved and seconded " — that is, the first motion. The second motion is at letter C, and the third motion is, " That it is inexpedient at present to enter upon the subject of this overture." The Lord Chancellor: Then the motion was carried ? Mr Johnston : The motion was carried. The first motion was carried. The over ture is rejected because they consider that their Basis of Union sufficiently explains their position. I refer to that to show that what was in their minds there was this question of State Establishment. The Lord Chancellor: I am very sorry, but I do not understand it at present. If I understand it rightly the first motion is carried. Mr Johnston : That is so. The Lord Chancellor: That is not rejecting the overture ? Mr Johnston : I think it is, my Lord. Lord Macnaghten : The Synod in terms says afterwards they dismiss the overture. Mr Johnston: The Synod dismissed the overture as uncalled for and inex pedient. The Lord Chancellor : That is what was carried. Mr Johnston : Yes, but the motion begins : " It was moved and seconded." The reason for dismissing the overture begins with : " Forasmuch as." The Lord Chancellor : I understand it now. It was rejected. After a short adjournment. . Mr Johnston : My Lords, might I, in concluding what I have to say about the position of the United Presbyterian Church and its differentiation from that of the Free Church, refer your Lordships to page 195 of Print A? The last docu ments I referred to were documents which had to do with the date 1864 to 1871. Now, bringing things down to the eve of the Union, if you will look at page 195 you will find the report of the United Presbyterian Committee on disestablish ment and disendowment : '" The question of Disestablishment during 1896 and 1897, although in present political cir- 247 cum stances not capable of being success fully dealt with in Parliament, has yet been kept before the minds of the public by the action of its opponents no less than by that of its supporters. Advantage has been taken of the present political situa tion by State Church supporters to en deavour to push through Parliament" certain aims. Passing over to page 196, letter C: "It has been the aim of the Synod's Committee to bring the Volun tary Principles of the Church to bear on the various public questions that have emerged since last meeting of Synod." " The Synod's Committee " (this is an important passage) "issued in March to ministers and Synod elders Tract XXV., prepared by the Convener, viewing the Jubilee of the United Presbyterian Church in the light of its Historical Testimony as to the proper Relations between the Church and the State. It was also sent to Free and Established Church ministers. The Tract will be found in the Appendix. In conclusion, the Committee recommends that the Synod resolve in the following or like terms." The next document is the reception of that Report by the Synod itself. The Lord Chancellor : I should have thought just above line G was important for you to read. Mr Johnston : I stopped for a reason, my Lord, because that is only what it is proposed to the Synod to adopt. The next document is the adoption and the repetition of the same words in the Synod's own language : " The Synod called for the Report of the Committee on Disestablishment and Disendowment, which was presented by Mr Benjamin Martin, Convener. Mr Martin was heard, and concluded with the following motion, namely : That the Synod, having heard the Report, approves generally of the action of the Committee in upholding the Church's testimony on the proper rela tions between the Church and the State, and in favour of religious equality by Disestablishment and Disendowment; instructs the Committee to embrace all fit opportunities of making its Volun tary principles known throughout the Church and the community ; and author ises it to support such Disestablishment Bill or Resolution in Parliament as shall 248 HOUSE OF LORDS give effect to these principles." And at the end of the page : " The Synod further recommends ministers, elders, and mem bers to assist in their several localities in diffusing a knowledge of the Voluntary principles of the Church, and in pro moting legislation for the Disestablish ment and Disendowment of the Estab lished Church of Scotland." The motion was seconded and unanimously adopted. Therefore the Report to which I at first referred becomes the document of the Synod itself. I would like to refer for one moment to what is styled, in the middle of page 196, " Tract 25," " Viewing the Jubilee of the United Presbyterian Church in the light of its Historical Testimony as to the Proper Relations between the Church and the. State." The Tract was one of the Articles of process, and copies of it were supplied to your Lordships. The Lord Chancellor : I am not aware of having a copy. Mr Johnston : Copies were supplied at the last hearing. It is called "The Jubilee of the United Presbyterian Church in the light of its Historical Testimony as to the Proper Relations between the Church and the State." I think I can relieve your Lordship of the trouble of looking at it, as I can be very brief with regard to it. The Tract itself sets out historically just as you would expect from this heading, the Testimony to the proper relations between the Church and State from the Revolution Settlement onwards, all that was done by the various elements who combine to make the United Presbyterian Church in the direction of Voluntaryism or Disestab lishment, and the only passage I should read is the final conclusion, at page 54. The Lord Chancellor : I should have thought the first two lines are rather important : " The United Presbyterian Church maintains as one of its most distinctive principles that it is not the province of the State to establish aud endow the Christian Church." Mr Johnston : " This principle as now defined in Voluntaryism was not professed by the founders of the secession and relief churches. But the Ecclesiastical position they assumed, and their principle of spiritual independence which led them to take up that position, contained the germ of Voluntaryism, and ultimately made it easy and inevitable for their successors to develop the clearer and fuller theory now held as to the unscripturalness and injustice of the civil establishment of religion." In the body of the Tract they examine from point to point -how each of those bodies which ultimately form the United Presbyterian Church developed these views of Voluntaryism, and they conclude, at page 54 : " The United Presbyterian Church, thus looking back to the testi mony of its various branches on the rela tions of Church and State during the last 164 years, consistently lifts up on this its Jubilee its distinctive witness against civil establishments of religion, and demands in the name of every justice that the Established Churches in England and Scotland should be disestablished aud disendowed." Those are the terms of the Tract in question. Then the proceedings of 1897, 1898, and 1899 are just a repeti tion of this, and then, in the very year and month of the Union, you have this, on page 201 : The Synod, having heard the Report " (that is, on this disestablish ment and disendowment) " approves the action of the Committee in upholding the Church's testimony on the proper relations of Church and State, and in support of religious Equality by Disestablishment and Disendowment." Accordingly you have the United Presbyterian Church, whatever may have been their principle in 1847, declaring emphatically that they had adopted that principle by in 1897 carrying it on to the very eve of the Union, and emphatically enforcing it in the very last pronouncement of their separate United Presbyterian Synod. At page 139 of our Case your Lord ships will find how the new United Free Church is committed to this very same principle, for in the year following the Union — I read a quotation for con venience sake and not because it is part of the argument — between the letters C and D: "Thus on 28th May 1901 the General Assembly, by a large majority, approved of a report (No. XXIX.) by its Committee on Church and State, in which that Committee reported in these terms : MR JOHNSTO — '. . . We shall be quite frank as to our position. The Committee understand this to be that we must regard the statutory connection now maintained by the State in Scotland with the Established Church as objectionable in principle ' " — (the italics are ours and are not in the original print) — "'and that its termina tion seems to us to be a necessary step towards the relations between Churches in Scotland which we believe are very widely desired. The Committee see no benefit to be gained by allowing doubt to arise on that point.' " Accordingly the United Church has adopted the position that State Establishment is not objection able in the concrete, but in the abstract, not in the present position of the estab lishment in Scotland, but that it is objectionable in principle. At the foot of the page you have the same in the fol lowing year : "The Assembly approve of the Report and return thanks to the Committee, especially the first Conveners. The Assembly adheres to its testimony in favour of the Disestablishment of the Established Church of Scotland, sym pathises with the Free Churches of England in their resistance to the Educa tion Bill for England," and so on. I think that closes what I have to say on the subject of the establishment prin ciple. I submit, in the first place, that I have established from the original docu ments of 1842 and 1843 that it was a dis tinctive principle of the Free Church in its origin, and that, therefore, it is one of the conditions of the Trusts upon which this property is held. In the second place, I think I have without doubt satisfied your Lordships that that principle was not a principle of the United Presbyterian Church, and is not a principle of the United Free Church. I will pass now therefore to the struggle which was restarted in 1896 to resuscitate this question of Union, and which ulti mately carried it to its conclusion, but in leading up to that upon which depends the question of departure from the Con fession of Faith in the matter of doctrine, I shall have to go back to certain gradual advances which the Free Church made to bring themselves, if I may say so, within the line of the United Presbyterian N'S SPEECH 249 Church, in previous years. In the first place one must start where they started from in 1843. You will find, as I have already pointed out, at page 48 of Print A, that they maintain the Confession of Faith and Standards of the Church of Scotland as heretofore understood. Start ing from the Confession of Faith and Standards, and as I think I have satisfied your Lordships that "as heretofore under stood " has reference to the previous part of that document which shows that the question at issue was that of non-intrusion, of the power of the Church, and the question of the admission of ministers. You will find that that same phrase is repeated in the Act of Separation and Deed of Demission by ministers. For a considerable time the majority of the Church, and after that its minority, main tained the status quo. The first thing you have is the question of admission of ministers and probationers from other Churches. At Print B, page 32, you have in the year following the disruption, " A Report of the Committee anent admission of ministers and probationers from other Churches into the Free Church." The second head of the conditions which are framed by the Committee is : " Any ministers of another denomination ad mitted to a charge in the Church must be bound to subscribe the formula and adhere to the testimony of the Church without qualification." Then at page 34 of the same print you have: "The General Assembly called for the Report of the Committee appointed to prepare a Testi mony, when Dr Candlish stated, on the part of the Convener, that the committee had come to the conclusion that it was inexpedient, in present circumstances to issue a new Testimony, the principles for which the Church has lately beeu con tending being sufficiently expressed in the documents connected with the separation from the Establishment, particularly the Claim of Rights, Protest and Deed of Demission, to which such reference as the Assembly may deem necessary may be made in the formulae of the Church. The General Assembly approve of the Report, and remit to a committee to consider what alterations or additions it may be necessary to make on the formula?." 250 HOUSE Following upon that they frame the formula to which I have already referred in Print B, pages 11 and 12, which is the formula of the Church of Scotland. They go back so far as the fourth year of the Revolution Settlement. The first of them was 1694; they are confirmed again in 1782. I refer your Lordships, in contrast, to the Free Church formula, page 84. In this point of view I will ask your Lord ships to note that what the probationer at page 86 is called upon to do is to accept the whole doctrine of the Confession of Faith approven by the General Assemblies of the Church. It does not matter whom it is approved by so long as it is the whole doctrine of the Confession of Faith, and he owns the whole doctrine as the Confession of his Faith. That is as things stood three years after the disruption, when the Confession was adopted. The next stage is that in Print B, page 37. After having adopted the formula, you have the Assembly again declaring, at letter D : " That no minister of any denomination shall be admitted to a ministerial charge in this Church without an unqualified subscription of the formula." That is a formula which had in that same year been adopted. There is a certain change which follows at page 43, letter G. There are certain Churches the known principles of which were so identical with those of the Free Church that it was held unnecessary to call upon them for any such declaration, and accordingly in 1850, at the bottom of page 43, Print B, you have the Assembly, with the consent of the majority, enacting and ordaining that "no minister or probationer of another denomination or church shall be received . . . without an unqualified subscription of the formula " ; but in subsection 4, just above letter E, there is this: "If there is a diversity of principle between the Free Church of Scotland and the ap plicant's former denomination or church, what account does the applicant give of the change in his views?" But subsec tion 6, at letter F, says : "The provisions of this Act shall not apply to ministers belonging to the Presbyterian Churches in England and Ireland and in the Colonies, with which this Church is in connection, so far as regards cases of orderly transla- OF LORDS tion from charges in the said Churches to charges in this Church ; neither shall the provisions of this Act apply to those minis ters of the said Presbyterian Churches who may have been licensed to preach the gospel by Presbyteries of this Church." Those Presbyterian Churches had primarily been in association with the Church of Scotland, but apparently were accepted by the Free Church as so identical with themselves as not to require any such declaration. My reason for referring to that is that shortly afterwards — in 1872 — the United Presbyterian Church is brought within that category under what is known as The Mutual Eligibility Act. I said that the attempts at Union were laid aside in 1871. You will see that at page 60, letter D: "Wherefore the As sembly record their great satisfaction with the result reached in Reformed Presby terian and in the United Presbyterian Churches which is announced in the Reso lutions of the Supreme Courts of these Churches, now laid on the table of this House," and then on the opposite page, 61, they point out at letter B: "At the recent meetings of the Supreme Courts of the Reformed Presbyterian and of the United Presbyterian Churches, in the Resolutions already noticed, a decided majority of the Presbyteries of the Church have declared their opinion upon the Remit sent down to them by last As sembly, that there is no objection in prin ciple to the formation of an incorporating union among the negotiating Churches, on the footing or basis of the Westminster Confession of Faith, as at present accepted by the said Churches. III. While this large measure of agreement among the negotiating Churches with respect to the proposed Basis of Union, in so far as the question of principle is concerned, appears to the Assembly amply to justify the con fident expectation that the Lord will in His own good time bring the contem plated union to pass, they willingly ac knowledge that much consideration is due to the difficulties which still appear to an important minority of esteemed and honoured brethren to stand in its way. In this spirit accordingly, and having re spect to the great desirableness of afford ing adequate opportunity to all parties MR JOHNSTON'S SPEECH 251 to weigh the whole 63) for mutual eligibility of ministers : calmly and fully import and bearing of the opinion pro nounced by the Presbyteries, and to con sider the position and duty of the Church in connection therewith, the Assembly, in reappointing the Committee as they now do, instruct them, instead of proceeding to the further consideration of any of the matters outstanding under the programme of Heads of Inquiry, to direct their atten tion for the present to those measures which may seem best fitted to draw the negotiating Churches into closer and more friendly relations." And the mutual eligi bility of ministers was of course one of those. At page 62 : " IV. Having respect to the past history, the present position and the future prospects of this great union question, the Assembly think it fitting, at this juncture, to declare their unalterable adherence, in common, as they believe, with that of all their people, to the great fundamental and characteristic principles of this Church, regarding, 1, The sole and supreme authority of the Lord Jesus Christ, and His exclusive right to rule in and over His Church, and the consequent obligation of His Church to be regulated in all her proceedings by His Word alone. For which end she claims, in all spiritual matters, complete independence and immunity from all coercion and control from without. And regarding, 2, the prerogative of the same Lord Jesus Christ, as Head over all things to His Church, and supreme over Nations and their rulers, wh6 are consequently bound collectively and officially, as well as individually and personally, to own and honour His authority, to further the in terests of His holy religion, and to accept the guidance of His Word as making known His mind and will. And the Assembly, in the circumstances foresaid, think it fitting also to declare that this Church can never, consistently or conscientiously, enter into any union that would imply the abandoning or compromising of either of these essential principles, which are divine and unalterable truths." That was their attitude in 1871, and, subject to those conditions, they thought that more friendly relations should be cul tivated, and, accordingly, in the follow ing year you have the resolutions (at page •' That the proposal with reference to the mutual eligibility of ministers in settled charges is a measure specially calculated to promote the ends for which the Com mittee was appointed last year, and being in harmony with the relations which this Church already sustains towards sister Presbyterian Churches, both at home and in the colonies, is one that ought to be adopted ; and they accordingly direct an overture to be prepared and sent down to Presbyteries under the Barrier Act, add ing the United Presbyterian and Reformed Presbyterian Churches to those specified in the Act, 1850, as holding this relation." That is, to those English Churches to which that Act, which I shall refer to at page 43, referred. The Act itself is at page 120 of Print A: "The General Assembly, with consent of a majority of Presbyteries, enact and ordain that clause 6 of Act viii, 1850, shall be amended and stand as follows, viz. : — ' The pro visions of this Act shall not apply to ministers belonging to the Presbyterian Churches in England and Ireland, and in the Colonies, with which this Church is in connection, nor to ministers belonging to the United Presbyterian and Reformed Presbyterian Churches, so far as regards cases of orderly translations from charges in the said Churches to charges in this Church.' " Now you have, in passing this overture into a Standard, the General Assembly thinking it right to declare, as they do declare, their adherence to the great fundamental principles of this Church. As we understand it, that rider, so to speak, upon the Act was imposed in order to satisfy the minority of the Assembly, who felt that in this mutual eligibility proposal was just the thin end of the wedge of what they now have to complain of. They do safeguard it by the condition with reference to the Establishment principle that : " The pre rogative of the Lord Jesus Christ, as Head over all things to his Church, and supreme over Nations and their rulers, who are consequently bound collectively and offici ally as well as individually and personally, to own and honour His authority, to further the interest of His holy religion, and to accept the guidance of His Word." The 252 HOUSE Act itself is, however, qualified in the following year by the Act at page 122. According to the system of the proceed ings of these Scotch Bodies, they require to send down, according to their principles, an Act to the Presbyteries under the Barrier Act one year before they can pass it ; the next they pass the Act as an in terim Act, and therefore the Act that you have dated the 1st of June 1874, on page 122, was of even date as the Act of 1873 passed as an interim Act, and therefore came into force ad interim with it. That second Act provides : " That in every case of induction into any spiritual office or function in this Church, the person to be inducted shall sign the Formula prescribed in Act xii., 1846, intituled, 'Act anent Questions and Formula,' during public worship on the day of in duction." Therefore the person to be inducted, even although he comes from another Church, must accept the Ques tions and Formula of the Free Church "immediately after giving satisfactory answers to the questions appointed in said Act to be put to him ; and that in every case of a minister being proposed to be called who belongs to another branch of the Church of Christ, if the Presbytery find the call regular and suffi cient so far as the congregation is con cerned, they shall adjourn to meet on a subsequent day, not sooner than a fort night, nor later than four weeks there after, except when the call is to a minister in the Colonies, in which case the adjournment may be prolonged ; and shall transmit to the minister proposed to be called an extract of that finding, together with a copy of the said Act xii., 1846, as hereinafter amended, including the preamble as well as the enacting part." For one moment I draw your Lordships' attention to what the pre amble means. It is at page 84 of that Print, and that preamble is what sets forth the Church Formula maintaining the scriptural principle of the duty of nations and their rulers, "as also a copy of the present finding of the Assem bly in full, embracing the Act of Assem bly, Class i. 4, of date Thursday, 29th May 1873, passing the Mutual Eligibility Overture into a law, with relative de- OF LORDS claration in full, and also a copy of this Act, informing him that if no communi cation is sent beyond a simple acknow ledgment of their receipt, the Presbytery will then, upon the assumption that no difficulty exists on his part as regards the said documents, proceed in the case according to the laws of the Church." I do not think your Lordships can read those two Acts without seeing that they embody a compromise, that the majority were endeavouring to introduce the minis ters of the United Presbyterian Church with a view to the ultimate Union, that the minority saw that to do so would be risking the sacrifice of the original prin ciples of the Church, and accordingly that their admission is safeguarded. It is a question of circumlocution, no doubt, but they are safeguarded by the terms of this Act of 1874, which impose upon the United Presbyterian ministers coming in the principles as set forth in the Ques tions and Formula of the Free Church, with all these notices of what the Free Church principles are, and the notice to him that if he makes no objection he is held as having accepted and adopted them. The Lord Chief Justice : He does have practically to sign the same docu ments. Mr Johnston : He has practically to sign the same documents. I say it is visibly a compromise between two oppos ing parties. Things remain in that position for nearly the next twenty years. In the United Presbyterian Church a change has taken place in the year 1879. At page 182 of Print A you have the first of what are termed in the Church "De claratory Acts," as we think, declaratory of changes upon the Confession of Faith : " Whereas the Formula in which the Subordinate Standards of this Church are accepted requires assent to them as an exhibition of the sense in which the Scriptures are understood : Whereas these Standards, being of human com position, are necessarily imperfect, and the Church has already allowed excep tion to be taken to their teaching or supposed teaching on one important sub ject : And whereas there are other sub- MR JOHNSTON'S SPEECH 253 jects in regard to which it has been found desirable to set forth more fully and clearly the view which the Synod takes of the teaching of Holy Scripture : Therefore the Synod hereby declares as follows." Your Lordships will see that that preamble is quite inconsistent with the Formula of the United Presbyterian Church, because that Formula does not ask the person taking it to accept the Confession as the Confession of his Faith, but merely — I had better refer to the actual words on page 192 — "Do you acknowledge the Westminster Confession of Faith as an exhibition of the sense in which you understand the Holy Scrip tures?" The document, at page 182, which is, so to speak, a rider upon that, says: "Whereas the Formula in which the Subordinate Standards of this Church are accepted requires assent to them as an exhibition of the sense in which the Scriptures are understood : Whereas these Standards, being of human com position, are necessarily imperfect, and the Church has already allowed excep tion to be taken to their teaching or supposed teaching on one important sub ject : And whereas there are other sub jects in regard to which it has been found desirable to set forth more fully and clearly the view which the Synod takes of the teaching of Holy Scripture : Therefore the Synod hereby declares as follows." There follow six different heads, giving what is for the future to be not the Westminster Confession itself, but what is to be the view of the United Presbyterian Church. Now, my Lords, I think I had better before making any contrast between this Act and the similar Act of the Free Church, refer your Lordships to the Con fession itself, so that you may see what it says, and whether and how it is altered by these Declaratory Acts. Excerpts from the Confession itself will be found at the very beginning of Print A. At page 2 it sets forth the doctrine of the Westminster Confession on what is technically called the subject of predestination : " By the decree of God, for the manifestation of His glory, some men and angels are pre destinated into everlasting life, and others foreordained to everlasting death. IV. These angels and men, thus predestinated and foreordained, are particularly and unchangeably designed ; and their number is so certain and definite, that it cannot be either increased or diminished. V. Those of mankind that are predestinated unto life, God, before the foundation of the world was laid, according to His eternal and immutable purpose, and the secret counsel and good pleasure of His will, hath chosen in Christ unto ever lasting glory, out of His mere free grace and love, without any foresight of faith or good works, or perseverance in either of them, or any other thing in the creature, as conditions, or causes moving him thereunto; and all to the praise of His glorious grace." Then if your Lordships will pass to Chapter vi, on the opposite page, it says : " From this original corrup tion, whereby we are utterly indisposed, disabled, and made opposite to all good, and wholly inclined to all evil, do proceed all actual transgressions. VI. Every sin, both original and actual, being a trans gression of the righteous law of God, and contrary thereunto, doth, in its own nature, bring guilt upon the sinner, whereby he is bound over to the wrath of God, and curse of the law, and so made subject to death, with all miseries, spiritual, temporal, and eternal." Then you have under the heading " Of Free- Will" : " Man, by his fall into a state of sin, hath wholly lost all ability of will to any spiritual good accompanying salva tion, so as a natural man, being altogether averse from that good, and dead in sin, is not able, by his own strength, to convert himself, or to prepare himself thereunto." Then you have the heading of " Effectual Calling" at page 4, which is again the doctrine of predestination presented in a different form : " All those whom God hath predestinated unto life, and those only, He is pleased, in His appointed and accepted time, effectually to call, by His word and Spirit, out of that state of sin and death in which they are by nature, to grace and salvation by Jesus Christ ; enlightening their minds spiritually and savingly to understand the things of God ; taking away their heart of stone and giving unto them an heart of flesh ; re newing their wills, and by His almighty 254 HOUSE power determining them to that which is good; and effectually drawing them to Jesus Christ ; yet so as they come most freely, being made willing by His grace. III. Elect infants dying in infancy are regenerated and saved by Christ through the Spirit, who worketh when, and where, and how He pleaseth. So also are all other elect persons, who are incapable of being outwardly called by the ministry of the word. IV. Others not elected, although they may be called by the ministry of the word, and may have some common operations of the Spirit, yet they never truly come untb Christ, and there fore cannot be saved : much less can men not professing the Christian religion be saved in any other way whatsoever, be they ever so diligent to frame their lives according to the light of nature, and the law of that religion they do profess ; and to assert and maintain that they may is very pernicious, and to be detested." Lord James of Hereford : Arc these doctrines known by any general name ? Mr Johnston : The doctrine of " High Calvinism," I should think, is the nearest name I can give to them. Lord James of Hereford : I assume that they would come within some well- known term. Mr Johnston : I think I am right. The Lord Chancellor : They are the doctrines of Calvin discussed and deter mined. Mr Johnston : Undoubtedly, my Lord. Of course it is not for us here to consider whether these doctrines are sound or not, but the question is, What were the doctrines ? Lord James of Hereford : I wanted to know the source they came from. The Lord Chancellor : There were two doctrines discussed at the Synod of Dort, the Calvinistic being one, and the Arminian the other. The fashion of the time was to turn German names into Latin. Hermannsohn was his name. Mr Johnston : I have read those passages, and now turn back to the Declaratory Act of the United Presby terian Church at page 182, and in doing so I should say that I am not so much concerned with anything done by this OF LORDS Act as I am with what was done by the Act. of 1892 of the Free Church. But as part of the consecutive circumstances of this question, I am bound to lay before your Lordships the position taken in this Act by the United Presbyterian Church. They set forth "That in re gard to the doctrine of redemption as taught in the Standards, and in con sistency therewith, the love of God to all mankind, His gift of His Son to be the propitiation for the sins of the whole world, and the free offer of salvation to men without distinction on the ground of Christ's perfect sacrifice, are matters which have been, and continue to be, re garded by this Church as vital in the system of Gospel truth, and to which due prominence ought ever to be given. That the doctrine of the divine decrees, including the doctrine of election to eternal life" — that is the doctrine of head X., which I read a few moments ago, and head IV — "is held in connection and harmony with the truth that God is not willing that any should perish, but that all should come to repentance, and that He has provided a salvation sufficient for all, adapted to all, and offered to all in the Gospel; and also with the responsi bility of every man for his dealing with the free and unrestricted offer of eternal life." Now, I venture to say that that is not an interpretation, but is in absolute contrast to the Chapter x. which it pre sumes merely to interpret. "(3) That the doctrine of man's total depravity, and of his loss of ' all ability of will to any spiritual good accompanying salvation,' is not held as implying such a condition of man's nature as would affect his responsi bility under the law of God and the Gospel of Christ." " (4) That while none are saved except through the mediation of Christ, and by the grace of His Holy Spirit, who worketh when, and where, and how it pleaseth Him ; while the duty of sending the Gospel to the heathen, who are sunk in ignorance, sin, and misery, is clear and imperative; and while the outward and ordinary means of salvation for those capable of being called by the Word are the ordinances of the Gospel : in accepting the Standards, it is not required to be held that any MR JOHNSTON'S SPEECH who die in infancy are lost, or that God may not extend His grace to any who are without the pale of ordinary means, as it may seem good in His sight." That, my Lords, may be quite good doctrine, but it is quite inconsistent with the doctrine of Articles III. and IV. of Chapter x. " (5) That in regard to the doctrine of the Civil Magistrate, and his authority and duty in the sphere of religion" I did not read those heads with regard to the Civil Magistrates, because I had read them already; they are at page 8, "this Church holds that the Lord Jesus Christ is the only King and Head of the Church and ' Head over all things to the Church, which is His body'; disapproves of aU compulsory or persecuting and intolerant principles in religion; and declares, as hitherto, that she does not require approval of anything in her Standards that teaches or may be supposed to teach such principles." Reading between the lines of that, we know that it disapproves of the State Establishment of religion, but of course it does not so express it. " (6) That Christ has laid it as a permanent and universal obligation upon His Church, at once to maintain her own ordinances, and to 'preach the Gospel to every creature ' ; and has ordained that His people provide by their free-will offerings for the fulfilment of this obligation." That is clearly a statement of voluntaryism. " (7) That, in accordance with the prac tice hitherto observed in this Church, liberty of opinion is allowed on such points in the Standards, not entering into the substance of the faith, as the inter pretation of the ' six days ' in the Mosaic account of the Creation : the Church guarding against the abuse of this liberty to the injury of its unity and peace. The following question of the Formula con tains the terms in which the Subordinate Standards are accepted by the office bearers of the Church : ' Do you acknow ledge the Westminster Confession of Faith and the Larger and Shorter Cate chisms as an exhibition of the sense in which you understand the Holy Scrip tures, this acknowledgment being made in view of the explanations contained in the Declaratory Act of Synod there- anent?'" The result, as I submit, of 255 that document of May 1879 is really to write out of the Confession of Faith the doctrine of predestination which is set forth in Chapter iii. and also in Chapter x., and at the same time to read out of the section with reference to the duty of the Civil Magistrate the principle of the duty of the State to establish and provide for the Church. But, as I said at first, that document is not our document. It may be a document of the Church now in union, but it is not a document of the Free Church. Your Lordships will find that at page 132 of Print A, you have the similar Declaratory Act of the Free Church, although 1 3 years later, "Where as it is expedient to remove difficulties and scruples which have been felt by some in reference to the declaration of belief required from persons who receive licence, or are admitted to office in this Church, the General Assembly, with con sent of Presbyteries, declare as follows : — That, in holding and teaching, according to the Confession, the Divine purpose of grace towards those who are saved, and the execution of that purpose in time, this Church most earnestly proclaims, as standing in the forefront of the revelation of Grace, the love of God — Father, Son and Holy Spirit — to sinners of mankind, manifested especially in the Father's gift of the Son to be the Saviour of the world, in the coming of the Son to offer himself a Propitiation for sin, and in the striving of the Holy Spirit with men to bring them to repentance. That this Church also holds that all who hear the Gospel are warranted and required to believe to the saving of their souls; and that in the case of such as do not believe, but perish in their sins, the issue is due to their own rejection of the Gospel call. That this Church does not teach, and does not regard the Confession as teaching, the foreordination of men to death irrespec tive of their own sin." The Lord Chief Justice: Do you complain of this and say they had no right ? Mr Johnston : I do. The Lord Chief Justice : This is one of the Acts you complain of. Mr Johnston : This is the Act I com plain of. 256 HOUSE Lord James of Hereford : This is contradictory to Chapter x. Mr Johnston : Yes. This is contra dictory to Chapter iii. and Chapter x. The Westminster Confession, Chapter iii. and Chapter x. is the condition of the Church with which we are dealing. The Lord Chief Justice : That is the Free Church of 1843. Mr Johnston : That is the Free Church of 1843. This in 1892 is subversive of two important Heads of that Confession. Lord James of Hereford : This is the Free Church. Mr Johnston : Certainly. It is adopted by the Free Church. The Lord Chancellor: You mean adopted by the new United Free Church? Mr Johnston : In 1892 it was still the Free Church. Lord James of Hereford : Had there been a change of views in the Free Church at that time ? Mr Johnston : There had evidently been, as I have endeavoured to explain, a growing desire to bring themselves into line with the United Presbyterian Church with reference to ultimate Union, and this was one of the steps towards that object. Lord James of Hereford : There is a change or modification of an essential doctrine. Mr Johnston : It is a change of an essential doctrine, that essential doctrine having been made a condition of the constitution of the association. Lord James of Hereford : So far as it goes the Lord Chief Justice says, you are not complaining of that as a step in the wrong direction. Mr Johnston : As I am complaining of the Union, I am necessarily complain ing of a step. Lord James of Hereford : Which gets near to a similarity of doctrine. Mr Johnston : I am complaining of a step which in breach of the Constitution of the Free Church was taken in order to lead up to the objectionable Union. The Lord Chief Justice: I did not make my meaning clear. Do you claim to reject this ? It still remains an act of the Free Church. OF LORDS Mr Johnston : It still remains an Act of the Free Church. The Lord Chief Justice : Binding upon you. Mr Johnston : I think your Lordship must let me go one step further before I come to that. The Lord Chancellor : The question of what is the Free Church, you say, must be referred to the period when the Free Church was constituted. Mr Johnston : That is so. The Lord Chancellor: This Free Church in 1892, which purports to be an Act by the Free Church, is itself a depar ture from the Free Church of 1843. Mr Johnston : I do say that. Lord James of Hereford : But your members of the Church were parties to this. They did not object to it at the time. Mr Johnston: There was most dis tinct objection. Your Lordship is a little ahead of me. Lord James of Hereford : But iu 1892 are you going to show that they did dissent from this ? Mr Johnston : Yes, they did dissent. The Lord Chancellor: You are for the dissenters. Mr Johnston : We are for the repre sentatives of the dissenting minority. The Lord Chancellor: Dissenting to the Act of Union. Mr Johnston : And in 1892 too. To put it shortly there is a sort of safeguard ing and again a sort of compromise, and then in the Union which does take place things are placed on a different footing altogether. The Lord Chancellor: They were different steps to the same end, you say. Mr Johnston : Yes, my Lord. I have referred to that passage as utterly incon sistent and subversive of the two Heads in the Confession. It then proceeds to say : " That it is the duty of those who believe, and one end of their calling by God, to make known the Gospel to all men everywhere for the obedience of faith. And that while the Gospel is the ordinary means of salvation for those to whom it is made known, yet it does not follow, nor is the Confession to be held as teachmg, that any who die in infancy are MR. JOHNSTON'S SPEECH 257 lost, or that God may not extend His mercy for Christ's sake, and by His Holy Spirit, to those who are beyond the reach of these means, as it may seem good to Him according to the riches of His grace," and that I think is also inconsis tent with Head X of the Confession. " That in holding and teaching according to the Confession of Faith, the corruption of man's whole nature as fallen, this Church also maintains that there remain tokens of his greatness as created in the image of God ; that he possesses a know ledge of God and of duty ; that he is responsible for compliance with the moral law and with the Gospel; and that, although unable without the aid of the Holy Spirit to return to God, he is yet capable of affections and actions which in themselves are virtuous and praise worthy." As I understand that, it has reference to Chapters vi. and ix., but it is not such a marked discrepancy as the two former I have referred to, and therefore I do not enlarge upon it : " That this Church disclaims intolerant or persecuting principles, and does not consider her office-bearers, in subscribing the Confes sion, committed to any principles incon sistent with liberty of conscience and the right of private judgment. That while diversity of opinion is recognised in this Church on such points in the Confession as do not enter into the substance of the Reformed Faith therein set forth, the Church retains full authority to determine, in any case which may arise, what points fall within this description, and thus to guard against any abuse of this liberty to the detriment of sound doctrine or to the injury of her unity and peace." Now we unquestionably object to that provision because it practically sets loose the Con fession of Faith and leaves it for the Church of the time to determine what parts of the Confession of Faith remain the Faith of this Church, and what parts ofthe Confession of Faith may be written out of it. At page 134, your Lordships will find the protests and dissents against this Declaratory Act. They are pretty numerous, and go from pages 134 to 138. Then I said there was passed, practically along with that, a sort of bargain or com promise. The minority could not have r prevented it passing, as it was passed by the majority, but they safeguarded it. The protests show that it was objected to, and resisted, but carried by a majority. Lord James of Hereford : It was opposed either in the spirit of your clients now, or by your clients themselves. Mr Johnston : By both. I cannot say that all my clients were members of the Church at that time. Lord James of Hereford : Subject to changes in the bulk they were the same. Mr Johnston : Quite so, my Lord. If your Lordships look at page 138, you will find the Qualifying Act headed, " Act anent Declaratory Act 1892 on Confession of Faith," " the General Assembly enact and declare as follows : — Whereas the Declaratory Act 1892 was passed to remove difficulties and scruples which had been felt by some in reference to the declaration of belief required from persons who receive licence, or are admitted to office in this Church, the Assembly hereby declare that the statements of doctrine contained in the said Act are not thereby imposed upon any of the Church's office bearers as part of the standards of the Church ; but that those who are licensed or ordained to office in this Church, in answering the questions and subscribing the formula, are entitled to do so in view of the said Declaratory Act." I do not say that goes the whole length, but it goes some way at any rate in modifying the effect of the Declaratory Act. Now it is held up against us, " Why do not you secede then?" My Lords, I do not admit that there is a duty of secession in a case of that sort. There is a duty of resist ance and of taking action when the first opportunity comes, and we have done so. We have certainly resisted, and when it comes to touch property, then is our opportunity, and our only and first oppor tunity, to effectively resist. It does now come to touch property, when, following that out, they commence, in 1896, their union campaign. That also is resisted, and every step in that is contested by the minority I represent. I desire now to refer to the union documents themselves, because I confess, to my own mind in this matter, the terms of these documents themselves are condemnatory of the 258 union. The first document is the Over ture, at page 139, to be trans mitted to Presbyteries for their opinion with reference to the union with the United Presbyterian Church. One comment I make in advance upon it is, that they may call it an "incorporating union," but I think you will find it is no true union at all. It is a working agree ment, and to express it shortly it is a pooling of their funds, and in addition it contains no constitution to which they can refer. They cannot show us what the constitution of the United Free Church is, but they do show us that whatever it be, it is in the power of that Church to alter it at will. This docu ment sets forth : " Whereas negotiations for an incorporating union between this Church and the United Presbyterian Church have been in progress since the year 1896, as more particularly set forth in the preamble of a Uniting Act, the tenour whereof follows ; and whereas the General Assembly, at its meeting in the month of May 1900, has, with consent of a majority of Presbyteries, authorised and accepted the plan of union set forth in proposals submitted by the Joint Union Committee." I would characterise the plan of union as nothing but a working agreement — "as a plan to come into operation as soon as a Uniting Act shall have been duly passed, it being under stood that the United Church shall have such common designation as may be agreed upon, and that secondary details may be adjusted as to the General Assembly may seem meet," "therefore the General Assembly, with consent of a majority of Presbyteries, enact and ordain as follows." Then follows the Act which it is proposed in this Overture to Presby teries to pass as a Uniting Act of the two bodies. The proposed Act is : "That an incorporating Union may be effected by the Assembly in terms of the Uniting Act herein set forth as follows, viz. : ' Whereas the Synod of the United Pres byterian Church, at its meeting in May 1896, upon a proposal of the General Assembly of the Free Church of Scotland for closer co-operation of the two Churches in their common work, cordially approved of the proposal, and further adopted a HOUSE OF LORDS resolution in favour of taking steps to wards a Union with the Free Church of Scotland, and appointed a Committee, which was re-appointed at the meeting of the Synod of 1897, to prosecute that object; and whereas the Free Church Assembly ' " did much of the same sort ; and at the top of page 140: '"And whereas these Committees having met and communicated to one another the existing doctrinal standards, rules, and methods of the two Churches, it appeared that in regard to doctrine, government, discipline, and worship therein set forth a remarkable and happy agreement ob tained between them ' " — it is not identical — " ' as also in particular in the views of the two Churches with respect to the spirituality and freedom of the Church of Christ, and her subjection to Him as her only Head, and to His Word as her supreme standard, and that an incor porating union might harmoniously be accomplished ; and whereas Questions and a Formula to be used at ordination and induction, as also arrangements for the support and training of the ministry, and for combining the methods and work of the two Churches have been agreed upon, and have been considered by the inferior Courts of the two Churches, and in par ticular'" — then is set forth the plan of Union, which comprises proposals relating to provision for the ministry, training of the ministry, aged and infirm ministers' fund, constitution of the General As sembly, and so on — "and the Synod having approved of the proposals sub mitted under the several heads of said Report as providing a satisfactory scheme for an incorporating Union of the two Churches, remitted them to Presbyteries." And in like manner the General Assembly of the Free Church did the same. Then I pass to page 141, letter C, "after all which the Overture proceeded: 'There fore the General Assembly, with consent of a majority of Presbyteries, hereby enact and ordain that the plan of Union set forth in the proposals hereinbefore referred to, including the re-arrangement of Presbyteries and Synods, as that may be approved by next or any subsequent Assembly, is authorised and accepted by this Church with a view to an incor- MR. JOHNSTON'S porating Union with the United Presby terian Church as a plan to come into operation as soon as a Uniting Act shall have been passed by the General Assembly, with consent of a majority of Presby teries of the Church, it being understood that the United Church may be declared to consist of the Free Church of Scotland as existing previously to the Union and the United Presbyterian Church as exist ing previously to the Union, under such common designation as may be agreed upon ; and that secondary details may be adjusted as to that Assembly may seem meet.' " Then it says : " ' And whereas the Synod of the United Presbyterian Church, at its meeting in May 1900, adopted the proposals which had been remitted in the previous year to Presby teries and Sessions, and by them finally approved of; and further, having ap proved of the proposals respecting Pres byteries and Synods, and the other prac tical matters agreed on as necessary to complete the arrangements for entering into Union with the Free Church of Scotland, and having also approved of the proposed Uniting Act and of cer tain express Declarations which the Churches have in view in entering into Union, the Synod remitted said Act and Declarations for final approval to Presbyteries and Sessions,'" and then " 'approved of the said proposed Uniting Act, and also of the foresaid Declarations, and remitted the same in the form of an overture to Presbyteries.' " Now, I con fess I feel it extremely difficult to find under that proposal where is the Union and what is the constitution of the united body ; but it is still more important to observe what are the Declarations under which they propose that this so-called Union is to take place. They are to be found at page 143, but my learned friend quite rightly asked me to read, at the bottom of page 142, " ' Now, therefore, the said General Assembly ofthe Free Church of Scotland and the Synod of the United Presbyterian Church thus met, first of all desire to express their devout thankful ness to the great Head of the Church,'" and so on. " ' And the General Assembly of the Free Church of Scotland and the Synod of the United Presbyterian Church, SPEECH 259 empowered as aforesaid, do hereby, in terms and in pursuance of the deliverances of their respective Church Courts, enact and declare that the Free Church of Scot land and the United Presbyterian Church do and shall henceforth constitute one United Church ; that the name of the United Church shall be The United Free Church of Scotland, and that its Supreme Court shall be designated The General Assembly of the United Free Church of Scotland.' II. That the General Assem bly of the Free Church of Scotland and Synod of the United Presbyterian Church, when they have met for the purpose of consummating the Union, and have adopted the Uniting Act, shall thereafter have the powers of a General Assembly of the United Church, and may do and authorise all things necessary or con venient to be done with a view to the orderly inauguration and conduct of the affairs of the United Church." That is a statement of Union, but, as I said before, I defy anyone to find out what the terms in that Union are, or what the constitu tion of the so-called united body is. Now, I ask your Lordships to note, at page 143, the saving clause, if I may so call it, on this Union : " The Church " — and that is the Free Church in that sense — " enters into this Union, and authorises it in view of the following express Declarations " : " 1. The various matters of agreement between the Churches with a view to Union are accepted and enacted without prejudice to the inherent liberty of the United Church, as a Church of Christ, to determine and regulate its own constitu tion and laws as duty may require, in dependence on the grace of God and under the guidance of His Word." There fore, if there be a Union, if there be a new United Free Church, that Church has a right to determine and regulate, and therefore to alter and modify, its own constitution as it conceives for the time being duty to require. Lord James of Hereford : Would "constitution" in any way, according to you, touch doctrine ? Mr Johnston : Certainly, my Lord, because the doctrine to which the Church subscribes is at the basis of its constitu tion. It would not have been a Free 260 HOUSE Church unless it had adopted the West minster Confession, and the doctrine therein imposed. Lord James of Hereford : The con stitution of a body is different from the faith it holds. Mr Johnston : But your Lordship sees the constitution of the body depends upon the conditions which go to make that body. The Lord Chancellor : I am not t[uite certain I understand it, because if the third clause, which you have not yet come to, is read together with the first, it seems to me that each of them may say what they like, and yet they are united. Mr Johnston : That is why I said that it is no true union. Lord Davey : It declares the liberty of the United Church, not the liberty of each Church separately. The Lord Chancellor : I was refer ring to clause 3. Mr Johnston : Condition 2 is : " The Larger and Shorter Catechisms of the Westminster Assembly, received and sanc tioned by the General Assembly of 1648, and heretofore enumerated among the doctrinal standards of the United Presby terian Church, continue to be received in the United Church as manuals of religious instruction long approved, and held in honour by the people of both Churches," and then 3 is : " As this Union takes place on the footing of maintaining the liberty of judgment and action heretofore recognised in either of the Churches unit ing, so, in particular, it is hereby declared that the members of both Churches, and also of all Churches which in time past have united with either of them, shall have full right, as they see cause, to assert and maintain the views of truth and duty which they had liberty to maintain in the said Churches." Lord James of Hereford : That does cover doctrine. Mr Johnston : Yes, that surely does, my Lord. Lord Davey : Do members of both Churches include ministers and office bearers of both Churches ? Mr Johnston : I should conclude so, necessarily, my Lord. They are members of the Church. I said, and with some OF LORDS confidence I think I may reassert, that this so-called union is nothing but a working agreement for the purpose of working the two systems concurrently, and making a common purse of their funds and applying them as a common committee, so to speak, may direct. If that is not a diversion of the trusts of the funds with which we are dealing from the conditions of the trusts under which they are held, it is very difficult to see what would be so. Lord James of Hereford : Is it not worth your while to consider whether you cannot argue the other way, namely, the stronger you establish this Union to be, the more complete is the appropriation of the funds of one body to maintain the faith which they have not hitherto professed, and the faith of another body. Mr Johnston: Your Lordship has stated it quite correctly — I was putting it from one point of view, and your Lord ship probably puts it from a stronger point of view. I do not go through them, but at every stage of these proceedings protests, dissents, and amendments are moved, which are to be found at page 144. Then you have the actual Uniting Act, for which what I read before was merely a preamble. That is at page 155. I do not read it because it is the same thing over again with the same declara tions appended to it by each party. At page 153 you have an Act of some im portance as shewing what the effect of this Union is in the matter of property. " Whereas a Union of the Free Church of Scotland and of the United Presbyterian Church, under the name of the United Free Church of Scotland, is in contempla tion and is about to be consummated : And whereas in the event of the proposed union being carried out, it is necessary and expedient in the interest of said Free Church of Scotland and the said United Free Church of Scotland, and for facili tating the administration and work of the said United Free Church of Scotland, and of the various institutions connected with and forming the same, that it be enacted, ordained, and declared, as the General Assembly, in virtue of the powers belong ing to them under the rules and regula- MR. JOHNSTON'S SPEECH tions of the said Free Church of Scotland, or otherwise belonging or competent to them, hereby specially Enact, Ordain, and Declare that the United Free Church of Scotland is and shall be the successor in office of the said Free Church of Scotland," and its officials — "and further that the whole property belonging to the Free Church of Scotland, or in which the said Free Church is interested, presently vested in, or in any way held by the said Free Church of Scotland" — and its officials and so on — "shall belong to the United Free Church of Scotland, and shall be vested in, and held for behoof of the United Free Church of Scotland." That, of course, is the particular Act which touches property, and therefore the rest having led up to it, that is the Act which this action was raised to set aside. Immediately after what they call the consummation of the union, there is an Act of the General Assembly of the United Free Church appointing the united body of trustees to be the trustees of that Church and to hold the property. I think the last document which it is necessary to refer your Lordships to is the modification which has been author ised prior to the union, and which had necessarily to be made as soon as the union was passed, with reference to the formula of the Church. As I think your Lordships may anticipate from the posi tion of the two Churches coming into union, neither of their formulas would be accepted by the other, and therefore at page 163, letter G, there is this: "The General Assembly, in accordance with the terms ofthe Uniting Act, enact and ordain that the following Questions and Formula, considered and agreed upon by the Inferior Courts of the two Churches, shall be the Questions and Formula to be used at the Ordination and Induction of Ministers and Office-Bearers in the United Free Church." There is a preamble quite different from the previous preamble of the Free Church : " It is hereby declared, that the following Questions are put in view of Act 1647 approving of the Con fession of Faith ; Act XII. 1846 of the Free Church of Scotland; Declaratory Act 1879 of the United Presbyterian Church ; and Act XII. 1892, with relative 261 Act of 1894, of the Free Church"— those two Acts are Declaratory Acts, which, though not consistent with one another, are both in the same direction, modifying the Confession of Faith — "and that Pro bationers are entitled to take advantage of any of these Acts. It is hereby also declared, that the documents referred to in Question No. 4, and there named for brevity the Claim of Right of 1842, the Protest of 1843, and the Basis of Union of 1847, are respectively" — the docu ments which your Lordships know of the two Churches. Your Lordships will observe that the differences between the Free Church, at page 84, and this, in the first place are the excision of any reference the Preamble of that Act had to the Scriptural principle of the duty of the Civil Ruler, but then when you come to the Questions them selves, the important Questions are ex tremely diverse. It is not, "Do you sincerely own and declare the Confession to be the Confession of your Faith ? " but "Do you sincerely own and believe the Doctrine of this Church, set forth in the Confession of Faith approven by Acts of General Synods and Assemblies ; do you acknowledge the said doctrine as express ing the sense in which you understand the Holy Scriptures ? " I ask, what is the doctrine of this Church ? It is the doc trine of this Church as it has been modified by the Declaratory Acts of 1892, and as looking to the terms of the four conditions of union it may at any time by alteration by the Church come to be. Therefore you are called upon not to adhere to the Confession of Faith, but to the doctrine of this Church as, for the time being, this Church may declare it to be. Then the next question is : " Do you disown all Popish " etc. "tenets and opinions whatso ever, contrary to and inconsistent with the said doctrine of this Church ? " — again not inconsistent with the " Confession of Faith," but inconsistent with "the said Doctrine of this Church." I think that is all I need read to show that this United Free Church is certainly not the Free Church, and is not an association the conditions of whose association are the conditions upon which in 1843 the Free Church came out, and upon which the a62 HOUSE OF LORDS trusts which your Lordships are asked to declare and protect were constituted. Lord James of Hereford : Are you reading from Clause II. these words, " do you sincerely own and believe the doctrine of this Church set forth in the Confession of Faith and approven by Acts of General Synods and Assemblies?" Would that include, according to you, power in the future for a construction to be put upon the faith by those Synods and As semblies, or does it refer to Acts in the past ? Mr Johnston : It refers to the past and the future, both. Lord Davey : Is that so? It has occurred to me more than once in the last argument, and in this, that "approven by Acts of General Synods and Assemblies " agrees with and is explanatory of " Con fession of Faith." The Lord Chief Justice : It identi fies it. Lord Davey : Yes, " the doctrine of the Church set forth in the Confession of Faith," and then " approven by Acts of General Synods and Assemblies" is an adjective, the substantive of which is " Confession of Faith " and not " doc trine " as you read it. Mr Johnston : With deference, my Lord, I submit it is not the Confession of Faith which is approven, but the doctrine of this Church which is approven. Lord Davey : Why do you say so ? Is not my construction a perfectly pos sible one ? Mr Johnston : It is perfectly pos sible, my Lord, but I venture to submit not the correct one. If you take the language and dissociate it from anything surrounding it I admit your Lordship's construction might be quite clear, but associating it with what surrounds it, then I think there can be no question that it is "the doctrine of this Church approven by Acts of General Assembly," and that doctrine is set forth, but is not the whole Confession of Faith, and is merely that part of the Confession of Faith which the Church adopts as its doctrine. Lord Davey: You read it as "the doctrine of this Church approven, from time to time by Acts of General Synods and Assemblies as set forth in the Con fession of Faith." Mr Johnston : Yes, otherwise I would read out of the question altogether the two Declaratory Acts. Lord Davey: I am not so sure of that. Lord James of Hereford : At Clause II., on page 85, you have expressly the words, ' ' Do you sincerely own and declare the Confession of Faith, approven by former General Synods " — that is the past. If in the construction I put to you the words only refer to what is past, on page 164, I do not see that there is much difference between the two Declarations. Mr Johnston : Not if you insert the word "former," but the word "former" is a rather important word, and is omitted, particularly when you know what has taken place between 1846 and 1900 Lord James of Hereford. Still, as Lord Davey has pointed out, it does con fine it to the Confession of Faith being construed as one thing. Does that give power to alter and amend a portion of the doctrine 1 Mr Johnston : I cannot conceive that it does otherwise, when we know, if I am right at least, that in 1879 the one Church, and in 1892 the other Church, did affect the Confession of Faith by its Declaratory Acts. Lord James of Hereford : Because they did so on those occasions, there is no reason that these words should have a different construction put upon them. The Lord Chief Justice : If you are entitled to bring in the Acts of 1892 and 1894, as being what was approven by General Synods and Assemblies, your point would be a good one, but then you would have the Confession of Faith altered by those Declarations. Mr Johnston : Surely I am entitled. The Lord Chief Justice : I am not suggesting you are not. Mr Johnston : It is not I who bring them in, but the United Free Church who, by their Preamble, bring them in. I could not carry the matter further by any further argument. I have stated my point upon that, and I think I have now ex hausted the matter. The next matter to which I have to refer is rather a long one, MR. JOHNSTON'S and I think it might be wasting your Lordships' time to take it up at once, but there is an incidental matter which I may dispose of just now. With reference to the point put by the Lord Chancellor at an early stage to-day as to the position of the parties in 1842, may I first say that I have ascertained by reference to the proceedings of the Assembly that the majority in 1842 in favour of the claim of right was 241, against 111; that the Pastoral Address upon which I have founded, and which contains the speech of Dr Chalmers, was signed, as Moderator, by Dr Gordon, who himself was one of the Free Church leaders, and the Claim of Right was moved by Dr Chalmers, seconded by Dr Gordon, and spoken to by Mr Murray Dunlop — the three leaders of the Free Church who afterwards went over. So I think that will satisfy your Lordships that the majority were identical with those who formed the Free Church. The Lord Chief Justice : Then 474 ministers (not members of the Assembly) went out. They adopted that action on the faith of those documents. Mr Johnston: Yes, my Lord. The numbers I have given were only the members of the Assembly. Lord Chief Justice : Yes, so I under stand. Mr Johnston: On the record, my learned friends make weight of certain unions which have taken place as justify ing the present union. On what exact principle I am not quite clear, but I think it is on the idea that having acquiesced in such unions the Free Church must have accepted the position, so that any mem bers of the Free Church must be barred from objecting to any further unions. It is right that I should very shortly give your Lordships a note of what we know about these unions. The Lord Chancellor : I cannot quite follow that. I should have thought that we had quite enough to do with this one without going into others. Suppose you had acquiesced in other unions under other circumstances, how would that pre clude you, if you are right in your point SPEECH 263 here, from complaining against a union which did what you say has been done here? Mr Johnston: Then, my Lord, per haps I had better leave it to see what my learned friends make of it. The Lord Chancellor: I do not think we need unnecessarily prolong this matter. Mr Johnston : Then, my Lord, I will deal with the last question to which I have to address myself. I assume, in the meantime, that I have established my proposition that the constitution of the Trust involves those two conditions, and that they have been departed from by the Churches uniting. It then remains to consider whether my learned friend's asser tion of an inherent right to legislate — using that expression — empowers him to make any such alterations as he has made upon doctrine or principle. My learned friend supports himself in that on the record and afterwards in argument upon different grounds. On his record he asserts a common law right to control and regulate, not only the affairs of the Church, which we would accede to him, so far as it is proper to be done by bye- laws, so to speak, but also to change its doctrine and tenets, and he asserts that by virtue of that legislative power so inherent in the Assembly, and acting through its majority, it has done certain things which proves that it has that power. I have said " my learned friend," but I should say "the Defenders," al though I cannot dissociate my learned friend from his clients, unless he is going to abandon the course they make on the record. If he does I shall be quite pre pared to take him on that, and I think he does mean to do so, because he has to have recourse to other grounds as sup porting this contention. The Defenders do maintain it upon something which was done before the passing of the Barrier Act, and something which was done after wards. Adjourned to Monday morning next, at 10.45. THIRD DAY MONDAY, 18th JUNE 1904. Mr. Johnston. — My Lords, I have this morning to deal with the question of the Respondents' defence of the inherent power to legislate. Now, my Lords, I think I may assume that I have estab lished that the Establishment principle was at least one of the bases of the Free Church when they went out, and certainly that the Westminster Confession of Faith was. I have also dealt at sufficient length with the question whether in this Union with the United Presbyterian Church the Free Church has departed from the Estab lishment principle, and has in the second place modified the Confession of Faith. The question therefore with regard to this inherent power to legislate I think should be dealt with on these two points. First, are these two principles essential, or are they non-essential, and therefore alter able? The Lord Chancellor. — Or either of them. Mr. Johnston. — Or either of them cer tainly. I will take first the question, Is the Establishment principle essential? Now, Lord Low deals with that at two passages which I should refer to in Print D at page 62. He first of all, at letter F on page 62, quotes from those parts of the Confession of Faith which are introduced into the Declaration of 1842. He says, •" It then proceeds (and this is the part ' referred to in the third proposition in the 1 Claim) : " yet he hath authority, and it ' "is his duty, to take order that unity ' "and peace be preserved in the Church, ' " that the truth of God be kept pure and ' " entire, that all blasphemies and heresies ' "be suppressed, all corruptions and ' "abuses in worship and discipline pre- ' " vented and reformed, and all the ordin- ' "ances of God duly settled, administered ' "and observed."' And after considering that passage, the result he comes to is found in a short passage at page 65, letter F, in which he draws this conclusion : ' It therefore appears to me that as a ' matter of creed the Free Church simply ' accepted the statement of the West- ' minster Confession in regard to the duty ' of the civil magistrate, although, as a ' matter of opinion, the founders of the ' Church gave their adhesion to the par- ' ticular application of the duty to which L effect had been given in Scotland.' Now I dispute his Lordship's conclusion, that this is left a mere matter of opinion. I have already sufficiently adverted to the documents themselves, but I would turn just for one moment to a passage The Lord Chancellor. — Before you go to that, I am afraid I do not quite under stand what his Lordship means in that passage when he says, ' as a matter of ' creed.' That is not a matter of opinion in the popular sense. He says, 'as a ' matter of creed the Free Church simply ' accepted the statement of the West- ' minster Confession in regard to the duty ' of the civil magistrate.' If it accepted it, it made it its own. Lord Davey. — The particular interpreta tion of a formulary may be just as much a matter of creed as a formulary itself. The Lord Chancellor. — Certainly. Mr. Johnston. — Quite so. The Lord Chancellor. — To tell you the truth, I cannot quite make out what the learned Judge means. That is why I pause, because I do not quite follow that. Mr. Johnston. — I, on the other hand, my Lord, drew attention to his language, because that is the conclusion that results from an exhaustive consideration by him of the passage in the Claim, and his views in regard to it. I read that sentence as perhaps a not very accurate way of putting it, that although his Lordship talks of it as a matter of creed, he does not really mean it as a matter of creed in the sense your Lordships were putting, but that he reduces it to a mere matter of opinion to be held or not to be held. Lord James of Hereford. — Do you mean MR. JOHNSTON'S in the sense of being unimportant and not to be fundamental ? Mr. Johnston.— Yes, my Lord, as being non-essential. Lord Davey. — When you are inquiring what is the body of theological tenets held by a particular religious association, how do you distinguish between matters of opinion and matters of creed, if what is called matter of opinion is held as one of the tenets of the rehgious association ? Mr. Johnston. — Well, my Lord, I hardly know Lord Davey. — I suppose your answer would be that that is not a matter for you ? Mr. Johnston. — I do not think I am concerned with making his Lordship's language consistent. Lord Davey. — Quite so. Mr. Johnston. — I am concerned in showing that it was not a non-essential — that it was not a mere matter of opinion to be held or not held; to be held one year and departed from the next, and for that purpose I was on the point of referring your Lordships again to the important passage in the Declaration of the Constitu tion of the Established Church at page 48 in the Deed of 1842. The Lord Chancellor. — The difficulty I have at present, and which I am afraid I have not solved as yet, is this — I do not understand the antithesis which the learned Judge means to draw. He says, ' As a matter of creed the Free Church ' simply accepted the statement of the ' Westminster Confession in regard to the ' duty of the civil magistrate, although ' as a matter of opinion the founders of the ' Church gave their adhesion to the par- ' ticular application of the duty to which ' effect had been given in Scotland.' I really feel a difficulty as to what is meant there. However, as my noble and learned friend has said about another matter, it is not for you to answer the question — I shall ask the Dean of Faculty presently what it means. Mr. Johnston. — Then, my Lords, may I refer your Lordships back to page 48 of print A, where you will find, in the first place, the Declaration of the General Assembly, or rather it is the dissenting majority— it is the Protests of 1843 an nouncing that the Declaration of 1842 is SPEECH 265 'holden as setting forth the true ' constitution of the said Church ; and ' that the said claim, along with the laws ' of the Church now subsisting, shall in ' no wise be affected by whatsoever ' the General Assembly may for the future do ; and then, ' finally, whUe firmly asserting ' the right and duty of the civil magis- * trate to maintain and support an Estab- ' lishment of religion in accordance with ' God's Word, and reserving to ourselves ' and our successors to strive by all lawful ' means, as opportunity shall in God's ' good providence be offered, to secure the ' performance of this duty agreeably to ' the Scriptures, and in implement of the ' Statutes of the kingdom of Scotland, and ' the obligations of the Treaty of Union as ' understood by us and our ancestors, but ' acknowledging that we do not hold our- ' selves at liberty to retain the benefits of the ' Establishment while we cannot comply ' with the conditions now to be deemed ' thereto attached,' then they protest. Now, I say, that is making the Establish ment principle just as essential to their position as the causa querela, — the matter upon which the Disruption took place. My Lords, I pointed out, and I do it again as shortly as I can, that in these documents you cannot expect the common ground or foundation upon which they start to be stated as the fundamental prin ciple. The principle upon which they differ is necessarily a fundamental prin ciple, and the whole is built upon the foundation of the Establishment principle. You might just as well say because you do not see the foundations of the building, but only the superstructure, that therefore it has got no foundations. I venture to say that necessarily running through the whole of these documents you have, as the foundation upon which the whole thing proceeded, the Establishment principle, and, my Lords, I think by reference that is made equally clear from the document of 1851, at page 103, Print A. I will ask your Lordship to take two references. The first is at page 97 at letter E, and the second at page 103, letters B to C. As early as 1851, in describing the situation, they say in the first passage, ' but by reviv- ' ing and re-enacting the Statute of 1592, ' the original charter and foundation of 266 HOUSE OF LORDS ' Presbytery, it recognised as an inalien- ' able part of the constitution of this ' country the establishment of the Presby- ' terian Church.' Lord James of Hereford. — When it says 'it recognised,' what does 'it' refer to? We have not got the context. Is ' it ' the Church ? Mr. Johnston. — Yes, I think so. At letter D you wUl see it says : ' which the ' Revolution Settlement did confer upon ' the Church as well as upon the nation. 1 Not only did it put an end to the cruel ' persecution,' and so on. Then I will refer to the other passage, at page 103, letters B to C, 'Holding firmly to the ' last, as she still holds, and, through ' God's grace, will ever hold, that it is the ' duty of civil rulers to recognise the truth ' of God, according to His Word, and to ' promote and support the kingdom of ' Christ,' and so on. That is an emphatic statement that the un-disrupted Church held 'firmly to the last' (that is, to 1843) and that this Church ' holds still ' (be cause they hold themselves to be the Church) 'and through God's grace will ' ever hold.' Then, in final conclusion upon this point, I will refer again to the affectionate Address of Dr. Chalmers adopted by the Church as a whole, issued as their docu ment, or as their Prospectus to their hoped- for adherence. Your Lordships have that at page 1 1 of Print C. Now, my Lords, that the Westminster Confession is essential, I think, goes al most without saying. At page 48 of Print A, letters E to F in the Protest, which is their originating document, they say : ' Maintaining with us the Confession ' of Faith and Standards of the Church of ' Scotland as heretofore understood.' I shall have something to say immediately upon the words ' as heretofore understood.' But that the Confession of Faith is taken with them as the foundation of their faith, I think there can be no doubt. Now, my Lords, I should give your Lordships a reference at this stage to the case of Dill v. Watson, because I think it is right I should give what is recognised as the leading authoritative definition of what a Creed is in the sense of differenti ating one Church from another. Dill v. Watson is reported in 2 Jones's Irish Reports. The page I am about to quote is page 90, and the following pages. The Lord Chancellor. — I think you have not quoted the reference to the Reports quite accurately. Mr. Johnston. — It is volume 2 Ex chequer Reports (Ireland) by Jones. The case commences at page 48 ; but I was about to quote a passage from the decision of the learned Judge — I am not quite sure what his title is — I think it is Baron Smith. The Lord Chancellor. — Yes, it was Sir William Cusack Smith. Mr. Johnston. — I may just explain my view of it. I would put it in this way. The belief of a Christian Church in general may be founded upon Holy Scripture ; but what differentiates one Sect or Church in that sense from another is their accepted and crystallised definition of what those Scriptures contain, which is their creed, as here the Westminster Confession. The learned Judge says in Dill v. Watson, ' I unhesitatingly agree with ' Mr. Holmes that the Bible is the rule — the only rule of faith; that it is the star which is wanting to guide the wisest amongst us to the true Sanctuary where we should bow down and devoutly offer the incense and worship of the heart. I agree with him that to appeal from the Word of God to the opinions or decrees of man is irrationally and impiously to withdraw our faith and allegiance from perfec tion, infallibility, and truth, and to transfer them to infirmity, fallibUity, and error. I also agree with him that we are not to coerce our neighbour into an adoption of our belief, but I at the same time hold that the Scriptures must be interpreted before they can be come a rule of common faith ; that men's interpretations of the Bible constitute the foundation of their faith; that the members of a community who, after having searched the Scriptures, all concur in giving one interpretation to their fundamental and essential contents; that these, I say, form one religious body or Church ; while those who con strue the Scriptures differently from these, but in concurrence with each other, form another distinct religious MR. JOHNSTON'S community or Church. Again, I do not conceive that I appeal from the Word of God to that of man by proclaiming or attesting by my signature that I concur in the interpretation given by a numerous body of my fellow-Christians to certain passages of Scripture. They agree with me and I agree with them in construc tion and consequent creed ; but neither take their belief upon the authority of those others. Both derive their faith from the Bible as its" common source ; both consider the Bible as containing the only rule and furnishing the only unerring guide to a true faith; each with God's assistance and the subordin ate and pious aid of human instruction interprets as well as. man's infirmity will permit ; both coincide in the same inter pretation ; that interpretation regulates their faith; and all who thus coincide become members of the same religion. And, third, we do not coerce our neigh bour by calling for his signature to our profession or Articles of Faith. We leave him free to adopt or to repudiate that faith according as his reason, his conscience, and the grace of God may direct him; we but say to him, if you agree with us affix your signature to certain Articles, or in some way notify your recognition of their truth ; or if you disagree, withhold such signature or declaration.' My Lords, I submit that the Confession of Faith comes under the description there given of the Creed of the Church, so differentiating that association of Christians from any other association of Christians ; and I submit that if you adopt any one creed as the basis of the association you cannot cut and carve upon that without altering the foundation upon which that association has been brought together; and consequently that there can be no question that the Confession of Faith, adopted as the foundation of the Church or Association, is one of the essentials, and therefore unalterable, unless you have internally power to alter it. My Lords, I think I may now pass to the second branch: assuming that these two things are essential, or that one or other of them is essential, I come to the question: are they alterable,— not as a SPEECH 267 general principle, but are they alterable in this particular association? Now, at this point, I must take my learned friend's clients, the respondents, upon their record. I read, and I shall not read again (I will merely give your Lord ships the heads of it), the position they take in their third statement, at page 87 of the print. To analyse it, what it comes to is this : they assert first, a common law right to change the doctrines and tenets of their association by virtue of legislative power inherent in their General Assembly acting through a majority of that Assembly. I will take that point first, and then come back upon the others. Now, in supporting that view, my learned friend, the Dean of Faculty, founded upon a passage your Lordships will find in the opinion of Lord Cran- worth in a case from Scotland in the House of Lords, of Forbes v. Eden, which is reported in the Lower Court in 4 Mac- pherson, that is the third series of the Scotch Reports, at page 143; and in the House of Lords it is reported in the fifth volume of the same series, page 36 of House of Lords cases. The Lord Chancellor. — Is that the Scotch House of Lords cases ? Mr. Johnston. — No; it is part of the Court of Session Reports. The Lord Chancellor. — Do you know what volume it is reported in our Reports ? Mr. Johnston. — It must be in the very first, for the date of it is May 1867, and the Law Reports began in 1865. Lord Davey. — I am not sure it is reported in the Law Reports. Mr. Johnston. — From my not having a reference to the Law Reports I am doubtful whether it is, but it should be in the first volume of Scotch Appeals. The Lord Chancellor. — I will see. Mr. Johnston. — I have now had the reference handed to me, and your Lord ships will find it in 1 Scotch and Divorce Appeal Cases. Now, my Lords, I will state very shortly the circumstances of that case, because it is necessary your Lordships should know them in order to under stand the bearing of the opinion given by Lord Cranworth in that case ; for the 268 HOUSE OF LORDS opinion of his Lordship, if it be taken literally, does use the word 'legislature' undoubtedly. My Lords, the facts in that case were these : Mr. Forbes was an Episcopal clergyman of Burntisland, in Scotland, and the defenders in the case were the Episcopalian Synod headed by Bishop Eden, who at that time was the Primus. The complaint of Mr. Forbes was that an alteration had been made in the canons of the Episcopal Church of Scotland, which, at the time he had entered that Church were the Canons of 1838, and that they had been altered to his detriment by the Canons of 1863. The whole question really turned round the use of the Scottish Communion Office. In the Canons of 1838 both the Scottish Office and the English Office were competent to be used in the Scotch Church, but the Scottish Office had a certain preference given to it in respect that it was to be used at ordinations and other more important functions of the Church. The Canons of 1863, whUe leaving it under certain circumstances still open to use it, reduced it from the primary position to a secondary position ; and the difficulty which Mr. Forbes asserted met him, in consequence, was that a curate whom he had engaged to assist him in his church at Burntisland was unable to subscribe the Canons of 1863, although he would have subscribed the Canons of 1838. The action which he brought was one of declarator and also of damages, and the judgment of the Court was this : ' You have set ' forth no relevant case because you have ' not relevantly stated any patrimonial ' interest which we can consider. You ' have raised various questions of Church ' law, but it is not for us to consider ' those questions unless you can show that ' there is a a patrimonial question which ' they will result in concluding, and there- ' fore you have no relevant case.' But they proceeded at the same time to say : As these questions have agitated the Epis copal Church in Scotland, we think it right to give our opinion upon them, but the opinion necessarily is obiter. Now, an important distinction between the circumstances of that case and the circumstances of the present case is, that the canons of the Episcopal Church in Scotland had a passage empowering altera tions, as for instance, Canon 39. By the 33rd article in the Canons of 1838, sub scribed by the pursuer, it is enacted : ' A ' general Synod of the Church, duly and ' regularly summoned, has the undoubted ' power to alter, amend, and abrogate the ' canons in force, and to make new canons; ' and the said alterations, amendments, ' abrogations, and new canons, being in ' conformity with the recognised constitu- ' tion and acknowledged practice of this ' Church, shall not only oblige the minority ' in the said Synod, but all the absent ' members of the Church.' That of course is a power which was introduced into the constitution of this Church, but that is not one with which you have to deal. The 21st article of the Code of Canons of 1838 also enacted that 'Whereas it is acknowledged by the 20th and 34th of the Thirty-nine Articles, that " not only "the Church in general but every par- " ticular or national Church, hath author ity to ordain, change, and abolish "ceremonies or rites of the Church, " ordained only by man's authority, so "that all things be done to edifying," the Episcopal Church in Scotland, avaU- ing herself of this inherent right, hath long adopted and very generally used a form for the celebration of the holy communion, known by the name of the Scotch Communion Office, which form hath been justly considered, and is hereby considered, as the authorised service of the Episcopal Church in the administration of that sacrament.' Then it goes on to provide for its position in the Church. Now, having so explained the situation on which the case arose, Lord Chelmsford, who was the Lord Chancellor at that date, gave it as his opinion that the canon to which I first referred, empowering alteration, was one that cut the feet away from any complaint that the pursuer could make, in respect that it gave power to alter that which was properly a canon, and to make new canons, so long as those , were in conformity with the recognised constitution and acknowledged practice of the Church, and he went on to show that MR. JOHNSTON'S SPEECH 269 where canons, in respect that they were rites of the Church, ordained only by man's authority, not going to fundamental doctrine, but truly and properly canons, there was no acknowledged practice, — the practice of the Church had been indefinite, and there was no acknowledged practice of the Church against which the new canons could be said to err. That, my Lords, is the view of Lord Chelmsford, and he says, at page 48, ' It does not ' appear to me that the Canons of 1838 ' can properly be regarded as the contract ' between the members of the Scotch ' Episcopal Church at the time when the ' appeUant was ordained to the ministry. ' They are principally, if not altogether, ' directed to the regulation of order and ' discipline, and contain nothing with ' regard to the fundamental doctrines or ' articles of faith upon which the con- ' stitution of a religious community de- ' pends. But assuming that the Canons : of 1838 are to be taken as the contract ' between the members of the Scotch Epis- ' copal Church, the appellant subscribed ' (amongst the rest) to the 33rd canon, ' which declares that " a General Synod of ' "the Church, duly and regularly sum- ' "moned, has the undoubted power to ' "alter, amend, and abrogate the canons ' "in force, and to make new canons." ' And by his subscription to the Thirty- ' nine Articles he agreed that the Church ' has authority over rites and ceremonies, ' as declared in the 20th and 34th articles.' I read that passage to your Lordships, because, to understand the passage from Lord Chelmsford's opinion, upon which such reliance has twice been put by the respondents in the case, it is necessary to know really what the learned Judge was referring to when he speaks of legislation. Now, you have quite clearly laid down by the Lord Chancellor there that the subject- matter did not regard fundamental doc trines, or Articles of Faith, but did regard the regulation of order and discipline, and nothing more. I pass, therefore, now, my Lords, to the judgment of Lord Cranworth, and I read the passage upon which reliance is put, at the bottom of page 51 of this report. Lord Davey. — I observe that Lord Chelmsford says, speaking of the Canons of 1838, that 'they are principally, if not ' altogether, directed to the regulation of ' order and discipline, and contain nothing ' with regard to the fundamental doctrines ' or Articles of Faith upon which the ' constitution of a religious community ' depends.' Mr. Johnston. — Yes, that is the passage I read to your Lordships. Now, keeping that in view, I would ask your Lordships to listen to this passage from Lord Cranworth's judgment at page 51. He says: 'In the view I have ' taken of this question, I do not feel ' myself in strictness called on to go any ' further, but the appellant has argued ' his case with so much earnestness and ' ability that I have felt it due to him ' that I should shortly examine the case ' from his own point of view ; that is, ' that I should consider whether, assuming ' that there is any power in the Court to ' reduce thei Canons of 1863, he has ' shown any ground for such reduction. ' I am of opinion that he has not. The ' appellant' (the appellant was the pursuer in the case) 'rests his case on the analogy ' which he supposes to exist between the ' body associated as the Scotch Episcopal ' Church and an ordinary commercial ' partnership. He contends, truly, that, ' unless so far the articles of partnership ' authorise it ' The Lord Chancellor. — ' Unless so far ' as the articles of partnership authorise it.' Mr. Johnston. — It must mean that — it is misprinted here. The Lord Chancellor. — I am reading it in the Law Reports. Mr. Johnston. — 'He contends, truly, ' that, unless so far as the articles of ' partnership authorise it, no change can ' be made in its provisions by the mere ' will of a majority of the partners, nor, ' indeed, without the concurrence of every ' individual of whom the partnership is ' composed. And he contends that on ' the same principles the Synod, or general ' assembly of persons associated as a ' Church or religious body, can have no ' power to alter the canons or rules of ' that Church or religious body without ' the consent of every member of it, ' except so far as they are expressly ' authorised to do so by the terms of their HOUSE Legislature of of Association ligious body, State or not, 270 ' constitution. But the Synod of a Church ' seems to me to resemble rather the a State than the Articles of a partnership. A re- whether connected with forms an imperium in ' imperio, of which the Synod is the ' supreme body, when there is not, as ' there is in the Church of England, a ' temporal head. If this is so, I feel it ' impossible to say that any canons which ' they estabhsh can be treated as behig ' ultra vires. The authority of the Synod ' is supreme. It may indeed be that a ' Synod, or general assembly of a religious ' body, has no power to affect civil rights ' already acquired under existing canons ' or rules. But that is very different from ' saying that the canons or rules them- ' selves have no force among those who ' have no such complaint to make. This ' is my view of the principles involved in ' this case, but I think it right to add ' that, even on the narrower ground on 1 which the appeUant has proceeded, I ' think he fails to establish any ground of ' complaint against the new canons.' My Lords, that undoubtedly is very wide language. It is an assertion in a very positive form, if you take it literally, of a legislative power. But the question is, what does the learned judge mean by legislative power there? I think your Lordships will be satisfied that his mean ing was not quite so wide as his language, and, of course, one must keep in mind that he was speaking merely obiter, and that it did not go to the decision of the case. What his Lordship really means, I think, is this : that they have a power of regulating by canons, — you may call it legislating if you like, but he has really used too large a word. All he really means is a power to make what would be by-laws in any other association, but what would take the form of canons or regulations for order and discipline in such an association as an independent church. I do not think that my learned friends can stretch that language even to the extent of maintaining that it was the opinion of Lord Cranworth that there was unfettered and absolute legislative power to alter not merely the incidentals of rule and order, but the foundations of the OF LORDS association of which they were the ruling body. Your Lordships will find that he himself in the following passage of his opinion pretty well defines or limits what he understands by the word ' canons,' and I think he interprets the word as I have endeavoured to do. Lord Davey. — It has been suggested that there is some contradiction between the principle laid down by Lord President Inglis in the Court of Session and that laid down by Lord Cranworth. Lord President Inglis says: 'If a society, ' whether for secular or religious purposes, ' is bound together by articles of constitu- ' tion, and an attempt is made to alter any ' fundamental article of the constitution, ' the general rule of law undoubtedly is, ' that the majority may be restrained, on ' the application of the minority, from ' carrying the application into effect.' That is what Lord President Inglis says. Lord Cranworth says : ' There is no ' authority in the Courts either of England ' or Scotland to take cognisance of the ' rules of a voluntary society entered into ' merely for the regulation of its own ' affairs, save for the due disposal and ' administration of property.' Mr. Johnston. — I did not seek to contrast the opinions in the Court below with the opinions in this House, because they deal with the case from so diverse a point of view. Lord Davey. — I understand that, but we have been supplied with material, and suggestions have been made, and I should like to know whether you suggest there is any contradiction between those pro positions. I do not myself see that there is any. Mr. Johnston. — I do not think there is, my Lord, but I say again that the two Courts have dealt with the case on such very different grounds The Lord Chancellor. — I rather think what the learned Judge was there referring to was the fact that no property was in dispute there. Lord Davey. — Yes. Mr. Johnston. — That is entirely the ground. The Court below deal with it upon that ground, and they do not go obiter, so to speak, into the matter, which the House of Lords did. MR. JOHNSTON'S Lord Davey. — The Court had nothing upon which they could operate. Mr. Johnston. — My Lords, I cannot myself conceive where there is any other authority for the assertion made in the record here of inherent power to legislate in the wide and independent sense in which that is put, if Lord Cranworth's judgment does not really mean or infer it, as I submit it does not at all. The Lord Chancellor. — I think in the earlier case before Lord Eldon, Lord Eldon makes the point that if a religious body had made provision for alteration, of course that must be considered. He guards himself by saying that. Mr. Johnston. — Yes. In his judg ment in Craigdallie's case he guards himself in that way. The Lord Chancellor. — Yes. Mr. Johnston. — My Lord, if there is no law for them on this point, I would ask next, is the inherent power to legislate not negatived by the statutory history of the Church itself from 1560 right on to the Union of the Crowns, because, as they take the constitution of the Church of Scotland as their constitution, they must necessarily look back to what that consti tution was. Now, my Lords, without at length going over them again, I would remind your Lordships what the position of the Church was in the Statutes. We have printed these Statutes for the simple pur pose of letting your Lordships see the words of Parliament itself. I should point out in the first place, that in 1567 the first power given to the Church (it is at page 12 of our print of the Statutes) is the power of admitting ministers. That is placed, and properly placed, in the hands of the Church, in the Act of 1567, chapter 7. In the next place, two pages farther on, at page 14, letters B to C, in the 8th chapter of the same year, it places in the hands of the Church, as a judica tory, questions of heresy or departure from true doctrine. The Lord Chancellor. — Is there not some mistake in the reference you gave me? The 8th chapter you gave me is the King's Oath, to be given at his Coronation. Mr. Johnston.— Yes, your Lordship will find it in that, in the last six lmes, SPEECH 271 ' and out of their lands and empire they '' shall be careful to root all heretics and ' enemies to the true worship of God, that ' shall be convict of the true Kirk of God, ' of the aforesaid crimes.' That is what I meant by saying that it puts into the hands of the Church as a judicatory the decision of questions of heresies or depar ture from the true worship ; but then you must recollect that the State has already defined what the true worship is, and it is not conferring upon the Church the right to make new Confessions for that Church. Then, my Lords, on page 15 you have the Act of 1567, defining the jurisdiction of the Church as composed of preaching, discipline, and the administration of the Sacraments. Then three or four years later, at page 1 7, at letter D, it makes the Church again the judge, having the power to deal with any person who ' shall wil- ' fuUy maintain any doctrine directly ' contrary or repugnant to any of the said ' Articles,' the said Articles being the Articles of the Confession. It says : 'And ' if any person ecclesiastical or who shall ' have ecclesiastical living shall wilfully ' maintain any doctrine directly contrary ' or repugnant to any of the said Articles, ' and being convened and called as follows, ' shall persist therein and not revoke his ' error,' certain ecclesiastical consequences shall foUow. A person ' being convened ' and called as follows,' means convened and called before a Church Judicatory. Then in the same year, in the next Act, you have the power of excommunication from the Church ; and then in the im portant Statute of 1592, in which the Presbytery was first organised, at page 27, you have the powers and functions of the Assembly set forth in a large manner. I will not detain your Lordships by going through them again, but I think I may fairly describe them as matters of order and discipline, and there is no suggestion of anything hke legislative powers among them. Then, my Lords, the Revolution Settle ment of 1690, which is at page 77, having fixed the Creed as the creed of the Con fession of Faith, goes on, and I think perhaps it is important to read these words, because this is really the establish ment of the present Church of Scotland — 272 the Church of Scotland that existed in 1842 and 1843. Between letters B and C, on page 77, your Lordships will see these words, ' They do establish, ratify, ' and confirm the Presbyterian Church ' government and discipline.' You will see, between letters A and B, the Con fession of Faith is ratified and adopted, and having so fixed the Creed or Confes sion of the Church, the statute then goes on in this Revolution Settlement to ' estab- ' lish, ratify, and confirm the Presbyterian ' Church government and discipline — that ' is to say, the government of the Church ' by Kirk Sessions, Presbyteries, Provin- ' cial Synods, and General Assemblies ' ; and then it throws you back upon the Act of 1592, which I last referred to as the Act defining what the positions of those bodies were. Then you may deduce precisely the same from the important Statute of 1693— the 'Act for Settling ' the Quiet and Peace of the Church.' It pretty much re-enacts the same thing over again, at page 81, between letters A and C. Then when you come to the Act securing the position of matters on the Union of the Kingdoms in 1707, in the Act of that year, chapter 6, at page 85, letters D to E, you have the securing of these four things provided for. I will read from between letters E and F. These are the four things : the ' Protestant ' religion,' ' the worship,' ' the discipline ' and the government of this Church to ' continue without any alteration to the ' people of this land in all succeeding ' generations.' I will remind your Lord ships that the words ' Protestant religion,' when read in connection with the context with the analogous Act of Parliament, clearly indicate the Creed, and thus what it secures is the Creed, worship, discipline, and government as they then existed. Consequently I submit, on this brief view of these Statutes, you certainly have no justification from the statutory history of the Church of Scotland as it existed prior to 1843 for inferring that the Church had, according to its legislative constitution, the slightest inherent power to vary anything which was fundamental to that Church as a Church. It had power, no doubt, to regulate and order its general affairs, as HOUSE OF LORDS any other Church would have, in the form of Canons or bye-laws, or to use the phrase ' Acts of Assembly in this Church,' but I submit that the Acts of Assembly of the Presbyterian Church are just the Canons of the Episcopal Church, or the by-laws of any other association. Now, to take the defenders' position in order, the next matter on which they found an argument is the matter of the Barrier Act. In that same article, at page 87 of their defences, they aver that the Established Church claimed the right of inherent legislative power in their Barrier Act of 1697, inasmuch as the Barrier Act asserted the right to innovate in doctrine, worship, discipline, and government. My Lords, I will refer to what they say, and your Lordships will find their own words at page 87. They quote the Barrier Act, and then they state what they say the Church, in passing the Barrier Act, con templated. Now I will ask your Lord ships to look at the Barrier Act itself, because, as I said, there is an important passage of it, or rather I must not say ' of it,' but ' relating to it,' which I will quote. You will find it in print A at page 15. Before I read it, I should like to state at once a consideration which has been entirely neglected by the learned Judges in the Court below, and which I do not think has been sufficiently adverted to by the respondents, namely, the period at which this Barrier Act was passed, and what Parliament had done just before and did just after. If your Lordships will allow me again to advert to the Statutes you will note that that Barrier Act is dated 1697. The Lord Chancellor. — The 8th of January, 1697. Mr. Johnston. — Yes, the 8th of January, 1697. Now there are two Statutes to which I have just referred, passed in 1690 and 1693, the one at page 76, the Act ratifying the Confession of Faith and settling the Presbyterian Church Government, and the other, the Act settling the quiet and peace of the Church. When you come to look at what these Statutes enact — how they fix the Estab lishment as a condition of the Revolution Settlement on the bringing in of the Orange MR. JOHNSTON'S Dynasty into England, when they fix the Establishment as one of those conditions of the Confession of Faith, when in the next breath they establish and claim Presbyterian Church government and discipline as the only government of Christ's Church within this kingdom, in both those Statutes, is it conceivable that four years afterwards the very same Church was asserting for itself a power, irrespective of the Crown and irrespective of Parliament, to throw this all to the winds, and to alter and innovate upon both creed and govern ment. But, my Lords, I think I am entitled to ask you to interpret this Barrier Act, not merely in view of what was done in 1690 and 1693, but of what is done ten years afterwards in 1707, when you have the union of the kingdoms established, but upon the most express basis of main taining intact the religion, worship, dis cipline and government of the Church already effectually and unalterably secured. I ask again, is it conceivable that the Act known as the Barrier Act could, in the contemplation of its draughtsmen and those who passed it, have the sense which my learned friends endeavour to put upon it. Now, having asked your Lordships to look at it from that point of view, let me next ask your Lordships to refer to the Act itself. It is printed in full at page 1 5 of print A. The first thing I notice is that it is prefaced by this preamble, ' Aet ' anent the method of passing Acts of ' Assembly of general concern to the ' Church and for preventing of innova- ' tions.' Lord James of Hereford. — That is the title of it. Mr. Johnston. — It is a title, not a pre amble — your Lordship is quite right. Now, I know that the title of an Act cannot be held to control or interpret the Act, but at the same time I think if there is any difficulty of interpretation or of ascertaining the scope of the Act in the words of the Act itself, one is entitled to look at such a statement, which, although it be not a preamble, is part of the Acts of Assembly, and therefore very much of the nature of preamble indicating what in the minds of the draughtsmen and those who passed it was the purpose to which the 8 SPEECH 273 Act was directed. Now that, my Lords, is ' for preventing of innovations,' not for enabling of innovations ; and the Act goes on : ' The General Assembly, taking into ' their consideration the overture and Act ' made in the last Assembly concerning ' innovations, and having heard the report ' of the several commissioners from Pres- ' byteries to whom the consideration of ' the same was recommended, in order to ' its being more ripely advised and deter- ' mined in this Assembly, and considering ' the frequent practice of former Assemblies ' of this Church, and that it will mightily ' conduce to the exact obedience of the Acts ' of Assemblies,- — that General Assemblies ' be very deliberate in making of the same, ' and that the whole Church have a pre- ' vious knowledge thereof, and their ' opinion be had therein, and for prevent- ' ing any sudden alteration or innovation, ' or other prejudice to the Church, in ' either doctrine or worship or discipline ' or government thereof, now happily ' established.' Your Lordships will see the difficulty is to interpret the two words in that line, namely, on the one hand ' preventing ' and on the other hand ' sudden.' Prevention is carried on from the preamble into the Act itself, and I think your Lordships will find the question is, To what does the word ' sudden ' apply ? Before going into that, I will conclude the reading of the extract from the Act, ' Do ' therefore appoint, enact, and declare, ' that before any General Assembly of this ' Church shall pass any Acts, which are ' to be binding rules and constitutions to ' the Church, the same Acts be first pro- ' posed as overtures to the Assembly, and, ' being by them passed as such, be remitted ' to the consideration of the several Pres- ' byteries of this Church, and their opinions ' and consent reported by their commis- ' sioners to the next General Assembly ' following, who may then pass the same ' in Acts, if the more general opinion of ' the Church, thus had, agree there- ' unto.' Now the question for inter pretation is, does the word ' sudden ' apply to 'alteration or innovation or ' other prejudice.' Does it govern them all, or does the Act contemplate that, if the procedure of the Barrier Act is taken and the view of the presbyteries HOUSE OF 274 ascertained in the next year, instead of preventing alteration or innovation, the Church may effect alteration or innovation. Now, my Lords, a good deal depends upon whether or not the word ' sudden ' governs anything but 'alteration'; I think it does not. In the original print of this (of course the original is in manu script) there is a comma after the word alteration, and I submit for your Lord ships' consideration whether, when you keep in view the statutory circumstances under which it was passed and the scope as shown in its heading, the true interpre tation is, that it was to prevent any sudden alteration, to prevent any innovation, to prevent any other prejudice to the Church, and that it contemplated, as was not unnatural at that date, just between those two Statutes to which I have just referred, — I say it contemplated, that the common sense of the Church, when the Church had time to think, was sufficient to be relied on as protecting the Church against any innovations, and that it was by no means intended that innovations were to be legalised by such procedure. But 1 would further point out that this is not an Act of Parliament, that this is merely a Regulation of the Church itself. And the next question comes to be, even if they intended (which I am quite sure your Lordships will be satisfied they did not) to confer upon themselves the power of legislation contended for — ¦ Lord Alverstone. — It was necessary, even assuming they had limited powers, to control them according to their own view. It could not give them power. Mr. Johnston. — No. The Lord Chancellor. — There is no word in the whole of the Act which pur ports to enable them to do anything. Mr. Johnston. — That is what I say. It is not an enabling Act ; it is a limiting or preventative Act. Lord Davey. — I think what the learned Dean of Faculty said, was not that it gave power, but that it recognised and was evidence of the existence of powers to make alteration, amongst other things, in doctrine. Mr. Johnston. — That is their position on the Record, that in that Act they claimed to have these powers LORDS Lord Davey. — That the provisions of the Act assume that they have the powers — that is the way the learned Dean of Faculty put it. Mr. Johnston. — Yes. I think your Lordship has put it quite fairly. Lord Davey. — I think there was a com mentary upon the word ' sudden.' Mr. Johnston. — That is my commen tary upon the word ' sudden.' The claim of such inherent powers is certainly not clear. It is inconsistent with the Statutes to which I have referred, Statutes of the Realm passed at the instance of the Church, both immediately before and immediately after it; and the most emphatic comment upon it is the history of the next 136 years. If it is what the learned Dean of Faculty claims, an asser tion on the part of the Church of such powers, how comes it that we do not find in the history of the next 136 years one single Act by the General Assembly by virtue of this so-called assertion of legisla tive power until you come to 1833, when the ten years' struggle, which ended in the Disruption, commenced ; you have not, in the whole course of the Acts of Assembly and the Proceedings of Assembly of the Church of Scotland, one single Act to which my learned friends can turn as supporting the contention that that was the view of the Church in passing the Barrier Act. But, my Lords, 1 cannot leave it there, because it seems to me that I am perfectly justified in saying this, and it is one of the difficulties which my learned friend has to meet, not only here but in other parts of his case. If there is this assertion of legislative power, where is the limitation of it, except as a matter of procedure? They must claim the power to alter and innovate not merely doctrine and wor ship and discipline, but government, and I think my learned friend is bound to be able to maintain that he may, under the Barrier Act, turn the Presbyterian Church into an Episcopalian Church next year. If he takes up this attitude he cannot stop short of actual independence to upset the whole of the Revolution Settlement, and the whole of the Settlement of 1707. I would finally point out that if that be the position of matters it is open to the MR. JOHNSTON'S SPEECH 275 Church to-morrow to abolish this Barrier Act and to place things in this position, — which I rather think my learned friends feel they are bound to maintain, — that prior to the Barrier Act the Act of the majority of a single Assembly could do all these things. My Lords, I submit there is in the Barrier Act no support for my learned friend's contention. Lord Davey. — The Dean of Faculty founded also upon the words in the last two lines in the Act as showing that it is an enabling Act, ' who may then pass the ' same ' — that is, if you carry ' the same ' .back, for 'any sudden alteration or inno- * vation or other prejudice to the Church * in either doctrine or worship or disei- ' pline or government ' — that they may make alterations of that character if they follow the prescribed procedure — that was his argument. Mr. Johnston. — Yes. I thought that was really part of the contention which I have referred to. Lord Davey. — Yes. I see very well. Mr. Johnston. — They found upon these last words really as impliedly enabling them to do the things which are above referred to. Then, my Lords, to keep to the sequence of their Record, the respondents next set forth certain post-Disruption examples of putting the Barrier Act in force. I shall mention these to dispose of them, because I shall not argue upon them. In the first place, they say that acting upon the Barrier Act they changed the formula of the Church as at Print A, page 84. I have already dealt with the question of the formula to be put to ministers, and I submit to your Lordships that that is no act of alteration or innovation as referred to in the Barrier Act, that it was the logically necessary sequence of the Dis ruption. In 1846 they do nothing but adopt the formula of the Established Church to the situation created by the Disruption documents. Lord Davey.— Is the change of a formula more than an Act of Adminis tration ? Mr. Johnston.— No, I should say not. Lord Davey. — Or regulation ? Mr. Johnston.— It may result in that if in so altering the formula they do any thing which strikes at the fundamentals of the creed, but not otherwise. Lord James of Hereford. — Yes. Mr. Johnston. — Then the next point they refer to is the union with the Se cession Church in 1852, and they say again that is some departure. My Lords, it may have been some departure, and I think it has been held to be some departure by the Secession Church, from their prin ciples to join the Free Church ; but it was no departure on the part of the Free Church to join the Secession Church when they were prepared, as they were (as your Lordships will find at page 105 of Print A) to accept the position of the Free Church as for the future theirs. Now, as I am referring to the subject of these Seceders, let me point out that the Establishment principle was of the essence of the Secession position, because the ground of the Secession, and of all the Secession Churches and their various ramifications, and coming together again, was the con tinued obhgation of the Covenants. Now, the Covenants were necessarily national. It was the very object of the Covenanters to compel not only Scotland but to com pel England as well into one uniform National Church. It is therefore im possible to say that the Establishment principle was not at the root of all secession. Then the third point they refer to is the Mutual Eligibility Acts. I have shown your Lordships already, at pages 120 and 122, how carefully guarded the making of Ministers of the United Pres byterian Church eligible for the ministerial position in the Free Church was in 1873 by the Act which is printed at page 122 ; it was guarded so as to compel any such United Presbyterian Church joining the Free Church to adopt the position of the Free Church. Then again, the Union with the Reformed Presbyterians is founded on the same ground. That was in 1876. Your Lordships will find a reference to it at page 123 of Print A. If you look at page 124, you will see at letter F it says : ' Whereas further it appears ' The Lord Chancellor. — That is a different document from page 123, to which you referred. Mr. Johnston. — Yes, I gave the wrong 276 HOUSE reference. The documents connected with this Union begin at page 123, but I think I may read a very short passage from the document on page 124, at letter F : ' Whereas further it appears that the ' Synod are willing to accept without re- ' serve the existing Formula of the Free ' Church of Scotland, on the understand- ' ing that the Act of Assembly, 27th ' August 1647, and the Preamble to the ' Act XII. of Assembly, 1846, are held ' to be in force as interpreting the said ' Formula, and also to allow the name of ' the United Church to be the Free ' Church of Scotland, so as to involve no ' change by this Church in that respect. -' Therefore the General Assembly with 1 consent of a majority of Presbyteries' agreed to the Union. The Reformed Presbyterians therefore accept without reserve the existing Formula of the Free Church of Scotland, the terms of which your Lordships know, at that present time, ' on the understanding that the Act of ' Assembly, 27th August 1647 ' (that was the Act by which the General Assembly for the time being accepted the Westminster Confession) — ' and the pre- ' amble to the Act XII. of Assembly, ' 1846,' and so on, which is the very part of the Free Church Formula, which at the time conditioned the Establishment principle as reserved. Then there are two other matters : the change of the Deacons' Formula, which I do not think I need refer to, and the Declaratory Acts of 1892 and 1894. I have already dealt with those Acts, and I have said already they were resisted, and they were really the first step of this Union of the Churches to which we object and to which we have throughout objected, although up to this point we had nothing which could enable us to come to the Court, because there was no patrimonial interest concerned. Now the position on the Record which I have dealt with was strengthened or attempted to be strengthened by the learned Dean of Faculty, when the case was previously before your Lordships' House, by fixing upon five other points which were not introduced in the Record, but which he dealt with one after the other, as the historical foundation or basis OF LORDS of his contention for this implied legisla tive power. Those five points I will enumer ate. They were, first, the assertion, in 1560, that the Church adopted of its own authority the Scotch Confession, or Knox's Confession — that it not only adopted it, but adopted it on its own mere authority. Secondly, that in 1578 it did in the same way adopt as its standard, or one of its standards, what is termed the Second Book of Discipline. Thirdly, that in 1638 it abolished again, by its own mere authority, Episcopacy. Fourthly, in 1647 it adopted, not the State, but it adopted the Westminster Confession ; and then, . lastly, from 1833 to 1843, it passed sundry Acts to which I will have to refer more in detail. Now, my Lords, as I understand the argument, it was that the trust hi ques tion with which we are dealing just now, was not a trust for a specific purpose, but for a Church. Now the Respondents, while maintaining that there is a distinc tion between congregational and general property in the matter of trusts, seem to contend that when you come to deal with the general property of a Church, you are liberated from the same strict view of these specific purposes of the trust as you would be confined to| it, if you were deal ing with congregational property. I find no foundation for such an argument, but, even if there was, the respondents are driven, even from their own point of view, to find some limitation for the extreme point of legislative power, and I have not yet heard what that limitation is to be. The words used I think once in the Record and also in the argument were : ' Oh, the ' power of alteration is limited, but it is ' limited to this narrow effect, that the ' alterations or innovations made must not ' be inconsistent with the identity of the ' Church — they must not break in upon ' the identity of the Church.' It is very difficult to know what is meant by ' identity.' If you take its creed and. alter its creed, does the Church remain identical with that which it was before the alteration was made? If you alter its government from Presbyterian to Episcopalian, does the Church remain the same? Lord James of Hereford. — If you gave MR. JOHNSTON'S the fullest effect to this power of altera tion, nothing need remain but the name. Mr. Johnston. — Nothing need remain but the name. I cannot find any logical point at which you can stop. I have asked, If you admit that there is a limitation, where logically do you find a line of limitation ? So far as we have gone as yet, I think we have only got from my learned friends the two positions — that you must not affect the identity of the Church, and that it must remain an association of Christians. Lord James of Hereford. — Excuse me, I do not quite understand in what sense the word ' identity ' is used. It seems to me to present the same difficulty as arises upon the original proposition. What sense do you put upon the word ' identity ' ? Mr. Johnston. — -I agree with your Lordship. I cannot put any sense upon it. Lord James of Hereford. — But you are using it. Mr. Johnston. — No, I was not using it ; I was saying that that is the contention of my learned friend, that the limitation which my learned friends admit they must find upon the extreme power of legislative alteration, is that it must not interfere with the identity of the Church. I say with your Lordship that that is just reasoning in a circle — that you cannot alter and remain the same. Therefore the idea of an identity is not a true limitation in the matter. Lord James of Hereford. — You may alter, and remain the same Church, if the alterations do not go to the basis of your existence — if they are simply alterations in detail. The Lord Chancellor. — I should have thought that the idea might be this : that where a religious body consists of its doctrines, that there the identity of the Church must be the identity of the doc trines. Mr. Johnston. — I think that is quite unanswerable. Now, my Lords, feeling, as I think, the difficulty of maintaining that, the respondents founded upon these five different episodes in the Church history as supporting their demand or con tention that they had this extreme oi absolute power. My Lords, some of them are comparatively easily disposed of. The SPEECH 277 of first will, I think, only need a very few words from me. The idea at the time the argument was suggested was, that the Church had acted of its own motive in 1560, whereas when we come to look at the Statutes it is quite clear that it was not the Church that acted — there was no Church to act — it was the State that acted. The secret of the mistake on the part of the respondents is this, that when they tendered that argument they were arguing from a small copy of the Acts of the Scotch Parliament, which does not contain the earlier Act of 1560, but com mences with the Act of 1567, the confirm ing Acts of King James. It was therefore assumed that what King James' first Parliament, in 1567, was doing, was con firming an Act of the Church, and not confirming an Act of the State. If you look at the Statutes as they are found in Thomson's Acts, and as they are reprinted for your Lordships' use, you will find that in the Statutes of 1560 everything is done by the State, and what King James in 1567 does, is to confirm, not an Act of the Church but an Act of the State at that time when there was dubiety as to the validity of Parliament, in consequence I think of the Regent's death and the Queen's absence from the country. I am reminded by my learned friend of an important fact, that Parliament met, I think, in the month of August, and the first Assembly of which we have Acts met in December of the same year — in point of fact the application to Parliament of 1560 was an application of the Reformers as an unorganised body, and Parliament sent them away to prepare a Confession for the consideration of Parliament. Parlia ment considered the Confession, and Parliament adopted it and enacted it as an Act of the State and as the first Act towards the Establishment of the Church. But that follows in the next year, and then Acts declaratory of what the new Church is to be, come in the year 1560. Then, my Lords, I think I may pass from that to the next point made by the learned Dean of Faculty — that is the adoption of the Book of Discipline. Now upon that I shall have to say a little more. The Second Book of Discipline does have its origin between 1578 and 1581, and in 278the first place one must see how it is dealt with by the Disruption deeds. At Print A, page 32, you have, I think, if not the only one, one of the only two references to it. The declaration at the bottom of page 31 and the top of page 32 says, in dealing with the question of its being part of the constitution of the Church, that a minister must have a call from his congregation, and is not to be intruded upon an unwUl- ing congregation, — in fact, what is known as the non-intrusion doctrine. It says this Church ' did not authorise or permit ' anyone so to be admitted till such call ' had been sustained by the Church ' Courts, and did, before and subsequent to ' the passing of the said Act of Queen ' Anne, declare it to be a fundamental ' principle of the Church, as set forth in ' her authorised standards, and particularly ' in the Second Book of Discipline (ch. iii. ' sec. 5), repeated by the Act of Assembly ' in 1638, that no pastor be intruded upon ' any congregation contrary to the will of ' the people.' Now that is an incidental reference to the second Book of Discipline as one of her authorised standards. But the standards of the Church of Scotland are again referred to at page 48, letters E to F, where they declare that they main tained with them in going out, ' the Con- ' fession of Faith and standards of the ' Church of Scotland as heretofore under- ' stood.' Now the Second Book of Dis cipline never was a standard of the Established Church, and to show that, I do not think I need to go much further than a declaration of the Free Church itself in 1851, when it publishes the standards of the Church. After an in troduction to the Declaration, in which there is much that is of importance, you will find the standards of the Church defined on page 93, at letter G, where they say : ' Having in view ' (that is in 1643) 'the uniformity contemplated in the ' Solemn League and Covenant, she con- ' sented to adopt the Confession of Faith, ' Catechisms, Directory for Public Wor- ' ship, and form of Church Government ' agreed upon by the said Assembly of 1 Divines. These several formularies, as ' ratified, with certain explanations, by ' divers Acts of Assembly in the years ' 1645, 1646, and particularly in 1647, HOUSE OF LORDS this Church continues till this day to ' acknowledge as her subordinate standards ' of doctrine, worship, and government.' Then shortly it goes on to say that the Confession of Faith is the only test, and that the others are subordinate tests. But you will find that it does not in any one of these enumerate the Book of Discipline. It founds as its standards upon, and it narrates the Westminster documents, and the Westminster documents alone. Now, in printing the volume to which this is preparatory, the Second Book of Discipline is not introduced. Now, I want to refer your Lordships to what the Lord President said in 1838 in the Auchterarder Case, when he had occasion to refer to the Second Book of Discipline. The Lord President was, I think, Lord President Hope. Lord Davey. — What is the reference ? Mr. Johnston. — It is the first Auchter arder Case, reported in 16 Shaw, 1st Series, page 736. With regard to the document in question his Lordship says : ' It was an error to hold that the Church of Scotland, as a national Church, was without a temporal head, which head was Parlia ment; although in the proper sense of the word Our Saviour was the Head of the Church of Scotland, as He was also the Head, properly speaking, of every Christian Church. Whatever powers and jurisdiction were claimed for the Church by the Second Book of Discipline, none were ratified by Parliament except those specially set forth in the Act. The Act ordained all presentations to be direct to Presbyteries, expressly "providing the "foresaid Presbyteries be bound and "astricted to receive and admit what- "somever qualified minister presented "by His Majesty or laic patrons." Presbyteries were therefore bound by this Statute,' and so on. His Lordship's historical view, therefore, was that of the powers which were claimed for the Church by the Second Book of Discipline, none were ratified by Parliament except those specially set forth in the Act. Now the Act is the Act of 1592, and I shall show your Lordship that the Act of 1592 is almost entirely, in defining the powers of Assemblies, drawn from the words of the Second Book of Discipline, that is to say, MR. JOHNSTON'S it adopts certain passages of the Second Book of Discipline. Now, my Lord, the history of the Second Book of Discipline is to be found, and found quite clearly, from the early Acts of the Assembly; those Acts are collected, or rather are published, in the recognised document, 'the Booke of the ' Universall Kirke.' We sought not to reprint anything that was unnecessary, and I should ask permission to hand to your Lordships copies of the book for reference, as it would have been a great expense to the appellants in this case to have reprinted these documents. The term ' Universall Kirk ' really means the general Church as distinguished from particular Churches. The general Church does not mean catholic or universal all over the world, but it is a collection of particular Churches, which is referred to as the 'Universall Kirk.' The Lord Chancellor. — 'The Uni- ' versal Kirk of Scotland.' Mr. Johnston. — The 'Universal Kirk ' of Scotland ' certainly. Now, my Lord, there are very few passages I need refer to. In the first place, a perusal of a few of these Acts of Assembly satisfies one of two or three things ; in the first place, that it was a long time before the Assembly came to be strictly an Assembly of the Church. You find constantly that there are introduced into the Assembly, Barons, members of the estates of the kingdom. I give one instance, at page 136, the 4th Article, where the Assembly itself passes a resolution — ' That the GeneraU ' Assemblie ' SPEECH 279 The Lord Chancellor. — Are they all paged the same way ? Mr. Johnston. — I think so, my Lord ; I think there is only one edition, as far as I know. I hope it is so, my Lord. The Lord Chancellor. — ' Twenty- ' eighth General Assembly,' is that it ? Mr. Johnston. — Page 136 in my copy begins with the words 'of the ministrie.' The Lord Chancellor. — Yes, that is right. Mr. Johnston. — Among the Articles presented to the Assembly and approved and ratified by them is this 4th: "That ' the Generall Assemblie be frequent with ' the nobilitie and barrons, alsweell as ' ministers, that the face of the Assembly ' may be had in reverence as afoirtymes.' Interpreting that piece of Scotch language, to ' be frequent ' is to be frequented ; to be frequented or attended by the nobility or barons as well as ministers, that the face or position of the Assembly may be had in reverence as aforetimes; and you will find both before and after that, that the Assembly is just an Assembly partly of ministers and partly of nobility, barons, and others. Then you find further, that it was the practice from the beginning of the Assembly to send up for consideration to the Crown and Parliament certain articles; a very good example of that is some of those Acts of 1567; for example, at pages 83 and 84, you have the Assembly sending up to Parliament, for considera tion of the Lords,, of the Articles, and subsequently passing some of those very Acts which form the foundation of the Church ; for instance, at the top of page 84, that ' first Article ' is really one of the Acts which in that year, 1567, declares what the only true Kirk of Christ within this realm is to be ; it is not in the precise words of the Statute; Parliament has considered it, but has considered it upon the representation and request of the Church. There are many other examples all "through of this course, and what I draw from it is that the Church at this stage did not set itself forth as having any legislative power, but that its business was to consider such matters, and to send up for consideration of the Crown's advisers and of Parliament what sug gestions it should make, to be turned into legislation if approved ; and this Book of the Policy of the Church turns out to be just one of those very things which it sends up for consideration, which is con sidered, and a portion of which is adopted to the exclusion of the rest. The Lord Chancellor. — I see 'Ap- ' previt (on margin) ' ; I suppose that is upon the part of Parliament, some note of approbation by Parliament. Mr. Johnston. — I think, my Lord, that the system of Scotch legislation, as far as I can understand it, was that draft Acts were submitted to what were termed the Lords of the Articles, who must be con sidered a Committee of Parliament, and 28o HOUSE OF LORDS that 'Apprevit (on margin)' would be their approval. The Lord Chancellor. — That is what I imagine Mr. Johnston. — The Lords of the Articles were different from Lords of Parliament of the United Kingdom ; as far as I can understand, instead of being sent by Parliament down to a Committee for consideration of terms, the Act was considered by the Lords of the Articles and then produced to Parliament ; so that they had the functions both of the Parlia mentary draughtsman plus a Commission of Parliament. The Lord Chancellor. — And a Com mittee afterwards. Mr. Johnston. — At page 155 you have the first introduction of the Book of Discipline, and in Session 6 of this Assembly of 1576: 'Brethren appoyntit ' to make ane overture of the policie and ' jurisdiction of the Kirk,' — and then follow the names, — 'to confer and advyse ' upon the said matter and make generall ' meeting or conventione ' ' and report.' Now the Book itself is always headed — you will find the copy of it at page 534 of this book — it is titled 'Heads and Con- ' elusions of the Policy of the Kirk ' ; it is not titled Book of Discipline at first, but it gets a title afterwards of the Policie of the Church or the Second Book of Discip line. At the bottom of page 158 you find : ' For better resolutione of the ' questiones gine in be Alexander Hay, ' clerk of the Secret Councill, and expedi- ' tione of the matter of the policie, the ' Kirk present hes ordaynit ' certain members ' to conveine ' ' and consider the ' heids of the policie, advyse and consult ' diligently thereupon, and upon the saids ' questiones, and to report their judge- ' ments thereanent.' And then you wUl find at page 181 — I pass over two or three other notices — that the policy is laid before the Regent and the Council on the narrative that ' seeing ' (I read from about eight lines down from ' Session 2 ') ' seeing ' that the trew religione is not able to con- ' tinew nor indure lang, without a good ' discipline and policie, in that part have ' they also imployit their witt and study, ' and drawne furth of the pure fountaines ' of God's Word sic a discipline as is meet ' to remayne within the Kirk, whUk they ' presentit to the King's Majestie with ' their supplicatione, at whais discretion ' certain Commissioners were appoyntit ' to reasone with sic as were deput be the ' Kirk, where the haill matter beand ' disput was resolvit, and agriet to a few ' heids, and thereafter againe presentit to ' the Lords of the Articles, that the said ' discipline may take place and be estab- ' lischit by the actes and lawes of the ' realme, qwhairin, notheless, their travells ' hes not succeeded ; prayand, therefore, ' the nobilitie present, alswell openly to ' make profession to the Kirk if they will ' allow, affirme, and maintaine the religion ' presently establischit in this realme, as ' also the Policie and discipline already ' spoken of and labour at the King and ' CouncUl's hands for ane answer to the ' heads after following, to witt ; That his ' grace and Councill wUl establish such ' heids of the Policie as was alreadie ' resolvit and agriet upon be the said ' Commissioners.' It is clear, therefore, that the Book of Policy was originally prepared just as one of those suggestions for the consideration of the Lords of the Articles and afterwards of Parliament for the purpose of being made part of the statutory law of the Church. Now, you will find that King James and his minis ters were not very easily moved, and again, at page 200, in 1580, one of the Articles proposed to His Majesty in Coun cil at the bottom of page 200 is: 'That ' the Book of Policie may be established ' be an Act of Privie Councill, qwhill ane ' parliament may be had, at quhilk time ' it may be confirmed ' ; but when you come to page 218 in its full form it remains a document of the Church. At page 218, at the foot, in 1581, the Assembly says : ' Forsuameikle as travells hes been ' taken in the forming of the Policie of ' the Kirk, and diverse sutes made to the ' Magistrate ' (that is to the King) ' for ' approbatione thereof, qwhilk, albeit as ' yet, hes not taken the happie effect ¦' qwhilk good men would crave ; yet that ' the posteritie sould judge well of the ' present age and of the meining of the ' Kirk, the Assemblie hes concludit that ' the Book of Policie agriet upon in ' diverse Assemblies before sould be regis- ' trate in the acts of the Kirk, and to ' remaine therein, ad perpetuam rei me- ' moriam, and the copies thereof to be ' taken be every Presbyterie : of the ' qwhilk Book the tenor follows.' They therefore in this apparently despair of getting Parliament to adopt it as a statu tory part of the Church legislation, and they direct it to be registered in the books of the Assembly, to remain there ' ad per- ' petuam rei memoriam.' Now the next point, my Lord, that I think I should refer to with reference to this, is a statute which we have omitted to print, but which is printed in an Appendix to these Acts at page 362 ; it is in volume 3 of Thomson's Acts, but in 1574, just previous to this, the State had passed an Act : ' Forsamekill as the present estate of ' the Kirk within this realme being con- ' siderit be my lord Regentis Grace, and ' Estaittis now convenit, and howsen the ' alteratioun of rehgioun, albeit the libertie ' of the evangell hes bene inioyit in vnitie ' of doctrine, zit is thair not to this day ' ony perfyte policie be lawis and con- ' stitutionis set out, how the Kirk in all ' degreis salbe governit in decent and ' comely ordour, qwhairthrow sindry in- ' convenientis hes followit, and ma are ' lyke to occur heirafter ' ; and then com mission is given to certain persons to prepare such heads. Now the Act of 1592 is really based upon the Book of Policy — the Act of 1592, where it defines matters to be entreated in the provincial assemblies, and so on to the end. I would ask your Lordship to look for one moment at the Book of Policy itself as printed at the end of the Book of the Kirk, and you will find, for instance, at page 548, four different heads which are almost in iden tical terms introduced into the Statute — page 548, sections 19, 20, and 21 of chapter 7 : ' It belangis to this kynd of ' Assembleis to caus the ordinancis maid 1 be the Assembleis, provinciallis, nation- ' allis, and generallis, to be keipit and put ' in executioun. (20) To mak constitu- ' tionis quhilk concerne to irpirrov in the ' Kirk, for the decent ordour of thais ' particular Kirkis qwher thay gouerne ' (prouyding thay alter nae reulis made by ' the generall and provinciall assembleis, ' and that they mak the provinciall assem- MR. JOHNSTON'S SPEECH 281 ' bleis foirsene of the reulis that thay sail ' mak), and to abolische thame tending to ' the hurt of the same. (21) It hes power ' to excommunicat the obstinat.' You will find that these words are just almost identi cal ; for instance, that last one is adopted in this form : ' It has power to excorn- ' municate the obstinate,' with these words added, ' formal process being laid and due ' intervals of times observed.' The Lord Chancellor. — Where is that? Mr. Johnston. — The passage you find in the Policy stops with : ' It has power ' to excommunicate the obstinate,' No. 21. The Lord Chancellor. — Yes. Mr. Johnston. — But the Act, I say, adopts these identical words, but adds to them the words I have read : ' Process ' being laid and due intervals of times ' observed.' The Lord Chancellor. — Yes, I see. Mr. Johnston. — At page 550 you find a number more of the Articles which were adopted in the Act ; I am merely referring to them in order to show your Lordship that the Act of 1592 is the considerate adoption by the legislature of certain por tions of the Book of Policy, and I should think it is a matter, therefore, to which the usual maxim, adoptio unius exclusio alterius, would apply. The Lord Chancellor. — -Exclusio unius I Mr. Johnston. — The Book of the Policy is also before the State, and is considered by the State, and portions only of it are adopted. Now, my Lord, in dealing with it I must make one correction upon ¦ Lord Davey. — Is the Act of 1592, you refer to, in this print ? Mr. Johnston. — Yes. The Lord Chief Justice. — Page 27. Mr. Johnston. — Before leaving this, I say I must make a correction upon my learned friend's print at D. The respondents put a certain number of the Articles of the Book of Discipline into Print Delta, page 1, and I am obhged to inform your Lordships that the heading is not the heading of the Book itself, and it contains assertions which I cannot for one moment accept as correct. It is headed ' Excerpts from the ' Second Book of Discipline ' ; I know that these words are not theirs — I mean, 282 HOUSE OF LORDS they have taken them from some copy — I do not mean they have been put in by mistake by the respondents, but that whoever framed them as the heading of the book makes erroneous statements in regard to that Book of Discipline : ' Ex- ' cerpts from the Second Book of Discipline, ' or Heads and Conclusions of the Policie ' of the Kirk agreed upon in the General ' Assembly, 1578 ; inserted in the Registers ' of Assembly in 1581 ' (that is quite correct, as I have shown your Lordship from the Acts of Assembly themselves), ' Sworn to in the National Covenant, ' revived and ratified by the Assembly, ' 1638' (for that I can find no authority), ' and by many other Acts of Assembly, ' and according to which the Church ' Government is established by law, an. ' 1592 and 1690.' Now one might assume that there had been an adoption of the Book of Discipline by both of those Acts ; that is an entirely erroneous assertion, i have shown your Lordship how the Act of 1592 does adopt, but adopts by the method of selection only certain very small parts of the Book of Discipline, and the Act of 1690 confirms and re-enacts the Act of 1592 without doing anything further. Therefore nothing is to be drawn accurate in statement from that heading. Now, my Lord, while I have said this with regard to the Book of Discipline itself, I rather think that the Book of Disciphne helps me a good deal more than it hurts me, and I should ask your Lordship to look at a few of the passages which the Book of Discipline contains. Its first head (I read from page 537 of the 'Book of the Universall Kirk'), it is the very beginning of the Heads and Conclusions of the Policy of the Kirk. I can only say of the Book itself that its own description of itself, whether you take it as the Book of Policy or Book of Discipline, it is quite a reasonable thing that the Church should have framed for itself, although I think there are a number of heads in it which go beyond any question of either policy or discipline ; but in this first head it draws a distinction between what it calls the civil power, as called 'the power of the ' sword,' and the other ' the power of ' the keys,' in this way, it says at Article 4 : ' The Kirk in this last sence, hes ane ' certane power grantit be God according ' to the quhilk it usis ane proper juris- ' dictioun and gouernament, exercit to ' the comfort of the haill Kirk. (5) This ' power ecclesticall is an auctoritie grantit ' be God the Fader throught the Mediator ' Jesus Chryst unto His Kirk gadderit, ' and having the ground in the Word ' of God, to be putt in executioun be ' thame, unto quhom the spirituall ' gouernament of the Kirk, be lawful ' calling is committit. (6) The Policie of ' the Kirk, flowing fra this power, is ' ane ordour or forme of spirituall gouerna- ' ment, quhilk is exercit be the memberis ' appointit thairto be the Word of God : ' And thairfoir is gevine immediatlie to ' the office - beirars, bequwhome it is ' exercisit to the weill of the haill bodie. ' (7) This power is diverslie usit : For ' sumtimis it is seuerallie exercit (chieflie ' be the teacheris), sumtyme conjunctlie ' be mutuall consent of thame that bear ' the office and charge, efter the forme ' of jugement. The former is commonlie ' callit potestas ordinis, and the other ' potestas jurisdictionis.' Now, my Lord, although I think a great deal of this was unnecessary in a Book of Discipline, I cannot and do not take any exception to the idea that the Church has jurisdiction in teaching, and has a conjunct jurisdiction ' after the ' form of judgment' : judgment in matters which come properly before them; but judgment is a totally different thing from legislation. Now, then, the Respondents in their argument founded very largely upon the assertion which you will find at page 547. The Lord Chancellor. — Would you look at Article 9 of that, because it seems to be very relevant to what you are saying. Mr. Johnston. — ' This power and policie ' ecclesiasticall is different and distinct ' in the awin nature fra that power and ' policie quhUk is callit the ciuUle power, ' and appertenit to the ciuille gouerna- ' ment of the commoun welth : Albeit ' thay be bayth of God, and tend to ane ' end, gif thay be richtlie usit, to wit, ' to aduance the Glorie of God, and to ' haue Godlie and guid subjectis. (10) MR. JOHNSTON'S ' For this power ecclesiasticall flowis im- ' mediatlie frome God, and the Mediator, ' Chryst Jesus, and is spirituall, not ' having ane temporall heid on eirth, bot ' onlie Chryst, the onlie Spirituall King ' and Governour of His Kirk.' The Lord Chief Justice. — That is different from the 9th and 10th Article in their copy — D 3. I do not know how that comes about. I see it is the same as 4 and 5 ; thank you, Mr. Johnston. Mr. Johnston. — Apparently the copy of their print there, is differently ordered. I was reading from this because it was a complete copy, and it is the copy which is appended to the Acts of the Assembly, so I concluded it was original. The Lord Chief Justice. — It is the same as 4 and 5. Lord Davey. — The section on which the Dean of Faculty chiefly founded was Section 9 of Chapter 7. Mr. Johnston. — That is what I am coming to now; if your Lordship wUl turn to page 547, my argument upon that is — my explanation, I should rather say, upon that is — that he did found upon it just because it was isolated from the rest. Lord James of Hereford. — Can you give me the reference to the book ? I have no copy of that book you have got — the Uni versal Kirk. Mr. Johnston. — You will find this pas sage at page 4, letter G of Print D ; the words that were founded upon by the learned Dean of Faculty were : ' The finall ' end of all Assembhes is, first to keip the ' religioun and doctrine in puritie, without ' errour and corruptioun : nixt to keip ' cumeliness and guid ordor in the Kirk. ' (10) For the ordouris caus, they may ' mak certane reulis and constitutionis ap- ' pertaining to the guid behaviour of all ' the membris of the Kirk in their voca- ' tioun. (11) They have power also to ' abrogat and abolish all statuts and or- ' dinances concerning ecclesiasticall materis, ' that ar found noysume or unprofitable, ' or aggrie not with the tyme or abusit ' be the peple. (12) They have power to ' execut ecclesiasticall discipline and pun- 'ischment upone all transgressouris, and 'proud contempnaries of guid ordour 'and policie of the Kirk, and swa the SPEECH 283 1 haill discipline is in their handis.' Now that was read as if it had reference to the General Assembly of the Church, but in point of fact it has reference to all kinds of Assemblies, because the first part of the Act, at page 546, commences with Head 2 : ' Assembleis ar of four sortis : ' For ather ar thay of particular Kirkis ' and congregationis ane or ma ' (that is, Kirk-Sessions or Presbyteries), 'ather of ' ane province ' (that is, a Synod), ' ather ' of ane haill natioun ' (that is, the General Assembly), ' or of all and diverse nationis ' professing ane Jesus Chryst.' That would, of course, be an Oecumenical Council. And what follows is said generally of all these, and is not confined to the General Assem bly alone, and I cannot conceive how it can be contended that Articles 9 to 12 are assertion of legislative power on the an part of the Assembly when you find that they have reference to Kirk-Sessions as well as to General Assemblies. It is quite true that they are to keep religion and doctrine in purity, to keep comeliness and good order in the Church ; that is exactly what all of them are intended for; for order's sake in their respective jurisdic tions they may make rules and constitu tions, and they have power also to abrogate and abolish all statutes and ordinances concerning ecclesiastical matters that are found noisome or unprofitable or agree not with the time or are abused by the people — that can hardly extend to the right of legislating upon all matters funda mental to the Church, or even an assertion of such view. • In passing from this, I should say that at page 550 the position of the National Assembly is really very well set forth. It is 'a lawful convention of the Kirks of ' the whole realm or nation where it is ' used or gathered for the common affairs ' of the Church, and may be called the ' General Eldership of the whole Kirks ' within the realm.' Section 34, at the bottom of page 550 Lord James of Hereford. — What is that you are reading now, please ? Mr. Johnston. — It is the same Head, my Lord, but it has not been quoted ; it is part of the same set of rules, but defin ing the position of the General Assembly, Article 34 says : ' This Assemblie is insti* 284 ' tute, that all thingis ayther omittit, or ' done amis, in the provinciall assembleis ' may be redressit and handlit : And things ' generally, seruing for the weill of the ' haill bodie of the Kirk in that realme ' may be foii-sene, intreattit and set ferth 'to Goddis Glorae.' 'This Assemblie ' sould tak heid, that the spirituall juris- ' dictioun and civile be not confoundit, to ' the hurt of the Kirk.' Now, my Lord, I say that is quite a proper definition of the position of the General Assembly ; it really is a superior jurisdiction, whose duty it is, on the same lines as the inferior As semblies, to act in the way first of all of putting right anything done amiss in the lower assemblies, and secondly of supply ing anything omitted in the lower assem blies, all with reference to the order and general affairs of the Church, but not in the sense of legislation. Now, if this Book is a book of any authority, I think I am entitled to claim advantage for what it says on the Establishment principle ; you will find that in Chapter 10, I think, most of which is printed at page 5 of the same Print D, — at the bottom of page 5. The Lord Chancellor. — What of? Mr. Johnston. — I was giving Lord James the quotation from the Print D. Your Lordship will find it at page 553 of the Book before you. It proceeds to say that : ' Althought all the memberis of the ' Kirk be hauldine, every ane in their ' vocatioun, and according thairto, to ad- ' vance the kingdome of Jesus Chryst ' safar as lyis in thair power ; zit chieflie ' and namelie, Christiane Princes, Kingis, ' and uther magistrats, are haldine to do ' the same ' ; and then Section 3 : 'So it ' pertenit to the office of a Christiane ' Magistrat to assist and fortifie the godlie 1 proceding of the Kirk in all behalfis ; ' and namelie, to sie that the publick ' estait and ministrie thairof be mantenit ' and sustenit as it appertenis, according ' to Goddis Word.' Section 6 : 'To sie ' that sufficient provisioun be made for ' the ministrie, scoles, and the puir : And ' gif they have not sufficient to await ' upone thair chargis to supplie thair ' indigence evine with thair awine rentis, ' gif neid requiris : to hauld hand to ' thame, alsweill concernyng thair owin HOUSE OF LORDS ' personis sayfang thame frome injurie and roppin violence, as concerning thair rentis ' and possessionis that thay be not de- ' fraudit, reavit, nor spulzeit thairof,' and so on. I do not think I can point to anything more emphatically asserting, not only the duty of the State to establish, but to endow the Church. The magis trate or ruler is told that it is his duty even to supply the wants of the Church even out of his own pocket apart from State endowment. I therefore leave the Book of Discipline, my Lord, with this contention with regard to it : it never was adopted as part of the Church constitution. Parts of it were introduced into the im portant Act establishing Presbytery in 1592, and that Act is again carried on by that of 1690, and when you look at it, it is a Book of Policy up to a certain point, but in certain matters I think it goes beyond what the Church have the right to do. But so far as it does go beyond, — as, for instance, in this passage I have just read, — it is nothing contrary to the contention of the appellants ; on the contrary, it even more emphatically than the Confession of the day asserts the Establishment principle and the endow ment principle also. Now, I desire to deal as fairly as possible with my learned friend's argument, and what I have said amounts to this — that it cannot be dealt with as one of those assertions by the Established Church of a right to legislate, but I do admit (and I think he is entitled to this admission) that there is one portion of it which the Disruption members of the Established Church in 1842, and the Free Church itself in 1843, did declare to be in their idea part of the constitution of the Church ; it may not have been, but for the point of view with which your Lord ships have to regard these documents it will have to be held that that is their interpretation of what the constitution of the Church was. Lord James of Hereford. — And, there fore, part of the Free Church. Mr. Johnston.— And therefore part of the Free Church ; now that one portion is what is said with reference to non-intru sion. That is, that for the purposes of this Aet that is to be held, as I think it comes under those words ' as now tinder- MR. JOHNSTON'S SPEECH ' stood,' which have been emphasized in things he did, after the 1843 documents. Lord James of Hereford. — 'Hereunto- ' fore,' I think, was the word. Mr. Johnston. — Your Lordship's recol lection, I have no doubt, is more accurate than mine. Lord Davey. — 'Heretofore.' Mr. Johnston. — 'As heretofore under- ' stood.' It is for them to define what they mean by 'heretofore,' and they have defined it by maintaining that it was part of the constitution of the Church that no minister should be intruded upon (Chap ter III., Article 9) : 'In the ordour of ' Election it is to be eschewit, that na ' Person be intrustit in ony of the Offices ' of the Kirk, contrarie to the will of the ' Congregation to whom they ar appointed, ' or without the Voce of the Elderschip.' That that had no effect at the time, of course, is perfectly clear; it was not accepted by the State, for the patronage survived for more than a century after that, even although for a few years at the Revolution Settlement time it may have been abolished; and so far I do admit that the Free Church has adopted the pohcy as defining the Constitution of the Church in this one element only — the non-intrusion. Now the next head, which is somewhat of the same nature, although I am afraid I must go a little more into the detail of it, is the action of the Established Church in 1638 to 1647 ; it is quite true that in form of words the Established Church does meet in its Assembly, and does abolish Episcopacy, and does a good many other things ; it is equally true that immediately they have done it they go to Parliament, just as they have done before, and also that in 1643 they adopt the Solemn League and Covenant, and in 1647 you have what is done at the time of the Westminster Assembly. It is quite true that these things are done by the Church, but in order that you may reason from their doing of them you must keep in view the political situation that existed between 1638 and 1647. Now I can, my Lord, I think, in a very few words, tell your Lord ships what that situation was. You will remember that King James succeeded to England in 1603, and one of the first 285 using his English position to try and reimpose Episcopacy on Scotland, is hi 1618 to enact what are known as the Five Articles of Perth. These Articles of Perth were one of the bones of contention with the Covenanters. Shortly stated, they had to do with rites and ceremonies ; for instance, they re-in troduced Christmas Day and certain other holidays ; they altered the mode of administering the communion ; the com munion was to be taken kneeling, whereas the Presbyterians take it sitting, and so on ; I do not enumerate them, because they are all in one of the Acts. Those Acts were of importance when you come to 1638. Then King Charles succeeds in 1625, and he pays Scotland a visit in 1633. Now he did two things which brought about the second Reformation ; he first of all enacted certain Canons and Constitutions Ecclesiastical, a certain form of Ordination which he sought to impose upon the Presbyterians of Scotland, and what was the actual matter which did bring the second Reformation about was Laud's Service Book — the Service Book he endeavoured to impose upon Scotland. That was in 1637, and you have that at once foUowed by the formation of those committees of the various grades of the country which were known as the Tables, which Tables or Committees practically regulated all that was done in Scotland for the next ten years. Now, in February of 1638, you have the Covenanters framing and swearing to the National Covenant ; I draw a distinction between the National and the Solemn League and Covenant, which was international, and you have, in the end of 1638, the first General Assembly that had met for a great number of years, and which passed all these Acts upon which my learned friends very properly found ; but then you must have in view also that, a few months after, the King and the Covenanters were in arms facing one another in Berwickshire, and that what is done is what the King is concussed to do by armed force. That happened four years before the Civil War broke out in England, but you cannot look at these Acts of the General Assembly without keeping these circumstances in view. Well, now, I should hke, my Lord, as 286 HOUSE OF LORDS corroborating that view, to read a very short passage upon the history of the situation, from the late Lord President Inglis, who was then Lord Justice-Clerk, in the case of Forbes v. Eden ; his Lord ship in the Court below, as explanatory of the situation with regard to the Service Book of the Episcopal Church in Scotland, says : ' To anyone acquainted with the ' ecclesiastical history of Scotland in the ' Seventeenth Century, the appeal to the ' authority of Charles I., embodied in ' the Proclamation of the Privy Council ' hi 1636, must have seemed very strange. ' The Bishops of the Scottish Episcopal ' Communion in 1811, and since that time, ' represent themselves as the legitimate ' successors of those bishops who were ' established and appointed by James VI. ' in the early part of that century, and who, ' down to the year 1638, were bishops of ' the national Church of Scotland. But ' that national Church had a rooted aversion ' to any service-book which prescribed the ' precise form of words in which pubhc ' worship should be conducted, and still ' more to any service-book compiled in or ' borrowed from England ; and this feeling ' was not confined to any particular party ' in the national Church. The parties in ' the Church at that time were divided on ' questions of ecclesiastical government ' almost exclusively. The controversy ' arising out of the Five Articles of ' Perth can hardly with any propriety be ' said to be a controversy regarding doctrine. ' The observances which they enjoined had ' not been generaUy used or rigidly enforced, ' and the excitement which they at first ' created had almost died away before the ' attempt was made to introduce a service- ' book. The doctrine of the Church was ' in all respects substantially the same from ' the time when it was settled at the estab- ' lishment of the Reformation, in terms of ' the Confession of Faith, ratified by King ' James the Sixth'sfirst Parliament in 1567. ' This Confession continued to be the only ' special standard of faith and doctrine of ' the national Church of Scotland till the ' Revolution, with the exception of the ' short period between 1647 and the Restor- ' ation, during which the Westminster ' standards prevailed. In the almost entire ' absence of proper doctrinal controversy, the form of Church government Was no doubt a constant subject of discussion, and of violent irritation, not between two parties in the Church primarily, but between the King and his subjects. The restoration of bishops by King James VI. was a purely political movement on his part, and was not subversive of the form of Church government then existing, for the Kirk-Sessions, Presbyteries, and Synods co-existed and worked together in the government of the Church with the archbishops and bishops, from the restora tion of the Episcopal order by King James till its abolition in 1638 by the Estates of Parliament in the time of King Charles. But in 1636 and 1637 the controversy respecting the comparative merits of Epis copal and Presbyterian government did not occupy the minds of most men, as it had in former times done ; and the violent storm which was raised by the attempt of King Charles, by his own authority alone, to introduce the service-book, though it led in its results to the abolition of Epis copacy and the triumph of the Presby terian party, was at least the protest of the whole nation in its religious and ecclesiastical aspect, or, in other words, of the national Church, against an exer cise of the prerogative which all alike, whether attached to Presbytery or Epis copacy, regarded and denounced as Erastian and subversive of the true liberties of the National Church.' My Lord, that, I think, from Lord President Inglis, quite justifies the state ment I have made of the history of this period, that the Reformation from Epis copacy, as the Church describes it, was occasioned in 1638 by the attempted intro duction to Church of the Service Book. Now, things went the length of Civil War, and there was no bloodshed, but the two forces were encamped on opposite sides; and in the early summer of 1639 it was the fact that the King found that he was not in force sufficient to meet the Covenanters, that compeUed him to make the treaty with them under which he undertook to call a Parliament to con sider what they in 1638 had done. Now, my Lord, I must ask your Lordship's permission to refer to the same book which was used at the last discussion as MR. JOHNSTON'S containing all the Acts of the General Assembly from this date, 1638, down to the date of the Disruption. We have not attempted to reprint them. The Lord Chief Justice. — What is the book called ? Mr. Johnston. — 'The Acts of the ' General Assembly of the Church of Scot- ' land ' ; I can hand to your Lordships copies for convenience of reference, but it would have made an enormous addition to the cost of printing if we had attempted to print them. I refer my Lord to page 9, where you have the first one. The Acts are all lengthy, and I am not going to read them ; I am only going to paraphrase them ; but you have at page 9 the first Act, and you must recollect that it is not the Act of an Assembly sitting in its normal character ; it is the Act of an Assembly which is in revolt, if I may say so, from the Crown's Authority, and it condemns the Service Book. Lord James of Hereford. — How is it headed, please ? I know it is page 9. Mr. Johnston. — It is an Act of Session 14. The Lord Chancellor. — Condemning the Service Book? Mr. Johnston — Condemning the Service Book, the Book of Canons, the Book of Ordination, and the High Commission, and it certainly does in emphatic language ' reject and condemn, and by these ' presents doth reject and condemne the ' said book, not only as illegally introduced, ' but also as repugnant to the doctrine, ' discipline, and order of this Reformed ' Kirk to the Confession of Faith, Constitu- ' tions of the Generall Assemblies and Acts ' of Parliament establishing the True ' Religion.' It does not therefore attempt to innovate in any way, or legislate in any way, but to reject and condemn something which is repugnant to the doctrine as set forth in the Confession of Faith. Lord James of Hereford.— Is your view, that this is merely to the extent of the Declaration,— that it is declaratory of the view? Mr. Johnston. — Yes. Lord James of Hereford.— Not more ? Mr. Johnston.— No ; but I do ad mit, candidly admit, that these Acts are couched in language which is of the legis- SPEECH 287 lative character, but then I say they were done — they were passed — at a time when the General Assembly was not the normal General Assembly of the Church, but was in revolt, just as the Parliament sub sequently was. Then at page 13 you have the one which abolishes in a sense Epis copacy, but then what it really does is to declare Episcopacy to have been abjured by the Confession of Faith of 1580, and to be removed out of this Kirk. That is its heading, and what it does, at page 18, where it comes to a conclusion, is, — it puts to the vote : ' Whether according to ' the Confession of Faith, as it was pro- ' fessed in the years 1580, 1581, and 1590, ' there be any other Bishop but a Pastour of ' a particular flock having no preeminence ' nor power over his brethren, and whether ' by that Confession, as it was then pro- ' fessed, all other Episcopacie is abjured ' and ought to bee removed out of this ' Kirk. The whole Assembly most unani- ' mously, without contradiction of anyone ' (and with the hesitation of one allenarly) ' professing full perswasion of minde, did ' voice that all Episcopacie different from ' that of a pastour over a particular flock ' was abjured in this Kirk and to be ' removed out of it. And therefore pro- ' hibites, under ecclesiastical censure, any ' to usurpe, accept, defend, or obey, the ' pretended authoritie thereof in time ' comming.' Lord James of Hereford. — Is that more than one of our tribunals reading the common law, and saying such and such was the law, and intended so to be ? Mr. Johnston. — I do not think so, my Lord. Lord James of Hereford. — That is the way you would put it ? Mr. Johnston. — That is the way I would put it ; in passing from that, my Lord, in case of mistake, the Confession of Faith there referred to is not the Scotch Con fession; it is really the first element of the Covenant. In 1580, and again in 1581, and in 1590, there was sworn to by the King and his nobles what was termed a confession, but it was really the National Covenant in its first form, and the use of the word 'Confession' must not be mis taken for the true Confession of Faith; that is, the doctrine of the Church. 288 HOUSE OF LORDS Then, my Lord, at page 21 you have another important one : ' Restoring the ' Judicatories of the Kirk.' ' Concerning ' Kirk-Sessions, provinciall and Nationall ' Assemblies, the Generall Assembly con- ' sideling the great defection of this Kirk ' and decay of religion by the usurpa- ' tion' (Session 21, December 17) 'of the ' Prelates, and their suppressing the ordin- ' arie judicatories of the Kirk, and clearly ' perceiving the benefit which will redound ' to the religion by the constitution of the ' said judicatories ; remembering also that ' they stand obliged, by their Solemne ' Oath and Covenant with God, to return ' to the doctrine and discipline of this ' Kirk as it was protest, 1580, 1581, 1590, ' 1591, which in the Book of Policie' (now that is a recognition of the Book of Policy) 'registrat in the books of the ' Assembly, 1581, and ordained to bee 1 subscribed, 1590, 1591, as particularly ' exprest, both touching the constitution ' of the Assemblies, of their members, 1 ministers, and elders, and touching the ' number, power, and authoritie of these ' members in all matters ecclesiasticall. ' The Assembly find it necessar to restore ' and, by these presents, restoreth all these ' Assemblies unto their full integritie in ' their members, priviledges, liberties, ' powers, and jurisdictions, as they were ' constitute by the foresaid Book of ' Policie.' Now, I admit that is a distinct assertion of the authority of the Book of Policy at this date ; and of the restoration of what they say just now the Book of Policy had introduced, although really it had been the Act of Parliament that did so, but that is their assertion in the frame of mind and in the position in which the Assembly was at that date. At page 30 you have an Act which is very illustrative of the real situation ; you have a f ulmina- tion against such as will not acknowledge this Assembly — indicating their own knowledge that they were an abnormal body at that time ; at the bottom of the page, on December 20th, the ' Generall As- ' semblie ordaineth all of Presbyteries and ' provinciall assemblies to conveen before ' them such as are scandalous and malicious, ' and will not acknowledge this Assembly, ' nor acquiesce unto the Acts thereof ; and ' to censure them according to their malice ' and contempt, and acts of this Kirk; ' and where Presbyteries are refractorie, ' granteth power unto the severall Com- ' missions to summond them to compear ' before the next GeneraU Assembly to be ' holden at Edinburgh, the third Wedins- ' day of Julie, to abide their tryall and ' censure.' Now it must be kept in view that the King's Commissioner to the General As sembly had withdrawn and dissolved the Assembly, and that the Assembly was sitting unconstitutionally at this time. Then the next Act I do not read, beyond saying that it was the Act by which they dealt with the National Confession of Faith, that is the Confession of Faith which they themselves introduced in that year, and which is the National Covenant which the Covenanters supported, and which the Secession Churches of the next century adhered to, and, to a certain extent, adhere to still. Then at page 32, after this very strong assertion of right upon their part, they wind up by ordain ing a humble supplication to be sent to His Majesty, that he approved all that they had done. At the bottom of that page you have the Act of Assembly: ' Ordaining an humble Supplication to be ' sent to His King's Majestie,' in these words : ' that they may game ' (I am read ing about eight or ten lines down) 'His ' Majestie's princely approbation and rati- ' fication in the ensuing Parliament to their ' constitutions ' ; and so you have on the following page the form of their suppli cation to the King for that end, and it winds up in the middle of page 34 — it sets forth their ' confidence of your Majestie's ' allowance and ratihabition ' ; and then notice, they say that they are not doing anything new, but 'studying rather to renew and revive old Acts made for the ' reformation of religion in the time of 1 your Majestie's father, of happy memorie, ' and extant in the records of the Kirk, ' which Divine Providence hath preserved, ' and at this time brought to our hands, ' then either to allow of such innovations as ' the avarice and ambition of men, abusing ' authoritie for their own ends, had with- ' out order introduced.' And then they finally wind up by humbly begging, ' and MR. JOHNSTON'S ' certainly expect, that from the bright ' beames of your Majestie's countenance, ' shining on this your Majestie's own ' Kingdome and people, all our stormes ' shall be changed in a comfortable, calme, ' and sweet sunshine, and that your ' Majestie's ratification in the ensuing ' Parliament graciously indicted by your ' Majestie's proclamation to bee keeped in ' May, shall setle us in such a firmnesse ' and stabilitie in our religion as shall ' adde a further lustre unto your Majestie's ' glorious diademe.' Those, therefore, are that set of Acts which are founded upon as an assertion of legislative power by the Church, and I admit that they are in language such, but I explain the situation of the Assembly at the time, and I point out, in the first place, that the first thing they themselves do is to go to the King for a ratification in Parliament. Now that ends the Assembly of 1638, and the Assembly of 1639 passes one most important Act. SPEECH 289 (After a short adjournment.) Mr. Johnston. — My Lord, I was on the point of referring to the Act of Assembly of 1639, on page 36 of the book, but before doing so I would remind your Lordship that this Assembly of 1639 was on a different footing from that of 1638. The hostile forces had met, as I said, in the summer of that year; a treaty had been entered into between the King and the Covenanters, one term of which was that a lawful General Assembly was to be held; the proceedings, therefore, of the 17th August 1639 are on a somewhat different footing from that of the recal citrant Assembly of 1638. The Lord Chancellor. — That is the ' Aet containing the causes and Remedie ' of the bygone Evils ' ? Mr. Johnston. — Yes. That is valuable for two reasons. It sets forth what all the matters of dispute between the Church and the Crown, or I might almost say between the nation and the Crown, were ; and it sets them forth under some five or six heads. In the first place, it sets forth, as the main and most material causes, about twenty lines down from the beginning of the Act : ' So many and great evils as this ' time past had so sore troubled the peace of ' this Kirk and kingdome, it was represented ' to his Majestie's Commissioner by this ' Assembly, that beside many other, the ' maine and most materiall causes were, ' First, the pressing of this Kirk by the ' Prelates with a Service Book, or Book ' of Common Prayer ' ; and the second cause, a little lower down, was the five Articles of Perth, 'the observation of ' festivall dayes, kneeling at the com- ' munion, confirmation, administration of ' the sacraments in private places, which ' are brought in by a null Assembly, ' and are contrary to the Confession of ' Faith, as it was meant and subscribed, ' anno 1580.' Thirdly, the change of the government of the Kirk from Assembly to Prelacy. Fourthly, the civil places and power conferred upon kirkmen, their sitting in Session, Council, Exchequer, and so on. Fifthly, the keeping and authorising corrupt Assemblies in the years 1606 and 1608, the latter of which had passed the Five Articles of Perth. And the sixth cause was ' the want of lawfull and Free Generall Assemblies, rightly constitute, of Pastors, Doctors, and Elders, yearly or oftner, pro re nata, according to the libertie of this Kirk, expressed in the Book of Policy, and acknowledged in the Act of Parliament, 1592. After which the whole Assembly in one heart and voyce did declare, that these and such other, proceeding from the neglect and breach of the Nationall Covenant of this Kirk and kingdome, made in anno 1580, have been indeed the true and maine causes of all our evils and distractions. And therefore ordain, according to the constitutions of the Generall Assemblies of this Kirk, and upon the grounds respective above specified, That the foresaid Service Book, Books of Canons, and Ordination, and the High Commission, be still rejected ; that the Articles of Perth be no more practised; that episcopall government, and the civill places and power of kirk men, be holden still as unlawful in this Kirk; that the above-named pretended Assemblies at Linlithgow,' etc., ' be here after accounted as of null and of none effect. And that for the preservation of religion, and preventing all such evills in 290 HOUSE ' time coming, Generall Assemblies rightly ' constitute, as the proper and competent ' judge of all matters ecclesiasticall, heere- ' after be kept yearly and oftner, pro re ' nata, as occasion and necessity shall re- ' quire ; the necessity of these occasionall ' Assemblies being first remonstrate to his ' Majestie by humble supplication, as also 'that Kirk-Sessions, Presbyteries, Synod- ' all Assemblies, be constitute and observed ' according to the order of this Kirk. ' After the voycing of the Act (anent the ' causes of our bygone evills), his Majestie's ' Commissioner consented verbally to the ' said Act, and promised to give into the ' clerk in writ the declaration of his con- ' sent, and that he should ratifie this Act ' in the ensuing parliament.' Well, now, that is followed upon page 40 by 'the ' Supplication of the Assembly to his ' Majestie's High Commissioner, and the ' Lords of Secret Councell,' to ratify the Act, and a simUar one on page 41. I do not think, however, that I need make any further reference to the Acts of Assembly upon this point, but merely to draw this conclusion from them, that they were all Acts of an Assembly which was not sitting under normal circumstances ; that what they were doing was null, and I quite admit they were using terms from which it may be inferred that they thought they had power themselves to right matters by restoring things to the true constitution of the Church as it is to be found in the Confession and in the Act of Parliament establishing it. But you must take that along with this, that they did substanti ally recognise that they had no power, because they at once supplicate Parlia ment to re-enact or confirm what they themselves have done. Now to turn to the Acts of Parliament which do this, I would, in the first place, inform your Lordships that Parliament was in very much the same position as the General Assembly. It was only a meeting of the Estates, not of Parliament in the proper sense, and that is shown most emphatically by the first Act, or the second Act really of the Parliament itself. It has nothing to do specially with the ecclesiastical matters ; it is an Act which they passed with reference to the con stitution of Parliament, and of all subse- OF LORDS quent Parliaments. It is the fifth volume of Thomson, page 259. The fact was that the King had not authorised Parliament to sit, and they passed this Act conse quently, as the note in Thomson's Act states, ' the warrants of this Act, and of ' many subsequent Acts of this Parlia- ' ment, originally set forth the enacting ' authority in the usual style, commencing ' " Our Sovereign Lord and the Estates of ' " Parliament " ; they were altered before ' the passing of the Acts to meet the cir- ' cumstances under which Parliament was ' then assembled ' ; and you will find that all these Acts proceed in this style, not ' Our Sovereign Lord and the Estates of ' Parliament,' as is usual throughout the Scots Acts, but simply 'The Estates of ' Parliament presently convened ' ; and in point of fact the situation of Parliament was this, that the original Parliament had been prorogued and had never been re assembled by the royal authority, but assembled of its own authority, and this Act most emphatically declares that not withstanding its irregularity it shall be held to be an assemblage of the Scots Estates, its enactments to be binding, and it concludes with a declaration by the members of the Estates that they will uphold its actings. Now, what it does may be part of the constitutional history of Scotland, but I only point to it as showing that Parliament was just in the same position, so far as the contest with the Crown goes, as the Assembly was itself. Parliament, as your Lordships will find from the print of the Acts ; the first thing you find on page 33 is that the King's promise to hold a Parliament in 1639 was not fulfilled, but at the same time the Lords of the Articles did sit — you will find that at page 33 of the print of the Acts and at page 34 ; and that the first thing the Lord Commissioner does is to subscribe the National Covenant ; and then in the Articles, not in Parliament, but in the meeting of the Lords of the Articles, you have a 'Ratification of the ' Acts of Assembly, namely, the Act maid ' upon the 17th August last, entituled ' "Anent the sex causes of our bygane ' " evillis " ' (that is the last Act of Assembly which I read), 'and the Act ' prefixed to the Covenant Red, voited MR. JOHNSTON'S SPEECH 291 Articles ; under ' certain magistrates, and others to subscribe them. ' and past in protestations with regard to precedence that have nothing to do with the matter. Then, on the same date, an Act, rescind ing all former Acts of Parliament intro duced in favour of Bishops or Episcopacy, is delivered to the King's Advocate to be revised and advised. Then at a later date, in September of the same year, ' The Ratification of the Acts of Assemblie ' and Covenant Red, voited and past, in ' Articles,' and so on with the following page. Nothing, then, is done until the year 1640, when Parliament again meets; but again, as your Lordship sees from page 34, letter F, it is not the King and the Estates of Parliament, but it is ' The ' estatis of Parliament presentlie con vi end ' by his Majesty's special 1 authoritie'; they introduced that upon the idea that he had originaUy summoned Parliament, and that therefore it had been convened, but they had not his authority to proceed, because Parliament had been prorogued, and the Estates were there acting, as I say, in that • earlier Act of 1640, upon their own authority. As I say, that Act is one I shall not read from, as it is merely an Act providing for the conferring upon the Church and its pres byteries the presentation to kirks, the patronage of which was in the hands of the Bishops. Then, on the next Act of 1640, you have at the bottom of page 36 : ' The Estates of Parliament presentlie ' conveind by his Majesty's speciall ' authoritie Considering the supplicatione ' of the Generall Assemblie ' ; and the Act of Council noted that the said Act con tained 'the act of the said Generall ' Assemblie Ordaneing by thair ecclesi- ' asticall constitutione The subscriptione ' of the Confessione of Faith ' ; it proceeds to ratify and approve the supplication, Act of Council, and Act of Assembly, and ' ordeanes and commandis the said ' Confessione and Covenant to be sub- ' scryveit by all his Majesties subjects of ' what ranke and qualitie soevir under all ' civill paines. And ordeans the Supplica- ' tione, Act of Counsell, and Act of As- ' sembly, with the whole Confessione and ' covenant it selfe, to be insert and regis- ' trat in the actis and bookis of Parlia- ' ment,' and such like ; ordains all judges, That, therefore, is an Act of the Estates, I will not say of Parliament in the ordin ary sense, but an Act of the Estates confirming and ratifying what the As sembly had done with reference to the National Covenant. You have, then, narrated and inserted in the Act the supplication of the Assembly, the Act of the Privy Council, the Act of Assembly ordaining the subscription, and the Con fession of Faith itself. Now that Con fession again, I should explain to your Lordships, is not the Scotch Confession of 1560, but it is part of the covenant entered into, in the first place, by James in 1580, and it is based upon the Con fession. If your Lordships will kindly allow me to read page 41, letter G, you will find that the Confession, or Covenant, to give it its proper name, founds its analysis, so to speak, of the Faith upon the Confession of Faith established and publicly confirmed, because it says : ' as ' more particularlie is expressed in the ' Confessione of our Faith established and ' publicklie confirmed by sundrie acts of ' Parliamentis and now of a long tyme ' heath been oppinlie professed by the ' Kingis Majestie and whole body of this ' realme.' It is therefore nothing different, or it is different in its object, because its object was the Covenant, but it is not different in its creed, because its creed is the creed of the old Confession of 1560. The next Act, my Lord, is at page 47, which is the ratification of the important Act of the Assembly about the six causes of the present evils, and it re-enacts that just in this sense — it confirms it by narration, because it proceeds at the bottom of page 47 — ' whereof the tennour falouse,' and then just quotes it from end to end : ' which aet with all and sundrie the par- ' ticular headis clause and articles thairin ' conteaned the estates now convened by ' his Majesties indicatione warrand and ' authoritie foirsaid ratifies approves and ' confirmes in all poyntes in maner as the ' same proportis and gives thairunto the ' strength of a Law and Act of Parlia- ' ment and ordeans executione to pas ' thereupon as effeires.' Accordingly, my Lords, all that was done by the Assembly — in whatever terms of words — you have 292 HOUSE all that was done by the Assembly con firmed and given the strength of a Law and Act of Parliament, so far as consti tutionally the Estates of Parliament in that year 1640 had power to do so, and it is not for the Assembly to gainsay their power. Now,' my Lord, that concludes what I have got to say about the episode of the second Reformation — that is, 1638 and 1639. What is founded upon the adop tion of the Westminster Confession in 1649 may, I think, be more shortly dealt with. From 1638 the Government of Scotland was very aptly described as approaching very nearly to a theocracy; the General Assembly and the Estates were practically the same, and the whole government of Scotland was being carried on — it was a reign of the saints, in fact. In 1642 you have in the book of the Acts of the Assembly, at page 57, the first intro duction of the idea of uniformity of religion and government being pressed by the Assembly upon both nations. The idea of international uniformity is found for the first time in 1642, at page 57, at the foot of the page, in the form of a supplication of the Assembly to the King's Majesty. That is followed by various communications between the Assembly on the one part, the Scots Estates on the other, and the English Parliament ; and I think I may pass to one passage at page 59, where, in answer to a communication from the Parliament of England, ' the ' commissioners of this kingdome ' (that is, of Scotland) ' in the late treaty of peace ' considering that religion is not only ' (I read from the foot of page 59) 'the meane ' of the service of God and saving of ' souls, but is also the base and foundation ' of kingdomes and estates,' and so on, did present ' in name of this kingdome ' their serious thoughts and earnest desires ' for unity of religion, that in all his ' Majestie's dominions there might be one ' Confession of Faith, one Directory of ' Worship, one publike catechisme, and ' one form of Kirk Government ' ; and that is what the Westminster Assembly studied to produce, and so far as it could, effected ; because it did produce one Con fession of Faith, one Directory of Worship, one pubhc catechism, and one form of OF LORDS Kirk Government, although these were not adopted by England, but were only adopted by Scotland. Then the next point is that in 1643, at page 76, the Assembly is asked by the English Parliament to send representatives to the Westminster Assembly, and it does so, and then the matter reaches the point of the Solemn League and Covenant. That, you find at page 86, is drafted, approved by the Scots Assembly, and sent to England for consideration of the two Houses of Parliament of England, at page 86 at the top. Then you have at page 89 the nominations of their repre sentatives to the Westminster Assembly and the commission granted to them ; and then you have at various points in page 115 the approval Act of Assembly establishing and putting into execution the Directory of public Worship pro duced by the Westminster Assembly, and you have subsequently the approbation of the Westminster Confession, approval of the Larger Catechism and of the Shorter Catechism. With regard to the Westminster Con fession, I must read the Act itself, because something is founded upon that. That is at page 158, and it proceeds: 'A Confes sion of Faith for the Kirks of God in the three Kingdomes, being the chiefest part of that uniformity in religion, which by the Solemne League and Covenant we are bound to endeavour; and there being accordingly a Confession of Faith agreed upon by the Assembly of Divines sitting at Westminster, with the assist ance of Commissioners from the Kirk of Scotland ; which Confession was sent from our Commissioners at London to the Commissioners of the Church met at Edinburgh in January last, and hath been in this Assembly twice publikely read over, examined, and considered; copies thereof being also printed, that it might be particularly perused by all the members of this Assembly, unto whom frequent intimation was publikely made to put in their doubts and objec tions, if they had any ; and the said Confession, being, upon due examination thereof, found by the Assembly to be most agreeable to the Word of God, and in nothing contrary to the received MR. JOHNSTON'S SPEECH ' doctrine, worship, discipline, and govern- 55, and onwards of the print. ' ment of this Kirk ; and lastly, it being ' so necessary and so much longed for ' that the said Confession be, with all ' possible diligence and expedition ap- ' proved and established in both kingdoms, ' as a principal part of the intended uni- ' formity in religion, and as a special ' means for the more effectual suppressing ' of the many dangerous errours and ' heresies of these times : The GeneraU ' Assembly doth, therefore, after mature ' deliberation, Agree unto and Approve the ' said Confession, as to the truth of the ' matter (judging it to be most orthodox ' and grounded upon the Word of God) ; ' and also as to the point of uniformities, ' agreeing for our part that it be a common ' Confession of Faith for the three King- ' domes. The Assembly doth also blesse the ' Lord and thankfully acknowledge His ' great mercy, in that so excellent a Con- ' fession of Faith is prepared and thus far ' agreed upon in both Kingdomes, which ' we look upon as a great strengthning of ' the true reformed religion against the ' common enemies thereof. But lest our ' intention and meaning be in some par- ' ticulars misunderstood, it is hereby ex- ' pressly declared and provided that the ' not mentioning in this Confession the ' severall sort of ecclesiasticall officers and ' assemblies shall be no prejudice to the ' truth of Christ in these particulars to be ' expressed fuUy in the Directory of ' Government. It is further declared, that ' the Assembly understandeth some parts ' of the Second Article of the Thirty-one ' Chapter only of Kirks not settled or ' constituted in point of government.' Now that is founded upon as if the General Assembly were mero motu and of its own authority adopting for the Scottish nation and for the Scottish Church a new Confession of Faith. I regard it as merely the approval on the part of the Assembly qua Assembly of the new Confession which is made by the statutes (to which I shall immedi ately refer) the foundation of the Church, first of all in 1649, and afterwards when the Church is re-established again as a Presbyterian Church in 1690. My Lord, these Acts are very shortly referred to ; they are to be found at page 293 At page 55 there is narrated The Lord Chancellor. — I am not quite certain that I follow what you are doing now ; up to this point I can under stand, but I am not quite certain that I follow what you are doing now. You have got to that condition in which the Westminster Confession is agreed to. Mr. Johnston.— Yes, my Lord, what I was proposing to point out was that while it is agreed to by the Church, it is not made a rule of the Church by mere Church authority because incidentally it is adopted by Parliament. The Lord Chancellor. — Yes, I know, but I do not quite follow what we are upon now. I can quite follow your argument up to this point. You say that although they were professing to have the automatic power themselves as a Church, as distinguished from the State, to pro pound various propositions, they were in a state of rebellion, and that their lan guage is not to be' construed literally, or it does not prove that they thought they had. But now we have got to the condition when the parties are in harmony, at all events. Mr. Johnston.' — In harmony, my Lord, but at the same time their adoption, in 1647, of the Westminster Confession, in that Act I have just read, is founded upon as one of their Acts of legislative authority, and I was merely concerned in showing that, while they do so in words, the matter is at once taken up by Parliament, and by Parliament the same thing is done with regard to the Westminster Confession as was done with regard to those Acts in which, for instance, in form of words they abolish Episcopacy. That is all that there is in it, and there is nothing further to argue. You see that in a very short Act, at page 71, in 1649, 'The Estates of ' Parliament, etc., having seriously con- ' sidered the catechisms, viz., The Larger ' and Shorter Catechisms and Confession ' of Faith with three acts of approbation ' thereof presented unto them be the ' Commissioners of the Generall Assembly ' Doe ratifie and approve the saidis Cate- ' chismes Confession of Faith and acts of ' approbation of the same produced as said ' is and ordaines them to be published and 1 printed (and practised).' 294 HOUSE OF LORDS That ends what I have to say, my Lord, upon these two episodes in the history, and I contend, with confidence, that they do not establish in the Church of Scotland, as it then existed, anything like a legislative power. Now there is, of course, some thing more to be said than is said by the respondents upon the actings of the Church from 1833 on to 1843, which is part of the assertion of the independent constitution of the Church, and which constitution they say they carry on into the Free Church. My Lord, those Acts are three in number. In the first place, at page 1024 of the print of the Acts, they pass an Act : it is a Declaratory Act as to Parliamentary Churches, and it is the Act under which they deal with the Churches that had been estabhshed under certain special Acts applicable to Scotland, and in it they declare : ' That the whole districts ' in Scotland now or hereafter to be ' provided with places of worship and ' ministers, in terms of the Act of 4 ' George IV. c. 79, and^ George IV. c. 90, ' shall be, and are hereby, from and after ' this date, erected into separate parishes, ' quoad sacra, and to that effect are hereby ' declared to be disjoined and separated ! from the parishes of which they at present ' constitute a part; and they declare that ' the ministers of these are to have the ' whole powers and privileges now com- ' petent to parish ministers of this Church.' Now that was the first beginning of this Disruption controversy. Two things were attempted : first of all, the carving out of the original parishes of areas to be served by these churches ; and secondly, the making of the ministers of these churches on the same footing, and therefore eligible as members of the Assembly as the parish ministers. That was certainly an attempt on the part of the then majority of the Church to interfere in a matter which from one point of view I think was perfectly legitimate, but which from an other point of view was not. So far as it was merely carrying the government and order of the Church, it might be quite a proper thing that the Assembly of the Church should regulate matters with regard to parochial areas, and so on, but then their so doing interfered with private rights — interfered with the rights of the parish clergy, but interfered still more with the rights of the proprietors and the rights of the populations, and the Courts held that it was not legal for the Assembly to pro ceed to this effect. But their doing so does not appear to me to be an operation of legislative power to the effect that my learned friends desire ; it is much more a matter of order, but a matter of order in which they had stepped beyond their powers, because they came in conflict with existing rights. At page 1035 you have the second of these Acts, which is a very similar Act, with reference to Chapels of Ease, and that makes the ministers of Chapels of Ease, — because they are ministers of the Church, therefore it attempts to make them members of the Assembly. Now let me point out, and it shows the value of their Barrier Act, that the Barrier Act was not used in the case of either of these Acts ; both of these Acts were passed as mere Declaratory Acts, and by themselves were not treated as in any way altering doctrine, discipline, or govern ment. Then the Act which caused the Disrup tion (we may so say) is the Veto Act, at page 1044 ; the Veto Act is the short expression for it, but it is titled 'Act on ' the Calling of Ministers,' and that Act was the real causa causans of the Dis ruption of 1843, and this Act, I believe, did pass the Barrier Act, ' The General ' Assembly declare, That it is a f unda- ' mental law of this Church that no pastor * shall be intruded on any congregation ' contrary to the wiU of the people ; and, ' in order that this principle may be ' carried into full effect, the General ' Assembly, with the consent of a majority ' of the Presbyteries of this Church, do ' declare, enact, and ordain, That it shall ' be an instruction to Presbyteries, that ' if at the moderating in a call to a vacant ' pastoral charge, the major part of the ' male heads of families, members of the ' vacant congregation and in full com- ' munion with the Church, shall disap- ' prove of the person in whose favour the ' call is proposed to be moderated in, such ' disapproval shall be deemed sufficient ' ground for the Presbytery rejecting such ' person.' That is giving to the congrega tion an absolute and unreasoned right of veto. That was negatived by the Courts, and I think it is the only fair view to take that these three Acts to which I have referred were really part of the Dis ruption proceedings. The Lord Chief Justice. — The last was an attempt at legislation, was it not? Mr. Johnston.— Yes, I think it was. The Lord Chief Justice. — I mean it is not open to the explanation you give about the other two ? Mr. Johnston. — No, it was an attempt at legislation, but then I must call attention to legislation in what direction ? It was legislation in the direction of laying down by the Church for the Church the method how the ministers were to be admitted to the charge of congregations. Now, the Church had certain powers and certain duties in that relation ; it had the ex amination of and admission of ministers, which were placed in its hand from the very earliest period of its history by statute. What it does here is to intro duce an illegal condition, but because it does that and in the form of legislation in connection with the proceedings, out of which the Disruption arises, I fail to find any justification for the assertion that, therefore, the Church had legislative powers or claimed legislative powers be yond the scope of their Act. The idea is that because it did this, and did it illegally, therefore it claimed absolute independence in all matters, and, therefore, I come back to my learned friend's Record, because I think it is convenient to conclude this part of the argument with what they maintain as to the scope and purpose of the Disruption. If you will look at page 89 of their Record you will find that what they set forth is that by all these Acts, particularly those I have just referred to, they changed and modified their own doctrine, worship, discipline, or govern ment. Now, I fail to find even any asser tion of a right to touch doctrine or worship or government. In the matter of discipline I think you may take it that that Veto Act was an assertion of a right to change the mode of dealing with the entry of clergy which may come under that head, but then they say the 'Church claimed ' to exercise the right to do so in virtue MR. JOHNSTON'S SPEECH 295 ' of its own independent spiritual jurisdic- ' tion and without restraint from the State, ' even when the Church was in statutory ' connection with the State,' and that the ' separation or disruption was in order that as a Church apart from and not in alliance with the State it might fully enjoy such rights. Now, my answer to that is, that they are, out of certain special and particular Acts, attempting to deduce general conclu sions which those special Acts do not warrant ; and what I am entitled to demand is, that my learned friends shall construe the constitution of the Church as hereto fore understood with reference to the document in which the word is found. That document — the two documents of 1842 and 1843 — make perfectly plain what they mean by ' as heretofore understood.' Heretofore understood you will find on page 47 F, of Print A, which is the com mencement of the Protest; they 'protest ' that the conditions foresaid ' (that is, the conditions imposed by the Civil Courts), ' while we deem them contrary to and ' subversive of the settlement of Church ' government, effected at the Revolution • and solemnly guaranteed by the Act of ' Security and Treaty of Union, are also ' at variance with God's Word, in opposi- ' tion to the doctrines and fundamental ' principles of the Church of Scotland, ' inconsistent with the freedom essential ' to the right constitution of the Church ' of Christ ' ; therefore it seems to me that you have got to read these with reference to what the conditions apply to, and these conditions apply simply and solely to what may be briefly termed the struggle arising out of the non-intrusion principles ; that what the Church were at that date and in these documents striving for was what they termed the independence of the Church in matters of spiritual govern ment, and spiritual government they them selves define to be inter alia the estab lishment of the relation between the minister and his people ; and that you cannot, when you read the whole of these deeds going together (because they refer to the document of 1842 as the place in which the constitution ' as heretofore un- ' derstood ' is set forth), find in that docu ment anything wider in the matter of 296 HOUSE OF LORDS an assertion of sphitual independence than an assertion of independence of the civil judicatories in the matter of the creation of the ministerial relation. Look, for instance, at pages 18 and 19, and you have clearly defined what they mean, by the government of the Church, which is in spiritual matters what they contend should be left untrammelled. In their own words it is limited to the preaching of the Word, to the administration of the Sacraments, to the correction of manners, to the admission of the office-bearers of the Church, their suspension and depriva tion, and, as they say, to the whole power of the keys. Now, it is just upon that very subject as defined by them, although the Court differed — the admission of office-bearers of the Church — that this whole question arose. They took one view of the constitution of the Church with reference to that, and the Courts took another; but that was an assertion upon their part, not merely of independence in the spiritual government of the Church, but assertion of right to change not merely the Presbyterian form of government, but the creed or confession upon which that Church was estabhshed. It is limited, and my learned friends seek — but seek, I think, unsuccessfully — to spell out of that limited assertion of independence — under the phrase ' spiritual independence ' which is not used in either of these documents — ¦ the widest possible power of altering and enacting everything independent of the State connected with the Church. My Lord, I submit that they fail in that, and that the documents themselves, when rightly applied to the situation, negative their claim to legislative power. Now, I have lastly, my Lord, shortly to refer to the bearing of certain cases which have been decided on this subject. I do so for this reason ; I do not desire to set them forth as authorities which must be followed in this Court or reversed, but I think it is my duty to inform your Lord ship of them, because I conceive that two of them, I think, and one of them certainly, could not stand with this judgment, that is to say, if this judgment be affirmed it is practically a reversal of these two cases, and I therefore think it is right your Lordship should know of the cases, although I do not propose to argue upon them. The first of these cases is known as the Kirkintilloch Case — Craigie v. Marshall, at page 523 of the 12th volume of the Second Series of Dunlop, and I will state briefly the circumstances of the case. It arose out of the union which formed the United Presbyterian Church. The congregation at KirkintiUoch was a con gregation of Seceders, and these Seceders were just on the point of uniting with the Relief congregation to form the United Presbyterian Church. In connection with the negotiations for that union the minister and a considerable proportion of his con gregation were among the objectors to the union, and he was declared by the Synod of the Secession Church, in consequence of the attitude then taken, to be no longer a minister — he was excluded from his church. His congregation followed him, and the Act of Union followed a few months afterward ; and the question which arose was between the two parties, as to whether he and the majority of his con gregation retained a right to their church, or whether they were bound to follow into the United Presbyterian Church under pain of loss of their Church property. As to the founding of these two Churches, the Relief Church and the Secession, the Relief Church had started on questions of patronage only; but in the Secession Church patronage was a minor matter, and the con tinuing of the obligation of the Covenant was the more important part. Your Lord ship will find from the rubric of the case that the determination was : ' That the ' defenders having separated from the ' Secession Church was not a violation of ' the conditions on which the property of ' the Meeting House was held in trust, so ' as to lead to a forfeiture of their rights ' to it, they stUl continuing to hold the ' doctrines and opinions originally main- ' tained by that body, and that they were ' entitled to refuse to concur in the union ' with the Relief Church, and were not ' bound to submit themselves to the change ' in the Church government consequent ' upon it.' Lord Davey. — Who was Craigie — a member of the Relief Church or an Original Seceder ? Mr. Johnston. — Craigie was the repre- MR. JOHNSTON'S SPEECH 297 sentative of the minority who went with the Synod into the union ; he was one of the trustees. Lord Davey. — Into the union ? Mr. Johnston. — Into the United Pres byterian Union. The circumstances out of which the case started were, that this congregation, by a majority, refused to become United Presbyterian, and insisted upon remaining one of the old Secession Churches ; and the question was, whether the majority of the Secession could compel that congregation to follow them into the United Presbyterian Church or not. Now, the value to me of the way in which this case is dealt with is, that the Court held that it was really not (just as I have argued here) a merger of the Churches but the creation of something new, and something new into which both parties to it were entitled to bring certain incon sistent views and doctrines, and that no congregation (of course it only deals with congregational matters) could be called upon to follow, on pain of loss of its pro perty, into the congregation of a new body which had never been contemplated in the foundation of the Church to which it belonged. In point of fact, it and the case which follows it really justify me in saying that they held there was no merger of the one Church in the other; it was really a dissolution of both and the creation of something new which happened, and which I say has happened in this case. If the Free Church is taken into the Union, and its continuity has not been continued by the appellants here, I think, just as in the case of the formation of the United Presbyterian Church, you have the dissolution of both Churches and the creation of a new Church. At page 559, what one of the leading opinions in the case says is this : ' It will not do in my ' humble judgment to say that the Seces- ' sion Synod were merely making an ex- ' tension of the Secession Church by adding ' certain congregations to it. The reality ' of the case must be faced. This is not ' the state of it. The summons itself bears ' that what is now called the United ' Presbyterian Church consists of two dis- ' tinct Churches, the United Secession ' Church and the Relief Church, each con- ' sisting of many Presbyteries and separate ' Synods. The pursuers will not say that ' this is merely an extension of the Relief ' Church, and that they are become mem- ' bers of the Relief. If they did say it, ' it would not be true. On the one side, ' there is no proposal by any particular ' congregation of the Relief Church, to ' become simply members of the United ' Secession Church ; and, on the other, ' there is no proposal by the members of ' particular congregations of the United ¦ Secession Church to become members of ' the Relief Church. This is not the ' thing proposed or done. What is pro- 1 posed and done is that the whole Relief ' Church and the whole Secession Church ' shall be united per aversionem upon a ' treaty as to the terms of this Union. ' The very necessity of a treaty between ' the two Synods demonstrates that it is ' not a case of extension by the one or ' the other, to be accomplished in its own ' will. And when we look at what the ' treaty was, and the conclusion in which ' it terminated, it is apparent that each ' party retained all its own principles and ' all its own practice, the very making of ' which reservation implied the existence 1 of some difference between them which ' could only be adjusted by a specific ' treaty.' My Lords, that expression is, I think, word for word applicable. The Lord Chief Justice. — What was the judgment — that they left the property with the dissentients ? Mr. Johnston. — Yes. I say, the words of that judgment, which I have just read, apply word for word to the present situa tion ; it is exactly describing the situation you have here — no real reception by the Free Church into its fold of the United Presbyterian Church, but I think I am right in saying, the dissolution of both, and upon a treaty indicating that there are differences, and that these differences are to be carried into the new body — the creation of something quite different. The Lord Chancellor. — That is Lord Moncreiff's judgment, is it not ? Mr. Johnston. — Yes, my Lord, it was the first Lord Moncreiff. My Lord, the second case is very much on the same lines ; it occurred in the town of Thurso, and is the case of Couper v. 298 HOUSE OF Burn, in vol. 22 of the same Series of Reports, page 121. The Lord Chancellob. — 22 Dunlop. Mr. Johnston. — Yes, page 121. I think in that case the Court laid down exactly the law of Lord Eldon, 'A congregation ' of Seceders possessed a chapel which was ' vested in trustees for behoof of a con- ' gregation in connection with the body ' that afterwards became the " United ' " Associate Synod of Original Seceders." ' A majority of the Synod joined the Free ' Church' (that they did in 1852, as your Lordship knows), ' the minority met and ' constituted themselves the Synod ad- ' hering to their former principles ' (that is very much what you have here, the minority of the Assembly continuing to meet and continuing under their former principles). ' The congregation was divided, ' but a majority was in favour of the ' Union. In an action of declarator by ' the minority, to vindicate their right to 1 the chapel, it was held that having regard ' to the trust title under which the pro- ' perty was held, the chapel belonged to 1 the part of the congregation which ad- ' hered to the principles maintained by the ' Church for whose behoof it was vested ' in trustees; that a majority of such a ' body were not entitled to compel the ' minority to unite with any other body ' or divert the chapel from the purpose for ' which it was held in trust ; that the ' principles of the Free Church and of the ' United Associate Synod of Original ' Seceders were different in essential par- ' ticulars, and, therefore, that the pursuers ' were entitled to decree as concluded for.' The Lord Chancellor. — I do not under stand the Dean of Faculty ever to have controverted that principle at all. Mr. Johnston. — I do not think he has, my Lord, because it is the principle which is deduced from the leading House of Lords case, Craigdallie. Lord Davey. — Do you maintain that the mere fact of uniting with another Church or another body of Christians is an infringement of the trust, because that is what is held in the Kirkintilloch and Thurso cases. Mr. Johnston. — No, my Lord ; I think that is putting it higher than they do and than I need put it. LORDS Lord Davey. — I understood Lord Jus tice Hope to put it on that ground, and Lord Moncreiff also. Mr. Johnston. — No, my Lord ; I think that is rather an extreme view of what they say. What they say is, that there is no obligation to go into such a union where that union is based upon a treaty which provides not for the merging of the one Church with the other, but for the creation of something different from either, — formed of the two elements of both with the terms of a treaty which showed that there were differences, which differences were carried into the new body. Lord Davey. — This is what I am read ing from Mr. Taylor Innes' book ; it is a quotation from Lord Moncreiff 's judgment. ' There being such a marked separation ' between the United Secession Church ' and the extensive body of the Relief ' (this relates to Craigie v. MarshaU), ' were ' the members of the Kirkintilloch con- ' gregation, when a union between these ' two bodies was proposed, bound even to ' enquire what the religious tenets or ' ecclesiastical opinions of theRelief Church ' were, so as to know how far they agreed ' with their own or how far they differed ' from them ? I apprehend that they were ' not, and that it was enough for enabling ' them to determine whether to consent ' or to refuse to consent to the union, that ' the Relief was an entirely different and ' separate Church of dissenters with whom ' the Secession Church had hitherto had ' no connection.' That, I presume is a correct quotation. Mr. Johnston. — Of course, I cannot find it at the present moment; I assume cer tainly that it is, but it is a quotation, and I think the first words that your Lordship read justify the conclusion that your Lord ship comes to, but I think the second half justifies me — certainly the passage which I read to your Lordship from page 559 of the Report. Lord Davey. — It does not very much matter ; I think in your former argument you did suggest that a union, unless it was expressly authorised, was per se an infringement of the trust. Mr. Johnston. — I do not wish to argue the matter too high, because I think the passage I have read from Lord Moncrieff MR. JOHNSTON'S SPEECH 299 at page 559 truly describes the situation and the result of that situation so far as I am concerned in the present case. The case which I was just referring to, the Thurso Case in 22 Dunlop, is mutatis mutandis very much in the same position, and there the Court held that the position of the Secession Church was such that there were definite differences between them and the Free Church, which justified this congregation remaining where it was. Lord Wood gave the opinion of the Court in that case, and he starts dealing with it as a question of trust title; he then proceeds to show the condition of the right upon which they held, and accepts Craigie v. Marshall as an authority; and then, apart from authority, approves the views contained in it. The Lord Chancellor. — 'Upon this ' point we subscribe to everything that was ' said by the late Lord Justice Clerk and ' Lord Moncreiff in delivering their opinions ' in Craigie v. Marshall.' Mr. Johnston. — The grounds of differ ence were simply these — that the one Church had held, and the other did not, the continuity of the Covenant obligation and the Divine right of Presbytery ; and the third important point, that the stand point of the Church was not to be taken as the Revolution Settlement of 1690, but the national uprising of 1638, and that those were sufficient differences in principle to justify any congregation of the Seceders declining to go into union with the Free Church. Lord James of Hereford. — Was the question there as to property the fulfilment of trust ? Mr. Johnston. — It was the same thing, but congregational. Lord James of Hereford. — As in the previous case ? Mr. Johnston. — Yes, exactly ; but I do not think you can find any difference between the congregational case and the principal one upon this question. Now, my Lord, I think I have exhausted the whole case as laid before your Lordships last time, and, I trust, not at too great length ; and I contend that the judgment for which I appeal is the right one, namely, that this Union disturbs the original prin- of the constitution of the Free Church, which the Assembly of the Free Church had no power to do. Your Lord ships must recollect that the Assembly of the Church is, so to speak, representative ; it is not the act of the whole Church, except so far as the Assembly has power ; the Assembly is made up of selected ministers and selected elders ; it is in no respect representative in the sense of an elected body, and it, therefore, does not carry the weight or power which elected representatives would ; but it is the juris diction of the Church as the Church is constituted, and I submit that its powers are limited, and so limited that it cannot do anything which involves a departure, or the alteration either of doctrine or of anything else which goes to the funda mental substance of the deeds which created the trust or which originated the trust upon which the property is held. I submit, therefore, that the judgment should be reversed. My Lord, at the last hearing I merely mentioned the matter of expenses to your Lordship as one part of the interlocutors which are appealed against ; your Lordship will understand that we maintain that the expenses should not be given as they have been given. Lord Davey. — Mr. Johnston, is there any practice in the Scotch Court by which the expenses in a charity case can be given out of the charitable funds ? Mr. Johnston. — There is nothing to define that they shall be ; it is always treated Lord Davey.— It may be understood, Mr. Johnston. — It is always treated as a matter within the discretion of the Court. Lord Davey. — Are the costs of both parties given out of the charitable funds ? Mr. Johnston. — I think they have been frequently ; as a very leading example, my Lord, I can mention both the Ferguson Bequest Cases, which were very large and important cases connected with a very similar matter. I do not say that they came here; they were cases in the Lower Court. Mr. Salvesen.' — My Lord, after the very full and exhaustive argument of my learned friend Mr. Johnston, I am glad to be able to assure your Lordship that my 300 HOUSE contribution will be of the briefest. My learned friend has left unread the Opinions of the Judges of the Inner House, and the Dean of Faculty agrees with me that it is desirable that your Lordships should have these before you, and I accordingly ask your Lordship's attention to the Lord Justice Clerk's Opinion, which you will find printed on page 69, and perhaps I might be allowed to state The Lord Chancellor. — That is page 69 of the last print? Mr. Salvesen. — Yes, very near the end of the large volume, and I propose, with your Lordship's permission, to make some comments on the passages in these opinions which seem to us to be vital to the decision of the case. The Lord Justice Clerk says : ' The community which existed for a long period under the name of the Free Church of Scotland was originally formed by a number of ministers and members of the Established Church of Scotland, who held they could not, without sacrificing the Church's liberty and authority in spiritual matters, remain associated with the Church as established, seeing that the civil power asserted to itself the right to exercise powers in connection with the induction of ministers in particular which were — as those who formed the Free Church held — not conferred by the constitution, and were an invasion of the jurisdiction of the Church Courts, subverting its government, and attempting to coerce these Courts in the exercise of their purely sphitual functions (Claim, De claration, and Protest of 1842). In seceding from the Established Church they made certain declarations of their faith and beliefs, and among others re garding the propriety of an Establishment of religion by the State as being part of the duty of the civil magistrate. The form which these declarations took in the proceedings which led up to the Disruption was that of expression of the high value attaching to the existing connection with the State, and the tem poral benefits thereby secured to the Church for the advantage of her people (Claim, Declaration, and Protest of 1842), and also of expression of the "right and " duty of the civil magistrate to maintain OF LORDS ' "and support an Establishment of re- ' " ligion," and of the reservation of the 1 right to strive to secure the performance ' of this duty according to the Scriptures ' and in implement of Statute. The ' declarations thus made before the Dis- ' ruption are the most strongly expressed ' which are to be found in any of the ' documents.' I do not think that is quite accurate, because I think some of the post-Disruption documents express the matter still more strongly than the pre - Disruption. There are numerous references in later documents issued by the authority of the Free Church, in which allusion is made to the duty of the civil magistrate in relation to the support of religion. In the Model Trust-Deed of 1844 a passage is imported from the Protest which speaks of ' our enforced separation from ' an Establishment which we loved and ' prized.' In a pastoral address de livered to the Free Churches in 1843 the matter is thus referred to (I do not think I need trouble your Lordships with that quotation, except at the very end, at G) : it was maintained that ' as the ' spiritual liberties of the Church, be- ' queathed to her by her divine Head, ' were entirely beyond the control of ' the State, so, upon the other hand, ' the State held directly and exclusively ' from God, and was entitled and bound ' to exercise, under its responsibility to ' Him alone, its entire secular sovereignty, ' including therein whatever it was com- ' petent for, or binding upon, the State ' to do about sacred things, or in rela- ' tion to the Church, as, for example, ' endowing and establishing the Church, ' and fixing the terms and conditions ' of that Establishment.' In 1851 the Free Assembly passed an Act and Declaration anent the publication of the Subordinate Standards and other authoritative documents of the Free Church of Scotland. In that document it is declared that the Church has ' always strenuously advocated the doc- ' trine taught in Holy Scripture — that ' nations and rulers are bound to own ' the truth of God, and to advance the ' kingdom of His Son ' ; and again, ' holding firmly to the last^ as she holds MR. SALVESEN'S SPEECH 301 ' still, and through God's grace will ever ' hold, that it is the duty of civil rulers ' to recognise the truth of God according ' to His Word, and to promote and ' support the kingdom of Christ without ' assuming any jurisdiction in it, or over ' it, and deeply sensible, moreover, of the ' advantages resulting to the community ' at large, and especially to its most ' destitute portions, from the public ' endowment of pastoral charges among ' them.' I think that is a very strong expression of the doctrinal aspect of this question, because they regard it as one which is unalterable ; they say that ' through God's grace they will ever hold ' that it is the duty,' and therefore I think it corrects the passage in the previous part of his Lordship's opinion, in which he says the strongest references are in the pre-Disruption documents. Then he says : ' In the year 1853 the General Assembly ' of the Free Church passed a Resolution ' in which they declared " that it is free ' " to the members of this Church, or their ' " successors at any time . . . when there ' " shall be a prospect of obtaining justice, ' "to claim restitution of all such civil ' " rights and privileges and temporal ' " benefits -and endowments " as they 1 had been compelled to give up. Later, 'in 1873, when an Act of Assembly ' was being passed regarding mutual ' eligibility of ministers of the United ' Presbyterian, Reformed Presbyterian, ' and Free Churches, the Assembly de- ' clared : "In passing this overture mto a ' "standing law, the General Assembly ' " think it right to declare, as they here- ' " by do declare, their adherence to the ' " great fundamental principles of . this ' " Church regarding " ' (I call attention to that, my Lord, because of some expres sions in"Lord Trayner's opinion, in which he says the Church never treated the Establishment principle as a fundamental principle, but here they say it is one of two fundamental principles) — ' " First, ' " the sole and supreme authority of the ' " Lord Jesus Christ, and His exclusive ' "right to rule in and over His Own ' "Church, and the consequent obligation ' " of His Church to be regulated in all ' " her proceedings by His Word alone, ' " for which end she claims to be pro- "tected in the maintenance of a com- " plete independence in spiritual matters, "and immunity from all coercion and " control from without ; and regarding, "secondly, the prerogative of the Lord "Jesus Christ as Head over all things "to His Church, and supreme over "nations and their rulers, who are "consequently bound, collectively and "officially, as well as individually and "personally, to own and honour His "authority, to further the interests of " His Holy Rehgion, and to accept the " guidance of His Word as making known "His mind and will."' That passage, I think, my Lord, is not ambiguous ; it is not capable of being understood in the United Presbyterian sense. No doubt if you left out the words 'collectively and ' officially ' it might be so understood, but as it stands it is utterly inconsistent with the doctrine that it is wrong for the State to endow an Establishment of religion. ' In 1876 the Free Church, after the ' formal procedure prescribed, to which I ' shall refer later, entered into an incor- ' porating union with the Reformed Pres- ' byterian Church, a community which ' certainly did not hold the Establishment ' principle, they having all along since ' 1689 declined to become members of the ' Church of Scotland as Established, and ' declaring to the last that " we still abide ' "by our objection to the Revolution ' " Settlement, nor do we commit ourselves ' " to an approval of an alliance of the ' " Church with the British State as at ' "present constituted, having in view ' " especially the unscriptural character of ' "its ecclesiastical relations," and they ' stipulated that " on entering into the ' "union the members of the Reformed ' "Presbyterian Church were free to re- 1 "tain and abide by the views and ' " principles hitherto retained by them." ' My Lord, that statement that the Re formed Presbyterian Church did not hold the Establishment principle is, I submit, totally inaccurate ; they held it in a higher degree than the Estabhshed Church of Scotland ; they were dissatisfied with the Revolution Settlement because they thought that the State should not have recognised Prelacy in England, but they would have accepted the Revolution 302 HOUSE Settlement if it had been a satisfactory one according to their notions. They were really the most conservative of all the Presbyterians, the Reformed Presby terian Church, and they exist to this day in a small remnant, some two Presbyteries in the South of Scotland. 'After this ' time the Free Church, in contemplation ' of a possible union with the United ' Presbyterian Church, made through its ' General Assembly several declarations in ' regard to the Standards of the Faith, ' and as to the sense in which certain ' declarations of the Confession of Faith ' might be construed. They also made ' modifications in regard to the formulas, ' assent to which was to be required from ' probationers and deacons before ordina- ' tion. In regard to these formulas it ' may be noticed in passing that in none ' of them, from the eighteenth century ' downwards, whether in the Established ' or Free or United Presbyterian Church, ' were intending office-bearers required to ' make any declaration in regard to estab- ' lishment or endowment by the State, ' the only declarations being those inserted ' in some of the later formulas to emphasize ' the exclusive right of the Church to ' self-government in all spiritual matters.' That is a quite accurate statement, but it is also to be noted that the Free Church formula, as I shall afterwards have occasion to point out, was substantially identical with the formula subscribed by members of the Established Church, and of course it must be held they regard it as an article of faith that it was lawful. Lord Davey. — I think there was a preamble annexed to the Act anent Formulas, showing the sense in which the words were used. Mr. Salvesen. — Not to the earlier in 1846 ; I am going to comment on the difference caused by that preamble in the later Formula : ' During the latter years of ' the last century it appears that the Free ' Church thought it necessary to pass ' Declaratory Acts " to remove difficulties ' "and scruples which had been felt by ' " some in reference to the declaration of ' " belief required from persons who receive ' "licence or are admitted to office," ' and in the Declaratory Act of 1892 ' it was declared " that while diversity of OF LORDS " opinion is recognised in this Church " on such points of the Confession as do "not enter into the substance of the "reformed faith therein set forth, the " Church retains full authority to deter- " mine in any case which may arise what "points fall within this description." This declaration was undoubtedly made in view of a union with the United Presbyterian Church, and was foUowed up in 1900 by an overture regarding such proposed union being sent down to the presbyteries, and by a declaration of the Commission of Assembly in October of that year to the effect that "the "negotiations for union have been ex- " pressly conducted on the footing that " neither of the Churches is required to " relinquish any principle it has hitherto " maintained," and that the Free Church in entering on union adhered to her previous declarations as to the Headship of Christ over the Church and to the Headship of Christ over the nations, as set forth in the Confession of Faith. The Uniting Act was passed on 31st October 1900, and the United Assembly then passed a declaration in which the following clauses occur : ' The Larger and " Shorter Catechisms of the Westminster "Assembly, received and sanctioned by "the General Assembly of 1648, and "heretofore enumerated among the Doc- " trinal standards of the United Presby- " terian Church, continue to be received "in the United Church as manuals of " religious instruction, long approved and "held in honour by the people of both " Churches.' " I think those words are significant, because they are to be contrasted with the words that occur in the Estab lished Church Formula and in the Free Church Formula as originally framed, where you find the Confession of Faith treated as the Confession of the Faith of the individual persons, without any qualifi cations as to their being merely manuals which had been approved and held in honour. ' As this Union takes place on ' the footing of maintaining the liberty of ' judgment and action heretofore recog- ' nised in either of the Churches uniting, ' so, in particular it is hereby declared ' that members of both Churches, and ' also of all Churches which in time past MR. SALVESEN'S SPEECH ' have united with either of them, shall ' have full right, as they see cause, to ' assert and maintain the views of truth ' and duty which they had liberty to ' maintain in the said Churches ' ; in short, my Lord, I think that justifies what my learned friend Mr. Johnston said, that this was a mere merger of two bodies which held similar views upon many doctrinal points, but which agreed to differ upon many others or upon others : ' This document containing these declara- ' tions closed the proceedings for union, ' which from that time took effect. These ' historical details have been gone into ' for the purpose of bringing into view the ' attitude taken up from time to time by ' the Free Church on the question of State ' Establishment of religion. It cannot be ' doubted, on a perusal of the documents, ' that often, and sometimes with emphasis, ' such establishment was put forward as a ' prominent article of doctrine accepted by ' the general body of those who left the ' Established Church at the Disruption.' My Lord, I think it is important to refer to this passage, because Lord Trayner takes an entirely different view of the Establishment principle ; he does not regard it as an article of doctrine at all, but as something which had to do merely with the polity of the Church; on the other hand, the Lord Justice Clerk puts it forward, and we think correctly, as a prominent article of doctrine : ' They ' desired to declare that they were not ' Voluntaries in principle, and that they ' left the Church only because the civil ' power, as they held, was obtruding itself ' into the spiritual domain, and asserting ' a right to control the Church in the ' exercise of its spiritual functions, in ' which they held that the Church was ' directly under the Headship of Christ, ' and therefore could not acknowledge ' any earthly authority as having power ' to interfere. Now, the pursuers main- < tain ' — I do not think I need read the summary of the arguments, because your Lordships already know what it is; and then upon page 75, letter B : ' Upon the ' question whether it was an essential ' principle, without which the Free ' Church as constituted could not subsist.' Now, that is a definition of his Lordship 303 apparently of what is an essential prin ciple, and I venture to submit it is entirely erroneous, because it would be very difficult to say what principle could bo described as one without which a Church could not exist. Lord Davey. — He must first determine what is the Free Church. Mr. Salvesen. — Yes, I think one must, my Lord, in the first instance ; apparently the Lord Justice Clerk seems to think that no principle is essential if the Church can continue as a Church. The Lord Chancellor. — Not as a Church ; I accept your commentary at present, but it is the Church. Mr. Salvesen. — Yes, without which the Church could not exist ; ' it is important ' to notice ' The Lord Chancellor. — What he means is — whether it is correct or not I do not say — that the Free Church as consti tuted could have existed without that principle ; that is what he means. Mr. Salvesen. — Yes. The Lord Chancellor. — I am not pre pared to adopt his Lordship's reasoning at the moment, but that is what he says. Mr. Salvesen. — Of course I have great difficulty, my Lord, in seeing what relative importance conditions might have if they were part of the conditions of the trust— ' it is important to notice that it never ' was maintained that the Church could ' not fulfil all her functions without the ' aid of a State Establishment. This is ' self-evident, for the Christian Church in ' its early days had no king or government ' in any place in which its work was ' carried on that accepted Christianity. ' And it was plainly a question depending ' upon the circumstances and conditions ' whether, when any State became Chris- ' tian in faith, its support should be ' accepted officially by the Church. It ' had to be considered necessarily with ' regard to the circumstances and the ' conditions coupled with it. Indeed, as ' regards the Church of Scotland itself, it ' affords historical illustration on this ' point. For it originally was a seced- ' ing Church, renouncing the Episcopal ' authority to which up to the Reformation ' the whole Christian community had ' been submissive.' It does not seem to 304 HOUSE me that the fact that a Church has to do without State support can affect its doc trine or its faith with regard to the law fulness of a Church endowment. ' Again, when later the State endeavoured to reimpose Episcopacy, the Church of Scotland carried on its organisation and work, not only without connection with the State, but in active and deter mined opposition to it. The principle was throughout strenuously maintained that where there was an Establishment, if the State took up any position which was contrary to the conditions on which alone the Church could accept its aid, the Church could withdraw from its associa tion with the State, and if it did so it would not the less continue to be the Church, as it was before. This was indeed the very ground taken up in the case under consideration by those who objected to the action of the State before the Disruption, and which was expressed by those who formed the Free Church on the very day when they left the buUding in which the General Assembly was sitting in presence of the Lord High Commissioner of the Queen, and took upon themselves to assemble elsewhere. They declared it to be part of what they had had to con sider in taking the step they did, that in the circumstances "a free Assembly of the " Church of Scotland by law established, "cannot at this time be holden, and that "an Assembly in accordance with the "fundamental principles of the Church, " cannot be constituted in connection " with the State without violating the "conditions which must now, since the "rejection by the Legislature of the " Church's Claim of Right, be held to be "the conditions of the Establishment." This was followed up by an Act and Declaration of the Free Church in 1851, as to what had been done in 1843 — viz., that the action had been one of " publicly " renouncing the benefits of the national " Establishments, under protest that it is "her being free and not her being " Established that constitutes the real "historical and hereditary identity of "the Reformed National Church of " Scotland " ' (in short, they set their principles above the Church endowments, and declined for the sake of connection OF LORDS with the State to violate what they held to be principles of the Church). ' And in that document it was pointed out that the "whole work" of the setting up of the Scottish Reformed Church, and its rehef by severe struggles from Episco pacy, which "it repudiated," was " begun " and carried on without warrant of the " civil power," and that the Church had done it " by the exercise of her own "inherent jurisdiction." In another passage it is said, " Thus by God's grace, "in this second Reformation, wrought "out by our fathers amid many trials "and persecutions, this Church was "honoured of God to vindicate and " carry out the great fundamental prin- " ciples of her constitution — the govern- "ment of the Church by presbyteries "alone; her inherent spiritual jurisdic- "tion, derived from her great and only "Head, and the right of congregations "to call their own pastors." In more than one of the passages referred to, the expressions " fundamental principle " and " great fundamental principle " are used. An examination of the document shows that the expression "fundamental " principle " was not one which was employed indiscriminately and applied to numerous doctrines, but was especially used for emphasis in regard to such things only which those using it held were essential to the Church's existence as a Church, and which, if they gave up, she would cease to be a Church of Christ at all.' The Lord Chancellor. — I do not follow that, as a matter of fact from any thing we have heard. Mr. Salvesen. — No, I thought it was really contradicted by one of the quota tions which his Lordship made, under which this principle of Church Estab lishment was put alongside the other principle, the two being treated as funda mental principles. He says : ' Thus in ' the Claim, Declaration, and Protest of ' 1842 it is described as "an essential ' "doctrine of this Church and a funda- ' "mental principle of its constitution . . . ' "that there is no other Head of the ' " Church but the Lord Jesus Christ." ' In the same document it is narrated ' historically that the Act of James the MR. SALVESEN'S Sixth "recognised and established as a "fundamental principle of the constitu- " tion of the kingdom that the jurisdic- "tion of the Church in these" (certain spiritual matters named) ..." was " exclusive and free from coercion by any "tribunals holding power or authority "from the State or supreme civil "magistrate." They declared this to be "an unalterable and fundamental "condition" of the Treaty of Union, and that they could not put the "public "advantages of an Establishment" in competition with the "inalienable " liberties of a Church of Christ." I find in the documents only two declara tions in which the expression "funda "mental principle" is used in connection with a statement as to the relation of the State to the Church. The Free Assembly in 1871 formulated the follow ing declarations ' ; and then he quotes substantially the same passage as I have already referred to, taken from a dii . rent document, but again putting forward the Establishment principle as a great funda mental and characteristic principle, and at the foot of the page he quotes : ' " And "the Assembly, in the circumstances " foresaid, think it fitting also to declare " that this Church can never, consistently "or conscientiously, enter into any union "that would imply the abandoning or " compromising of either of these essential "principles, which are divine and un- " alterable truths." ' There you get the word ' essential ' that has been lacking up to the present time; we have 'funda- ' mental,' but there is ' essential ' as applied to this document on Church Establishment. Then upon page 78 he says : ' The other ' declaration is in the Act relating to ' mutual eligibility of ministers passed by ' the Free Church Assembly in 1873' (that was the one already quoted from). ' I agree with the Lord Ordinary in think- ' ing that these declarations are not such ' as affirm anything which could not be ' affirmed by those who are opposed to ' a State Establishment or endowment. My Lord, I humbly submit that that is entirely erroneous, because the statement that the nations and their rulers, are bound collectively and officially to further the interests of religion and so on, cer SPEECH 305 tainly is quite hiconsistent with the view of tho United Presbyterians who were Voluntaries in the sense that they thought it undesirable and unlawful for the State to have any connection with the Church at all. Then he says at letter B : ' They seem only to emphasize what it must be the duty of the Church in the exercise of its spiritual functions to preach and teach to the State as a matter of duty, and only repudiate the idea that in a Christian community the civil ruler can, consistently with his duty, fulfil his functions regard less of the Divine authority and principles as expressed in the Holy Scriptures. And accordingly it was with these declarations standing that the union was ultimately effected. They show that the negotiations which led up to the union were conducted by the great majority of the Free Church who were favourable to it, on the footing that " there was no objection in principle "to the formation of an incorporating " union " (resolution of the General Assembly of the Free Church in 1871) whUe they acknowledge that "much " consideration is due to the difficulties "which still appear to an important esteemed and honoured staud in the way.' ' It that while in the early Free Church's existence very great importance was attached to the principle of a Civil Establish ment of religion, it was treated as subordinate, in the sense that it was in no way vital to the existence of the Church, and must be repudiated and its benefits rejected, if the terms upon which the State might insist should be contrary to the spiritual liberty and authority of the Church in its one region. This view of the matter is very forcibly put by the judges in .the case of Smith v. Galbraith, and the views there expressed seem to me in their essential particulars to bear upon this case. I abstain from quotation, but the opinions are well worthy of study, and it is not easy to see how a judgment in favour of the pursuers in this case could be reconciled with that decision, which is, I think, substantially in point, as regards the opinion expressed by the judges, although the case may not rule the present,' " minority of " brethren tc thus appears days of the 306 HOUSE OF LORDS My Lord, in that case the courts were considering merely the interpretation of the Westminster Confession so far as relates to the duty of rulers, but one is reheved from any difficulty as to what the proper interpretation of that document may be, because we have the contem poraneous exposition of what the Free Church understood it to mean ; and ac cordingly if we have that as one of their fundamental principles, it seems to me it is unnecessary to enter upon an examination of the Confession of Faith itself to ascer tain whether it may not be open to one or more interpretations. The Court of Session thought it might be open to various interpretations, but the Free Church of Scotland pinned themselves to the one interpretation which is referred to in all the documents from which the Lord. Justice Clerk has quoted, which make it perfectly clear what they meant or what they conceived the Confession of Faith taught. It seems to me that they must necessarily be bound by their inter pretation of that doctrine, whatever other interpretations there might be. Then he says : ' This view might, I think, be ' sufficient for the disposal of the case, ' but even if it were not so, there is 1 another element which cannot be over- ' looked. The Free Church at its incep- ' tion, taking up the ground that it was ' the Church of Scotland quitting the ' Establishment, adopted and continued as ' part of its constitution the Barrier Act ' ; and then he reads the Barrier Act. ' Now ' this Barrier Act was passed, as its terms ' indicate, to prevent rash and inconsider- ' ate innovation. Its purpose was to fence ' round important changes with a certain ' amount of deliberative and cautious pro- ' cedure, before change should be finally ' sanctioned and take effect. But it ' necessarUy proceeds upon the assumption * of the existence of the power, the exer- ' cise of which it was desired to guard ' from the evUs of undue haste, or of the ' enforcement by a chance predominance ' in the supreme Assembly of the Church ' of a particular view. It very plainly ' recognises that certain things may be ' done effectively, and only prescribes : detail procedure to ensure that they shall t not be done inconsiderately. The Free Church having adopted this Act as governing its procedure, carried out the order prescribed in it in their proceedings preliminary to the Union with the United Presbyterian Church, and it is not disputed that the condition that " the more general opinion," as expressed by the presbyteries when consulted, agreed to the step being taken. The procedure was then entirely orderly, and it only remains to be seen whether the thing done falls within the descrip tion of innovation under the Act, as being lawful if there be the "more " general opinion " in its favour. What, then, are the matters to which this Barrier Act is to be applied ? They are four — doctrine, worship, discipline, and government — and certainly they are very comprehensive, and there is no restriction or limitation but absolute generality. It might be a question whether under the head of doctrine an unlimited power existed ; whether, for example, doctrines which go to the foundations of Chris tianity, such as the doctrine of the Incarnation or of the Resurrection, could be declared no longer to be the doctrines of the Church. It would be difficult to say that a majority, however great, could, under a power to innovate, so subvert the very foundations of the faith, and shut out a minority who held fast by these doctrines, and refused to become anti-Christian. But can it be said that, given a power to change declaration of doctrine, that power cannot be exercised on such a question as that involved in the present case, which touches only the relations of the State to the Church, not as fundamental to the Church's existence nor, as regards either the Free Church or the United Presbyterian Church, hav ing ever formed a test of membership or of admission to communion ? I cannot answer that question affirmatively. However strongly the doctrine of State Establishment of religion may have been held at the time of the Disruption, I cannot hold that if the " general opinion " of the Free Church agreed to an innova tion under which that doctrine, either in whole or in part, ceased to be officially held by the Church through its Assembly, after the proper and regular procedure, ' that the minority who dissented were en- ' titled to a declarator and interdict in a ' Court of law such as the pursuers here ' demand.' My Lord, might I be allowed to say, in supplement to what Mr. Johnston has already urged with regard to the Barrier Act, that I think there might have been a power on the part of the Established Church of Scotland to innovate doctrine so far as that doctrine was not contained in the Confession of Faith, — the contract upon which the Church of Scotland was based, the contract between it and the State. The Lord Chancellor. — It strikes me to be rather a dangerous proposition, because I should have thought every creed or doctrine must be exhaustive. Mr. Salvesen. — I mean there might be many subordinate doctrines which are not touched on in the Confession of Faith. MR. SALVESEN'S SPEECH 307 The Lord Chancellor. — That is another matter; the right of worship is another matter ; the creed is by its nature, I should have thought, something which is intended to be exhaustive. Mr. Salvesen. — No doubt, but it might leave certain subordinate matters entirely untouched. The Lord Chancellor. — Once you in troduce the word 'subordinate' I agree, but that was not your proposition. Mr. Salvesen. — I meant it to be so understood, because I think there might be points of doctrine upon which the Church might declare itself so long as these are not inconsistent with the creed which it has subscribed to. (Adjourned to to-morrow at half-past 10 o'clock.) 3oS HOUSE OF LORDS FOURTH DAY. TUESDAY, 14th JUNE 1904. The Lord Chancellor : It may be convenient to Counsel to know that we shall have to adjourn from 12 o'clock until two. Mr Salvesen : My Lords, when I left off yesterday I was dealing with the Barrier Act, and as that is really the sheet anchor of the contention for the Respondents, I should take leave to say something with regard to it. The secret history of the Barrier Act, as I think is shown in documents of the time, or at all events not very far removed from the time, seems to be this. After the Revolu tion Settlement there were a great many Ministers who were settled in benefices which they had under the old Episcopal regime, and many of them refused to subscribe to the Presbyterian doctrines, especiaUy as to matters connected with Presbyterian Church government. WUliam, the reigning Monarch, was sup posed to be favourably inclined to these Episcopalian Clergy, and wished that they should not be driven out of the Church ; and accordingly the Barrier Act was brought in, according to the his torians of the time, for the purpose of preventing the re-establishment of Epis> copacy. As your Lordships are aware, Episcopacy had been twice re-established after Presbyterianism had been acknow ledged to be the creed of the country. In 1612 it was formally introduced; in 1640 it was aboUshed as being contrary to the Confession of Faith. Then in 1662, after the Restoration of Charles II. , it was again introduced, and it continued in force until 1689, when the Revolution Settlement finally settled the Presbyterian Church Government as the government of the Church of Scotland. Accordingly, as it has been said by the historians, the reason for the Barrier Act was to prevent the Court influence operating upon a particular Assembly to introduce the re establishment, by a snap vote, of Epis copacy, and to place an obstacle in the way of any such policy being successfully carried out. Of course, it was known at that time that the people of Scotland, as a whole, were devoted to Presbyterianism, and that if the Presbyteries throughout the country were consulted, there would be no chance of Prelacy being introduced into Scotland. The Lord Chancellor : Is there any concrete case in which the attempt was made? Mr Salvesen: I am not aware of that, but one finds internal evidence of the main facts upon which I am relying ; for instance, in the Act of 1693, which you will find on page 81. The Lord Chancellor : That is after the Revolution. Mr Salvesen : Yes, after the Revolu tion. One finds that there were Ministers possessing Churches who had not been admitted under the Presbyterian form. Upon page 81 of the Print of Scots Acts, your Lordships will notice, at letter E, a reference to this matter, which I think is internal evidence of the correctness of the historical view for which I am con tending. Just above letter E you will see, " And for the more effectual settling the quiet and peace of this Church, the Estates of Parliament do hereby make an humble Address to their Majesties, that they would be pleased to call a General Assembly for the Ordering of the affairs of the Church. And to the end that all the present Ministers possessing Churches, not yet admitted to the exercise of the aforesaid Church Government, conform to the said Act, and who shall qualify themselves in manner aforesaid, and shall apply to the said Assembly or the other Church Judicatories competent, in an orderly way, each man for himself, be received to partake with them in the MR SALVESEN'S SPEECH 309 Government thereof," indicating that even in 1693, three years after the Revolution Settlement, there were a great many Ministers possessing churches and benefices who had not yet qualified by subscribing the Confession of Faith and adhering to the Presbyterian form of Church Government. Then the Barrier Act was passed only four years later than that. When you come to consider the Acts which were passed within a very few years after that, it is impossible, I submit, to suppose that the Barrier Act contem plated any change upon the Confession of Faith or upon the Presbyterian Church Government, because in 1703, after the Accession of Queen Anne, so nervous were the Scotch as to the possibility of their Presbyterian form of Worship and their Presbyterian Creed being interfered with, that they obtained the Act of 1703, which is printed upon page 82, which says this : " Our Sovereign Lady, the Queen's Majesty, with advice and consent of the Estates of Parliament, ratifies, approves, and perpetuaUy confirms all Laws, Statutes, and Acts of Parliament made against Popery and Papists, and for establishing, maintaining, and pre serving the true reformed Protestant Religion and the true Church of Christ, as at present owned and settled within this Kingdom, as likewise for establishing, ratifying, and confirming Presbyterian Church Government and Discipline," and then at letter C it ratifies the Confession of Faith, or rather the Act by which the Confession of Faith had been settled as the Creed of the Church. And, my Lords, again in the negotiations for the Treaty with England, it is made a condition of the powers which the Commissioners had to treat for the Union of the Parliaments (on page 85, between letters A and B), that the " Commission ers shall not treat of or concerning any alteration of the Worship, Discipline, and Government of the Church of this King dom as now by law established." Again, in 1707, when the Treaty is in the course of being brought to a head, there is the Act passed, which is printed upon page 85, in which this passage occurs, at letter F, that the Queen " ratifies, approves, and for ever confirms the fifth Act of the first Parliament of King William and Queen Mary, entitled Act ratifying the Confes sion of Faith and settling Presbyterian Church Government with the whole other Acts of Parliament relating thereto"; and at letter G it is declared to be the "true Protestant Religion contained in the above-mentioned Confession of Faith, with the form and purity of worship presently in use within this Church." Then at letter B, on page 86, " And that the said Presbyterian Government shall be the only government of the Church within the Kingdom of Scotland." Then there are provisions "for the greater security of the Protestant religion." Then I think it is important to notice, on page 86, that provision is made for Professors of the Universities to "subscribe to the aforesaid Confession of Faith as the con fession of their faith, and that they will practise and conform themselves to the worship presently in use in this Church, and submit themselves to the Government and Discipline thereof." Then again, in the same year, you have the Act which is printed on page 87, " Ratifying and approving the Treaty of Union of the two Kingdoms of Scotland and England," and again declaring in the most emphatic terms that the religion of the country and the form of Church government are to be those established by the Revolution Settlement. At page 89, between letters E and F, you have the emphatic words that they "shall re main snd continue unalterable, and that the said Presbyterian Government shall be the only Government of the Church within the Kingdom of Scotland." Then, upon page 90, there is provision for the Sovereign immediately on his Accession taking the Oath prescribed at letter E : "That they shall inviolably maintain and preserve the aforesaid settlement of the True Protestant Religion with the Government, Worship, Discipline, Right, and Privileges of this Church as above established by the Laws of the Kingdom in prosecution of the Claim of Right. And it is hereby Statute and Ordained, That this Act of Parliament with the Establish ment therein contained shall be held and observed in all time coming as a funda- HOUSE OF 310 mental and essential condition of any Treaty or Union to be concluded betwixt the two Kingdoms without any alteration thereof or derogation thereto in any sort for ever." The Lord Chancellor : What I wanted to know was this : you see in the Baarier Act itself, between letters C and D, it says, " considering the frequent practice of former Assemblies of this Church, and that it will mightly conduce to the exact obedience of the Acts of Assemblies, that General Assemblies be very deliberate in making of the same, and that the whole Church have a previous knowledge thereof, and their opinion be had therein and for preventing any sud den alteration or innovation," and so on. What I wanted to know is whether historically a single instance could be produced, — several, perhaps, would be more important, — where any Acts of the General Assembly have been introduced which would show that there had been an attempt to change either Doctrine or Worship, I will leave the other words out for the moment for good reason. Mr Salvesen: Undoubtedly I think there were, and I think the Acts of Parlia ment which confirm the proceedings of Assembly are enumerated in the Revolu tion Settlement. The Lord Chancellor : That is what I wanted to know. Mr Salvesen : They are expressly rescinded. In the first place, in 1640 the Church declared that the introduction of Episcopacy had been unlawful because it had been contrary to the Confession of Faith, which was the Creed of the Church ; and accordingly an Act of Parliament was obtained by the Church abolishing Prelacy, in 1640. Your Lordships will find upon page 77 the enumeration of the various Acts which were said to have been passed in derogation of the rights established by law in favour of the Church. All these Acts upon page 77 at letter D, which are rescinded, annulled, and made void, were Acts relating to the introduc tion of Episcopacy in Scotland as the form of Church Government. The Lord Chancellor : Then I may take that, may I, because that seems to be of very great importance ? LORDS Mr Salvesen : Yes, that is undoubted — they all relate to the introduction of Episcopacy. The Lord Chancellor : I mean that those Acts there spoken of have relation to the question of Episcopacy. Mr Salvesen : Yes, undoubtedly all of them have, and also what was mixed up with it,- — the question of the King's supremacy as the Head of the Church. The first thing that Charles II. did was to have an Act establishing his supremacy. Then having obtained that he introduced Episcopacy in 1662. Lord Robertson : Those are Acts of Parliament that are enumerated there. Lord Alverstone: They were Acts of Parliament, not Acts of Assembly. Mr Salvesen : That is quite true, but they proceeded upon Acts of Assembly. The Lord Chancellor : I wanted to see any Acts of the Assembly that are recited in the Barrier Act. If there are none such, I do not say which way it tends, but it has an important bearing, to my mind, upon the argument. Mr Salvesen: I shall endeavour to get the Acts of Assembly. As your Lord ship is aware, the volumes are very large, containing a great number of Acts, but before I finish I will get the reference to them. The Lord Chancellor: I do not want to keep back what is in my mind ; on the contrary I would put it forward, so that it may be answered one way or the other. One of the great tests of the meaning of an Aet of Parliament is the occasion for which the Act was made, and the grievance againstwhich it was directed. If the Barrier Act could be shown to have been to correct some attempted change in doctrine or worship by any of the General Assemblies, that would have a very dis tinct bearing, to my mind, upon what the Barrier Act meant. Mr Salvesen : That is the view which I submit : that the intention of the Bar rier Act was to prevent any sudden innovation which a properly constituted Assembly would regard as unlawful, but which, in the meantime, would disturb very much the peace of the Church. The Lord Chancellor : You introduce the word " sudden," which is in the Barrier MR SALVESEN'S SPEECH Act, no doubt, and upon which an argu ment has been rested, but the title of the Act is to prevent innovations, — not sud den innovations, but innovations. Mr Salvesen: Yes. Lord James of Hereford: At the commencement of the Act it says : " The General Assembly, taking, into their con sideration the overture and Act made in the last Assembly concerning innovations, and having heard the report of the several Commissioners," and so on. Have we those before us? Mr Salvesen: We have not those Reports at this moment. Lord James of Hereford I thought that would throw some light upon what has occurred. Mr Salvesen: I think it aids my argument that there were two previous Barrier Acts — one in 1642, 1 think — immediately after Presbyterianism had been re-established, and also for the purpose of preventing innovation. Lord James of Hereford: It refers at the commencement to "the Overture and Act made in the last Assembly concerning innovations." There were apparently Commissioners appointed from the Presbyteries, and they had sent in their Report. Mr Salvesen: That was the pre scribed procedure. What was done was that an interim Act was passed. Lord James of Hereford : I thought perhaps if we had that Act it might disclose the answer to the Lord Chan cellor's question. The Lord Chancellor : Yes, I think it would be desirable if we could see what it is. However, do not let me interrupt the course of your argument. As you were upon the Barrier Act, I thought it right to mention what was passing in my mind. Mr Salvesen : Yes, my Lord. Dean of Faculty: I am not quite sure if your Lordship is appealing to me to any extent to intervene at this moment? Of course I did not desire to say anything; but our view is that the Barrier Act was passed in order to prevent sudden legislation of the same character as had previously been carried through by the Church; and when I 3" come to speak I shall bring under your Lordship's notice the previous Acts of Assembly. The Lord Chancellor: I am much obliged — that is exactly what I wanted to see. Dean of Faculty: I had intended doing that, my Lord. Mr Salvesen : My contention to your Lordships upon this matter is that it is difficult to imagine that the Barrier Act was intended to give the Church the liberty of altering the Confession of Faith or of altering the Presbyterian Church government, having in view that in 1690, in 1693, in 1703, and in 1707, those were solemnly ratified and established by various Acts, undoubtedly on the initia tion of the Church, the result being that the Church of Scotland was unalterably committed to the creed as contained in the Confession of Faith and to the Presbyterian Church government. My learned friend refers me to an Act of Assembly which is upon page 36 of the Acts of Assembly, of which I think your Lordships have copies. It is the Act of 1639, the heading of which is an "Act containing causes and remedy of the oygone evils of this Kirk." The Lord Chancellor: We have returned the copies of the Acts of Assembly which we had, but if you will read it we can follow it. Mr Salvesen : That Act begins in this way, "The King's Majesty having graciously declared that it is His Royal will and pleasure that all questions about religion and matters ecclesiastical be determined by Assemblies of the Kirk having also by public Proclamation in dicted this Free National Assembly for settling the present distraction of this Kirk and for establishing a perfect peace," and so on. Then it goes on, under Head 5, to refer to "Keeping and authorising corrupt Assemblies at Linlithgow in 1606 and in 1608, and at Glasgow in 1610," and at various other places where the Assemblies sat, "which are null and unlawful as being called and constituted quite contrary to the order and constitu tions of this Kirk received and practised ever since the Reformation of Religion, and withal labouring to introduce nova- 312 HOUSE tions into this Kirk against order and religion estabhshed." And after that one finds the Barrier Act of 1642, I think is the date, to which this passage in the Act of 1639 may afford a key. In short, those Assemblies that had consented to the introduction of Episcopacy were treated as corrupt, and were treated as having done something that was entirely outwith their powers, having in view the settling of the Creed of the Church by the Confession of Faith. Then, my Lords, there is a further argument which I would submit, and which I think has not yet been adverted to, and it is this : that the Statutes provided machinery which made it ab solutely impossible, or at all events clearly ultra vires, of any Assembly to alter the Confession of Faith or the Presbyterian Church government. And I think if I can establish that in this matter, which is about the Confession of Faith, it would show that the Church of Scotland at any rate could have no power, whether under the Barrier Act or under any inherent legislative power it might possess, to alter the Confession of Faith or the Presbyterian Church government, which were the two fundamental Articles of the religion of the Scotch people. My Lords, that argument is based upon the same Act of 1693 to which I have already referred, which is printed on page 80 of the Print of the Scots Acts. After confirming the Revolution Settle' ment the Statute goes on, at the foot of the page at letter G, "And do further Statute and Ordain that no person be admitted or continued for hereafter to be a minister or preacher within this Church unless that he having first taken and subscribed the Assurance in manner appointed by another Act of this present Session of Parliament made thereanent, do also subscribe the Confession of Faith ratified in the foresaid fifth Act of the Second Session of this Parliament, de claring the same to be the Confession of his Faith and that he owns the Doctrine therein contained to be the true Doctrine which he will constantly adhere to, as likewise that he owns and acknowledges Presbyterian Church Government as settled by the foresaid fifth Act of the OF LORDS Second Session of this ParUament, to be the only Government of this Church." Then follows this: "And that he will submit thereto and concur therewith and never endeavour directly or indirectly the prejudice or subversion thereof, and their Majesties with advice and consent afore said Statute and ordain that uniformity of worship and of the administration of all public Ordinances within this Church be observed by all the said Ministers and Preachers"; and then at letter D, "and that no Minister or preacher be admitted or continued for hereafter unless that he subscribe to observe and do actually observe the aforesaid uniformity." Now that has remained unaltered all these years, and I submit that as every member of Assembly was by this Act of Parliament compelled to subscribe the Confession of Faith and take a solemn vow that he would " never endeavour directly or indirectly the prejudice or subversion thereof," it is plain that no Assembly composed of individuals so bound could ever pass an Act of Assembly altering or derogating from the Con fession of Faith or from the Presbyterian Church Government. My Lords, that is made still more clear by the Formula which has been in use in the Church ever since the year 1711, when it was settled, and which your Lordships wUl find on pages 12 to 15. On page 12 of Print B you have the Formula to be signed by the Elders, and I think it is inconsistent with the view that they could ever have the power to alter the Confession of Faith. At letter D, the Formula to be signed is this : "I, A. B., do sincerely own and declare the above Confession of Faith, approven by former General Assemblies of this Church, and ratified by law in the year 1690, to be the confession of my faith ; and that I own the doctrine therein contained to be the true doctrine, which I will constantly adhere to." Then there is the same Declaration with regard to the Presby terian Church Government, and then follows this: "and that I will submit thereto, concur therewith, and never en deavour, directly or indirectly, the preju dice or subversion thereof." The same Formula had to be subscribed by Ministers. MR SALVESEN'S SPEECH That is to be found upon page 16, and it is substantially in the same terms. My submission to your Lordships is that as the Assembly consisted of Elders and Ministers, all bound, — ministers by their Ordination Vows and Elders by the Formula which they subscribe on their Ordination, — not to endeavour, directly or indirectly, to affect or prejudice the Confession of Faith or the Presbyterian Church government, no body composed of those individuals could ever do any thing effectually which would alter the Confession of Faith. Lord James of Hereford : Have the elders and ministers who took part in the discussions of these various questions which we are dealing with taken these formula ? Mr Salvesen : Yes, my Lord, every one of them has subscribed that, and accordingly I submit that any Act on their part by which they proposed, whether by the Act of Assembly, under a Special Act, or in any other way, to alter the Confession of Faith, or to interpret it contrary to its plain meaning, would be an act ultra vires of the Assembly, as it was against the Ordination Vows of the ministers and elders who composed the Assembly. Now, of course, that applies only to the Established Church ; but then if you find that the Free Church adopted exactly the same formula, it seems to me my argu ment is carried into the Free Church, which I think cannot be answered so far as the Estabhshed Church is concerned. I will ask your Lordships to look at Print A, page 89, where you get the Free Church formula — the first which they enacted. I just take a specimen. There is one for Probationers and one for Ministers, but they are all substantially in the same terms. At page 89, letter D, you have this: "I, , do hereby declare that I do sincerely own and believe the whole doctrine contained in the Confession of Faith, approved by former General Assemblies of this Church, to be the truths of God ; and I do own the same as the Confession of my faith ; as likewise I do own the purity of worship presently authorised and practised in the Free Church of Scotland, and also the 313 Presbyterian government and discipline thereof; which doctrine, worship, and church government, I am persuaded, are founded on the Word of God and agree able thereto." Then there are special clauses as introduced with regard to the Headship of Christ, and then, between letters F and G: "and I promise that through the Grace of God I shall firmly and constantly adhere to the same, and to the utmost of my power shall, in my station, assert, maintain, and defend the said doctrine, worship, discipline, and government of this Church by Kirk- Sessions, Presbyteries, Provincial Synods and General Assemblies, together with the liberty and exclusive jurisdiction thereof." Then on page 90, between A and B, it goes on : " And not endeavour, directly or indirectly, the prejudice or subversion of the same." Now, my Lords, I submit that the Free Church, constituted of members who had subscribed that formula, were not entitled to pass any Act which would abrogate the vows which they had taken to main tain the " whole doctrine contained in the 'Confession of Faith," and also the Presby terian Church government, which, how ever, is not now in question. Lord James of Hereford : I supposu your view is or might be that when we have to determine what is absolutely essential to the fundamental existence of a Church it throws great light upon that to see what declarations were exacted from those who entered into it, as being fundamental in their view. Mr Salvesen : Yes ; and not merely that, but they were men bound never to interfere with and never to attempt anything that would directly or indirectly tend to the prejudice or subversion of the Confession of Faith, which is declared to be the truth of God. In short, it seems to me that both the Established Church and the Free Church provided the machinery by means of which they secured that the Creed of the Church and the form of Church government should be unalterable in all time coming. And you have it historically in the Church of Scotland at the present time. They have been considering whether their Creed might not be revised ; and the Assembly \H HOUSE OF only the other year came to the conclusion that they were prevented from tampering with their Creed or from doing anything to subvert or prejudice the Creed to which they had subscribed when they were admitted and ordained as Elders and Ministers respectively. Therefore my contention to your Lord ships is that anything which the Barrier Act may imply is to be read consistently -with this formula which they subscribed, and that whether it was intended to pre vent unlawful innovations which one Assembly might introduce under extreme influences, or whether it was intended only to prevent innovations in subordinate doctrines, it certainly never authorised the Assembly to deal with the cardinal Faith of the Church as embodied in the Confession, nor with Church Government. If I am right upon that, I think it throws great light upon the interpretation which your Lordships will arrive at of this Barrier Act, which is the main ground upon which the Court of Session have decided against the Appellants here. Now, my Lords, the only other matter is that in the Commissions to the Assembly the same thing is carried out consistently. Your Lordships will find an excerpt from the Commission of the Church of Scot land, printed on page 158 of the Appel lants' Case. It has been extracted from Cook's " Church Styles," and the Mandate is in these terms — " Willing them to re pair thereto" (that is to the Assembly) "and to attend all Diets of the same and there to consult, vote, and determine in all matters that come before them to the glory of God and the good of the Church, according to the Word of God, the Confession of Faith, and agreeably to the Constitution of the Church as they shall be answerable." I have the Form used in the Free Church, which is printed upon page 316 of the "Practice of the Free Church." I think it is in identical terms — it is just copied from the Church of Scotland Commission. The Lord Chancellor : Did you say it was at page 316 ? Mr Salvesen : Yes, of the " Practice of the Free Church " — that is the book that was handed to your Lordship at one time in the course of the proceedings. LORDS The Lord Chancellor : Yes. Mr Salvesen: Now I think that limits the power of each member of the Assembly, and Umits it effectually, so as to prevent their dealing with the Con fession of Faith or altering any Article of that Confession, however much any Member may have thought the Articles of the Creed were not in accordance with modern views or modern criticism. My Lords, that really exhausts what I have to say upon the Barrier Act, and I proceed now to finish the reading of the Opinions in which I had got to page 80. At letter F on that page the Lord Justice Clerk goes on to say: "It is worthy of notice, in conclusion, that the matter in dispute in this case relates really to the question whether it is the majority which has united with the United Presbyterian Church or the minority who repudiate the union that is carrying out the objects of the great Protest of 1842 and 1843 ' more faithfully ' the one than the other. Now, such a case is expressly provided for in the Model Trust Deed of the Free Church, which has a strong bearing upon the cases in which office-bearers and persons connected with individual Congregations nave raised actions against the United Free Church in regard to the right to Churches occupied by these congrega tions. These Chnrches are aU held Dy trustees under this Model Trust Deed, and are therefore to be ad ministered by the trustees under the authority and direction of the Church through its Courts. Thatdeed gives a power of secession, carrying the property with t, to a minority in certain circumstances. Had it been the case here that one-third or more than one-third of the ordained ministers of the Free Church separated from the Free Church on this question, then a majority of a Congregation who agreed with the minority dissenting would have been entitled to keep the Church in which they worshipped, or to have it made over by the trustees of the Free Church to trustees to be nominated. But this very right conferred on a minority of a certain strength is a negative to the claims of a small minority of persons to claim the property belonging to the Free Church MR SALVESEN'S SPEECH as a whole, unless some act has been done have to rescind the union, by the great majority which they had no right to do under the constitution which the Free Church had established for itself." (Of course, my Lords, that is exactly the proposition for which we contend ; that they had no right to do that; that we did not separate, but that they separated.) " Holding, as I do, that the Free Church had the right, by its Assembly, to do what has been done, and that the regu larity of the procedure in doing it cannot be impugned, I would move your Lord ships to adhere to the judgments of the Lord Ordinary in the different cases before us, with this difference, that in the principal case, as it has been heard before us as on a concluded proof, the interlocutor should be one of absolvitor, as in a con cluded cause." So that your Lordships will see that the Lord Justice Clerk really bases his entire opinion upon his con struction of the Barrier Act and the implied right which he thought it conferred upon the Assembly to alter its doctrine as it pleased. He introduces the limitation that it must be still a Christian Church ; but of course it might be Unitarian and still be a Christian Church, and you could affect any Article in the Confession of Faith without destroying the Christianity of the Church. Lord James of Hereford : Supposing it is held that this de facto junction is absolutely null and void, that it had no legal effect or existence in law, what do you say becomes of the property — suppos ing you treat it as tabula rasa, and that there could not have been and never was a junction at law, what do you say becomes of the property ? Mr Salvesen : I think it reverts to those who are prepared to administer the trusts according to the proper constitu tion — that is to say, the Pursuers. The Lord Chancellor : That is what Lord Eldon said in terms. Lord James of Hereford : Then, supposing the majority of the United Free Church said: "We take that view, and we will administer the Trusts according to their original form," what would prevent their taking possession of and seeking to administer the property 1 Mr Salvesen: I think they would 3*5 because our view is that the union necessarily involves the abandonment of the principles of the Free Church ; but if they rescinded the union and came back to the Church, of course they would be entitled to partici pate along with the Pursuers. We are simply desirous of vindicating the Trusts for the proper beneficiaries, not merely for ourselves, but for all who adhere to us. The Lord Chancellor : The conun drum on that subject which was put by Lord Eldon was not what my noble and learned friend has just said, but this : supposing they all did it, what would then become of the property ? Mr Salvesen-. If it was done unani mously, I think they could retain it, because nobody would have a title to question it. Lord Davey : I suppose in that case there would be a cy pres application of the Trust by the Chancery Commissioners, as it would be in this country and in Scot land, I suppose, by whatever body cor responds to them there. Mr Salvesen: I think, in Scotland, if it were done unanimously, if all the beneficiaries concurred in a breach of the trusts, the Courts would not intervene. Lord Davey : I do not see that at all. The Lord Chancellor: Lord Eldon does not give that answer. Lord Davey : A charitable trust is a public trust, and what you call the bene ficiaries for the time being, — they are not really the beneficiaries, — cannot alter the character of a public trust. Every Kharitable trust is, in the eye of the law, a public trust. Mr Salvesen : I rather fancy that we have nobody in Scotland who could inter vene. The Lord Chancellor: It may be that your jurisprudence is defective in that respect. Lord Davey : Would not the Lord Advocate intervene ? M*r Salvesen : There is no recorded instance, so far as I know, of his inter vening. But I do not think that question arises here, because we have after all the Free Church. Assembly. ;i6 HOUSE OF LORDS The Lord Chancellor : But the ques tion is whether that may not throw some light upon the logic of it. Mr Salvesen : No doubt, my Lord, but at any rate I do not need to maintain such a strong proposition as that, because we have here a Free Church Assembly, properly organised, adhering to the prin ciples, and having a very large body of adherents, which we estimate at about 90,000. Lord Davey : To take an English illustration, supposing in Lady Hewly's ease it had happened that the people then in possession of the Chapels, namely the Unitarian bodies, were not entitled to them, or that none of the original body for whose benefit they were founded were in existence, and that the sect had died out altogether, which is quite conceivable, I suppose the only result would be a cy prls application either by the Court or by Act of Parliament. Mr Salvesen: Yes, and no doubt in that way the same result would have been reached, that the fabrics would have been handed over to the Bodies who were de fado using them. Lord Davey: If, on the one hand, there would be no interest in . any body to interpose, on the other hand, if the trustees said : " No, you are not the Body for whom this Trust was intended," the majority or the entire Body in the hypo thesis put would not succeed in a Court of Law because they could not prove that they were the proper cestuis-que trust or proper beneficiaries. Mr Salvesen : Possibly not as against the trustees, if they opposed. Lord Davey : I mean against the trustees. Every action of this kind is an action by persons claiming to be en titled to the benefit of the trust against the trustees, who they allege either have applied or have threatened and intend to apply, the property of the trust to pur poses which are alien from the trust. Mr Salvesen : Yes. Lord Davey : That is the form of the action. Mr Salvesen: Yes. In this case it seems to me that we have a very much stronger case in equity, because not merely do they threaten to divert the funds to purposes alien from the trust, but they have actually deprived us of our beneficial use of the trust fund, and have admitted instead as beneficiaries a body, the United Presbyterian Body, who cer tainly were not in the contemplation of the pious donor who bequeathed the funds to the Free Church. The Lord Chancellor: Arguing it strictly on principle, I suppose no one would say that a unanimous vote of the beneficiaries of a trust can alter the trust. Mr Salvesen : No, I think not, but in a private trust nobody could inter vene. The Lord Chancellor: That is a totally different question. There may be no mode of putting it right, but that does not affect the principle. Lord Davey : A charitable trust is a public trust. Mr Salvesen : I was putting the case of a private trust; I do not know that there is any distinction made in Scotland between a pubhc trust and a private trust, because in Scotland I do not know that there is any body who could inter vene. Lord James of Hereford : You used the phrase just now that the majority had deprived you of your rights of property — is that quite accurate ? Is it not rather that they have not allowed you to have the benefit of the property unless you, acting with them, unite with the United Presbyterian Church ? If you do that, they would allow you to have the benefit of the property in union with that Church. Mr Salvesen : Yes, if we abandon the principles which they have abandoned, they will admit us to participation in the funds ; but adhering as we do to our principles, they say, "We will not give you the benefit of any of these funds." Lord James of Hereford: "Unless you like to come in with us." Mr Salvesen : Yes. Now, my Lords, I come to Lord Young's Judgment. The Lord Chancellor: With the utmost respect to Lord Young, what he seems to say is this : that a Church (he does not define what that means) may MR SALVESEN'S SPEECH change its opinions; and I suppose you would not deny that 1 Mr Salvesen : No ; so long as it does not affect property rights. The Lord Chancellor: If the pro perty is settled to another Church, a different consideration comes in. Mr Salvesen : I think his Lordship's statement is perfectly accurate as an abstract proposition. On page 83, at letter D, he says : " I think, however, that the law is not so, my opinion being that any two or more dissenting Churches may lawfully unite so as to form them selves into one Church, and that nothing more is necessary to the union than their own consent." Of course I accept that at once. The Lord Chancellor: You do not deny that as an abstract proposition ? Mr Salvesen : I do not deny that as an abstract proposition. Then his Lord ship deals with the question of property. The Lord Chancellor: That is another matter. Mr Salvesen : Yes. Between letters F and G he says : " Whether or not a property title is such that a forfeiture of property will follow such abandonment or return is another matter." The Lord Chancellor: That is the very matter which, as it seems to me, he had got to determine. Mr Salvesen : That is so. Lord Davey : Is not that rather an inaccurate way of putting it ? It is not "a forfeiture of property," but the pro perty is held upon a certain trust, and the question is whether you come within the terms of that trust. It is not a question of the forfeiture of property. Mr Salvesen : I think that is the fallacy of his Lordship's whole Judgment. He treats it as a question of property title, and he says the title is in the Free Church, and remains in the Free Church from a Conveyancer's point of view. Lord Davey : That assumes the whole question. The Lord Chancellor : Unfortu nately his Lordship does not seem to determine the question which it was for him to determine. He pronounces an abstract proposition, which I suppose 317 Body nobody would dispute, that any of Christians may alter their views. Lord James of Hereford : Would you tell me where I can find what are alleged to be the trusts affecting the general body of the Church as distin guished from a particular Congregation — Where shall I find the general trust ? Mr Salvesen: There is no general trust except in this sense, that trustees were appointed by an Act of Assembly to receive the property bequeathed to tho Free Church by the pious donors. Lord Davey : It is page 54, Print A. Mr Salvesen : It is merely an Act of Assembly appointing Trustees. The passage, I think, is on page 55. It is the Free Church as then constituted. Lord James of Hereford : We must seek it in the bequests of the founder. Under that paragraph it would only affect the general bequests to the Church by that name. Mr Salvesen : Yes, that is all that is in controversy here. Lord Davey: It would include the Assembly Hall. Mr Salvesen : Yes, it does un doubtedly. Lord James of Hereford : Do you say it is under the Model Trust Deed, on page 54? Mr Salvesen: No, page 55 is the passage — that is really the trust con stituted for the purpose of holding the general property : " The General As sembly resolve that the foUowing Elders be appointed Trustees to hold any pro perty which may be bequeathed or con veyed to them for behoof of the Free Church." The Lord Chancellor : "For behoof of the Free Church " is the cardinal phrase. Mr Salvesen : Yes, and I submit that, as the Free Church is just the Free Church because of the members of the Church having common doctrines and a common form of Worship, that necessarily implies the permanence of those doctrines, if the Free Church is to continue to receive the benefit of the trust. Lord Davey : I thought Lord Young's Judgment was rather to this effect (I am not saying whether I agree or not), that a Church is something known to the law as 3i8 HOUSE OF LORDS a self-governing and self-contained com munity, and that it contains within itself inherent power of declaring its own doc trine and its own constitution, and there fore no Court has any right to say or to criticise anything which the Church de clares to be its own doctrine for the time being. I thought that was rather the effect of his Lordship's judgment. Mr Salvesen : I think if that was read into the judgment that makes it at any- rate logical, and I think that is probably what is implied. The Lord Chancellor: I do not know, I am sure. At present I do not know what a Church means in that sense. Mr Salvesen : His Lordship does not state it, but he says, at page 84, between letters B and C, "No special or limited title has been produced or referred to as existing. But this is a topic which I need not dwell upon, for, taken either way, the result as regards the point I am about to deal with is the same. That point is, that dissenting Churches who unite together, as the Free Church and the United Presbyterian Church did here, and assum ing the validity of the Union, may law fully take their respective properties with them into the union, and indeed always do so." There is no instance we have known of that being done. The Lord Chancellor : But the major proposition is that union is lawful. Mr Salvesen : Yes. Lord Davey : He treats it as a common law corporation holding property. Mr Salvesen : I think he treats it in that way. Lord Davey: From which it follows that they may do everything a corporation may do. The Lord Chancellor: The answer to that is, first of all they are not a corporation, and, secondly, a corporation itself cannot act ultra vires. Mr Salvesen : Quite so. Lord James of Hereford: And thirdly, that a corporation probably holds its property without a specific trust. Lord Davey : This is necessarily pro perty held by certain trustees upon defined trusts. Mr Salvesen: Yes. I think, my Lord, the rest of what his Lordship says, on page 84, may be summed up in those passages. But then he cer tainly misrepresents very much the posi tion of the minority (on page 85, at letter B), because he says this : " It is, I think, enough to say, although I have already, perhaps, sufficiently expressed my views on the subject, that no church or manse of the Free Church is held on a different title now than it was before 30th October 1900, and that any of his Majesty's sub jects who can relevantly aver and establish that any such church or manse is being used to his prejudice in violation of the title, or otherwise than the title warrants, will have remedy and protection in a court of law. No such case is presented by the pursuers, who found on no special title to any property, and allege no use by the United Church, or by any of the defenders of the property in question, other than was lawfully made of it before 30th October 1900." If one takes the con crete instance of the Buccleuch Grey friars Church, there you have a case where the Minister and all the office bearers and nearly every member of the congregation adhere to the minority, and yet proceedings have been taken for sum marily ejecting them from the Church and the Manse. Lord Davey : Is that a congregational trust or a general trust ? Mr Salvesen : That is a congrega tional trust, no doubt. Lord Davey: You may take the As sembly Hall. That is as good an example as any. Mr Salvesen: Yes; or the general funds left to the Church for the behoof of the Free Church. Lord Davey : Can you give us any idea in general terms to what purposes the general funds of the Church are applied? Are they applied to the sus- tentation of Ministers, or the upkeep of Churches ? Mr Salvesen : Not for the sustenta- tion of Ministers, but for the exten sion of the Churches throughout the country; for the support of Home and Foreign Missions, and matters of that kind. The Lord Chancellor: And I sup- MR SALVESEN'S pose for the building and maintaining of Churches also ? Mr Salvesen : Yes, and the Assembly Hall itself is of course for the purpose of meetings. The Lord Chancellor : In the Estab lished Church, I think the heritors of the parish are bound to maintain the Church ? Mr Salvesen: Yes, they are in the Estabhshed Church. My learned friend tells me that part of the funds are applied to the sustentation of Ministers. Lord Davey: And I suppose the up keep of the Manses and Churches — grants would be made for occasional repairs ? Mr Salvesen : At any rate for building new Churches and Manses. I think the old Manses and Churches are required to be kept up by the congregations. Then, my Lords, on page 86, Lord Young goes on to say what is, I think, entirely contrary to the recognised law. He says : "I have, I hope, sufficiently ex pressed and explained the grounds of my opinion that we can in this action take no account of, or adjudicate upon, the re Ugious views and opinions of either the Free or the United Presbyterian Church, or the propriety and expediency (or the reverse) of their union. We can, and indeed must, decide any dispute which may be regularly brought before us re garding the disposal or use of property vested in either, or in both united " (that is just the question we have brought here), " but we can and must do so upon the law which governs the rights and obligations of the disputants, having regard to the titles upon which the property is held and contracts affecting it. A question of creed and form of worship may thus possibly come before a court of law in a dispute regarding the use of a church or manse held on a title which specifies and limits the use. Money vested in the trustees of a beneficent donor to a Church or associa tion of worshippers to be used in pro moting a specified or otherwise clearly indi cated religious creed may in like manner be the subject of question in a court of law — the question, of course, being whether or not the money is being used according to the Trust upon which it is .held.' (That, I submit, is quite sound law.) "But when land is conveyed or money SPEECH 3i9 is bequeathed in ex facie absolute property to a Church or association of religious worshippers, I cannot assent to the pro position that a Court of law must or may regard the title as limited, and qualified by reference, not expressed, but assumed to be implied, to 'the essential doctrines and fundamental principles in the Con stitution of the Church ' or association — the questions (for they may be numerous) what these are, being, in case of dispute, decided by the Court as questions of law or fact." Lord James of Hereford : That goes to the extent of freeing the bequest from the trust? Mr Salvesen : Yes, entirely. The Lord Chancellor: It is abso lutely inconsistent with the whole line of cases before Lord Eldon down to the present time, so far as I can understand. Mr Salvesen : Of course it implies that the Free Church could have joined the Roman Catholic Church and taken their property with them. Lord James of Hereford: Yes, or have become Mahometan. Mr Salvesen : I submit that that, clearly, is not the law. Then I think that sufficiently indicates the line which the learned Judge took, and I will pass now to Lord Trayner's opinion, on page 87. He starts with the propositions for which the Pursuers contend, and he says, at letter F, what I submit is a sound statement of law, differing from Lord Young : " Now, I take it to be clear that if certain members of a voluntary asso ciation (and that whether they form a majority or a minority in number) depart from the essential and fundamental prin ciples of the association, and violate the conditions and terms of its constitution, they thereby cease to be members of the association, and forfeit right to any benefit they had as members in the funds or pro perty held in trust therefor ; the remanent members form the association and retain all its rights." I have no quarrel with that statement of the law, which, I submit, was just what was laid down The Lord Chancellor : Except what has been pointed out by my noble and learned Friend, Lord Davey, that it is not accurate to speak of it as a forfeiture of 320 property. It is rather that they are no longer the persons upon whose behalf that property is settled Mr Salvesen : That is quite true, my Lord. Then the learned Judge goes on : "The parties, in their arguments before us, did not appear to be at variance as to the law which would rule our decision — the law as I have stated it — but differed as to the facts on which the Pursuers' claim is based. Accordingly the question to be now determined is, whether the Pursuers' averments, in point of fact, have been estabhshed. The grounds of com plaint aUeged by the Pursuers against the Defenders are, as far as I could discover, two — First, it is said that whereas the Free Church held as essential and funda mental, and as part of its constitution, the doctrine of Church Establishment, the Defenders had departed from that by uniting themselves with another associa tion which repudiated that doctrine and professed the contrary doctrine of Volun taryism. Second, that whereas the Free Church had required from its ministers and elders subscription to a formula by which they acknowledged the Westminster Confession of Faith ' approven by former General Assemblies ' to be the confession of their faith, the formula now adopted by the Free Church (in conjunction with the other Church it had joined) requires ministers and elders to profess their belief in the Westminster Confession 'approven by Acts of General Synods and Assemblies.' It was said that the difference in the formulas introduced a fluctuating standard for a fixed and un changeable standard of behef. I think it convenient to deal first with this second ground of complaint. I have been unable to discover any real or tangible ground upon which it can rest. The formulas appeared to me to be essentiaUy the same. The introduction of the words 'General Synods and Assemblies' became appro priate, if not necessary, in the formula of the United Church, because it requires candidates for orders to recognise the construction put upon the Westminster Confession, by the chief judicatory of each of the Churches — now united — when they were separate bodies — that is, the General Assembly of the Free Church HOUSE OF LORDS and the General Synods of the United Presbyterian Church. It would have been important if it could have been shown that the interpretation or construc tion put by these bodies respectively on the Westminster Confession was incon sistent or contradictory. But this the Pursuers have failed to show. So far as appears, the Churches which now form the United Church are, and have always been, agreed on the meaning and con struction of the Westminster Confession in so far as any matter of faith or rehgious doctrine is concerned, and it is with matter of faith and religious doctrine that the formulas are alone concerned. That the Free Church and the United Presby terian Church differed as to the 3rd section of the 23rd chapter of the West minster Confession to some extent is true. The difference, however, was not concern ing a matter of faith, but of polity." There, I chaUenge what his Lordship The Lord Chancellor : What does his Lordship there refer to ? Mr Salvesen : Church Government. Now that was a matter of faith, because it was embodied in their Creed. He it is a question of polity. Lord James of Hereford : But in the popular meaning of the word, is it a matter of faith? Could you say Church Government is a matter of faith ? Mr Salvesen -. In the case of the Free Church, certainly ; they hold it as a matter of faith — that it was the duty of the civil magistrate to support rehgion. The Voluntaries, on the other hand, held that as a matter of faith it was unlawful, and that the Church was departing from its true character as the Church of Christ if it received endowment from the State. So that it was a matter of faith in that sense. Lord James of Hereford : I should have thought that the word " faith " re presented rather the meaning that one would attach to the words in the Confes sion of Faith, " the power of the Keys of the Kingdom of Heaven"; that it was something more spiritual than a question, which is partly pohtical, as to whether there should be an Estabhshed Church or not. MR SALVESEN'S SPEECH Mr Salvesen : I submit, my Lord, that it was held defide, and that the Lord Justice Clerk is right when he says that it was a doctrine of the Church. He holds a different view from Lord Trayner upon this matter. Lord Trayner goes on : "Nor do I see anything in the new formula to suggest that the standard which has now to be acknowledged and professed is less rigid than it was before. If any change is introduced it must be one 'approven' by the principal judica tory of the Church, and in regard to this the formulas do not differ." This is the only passage which deals with the ques tion of departure from their Creed in volved in the change of formula, and I submit it is one of very great importance. My clients attach just as much import ance to what may be described as the throwing loose of the whole Confession of Faith, as they do to the departure from, or abandonment of, the Establishment principle. They hold that if this new formula continues to be the formula in use in the Church, the new Church — the United Church — -will be able to adopt any principles it pleases without regard to the Confession of Faith. All they would do is to say, — These matters do not enter into the substance of the re formed Faith, and therefore they do not affect the continuity and identity of the Church. My Lords, may I, with your Lordships' approval, contrast the two formularies ? Lord James of Hereford: Before doing so, would you kindly tell me this : As regards the question of establishing, I take it that paragraph III. on page 8 in Appendix A is what you rely on as snowing that it is a matter of faith? Mr Salvesen : Yes. Lord James of Hereford : You cannot get beyond that, can you ? Mr Salvesen: I get beyond that, because I get the contemporaneous ex position by the Free Church of the meaning of it. Lord James of Hereford: But you must found upon that paragraph? Mr Salvesen : Yes. Lord James of Hereford: In what words there do you find anything to 321 point to this question of Establishment being a matter of faith ? Mr Salvesen : Between letters D and E, "he hath authority, and it is his duty to take order that unity and peace be preserved in the Church," and so on, "and all the Ordinances of God duly settled; for the better effecting whereof he has power to call Synods, to be present at them, and to provide that whatsoever is transacted in them be accordmg to the mind of God." Lord James of Hereford : It begins, " the civil magistrate may not assume to himself the administration of the Word and Sacraments or the power of the Keys of the Kingdom of Heaven." I should have thought that was pointing rather to matters of faith, and it says he has not the power to deal with those subjects, then it goes on, " yet he hath authority, and it is his duty," and so on. Is that within the question of faith or outside of it when it says "yet he hath authority "? Mr Salvesen: I think that is still within questions of faith. It is a doc trine of the Church that it is lawful, and indeed it is the duty of the civil magis trate to take order and to settle and administer for that purpose. Lord James of Hereford : Yes, it may be that the magistrates have the duty of seeing that Ordinances are duly settled, administered and observed, but it is another thing to read those Ordinances and say what they were. Mr Salvesen : Yes, and if the matter had remained upon the Confession of Faith alone, if one had to interpret it now for the first time, it might be pos sible to have two interpretations of it, but then I point out that the Free Church have put themselves outside of that. Lord Davey: Have you any inter pretation that would include the contrary doctrine that it is scripturally unlawful for a Church or religious body to accept endowment in any form from the State ; could that doctrine be held consistently ? Mr Salvesen: I do not think so. That was the United Presbyterian doc trine — that it was unscriptural and un lawful. That is a matter of faith, I submit. The Lord Chancellor : The moment 322: HOUSE OF LORDS you get the word " unscriptural," it seems to me whether it is rightly called doctrine or not, they treated it as a matter of faith and doctrine. Mr Salvesen : That is my point. The Free Church interpret this as a matter of faith and doctrine just as the United Presbyterians do. Referring to the Establishment, they assert over and over again the right and duty of the civil magistrate Lord James of Hereford : But can they make that a matter of faith which is not a matter of faith ? Mr Salvesen : Yes, I think so, and if they invite contributions from the public on the footing that that is their distinctive principle, surely they must adhere to that as their distinctive principle Lord James of Hereford : You are putting it rather on a low level now, of receiving money under false pretences ? Mr Salvesen : All that I mean is that we find this represented as a fundamental and essential doctrine of the Church by the Free Church itself; and when you come to the negotiations between the Free Church and the United Presby terian Church, you find that represented as a distinctive principle of the Free Church. Lord James of Hereford: A prin ciple is one thing, but the question is whether it is a matter of faith. That is what we are upon. Mr Salvesen: I think anything can be made a matter of faith if you choose to embody it in your creed, though it might be thought it was not appropriate to embody a matter of that kind in a creed. Lord James of Hereford: Suppos ing there is some difference as regards a matter of faith, would that entirely alter the trust ? If I may give an instance that is in my mind, there are some members of the Church of England who say they conscientiously object to the Athanasian Creed. Supposing they said, " We will not subscribe to that Creed," would they cease to be members of the Church of England? Mr Salvesen : No, I do not think individuals come within the same prin ciple at all. of Hereford: I mean Lord James as a body. The Lord Chancellor: The Church of England must be governed by its Articles, and of the Athanasian Creed it is said that, it " may be proved by most certain Warrants of Holy Scripture." Those are the words of the Articles which constitute the doctrine of the Church of England. Lord James of Hereford : I have a concrete case in my mind. In 1683, to avoid probable action in the future by James the Second, there was the trust of a large sum of money devoted to maintain the seryice of the Church of England in a particular Church — the Service of the Reformed Church. Supposing the Minister of that Church said, " I will not allow the Athanasian Creed to be read " ; getting rid of any technical matter of difficulty, would that prevent the trust being executed? Mr Salvesen : It is very difficult to say. Probably the Incumbent would be subject to the discipline of a superior, and might be turned out of office. Lord James of Hereford : In the meantime, what would become of the trust money ? The Lord Chancellor: I think the Attorney-General would have something to say in that case. Mr Salvesen : In the instance with which we are dealing, if your Lordships will look at Print B, at page 62, you will see the Free Church treat this matter as a question of faith. The Lord Chancellor: If you do not draw a distinction, — and I am not certain that in this legal argument the distinction need be drawn, — if it is a condition of the trust, does the question whether it is a matter of faith arise ? Mr Salvesen : No, I submit not, and I do not think it matters what the relative importance of it is. Lord James of Hereford : What is in my mind is whether it continues the Church designated. If it turns over to the Church of Rome, it would cease to be the Church designated. Changes in matters of faith may affect the existence of the Church, but not if it is merely a matter of procedure, MR SALVESEN'S SPEECH 323 Mr Salvesen: Not if it is merely a matter of procedure, I agree. But I think the Free Church must be held bound by its own declaration upon the subject at page 62 of Print B where it says, "And the Assembly" "think it fitting also to declare that this Church can never, consistently or conscientiously, enter into any Union that would imply the abandoning or compromising of either of these essential principles, which are divine and unalterable truths." And the " essential principles," one finds, are that Nations and their Rulers "are conse quently bound, collectively and officially, as well as individually and personaUy, to own and honour His authority, to further the interests of His holy rehgion." Lord James of Hereford : Can you just earmark the " essential principles " ? Mr Salvesen : Yes, your Lordship will find them just above in the second clause, and in Clause 1. They are the headship of Christ and the duty of the Nation in estabhshing religion. Lord James of Hereford : Thank you — I wanted just to see that. Mr Salvesen : Then, my Lords, when one comes to the negotiations with the United Presbyterian Church, there it is plain in the various parallel columns to which my learned friend Mr Johnston has referred, that one ground of distinction between these two Churches was that the Free Church clung for fifty years to the doctrine of the lawfulness and duty of the Church to support the establishment of religion, and the United Presbyterian Church were equally firm in holding that that was unscriptural and unlawful. But what I wish to deal with is not a parti cular Article of Faith, but with the throw ing loose, as I submit, of the whole Creed by the new Formula. I referred your Lordships to pages 89 and 90 of Print A for the old Formula, and I will ask your Lordships to contrast that with the Formula upon page 166, if you will keep the two places open at the same time The Lord Chancellor: They [are both in Print A, are they not? Mr Salvesen: Yes, the contrast is between page 86 and page 166. I am taking the Questions put to probationers. I think they are substantially the same, but perhaps I should take the exact parallel which is on page 87, letter F: "Questions to be put to Probationers before Ordination (and also to a Minister already ordained, at his admission to a pastoral charge)." That compares exactly with page 166. Now, the first point of dis tinction is that, as your Lordships will observe, there is no preamble to the Questions in the first Formula, whereas there is a long preamble in the later Formula, and I shall have occasion to refer to what the meaning of the preamble is, and how it has completely swept away the Confession of Faith as really the Creed of the Church. Now, the second Question is : " Do you sincerely own and believe the whole doctrine contained in the Confession of Faith, approven by former General Assemblies of this Church to be founded upon the Word of God; and do you acknowledge the same as the confession of your faith," and so on. The corresponding Question at page 166 is : "Do you sincerely own and beheve the doctrine of this Church, set forth in the Confession of Faith, approven by Acts of General Synods and Assemblies ; do you acknowledge the said doctrine as express ing the sense in which you understand the Holy Scriptures ; and will you con stantly maintain and defend the same, and the purity of worship in accordance therewith?" Now if it was simply a comparison between those two Questions, I think it would be open to argument that "the doctrine of this Church set forth in the Confession of Faith " was not substantially different from "the whole doctrine contained in the Confession of Faith." But there is no doubt whatever that the difference was introduced for a purpose; and your Lordships will find the purpose explained in the preamble to the later Formula, at page 166: "It is hereby declared that the following Ques tions are put in view of" certain Acts, and the two Acts which I specially emphasise are the Declaratory Act of 1879, and the Declaratory Act of 1892 with the relative Act of 1894, of the Free Church. And your Lordships will see at letter D it goes on : " And that Ministers are entitled to avail themselves of any of these Acts." That is to say, in answering 324 these Questions you are to have in view what has been declared by these Declara tory Acts or either of them, and you may qualify or you may have a mental reser vation with regard to the meaning of the Confession of Faith if you find it has been qualified by the Declaratory Acts. Now, would your Lordships kindly turn to the Declaratory Acts. The first is the Free Church Act of 1892, which you will find on page 132 of the same Print. It seems to me that that Declara tory Act was really passed for the purpose of enabling people who could not con scientiously subscribe the Confession of Faith to be nevertheless admitted to the Church. It begins": "Whereas it is ex pedient to remove difficulties and scruples which have been felt by some in reference to the declaration of behef required from persons who receive licence or are admitted to office in this Church, the General Assembly, with consent of Pres byteries, declare as follows;" and then they proceed, as I submit, just to teach the opposite of the Confession of Faith — not in the first paragraph, because that is merely a general statement of the doctrine of the Headship of the Church; but if you wiU take the second paragraph, it says : " That this Church also holds that all who hear the Gospel are warranted and required to believe to the saving of their souls ; and that in the case of such as do not believe, but perish in their sins] the issue is due to their own rejection of the Gospel call." That is the very opposite of election — that is free-will — punishment for one's own sins. Lord James of Hereford : Can you give me without trouble the reference to the corresponding Article in the Con fession of Faith which you say this is opposed to ? Mr Salvesen : Yes, it is at page 2 of Print A. Then the Act goes on to say : "That this Church does not teach and does not regard the Confession as teaching the foreordination of men to death irrespec tive of their own sin." Lord Davey : It may be said, you know, that that is construction. Mr Salvesen: Yes, if it is bond fide construction, I think it would be within the Dower of the Church to interpret, but HOUSE OF LORDS if it is really abrogation or destruction of the Confession of Faith, I submit it is en tirely beyond the power of the Church. The Lord Chancellor: I am sorry to say we must interrupt you now. Lord Alverstone : WiU you give us the reference to the other Act you referred to — the Declaratory Act of 1879? Mr Salvesen : It is at page 182. Adjourned for a short time, and resumed. Mr Salvesen : My Lord, I was dealing with the Declaratory Act upon page 133, with a view of showing that under the guise of interpretation it really modified and quaUfied the Confession of Faith, and I referred to the doctrine of fore ordination, to which it refers in the second paragraph, and then follows the passage -with regard to the Election of persons, which has to be compared and con trasted with what is found upon page 4 of the same Print in the Confession of Faith. It is noteworthy, too, my Lord, between E and F, that the Church " disclaims intolerant or persecuting prin ciples." The Formula that the United Presbyterian Church always had was " disclaim compulsory, intolerant and per secuting principles," "compulsory "having reference to the doctrine of Church Estab lishment. That was the short way in which they disclaimed any connection with the Church Establishment; and then it goes on to say : " and does not consider her office-bearers, in subscribing the Confession, committed to any prin ciples inconsistent with liberty of con science and the right of private judgment." Now, my Lord, it seems to me that these words just do away with the Confession altogether, that is to say, that you can subscribe the Confession but you are not committed to any principles inconsistent with your own views of what is right and wrong or what your own views are of Scriptural teaching; and then again at letter G : " That whUe diversity of opinion is recognised in this Church on such points in the Confession as do not enter into the substance of the Reformed Faith therein set forth, the Church retains full authority to determine, in any case which may arise, what points fall within MR SALVESEN'S SPEECH this description^ and thus to guard against think that the fair inference is any abuse of this liberty to the detriment of sound doctrine." Again I submit that that makes the creed absolutely elastic, whatever the Church may determine from time to time ; it is not open for my learned friends to say that that does not touch the Confession, because diversity of opinion is recognised on such points in the Confession as do not enter into the substance of the Reformed Faith, but the old formula made the whole doctrine of the Confession, the substance of the Reformed Faith, and in this Declaratory Act, we contend, and it was the view of those who left the Church at that time, that the Free Church had substituted an absolutely elastic creed for the rigid creed that formerly they made their office bearers subscribe to. Lord James of Hereford: I should like, if there is a history attached to this Act, to know what was the cause of this Act being passed. I notice that the Preamble is this : "Whereas it is expedient to remove difficulties and scruples which have beefe felt by some in reference to the declaration of behef required from persons who receive license," and so forth : had there been any movement of doubt? Mr Salvesen : Yes. Lord James of Hereford : On the part of whom? Mr Salvesen : Many men who other wise would have entered the Free Church felt themselves precluded from doing so by the formal requiring of a rigid adher ence to the Confession of Faith. Lord James of Hereford : It was not done at all in contemplation of this union. Mr Salvesen: The Declaratory Act of 1892 is very similar to that of 1879, and probably it served both purposes; they had been negotiating for union, and there is a great similarity between the objects of the Declaratory Act of the United Presbyterian Church to which I am just going to refer and this Act. The Lord Chief Justice : I thought Mr Johnston said it was promoted by the same party. Mr Salvesen : It was promoted by the same party, undoubtedly, aud we 325 that it was promoted with a view to union. No doubt it was the case also that there were men of the modern school of thought in Theology who felt it difficult to become office-bearers in the Free Church when the Free Church required a rigid adher ence to the Confession of Faith in all its parts. The Lord Chancellor : I omitted to ask you on that point, what is the date of the Overture leading to it. It is not dated in the papers. Mr Salvesen : The overtures leading to union had been going on for a long time before that. The Lord Chancellor : No, but the Overture leading to this Declaration; it is on the preceding page. Mr Salvesen : I think it is the same year — it is probably the previous year. I am told it is 1889 by those who ought to know. The Lord Chancellor: Very good; I will date it 1889, then. Mr Salvesen : I get that from my friends on the other side, who probably should know. The Lord Chancellor : You see, it becomes important, because the Overture was leading up to what was afterwards done in 1900. Mr Salvesen : Yes, undoubtedly. Now this Declaratory Act is to be com pared with the Declaratory Act of the United Presbyterian Church, which, under the new Formula, any one is en titled to appeal to in answering the questions that are put to him, and your Lordship wUl find it on page 182, and I think it more clearly than the Declara tory Act of the Free Church shows that the Presbyterians of this body did not assent to the Confession of Faith : "Whereas the Formula" (so reads the Preamble) "in which the Subordinate Standards of this Church are accepted requires assent to them as an exhibition of the sense in which the Scriptures are understood: Whereas these Standards, being of human composition, are neces sarily imperfect, and the Church has already allowed exception to be taken to their teaching or supposed teaching on one important subject," 326 HOUSE OF The Lord Chancellor : What does that refer to ? Mr Salvesen • I think that must re fer to the doctrine of civil estabhshment ; I am not sure. Lord Davey : The duty of suppressing heresies, I think; it disclaims all perse cuting ; I think that is what it refers to ; it is the duty imposed on the Civil Magistrate of suppressing all heresies. Mr Salvesen : Yes, possibly that is so: "And whereas there are other sub jects in regard to which it has been found desirable to set forth more fully and clearly the view which the Synod takes of the teaching of Holy Scripture : There fore the Synod hereby declares as fol lows ; " and then it deals with the proper Calvinistic Doctrine, and, as we submit, converts the creed of the Church from a Calvinist Creed to an Arminian. And then at the very end you have ¦ Lord James of Hereford : If that is so I should like you to dweU a httle more upon that ; wiU you say where the points of doctrine differ between the two, be cause you argued this before, but the Chief Justice and I have not heard it. Will you point out where the difference of the creeds is ? The Lord Chancellor: Page 2, I suppose. Mr Salvesen : Page 2 and page 4 of Print A; you get the parts of the Con fession of Faith there, but I refer to the Preamble, my Lord, reaUy as instructing my point, because they speak there of the Standards as being necessarily im perfect and of their allowing exception to be taken to them on one important subject. The Lord Chancellor : Had not you better finish one proposition at a time ? Lord James wants to see Lord James of Hereford: I am afraid I am, perhaps, going over the ground again. The Lord Chancellor : Page 2, Chapter iii, you mean : "Of God's Eter nal Decree." Lord James of Hereford : Yes. Mr Salvesen : And especially Articles III. and V. : " By the decree of God " "some men and angels are predestinated into Everlasting life, and others fore- LORDS ordained to everlasting death." "V. Those of mankind that are predestinated unto life, God, before the foundation of the world was laid according to His Eternal and immutable purpose, and the secret counsel and good pleasure of His WUl, hath chosen in Christ unto ever lasting glory." Lord James of Hereford: That is the Confession of Faith. Can you give me shortly where is the doctrine of the United Presbyterian Church exactly ? Mr Salvesen : The Second Article on page 182 : " That the doctrine of the divine decrees, including the doctrine of election to eternal hfe, is held in con nection and harmony with the truth that God is not willing that any should perish, but that aU should come to repentance, and that He has provided a salvation sufficient for aU, adapted to aU, and offered to all in the Gospel; and also with the responsibility of every man for his deahng with the free and unrestricted offer of eternal life." "III. That the doctrine of man's total depravity, and of his loss of 'aU ability of wifi to any spiritual good accompanying salvation,' is uot held as implying such a condition of man's nature as would affect his responsi bility under the law of God and the Gospel of Christ, or that he does not experience the strivings and restraining influences of the Spirit of God," and so forth. The Lord Chancellor: And the Declaratory Act with which you were deahng at page 133, letter B? Mr Salvesen : Yes, substantiaUy the same. Lord Davey : It is very significant because I think it is difficult to reconcile that with the doctrine of Election before all time, and that the number of the elect can neither be increased nor de creased. Mr Salvesen: Yes, that is so. Of course, one is reaUy unwilling to go into these theological subtleties. The Lord Chancellor: I do not know; we are dealing with the creed of a Christian Church; the Theology of it is not an unimportant element in its constitution. MR Salvesen : Page 4, my Lord, deals MR SALVESEN'S with the question of "Effectual Calling," which, I think, all these declarations undoubtedly practically rescind Article I : "All those whom God hath predestinated unto Life, and those only, He is pleased, in His appointed and accepted time, effectually to call, by His Word and Spirit," and so on ; and then " III. Elect infants dying in infancy are regenerated and saved by Christ through the Spirit, Who worketh when, and where, and how He pleaseth. So also are all other Elect persons, who are incapable of being out wardly called by the ministry of the Word." "IV. Others not Elected " (and of course that necessarily must embrace not-elected infants), " although they may be caUed by the ministry of the Word, and may have some common operations of the Spirit, yet they never truly come unto Christ, and therefore cannot be saved : much less can men not professing the Christian ReUgion be saved in any other way whatsoever, be they ever so diligent to frame their lives according to the hght of nature, and the law of that religion they do profess ; and to assert and maintain that they may, is very pernicious and to be detested." Now it seems to me that that is exactly what they do assert in the Declaratory Act, — what is said to be "pernicious and to be detested " ; and, my Lord, I submit you get reaUy the whole thing summed up in the last paragraph again, very similar to the last paragraph of the Declaratory Act of the Free Church on page 184 : "That, in accordance with the practice hitherto observed in this Church, liberty of opinion is allowed on such points in the Standards, not entering into the substance of the faith, as the interpreta tion of the 'six days' in the Mosaic account of the Creation: the_ Church guarding against the abuse of this liberty to the injury of its unity and peace"; and then : " The following question _ of the Formula contains the terms in which the subordinate Standards are accepted the office-bearers of the Church:— by Do you acknowledge enumerates the Standards), ledgment being made in view explanations contained in the Declaratory Act of Synod thereanent ? " so that they (and then it '¦' this acknow- of the SPEECH 327 explain away the obnoxious Articles of the Creed, and then say: "Now, you can sign the Confession of Faith if you please, subject to the explanations which we have given of what it ought to mean." The Lord Chancellor : The remark able thing about the union is that it is part of what I might call the contract of union, that each may entertain their own views about certain theological subjects. Mr Salvesen : Yes, and that these views may from time to time be authori tatively — that views on theological matters may be authoritatively declared from time to time by the Church ; the Church being the sole judge of what is to enter into the substance of the Reformed Faith. One might reduce the whole creed ulti mately to a few of the propositions that are embraced in the Apostles' Creed, and they might say that that was all that entered into the substance of the Reformed Faith. You would then, no doubt, have a Christian Church, but you would not have a Calvinistic Church such as the Free Church and the United Presbyterian Church profess to be ; in short, in the view of my clients it is simply throwing the whole of their religion loose, and they may be associated with people of every kind of view, and they may be compelled to admit the ministrations, in so far as they are laymen, of persons who hold views diametrically opposed to the Confession of Faith, which has been the Standard of their Faith. Lord Davey : And employ the trust funds for the purpose of sustaining and remunerating those ministers. Mr Salvesen : Yes, that is so. The Lord Chancellor: That is where the Courts of Law come in ; they may entertain what views they like if they do not insist on taking the property. Mr Salvesen : I may say so strongly was this felt at the time that there was a disruption from the Free Church and the Free Presbyterian Church, which exists to this day, and which was the only Church, I think, that has separated on doctrinal grounds, was formed, and it was formed because it said, "We can never allow ministers to be ordained and to preach to us if they are to be entitled to preach 328 HOUSE anything they please, or that the Church may declare to be the substance of the Faith." Lord James of Hereford What is the date of the Free Church ? Mr Salvesen: In 1892 the Free Presbyterian Church was formed im mediately after this Act was passed, and as a protest against it ; they went out and formed their own congregations, but the patrimonial rights had not been affected, and to a certain extent, so far as the Free Church was concerned, this Declara tory Act of 1892 — a new Declaratory Act was passed to save the consciences of those who remained, and you find that at page 138; if it had not been for this other Act there would have been a much greater disruption: "Whereas the De claratory Act, 1892, was passed to remove difficulties and scruples which have been felt by some in reference to the Declara tion of Behef required from persons who receive licence or are admitted to office in this Church, the Assembly hereby declare that the Statements of Doctrine contained in the said Act are not thereby imposed upon any of the Church's office bearers as part of the Standards of the Church ; but that those who are licensed or ordained to office in this Church, in answering the questions and subscribing the formula, are entitled to do so in view of the said Declaratory Act." The Lord Chancellor: I do not quite f oUow that ; what does that mean ? Mr Salvesen : Well, it meant this — that you might take the old formula if you chose, and that the Declaratory Act of 1892 was only to be regarded as explanatory and permissive in the case of those who wished to appeal to it. Lord James of Hereford: Entitled to do what ? The Lord Chancellor : " In answer ing the questions and subscribing the formula, are entitled to do so in view of the said Declaratory Act " ; that is to say, that if they wish they may say that they adopt those formulas as explained by the Declaratory Act. Mr Salvesen : Yes. The formula, however, at that time was not changed; it remained — the old formula, " that you beheve tho whole doctrine of the Con- OF LORDS f ession of Faith"; but now under the union, in the formula to which I have already referred upon page 166, you have an entirely new formula with this Pre amble passed, enabling every person to appeal to any one of these Declaratory Acts as embodying the particular views which he holds, and as qualifying the doctrine of the Church set forth in the Confession of Faith. *My Lord, if Lord Davey: This Declaratory Act you have just read is the Declaratory Act of the United Free Church. Mr Salvesen : No; of the Free Church. Lord Davey : 1894. Mr Salvesen : Yes, 1894 ; that was of the Free Church; the union was 1900. Then your Lordships wiU find the " Ques tions" upon page 166 as they now are, and the formula changed, not merely ex plained away by the Preamble, but the formula itself changed and a reference made to these Declaratory Acts both of the United Presbyterian and of the Free Church, and every probationer or minister is allowed to take his choice. Now that, we think, my Lords, was a tremendous departure from the standard of orthodoxy that there had been in the Free Church before, and that it justifies the position that the AppeUants take up. Lord James of Hereford: Would you give me the page of the Declaratory Act of 1892? Mr Salvesen : 132 of 1892 Aet, and 138 the 1894 Act, and 182 the United Presbyterian one. My Lord, with refer ence to what Lord Trayner says as to the Establishment principle being a question of polity more than a ques tion of faith, I have already submitted that they made it a matter of faith, but it is noteworthy that, I think, every secession from the Established Church has originated not on questions of what one would ordinarily term faith, but of pohty ; for instance, the disruption of the Free Church itself was purely on a ques tion of pohty. The Church of Scotland recognised from the first the Headship of Christ, but they thought it was quite consistent with the doctrine of the Head ship of Christ that the patron should pre sent a thoroughly qualified man to a hv ing; they did not think that when the MR SALVESEN'S Church had the control of trying him for his ordination, and seeing whether he was qualified to minister the Gospel of God, that they had a formula which ho must subscribe under their control, and that they could reject him if his life was not such as suited the position of a minister of the Gospel — they thought it was quite consistent, having these powers in view, with the doctrine of the Headship of Christ that he should be presented by the patron and not chosen by the majority of the congregation. The Free Church took the view that it was an infringement of the doctrine of the Headship of Christ that the patron should be entitled to pre sent, or that the majority of the congre gation should not have the absolute right of vetoing the presentee of a patron if they disapproved of him. Surely that is a question of polity. The Lord Chancellor: I do not quite follow what polity is ; it seems to me they are both questions of doctrine. Mr Salvesen : In very much the same sense certainly, my Lord. The Lord Chancellor : What do you mean by polity ; you do not mean the Greek TroAn-eia ; if you mean policy, that is a totally different thing, but you do not mean that; you take refuge in a Greek word. Mr Salvesen : I am adopting the con trast that Lord Trayner states between faith and polity, and I think if there is a difference between faith and polity, the difference apphes not merely to the Estab hshment principle but to the cause of the disruption; because after all the whole evil arose from the Patronage Act of 1711, and if patronage had been aboUshed the Free Church would have gone in at once; that was the one objection to the Church Estabhshment,— that the demo cratic vote of the people was not con sidered as they thought it ought to be, but it still is an open question whether you get the best men for the Church. The Lord Chancellor : We have no thing to do with the soundness or un soundness of the particular doctrines. Mr Salvesen : No, my Lord. Then I submit accordingly, my Lord, that Lord Trayner is wrong when he says "that the Standard which has now to be acknow- SPEECH 329 ledged and professed is not less rigid than it was before"; I submit it is far less rigid — that it enables Christians of all denominations to become members of the United Free Church. Lord James of Hereford: Where are those words ? Mr Salvesen: Upon page 89. The conclusion he reaches at letter B is that he sees nothing in the new formula to suggest that the Standard which has now to be acknowledged and professed is less rigid than it was before. Then I submit what was the use of all these Declaratory Acts and of the Preamble if it made no change ? Lord James of Hereford : He uses the term "less rigid"; I supppse he means by that "not different from." Mr Salvesen : Yes, treating the sub scription of the Confession of Faith as a rigid The Lord Chancellor : Suppose one were to take what would be in one sense an expository word and say "more flexible," would it be true that it was not more flexible than the other ? Mr Salvesen : I think it is both more flexible and more elastic and that you can stretch it to almost any extent. Then he goes on to say : " But the serious question in the case, and to which the parties chiefly addressed themselves in debate" (I submit the more serious question is really the one about doctrine — the formula — than the Establishment principle, and my clients so desire to represent it), " is that which I have men tioned as the pursuers' first ground of complaint against the defenders. In dealing with this question we start with two matters of fact that are not open to doubt — (1) that the Free Church, from its constitution in 1843, down (at least) to its union with the United Presbyterian Church, professed the Establishment prin ciple; and (2) that the United Presby terian Church, throughout the whole period of its existence, has repudiated that principle, and professed instead the principle of Voluntaryism." (On these two matters of fact his Lordship is with us.) " In this . state of the facts two questions arise : (1) Have the defenders sibandoned the principle of Establish- 33o HOUSE ment? and (2) Was it a principle so fundamental or essential to the constitu tion of the Free Church that the abandon ment of it involved the consequences attributed to it by the pursuers? (1) The first of these questions, I think, must be answered in the affirmative. It is quite true that the principle of Establish ment was declared at the time of the union with the United Presbyterian Church to be left an open question, and accordingly, in the Declarations adopted by the United Assembly of the same date as the Uniting Act, it is set forth that members of both Churches 'shall have full right, as they see cause, to assert and maintain the views of truth and duty which they had liberty to maintain in the said Churches.' It is, therefore, still open to any member of the original Free Church to maintain (although a member of the United Church) the principle of Church Establishment, and to do his best to bring others to his view. But it does not seem to me to meet the question whether the Free Church, as a Church, has not abandoned the principle of Church establishment to say that it is left open to any individual member to hold it. It was the feature of the Free Church (prior to the Union), which distinguished it from aU other Presbyterian Churches in Scotland, that it was the only Presby terian Church not connected with the State which professed to hold the Estab lishment principle. And one of the results of the Union is that moneys be queathed and subscribed for behoof of the Free Church, at a time when it professed that principle, may now be devoted to the purposes of a Church many of whose ministers and congregations repudiate that principle. I cannot come to any other conclusion, therefore, than that the de fenders (that is, the original Free Church as a body) have abandoned the principle of Church Establishment. They can no longer give effect to it by renewing their connection with the State, or re turning to the Church as by law estab lished. (2) Was the Establishment prin ciple an essential or fundamental principle of the Free Church ? or did its abandon ment violate the terms of its constitution ? I answer both of these questions in the OF LORDS negative. The principle in question was never regarded or put forward as de fide ; at the most it was a principle of polity, of government, of management. The essential principles of the Free Church, as they were in the earlier years of its history, repeated again and again, were the Headship of Christ, and the conse quent independence of His Church (inde pendence, that is, of the civU ruler) in matters rehgious or ecclesiastical. The Estabhshment principle is never once re ferred to as essential or fundamental " (I think I have shown that his Lordship is wrong there), "nor presented as a prin ciple on the same platform with those I have named." The reason, of course, that the one principle is always brought into prominence in all the Claims of Right and so on is because it was the only one on which they differed from the Estab lishment, and therefore they gave great prominence to the point upon which they differed, and their whole agument was to show that they were right and that the Establishment were wrong. "That it was frequently referred to in the Protest and other documents at the time of the Disruption as a principle which, notwith standing their separation from the State, they still professed, is true, and the Lord Ordinary has shown how natural it was that it should be so. But, I repeat, it was never set forth as an essential principle of the constitution of the Free Church. What, after all, is this principle to which the Free Church at the Dis ruption declared its adherence? It is that contained in the Third Section of the 23rd Chapter of the Westminster Confession, which sets forth the view or opinion which the Reformed Church held regarding the duty of the civil magistrate. Now, it appears to me difficult to hold that a mere opinion, as to what some third person was bound to do, which he might neglect or refuse to do, and which the Church could not compel him to do, could in any way be an essential part of the constitution of the Church which held that opinion. The Church existed whether the civil magistrate did his duty or not." Lord James of Hereford: "Some third person," I suppose, means the State ? MR Mr Salvesen : Yes, person " means the State. SALVESEN'S SPEECH ' some third Church, as a Church. The Lord Chancellor : And I suppose one consequence might be this, that if you could imagine such a thing as certainly did not happen, and as I think I may say certainly wUl not happen, that the views of the law were altered in that respect and that the Auchterarder Case could be decided the other way, then they would come back, but they would find they could not all come back because some of them stUl held that it was wicked to accept the support of the State, while others thought it was the duty of the State to give it. Lord Davey : Suppose a scheme of universal endowment was proposed — a scheme which is at present in existence in France, where every religious com munity receives a stipend for its minister, or some form of endowment proportionate to its numbers — what would be the view of the United Free Church as to that ? Mr Salvesen : I think it would have two views; I mean its members would have two views. The Lord Chancellor : Yes. Mr Salvesen : The original United Presbyterians, and those of the Free Church who have adopted their prin ciples, would have said .that it was un- Scriptural to take any assistance from the State, however offered. My Lord, that is made as plain as possible by the JubUee testimony of the United Presby terian Church and the distinctive articles referred to in Print B, page 57, where the United Presbyterian Church Com mittee say : " That it is not competent to the civil magistrate to give legislative sanction to any creed in the way of setting up a civU establishment _ of re ligion, nor is it within his province to provide for the expense of the ministra tions of religion out of the national re sources; but Jesus Christ, as sole King and Head of His Church, has enjoined upon His people to provide for maintain ing and extending it by free-will offerings ; that this being the ordinance of Christ, it excludes State aid for these purposes, and that adherence to it is the true safeguard of the Church's independence." So that there js no doubt that the United Presbyterian 33i would have rejected all State aid, and would have said that it was contrary to the principles which they professed. The Free Church, up to the time of the union, would have taken State aid with pleasure, although possibly there was then a party that more approxi mated in their views to the United Pres byterians, and who might have joined that Church rather than go back to the Establishment. Of course, there had been a drifting apart, as there generally is, upon other grounds, because the abolition of Patronage in 1874 did not, in fact, bring back the Free Church to the fold, the reason of that being that they con sidered that the Established Church had too much Erastianism connected with it to make it an acceptable fold into which they might return. But there is no doubt that for twenty, thirty, and possibly for forty years after the disruption the Free Church would have been very glad to come back to what they called a purified estabUshment, whereas the United Pres byterian Church always took the opposite view. Then his Lordship goes on to say that " the Establishment principle " (letter C) " could scarcely be regarded as an essential or fundamental principle, which all the members of the Free Church were bound to hold and maintain, because that principle, as laid down iu the Westminster Confession, was so vague, both as to the character of the civil magistrate's duty and the manner of performing it, that a great variety of opinion might exist (and doubtless did exist) in regard to it. It was not a well - defined principle like spiritual independence in matters sacred or ecclesiastical, or the non-intru sion of ministers." The Free Church defined it very clearly in their pre- Disruption and post - Disruption docu ments, and define it exactly on the lines of the existing Estabhshment. Then he goes on to say: "Besides what I have said, it is not without importance to keep in mind that the history of the Free Church shows that as a Church, and apart from the opinions held by some ndividual members of it, it did not regard the Establishment principle as one of its fundamental or essential principles. It was from the commencement of its exist- 332 ence down to the date of its union a Church conducted and maintained, in point of fact, according to the Voluntary principle." My Lord, I fail to see the force of that argument, because it could not help itself; it having withdrawn itself from the State endowments the only method of support was by appeal to the Voluntary offerings of its members ; and therefore the fact that it was supported by their voluntary offerings does not seem to me to affect the question of doc trine or belief in any way. " If in theory it was something else," he says The Lord Chancellor : In one of their documents they say they are com pelled, by reason of the circumstances of the time, to abstain from taking what they could not take without giving on the other hand, a submission which is contrary to their views and consciences ; they expressly repudiate the idea that they have abandoned the view of the duty of the State to support the Church. Mr Salvesen : Yes, and they contem plated, in the early history of the Church, the return to a purified Estabhshment. The Lord Chancellor: Yes, they say they are only leaving the Establish ment because the Establishment has become corrupt. Mr Salvesen : Yes. Then he says, " If in theory it was something else, the theory did not square with the fact." Well, it was because of outward circum stances that it did not. " But even the theory that it was based upon the Estab lishment principle can scarcely be main tained in face of this other fact, that the Free Church not only did nothing to give effect to the Establishment principle so as to make it of any practical avail, but, on the contrary, devoted much of its time and energy to bring about (if it could) the Disestablishment of the Church of Scotland." Now, there again, that was perfectly consistent with the Free Church doctrines, because they held the existing Establishment to be an Erastian Estab lishment, and that it was better that there should be no Establishment than that there should exist a vitiated and unpurified Establishment, and, therefore, a Disestab lishment agitation, which, to a certain extent, affected the members of the Free HOUSE OF LORDS Church, was quite consistent with their original belief that it was right for the Church to endow a properly constituted and purified Church. The Lord Chancellor : For the State you mean. Mr Salvesen : Yes, for the State to endow. Then he deals with the Case of Smith v. Galbraith, and admits that while it does not decide the question at issue, the Opinions delivered appear to be adverse to the pursuer's contention. I have already submitted an argument about that. Then he says : " But esto that the Establishment principle had been explicitly declared in 1843 to be an essential principle of the Free Church, I think the Church had the power to aban don that principle and to that extent alter the original constitution. In the first place, if that principle had no bear ing upon the constitution of the Free Church except as affecting its polity or management, I am disposed to think that it could be modified, altered, or aban doned by the voice of the majority duly or deliberately taken." Well, in a limited sense, the proposition would be, I think, non-controversial; if it was a matter of pure internal management probably the Free Church could alter the management that had existed, but then I have aheady submitted that it was not so, but a distinctive principle, and indeed the dis tinctive principle. My Lord, when one thinks of the other Presbyterian bodies that exist at the present day, and notes the lines of separation between them, you will find that they all differ upon what outsiders would say were mere questions of polity or management. Lord James of Hereford: Would you mind considering this somewhat con verse proposition: supposing the United Presbyterians had received State aid, and had become what you might call a State church by receiving State aid, would they have remained the same Church as they were before they received that State aid ? That is the converse of this case. Mr Salvesen : I think certainly not, my Lord; they would have abandoned their voluntary principles by the mere fact of their having consented to receive State aid. MR SALVESEN'S SPEECH Lord James of Hereford : It comes rather back to the question of what is essential to the existence of the Church : is it only absolute faith or is it what probably is or is wrongly called polity and management, and where does the question of establish ment rank itself? _ Mr Salvesen : There are at present six bodies of Presbyterians existing in Scotland, and they all have, or profess to have, their creed founded on the Con fession of Faith. They only differ in matters which an outsider would call detail. The Reformed Presbyterians still stand out because they would not accept the Revolution settlement, because the King of Britain was not a covenanting king. That is the ground why they have stayed out for three centuries. Then, if you take the Free Presbyterians, they did undoubtedly go out upon doctrine, but the original seceders are still there, and they are the remnant of a party that has spUt three or four times ; the original Secession Church first split into the Burghers and Anti-Burghers, and the sole ground of distinction between these two sects was that the one admitted the law fulness of the Burgess Oath, and the other refused to take the Burgess Oath and regarded it as unlawful. That was the ground of separation. Then the Burghers split up into the new Light Burghers and the old Light Burghers, and the new Light Burghers were more progressive in theology than the old Light Burghers. The old Light Burghers ultimately re turned to the establishment, but the new Light Burghers and the New Light and Old Light Anti-Burghers combined to form the United Presbyterian Church along with the Relief. Lord James of Hereford: I am afraid I shall not recollect all that you have said, Mr Salvesen. Mr Salvesen : I am merely showing, my Lord, that in Scotland it is not matters of faith that really have split up the Church into sections, but matters just akin to the question of the civil establish ment or the lawfulness of an oath or something of that kind, and there you have a separate Church existing based upon that distinctive principle. Lord James of Hereford : Take this 333 more general case of a sect, one body of which acknowledges the King as the Head of the Church and another body denies that doctrine, and there is a change, and the one that admitted the Sovereign to be the Head of the Church ceases to do so, could you say that was the same Church after the change from the one proposition to the other? Mr Salvesen : I say that is exactly analagous to what one sees in the struggles of Presbyterianism — how very vital they thought that question at one point of their history : the supremacy of the King was rejected by Act of Parlia ment. Lord James of Hereford : I do not know whether you would call that faith or pohty or management; it is a very broad essentiality, I should say. Mr Salvesen: I should submit we would call it principle or faith, or a con dition of the trust ; it is all the same as far as my argument is concerned, and if the Free Church invite the public to sub scribe on the footing that they represent the only Presbyterian Church, that admits the lawfulness of State establishment and endowment existing apart from the estab lished Church, then they must stick to these principles if they are going to stick to the funds. Then I go on with Lord Trayner's opinion, and I do not think it is necessary that I should read at length what he says upon the Barrier Aet, because I have already submitted to your Lordship my argument upon that. At page 92, Letter E, he refers to the Standards of the Church, or the passage, rather, in the Disruption documents: "That they are, and shall be free to exercise government and discipline " The Lord Chief Justice : I beg your pardon, but I do not want to go wrong on a point. You said that the Reformed Presbyterians still existed ; I thought you said that they joined the Free Church. Mr Salvesen : The majority of them did ; but there is a minority consisting of two Presbyteries still existing. The part of Lord Trayner's Judgment from which I was reading was page 92, Letter E : " that they are and shall be free to exercise government and discipline in their several 334 HOUSE judicatories separate from the Establish ment according to God's Word, and the constitution and standards of the Church of Scotland as heretofore understood." My Lord, may I say with regard to that, that we submit that it is useless to go beyond the year 1690 because then the creed and government of the Church of Scotland was crystallised ; you get no aid from considering the statutes that were passed or the Acts of Assembly that were passed during the period when the whole constitution was in solution, and it is only when it is crystallised by the Revolution settlement that you get exactly what is the constitution of the Church of Scot land. Well, then, the Free Church went out upon that constitution, because their ministers had been parties to the Revolu tion settlement, and they approved of it, and accordingly I submit that they cannot go any further back to ascertain what were "the constitution and standards of the Church of Scotland as heretofore understood" than to the year 1690. My learned friend who led me anticipated the argument on the other side and referred to the Statutes, but I submit that we do that under protest because it is not neces sary to go beyond the year 1690, "the effect of that Declaration was just this, that the Free Church should as regards its judicatories and their jurisdiction, be as they had hitherto been in the Established Church, the only difference between the two Churches (as it was indeed much emphasised) being that the Free Church declined to recognise that exercise of its powers by the civil court in which the Established Church had acquiesced" (I think is a correct statement, my Lord). " Now, at the time when that Declaration was made one of the Acts of Assembly of the Estabhshed Church in full force and observance was the Barrier Act," and he refers to it, and then at Letter B on the next page he says, "in connection with this Act the Lord Ordinary points out that it conferred on the Assembly of the Established Church a certain legislative power, and I agree with him. (My Lord, I submit it did not confer any thing, but that it sought to hmit any power that there might be inherent in the Church.) " But the State was no party OF LORDS to the Barrier Act, and therefore the exercise of any power under it by the Established Church would be liable to be called in question by the State." My Lord, supposing the State did not choose to call it in question, could it be said, after the Revolution settlement, that the State and a particular Assembly could conspire to reintroduce episcopacy into Scotland? I submit that it certainly could not, and that the idea of all Scotch men has been that their rights as a Presbyterian Church have been inalien ably secured to them, and they cannot by the Assembly or by the State in any way effect that change. "No one, however, in the Free Church could call in question the exercise of powers (conferred by the Barrier Act) by the Free Church, because no one was concerned in its adoption except the members of the Free Church themselves. It was among them part of the contract — the constitution — by which and under which they were united. Each member of the Free Church in 1843 was a party to the adoption of the Barrier Act, and every one who subsequently became a member did so on the condition that that Act formed part of the Law of the Association. It may be that under the Barrier Act the Free Church had not absolutely unrestricted power of legisla tion, or that it did not authorise any or every change in matter of doctrine, wor ship, discipline, or government, although it conferred large powers in that direc tion." My Lord, if it confers any powers, our submission is that it confers unlimited power, and that surely could never be held to be the case — an unlimited power of change in doctrine, worship, disciphne, and government ; there is no limitation indicated in the Barrier Act. If you are to hold it as conferring legislative power, I submit that that is the redudio ad absurdum of the argument on the other side. Lord Trayner goes on to say, "For example, it may be thought that the Barrier Act would not be held to authorise an Act declaring that the Church no longer held the doctrine of the divmity of Christ, because then it would have ceased to be a Christian Church ; or to authorise the declaration that the Church was there- MR SALVESEN'S after to be governed by bishops — because then it would have ceased to be a Presby terian Church. I am not prepared to say that even these extreme cases would not have been covered by the wide terms of the Barrier Act, for that Act contains no limitation of the power to make alterations regarding the doctrine, worship, discipline, or government of the Church"; so that your Lordship sees Lord Trayner goes the whole length. The Lord Chancellor : Yes, and he assumes that that is an enabling Act. Mr Salvesen : Yes. The Lord Chancellor : I do not find that his Lordship deals with that question. Mr Salvesen: He says it conferred powers. Lord James of Hereford : Lord Trayner does not touch the question that even if this was an Act which enabled SPEECH 335 legislation to the fullest extent and the fullest change, leaving it to the Church itself, that therefore rendered property subject to the trusts which would spring from the Church so changed. Mr Salvesen : No ; undoubtedly the logical outcome of his argument is that the Free Church would carry off the property given to their charge by pious founders. Lord James of Hereford : Supposing they took into their church the principal doctrine of the Roman Catholic faith, and a pious founder had left his money to them for exactly the opposite object — of course we can form no opinion about it — but what would be the result ? Mr Salvesen : Lord Trayner un doubtedly does not shirk from that, he goes the whole length. Lord James of Hereford : He says that the Church within itself may change, but where does he say anything about the effect it has on property ? Mr Salvesen : I think he infers that there being, ashethinks, an unlimited power in the Church, through its Assemblies, to change that or any part of the Constitu tion, therefore anybody who gave money to a Church which had that unlimited power to change its doctrine, must take the risk of changes in its doctrine. Lord James of Hereford : Therefore the property would remain with a Church that had entirely changed everything but its name ? Mr Salvesen : Yes. Lord James of Hereford : He must go to that extent ; if that is his view (I do not see where it is expressed), does it affect property as well as the doctrine of the Church ? Mr Salvesen : No ; but I take it he regards it as a kind of Article of Associa tion, that these rules and doctrines may be changed from time to time at the pleasure of the Assembly, after the pro cedure contained in the Barrier Act has been complied with, and, of course, that means that it may cease to be, as I submit, Presbyterian or Christian. « Lord James of Hereford : I do not think he goes beyond its being a Christian Church. Mr Salvesen : Then he says, upon page 94: "I am of opinion, therefore, that, assuming the principle of Establish ment to have been a distinctive doctrine of the Free Church, it was quite competent for the General Assembly to alter or abandon it if it was found — on adopting the procedure appointed to be observed by the Barrier Act (which was done) — that ' the more general opinion of the Church agreed thereunto.' On the whole matter, I am of opinion that the judgment of the Lord Ordinary should be affirmed." My Lord, if Lord Trayner is right in the conclusion at which he has arrived, that the Church in entering into the Union abandoned no principle except subordinate principles that did not enter into the constitution of the Church at all, then it would seem to me that the result would be that there would be two sections of the Church, and we would submit the alternative view in that case, assuming that this was sound (we submit it was unsound), that we would be entitled to share. We have done nothing to disentitle ourselves to a share of the trust property, even although our view is negatived that they have abandoned the principles of the Church, and therefore have forfeited their right to participate in the trust funds; and, on the other hand, if your Lordships are unable to find in the constitution of the Free Church an unlimited power of 3& HOUSE changing its doctrine, government, wor ship, and disciphne, then you would be in the position that the Court were in, in the case in which Lord Eldon gave his opinion, of saying, " Here are two people who have separated from each other, and we cannot understand that they have different principles at all," but, if we were in that position, then I submit we would be equally entitled with the others to share in the funds, and I refer to the doctrine laid down in the Ferguson Bequest cases as justifying that position. Lord Davey : What was the ultimate result of the Craigdallie case ? Mr Salvesen : It was, as I stated, my Lord, that the Court of Session in Scot land said they were unable to distinguish between the two sections. Lord Davey : What came of it Mr Salvesen : It went to the majority, I think ; I am not sure. Mr Johnston : The action was dis missed, and therefore one cannot tell what happened. Mr Salvesen : My learned friend tells me that the action was simply dis missed. Lord Davey : Because the burden of proof was on the Pursuers, and they were not able to discharge it ? Mr Salvesen : Yes. Lord Davey : They were not able to show that they were excluded. Mr Salvesen : No. Lord Davey : Probably that would be the result. Mr Salvesen : Yes. The Lord Chancellor : I rather think Lord Eldon said that if they could not find out the difference he could not. Mr Salvesen : Yes, that was what he said. If that was the conclusion reached in this case (I should think it is not at all a likely conclusion), I submit there would then have to be a proportionate division of those funds between the two organisa tions which had separated from each other, and the view expressed by Lord Shand in the Ferguson Bequest case is very applicable to the present. He says: " Why should the minority have no share of the Trust funds? What have they done that should deprive them of that? They have adhered precisely to the OF LORDS standard of faith which they held when Mr Ferguson died, precisely to the same form of Church Government. They have altered in no respect whatever; then why should they be disqualified ? They remain quite capable of carrying out the object the truster had in view. They appear to me to be just as much in the position of being an agency within the meaning of the Settlement for carrying out his intention now as they were when Mr Ferguson died." The difference be tween the two cases is that here you have an aggregate of trusts simply in favour of the Free Church, but treating them so, it seems to me, my Lord, that you must apply the same principles that you would apply to the individual case. Lord James of Hereford : You have dissented from the majority ; if on the main question the contention is right that the Free Church were acting within their power, they have simply done that which they have a right to do ; you have dissented from them, saying, " We will not join with you," and you go away ; assuming the first premise, does not that do you out of the right to hold the property? I will put an almost absurd case: supposing they said, " We intend, instead of having our General Assembly in one town to have it in another," and you say you will not have anything to do with them on that account, what claim would you have to the property then ? Mr Salvesen : I agree I should have no claim. Lord James of Hereford : Then do we not come back here to the question whether the Church have acted within their right or not ? Mr Salvesen : I think probably that is so. Lord James of Hereford : That gets rid of this question. The Lord Chancellor: But we cannot recognise that a majority can alter the nature of a trust. Lord James of Hereford: I am assuming that the majority were acting within their power. Would you still argue in that case, Mr Salvesen, that although the Union may be good you ought to have a division of property ? Mr Salvesen: I can only maintain DEAN OF FACULTY'S that upon this footing that there was no inherent right to change, — that the Barrier Act does not give them hberty to change doctrine and other things. Lord James of Hereford -. If it did give them the right of change ? Mr Salvesen : If it did I must con cede that they carry the property with them. Lord James of Hereford : Then the task you put to us as to the valua tion and division would not come into play. Mr Salvesen : No, it would not in that view, but of course my main con tention is SPEECH 337 said about it, it is very see how upon legal grounds issue than that could be Lord Davey -. That would only be by way of compromise. Mr Salvesen : It would only be by way of compromise. I submit on the whole matter that we have established, if the onus were upon us, that the Free Church have here aban doned their principles, but I should also ask your Lordships to consider whether the onus is not upon them to show that what they did was within their powers, because, undoubtedly, they admitted to a participation in the benefits of the Trust persons who were not previously bene ficiaries, . and I submit, therefore, that there is an onus upon them to show that The Lord Chancellor: I do not think that is a very useful disquisition, is it? It is all very well to say that the question is left in doubt, but one way or the other we must make up our minds whether they did or did not. Mr Salvesen : I understand your Lordship does not think there is very much in onus in the ordinary case. The Lord Chancellor -. That argu ment as to the onus is very fascinating, no doubt. The Dean of Faculty : My Lords, I attend your Lordships on behalf of the Respondents, and the question, I think, which your Lordships have to determine is whether the property which belonged to the Free Church in 1900 belongs now to the Respondents or to the Appellants. My learned friend, Mr Johnston, put the case upon that basis, and probably as the result of what my learned friend, Mr Salvesen, has difficult to any other raised. The first thing I should desire to do is to bring under your Lordships' notice exactly the position of the property in dispute. It seems to me that it is quite necessary that the House should have that clearly in view, and that is made very plain by the statement of the Appellants, who are the Pursuers of the Action, in their Record in condescendence 46 on page 81 of the Record. I am referring to the property in the first Action ; there are two Actions, the one relating to congrega tional property, but this is the general property, the Church property. In the 46th Article of the Condescendence, at page 81, the Pursuers say : " In the course of its existence from 1843 to the present time the Free Church of Scotland has acquired and had vested in it as a Church a large amount of property, both heritable and movable, including (First) the property held by the Church for extra-congregational purposes, the title to which is for the most part vested in the defenders, first called, as general trustees of the Church; and (Secondly) congrega tional property which is for the most part vested in trustees appointed by individual congregations, who hold it under trust deeds framed, generally speaking, upon a common model"; so that the first Action relates to the property first de scribed in that Article, and the second action relates to the congregational pro perty. There is only one action here, but I do not know that one can say that the whole of the Churches are in exactly the same position; there are about 1100 Churches throughout the country, but I should say that probably the title of over a thousand of the Churches stands on the model Trust Deed. Lord Davey: I suppose all the Churches hold for the congregations; they are not held for the Free Church generally. The Dean of Faculty : To the extent of 1000, I should say. I do not give the figures with perfect accuracy, and I should perhaps only say to the extent of a very large number they are held exactly upon 338 HOUSE OF the title of the Model Trust Deed adopted by the individual congregation. The Lord Chancellor : I understand, Dean of Faculty, what you suggest, but I suppose your argument is not that there is any difference between the property left to the Church generally and. to the particular congregations is it ? The Dean of Faculty : I think not, my Lord, substantially ; the terms of the Model Trust Deed do introduce a different argument with regard to the property The Lord Chancellor : I can under- LORDS my Lord. Your Lordship need not be stand its being used as an argument; I think one of the learned Judges in fact does appeal to it for that purpose, but that is a different matter ; you use it as an argu ment, but you do not suggest that there can be any different decision to this case between the one and the other The Dean of Faculty : I do not think we can, my Lord ; that was the view we took of it before after-consideration. I think that argument arises on the terms of the Model Trast Deed. The Lord Chancellor : I understand that is an argument. The Dean of Faculty : I have always felt that looking to the power which is given to the Assembly of the Church in that Model Trust Deed, it would be very difficult for my clients, if your Lordships held that we are not the Free Church Assembly — in short that the Appellants were the Free Church Assembly — it would be very difficult for a body not a Free Church Assembly to effectuate any rights under the Model Trust Deed. Lord James of Hereford: Or it is possible to decide that there is no Free Church Assembly if you have amalga mated de facto, and you have ceased to exercise de jure rights as the Free Church. The Dean of Faculty: The Appel lants say they are the Free Church, and the issue they raise is that they say : "We, the Appellants, are the Free Church," and the Respondents, the United Free Church, say the same. The Lord Chancellor: All I was asking for was that there should be no idea that we should have another argu ment. The Dean of Faculty : Certainly not, afraid of that, and we shall certainly take the two together. I call attention to this Article 46 of the Condescendence for the purpose of pointing out that the property in question, in what I shall call the first Action, non-congregational property, is not property given on any specific trust beyond what is implied in the fact that it is given to the Church. The Lord Chancellor : Given to the Free Church ? The Dean of Faculty : Given to the Church ; no donor of property at all has attached any condition ; he has simply said that the subscriptions, or whatever they are, are made without condition to the Free Church. Lord James of Hereford : Does not that include for the purposes of the Free Church ? The Dean of Faculty: No doubt, my Lord. Lord Davey : And the Trustees are directed to hold it for behoof of the Free Church? The Dean of Faculty: They are given to the Free Church, and I am going to suggest to your Lordships that the question which is to be determined in this case is : What are the conditions and limitations under which the Free Church hold that property, and have they, in effecting a union with the United Presby terian Church, so infringed those condi tions or limitations as to forfeit all right to the property ? The Lord Chancellor: You do not mean to say they got it under the condition that these people, who had the name of the Free Church, were under no limitation as to the purposes for which they were to use the property ? The Dean of Faculty : I am afraid I could not categorically answer that ques tion ; I think it quite enough The Lord Chancellor : Then do not answer it, Dean of Faculty; I do not want to interrupt you. Lord Davey : Dean of Faculty, it is not quite correct to say that the Church has any property at all, but property is vested in certain Trustees, and the inquiry is what is their trust ?- The Dean of Faculty : The Trustees, DEAN OF FACULTY'S however, are the mere hand of the Church ; the Church was not a corporation. Lord Davey : And therefore it could not hold property itself. The Dean of Faculty : It could not hold property, and accordingly the Church, by their Barrier Act, name A, B, C, and D, who are to hold the property for them and subject to their direction; it is a mere convenience. The Lord Chancellor : After all, I think we are using words that have no definite application unless we assume that the word "church" does mean an asso ciated body of Christians professing a particular doctrine. The Dean of Faculty : Yes, I do not dissent in the least from that, my Lord, but of course, when given to the Church, and when I suggest that the question is the conditions and limitations upon them, that^s given to the Church for the pur poses of the Church. Lord James of Hereford : That is it. The Dean of Faculty : And observe, my Lord, with this most important con dition, " and with all the powers belonging to that Church with regard to the ad ministration of the property." The Lord Chancellor: Yes, talis qualis. The Dean of Faculty : Under the powers of the Church, that is to say the person giving the money says, " I give it to the Church, and in giving it to the Church, I delegate the Church to deal with it according to the whole scope of the Church's power ; I put no limitation on the Church, and I do not, in giving it to the Church, say it is to be subject to any specific restriction." The Lord Chancellor: "With the whole powers of the Church," what do you mean by that ? You do not mean to say they could spend it as they please ? The Dean of Faculty : If it could be shown that was their power, I should say they could. Lord James of Hereford : That begs the whole question. The Dean of Faculty : If there was a term in their constitution, — if they could show that constituted as the Free Church they had specific power, of course the money given to the Church would be sub- SPEECH 339 ject to these powers. It is exactly analo gous to the question : what is the trast ? The Lord Chancellor : It is tlm question, I think, what is the trust ? The Dean of Faculty: Yes, except that it seems to arise more directly in the form of what are the conditions and limi tations under which the Church held pro perty rather than what is the trust, the property being given over, not upon a specific trast, but given over to the Church for the purposes of the Church. The Lord Chancellor: The word "specific" does not suggest any idea, to my mind ; either it is a trust property to be used in some way or another or it is not. If there is a trust, speaking of a Christian Church, I suppose it is to main tain the truth of their doctrines, the preaching of the Word, and administering the Sacraments. The Dean of Faculty: That is so, but supposing that the body had either an inherent power or an express power to do something, then the money — ; The Lord Chancellor : Cadit quwstio — if it had power to do it no question arises. The Dean of Faculty : That is what I meant to say. Lord Davey : If you can make out that the powers of the Free Church in clude a power to alter the particular destination of that property- The Dean of Faculty : I am going to address myself to that, and to endeavour to do that. Lord James of Hereford : If you could make out that this Church had power to preach the doctrines of the Church of Rome, and change its own doctrines to those, they could use the property for that purpose, but you have first to show that they have that power. The Dean of Faculty: That is the way in which the question arises, whether the Church holds this property under such conditions and limitations as to pre clude it doing what it has done in effect ing the union with the United Presby terian Church. Lord Davey : You put it in your former argument, "without losing its identity." The Dean of Faculty: I meant to 34o HOUSE say if it did something which made itself cease to exist, that is what I meant — if it did something which extinguished itself. Lord Davey : Converting itself into another Church. The Dean of Faculty : If it ceased to be the Church to which the money was given, unless it had power to do that. My Lord, the legal ground on which the claim of tho pursuer is made is stated very distinctly in the Pleas in Law, which your Lordship will find on page 115 of the Record in the middle of the page, " the pursuers and those adhering to them, being the Free Church of Scotland, have right to the property and funds held upon trust for behoof of said Church, and that to the exclusion of the defenders and all others, not members of the said Church, and decree ought accordingly to be pro nounced in terms of the first enumerated group of Declaratory conclusions of the summons, and of the first branch of the conclusion for interdict." If your Lord ships will allow me, I will just point out to remind your Lordships of it, that in so far as the Trust Deed is concerned, that is an Act of Assembly merely appointing its own nominees, and your Lordships have that in Print A, page 55, letter F. " The General Assembly resolve that the following Elders be appointed Trustees to hold any property which may be be queathed or conveyed to them for behoof of the Free Church " (the next sentence is immaterial), and then at the bottom, the last three lines, " and also such other places of worship as the parties interested may wish to convey to them in the terms of the report on the trust deed agreed to by the Assembly this day " ; so that whilst it is the fact that the property stands upon a trust it is merely the nominees of the Church itself for the purposes of convenient administration of the property. Now, my Lords, the fact which is said to have displaced the United Free Church from the position entitling it to hold this property is, as I have said, the union with the United Presbyterian Church in 1900, and what that is said to imply, and the grounds on which it is said that union has caused the United Free Church to no longer be the Free Church of Scotland, in OF LORDS the sense of holding the property which belongs to the Free Church, I think, are that by the union it has renounced what is called the Establishment principle, and it has also effected a change in its doc trine, and the contention is that that having been done in fact, both acts were beyond its powers. My answer, which I will endeavour to make to that, is that in the first place neither has been done in fact; and secondly, even if they have been done in fact, both are within the powers of the Church, and that accord ingly neither of these contentions afford any ground for saying that the United Free Church has ceased to be the Free Church of Scotland which owned the pro perty in dispute. My Lords, I agree with my learned friend Mr Johnston that there is nothing which could be termed a form of constitu tion of the Free Church, and, of coufte, if there had been any instrument which had been adopted by the parties as expres sive of their constitution, the question your Lordships would have had in the first instance to determine would have depended on the construction of that instrument. There was no such instru ment, and accordingly your Lordships have to discover from the circumstances under which what is called the Disruption of the Church in 1843 took place, and no doubt a consideration of the documents which were written and exchanged at that time, along with other circumstances what upon an examination of these must be held to be the rules, if any, which bound the Free Church with reference to the administration of its property. I also agree with my learned friend that a proper consideration of these questions is impossible without a clear apprehension of the circumstances under which the Dis ruption of 1843 took place ; and I propose in a few sentences to recall these to your Lordships, the more especially because I confess at some parts of my learned friend's argument, particularly upon the Statutes, not of the Church, but of the realm — the argument which he supported upon that — I should have thought he was representing the case rather of the succes sors of those who remained in the Estab lishment in 1843, than the case of those DEAN OF FACULTY'S SPEECH who left the Establishment in 1843, because I think my learned friend fre quently appeared to forget that it was in consequence of the interpretation put upon these Statutes, and the fetters and the limitations which that interpretation imposed upon the Evangelical Party in the Free Church, prior to 1843, that the disruption took place, and that the action which they then took was for the purpose of putting themselves in a position where they could within the Church act upon principles free from State control alto gether, in accordance with what they had previously maintained to be the rights of the Church even when within the Estab lishment. My Lords, the whole centre of the dis pute related to the power of the Church as a Church, which was really involved in the question — whether Christ was the Head of the Church in the sense that there was no temporal power whatever that could control His ministers in the administra tion of ecclesiastical affairs. The Evan gelical Party in the Church said the Church existed apart from the State altogether; it got into alliance with the State by a series of Statutes, the terms of which they maintain recognised the com plete independeuce of the Church in spiritual matters, and did not fetter or control them in any way, and that accord ingly they were entitled in regard to all spiritual or ecclesiastical matters to a supreme power of regulation of these, which, even while in the condition of being an Established Church, precluded, according to their interpretation of the Bible, which was their standard, any right upon the part of the State or the representatives of the State in a civil court in any way to interfere with or control them. My Lords, they contended that the Church all along had a complete legislative power, and was entitled to pass Statutes regulating its own affairs in ecclesiastical matters altogether irre spective of the State. They all along acknowledged that with regard to any civil matter they had no right of interfer ence at all, but that everything which was within the domain of spiritual matters they were absolutely supreme in. They were unsuccessful in that contention; 341 the view of the Courts of Law was that the Established Church accepted the position of Establishment on the terms specified in the Statutes of the realm. The Lord Chancellor : There was an express Statute dealing with the question. The Dean of Faculty : A long series of them, my Lord, and I propose to bring under your Lordship's notice the fact that they had a very formidable minority of very able Scotch lawyers acquainted with these matters in favour of their view in regard to these Statutes, but the law was wrong, because the majority decided the other way. The view, how ever, of the Evangelical Party with regard to their rights under those Statutes was upheld by Lord Moncrieff and by Lord Fullerton,and other most eminent lawyers ; but they were in the minority, and accordingly they having failed to secure in Courts of Law a recognition of the rights which they said continued under these Statutes, their position then was : "Now that it is declared what the con ditions of Establishment are, it is contrary to our principle, as we interpret the Bible, that we should longer remain within the Establishment, and we accord ingly leave the Establishment in order that we may hereafter be able to conduct the affairs of the Church upon a footing consistent with our contention as to what the position and rights of the Church are, and free from all the control which is implied in Statutory connection with the State." And, therefore, my Lords, the Free Church position is not based upon the interpretation which my learned friend gave of the Statutes affecting the Estabhshment, and which was the view undoubtedly taken by the Courts of Law ; their view is based upon what their contention was — their rights, notwith standing these Statutes — and I do not know that their position can be more succinctly brought out than by calling your attention to what the learned Judges said in one of the cases in which this question was sharply raised, where the Evangelical Party said : "We have exer cised our rights in the Church of calling ministers and having ministers of quoad 342 sacra parishes, which is entirely a spiritual matter, recognising them as our associates in Church matters," and the State, of course, decided that they had no such power. Lord James of Hereford : When you speak of the Evangelical Party, did that party become the Free Church Party ? The Dean of Faculty -. Yes, I think they were generally termed the Evan gelical Party. Lord James of Hereford : Before they separated ?- The Dean of Faculty : Yes, they were called for a time the Evangelical Party, and then after that I think they were called the Non-intrusion Party. Lord James of Hereford : And then they became the Free Church. The Lord Chancellor : " Non intrusion " was the word which made the distinction upon the point upon which they went out. The Dean of Faculty: One of the points, my Lord. The Lord Chancellor : Was it only one? The Dean of Faculty : Oh dear ! the case I am going to refer to had nothing to do with non-intrusion ; what they said was that they wanted to supply ordinances in certain districts, and they set up what they called quoad sacra churches, churches which were not to interfere in civil matters at all ; but they appointed ministers from certain churches to conduct the ministrations of the Church there within a certain area, and they said : " Now having set them up there, we recognise these men as members of the Presbytery, and we recognise them as members of the Assembly." Then an attack was made upon that procedure, and the patron of one of the parishes brought an action against the Church to restrain them from taking that action with regard to these quoad sacra churches. They had passed an Act of Assembly specifically regulating how all that should be done. The Lord Chancellor: But what I meant was that the Auchterarder Case raised the question, did it not, of the right of the lay patron ? The Dean of Faculty : Yes, my HOUSE OF LORDS Lord, there were about a dozen eases, and that was one of them. The Lord Chancellor : That was the one that everybody recognises the con troversy by. The Dean of Faculty : That came to this House, but the Chapel Case probably went as deeply to the root of the whole matter as anything. Of course, I am going to ask your Lordships' attention to the documents. The Lord Chancellor : Put me right if I am wrong. The only question that came to this House was the right of the lay patron, was it not ? The Dean of Faculty: That is so, my Lord ; the patron case was the only one that came here, but your Lordships wiU find in the Claim, which I am sorry to say I will have to ask your Lordships' attention to in detail The Lord Chancellor: I do not doubt that at all, Dean of Faculty. The Dean of Faculty: Your Lord ship is quite right that the Auchterarder Case was the one that came to this House, and that was the case of a patron insisting on his rights as a patron being fulfilled. I think it will assist in the construction of the documents if I bring under your Lordships' notice the Judgment which was given in what was well known as the Stewarton Case. There is a special re port of that. It is the case of Cunning- fiame v. The Presbytery of Irvine. It oc curred on the 20th January 1843, and it is regarded as a very important case. There was a special report of it — Bell's Special Report. The Lord Chancellor : What is the defender's name ? The Dean of Faculty : The Presby tery of Irvine. Lord Lindley : 1843 ? The Dean of Faculty: 1843. My Lord, I will have to refer to a number of Acts of Assembly which I am going to bring under your Lordships' notice, and I have extracts from some of these Judg ments in a separate Print; I think it would be convenient if your Lordships had it now. Mr Johnston : Before your Lordships deal with that, I must be heard to speak ' Print ; there as to the admission of this DEAN OF FACULTY'S are matters in it which I think ought not to be before your Lordships. My learned friend has submitted to me a copy of his new Print, and I should desire to say something about it. The Lord Chancellor: Let us see what we are about, Mr Johnston ; is your objection to the substance of the docu ment or to the mode of proof ? Mr_ Johnston : Yes, my Lord, my objection is to the substance of some of the documents included in it — the com petency of allowing them to be before this House. The Lord Chancellor : Are they in cluded in this Book we have here ? Mr Johnston : No ; it is a new Print which my learned friend now proposes to lay before you. The Dean of Faculty: I shall tell your Lordships exactly what they are ; I am sorry to raise any question, and I thought my learned friend was satisfied with the print. There are some Acts of Parliament The Lord Chancellor: I do not SPEECH 343 understand him to raise any question that you have not got the originals here ; it is only an objection to substance — that the thing itself is not admissible. Mr Johnston : I do not say they are not verbatim copies of what they assume to be. The Dean of Faculty: I will tell your Lordships what they are. First, there are Acts of Parliament; I do not think I shall have to trouble your Lord ships with that, because my learned friend has himself prepared a Print, which he handed to your Lordship. The Lord Chancellor: There is no question about these Acts being admissible in evidence; we are supposed to know them all. The Dean of Faculty : There are the Acts of Assembly. The Lord Chancellor: Let us see how far we can agree. Are they admitted to be the Acts of the Assembly of the Church? Mr Johnston : Yes. The Lord Chancellor: Very good; then it comes simply to the point of whether the Acts of the Assembly of the Church are evidence. Mr Johnston : There are a great many other documents which are not Acts of Assembly; so far as they are Acts of Assembly they are admissible. The Lord Chancellor : You do not object to the Acts of the Assembly ? Mr Johnston : No, my Lord, because they are part of the evidence in the case. The Dean of Faculty: I shall tell your Lordships what the others are. The Lord Chancellor : Will you tell us in order what the documents are that you propose to bring forward as evidence, and then we shall hear what Mr John ston's objection is. The Dean of Faculty : The Acts of Assembly are grouped together. The Lord Chancellor : As I under stand he does not object to that. The Dean of Faculty : We have got the whole of the Confession of Faith. The Lord Chancellor : That he cannot object to; I think I may say that at once. The Dean of Faculty : We have also printed the Second Book of Discipline. The Lord Chancellor: I do not think he can object to that, because I think Mr Johnston gave us copies of that. The Dean of Faculty: We have printed both Confessions — both Knox's Confession of 1560 and the Westminster. The Lord Chancellor : There is no objection to that. The Dean of Faculty: We have printed a document which is called "The Sum of Saving Knowledge," and which is referred to in the Free Church documents before your Lordships. The Lord Chancellor : It is referred to in their documents ? The Dean of Faculty : Yes. The Lord Chancellor : " Verba illata in esse videntur," we will admit that. The Dean of Faculty: We have printed the two Catechisms, the Larger and the Shorter. The Lord Chancellor : That we have also got from Mr Johnston. The Dean of Faculty: Then there are "Extracts from Articles of Religion of the Church of England " ; that may go out if he objects to that. The Lord Chancellor: I believe I HOUSE OF LORDS tlinn i r twice in the very old book and very difficult to get; 344 have quoted course of the argument ; I rather assumed that we had right to refer to them. The Dean of Faculty: Then there is an " Extract from ' Summary of Prin ciples ' of the United Presbyterian Church," one of the United Presbyterian Church's regular standards. Mr Johnston: I do not know any thing about that. The Dean of Faculty: "Extract from Book of Order of Presbyterian Church of England " ; I confess I do not intend to refer to that, but it is in the print. The Lord Chancellor: I should be a little curious to know what relation it has to this dispute : by the way is it objected to? Mr Johnston : Certainly, my Lord, it is. The Dean of Faculty: I am quite prepared to put that out if my learned friend objects to it ; it is in the print and that is why I tender it. Then there is an "Extract from Craig's Catechism, 1581 " : do you object to that? Mr Johnston : Yes. The Dean of Faculty : If my learned friend objects to it I will put it out. " Prefaces to and Extracts from Cate chism on the Principles and Constitution of the Free Church of Scotland " ; there is an Act of Assembly which is printed specifically approving of that and order ing it to be issued. Does my learned friend object to that? The Lord Chancellor : I suppose he would not object to that because he has admitted the Acts of Assembly. The Dean of Faculty: Then there are extracts from Judges' Opinions; I think it would be convenient to your Lordships to have that. The Lord Chancellor : In what cases ? The Dean of Faculty : In the Stewar- ton Case, the Auchterarder case, and in Cruickshank v. Gordon. The Lord Chancellor : That is only a convenient form to which we are entitled. The Dean of Faculty: Then there are extracts from three books on Church Law ; the one is Stewart of Pardovan, a I should doubt if it is in your Lordships' library. Then there is an extract from Dr HUl's book on Scotch Church Law, and extracts from Dr Cook's book on Church Law. The Lord Chancellor: These are not questions of evidence ; they are legal authorities. Mr Johnston, do you think it worth while to persist in your objec tions, because a good many of these things seem to me to be perfectly harm less. Mr Johnston : I desire, my Lord, not to be misunderstood in this matter ; the result of my objections has been to re move about sixty pages of improper matter from the Print, and as to those that remain the objection which I take to them is — to several of them — their partiality ; they are merely extracts. The Lord Chancellor : Are they treatises ? Mr -Johnston : They are extracts, for instance, even from the Shorter Cate chism ; they are partial and ex parte extracts. The Lord Chancellor: Is not that corrected by our having the entire Cate chism ? Mr Johnston: I quite concede that, my Lord. The Lord Chancellor: When you come to reply you can say, "The Dean of Faculty has only quoted these pieces, and now look at this"; I do not invite you to do that, but you could do that. Lord Macnaghten : I think the whole of the Catechisms were before us on the last occasion in the Authorised Standards of the Free Church. Mr Johnston : If they are taken to be ex parte extracts I do not object. The Lord Chancellor: We wUl re member that you said they were ex parte extracts. Mr Johnston : I understand your last pages from 219 are entirely out. The Dean of Faculty : We were so accommodating to my learned friend, but I do not in the least admit that they were incompetent; every word of them was taken from the Assembly Proceed ings, but my learned friend thought they DEAN OF FACULTY'S SPEECH 345 Lord, that, on account of the objections that have been taken, the Prints are being split up and they will not be ready for about an hour, but we could have them sent to your Lordships if you think it necessary. The Lord Chancellor: I think we can wait. Adjourned to Thursday next, at half-past 10 o'clock. were objectionable and we have put them out. The Lord Chancellor: Very well, we have got rid of all the objections. The Dean of Faculty: I think we might now give your Lordships the print. The Lord Chancellor: Yes, you can let us have the print by all means. The Dean of Faculty : I am told, my 34& HOUSE OF LORDS FIFTH DAY. THURSDAY, 16th JUNE 1904. The Lord Chancellor: You promised ns an increase of our theological hterature, Dean of Faculty, supplements we will call them. The Dean of Faculty: Yes, my Lord, we have got the Print ready to hand to your Lordships. My Lords, at the rising of the House on Tuesday, I was asking your Lordships' attention to the circumstances under which the party which became the Free Church left the Establishment. Those circumstances humbly appear to me to be of vital importance because of the fact that the Free Church — the party who left the Establishment becoming the Free Church, apart from the Establishment — their view of their own position was that they were the Church of Scotland free. That was their own theory of their position. The Lord Chancellor : I think you are agreed about that. The Dean of Faculty: Yes, — that they were not a new Church, but that they had shaken off the fetters — what they considered to have been the fetters — of Establishment and had become the Church of Scotland free; they called themselves the Free Church, but I think, in the language of the time, they described themselves as the Church of Scotland free. The Lord Chancellor-. Your oppo nent, I think, made the same observation ; you agree as to that ? The Dean of Faculty -. And accord ingly, my Lord, they carried with them all the Standards of the Church, with this difference — that being no longer connected with the State of course they dropped the Statutes, as they were no longer a State Church, and took the Standards of the Church of Scotland, as they expressly stated, "as heretofore understood." My learned friend of course conceded The Lord Chancellor: I think there may be a httle fallacy lurking in that, and one must see exactly what you mean. Take one example : they did not drop the Confession of Faith, but on the contrary they recognised that as the charter of their doctrine. The Dean of Faculty: Yes, my Lord, but by virtue of their own adoption of it. The Lord Chancellor : Certainly ; I agree. The Dean of Faculty : They entirely dropped the Confession of Faith as having any statutory status in their Church. The Lord Chancellor : Without any statutory status ; that I agree to. The Dean of Faculty : That is what I meant. The Lord Chancellor : But therein I think there is again fallacy lurking; you say " as heretofore understood," but I think you must take it that they adopted the Confession of Faith as it stood. The Dean of Faculty : I am afraid, my Lord, I can hardly concede that, because at the time the Act of the Assem bly adopting it specifically modified it. The Lord Chancellor : What I mean is, take it in the simplest form ; suppose a person said : "I want to give such and such property to such and such persons so long as they abide by the Confession of Faith," that would be agood gift, I suppose. The Dean of Faculty: Quite. The Lord Chancellor: Then those who had to construe that gift and the conditions upon which it was given, would have, to look at the language of the instru ment and the thing referred to, and give it their own construction, would they not? The Dean of Faculty: That is so, my Lord ; I do not dispute that. The Lord Chancellor: Then there is no difference between us. DEAN OF The Dean of Faculty: Certainly the view of the Church was that the Confession of Faith became part — I do not think it ever was the foundation — of their faith, because they rested their faith upon the Scriptures ; but it became part of their faith in the sense of the Formulas which have been read, simply by the efficacy of their own Act as a Church. The Lord Chancellor: How it be came so does not appear to me to be material, but that was the thing to which they referred. The Dean of Faculty : Yes, and in doing that they said : " We take the Confession of Faith subject to certain qualifications which we declare that we hereby attach to them." I think I shall show your Lordship The Lord Chancellor: Therein, I think, lies the fallacy. The Dean of Faculty : I think I can satisfy your Lordship that that is so on referring to the Act of the Assembly by which they adopted it. Lord Davey : A Subordinate Standard may be just as much one of the distinctive doctrines or tenets which form the bond of union between an association of Chris tians as a Primary Standard. The Dean of Faculty: It may be so ; I do not say that that is not so, — always subject to the power of change. The Lord Chancellor: That is another matter altogether — a totally different region of inquiry. Lord Davey: That might be itself a distinctive tenet. The Dean of Faculty: Quite, but of course, my Lord, it seems to me that the words "as heretofore understood" really lie at the root of the case. The party who became the Free Church when they were in the Established Church always maintained, in opposition to the moderate party, that the Church did not owe its existence to any extent to the State; that the Church had adopted the original Confession of Faith as a Church, and that the Statutes which had been passed from time to time recog nising the Establishment, by their terms left the Church absolutely free in spiritual matters. The opposite party contended (and the courts of law ultimately sus- FACULTY'S SPEECH 347 tained their view) that the Statutes defined what were the rights of the Church, and that whenever any question arose in regard to the title of the Church to do a particular thing, then that had to be determined by an examination of the Public Statutes which had established the Church, and there was therefore that opposite current of thought running through the Church for a long period of time, that the Church was a Church by its own inherent power as a member of the Body of Christ; whereas the other view was that the Church was an institution sanctioned by law, established by Statute, and the limits of the powers of which had to be determined by a construction of the Statutes. And ac cordingly, that was what led ultimately — in the form of specific acts by the majority — that was what led to the Dis ruption. The two things probably — no doubt the two things — which were the immediate cause of the Disruption — or which rather caused the Church to get into conflict with the Civil Courts, were the Chapel Act and the Veto Act. Your Lordships have been referred to them; I do not think they have been before your Lordships, but they are in the Print which is now being handed in, and which I understand your Lordships have. The Chapel Act is upon that Print, page 49, and the Veto Act upon the following page. Your Lordships will find it was passed on May 31st, 1834; it is in the middle of page 49 and is headed : " De claratory Enactment as to Chapels-of-Ease," " The General Assembly of the Church of Scotland, without a vote, approve of the Report of their Committee, and did, and hereby do, enact and declare, that all minis ters already inducted and settled, or who shall be hereafter inducted and settled as ministers of Chapels-of-Ease" (that means Chapels which were not Churches by law of a Parish) "presently erected and established, or which shall be here after erected and established, in terms of the Act anent Chapels-of-Ease, of 1798, or prior thereto, by authority of the General Assembly or by the Presbyteries of the bounds are and shall be, constituent members of the Presbyteries and Synods within whose bounds the said Chapels 348 HOUSE OF LORDS be respectively situated, bad to be ref erred to the power conferred are, or shall and eligible to sit in the General As sembly ; and shall enjoy every privilege as fully and freely and with equal powers with Parish Ministers of this Church; hereby enjoining and requiring all Pres byteries, Synods, Church Courts, and Judicatories within whose bounds the said Chapels are, or shall be situated, to receive and enrol the said ministers as members thereof, and put them in all respects on a footing of Presbyterian equality with the Parish Ministers of this Church; giving, granting, and com mitting to the said ministers the hke powers and authority and privileges now pertaining to ministers of this Church, within their respective bounds : And further, the General Assembly did, and hereby do, remit to the Presbyteries within whose bounds the said Chapels now established are situated, to allot and assign to each of the said Chapels a territorial district and to erect such districts into separate parishes quoad sacra, and to disjoin the same quoad sacra from the parishes whereof they at present form parts ; and also to take the neces sary measures for selecting and ordaining, according to the rules of the Church, for each of the said districts so to be erected, a body of elders, who, with the said ministers respectively, may exercise sessional jurisdiction within the same : And the Assembly instruct Presbyteries to be cautious not to assign a more populous district than it seems possible to attend to " ; so that the Church there exercised what they held to be their power as a Church of setting aside a district to a particular person, where he was to discharge the duties of a minister ; with regard to that, and with respect to his appointment to that district by the Assembly, he was to have the right through their call to take his place in the Courts of the Church, as I shall have to show your Lordships, their theory being that the whole of the existing arrange ments of the Church with regard to Presbytery, Synod, and Assembly were all historically the act of the Church itself and subsequently recognised by the Statutes which established the Church. The other party maintained that all that by Statute upon the Church. Then, my Lords, before showing your Lordships what followed upon this, I may just ask your Lordships' attention to the next Act, which is the weU-known Veto Act upon page 50, letter D : " The General Assembly declare, That it is a fundamental law of this Church, that no pastor shall be intruded on any congre gation contrary to the will of the people ; and, in order that this principle may be carried into full effect, the General Assembly, with the consent of a majority of the Presbyteries of this Church, declare, enact, and ordain, That it shall be an instruction to Presbyteries, that if, at the moderating in a call to a vacant pastoral charge, the major part of the male heads of families, members of the vacant congregation, and in full com munion with the Church, shall disapprove of the person in whose favour the call is proposed to be moderated in, such dis approval shall be deemed sufficient ground for the Presbytery rejecting such person, and that he shall be rejected accordingly, and due notice thereof forthwith given to all concerned ; but that, if the major part of the said heads of families shall not disapprove of such person to be their pastor, the Presbytery shall proceed with the settlement, according to the rules of the Church : And farther declare, that no person shall be held to be entitled to dis approve as aforesaid, who shall refuse, if required, solemnly to declare, in pres ence of the Presbytery, that he is actuated by no factious or malicious motive, but solely by a conscientious regard to the spiritual interests of himself or the congre gation." The Lord Chancellor: I suppose the word " settlement " there means what we should call induction. The Dean of Faculty: That is so. There they asserted the right on the part of the people of every congregation to reject a presentee, and the Church claimed that right upon the ground that, as they held, it was part which necessarily fol lowed from Christ being Head of the Church, and, there being no civil power in the Church apart from Him, that the Church should have the power within DEAN OF FACULTY'S SPEECH itself of regulating matters of that kind, and that the civil law could not interfere in such a matter at all. Lord James of Hereford : Was there general agreement about this Veto Act, or was it a matter of party division in the Church ? The Dean of Faculty: It went through the Barrier Act by a majority, I believe; no doubt the party who re mained in the Church disapproved of this. Lord James of Hereford: This is the Free Church view. The Dean of Faculty: This is the Free Church view; that is why I am bringing these matters forward; I want to get your Lordships in possession of what was the attitude of the party who became the Free Church party when they left the Church, because my proposition is to be that that is the basis upon which they settled themselves as a Free Church. Then, my Lords, as another document which is a little bit before the Disruption, and throwing a light upon the attitude of parties, I would ask your Lordships to read the resolution of 1838, which is the next document upon page 51: "May 23, 1838. Resolution anent the Indepen dent Jurisdiction of the Church of Scot land. The General Assembly having heard and considered the Overtures on the Independent Jurisdiction of the Church of Scotland, agreed, by a majority, to the foUowing Resolution " (of course, the majority was the Free Church party) : " ' That the General Assembly of the Church of Scotland, while they unquali fiedly acknowledge the exclusive jurisdic tion of the Civil Courts in regard to the civil rights and emoluments secured by law to the Church, and ministers thereof, and will ever give and inculcate implicit obedience to their decisions thereanent, do resolve, That, as is declared in the Confession of Faith of this National Established Church, "The Lord Jesus, as King and Head of His Church, hath therein appointed a government in the hand of church-officers, distinct from the civil magistrate " ; and that in all matters touching the doctrine, government, and discipline of this Church, her judicatories possess an exclusive jurisdiction, founded on the Word of God, "which power 349 ecclesiastical " (in the words of the Second Book of Discipline), "flows immediately from God, and the Mediator, Jesus Christ, and is spiritual, not having a tem poral head on earth, but only Christ, the only Spiritual King and Governor of His Kirk " ; and they do further resolve, that this spiritual jurisdiction, and the supremacy and sole-Headship of the Lord Jesus Christ, on which it depends, they will assert, and at all hazards defend, by the help and blessing of that Great God who, in the days of old, enabled their fathers, amid manifold persecutions, to maintain a testimony, even to the death, for Christ's Kingdom and crown; and, finally, that they will firmly enforce submission to the same upon the office bearers and members of this Church, by the execution of her laws, in the exercise of the ecclesiastical authority wherewith they are invested.' " So that that formu lated in the Assembly their position of absolute spiritual independence, and that that would be laid upon every person, — theacceptance of that would be laid upon all office-bearers and members of the Church. Lord James of Hereford : Again, we may take it this was a point of division — this is the Free Church declaration. The ' Dean of Faculty : By the majority ; they were in a majority, my Lord, at that time in the Established Church. Lord James of Hereford : It is simply a matter of history ; what was taking place between 1835, when the original war seems to have been declared, and 1843. The Dean of Faculty: I am going to give your Lordship a note of all the cases which occurred. The documents which I have now read laid the train, so to speak, for the litigation which extended over several years, and which then led — when the decision was against the majority of the Church — them to say : " Very well, it now being declared that the law is different from what we have contended, we cannot remain in the Establishment of which that is the law, and accordingly we leave the Establishment for the pur pose of being" (as they calculated) "a Church free," that is to say, free to carry out the principles for which they had con- 35° HOUSE OF tended at and previous to the time of the Disruption. Then, my Lords, I think it will be con venient — I am certainly not going to take them in detail — that your Lordships, in case you should desire to look at them, should have a note of the cases which did occur in regard to this matter. I think, instead of giving them in the exact order of date, it would be more convenient if I gave the note of them to your Lordships, grouped according to their names, because they were well known under certain well- known names — the Auchterarder Case, for instance. The Lord Chief Justice: Are they not all enumerated at page 35 of the Protest? The Dean of Faculty : I am not quite sure that they are, my Lord ; they may be so, but if your Lordships would allow me I should like, just in a sentence, to point out what was raised and decided in each case. I can do it in a sentence with regard to each case. The first Auchterarder Case was the Earl ofKinnouil v. The Presbytery of Auchterarder, 27th February 1837, reported in 16 Shaw (that is the first Scotch Series), 661. That was an action in which the patron and pre sentee were the pursuers, and the Presby tery of Auchterarder were the defenders. The question there was whether, by re jecting the presentee without making trial of his qualifications, which had been done (the Church had rejected the presentee) exclusively in respect of the veto of the people, not in respect of anything immoral about the man, but simply in respect of the veto — whether the Presbytery had violated the patrimonial rights of the pursuers, that is to say, of the patron. It was held that the Presbytery in doing that had acted illegally — in violation of their duty. That was the decision in the first Auchterarder Case. Then, in the second Auchterarder Csae, there was a further development by that time. The Lord Chancellor: The same parties, I suppose. The Dean of Faculty : No, my Lord, it was against Ferguson ; well, it was against a majority of the Presbytery. The Lord Chancellor : But dealing with the same case. LORDS The Dean of Faculty : No, it was a new action altogether. The Lord Chancellor : Yes, I know. The Dean of Faculty : It was the same patron. The Lord Chancellor: I said the same case ; I mean it had reference to the same dispute between the same congrega tion and Church. The Dean of Faculty : Yes, a further stage of it when it came to be a question, — it involved the question of the power of the Civil Court to issue an order upon the Church Court to do a particular thing. The Lord Chancellor : That is what I mean. Mr Johnston : It is right your Lord ship should know that in the interim the first Case had come to this House and had been decided here. The Dean of Faculty: This is the Case that was decided here, I think. Mr Johnston : No, the first one. The Dean of Faculty: My learned friend may be right. Mr Johnston : March 5, 1841, follows the House of Lords Decision. The Dean of Faculty : I have not a note of the decision of the House of Lords ; it was affirming the Court of Session at any rate. Mr Johnston : It was ; it is in Maclean and Robertson's Appeals, 230. The Dean of Faculty : No, that is the second Auchterarder Case — I have a note, "Second Auchterarder Case, 5 March, 1841, reported in the third volume of Dunlop, page 778." Lord Davey : What is the name of it? The Dean of Faculty: The Earl oj Kinnoull v. Ferguson. Lord Davey : That is the first one.. The Dean of Faculty : No, the Earl of Kinnoull was versus the Presbytery of Auchterarder in the first case. The Lord Chancellor: 1st March 1841. The Dean of Faculty : The Court of Session having granted the decree that the Presbytery were bound to take the presentee upon trial, the Presbytery then, instead of fulfilling that, came to a resolu tion, instead of fulfilling the decree to refer the matter simpliciter to the As- DEAN OF sembly, in order to find out what it was their duty to do as an inferior Church Court. In this case it was held that after the decree of the Court of Session it was not competent for the Presbytery to re fuse or decline to take the presentee upon trial ; that the resolution not to proceed with his trial was a ground of damage in law at his instance and that of the patron against the individual members of the majority of the Presbytery. So that the Presbytery were in this position, that there had been the resolution of 1838 asserting complete spiritual independence as the judgment of the Assembly, and also the Veto Act passed by the Assembly, and then there was now a decree by the Civil Court ordaining them to do what, of course, was a duty within the Church, namely, to take a particular person on trial and to admit him. The position they were in was this : " Well, if the Church's view as to spiritual independence, and the Church's view as to the Veto Act is well founded, of course we as churchmen should obey the Church. On the other hand, the CivU Court has given a decree ordaining us to take this person upon trial," and they therefore referred the matter to the Assembly, and that gave rise to this case. Well, it was held, as I have said, that, after the decree of the Court of Session, it was not competent for the Presbytery to refuse or decline to take a presentee upon trial, and that the resolution not to proceed gave an action of damages at law against the individuals who had refused to proceed. Then, my Lord, the third Auchterarder Case was the Earl of Kinnoull v. Fer guson. The Lord Chancellor: That is the same name again. The Dean of Faculty: Yes, 10th March 1843, 5 Dunlop, 1010. That was again an action by the same parties against the Presbytery of Auchterarder. The Lord Chancellor: That is the case which came to this House, is it not? The Dean of Faculty : No, my Lord ; I hesitated to give your Lordship the note until it was cleared up. I have been under the impression that it was the second case. FACULTY'S SPEECH 351 The Lord Chancellor: It does not matter. The Dean of Faculty : Maclean and Robertson is the report which contains the Auchterarder Case in this House, whether it is the first or second; Mac lean and Robertson's Reports Lord Davey: In Mr Taylor Innes' Book it was the first case that came to this Court. The Dean of Faculty: Probably it is. I cannot tax my memory. I think probably my learned friend is quite accu rate. I do not think it is of any materi ality ; the judgment was affirmed. The Lord Chancellor: It was only for the sake of my note I asked the question. The Dean of Faculty: Your Lord ship will find the case in Maclean and Robertson's Scotch Reports. Lord Davey : It was affirmed on 3rd May 1839, and reported in Maclean and Robertson, 220. The Dean of Faculty : That is the report, my Lord ; I was not sure whether it was the first or second case. In this third case, the majority of the Presbytery having refused to take the presentee upon trial, although the Civil Court had found that it was not within their competency to refuse, it was held that an action by the patron and presentee to have it de clared that the proceedings of the minority of the Presbytery who were willing to obey the law should be valid and suffi cient, and that interdict against the inter ference of the majority was competent, thereby very sharply raising the question of the jurisdiction of the Civil Court within the Church, because the minority of the Presbytery being willing to carry out the decree, the majority holding it was their duty to carry out the Church law, then this was a decree by the Civil Court making the decision of the minority of the Presbytery valid and sufficient as a Church decision, and interdicting the majority of the Presbytery from interfer ing with the decision of the minority being carried out. Then the other group of cases which I shall now give to your Lordship, are the cases which are known as the Strath- bogie Cases. The first Strathbogie Case 352 HOUSE OF LORDS is dated 14th February 1840; it is The Presbytery of Strathbogie v. the Minority of the Presbytery, 14th February 1840, 2 Dunlop, 587. The Commission of Assembly (which is the Board of As sembly made under the authority of the Assembly, with the same power as the General Assembly), had brought before them the position of matters in the Presbytery of Strathbogie in consequence of a portion of the Presbytery having complied with the Civil law in opposi tion to what the Assembly held to be the Church law, and they considered they were bound to obey the Church law in matters spiritual. The majority of the Presbytery had done that ; the minority had not; and the Commission of Assembly, in consequence of that, suspended from the office of the ministry the majority of the Presbytery who had passed a resolution to induct the presentee in defiance of the Veto Act. The majority of the Presbytery had said : " Very well, we will ignore the Veto Act, and induct the presentee." The Assembly said : " That is absolutely in defiance of Church law," and they accordingly, as an act of discipline, suspended them and instructed the remanant members of the Assembly to supply services in the parishes of the ministers whom they had suspended. The Lord Chancellor: Whom had they suspended ? The Dean of Faculty: They sus pended the majority of the Presbytery who had decided to induct the presentee in defiance of the Veto Act. The Assembly then said: "Well, that is absolutely in defiance of Church law, and accordingly it is an offence," and they suspended them and instructed the minority to attend to the preaching and other duties of the ministers in the parishes of the majority, and they ap pointed certain other ministers to preach in their churches. The majority of the Presbytery then, who were in favour of induction, in spite of the veto presented a Note of Suspension and Interdict to interdict the minority from acting on those instructions ; the minority had the instructions of the Assembly to treat the majority as suspended and to perform the ministerial duties in their parishes ; then the majority applied to the Civil Court to interdict the minority from complying with the order of the General Assembly of the Church. Then, my Lord, the second Strathbogie Case is Edwards v Cruickshank, 18th December 1840, 2 Dunlop, 282. In that case the pursuer of the action was a presentee and the defenders were a majority of the Presbytery — certain per sons who were a majority of the Presbytery. The presentee raised an action to have the Presbytery ordained to receive and admit him as minister of the parish; the majority of the Presbytery admitted that they could not resist the decree. In the action the majority admitted that they could not resist the decree; then a motion was made for the pursuer against the Presbytery and the consent ing majority of the Presbytery, which was opposed by the minority on the ground that the grant of it would pre judge their pleas in defence, which were, inter alia, that the pursuer was a mere presentee, he had no title to maintain the action, and that the Court had no juris diction to ordain a Presbytery to admit and receive a minister; that the alleged majority, having been suspended by the Church Court, had no power to admit and receive or to perform any of the other functions of the Presbytery; so that you had there the majority of the Presbytery, who were wUling to induct a presentee in spite of the veto, joining hands, so to speak, with the presentee, and the minority resisting that on the ground that there was no jurisdiction in the CivU Court to give such an order; but the Court gave decree against the Presbytery and the consenting majority, thereby affirming their title to give such a decree. Then, my Lord, the next third Strathbogie Case I cite is 10th March, 1843, Cruickshank v. Gordon, 5 Dunlop, 909. The pursuers of that action were a majority of the mem bers of the Presbytery of Strathbogie, — those who were willing to induct the presentee, — and the defenders were the Moderator and Clerks of the General Assembly. The question there was, the majority of the Presbytery brought an action DEAN OF FACULTY'S SPEECH against the General Assembly to have the Decree of Suspension and Deposi tion by the General Assembly of their ministers reduced. The question was whether there should be a reduc tion of the sentence of the General Assembly deposing from the office of the minister the pursuers, and declaring that the sentences were not within the competency of the Assem bly, raising in the sharpest possible way the competing jurisdictions of the two Courts. The Civil Court held that the Court had jurisdiction to entertain the action, in short, had jurisdiction to entertain the action to set aside the Deere of Deposi tion of a minister by the General Assembly. My Lord, I have only three other cases to mention to your Lordship. The case of Culsalmond, Middleton v. Anderson, 10th March 1842, reported in 4 Dunlop, 957. The pursuers there were the pre sentee, patron, and majority of the Pres bytery, and the defenders were certain parishioners, who had objected to the presentee, and the minority of the Pres bytery. In that case the presentee had been admitted by the Presbytery and the call sustained in face of dissents and com plaints by the minority of the Presbytery, and objections tendered in terms of the Veto Act, and a petition was presented against this to the General Assembly. The Commission of the Assembly inter dicted the presentee (who had been thus inducted in defiance of the Veto Act) from officiating or administering ordin ances in the parish. Then the other party came to the Civil Court to get an interdict against the General Assembly issuing any such prohibition, and the interdict was granted. Lord Davey : What was the name of this case. The Dean of Faculty : Middleton v. Anderson, my Lord ; it is called the Cul salmond Case. Then, my Lord, the next case, not necessarily in date, because I have grouped these cases according to the names, was the case which related to the quoad sacra church matter — not the Veto Act at all ; that is called the Stewarton Case, Cun- 353 ningham and Others v. The Presbytery qf Irvine, 20th January 1843, 5 Dunlop, 427, but your Lordships will get very little assistance from that report because it is a very short one. There was a special report of the case issued; it was regarded as a very important case at that time, and there was a volume containing a full report of it, and accordingly, as the ordinary report does not contain almost any part of the learned Judges' Opinions, in this Print we have given to your Lord ships there are certain extracts from the Judges' Opinions which I shall call atten tion to immediately. My Lord, in that case the pursuers of the action were the patron and heritors and certain parish ioners of the Parish of Irvine, and the defenders were the Presbytery of Irvine. A Mr Cleland had been appointed by the Assembly to act in one of those quoad sacra churches which I have previously mentioned, and in carrying out the Chapels Act, in accordance with the Chapels Act, he was admitted by the Assembly to the position of a member of the Church Courts ; he took his seat in the Presbytery and in the Synod, and would have been eligible to act as a com missioner of the General Assembly. This action was brought by the patron and heritors for the purpose of testing the legality of the Chapels Act, and they applied for interdict against Mr Cleland, who had been admitted by the Presbytery to the rights and status of a member of the Presbytery, from sitting and acting as a member of the Presbytery, and the Civil Courts gave the Interdict upon the ground that the Chapels Act was ultra vires of the Assembly. I shall immediately afterwards direct your attention to some of the Judgments in that. Then the next case, and the only other one I shall trouble your Lordships with as giving the history of the contest at this time, is what is known as the Lethendy Case, Clark v. Stirling, 14th June 1839, 1 Dunlop, 955. The pursuer of that action was a presentee, and the defenders were the Presbytery of Dun- keld. The presentee, who had been re jected by the Presbytery in terms of the Veto Act, obtained an interim Interdict from the Civil Court against another 354 HOUSE OF LORDS presentee, who had been accepted under the Veto Act^ prohibiting him from pre senting himseU for induction to the office of minister in the parish, and for pro hibiting the Presbytery from inducting this second presentee or proceeding with his settlement as minister of the parish. The Presbytery, notwithstanding that, proceeded to ordain and admit the pre sentee who had been elected. The Lord Chancellor: The rival presentee. The Dean of Faculty: The second presentee ; then the first presentee pre sented a Petition and Complaint against the second presentee, the man who had been elected under the Veto Act, and also against those members of the Pres bytery who had ordained and admitted him, praying the Court to find that they had been guilty of breach of interdict and contempt of the authority of the Court. It was held that the respondents had been guilty of a breach of interdict and of a contempt of the authority of the Court. So that these cases brought out in the sharpest manner the conflict between the Church Court and the Civil Court with regard to the point whether the claim of the Church to spiritual independence, in the sense in which they used the term, was well-founded or not. The Church said: "We are spiritually independent; all our proceedings in the matter of settling ministers, trying the presentee, deposing a man who has committed a breach of the law, and all that sort of thing, is entirely and exclusively within the jurisdiction of the Church Courts, and the Civil Courts have nothing to do with it," and not only as matter of statutory arrangement, but they say : " Our claim to that is founded upon our view of the Word of God, and nothing can be done which can possibly defeat it or which we can recognise as by any possibility defeat ing it." My Lords, of course this sequence of cases made it absolutely clear that any such claim as that party was putting for ward for absolute independence within their own sphere, was quite inconsistent with the position of the Established Church, and accordingly that party had to consider their position, and the con clusion they came to was : " We cannot renounce that which we regard as a fundamental principle of the Church, namely, that the Church has no earthly governor at all; that the spiritual juris diction is derived from Christ and cannot be delegated by the Church, and we intend to maintain that ; the only way we can main tain it is by leaving the Establishment." Now, my Lords, I refer to those cases, not in the least, of course, for the purpose of suggesting that the cases were not well decided (that has nothing to do with the case at all), but for the purpose of bringing out the attitude adopted by the party who formed the Free Church at that time, and for the purpose of demonstrating, as I hope to be able to do, that their attitude at that time (and which they carried with them into the Free Church) was an attitude of such complete spiritual independence and power to regulate their own affairs as will amply cover and warrant everything which has been done since by the Free Church. Lord James of Hereford: Would you go to the extent of saying that at the time of the Disruption the Free Church views were the same on this subject as those of the United Presby terian Church are now? The Dean of Faculty: Your Lord ship is asking me to go into a point which I shall have to deal with in detaU. Lord James of Hereford: If you please. The Dean of Faculty: I may answer your Lordship in a sentence. Lord James of Hereford: Just as you like, Mr Dean. The Dean of Faculty : I do not for a moment suggest that the Free Church left the Establishment from any dislike of Establishment. Lord James of Hereford : No. The Dean of Faculty: That is not their ground at all; they said: "If we could get an estabhshment in which we should be absolutely free, where we should have spiritual independence in the sense for which we contend, then the mere fact that the civil magistrate aids the Church has no objection in it, so far as we can see " ; but I am certainly going to main tain that, while that was their state of DEAN OF FACULTY'S SPEECH 355 The Dean of Faculty : Becausethere was nothing in the form of an instrument professing within its limits to define that constitution, and, above all, in the docu ments which they had, and in referring to the Established Church and the tenets and views entertained then, they always qualified by saying, "as heretofore under stood " ; that is to say : " We carry into the new Church the views which we took with regard to the constitution of the Established Church whilst we were in it, and which have been found to be erroneous." The Lord Chancellor : That is a little vague, I think; however, I have pointed out what appears to me to be a necessary part of your argument, and I do not say any more. Lord Davey : I should like to ask you, Mr Dean, — we had a number of books handed to us at the end of the first argument, I think by your clients, but I am not sure ; I want to know how far we are to take those books as authoritative. The Dean of Faculty : Which books, may I ask ? Lord Davey : For instance, I have in my hand a book which was given to me either by you or your opponent, called, " The Jubilee of the United Presbyterian Church." The Dean of Faculty : It was given by my learned friend. Mr Johnston : That is a Number of Process; it is not a question of being- handed to your Lordships ; that is one of the documents which is part of the proof in the case. Lord Davey: Then I may treat this as in? Mr Johnston : Lord Davey: mind, it was merely an opinion, and never at any time made the basis upon which their Church was founded. And on the other hand, with regard to the United Presbyterian Church, the United Presby terian Church never at any time made voluntaryism, in the sense in which it is being used in this case, a part of the basis of their Church ; they treated that through out as an open question, and I do not in the least dispute that the preponderance of individual opinion within the United Presbyterian Church was against Estab lishment, but only as matter of opinion, and not as matter of doctrine or faith at all. The Lord Chancellor : You know, I should like to call your attention to this, because it is a matter which requires treatment. What you have been telling us is very interesting and valuable as part of the history, and, taken in general, I have no doubt it is quite accurate ; but when we are dealing hereafter with the question of those who were the founders of this trust and called themselves the Free Church of Scotland, one must look carefully to see if there is any conflict be tween what you attribute to the opinions, as you call them, of those who were what you called by way of description the Free Church before the Disruption; we must take for the purpose of guiding us as to the trust which was in fact established, the opinions and statements made at the time of the settlement, and not this his torical review of what that party, speak ing generally, might have said or thought. The Dean of Faculty : My Lord, if I may say so, I quite appreciate what your Lordship has said to me, but what I am now saying is singularly pertinent to the case which has been put. THE Lord Chancellor : I am not denying its pertinence, but you may carry it too far ; take this — you will see what I mean in a moment — ¦ — ¦ The Dean of Faculty: What we feel, my Lord, is this : that it is impos sible to say (my learned friend stated it) what really, to use a short phrase, is the constitution of the Free Church without knowing the circumstances under which they hived off. The Lord Chancellor: So far, I quite agree. Certainly. I want to point out to the Dean, with reference to what he has said, that this pamphlet, the greater part of which I have read, purports to be written on the Jubilee of the United Presbyterian Church, in the light of its historical testimony as to the proper re lations between the Church and the State, and it begins by saying, not that the Establishment principle was an open question, but that the United Presby terian Church maintains as one of its most distinctive principles that it is not 356 HOUSE OF LORDS the province of the State to establish and endow the Christian Church; and then, after referring further to that, he says : "the position they assumed ultimately made it easy and inevitable for their suc cessors to develop a clearer and fuller theory, now held, as to the un-Scriptural- ness and injustice of civil establishments of religion." That is quite incidental. The Dean of Faculty : It is difficult to deal in a sentence with such a large chapter of the case as that ; I have got, when I come to the proper place, to ex amine the position. Lord Davey : I was rather struck by your saying that the United Presbyterian Church dealt with it as an open question. The Dean of Faculty: What I am pointing to is this : the authoritative documents of the United Presbyterian Church, the chief of which is the " Basis of Union" between the two Churches that formed the United Presbyterian Church, make it perfectly plain that Establishment or Disestablishment is not to any extent part of the basis upon which the Church was formed. Lord Davey : That is apart from the point you are arguing now, and I would rather not interrupt you. The Dean of Faculty : I think if your Lordship would allow me to delay it I will have to examine that part of the case. Would your Lordships allow me to direct your attention to the Opinions of the Judges in the Stewarton Case? Your Lordships will find it in the new Print at page 173. I think it brings out very plainly what was the attitude of the Free Church at the time that those cases were in Court. Lord Davey : This was on the eve of the Disruption. The Dean of Faculty: This is the Chapel Case, the Case in which it was held that the Assembly had no power to give the minister of a quoad sacra parish church, which they had set up, the status of a member of the Church Courts. The first Opinion given is an extract from the Opinion of the Lord Justice Clerk. The Lord Chancellor : Who was Lord Justice Clerk then ? The Dean of Faculty : Lord Justice Clerk Hope, who was against the Free Church. The other two Opinions which follow are Opinions of the minority who were in favour of the view of the Free Church. The Lord Justice Clerk, upon page 173, says : " A State may have committed great error in denying to an Estabhshed Church authority and powers, which sounder views of such matters (in so far as Scripture gives any directions as to Church polity) might teach us to hold must reside in a Church. Be it so. Let the legislature alter the foundations of the establishment, and correct the evil. But till that is done, the only question is, to what extent did the legislature acknowledge, when instituting the Church establishment, that it possessed power and authority in matters caUed ecclesi astical or spiritual, and what matters did the legislature admit to be of that char acter? The extent of the powers and authority of a body established by law must be the subject of inquiry in the Courts of the country in which it is instituted. As to many points, the very name and character of a church may imply the clearest acknowledgment of its authority and exclusive jurisdiction. But still, even in such matters, the authority is admitted only as the result ofthe statutes instituting the Church ; and these statutes may fall very far short of the notions which another age or a portion of the community may form as to the government of the Church. For instance, the Second Book of Discipline framed a scheme of ecclesiastical policy and of spiritual authority which was specially based on the divine commission to the Church, and was declared to flow from that source. On that footing the Church wished its authority as an estabhshment to be admitted." (There was always a contest between the two parties in the Church as to whether the Second Book of Disciphne was, or was not, an authoritative Book of the Church ; the Free Church party said it was, and the Established Church party said it was not.) "On that footing the Church wished its authority as an establishment to be admitted. As the foundation of the powers of an establishment, the Scotch legislature saw the impossibility of sanc tioning such a doctrine, which is incom- DEAN OF FACULTY'S SPEECH patible with any limits to the power of the Church." (That is exactly our con struction of the Second Book of Discipline, — that it gives unlimited power.) "Hence that doctrine was rej ected. Those portions of the Second Book of Disciphne were specially left out in transferring other parts of it into the Statute 1592. And then the legislature further specified what the matters were, in which the establish ment was to have authority and jurisdic tion, in terms most cautiously and care fully framed so as to exclude the pretension to unlimited power in what might be said at any time to be spiritual matters. Hence, by making even the authority in spiritual matters the subject of direct legislative enactment, it follows (1), that the extent of the powers of the Church is a question on statute for the civil court; and (2), that conflict of authority there can be none " ; upholding the view of the Moderate party in the Church. Then, my Lord, Lord Moncreiff states the opposite view ; this is the first Lord Moncreiff; he says, "I had learned in my earliest studies of the law of this country, and had beheved it to be no subject of doubt or controversy, that the Presbyterian Church of Scotland as origi naUy constituted in its early history, and as finally established unalterably by the statutes of the Revolution and the Union of the Kingdoms, possessed by its Courts of General Assembhes, Synods, Pres byteries, and Kirk-Sessions, formed and modelled within it, powers and juris diction, both judicial and legislative, in all matters spiritual or ecclesiastical, absolutely independent and exclusive, except as limited by express enactments of the legislature not here in question, and which no Civil Court itself created by the State for other ends could touch or control " — (Your Lordship sees the point of difference from the Lord Justice Clerk, whose view was that he says everything depends on statute; if you cannot show you have power under the statute, you h,ave no power at aU; Lord Moncreiff's, on the other hand, was that he adopted the view of the Free Church party, — that the Church had inherent powers and rights irrespective of the State altogether, and 357 the question was, not what tho Statute gave them, but to what extent the Statute limited or excluded these powers, which belonged to the Church independent of the civil power altogether) — "except as limited by express enactments of the Legislature not here in question, and which no Civil Court itself, created by the State for other ends, could touch or control. I believed this to have been so settled as at last to have become a funda mental, sacred, and unalterable principle in the constitution of the State, by a series of statutes more precise, moro stringent, and in the end more broad and unambiguous than the laws which have created and defined any other jurisdiction within the kingdom. I do not mean, and am not of opinion, that this power and jurisdiction of the Church Courts, in their exercise and application to particular matters, are so dependent on the existence and terms of special statutes, that nothing can be done in virtue of them which is not therein, by express words, provided for. It does not appear to me that any such concession was made in the argument in this case, and I shall have occasion to deal largely with that proposition, which I humbly think to be fundamentally erroneous, and to lie at the foundation of all the views of this case which differ from mine. I speak at present only of the general principle, that there is, by the constitution of these realms, such an exclusive and independent jurisdiction, both judicial and legislative, and in all matters ecclesiastical, vested in the Courts of the Presbyterian Church. And, though I am well aware that its claims to this independent position, and the solemn sanction which it received in the final settlement of the free government of this country, — deemed by our forefathers as essential to its existence and usefulness according to the principles of its institu tion, and ever dear to the affections of the great body of the people of Scotland, — were at various times vehemently opposed by certain orders of the community, and may still be very distasteful to some who may form an erroneous estimate of its true character, I must be allowed to say that, until the discussions of the present day arose, I never heard jt denied, as a, 358 matter of fact, that such was the law the constitution." Then, my Lord, Lord Fullerton, in regard to the same matter, said, " It is surely unnecessary to go into any anti quarian investigation to show that the Established Church, with the gradation of its courts from the Kirk-Session up to the General Assembly, is part of the constitution of this country, clearly recognised by the State. It is equally indisputable that the Church has powers, both judicial and legislative. The only question is regarding the limit of those powers, and here, as in every case of the kind, I think we must be guided, not only by the letter of the statutes, but by the practice which has followed on those statutes, as the only test for determining the various specific acts which were understood to fall within the more general enactments. And I do not think it going too far to state that in this view it is not necessary, in order to support powers of jurisdiction, to produce instances of usage in all respects identical. When a particular Act is challenged as beyond the power of any legally constituted authority, it is enough to give a series of instances which, although not absolutely identical in circum stances, are identical in principle ; instances of things done and recognised as lawful, which could not have been done and recognised except upon a principle which must equally support the powers of the constituted body to do the thing of which the legality is disputed. It is upon applying these principles to the case before us that I have felt myself com peUed to dissent from the proposition that the measures now under consideration were beyond the powers of the Church. When I look to the general terms of the statutes which recognise their powers, and to the manner in which those powers have been exercised for centuries, I am not able to discover any distinction in prin ciple between the acts which we are now called upon to prohibit as being ultra vires, and those which are shown, either by the words of the statutes or by the usage following upon them, to be a lawful exer cise of their authority. This leads me, in the first place, to consider in a condensed form the undoubted powers of the Church HOUSE OF LORDS of dedueible from those two sources. The Act 1567 declared and granted jurisdic tion to the Church, and declared that there was no jurisdiction in relation to matters ecclesiastical but in the Church itself. That was confirmed again in the same terms by the Act 1579, c. 7 (p. 114). It is clear, however, from what took place in the conference reported by Spottiswoode, that the powers of the Church, as claimed on the one hand and conceded on the other, were not confined to jurisdiction in the usual sense of the term — the determining of disputes according to existing rules ; but extended to legislation — the alteration of existing rules and the introduction of new, if required. The report of that conference contains the statement that such claims were made on behalf of the General Assembly, and that they were agreed to. And certainly there can be httle doubt that de facto that power was exercised to a very great extent before the Act 1592. Repeated assemblies of the Church were held, and various orders made and measures carried through, clearly showing that the word ' spiritual ' or ecclesiastical as designative of particular matters was very liberally construed. It is clear that the return of Commissioners of Burghs to the General Assembly owes its rise entirely to the act of the Assembly itself, and indeed the whole constitution of the Assembly and of the other Church Courts were the acts of the Church alone, though afterwards ratified in Parliament by the Act 1592. Such being the powers exercised before the statute 1592, it is of importance to look narrowly into the terms of that statute in order to see how far the powers de facto, at least previously enjoyed by the Church, were narrowed by any of its enactments. I will not go over them in detail. It is enough to observe that while it 'ratifies and approves the General Assemblies appointed by the said kirk,' it does not in any way confine, even by any enumera tion, the powers or duties of the General Assembly, as it does in regard to Pro vincial Assemblies and Presbyteries, but leaves those powers to stand on the usage which had prevailed prior to the statute. According, in the clause repealing statutes DEAN OF FACULTY'S unfavourable to the liberties of the Church, it describes them as statutes ' against the liberty of the true Kirk, jurisdiction and discipline thereof, as tho samen is used and exercised within this realme.' There is nothing here in any way confining the legislative power previously understood to exist in the General Assembly of the Church, and de facto in use to be exercised before the statute was passed. On the contrary when the statute simply and without any restriction, except as to the time and mode of meeting, ratifies 'the General Assembly as appointed by the Kirk,' the fair inference is that the ratifi cation included not merely the existence of the Assembly which would have been unnecessary and nugatory, but the extent of its powers as in use to be exercised. But this at least may be safely assumed, that the statute does not specially deprive the Assembly of any of those powers." Then, my Lord, Lord Jeffrey, upon page 179, says, "And in the first place, I quite agree with Lord Fullerton in thinking that what the Church has here done is not properly to be considered as an act of jurisdiction, in the narrow or technical sense in which that word is usually taken, as denoting the judicial determination of matters litigated between adverse parties. But I am not of opinion that the statutory power of the Church to perform the act can, on this account, be subject to any additional objection. In the first place, I hold that there are words enough besides, in the general statutes — such as those giving full power to do all things requisite for the good government of the Church, and to put order to all matters ecclesiastical, etc. — to cover and warrant all that has here been attempted; and secondly, I am satisfied that the word jurisdiction itself was not used in these statutes in the narrow and limited sense to which I have alluded, but in its larger, and perhaps more correct, sense of the power to make as well as to announce the laws or arrangements by which its prosperity and good order might be best promoted. To speak of the jurisdiction of the Church 'as standing or consisting in preaching of the word, correction of manners, or administering of the sacraments,' is to SPEECH 359 speak unintelligibly in any other sense, and the meaning I take very plainly to be that it should have power (jus dicere) to make and announce such laws as it might think necessary for the attainment of these objects, and, inter alia, to settle by what manner of persons, and to what congregations the word should be preached and the sacraments administered. In the next place, I must observe that I agree with Lord Moncreiff that the only just measure we can now take of the powers really given, and intended to be given, by these and other general words in the statutes, is to be found in the powers actually and openly exercised by the Church at and before the time when validity and legality was distinctly given to them by these and other words in these important enactments. It is never to be forgotten, and indeed is at the bottom of the whole questions, both as to the particular proceeding now under consideration, and as to the true character and constitution of our establishment generally, that there is nowhere a proper erection or creation of the Church by original grant or charter, but merely a recognition, ratification, and adoption of certain things and arrangements which it had previously adopted of its own authority. Now, when I find that before the Act 1567, there had been already no fewer than fifteen General Assemblies of the Reformed Church, and these consti tuted not of a knot of zealous or ambitious churchmen, but, in a far greater proportion, of laymen of the highest rank and station in the country — noblemen of the greatest name and connection, commissioners of shires and great burghs, and men holding offices of trust and dignity under the Crown — I cannot but think that when these General Assemblies and their Acts were afterwards solemnly ratified and approved of in Parliament, nothing else could in fact have been intended but to estabhsh the fitness and legality of all the more important powers they had previously exercised, and to sanction their exercise in all time to come." Now, my Lords, the relevancy of these opinions of the minority is to bring out the attitude which was being adopted by the Free Church party at that time as to 360 their position within the Estabhshment, and accordingly, by means of that, your Lordships have a key to what was the position which they took with them when they became the Free Church. The position which they had taken up during these contests is summarised in a few sentences, I think, upon page 184 of this book, in a Judgment which was against the Free Church party by Lord Cuning- hame, in the Action for the reduction of the sentence of Assembly, page 184. At the beginning of his note Lord Cuning- hame says, " They (the church) " (that is, the Free Church party) "contend that they are not responsible to any civil court in the kingdom for their censures, even when illegal and incompetent ; that the church is a body having rights and interests separate from the state; that they possess a supreme legislative body and a supreme court, and have ultimate jurisdiction in things spiritual. . . . They insist that they are themselves the interpreters of all statutes, even of the civil legislature, apphcable to ecclesiastical affairs; that they are the sole judges what causes are spiritual and what are of a temporal nature; and it is added that the present is just an unfortunate case of colUsion or conflict between two supreme courts not provided for by the law, and that the civil court is unduly interfering with the ecclesiastical in matters in which the latter admit of no control." My Lords, when I come to the documents, I hope to be able to satisfy your Lordships that there is nothing in any of the documents which they pre pared which is in the least inconsistent with the width of the claim which they so formulated. Lord Davey : Is it necessary for you to put your case so high as that — that the Ecclesiastical Courts are the inter preters of all Statutes applicable to ecclesiastical matters? It says there, " they insist that they are themselves the interpreters of all Statutes, even of the Civil Legislature applicable to ecclesi astical affairs — that they are the sole Judges of what causes are spiritual and what are of a temporal nature." The Dean of Faculty : I do not think it is necessary to put it as high as that. That is putting it very HOUSE OF LORDS Lord Davey ; high. The Dean of Faculty : I agree it is putting it very high. I do not think it is necessary to put it as high as that. But that, of course, could only apply at a time when there were Statutes applicable to the Church as a Church, and of course, therefore, such a question could not arise in regard to the Free Church. Lord James of Hereford: This extract from Lord Cuninghame's Note rather brings to mind very much the views expressed by members of a certain section of the Church of England : but whilst they claim a certain independence of the decisions of the ordinary tribunals, yet at the same time that is not incon sistent with their being still supporters of an Established Church. Is not that independence of the lay tribunals quite distinct from the question of Church Estabhshment ? The Dean of Faculty: I would hesitate to speak as of knowledge with regard to the position of matters in the Enghsh Church myself, but I think I am right in supposing that the English Church acknowledge a temporal head. The Lord Chancellor : The Crown is the temporal head of the English Church — at least, we lawyers would say so — the Church being estabhshed by Statute. The Dean of Faculty: Accordingly that makes a radical distinction, I should say, in regard to the position of any person in the Church of England who takes the view which the Free Church does in the Scotch Church, that Christ is the only Head of the Church. Lord James of Hereford : A certain section of the Church here take great objection to admitting the wisdom of the decisions of the Privy CouncU, very much in the same way as Lord Cuninghame states it here. At the same time that is quite consistent with existing within the Estabhshed Church. The Dean of Faculty : I see in the Claim they specifically differentiate them selves from the Enghsh Church in respect of there being no temporal head of the Church. The Lord Chancellor : Yes. DEAN OF FACULTY'S SPEECH 361 The Dean of Faculty: Now, my Lords, there was a very interesting historical question in regard to the ex tent to which the Church has exercised its legislative power, and I think the material is here before your Lordships to enable you to see that. But before going into that I should desire to point out that whilst it can be demonstrated upon the documents that the Church has exercised legislative power all along, the question which is to be determined is, what was the view which the Free Church party took in 1843 of the powers of the Church in that matter : Did they not assert that there was that legislative power within the Church, and did they not found themselves at the time of the disruption upon that supposition, or rather, I should say, that fact ? But supposing their view was wrong, their whole view must be held to be wrong, with regard to the history of the Church as elucidated in these opinions The Lord Chancellor : I so far agree that when you are dealing, as you are now, with this point — always coming back to this same point, as to the founders of this trust — the point is not what we think those founders ought to have thought, but what they did think. So far I quite agree. The Dean of Faculty : That is my point. The founders of the Church said, Very well; we must accept the position that the Courts have decided against us Lord James of Hereford : You mean the founders of the trust ? You said the founders of the Church. The Lord Chan cellor was deahng with the founders of the trust. The Lord Chancellor : For the pur poses of this argument you assume that the foundation of the trust and the foundation of the Church are the same ? The Dean of Faculty: I have always endeavoured to maintain that position, because the property is given to the Church. So far as I can see, there is no means of determining the question (which is the question here), What is the Trast ? except by looking at the Church and see ing what are the powers of the Church. Lord James of Hereford ; Must you not look at the construction put upon the Church at that time by the founder ? The Lord Chancellor : I should have thought that was the one thing you must do; indeed, your remark was that you must see what the founders thought, and not what we think. The Dean of Faculty : I say there is nothing in the documents which is in the least inconsistent with, or which does not, from my point of view, simply give ex pression to the demand for freedom The Lord Chancellor : Then there is no question between us, if that is so. The Dean of Faculty: No. The Lord Chancellor: The only question is, What is the authoritative document to which you can refer as pointing to what was the trust that they then founded ? The Dean of Faculty: There is a document which brings out very sharply, with regard to the legislative power, the views of the Church in an Act of Assembly, which your Lordships will find printed upon page 167 of the new print. Your Lordships will find the document dated at the bottom of the page, 8th June 1847. I shall have to call your Lord ships' attention to the prefatory note attached to this edition, but I will first read the Act of Assembly. It is dated the 8th of June 1847: "The Assembly having resumed consideration of the Over tures on the principles of the Church, agreeably to a resolution entered in their minutes at a former diet, Dr Candlish was heard on the subject, and the follow ing motion was unanimously agreed to : — ¦ ' The General Assembly having resumed consideration of the overtures, and of the report of the Committee thereanent, and being deeply sensible of the importance of instructing the people of this Church, and especially the young, in the great prin ciples which she has been called to main tain; having also had their attention called to the Catechism on the Principles and Constitution of this Church, issued in December 1845, by authority of the Publication Committee, and since that time circulated with large acceptance in the land, and being satisfied with its soundness, as well as its suitableness to the purpose intended, approve generally ?62 HOUSE of the same, as containing a valuable sum mary of this Church's history, and exhi bition of her distinctive principles, from the beginning of the Reformation to the present time, and earnestly recommend its general use. And the Assembly authorise the Publication Committee to superintend the issue of any new edition of the Cate chism that may be prepared, and to report upon it to the next General Assembly, and waiving the farther con sideration of the other matters referred to in the overtures and the report as afore said, the Assembly appoint this Act to be read from all the pulpits on such an early Sabbath as may be agreed upon, at one or other of the ordinary diets of worship ; on which occasion ministers are enjoined to preach to their people on the doctrine of the Headship of the Lord Jesus Christ as held by this Church, according to God's Word, as well as the peculiar responsi bility of the Church, and of all her faith ful people in regard to it." Then, my Lords, the document which foUows there is the document which received the sanc tion of the Assembly in that manner, and which was appointed to be issued and read from all the pulpits. It begins at the bottom of page 168, where your Lordships will see this question : " What were the matters in relation to which she exercised her freedom? (A.) They were such as the preaching of the Gospel and dispensa tion of the sacraments, the public Confes sion of her Faith, the Catechisms for the instruction of her people, the infliction of censures, the form of her government, and the composition of her judicatories. (Q.) Did her ministers, at the Reformation from Popery, wait for the magistrates' authority or license to preach the Gospel, or dispense the sacraments? (A.) They did not wait an instant. They acted under Christ's authority and commission ; and when the magistrate laid his interdict upon them, they disregarded it, like the Apostles of old — obeying God rather than man. (Q.) What Confessions of Faith were adopted by the Church of Scotland ? (A.) The Old, or John Knox's Confession, which was drawn up in 1560 ; and the Westminster Confession, which was sanctioned by the Assembly in 1647. (Q.) Did the Church adopt them freely, OF LORDS or were they imposed upon her by the civU power? (A.) The Church freely adopted them. (Q.) Did not the State adopt them too? (A.) Yes; but it was after their adoption by the Church. (Q.) When the Church substituted the West minster Confession for that of John Knox, had the sanction of the latter by the State been withdrawn ? (A.) No ; the Confession of John Knox had the sanction of the State at the very time. (Q.) Did the Church of Scotland always adopt such Catechisms as she thought necessary and fit for the Christian instruction of the people? (A.) Always; and her Cate chisms sometimes had the sanction of the State, and sometimes no sanction but her own. (Q.) Did she consult the will of the civil magistrate in inflicting her censures ? (A.) She inflicted her censures on all offenders, both high and low, ac cording to her sense of the wiU of Christ. (Q.) What were her proceedings in regard to the form of her government? (A.) When she became convinced that it was not scriptural she changed it. (Q.) How often did this occur? (A.) Twice — in 1580 and 1638. (Q.) What circumstance was it which made the step she took on these occasions a very striking exercise of freedom from the rule of fhe civil power ? (A.) In both cases the form of govern ment which she renounced and set aside had the sanction and approval of the State at the time. (Q.) How did she exercise her freedom in regard to the composition of her judicatories? (A.) She at once gave effect to her funda mental principle respecting the equahty of ministers by admitting into her Courts all who held the pastoral office, whether they were endowed or unendowed, and whether the charges they filled were civilly established or not. (Q.) Was this all? (A.) No; by her sole appointment ruling elders were, from the very first, made members of her judicatories along with their pastors. (Q.) Did not the State expressly sanction the right of ruling elders to sit in Church Courts ? (A.) It did; but not till the Revolution — one hundred and thirty years after the Church had admitted them. (Q.) Are there any instances of this exercise of her freedom occurring subsequently to the Revolution? DEAN OF FACULTY'S (A.) Yes ; ordained chaplains and mis sionaries were received by her as members of her judicatories till about the middle of the eighteenth century ; commissioners from the Scotch Church at Campvere, in Holland, sat in her General Assemblies till the breaking up of that Church by the French invasion in the days of Bona parte ; and she passed an Act in 1814 con ferring on the Scotch Church in India a right of representation in her supreme Court, which right has been enjoyed without interruption down to the present time. (Q.) Did the State never sanction the right of Campvere or of India to be represented in the General Assembly ? (A.) Never." Then your Lordship will see this question 276 : "Is there not a statement in the Confession of Faith on which Erastians have fastened as favour able to their opinions ? (A.) Such a state ment there is in Ch. xxiii. 3, which says that ' the civU magistrate hath authority, and it is his duty to take order that unity and peace be preserved in the Church, that the truth of God be kept pure and entire, that all blasphemies and heresies be suppressed, all corruptions and abuses in worship and discipline prevented or reformed, and all the ordinances of God duly settled, administered, and ob served. For the better effecting whereof he hath power to call Synods, and to be present at them, and to provide that whatsoever is transacted in them be according to the mind of God.' (Q.) Does this mean that the civil magistrate is himself to administer the government of the Church? (A.) Such cannot be the meaning; for that would be to assume the power of the Keys, which the Con fession says he must not do, and it would be inconsistent with the doctrine laid down in the Confession, 'that the Lord Jesus, as King and Head of His Church, hath appointed a government therein in the hands of Church officers.' (Q.) Does it mean that the civil magistrate is to receive appeals from the decisions of the office-bearers of the Church, and finally to determine in the cases thus brought before him? (A.) Such cannot be the meaning ; for then the government would be in the hands of Church officers con jointly with the magistrate, whereas the SPEECH 363 Confession declares that it is 'in the hands of Church officers, distinct from the civil magistrate.' (Q.) Does it moan that, when controversies arise and the peace of the Church is broken by the dis putes of its members and office-bearers, the magistrate is entitled to call the parties before him, to give judgment between them, and thereafter to compel the Church to proceed in conformity with his views? (A.) Such cannot be the meaning ; for the Confession teaches that 'there is no other Head of the Church but the Lord Jesus Christ,' and it also declares that ' it belongeth to synods and councils ministerially (that is to say, under Christ) ' to determine controversies of faith and cases of conscience, and to set down rules and directions for the better ordering of the public worship of God and government of His Church ' ; and in this very passage it is intimated that the magistrate cannot effectually accomplish the object it is his duty to aim at without resorting to the authority of ecclesiastical assemblies. (Q.) Does it mean that, when Church and State differ on any question of Church polity, or dis cipline, or Scripture principle, the State must always be held to be in the right, and it is the duty of the Church to succumb; or that, on the supposition of the State being in the right (a thing which, however, cannot be certainly known), the Church may be compelled by the civil arm to give way? (A.) In that case there would be another head than the Lord Jesus Christ, and there would not be, in any reasonable meaning of the words, a government in the Church ' distinct from the civil magistrate.' (Q.) Does it mean that the magistrate shall make the Church obey his Acts of Parlia ment? (A.) No; it says expressly that he is to provide that the things done by the Church shall be 'according to the mind of God.' (Q.) Does it mean that ecclesiastical synods cannot be held unless he is pleased to convoke them ? (A.) It says nothing like that ; his power to call synods, when he wishes to consult them and to have their aid, neither excludes nor infringes on the Church's right to hold them when she thinks them neces sary, as is specially shown in the Act of 364 HOUSE OF LORDS Assembly 1647, by which the Confession was approved and adopted." Then there is a further question : " Does it mean that he may lawfuUy infringe on the freedom of synocheal deliberations? (A.) Such cannot be the meaning; for in doing so he must arrogate the power of the Keys." Then at Question at 284 from the negative it takes the affirmative form. " (Q.) What, then, is the meaning of it? (A.) The meaning of it is that the magis trate hath authority, and it is his duty, in his official capacity, to concern himself about the interests of religion and the welfare of the Church ; and, in such ways as are competent to him, consistently with Christ's exclusive Headship in the Church, and the rights of that Government which is ' distinct from the civil magistrate,' namely, by his example, his influence, and his legitimate control over temporal things, to take order (not to give order, or command, but to take order, or provide) for their advancement." Lord James of Hereford : Who framed those Answers — is this Gray's Catechism ? The Dean of Faculty: Your Lord ship will find there is a Prefatory Note at the beginning; it was issued first in 1845. Mr Johnston : In 1847. The Dean of Faculty: No, pardon me — it says distinctly that the General Assembly "having also had their atten tion called to the Catechism on the Prin ciples and Constitution of this Church issued in December 1845," so that it was all issued within a year Mr Johnston : But not by the Church. Lord Alverstone: Can you tell me where I shah find the whole of this Cate chism printed; could you give me the reference to where the whole of it is to be found? The Dean of Faculty : I have a copy here which I will hand in to your Lord ship (handing in the same). The Lord Chancellor: It is stated here to have been issued in December 1845 "by the authority of the Publication Committee." Who were the Publication Committee ? The Dean of Faculty: The Free Church, and then it is adopted by the Assembly. The Lord Chancellor: Yes, that I see. The Dean of Faculty : Then there is a curious incident about it. Your Lord ships will notice at the beginning, the Prefatory Note, which is specially signifi cant from the fact that it is signed by a very well-known member of the Free Church, the late Dr Begg, who was un doubtedly during his life, the leader of the anti-Union party, which is now re presented by the Appellants. He writes the Prefatory Note which is prefixed to the edition issued in 1876. Your Lord ships have it at page 167. The Lord Chancellor: He states there that the chief author of the cate chism was the late Rev. Andrew Gray of Perth. The Dean of Faculty-. Yes. The Prefatory Note says, "A laudable desire exists at present in certain quarters that the true principles of the Free Church of Scotland should be emphatically pro claimed. We do not know how this can be better done than by a republication and wide circulation of the Free Church Catechism, published soon after the Dis ruption — a book which, unfortunately, has of late fallen into comparative obscurity and neglect. The chief author of this excellent catechism was the late able Rev. Andrew Gray of Perth, than whom no man in Scotland knew better the principles of the Free Church. The work was, however, revised by others and received the unanimous sanction of the Free Church General Assembly of 1847, only four years after the Disruption. It was earnestly recommended to general use by that Assembly, 'as containing a valuable summary of the Church's history and exhibition of her distinctive principles, from the beginning of the Reformation to the present time.' Nothing has occurred since that time to make this recommenda tion less applicable or important ; and it is hoped that all the true-hearted ministers of our Church will now avail themselves of this new opportunity of giving a wide circulation to this valuable and instructive Free Church Catechism." That is signed by the late Dr Begg, so that it receives a DEAN OF FACULTY'S SPEECH new measure of authority, if that were necessary, in 1876. Lord James of Hereford : I think you have found and shown a great deal here in the expression of views hostile to the jurisdiction of the secular courts to control the Church ; but is there anything in this document as opposed to the exist ence of an Established Church ? The Dean of Faculty : No, nor any thing in favour of it, as far as I know. Lord James of Hereford : It does not go to that extent ? The Dean of Faculty : Except that I should have said this : of course the part of the Confession of Faith on which the Establishment Doctrine is said to rest is that passage at the top of page 171, which says, "that the civil magistrate hath authority " Lord James of Hereford : Yes, I have noted that, but I do not see that that is opposed to the principle of an Established Church. The Dean of Faculty : I do not say that it is opposed. Lord James of Hereford : We have got the documents to look at, to see that the Free Church did not support Estab hshment. The Dean of Faculty : It is im portant to keep in view that they set out what their view is as regards the Article of the Confession of Faith at the bottom of page 172, which I submit simply means national religion as distinguished from national secularism. They set out, at the bottom of page 172, what they hold the meaning to be. "The meaning of it is that the magistrate hath authority, and it is his duty, in his official capacity, to concern himself about the interests of rehgion and the welfare of the Church ; and, in such ways as are competent to him, consistently with Christ's exclusive Headship in the Church, and the rights of that government which is 'distinct from the civil magistrate,' namely, by his example, his influence, and his legitimate control over temporal things, to take order (not to give order, or command, but to take order, or provide) for their ad vancement." The Lord Chancellor : Would the 365 supporters of a Voluntary Church and a Voluntary principle accept that ? The Dean of Faculty : Certainly. I am taking it a little out of order, but I think your Lordships will find in the document which was referred to as being the statement of the points of agreement and disagreement between the Free Church and the United Presbyterian Church in regard to the civil magistrate, the point of agreement is very much like that. Lord Davey : Was Dr Chalmers alive at that time, in 1845 or 1846 ? The Dean of Faculty : Yes. Lord Davey: Did he agree to this Catechism ? The Dean of Faculty : It is unanimous. Lord James of Hereford : But was he alive in 1847 ? Did not Dr Chalmers die in 1847 ? Mr Johnston : He died in 1847. The Dean of Faculty : I forget the date, but this had been issued. I think what my Lord Davey had in his mind was the document issued by Dr Chalmers. Lord Davey : Yes. The Dean of Faculty : I have, of course, to comment upon that. There were other utterances in the Assembly about the same time as that. Lord Davey : At the same time you are perfectly entitled to say that within a few years after the Disruption this was a Catechism, and a Document, issued by the unanimous resolution of the Free Church ? The Dean of Faculty : Yes. Lord Davey : Quite apart from any individual opinions of any members of the Assembly, however eminent ? The Dean of Faculty : Yes, and long before any of the Appellants had anything to do with the Church, which, of course, they joined upon the basis of making themselves acquainted with what the powers of the Church were. Lord Davey : Whether it expresses exactly all the views of all the members of the Assembly, however eminent, you are entitled to say that it is issued by the unanimous resolution of the Assembly. The Dean of Faculty : That is so ; it is the unanimous resolution of the As- 366 HOUSE OF LORDS sembly. In answer to Lord James's question, may I refer to page 55 of Print B, or perhaps it is more convenient to refer to page 203 in the new book F, where it is reprinted Lord Alverstone -. Before you pass on, it seems to me that there may be some other parts of this little book, " Catechism on the principles and constitution of the Free Church of Scotland," which has been handed to me, that may want looking at. I have been glancing at it, and I see in a later chapter there is this question : " How do you distinguish between the Establishment and the Church ? " and the answer is : " The Establishment is the Statutory provision of Tithes or Teinds, Glebes, Manses, and places of worship ; and the Church is the spiritual community for which that provision is made." It may be that we may have to look through this book to see what they were talking about when they speak of Church government. The Dean of Faculty : That may be. One of the difficulties one has in a case like this is to know where to stop. The Lord Chancellor : That is a difficulty which appears to have been entertained. The Dean of Faculty: I must say I have sometimes thought perhaps it was a misfortune not to have opened the flood gates, and to have a proof, and to allow everything that could conceivably be put in. The parties tried to limit that by renouncing probation of their title to refer to the Assemblies for Acts and all their Proceedings, but I doubt whether that was limiting the thing very much. But, on the other hand, if there had been proof, no one knows where it might have gone to. But anyone who has had to do with the consideration or discussion of the question has felt that one of the greatest difficulties is to know where to stop. Lord Davey : One of the points which strikes me in the opinions of the learned Judges you have read, given in the Stewarton case, and in the answers in the Catechism which you have read to us, which are very relevant, and which will have to be considered, is that none of them mentioned doctrine ; it is all general principles and management, and so forth. None of them specifically say that it is within the power of the General Assembly to alter and abrogate the accepted doc trine and standards of the Church. The Dean of Faculty : It emphasises specifically the fact that it took its own doctrine — the two Confessions — of its own motive and act, apart from the State. Lord Davey : I know. The Dean of Faculty : It took the Confession as an Act of the Church. Lord Davey : Yes, I notice that, and I presume you would say that having adopted the Confession, they might sub stitute for it a new Confession ? The Dean of Faculty : They might have rejected it or they might have adopted it. Lord Davey : And do you say they might now reject it? The Dean of Faculty : Certainly. Lord Davey : And adopt a new Con fession ? The Dean of Faculty: It seems to me there is nothing to prevent them doing that. The same power which enabled them to adopt it may enable them to dispense with it if they have comphed with the prescribed form. Lord Davey : You say there is no hmit to their spiritual independence ? The Dean of Faculty: Quite so. Would your Lordship allow me to call attention again to a few sentences which bring that out very sharply, upon page 169 ? Question 231 : " What Confessions of Faith were adopted by the Church of Scotland? (A.) The old, or John Knox's Confession, which was drawn up in 1560, and the Westminster Confession, which was sanctioned by the Assembly in 1647. (Q.) Did the Church adopt them freely, or were they imposed upon her by the civil power ? (A.) The Church freely adopted them. (Q.) Did not the State adopt them too ? (A.) Yes, but it was after their adoption by the Church. (Q.) When the Church substituted the Westminster Con fession for that of John Knox, had the sanction of the latter by the State been withdrawn ? (A.) No ; the Confession of John Knox had the sanction of the State at the very time." So that they expressly formulate the proposition that the Church DEAN OF FACULTY'S SPEECH took both of these Confessions, first John Knox's Confession in 1560, and then the Westminster Confession in 1647, simply by its own Act, and, in regard to the latter, they adopted the Westminster Confession in 1647 by an Act of the Church itself, although the public statute at the time prescribed John Knox's Confession as the Confession of the Church. That might have raised a ques tion as between the Established Church and the State. But there is a very plain assertion of authority on the part of the Church to fix its own faith at the beginning. The Lord Chancellor : I think again one must see what one is doing in the use of particular words. The " Legislative power" for which you are contending may mean one of two things : It may mean an authoritative declaration of the Faith which the Church recognises as having been derived from the Scriptures, and in that sense, unalterable, because if they refer to the Deity as the Author of the religion, and pronounce what His WiU and Command has been, that is, one thing. But if you use the word legisla tive authority of the Church in the width of its ordinary meaning, that would im port a power of altering that which, by the very nature of things, is unalterable. I suppose no member of the Scotch Church would ever suggest that Knox's Con fession and the Westminster Confession had any difference at all in them in that respect, but they were both of them an exposition of that which was the Ordi nance of God. The Dean of Faculty: I do not know that I could admit that ; I do not think that it is generally considered that they are identical. I do not say that there are very material differences, but there is ample material for Divines differing with regard to the question of the meaning. The Lord Chancellor: What I mean is this : one must find out what you mean by the words "legislative authority." If you mean by " legislative authority" that they could change the doctrine which is one of the things suggested in the course of the argument, it seems to me "legislative authority" in that sense is inconsistent with the notion of a Christian Church. 367 The Dean of Faculty: I do not think that I could put my proposition with regard to legislative power on any other basis than that they are supreme. Their legislative power is applicable exclusively to matters within the Church. The Lord Chancellor: If you use the words "within the Church" in the sense I mean, holding the doctrine which derives its authority from the Scriptures which has been authoritatively recognised as the religion of that particular com munity, there is no difference between us ; but that seems to me to exclude the authority to change the doctrine. The Dean of Faculty : I submit that, just as the Church could in 1560, of its own motive, decide to make John Knox's Confession to be the Confession of the Church, so they have the power to change. The Lord Chancellor-. Not the power to change it, but as a test of what the doctrine of the Church is. The Dean of Faculty: They might have taken the Bible, and have gone on without any Confession — they did do that for a time. Lord Davey : You say that the Holy Scriptures are the primary standard of the Church and unalterable. The Dean of Faculty : That is so. Lord Davey : Nothing can abrogate from the authority of the Holy Scriptures. The Dean of Faculty: I assent to that. Lord Davey : Do you mean that a Confession like John Knox's Confession or the Westminster Confession, purport ing to express the Doctrine to be found in the Holy Scriptures, is alterable by the General Assembly. Dean of Faculty : Yes. The Lord Chancellor: I should hesitate to accept that view, but I think that is not quite what we are dealing with here. We are dealing with the question of the intention of the Founders of the trust who have adopted that as the test which should exhibit who are entitled to the temporalities of that par ticular trust. Dean of Faculty: I think the one principle on which the Free Church 368 HOUSE founded itself, was that Christ was the only Head of the Church, and that His Word was the Church's only Standard. That they undoubtedly formulated. But with regard to the particular interpreta tion of the Holy Scriptures at any par ticular time, which after all is substan tially doctrine, for doctrine is only the interpretation of Scripture The Lord Chancellor : I quite agree, but we always come back to the same proposition. You yourself just now said that the question we have to determine is, what was the doctrine that the founders of that trust entertained, and what was their test of what that doctrine was. Dean of Faculty. The test, I suggest, is the one I have just mentioned. The test was that Christ was the only Head of the Church, and that His Word was the only Standard. That was the foundation of their Church. They say that was the foundation of the Church from the beginning. Lord James of Hereford : Do they not put that forward formally in order to get rid of the exercise of the jurisdiction of the Civil Tribunals ? Dean of Faculty : I do not think so. Lord James of Hereford : The whole history shows that they were fighting against the interference of the Civil Tri bunals. Dean of Faculty : Yes, but they say that that was the Standard of the Church from the beginning. Lord James of Hereford : Yes, be cause when they found that they were not allowed to have the Church govern ment in their hands by virtue of their Assemblies, but that the Civil Tribunals interfered, then they said, " We will not allow this interference." Dean of Faculty : Yes. Lord Macnaghten : Do you know when this expression " Subordinate Stan dards " was first used ? Mr Johnston : You will find it cer tainly in 1851, if not earlier. Lord Macnaghten : It was long before that. Dean of Faculty : It was long before that. I could not take upon me to answer the question at the moment, but OF LORDS I think we have the means of informing your Lordship as to that. Lord Macnaghten : There was always a distinction between supreme Standards and subordinate Standards. Dean of Faculty: No doubt. Of course any man who adopts the Con fession of Faith, adopts the Scriptures as the supreme and only Standard. The Lord Chancellor: Certainly, because the Confession of Faith, whilst it proceeds to formulate certain views in cer tain branches of it, makes it perfectly clear with regard to anything that is said beyond the Scriptures, that any ambiguity is to be solved by referring to the Scriptures. Lord Davey: It is said somewhere, but I cannot at the moment remember where, amongst the numerous documents that we have had before us, that Scrip ture can only be interpreted or explained by another Scripture. Dean of Faculty: Yes, the Con fession of Faith says that, I think. Of course, that is a very wide rale. Lord Davey : If you doubt the mean ing of one text, you must search and find another text by which to interpret it. Dean of Faculty : Yes, it enables a man very often to produce a text in the other direction, and so it often enables people to subscribe the Confession of Faith who could not otherwise do so; because if a man deduces from another text a different interpretation to a Doc trine in the Confession of Faith, he is at liberty to exercise his own judgment as to where to draw the line between the two. The Lord Chancellor : I suppose it is really only part of the principle that we certainly recognise in Courts of Law, that you must take the whole of the document and not only part of it. Dean of Faculty : No doubt. I cer tainly desire to emphasize very strongly the view that the position taken up by the Free Church unanimously, almost immediately after it was formed, was that the Faith which it then professed, so far as profession was concerned, was due entirely and exclusively to the Church's own act; and that it had adopted it freely and of its own will; and so far as I can see, it necessarily DEAN OF FACULTY'S SPEECH follows from that, that the Body that can adopt can make a change, provided that, as between the members, it adheres to its own prescribed form of alteration. The Lord Chancellor : An alteration of the Creed? Surely that is a very odd proposition, is it not ? Dean of Faculty : That may be so in an Established Church ; but where there is no authority external to the Church with a title to interfere at all, then it is a much more simple matter — where you have an Association of persons who have voluntarily agreed to accept a particular Confession as their Creed, and have pre scribed for themselves certain fixed modes by which they may effect a change of doctrine, I submit, if they adhere to those modes of effecting the change, then with out doing violence to anybody they can make the change. The Lord Chancellor: Is there a single document that ever suggests the power of even the Church to change a doctrine ? Dean of Faculty : I think the West minster Confession goes as far as that. The Lord Chancellor : I should have thought it was exactly the reverse. In the Westminster Confession, which I suppose is about the most carefully con sidered document in the ReUgious World that ever was arrived at, which was pre sented in pieces from time to time by the Assembly of Divines to Parliament and then adopted by Parliament in pieces, and then finaUy in its whole form,— the notion that that was capable, so far as doctrine was concerned, of being changed again, I think, would be as alien to the Established Church as to the Free Church or the Presbyterian Church. The idea was that it was a document for all time, prescribing what was the doctrine of the Church. Dean of Faculty: I accept that en tirely so far as the Established Church is concerned. If a Church accepts the status of Establishment on the basis of accepting a particular Confession, then there is a Contract between the Church and the State which compels the Church, so long as it is a party to that Contract, to adhere to the Confession which it has arranged with the State shall be its Con- 369 fession. But where the Church is apart from the State altogether, and where there is no person who has any title to interfere, except individual members of the Church, then the case comes to be this, that the basis upon which the Members associated themselves was a basis which entitled certain alterations to be made in their Creed from time to time ; because if his torically the Body that they have joined have claimed the right of the Church as a Church to adopt a particular Faith when it liked, and to change its Faith when ic liked, then everybody who joined that Church must be assumed to have known that they were joining a Body which had always been asserting and exercising that power. For example, supposing a person came into the Free Church 1843, and he found that at that time there was a certain interpretation — the Westminster Confession of Faith as the creed of the Church, the question would arise, how did it become the creed of the Church? It became the creed of the Church, as this catechism says, by the voluntary adoption of the Church. Lord Davey : The question arises in a vulgar mercenary way : — a man is sup posed to say, I subscribed my money for the support of a Church which adopted the Westminster Confession as its Standard of doctrine ; is it a proper application of my money to apply it to a Church of a different kind, because you say the Church always had recognised another doctrine, namely, the Headship of Christ over his Church? Dean of Faculty: But the question would arise, in giving his money to a Church which professed the Westminster Confession of Faith, did he know that the Body to which he was giving his money had previously exercised the power of changing its Faith from time to time, and claimed it as an inherent power Lord Davey : I think if it was made plain, or rather if it was one of the doctrines of the Church to which the man subscribed his money, that it should have power to change its doctrine from time to time, then that would be one of the distinct tenets of the Church. The Lord Chancellor : That is what Lord Eldon says, 2 A 37o HOUSE OF LORDS Lord Davey : If you can make out that the principle of the Church was, that the Assembly or Synod should declare its doctrine from time to time, that is another matter. Dean of Faculty : That really con stitutes the radical distinction between the Craigdallie Case and these Cases. The House was dealing there with a Congregation, and no one suggested that it had the slightest power of alteration upon the purposes for which the money was held. The whole question was, what were the purposes for which the property was held ? and when they were once defined the money must be applied for that pur pose. But the Congregation there was in a totally different position from a Church in the position defined in the Catechisms on the principles and Constitution of the Free Church, which I have just read, showing that it was a body which was to be supreme in respect of spiritual matters, including, as I contend, the definition from time to time of the Articles of its Faith. As regards the passage for which my Lord Davey asked the reference, it is to be found in the Confession of Faith, in Article ix of Chapter 1 : " The infallible rule of interpretation of scripture is the scripture itself ; and therefore, when there is a question about the true and full sense of any scripture (which is not mani fold, but one), it must be searched and known by other places that speak more clearly." Lord Davey : I am very much obliged to you. It was in my mind, but I did not know where the passage was to be found. The Dean of Faculty : Of course the Westminster Assembly was a Synodal assembly of Churchmen convened for the specific purpose which brought them together, and with reference to any such body (although this carries me away from the part of the case I was dealing with at the moment) the Westminster Confession says : " All synods or councils since the apostles' times, whether general or particular, may err, and many have erred, therefore they are not to be made the rule of faith or practice, but to be used as a help in both." Now, my Lords, before passing from this branch of it, as the Print is before your Lordships, perhaps you will allow me to point out one or two of the Acts of Assembly which are printed here, and which we shall find are referred to when we come to the claim and the other documents. Your Lordships will find that the Acts of Assembly begin on page 15 of the new print. The first Act I need refer to is in the year 1566. That is very pertinent to the matter with which I am now dealing, of the alteration upon details of the Faith of the Church. I do not think it is necessary to trouble your Lordships with the first Act on page 15, but I will read from letter F, at the bottom of the page: "The Assembly being advised with the interpretation of the Confession of the Tigurine kirk made by Mr Robert Pont " (that was at Zurich — as your Lordship knows, John Knox had been for a long time in that neigh bourhood), " ordain eth the same to be printed, together with the epistle sent by the Assembly, allowing the same, provid ing a note be put in the margin of the said Confession, where mention is made of the remembrance of some holy days, etc. In this Confession, superiority of ministers above ministers is called a human ap pointment ; confirmation, a device of man ; baptism by women is condemned ; prolix prayers, hindering the preaching of the word ; canonical hours, that is, prayers to be chanted, and often repeated at set times, as the Popish manner is, heaping up of ceremonies to the prejudice of Christian liberty, observation of saints' days. But this Assembly would not allow the days dedicated to Christ, but took exception against that part of the Confession; yea, our Assemblies meet often upon the 25th of December, so that many of the ministry could not be at home in their own parishes, to teach upon Christ's nativity. This Confession, called commonly the Latter Confession of Helvetia, was allowed not only by the Kirk of Scotland, but also Geneva, Savoy, Poland, Hungary; but not the Kirk of England, because of the many corruptions maintained by them, which are condemned in it." Now, that is an illustration of the Church accepting a Confession, but only DEAN OF FACULTY'S SPEECH 37i in part, taking exception to certain parts which it does not accept. They would only accept it provided a note is put upon the parts which they were not prepared to accept. My Lords, the next Act is in the year 1581. That is an Act of Assembly estab lishing Presbyteries. " Some brethren, who knew best the bounds of the country, were appointed to consider the rolls presented by their king's commissioner in the sixth session, and to report their judgment to the Assembly. Touching the report of the brethren appointed to consider the placing of the kirks given in to them in rolls, and to report their judgment what they think meet to be reformed therein, a great part of the said rolls being reproduced, with their judg ment, which they could presently resolve upon, in such shortness of time, while they be further resolved, with advice of their countries, the whole Assembly thought meet, that a beginning be had of the presbyteries instantly, in the places after following, to be exemplers to the rest which may be established hereafter, viz., Edinburgh, Saint Andrews," and so on. " To some of their presbyteries were assigned twelve, to some sixteen, to some twenty, to some four-and-twenty kirks, as the brethren deputed to join them thought meetest, till better advice be had." That is the earliest Act, I think, on the part of the Church establishing its own judicatories. Then, at the bottom of the page, there is a further Act of 1581 — I am informed that this is the earhest reference to the Book of Discipline. Mr Johnston : You are wrong ; it has been mentioned half-a-dozen times for three or four years before that. The Dean of Faculty : That is early enough for my purpose, at any rate that Act is in these terms : " Forasmuch as Travells" (that is trouble) "has been taken in the forming of the Policy of the Kirk, and divers Suits made to the Magistrate for approbation thereof; which albeit as yet has not taken the happy Effect which good men would crave, yet that the Posterity should judge well of the present Age, and of the Meaning of the Kirk : The Assembly has concluded, that the Book of Policy agreed upon in divers Assemblies before, should be registered in the Acts of the Kirk, and to remain therein ad perpetuam rei memo riam ; and copies thereof to bo taken by every Presbytery." That was a point upon which the two parties in the Church all along differed. The Free Church party said : " That as a part of one of the standards of the Church, it did not need the approval of the State ; we tried to get the State to approve of it, but they would not." And the other side said : "No, we have registered it in our own books, and made it a standard, so far as the Church is concerned, but as we are an Established Church, and as the State never approved of it, it is not one of the standards of the Church." Accordingly, it was decided by the Civil Courts, and Lord Justice Clerk Hope said, no doubt if the Church had got the Book of Disciphne recognised by the Church then, they would have had power to do any thing they liked, because the powers prescribed for the Church in the Book of Discipline are so large, that then, no doubt, they could have set up Presby teries and done everything they wanted to do. With regard to the Free Church, now that they are away from the State and took the Book of Discipline with them, they must be held to have all these extensive powers which Lord Justice Clerk Hope said would have belonged to them, as an Established Church, if the Book of Discipline had been recognised by the State. Then your Lordships have an Act of Assembly of 1582, with regard to the erection of Presbyteries — I think I need not read it all, but perhaps I ought to read a passage at letter C; "The Assembly giveth commission to erect Presbyteries in Caithness and Sutherland, in Ross, Murray, Aberdeen and Banff; and what the brethren deputed to this charge shall do, to report to the next Assembly, against which time, if the said Presbyteries be not erected, the Assembly giveth commission to these brethren to use the office of visitors, as was accustomed before the form of elderships came in use." Then at page 17 in the Act of 1590 there is again a reference to the Book of 372 HOUSE OF Discipline: "Forasmuch as it is certain that the Word of God cannot be kept in Sincerity without the holy Discipline be had in observance; It is therefore by common Consent of the whole Brethren and Commissioners present concluded, that whosoever has borne office in the Ministry of the Kirk within this Realm, or that presently bears or shall hereafter bear office therein, shall be charged by every particular Presbytery where their residence is to subscribe the Heads of Disciphne of the Kirk of this Realm at length set down and allowed by Act of the whole Assembly in the Book of Policy, which is registered in the Registers of the Kirk, and namely the Heads controverted by the Enemies of the Discipline of the reformed Kirk of this Realm, between this and the next Synodal Assemblies of the Provinces." Then, my Lords, at the top of the next page, subscription of the Book of Disci pline is insisted upon — you will find that in the Act of 1591. The Assembly enacted " Anent the Subscription of the Book of Pohcy enjoined in the last Assembly, in respect the greatest part of the Presbyteries as yet has not satisfied the ordinance of the Kirk ; the Assembly has ordained the former Act to be observed and executed between this and the next Assembly, and the Moderator of every Presbytery to see to the Execution thereof under the Pain of £40, to be employed to the Use of the Poor beside the public Rebuke in the open Assembly," making it one of their most authoritative documents. Then, my Lords, the next Act is the well-known Act of 1638, where the Church insisted upon acting in defiance of royal authority. Lord Davey : Is that more than a pro test against usurpation and encroachment by the State? The Dean of Faculty : They profess to annihilate what they dislike. They not only condemn it but reject it, and make it an act of discipline. Lord Davey : Is that not similar to the protests and resolutions which were passed at about the same period in the House of Commons, regarding the alleged encroachments of the Crown. LORDS The Dean of Faculty: Those were simply protests, but this was to be a rule of conduct within the Church. This was the Assembly regulating the affairs of the Church as regards these matters, and this was operative. Your Lordships have the Act beginning on page 18. I am not, of course, going to read the whole of the Act — I merely wish to point out what it deals with : " The Assembly having dili gently considered the Book of Common Prayer, lately obtruded upon the reformed Kirk within this realm, both in respect of the manner of the introduction thereof, and in respect of the matter which it con- taineth, findeth that it hath been devised and brought in by the pretended prelates without direction from the Kirk and pressed upon ministers without warrant from the Kirk, to be universally received as the only form of divine service, under all highest pains, both civil and ecclesias tical ; and the book itself, beside the popish frame and forms in divine worship, to contain many popish errors and cere monies, and the seeds of manifold and gross superstition and idolatry. The Assembly, therefore, all in one voice hath rejected and condemned, and by these presents doth reject and condemn the said book, not only as Ulegally introduced, but also as repugnant to the doctrine, discipline, and order of this reformed Kirk, to the Confession of Faith, constitu tions of General Assemblies, and Acts of Parliament establishing the true religion ; and doth prohibit the use and practice thereof, and ordains Presbyteries to pro ceed with the censure of the Kirk against all such as shall transgress." That made it a binding law of the Church, which would have the effect of making any per son who did not conform to it to be subject to disciphne and no doubt to deposition if he had been a minister. Then the second head of it relates to the Book of Canons. On page 1 9, between letters A and B, they condemn the Book of Canons. " Therefore the Assem bly all in one voice, hath rejected and condemned, and by these presents doth reject and condemn the said book as con trary to the Confession of our Faith, and repugnant to the established government, the Book of Discipline, and the acts and DEAN OF FACULTY'S constitutions of our Kirk, prohibits the use and practice of the same ; and ordains Presbyteries to proceed with the censure of the Kirk against all such as shall transgress." Then the same applies to the Book of Consecration and Ordination which follows in the next paragraph, and also to the proceedings of the Court of High Commission. Then, my Lords, the next Act is at page 20 — in this again the Book of Discipline is referred to. Lord James of Hereford: Would you mind answering one question about the last Act you referred to? On page 19, at letter E, Article IV. says: "The General Assembly after due trial, having found that the Court of High Com mission hath been erected without the consent or procurement of the Kirk " : Does not that carry out what my noble and learned friend, Lord Davey, was just saying — here an attack was made upon the interference of the secular power as compared with the powers within the Church. If you look at that Article, is not that so ? The Dean of Faculty : Yes, my Lord ; but the Church passed an Act which had the effect of excluding that from their form of worship in the Church, and made it an offence punishable by the law of the Church if anybody did not recognise that. Lord James of Hereford : They were proclaiming self-government within their own body by themselves. The Dean of Faculty -. Yes. Lord James of Hereford : That carries your argument to a certain extent, but must you not go on a little further and show that this claim which they were making there was not in any way in consistent with there being an Established Church? The Dean of Faculty : They were within the Established Church at that time. Lord James of Hereford : When we come to the junction with the United Presbyterian Church, we shall have to see whether they had not gone away from that matter of being the Estabhshed Church. The Dean of Faculty : What I am SPEECH 373 trying to establish now is, that the Free Church had, and took with them, the legislative power and authority which the Church of Scotland had historically. If they were a legislative body, then it will have to be shown that they had done something which limited their legislative power, so as not to be able as the Free Church to legislate about anything that affected their power as regards their own affairs. Lord James of Hereford : Have you not got to distinguish between the claim to self-government within the Church, and the claim to legislative power to the extent of altering doctrine ? Have you not got to make that difference clear and to carry your argument to the latter point ? The Dean of Faculty: What I suggest is, that if they have legislative power that imports that they can do anything applicable to their own affairs. Lord James of Hereford : Power to deal with anything applicable to their own affairs is one thing, but I should like to hear how you would say they can go on and can alter their doctrines in the sense of altering them, as against the founders of the trust. The Dean of Faculty : If people join a body which has inherent legislative power, must not the people who join take the risk of that legislative power being- exercised by the body? I quite under stand that a person joining a body may say, " I find a certain system stereotyped, and the body which I am joining has no inherent power to make any alteration upon its existing system." That is quite an intelligible position, but I say, if the body which the person is joining has within itself inherent legislative power, then the person who joins must say, " I commit my interests to this body — I become one of the body, one of this legislative body — and I shall have my voice like every other member, in regu lating what its future legislation is to be with regard to the affairs of the body." But except as a unit of that body, using his influence and his power of regulating legislation, he is not in a position to say, " I shall not allow the legislative powers to be exercised at all." If he could do 374 HOUSE that, that would be wiping out from the constitution of the body, which he is joining, one of its inherent powers. Lord James of Hereford: Then I suppose you will not contest Mr Johnston's point, that if the legislation is exercised to the extent that the Church loses its identity, then they wiU have gone beyond the view you contend for ? The Dean of Faculty : If the Church extinguished itself, and ceased to be a Church at aU, then, so far as I can see, it would neither exist as a Church nor would it have any members — it would just simply be nothing. Lord James of Hereford : An example was put to Mr Johnston in the course of his argument : supposing they made such a change as virtually to accept the doctrines of the Church of Rome, surely you would not then say that it was the same Church to which the bequest of the founders was made ? The Dean of Faculty: That would depend entirely upon the extent of its powers to change. A body, I submit, can never cease to be the same body by exercising its inherent powers — it is merely exercising its own function. If it does something that extinguishes itself, then it is non-existent ; but if the body is constituted in such a way as that it has the inherent power to do something, so long as it is only exercising that power, it is merely fulfilling one of its own func tions, and therefore the alteration so produced cannot have any effect upon the existence of the body. The Lord Chancellor : I follow all your words, but of course ultimately, all of them require exposition. Do you mean to say that the day after the General Confession had been agreed to by the Church (the Barrier Act had not been passed at that time, you will remember) it could at once have adopted the whole of the formula of the Church of Rome ? The Dean of Faculty : I am assert ing their spiritual independence The Lord Chancellor: I put the question to you for the purpose of testing it. The Dean of Faculty : I will answer your Lordship's question ; but, if you will allow me, I will safeguard my answer to OF LORDS this extent, in this way : I think in cases like this, of the exercise of a power it is always very difficult to say what is the precise limit with regard to it at either end. The Lord Chancellor : Therefore, I put a case which I think is about as extreme as could possibly be imagined. The Dean of Faculty: I do not profess to be able, and I do not think any man probably would be able, to say accurately, what is the utmost that can be done at the one end or what is the least that can be done at the other. The Lord Chancellor : Your words were unqualified, subject to this, that you say it must not extinguish itself. But that of itself requires definition. What do you mean by "extinguish itself"? I should have thought that a Church who professed a Confession of Faith, which in terms repudiated Roman doctrine, would if it accepted that doctrine go as near extinguishing itseU in the sense that I understand it, as anything could be. The Dean of Faculty : I take my stand upon what seems to me to be the essential principle of this Church — that it is a Church of which Christ is the only Head, and His Word the only Standard. The Lord Chancellor: I should doubt very much whether the Church of Scotland, or the Church of Rome, or the Greek Church, would any one of them shrink from that observation. The Dean of Faculty: I am not quite sure about that. I do not speak with knowledge, but I rather thought the Roman Church, for example, would not agree to that. The Lord Chancellor: Surely not. Take the Bishop of Rome, who in the view of that Church is the Vicar of Christ, would they not adopt the words that you have used? Lord Davey: I should have thought the Church of Rome would have been the only Church that corresponded to your description. The Dean of Faculty : I hesitate to speak dogmatically upon the question, but I have always understood that the Church of Rome refused to take the view that the Word of God was the only Standard DEAN OF FACULTY'S — I thought they would give importance and authority to tradition. Lord Davey : Whatever the Pope for the time, at any rate in cathedra, lays down down is the law and doctrine of the Church. The Dean of Faculty: Yes. Lord Davey : Deriving his authority from the inspiration of God's Word and treating himself as the Vicar of Christ. The Dean of Faculty : Surely there is a great distinction between that and the power of the Protestant Church Lord Davey : Of course an Assembly is not an individual. The Dean of Faculty : No ; but the theory of the Protestant Prebyterian Church is, that Christ is the Head and the Church is His body. Lord Davey : The Roman view I suppose is, that Christ is the Head of the Church and the Pope is his Vicegerent upon earth. The Lord Chancellor: Yes. How ever, I do not want to interrupt you. The only reason of my interposition was because you know it is so difficult to follow an argument unless you see in what sense the words are being used. The Dean of Faculty: Yes. Of course my own answer would be, that in this present case in what we have to prove here, we are a very long way within these difficult extreme points your Lordship was putting. The Lord Chancellor : I am not so sure of that. The Dean of Faculty: When one is asked specifically to define the utmost limit at either end, that is an extremely difficult thing to do. The Lord Chancellor: You hesi tated to reply to my question, and of course you are not bound to reply to it. What I wanted to know was, whether the inherent power that you claim is such that the Church in the sense that you understand it, could the day after the Westminster Confession had been adopted by the Church, have reverted to the Church of Rome. The Dean of Faculty: I am not prepared to say that the Church could have done anything that would be incon sistent with the position of being a SPEECH 375 Church of which Christ is the only Head and His Word the only Standard. If it be the case (I do not profess to be able absolutely to answer the question) that the Roman Church fall within that, then my answer to your Lordship's question is that they could. If, on the other hand, the Roman Church does not fall within that, then I say they could not ; because it was the basis of this Church, that they were a Church standing on the formula which I have mentioned. Lord Davey : Whether the voice of the Divine Head of the Church is uttered on earth by a single individual chosen in a particular manner, or whether it is uttered by the office-bearers of the Church assembled in General Assembly cannot make any difference in principle. The Dean of Faculty : It may not. Lord Davey : However, I understand that to be the theory upon which you base your argument. The Dean of Faculty : I can only answer the question in regard to the Roman Catholic Church hypothetically. If the true definition of the position of the Roman Church would make it fall within that which I have described as the basis of this Church, then I think they would have been entitled to go back to Rome. But if your Lordships ask me whether they could have made any alteration they liked upon the Con fession of Faith, then I certainly answer that my contention is that they could. Just as they adopted the Confession of Faith of their own will and voluntarUy, that I say implied the inherent power to do it, and having that inherent power to do that it seems to me they could alter it. The Lord Chancellor: When we are dealing with these questions as to these words adopting particular docu ments in this case we must remember the meaning of that is, that they profess that as a doctrine of their Church. It is not adopting something which is in its nature temporary and alterable, but it is a ques tion whether or not that is the test of the doctrine upon which their Church is founded. The Dean of Faculty : I hope your Lordships will keep in view that they 376 adopted two suggest HOUSE OF Confessions. I do not that there in very deep funda mental distinction between John Knox's Confession and the Westminster Confes sion, but they are most certainly not the same. The Lord Chancellor: You mean they are not in words the same ; that is so. But I think we should be opening a very deep controversy if we were to say that there was any difference in doctrine between the one and the other. The Dean of Faculty : I do not pro- propose to go over the two documents to ask your Lordships to discriminate be tween them, but there are undoubtedly important matters which they deal with differently. They are not identical upon Election, for instance. Curiously enough, or perhaps it may be quite naturally, John Knox's Confession is much firmer upon Election than the Westminster Confession. The Westminster Confession is much stronger upon the Sabbath than John Knox's Confession. John Knox's Confession says nothing about the Sabbath. The Lord Chancellor: You use phrases about one being stronger than the other, but I do not think you carry your proposition any further unless you can say there is some conflict between them. The Dean of Faculty : They are not in agreement. The Lord Chancellor : They are not the same in one sense, but they purport to be the same. The Dean of Faculty: With defer ence, my Lord, if the Westminster Con fession was the same as John Knox's Confession there would have been no object in making a change. It was so substantial a difference that the Church agreed The Lord Chancellor: There I think you must bear in mind the history. You must remember the object of the one was different from the object of the other. The object of John Knox's Confession was a profession of what the Protestant doctrine was, as against the Church of Rome. The object of the Westminster Confession was to have a universal creed for the whole Kingdom. LORDS The Dean of Faculty : On the other hand, my Lord, it was necessary to make a change upon John Knox's Confession to facUitate uniformity, and I doubt very much whether those who accepted the Westminster Confession with the view of conciliating whom it was to a large extent prepared, would have accepted John Knox's Confession. It was framed on principles to put the creed upon a basis which would probably be accepted all round, and so produce national uniformity, whereas, I think it was seen that John Knox's Confession, taken by itseU, could not by any possi- bUity be put forward as being hkely to produce that result. Accordingly, the Church in departing from the one and taking the other, was, as I contend, simply exercising its inherent power. The Lord Chancellor: Do you suppose any of those interested in any of these questions who substituted the Westminster Confession, would have ad mitted that there was any change of doctrine ? The Dean of Faculty : I think they said that they strained a point in order to get uniformity. I think they did say that. They were very anxious to promote uniformity and they turned a blind eye, apparently The Lord Chancellor: Whether they did it rightly or wrongly I do not say, or whether they succeeded in accom plishing their design ; but the idea was to explain more plainly, in terms that all would accept the same doctrine — they each of them said that it was the same doctrine. They may have been wrong, but surely that was the theory. The Dean of Faculty: I do not know that I can advance my argument very much further than by again referring to what is the main position I take upon this point. I submit it is historically proved that the Church of its own act first adopted the one Confession and then adopted the other; and it follows from that, that they have power to alter. I say the same power which enabled them to adopt, enabled them to alter. May I call your Lordships' attention to the statute in which they adopted the Westminster Confession. Your Lord- DEAN OF FACULTY'S SPEECH ships have it at page 36 of the new book. It is also at page 12 of Print A. Lord Davey : They expressly say that it contained no new doctrine. The Lord Chancellor : Yes. The Dean of Faculty : I think they do. They adopted it with discrimination. Upon page 12 of Print A your Lordships have the Act approving the Confession of Faith act out " A Confession of Faith for the Kirks of God in the three kingdoms, being the chiefest part of that uniformity in religion which, by the Solemn League and Covenant, we are bound to endeavour : And there being accordingly a Confession of Faith agreed upon by the Assembly of Divines sitting at Westminster, with the assistance of Commissioners from the Kirk of Scotland ; which Confession was sent from our Commissioners at London to the Commissioners of the Kirk met at Edinburgh in January last, and hath been in this Assembly twice publicly read over, examined, and considered ; copies thereof being also printed, that it might be particularly perused by all the members of this Assembly, unto whom frequent intimation was publicly made, to put in their doubts and objections, if they had any : And the said Confession being, upon due examination thereof, found by the Assembly to be most agreeable to the Word of God, and in nothing contrary to the received doctrine, worship, discipline, and govern ment of this Kirk : And, lastly, It being so necessary, and so much longed for, that the said Confession be, with all possible diligence and expedition, approved and established in both kingdoms, as a prin cipal part of the intended uniformity in religion, and as a special means for the more effectual suppressing of the many dangerous errors and heresies of these times ; the General Assembly doth there fore, after mature deliberation, agree unto, and approve the said Confession, as to the truth of the matter ; (judging it to be most orthodox, and grounded upon the Word of God ;) and also, as to the point of uniformity, agreeing for our part, that it be a common Confession of Faith for the three Kingdoms. The Assembly doth also bless the Lord, and thankfully acknowledge His great mercy, in that so 377 excellent a Confession of Faith is pre pared, and thus far agreed upon in both kingdoms ; which we look upon as a great strengthening of the true reformed religion against the common enemies thereof." Then I ask attention to what follows : "But, lest our intention and meaning be in some particulars misunderstood, it is hereby expressly declared and provided, That the not mentioning in this Con fession the several sorts of ecclesiastical officers and assemblies, shall be no pre judice to the truth of Christ in these particulars, to be expressed fully in the Directory of Government. It is further declared, That the Assembly under- standeth some parts of the second article of the thirty-one chapter only of kirks not settled, or constituted in point of government : And that although, in such kirks, a synod of ministers, and other fit persons, may be called by the magis trate's authority and nomination, without any other call, to consult and advise with about matters of religion." Then it goes on to say at letter E, "yet neither of these ought to be done in kirks constituted and settled," thereby specifically limiting the Article in the Confession of Faith to the particular case to which they were agreeable it should be applied, and excluding its application to other cases to which they did not wish it to apply. Then there being doubt as to whether the Article in the Confession might not have imported a higher power on the part of the magistrate as to con vening Assemblies and Synods, they pro ceed to say at letter F, "It being also free to assemble together synodically, as well pro re nata as at the ordinary times, upon delegation from the Churches, by the intrinsical power received from Christ, as often as it is necessary for the good of the Church so to assemble, in case the magistrate, to the detriment of the Church, withhold or deny his consent." My Lords, there, there is not merely an acceptance by the Church of the Con fession of Faith freely and voluntarily, but there is an examination of its terms, and a consideration by members of the Church, for they consider that its terms are satisfactory, and they adopt it with qualifications which show that they felt 378 HOUSE themselves entitled to have rejected it altogether, or only to have accepted it under such modifications as they thought proper. It is a very clear illustration of the exercise by the Church of its inherent power to regulate its own action in such matters. Then, my Lords, the Acts of Assembly which . follow the one I have read are similar in character, dealing frequently with the Book of Discipline. There is a very long Act on page 20 of Print F, which deals with the fact that episcopacy had been established in the Church of Scotland; and the Scotch Church con sidered it had the power, at that time, by its own inherent legislative power, to legislate to the effect of excluding epis copacy. That your Lordships have in the long narrative in that Act. It is known as the Assembly of Glasgow, an historical Assembly, and you have given there a long list of various Acts passed by the Assembly over a period of years. The operative part of the Act is upon page 30, between letters B and C. " The whole Assembly most unanimously, without con tradiction of any one (and with the hesitation of one allanerly), professing full persuasion of mind, did voice that all Episcopacy different from that of a pastor over a particular flock, was abjured in this Kirk, and to be removed out of it. And therefore prohibits, under ecclesi astical censure, any to usurp, accept, defend or obey, the pretended authority thereof in time coming." Then, my Lord, the next Act of Assem bly is the one which deals with the five articles of Perth, which the Church re fused to obey. The circumstances under which those five articles were passed, are, I think, very instructive, as showing the power which was recongnised, even by the State at that time, as being in the Church Courts. Those five articles of Faith, which, no doubt, were passed by the Assembly at Perth in deference to the wish of the State, still took their origin in that Act of Assembly. One may naturally ask why, if these were not matters which belonged exclusively to the Church, the State did not, by the exercise of its own legislative power, im pose those five articles of Perth upon the OF LORDS Church. Instead of that, what was done was that the Crown, by the exercise of influence upon the Assembly, got the Assembly at Perth, which was a creature of the Crown so far as this matter is concerned, to pass these resolutions, which accordingly derive their authority from the Assembly, and not from the State. The five articles relating to kneeling at Communion, private Communion for the sick, baptism in private houses, not in Church, episcopal confirmation of the young, and the observance of certain Saint days. The Assembly enacted with regard to them on page 34, at letter F, as follows : " The whole Assembly, all in one consent, one only excepted, did voice that the Five Articles above specified were abjured by this Kirk in that Con fession, and so ought to be removed out of it; and, therefore, prohibiteth and dischargeth all disputing for them, or observing of them, or any of them, in all time coming, and ordains Presbyteries to proceed with the censures of the Kirk against all transgressors." Then, my Lords, on the next page, your Lordships have the earUest of the Barrier Acts. My learned friend, in speaking of the later Barrier Act, ap peared to treat it as, in some respects, affected by the fact of the convulsed state of civil society at the time it was passed. But the first of these Acts is that of 1639, and there was a complete sequence of them. Perhaps your Lordship would allow me to mention what probably might not be known in regard to the titles of these Acts. There is a title attached to each of these Acts, but that is not part of the Act. The system in the Assembly is this : There are Minutes of Assembly ; the Assembly pass all their Acts in the form of a Minute inserted in the record of sederunt of the day. The title upon the Act is a thing that does not appear in the formal Records of the Assembly at all ; they are merely a docket put on by the officials of the Assembly for coveni- ence, so that the Rubric at the beginning is not a Part of the Act. Now, this first Act of 1639, an "Act anent advising with Synods and Presby teries before determination in novations " is as follows: "The General Assembly, DEAN OF FACULTY'S SPEECH desiring that the intended reformation, being recovered, may be established, ordains that no novation which may disturb the peace of the Church and make division be suddenly proponed and enacted; but so as the motion be first communicate tothe several synods, presby teries and kirks, that the matter may be approved by all at home, and commis sioners may come well prepared, un animously to conclude a solid deliberation upon these points in the General As sembly." So that innovation at that time could only be carried through unanimously. Then in 1641, as your Lordships will see from the Act printed at the bottom of page 35, the form was to some extent altered : " Since it has pleased God to vouchsafe us the liberty of yearly General Assemblies, it is ordained, according to the Acts of the Assembly at Edinburgh, 1639, and at Aberdeen, 1640, that no novation in doctrine, worship or govern ment be brought in or practised in this kirk unless it be first propounded, exam ined, and allowed in the General Assembly, and that transgressors in this kind be censured by presbyteries and synods." Now, with regard to that, of course the observation arises which has already been made, that the question is whether these - Acts of Assembly do not recognise the existence of a power in the Assembly at that time to deal with these matters legis latively. It is perfectly true these Acts do not profess to authorise the Assembly to do it, because it was a body who, according to the theory of the Church at the time, had an inherent power to legis late, and it was simply laying down re gulations for itself as to the exercise of that power. My Lords, I should have read to your Lordships the Act at the bottom of page 34 — that is the Act of December 17th, 1638, restoring the Judicatories of the Church : " Concerning Kirk Sessions, Pro vincial and National Assemblies, the General Assembly considering the great defection of this Kirk, and decay of religion, by the usurpation of the Prelates, and their suppressing of ordinary judica- tories'of the Kirk, and clearly perceiving the benefit which will redound to the religion 379 by the restitution of the said judicatories ; remembering also that they stand obliged, by their solemn oath and covenant with God, to return to the doctrine and dis cipline of this Kirk, as it was professed 1580, 1581, 1590, 1591, which in the Book of Policy, registered in the books of the Assembly, 1581, and ordained to be subscribed, 1590, 1591, is particularly expressed, both touching the constitution of the Assemblies, of their members, ministers and elders, and touching the number, power, and authority of these members in all matters ecclesiastical. The Assembly findeth it necessary to restore, and, by these presents, restoreth all these Assemblies unto their full in tegrity in their members, privileges, liberties, powers, and jurisdictions, as they were constituted by the aforesaid Book of Policy." Thereby putting the Book of Policy (which was the rule of the Govern ment of the Church) in front of the Statute which had been passed at the time, establishing Episcopacy, and, of course, abolishing Presbytery. The Lord Chancellor: I think we have arrived at a point where we might conveniently adjourn. After a short Adjournment. Dean of Faculty : My Lords, I was examining the Acts of Assembly, and the last one I had mentioned was, I think, the Act of 1641, the Second Barrier Act, upon page 35 of the new Print F. I do not require to trouble your Lordships with the next Act, although an important one, because I have already read it. I had pointed out to your Lordships two Barrier Acts at the bottom of page 35 of Print F, namely, 1639 and 1641. The next Act is a very important one, but I do not detain your Lordships upon that — the Act of 1647, approving of the Westminster Confession of Faith. The one following- that, at the bottom of page 37, I can pass over in a word, I think. It is one approving of the Larger Catechism, which may have to be referred to when I come to speak of the question of Confession of Faith. At letter G, page 37, you will see the Assembly " do find upon due examination thereof, that 380 HOUSE the said Catechism is agreeable to the word of God, and is nothing contrary to the received doctrine, worship, dis ciphne, and government of this Kirk." Upon page 38 is the Act of 1648, which makes a similar enactment with reference to the Shorter Catechism. The Act of 1690, at letter E, page 38, provides for the subscription of the Confession of Faith. It provides for " retaining sound ness and unity of doctrine, it is judged necessary that all probationers licensed to preach, all intrants into the ministry, and all other ministers and elders received into communion with us, in Church government, be obliged to subscribe their approbation of the Confession of Faith, approven by former General As semblies of this Church, and ratified in the Second Session of the current Parlia ment." The next Act is an Act relating to the same matter, and, I think, is the first form of subscription which was in troduced in the Established Church with regard to the Confession of Faith. I shall have to compare the different forms at different times later. " I, (blank), do sincerely own and declare the above Con fession of Faith, approven by former General Assemblies of this Church, and ratified by law in the year 1690, to be the confession of my faith ; and that I own the doctrine therein contained to be the true doctrine." There is some sug gestion that there was a change made later in the exclusion of the word " whole." The original form did not contain the word "whole," but "that I own the doctrine therein contained to be the true doctrine, which I will constantly adhere to; as likewise that I own and acknow ledge presbyterian Church government of this Church, now settled by law, by Kirk-Sessions, presbyteries," and so on, and "I will submit thereto." Then comes the Act of 1697, which is the Barrier Act, and as your Lordships are very familiar with its terms, I shall not pause now to read it, except to make the remark, as I did with regard to the two previous ones, that it is manifestly an Act which never intended to confer a power which the Church assumed at that time it had inherently, but was for the regulation of the exercise of the power. OF LORDS There is an Act upon the next page, page 40, concerning probationers. The Church, in 1711, somewhat altered the form of Questions to Probationers, which, of course, meant prescribing the terms upon which a person was admitted to be an office-bearer in the Church. I do not think there is anything which specifically turns upon the precise change which was made ; it is simply here for the purpose of showing the exercise of a power by the Established Church, apparently apart altogether from the State, to fix and determine on what footing it would admit persons to be clergymen in the Established Church. Then there is an Act upon the next page, page 42, which I should just like to call attention to, to prevent my coming back upon it. It is an "Act for preaching Catechetical doctrine with directions therein." The Assembly say, "The General Assembly, considering how much it may conduce unto the establishment of people in the Christian faith, and to the promoting of piety in practice, that they be well in structed in the principles of our holy religion ; do therefore recommend to the several ministers of this Church punctually to observe the Acts of former General Assemblies for preaching catechetical doctrine." The words which led me to call attention to the Act are to be found between letters E and F, "particularly of the Eternal deity of our Lord and Saviour Jesus Christ, and of the satis faction to Divine Justice made by him who is our only propitiation, of regenera tion by efficacious grace, of free justifica tion through our blessed surety the Lord Jesus Christ, received by faith alone, and of the necessity of a holy life, in order to the obtaining of everlasting happiness." That may have to be referred to afterwards, when speaking on the Doctrinal Question. I would ask leave of your Lordships to mention an Act, which I am sorry to say is not printed, because I daresay the importance of it was not realised at the time, but my learned friend Mr Johnston has suggested that this Barrier Act was an Act which was in abeyance and was not really continuously recognised as an operative Act regulating the procedure of the Church DEAN Mr Johnston : Pardon me, I never suggested such a thing, and I do not suggest it now. The Lord Chancellor : That is a misunderstanding. Dean of Faculty : Then I may take it that my learned friend admits that the Barrier Act was constantly observed. Mr Johnston : Yes ; for what it was to be applied to. Dean of Faculty: Treated as an operative Act for regulating the enact ments of the Church with regard to the matters referred to in the Barrier Act. Lord Davey : You do not contend that the Barrier Act confers powers, but it regulates the exercise of them. Dean of Faculty : Yes, my Lord, it regulates the exercise of the power. The Lord Chancellor : While you say that, I suppose no contention is raised on the other side, that, given the powers, the particular conditions prescribed by the Barrier Act were not observed ? Dean of Faculty : I suppose not. I have a word to say about that. Your Lordship means with regard to the Union. My learned friend said something about the manner in which the Union was carried through ; he seemed to imply that it was not even, if competent, a properly completed Act of the Church. I have something to say about that which I can deal with in a sentence. The Lord Chancellor : We are only speaking at present of the Barrier Act. Dean of Faculty : Of course the Union was carried through under the Barrier Act. It was one of those matters which, according to Church Law, re quired to be dealt with under the Barrier Act. The Lord Chancellor : As I under stand the controversy between you, it is not whether or not any particular thing ought to have been done to render the Barrier Act effectual, or, notwithstanding the Barrier Act, to render the thing done effectual — the controversy is whether the Barrier Act had any operation upon such a question as this at all. Mr Johnston : I quite concur in that, my Lord. The Lord Chancellor : I thought so. OF FACULTY'S SPEECH 38i Dean of Faculty : Then I do not need to trouble your Lordship with an Act I referred to, in 1774, where the Assembly found that the two matters dealt with had not been dealt with under the Barrier Act. They said it was quite an irregular proceeding, and accordingly they recalled the two Acts, which had been treated as binding Acts in the Assembly, in spite of the procedure under the Barrier Act not having been adopted. There are, in the Acts of Assembly — I do not say any matters of great moment, but such matters as the Church had to deal with in the way of alteration — constant, almost yearly, instances of matters being sent down to Presbyteries, relating to alterations, and dealt with under the Barrier Act. Then there is an Act of the same class as the Barrier Act upon page 42, letter G : " The General Assembly appoints and enacts that no Act rescissory of any stand ing Acts of the General Assembly be passed, until such Acts rescissory be first transmitted to the several Presbyteries of this Church, and their general opinion had for rescinding the same." Then in regard to such matters as the licensing of probationers, your Lordships have an illustration upon page 43, at letter D, where the Presbyteries " did collect what appears to them most material in former Acts, and transmit the same, in form of an overture to Presbyteries, and now finding by report from their Committee for Overtures, that a majority of Presby teries have agreed to turn the same into a standing law of the Church, the General Assembly, after reasoning, resolved, by a very great majority, to turn the said overture into a standing law of the Church, and accordingly did, and hereby do, enact and ordain, that the following regulations shall be strictly observed in all time coming." I point that out really as an illustration of what is perhaps trite, that the Assembly always has acted by a majority. To bring the matter com petently before the Assembly for their consideration, any alteration, any new law, had to go to the Presbyteries under the Barrier Act. Then, unless it came back from the Presbyteries with the pre vailing voice of the Church as was ascer- 382 HOUSE tained in favour of it, it fell to the ground. If it did come back from the Presbyteries with the prevailing voice of the Church in favour of it under the Barrier Act, then the Assembly had to deal with it as a legislative body, and, of course, on the principle applicable to all legislative bodies, they dealt with it on the principle of being carried by a majority. This is an illustration of that, where, by a majority, they carried it. In 1799 there was an Act dealing with regulating unqualified Ministers, which is upon page 47 of Print F. That was an Act passed during the time that the Moderate Party were in the ascendency in the Established Church, and accord ingly, as the Free Church took over the existing Acts of Assembly, they forthwith repealed that Act, as there were matters in it which they disapproved of, going through the Barrier Act in the usual way. Now, I come to the Statutes which I have already read, namely, the Chapels Act and the Veto Act. In order not to have to recur to this matter, your Lord ships will find what two Writers, re cognised as authorities in Scotch Ecclesi astical law — Principal Hill and Dr Cook — say about this, on pages 188 and 191 of Print F. They were both members of the Moderate Party, and both leaders of the Party who remained in the Church. The Lord Chancellor: You say they were members who remained in the Church? Dean of Faculty: Yes, well-known leaders of the Moderate Party in the Church. The Lord Chancellor: Those who remained in the Established Church ? Dean of Faculty: Yes. One was dead before the Disruption, but he be longed to that Party in the Church. The Lord Chancellor: It throws light upon the subjects which are being debated now, but of course it cannot be supposed to be expository of those opposed to his view, who formed the Free Church afterwards. Dean of Faculty : No, my Lord, but he certainly supports the view that there was an inherent legislative power in the Church, which is the point I desire to OF LORDS make out. On page 190, immediately above letter D, he says: "Every Judica tory is occasionally called to enforce the laws of the Church, by making such special enactments, in conformity to those general laws, as are suggested by the circumstances of the district under its jurisdiction ; and Church Courts, like all others, have a right, within certain limits, to regulate the forms of their own pro ceedings. It is not to such partial enact ments or regulations that we refer, when we speak of the legislative power of the Church. We apply that term to the power of making standing laws concern ing matters of general importance, which are binding upon all the members and Judicatories of the Church. From the first establishment of Presbyterian govern ment in 1560, till some years after the Revolution, such laws proceeded from the sole authority of the General Assembly. But an Act of the Church in the year 1697, which we are accustomed to call the Barrier Act, prescribes the foUowing mode of enacting permanent and standing con stitutions." Then he proceeds to deal with it. The Lord Chancellor : What do you understand the learned Writer meant by " constitutions." Dean of Faculty : I think he means laws, "permanent, and standing constitu tions." The Lord Chancellor : Do you sup pose that the writer of that would have included in that the power to alter doctrine ? Dean of Faculty: I think so, my Lord. I should certainly say so, apart from State Establishment. The Lord Chancellor: You do say that he includes the alteration of doctrine there I Dean of Faculty: I think so. He goes on to say, with regard to that, " The proposal of making a new general law, or of repealing an old one, which, in our ecclesiastical language is termed an over ture," and on page 191: "The Barrier Act, according to its own preamble, was intended 'for preventing any sudden alteration, or innovation, or other pre judice to the Church, in either doctrine, worship, discipline, or government, now DEAN OF FACULTY'S happily established therein ' : and any person who considers the momentary impressions incident to all large bodies of men in the heat of debate, or in their zeal for a particular object, will not think it advisable that a Court so numerous as the General Assembly, which sits once a year for ten days, should have the un controlled power of making standing laws upon the spur of the occasion." I think that must be standing laws relating to "doctrine, worship, discipline, or govern ment." The Lord Chancellor: I should doubt that myself, but I see what your point is. The Barrier Act is to prevent any sudden alteration or innovation in this sense. It does not accord with what he says at the end of the sentence, which comprehends all the things which he assumes the power of making. Dean of Faculty : Then your Lord ships have an extract from Dr Cook's work, upon pages 191 and 192. He says, at letter B, after referring to the Barrier Act, " By this Act the legislation of the Church continues still to be re gulated," and he describes the effect of it. Then he says, "When, however, the im mediate enactment of the new law pro posed in an overture appears essential for the good of the Church, the General Assembly exercises the power of con verting the overture into what we are accustomed to call an interim Act ; and with respect to such Acts, Principal Hill thus expresses himself in his view of the constitution of the Church of Scotland : 'It is acknowledged by all who under stand our constitution, that till the meet ing of the next Assembly, such temporary enactments are binding upon all the members of the Church.' A power, how ever, thus to pass temporary enactments, in anticipation of the mind of those bodies by whose authority alone they can be enacted into standing laws, is, of course, liable to be abused, and the object of the Barrier Act thereby defeated, and this is most likely to occur just at those times when its operation is most required. To guard against this, therefore, the General Assembly, 1848, of the last Session, passed the following Act, under the title of 'Act anent the passing of SPEECH 383 interim Acts ' : — ' Whereas it is of great importance to maintain the Act of Assembly, 1697, commonly called the Barrier Act, in its letter and spirit; and whereas the passing of interim Acts has in some instances appeared at vari ance with the foresaid Act, the General Assembly, with the consent of a majority of Presbyteries, enact and ordain that no overture shall be converted into an interim Act which involves an essential alteration of the existing law or practice of the Church ; it being understood that this does not apply to measures which may be necessary for carrying out more effectu ally the subsisting regulations or forms of the Church." These documents, which I have brought under your Lordships' notice, I submit, establish in the first place what perhaps I do not require to make out, that histori cally it is accurate to say that the Church had an inherent legislative power, and exercised that inherent legislative power on a great variety of matters as far back as we have any record of, and passed these Barrier Acts for the purpose of re gulating the manner in which that inherent legislative power should be exercised, and from the terms of the Barrier Act neces sarily implying that that inherent legis lative power had within its scope matters relating to " doctrine, discipline and government." Otherwise these words would have been meaningless in the Barrier Act. The Lord Chancellor : Are you quite right in saying the words would be meaningless ? Might there not be some thing propounded in what one would call the ordinary regulation of anything — take the Form of Admission and Mode of Interrogation to a Candidate for Orders, or what not, which, although within the ordinary power of the proper authority to alter or add to, yet might involve in it some alteration of doctrine? Might not that be the operation of the Barrier Act, to say you shall not do that, and for the purpose of preventing your doing that — slipping in some false doctrine which we did not intend to have recognised as part of our Constitution — you shall have this exposed to the whole procedure of the Barrier Act ? I think those words would 384 HOUSE OF be very sensible in that view, would they not? Dean of Faculty : If the Church had a power which it had been in the habit of exercising, of legislating with regard to doctrine, worship, discipline, or govern ment. The Lord Chancellor : Your words were that those words would be unintel ligible and meaningless if they had not such power. But suppose they had not such power, and for the purpose of pre venting their exceeding that power those words were inserted in the Barrier Act, they would have a very intelligible opera tion, would not they ? Dean of Faculty: I submit the natural inference from those words would be The Lord Chancellor : That is another proposition. I am not dealing with that, but only dealing with your last observation, that the words would be meaningless and inoperative. It seems to me that assuming the Church had no such power as you are contending- that it had, namely, to alter doctrine, those words would have a very operative and sensible meaning, even in that view. Dean of Faculty: What I meant when I submitted that they would be un intelligible, is this, that an Act by the Church for preventing a sudden altera tion or innovation with regard to a parti cular matter was difficult to understand unless the Church recognised that such a power existed. To enact that in order to prevent a sudden alteration in doctrine a particular procedure should be followed, necessarily implied that, if followed, the alteration could be made. That seems to me necessary to be implied. The Lord Chancellor : I know, and noted before the effect you give to the words " sudden " there, but I am afraid I do not follow the argument to the extent of assuming that that was an implied admission that if it was not a sudden but a deliberate alteration in doctrine, they could do it. Dean of Faculty : I submit that the Act necessarily implies that the Church recognised that an overture might be sent to the Presbyteries proposing an altera tion in doctrine. LORDS The Lord Chancellor : Or proposing something, the effect of which might be to affect doctrine, and that therefore full opportunity would be given to the Church to consider it, and to see whether it did affect doctrine or not. Dean of Faculty : As a proposed alteration of doctrine. Therefore what strikes one's mind is that this Scheme of sending Overtures relating to a change of doctrine to Presbyteries for the purpose of ascertaining the prevailing mind of the Church with regard to the proposed change, is a little difficult to understand, unless the Church who instituted this method, recognised that they could, when the overture came back from the Presby teries with the approval of the requisite member, deal with it by way of legisla tion. That is, my Lord, what I intended to present upon the Act. The Act of 1641, I believe, should be kept in view with regard to this matter ; it is at the bottom of page 35 : " Since it has pleased God to vouchsafe us the libertie of yearly Generall Assemblies, it is ordained, according to the Acts of the Assembly at Edinburgh, 1639, and at Aberdene, 1640, that no novation in doctrine, worship, or government be brought in or practised in this Kirk unless it be first propounded, examined, and aUowed in the Generall Assembly, and that transgressors in this kinde be censured by presbyteries and synods." Perhaps these words go even a little further in supporting the implication that the Act is necessarily based upon the hypothesis that the power exists. Lord Robertson : But upon that Act, which seems to me rather an important one, I should like your more considered views. Prior to 1641 was the General Assembly the legislative body in the Church in matters of doctrine? Dean of Faculty : I think it was, my Lord, in so far as they could do that con sistently with State connection. Lord Robertson : Then how comes it that in 1641 a legislative Act of the General Assembly was required to give the Assembly alone the power of altering doctrine? I suggest to you that the same argument which you use on the Barrier Act would imply that previous DEAN OF FACULTY'S SPEECH to this, according to the constitution of the Church, other bodies — presbyteries, kirk-sessions, or who you like — had the power to alter doctrine. Dean of Faculty : No, I do not think that, my Lord. Lord Robertson : Just look at it. Dean of Faculty: What I would suggest rather would be this : that the Assembly had the power, but had exer cised it with too much suddenness in the opinion of the Assembly. That is the view I submit. The Assembly had the power, but there had been exercises of that power which the Assembly thought were too rapid, and there might be repe titions of that undue rapidity. I do not think we need go very far to find what they had in view. There is no doubt they were thinking at this time, when they introduced this fence of the altera tion, probably chiefly of Church govern ment. One Assembly had abolished Episcopacy, and I daresay they were very much afraid that some other As sembly might rashly abolish Presbytery. Lord Robertson : The peculiarity about this Barrier Act is that it has nothing to say to Presbyteries at all. It does not say the General AssembUes plus the pres byteries are to legislate, but that the legislative power shall be in the General Assemblies. Dean of Faculty: If you look on page 35 at the Act of 1639, it says : "The General Assembly, desiring" Lord Robertson : I am speaking of the next one. Dean of Faculty : But this is really a sequence of Statutes. Lord Robertson: I only thought it fair to call your attention to it. Dean of Faculty: I should like to meet the point if I can. My suggestion is that all these three statutes require to be read together in considering what was the power which the Church claimed at that epoch of its history with regard to legislation, and these were simply dif ferent modifications of the same power. In 1639 they ordained "that no novation which may disturb the peace of the Church and make division be suddenly proponed and enacted; but so as the motion be first communicate to the seve- 385 ral synods, presbyteries, and kirks, that the matter may be approved by all at home, and Commissioners may come well prepared, unanimously to conclude a solid deliberation." I think that that pointed exclusively at legislation by the Assembly. The Book of Discipline, I think, regulated to a very large extent the powers which were to belong respectively to the kirk- sessions, the presbytery, the synod, and the General Assembly, treating the Gene ral Assembly as the General Council, and the body which had the legislative power, the inferior Courts being treated as bodies having powers specially defined in the Book of Discipline, and of a much more limited character than the General As sembly had. Accordingly, the General Assembly at the dates of these Barrier Acts had, I submit, in view what they had themselves laid down -with regard to the jurisdiction of their different Courts, and they were here deahng with that which had been appropriated to the Supreme Court of the General Assembly, and not what had been referred by the Book of Discipline to the subordinate Judicatories. That is the remark which would occur to me in answer to the sug gestion your Lordship has made. I submit that the question is not his torically one of what in fact was the power, but that the question is what was the power which the Free Church party claimed in 1843, and it is enough for my ease to show that in 1843 they, on a certain theory of what were the powers of the Church — upon the theory that, according to their belief, at any rate, the rights of the Church were such as they had maintained during the pre-disruption period, and in the litigation which took place — put these forward as their view of the position of the Church, and accord ingly founded their Church upon that theory. Now, I pass to the consideration of the documents at and about the time of the Disruption, which fall, I submit, to be read in the light of the circumstances connected with the Disruption, to which I have called attention. These documents your Lordships have in Print A. I call attention, in the first place, to the Claim, Declaration, and Protest, for the purpose 2B 386 HOUSE of contending that on an examination of that Document there is nothing in it which justifies the view that the Church made the question of Establishment an essential or fundamental principle of the Church in the sense contended for by the AppeUants. I shall submit to your Lord ships that when this document is exa mined, it supports the view that the Church put forward exactly the same case which they had done during the Disruption period, that what they were claiming was that they were the Church of Jesus Christ, that he was the Holy Head, and that no temporal power had any right of inter ference with them at all. That was the essence of the Church they were forming, and not Establishment at all. At page 17 of Print A is the Claim. The Free Church Party in the Church had found that they had been defeated in all their litigations, and that the State had con trolled them in the various ways I have pointed out, ignored the Veto Act, pre vented them acting on the Chapels' Act, and interdicted them from proposing their own office-bearers — and it was under those circumstances that they appealed to the Crown to give them redress in respect of the position that they occupied. They begin upon page 17: "The General Assembly of the Church of Scotland, taking into consideration the solemn cir cumstances in which, in the inscrutable providence of God, this Church is now placed ; and that, notwithstanding the securities for the government thereof by General Assemblies, Synods, Presbyteries, and Kirk-Sessions, and for the liberties, government, jurisdiction, disciphne, rights, and privileges of the same, provided by the statutes of the realm, by the constitu tion of this country, as unalterably settled by the Treaty of Union, and by the oath ' inviolably to maintain and preserve ' the same, required to be taken by each Sove reign at accession as a condition precedent to the exercise of the royal authority, — which securities might well seem, and had long been thought, to place the said liberties, government, jurisdiction, disci pline, rights, and privileges of this Church beyond the reach of danger or invasion ; — these have been of late assaUed by the very Court to which the Church was OF LORDS authorised to look for assistance and pro tection, to an extent that threatens their entire subversion, with all the grievous calamities to this Church and nation which would inevitably flow therefrom; — did and hereby do solemnly, and in rehance on the grace and power of the Most High, resolve and agree on the following Claim, Declaration, and Protest." Might I pause for a moment there to ask your Lordships' attention to the fact that they frequently use in this document both the words "fundamental" and "essential," which are those chosen by the Pursuers, and I do not think your Lordships will find anything in this to suggest the association of either of the ideas, " fundamental " or "essential," with any doctrine of the Establishment. I do not think my learned friend, Mr Johnston, argued that in any of the documents those words were asso ciated with the principle which he con tends to be essential, namely, the duty of the civil magistrate. My learned friend, Mr Salvesen, did so, and I may say he had this justification for it that I think the Lord Justice-Clerk, in his opinion, does associate those words with one of the passages at the close. When I come to deal with them I think I shall be able to satisfy your Lordships that what his Lordship has treated as the established principle was the enunciation of the Doctrine of National Religion, which is a totally different thing, and his Lordship was under a misapprehension in supposing that in any of the documents the " fundamental " and " essential " are associated with the duty of a Civil Magis trate to support that which is the Estab lishment principle. The Lord Chancellor : When you say, in a parenthetical passage, " National Religion is a different thing," I do not agree, and I should hke you hereafter to deal with that. Dean of Faculty: WUl your Lord ships allow me to say in one sentence, that I think I shall be able to show your Lordships this difference, in the estima tion of the Church, is, that while un doubtedly the United Presbyterian Church took a somewhat different view as to Estabhshment, they concurred in the view of National Religion in the DEAN OF FACULTY'S 8ense of the passage which the Lord Justice Clerk founds upon — National Religion, as distinguished from National Secularism, I mean. Will your Lord ships now kindly observe what it is they describe as " fundamental " : " Whereas it is an essential doctrine of this Church, and a fundamental principle in its consti tution, as set forth in the Confession of Faith, thereof, in accordance with the Word and law of the most holy God, that 'there is no other Head of the Church but the Lord Jesus Christ ' (Chapter xxv., Sec. 6) ; and that, while ' God, the Supreme Lord and King of all the world, hath ordained civil magis trates to be under him over the people, for his own glory, and the public good, and to this end hath armed them with the power of the sword ' (Chapter xxiii, Sec. 1) ; and while ' it is the duty of people to pray for magistrates, to honour their persons, to pay them tribute and other dues, to obey their lawful com mands, and to be subject to their authority for conscience' sake,' 'from which ecclesiastical persons are not ex empted ' (Chapter xxiii, Sec. 4) ; and while the magistrate hath authority, and it is his duty in the exercise of that power which alone is committed to him, namely, ' the power of the sword,' or civil rule, as distinct from the 'power of the keys,' or spiritual authority, expressly denied to him, to take order for the pre servation of purity, peace, and unity in the Church, yet 'The Lord Jesus, as King and Head of his Church, hath therein appointed a government in the hand of Church officers distinct from the civil magistrate ' (Chapter xxx., Sec. 1) ; which government is ministerial, not lordly, and to be exercised in consonance with the laws of Christ, and with the liberties of His people." That is the first enunciation of what they consider as essential and fundamental with regard to their creed and doctrine, and of course is merely an assertion of spiritual inde pendence. They took out those passages of the Confession of Faith which support that view. Then they say : " And whereas, according to the said Confes sion, and to the other standards of the Church, and agreeably to the Word of SPEECH 387 God, this government of the Church, thus appointed by the Lord Jesus in the hand of Church officers, distinct from the civil magistrate or supreme power of the State, and flowing directly from the Head of the Church to the office-bearers thereof, to the exclusion of the civil magistrate, com prehends as the objects of it, the preach ing of the Word, administration of the Sacraments, correction of manners, the admission of the office-bearers of the Church to their offices, their suspension and deprivation therefrom, the infliction and removal of Church censures and generally the whole 'power of the keys' which, by the said Confession, is declared, in conformity with Scripture, to have been 'committed' to Church officers, and which as well as the preaching of the Word and the administration of the Sacra ment, it is likewise thereby declared that ' the civil magistrate may not assume to himself; And whereas this jurisdiction and government, since it regards only spiritual condition, rights and privileges, doth not interfere with the jurisdiction of secular tribunals, whose determinations as to all temporalities conferred by the State upon the Church, and as to all civil con sequences attached by law to the decisions of Church Courts in matters spiritual this Church hath ever admitted, and doth admit, to be exclusive and ultimate, as she hath ever given and inculcated im plicit obedience thereto : And whereas the above-mentioned essential doctrine and fundamental principle in the con stitution of the Church, and the govern ment and exclusive jurisdiction flowing therefrom, founded on God's Word and set forth in the Confession of Faith and other standards of this Church, have been by diverse and repeated Acts of Parlia ment, recognized, ratified, and confirmed." Then there is a narrative of the various Acts, which is a very useful narrative. I do not intend to ask your Lordships to allow me to read it, because I think it would be an unreasonable trespass. It is a very useful summary of the view taken by the Free Church Party of their rights under the Statutes. In short, they to a very large extent incorporate in these articles the passages of the Statutes which the minority of the Judges had founded 388 HOUSE OF LORDS upon as showing that the State had de volved by Statute on the Church an ex clusive jurisdiction in spiritual matters. Of course I quite accept the view that the decisions given by the Court negative that view, and that therefore was an erroneous interpretation, but what the Free Church Party do is this : they say, " Well, the decisions have been all against us, but here are the Statutes which have been passed for a long period of years ; here are the passages in them which have always appeared to our party, in the Church at least, to give them exclusive jurisdiction in spiritual matters, and although these have been interpreted by the Courts differently, we now appeal to the State to re-adjust matters so that we may be put into the position, which, we respectfully suggest to the Crown, these Statutes legitimately led us to think we had occupied." Your Lordships find one or two passages in italics which bring out the sort of view they had very distinctly. Upon page 20, for example, there is a reference at letter E — a quotation from one of the Statutes. The Lord Chancellor : Are the italics yours? The Dean of Faculty : I should think so, probably to emphasise the part they founded upon. I am told they were put in the original claim, no doubt for indicating the parts they wish to call special attention to. The Lord Chief Justice : I have the original here, and find that the italics are the same in the original. Mr Johnston : Will you read from letter D, there. The Dean of Faculty : Yes. " By an Act passed in the same first Parlia ment, and renewed in the sixth Parlia ment of the said King James VI., en tituled, ' Anent the Jurisdiction of the Kirk,' the said Kirk is declared to have jurisdiction ' in the preaching of the true Word of Jesus Christ, correction of manners, and administration of the holy sacraments ; and it is farther declared, ' that there be no other Jurisdiction ecclesias tical acknowledged within this realm, other than that which is and shall be within the Same Kirk, or that flows therefrom concerning the premises." Then upon page 21, at letter E, there is the narrative of a further Act: "And further declared that the jurisdiction of the Sovereign and his Courts as set forth in a previous Act (1584, c. 129) to extend over all persons his subjects, and 'in all matters' should" — and then the Act is quoted — " noways be prejudicial nor derogate any thing to the privilege that God has given to the spiritual office-bearers of the Kirk, con cerning heads of religion, matters of heresy, excommunication, collation, or deprivation of ministers or any such like essential censures grounded and having warrant of the Word of God." Then they proceed, "By which enactment, declara tion, and acknowledgment, the State re cognised and estabhshed as a fundamental principle of the constitution of the king dom, that the jurisdiction of the Church in these matters was 'given by God' to the office-bearers thereof, and was exclu sive and free from coercion by any tribunals holding power or authority from the State or supreme civil magis trate." Then upon page 22, letter B, the words occur in the Act of 1592 in which they say the Aet acknowledged the supreme and exclusive nature of the jurisdiction, and then, quoting from the Act, " By which the sole and only power and jurisdiction within this Church doth stand in the Church and in the general, provincial, and presbyterial assemblies and kirk-sessions." Then at letter F they found upon the passage of the Act quoted in that paragraph, which says that the State ratified and established the Confes sion of Faith, "And also did establish, ratify, and confirm the Presbyterian Church government and discipline; that is to say, the government of the Church by Kirk-Sessions, Presbyteries, Provincial Synods, and General Assemblies." Then upon page 23, having set out those Statutes, they proceed in a further head of their narrative to say : " And whereas not only was the exclusive and ultimate jurisdiction of the Church Courts, in the government of the Church, and especially in the particular matters, spiritual and ecclesiastical, above mentioned, recog nised, ratified, and confirmed — thus neces sarily implying the denial of power on the part of any secular tribunal, holding DEAN OF FACULTY'S SPEECH its authority from the Sovereign, to review the sentence of the Church Courts, in regard to such matters or coerce them in the exercise of such jurisdiction ; but all such power, and all claim on the part of the Sovereign to be considered supreme governor over the subjects of this King dom of Scotland in causes ecclesiastical and spiritual, as he is in causes civil and temporal, was, after a long-continued struggle, finally and expressly repudiated and cast out of the constitution of Scot land, as inconsistent with the Presby terian Church government established at the Revolution and thereafter unalterably secured by the Treaty of Union with England; by the constitution of which latter Kingdom, differing in this respect from that of Scotland, the Sovereign is recognised to be supreme governor 'as well •in all spiritual and ecclesiastical things and causes as temporal.'" Lord James of Hereford : Those words represent the pith of the dispute which was then existing. Dean of Faculty : Then they go on to mention instances of assertion by the Church of its power. They refer to cer tain Acts which were passed — some of them being called the Black Acts — in the year 1584, which no doubt invaded to some extent their view of what were the rights of the Church, but then they speak with satisfaction at a later period of the repeal of those Black Acts. They re- referred upon page 25 to the Act of 1640, Chapter vii., which is one of the Acts which my learned friend specially argued upon in his opening speech: "It having been enacted, on the establishment of Prelacy in 1612 (1612, c. 1), that every minister at his admission should swear obedience to the Sovereign as 'the only lawful supreme governor of this realm, as well in matters spiritual and ecclesias tical as in things temporal,' the enact ment to this effect was repealed on the restoration of Presbyterian Church govern ment (1640, c. 7)." Your Lordships have that Act printed at length in the Print of the Statutes handed in by my learned friend, and in that Act I find, upon page 51, at letter D, a long narrative beginning with the word "considering." I will begin at about letter C. In considera- 389 tion of this "civill power of this his Majesties ancient and native Kingdom, it was granted by his Majestie out of his royall justice and accordit by the articles of pacifecatione made at his Majesties Campe in the moneth of June 1639 yeires last by past that a free Generall Assemblie and parliament should be in dicted by his Majestie and that all matteris ecclesiasticall should be deter mined by the assemblies of the Kirke, and materis civill by parliamentis and other inferiour judicatories established by law, and that according thereunto his Majestie did indict ane assemblie to be holdine at Edinburghe the twelffe of August, and a parliament for ratifieing the conclusions of the same," and jso on. After referring to this in detail at page 26, letter E, having quoted the passages of the Statute upon which they found, they sum it up thus: "By the which enactments any claim on the part of the Sovereigns of Scotland to be supremo rulers in spiritual and ecclesiasti cal, as well as in temporal and civil causes, or to possess any power by them selves or their Judges holding commission from them, to exercise jurisdiction in matters or causes spiritual and ecclesi astical, was repudiated and excluded from the constitution as inconsistent with the Presbyterian Church government then established and secured under the Statut- s then and subsequently passed 'to con tinue.' " Then in a separate head, letter G: "And whereas, diverse civil rights and privileges were, by various statutes of the Parliament of Scotland, prior to the Union with England secured to this Church, and certain civil consequences attached to the sentences of the Courts thereof, which were farther directed to be aided and made effectual by all magistrates, judges, and officers of the law; and in particular." They m ntion a number of Statutes which fall under that head. Then at page 28, letter F, they deal with the Treaty of Union on which they founded: "And whereas at the Union between the two Kingdoms the Parliament of Scotland being deter mined that the ' true Protestant religion ' as then professed, 'with the worship, discipline, and government of this Church; 390 HOUSE OF LORDS should be effectually and unalterably secured,' did in their Act appoint Com missioners to treat with commissioners from the Parliament of England (1705, c. 4), as to an union of the Kingdoms, provide 'That the said commissioners shall not treat of or concerning any alteration of the worship, discipline, and government of the Church of this King dom as now by law established ' ; and did by another Act commonly called the Act of Security (1706, c. 6), and entituled Act for securing the Protestant religion and Presbyterian Church government, ' establish and confirm the said true Pro testant religion, and the worship, discip line, and government of this Church.'" Then they proceed to narrate the Act of 1695 of King William and Queen Mary ratifying the Confession of Eaith and Church government. They refer to the obhgation by the Sovereign to take an oath in accordance with the Treaty of Union. They refer upon page 30 to arrangements for the Treaty of Union in the matter of patrons. Then they refer upon page 31 to what they regarded as a violation of their rights by the Patronage Act of Queen Anne, and a passage of considerable importance occurs at the bottom of page 31, where they say, after narrating the complaint historically : " And whereas in particular, this Church required, as necessary to the admission of a minister to the charge of souls that he should have received a call from the people over whom he was to be appointed, and did not authorise or permit any one so to be admitted till such call had been sustained by the Church Courts, and did, before and subsequent to the passing of the said Act of Queen Anne, declare it to be" — and here you have "fundamental" — "a fundamental principle of the Church " "contrary to the will of the people." There they undoubtedly assimilate to the same class of "fundamental" the non intrusion of a pastor into a church with out the consent of the congregation, and you have, therefore, up to this point, made very clear that they treat the spiritual independence of the church, Jesus Christ being the sole Head, and this matter of non-intrusion of a pastor, as two matters which they have at least called "funda mental." "And whereas in especial, this fundamental principle was, by the 14th Act of the General Assembly, 1736 (c. 14), re-declared, and directed to be attended to in the settlement of vacant parishes," and then between letters C and D : "And whereas by a judgment pronounced by the House of Lords in 1839, it was for the first time declared to be Ulegal to refuse to take on trial, and to re ject 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 congregation; to the authority of which judgment, so far as disposing of civU interests, this Church implicitly bowed, by at once abandoning all claim to the jus devolutum." That referred to the right which accrued to the Church on the faUure of the patron to exercise his right of patronage within a limited period. If he did not exercise the right of patronage, then that right, by what is called jus devolutum, devolved upon the Church under the Act of Queen Anne, "To the benefice, for any pastor to be settled by her, — and to all other civil right or privilege which might otherwise have been competent to the Church or her Courts ; and anxiously desirous, at the same time, of avoiding colhsion with the Civil Courts, she so far suspended the operation of the above-mentioned Act of Assembly as to direct all cases in which dis sents should be lodged by a majority of the congregation to be reported to the General Assembly, in the hope that a way might be opened up to her for reconciling with the civil rights declared by the House of Lords, adherence to the above-mentioned fundamental principle which she could not violate or abandon, by admitting to the holy office of the ministry a party not having, in her conscientious judgment, a legitimate call thereto, or by intruding a pastor on a reclaiming congregation con trary to their wUl." Then it proceeds, upon page 33 : " And whereas, although during the century which elapsed after the passing of the said Act of Queen Anne, Presbyteries repeatedly rejected the presentees of patrons on grounds un doubtedly ultra vires of the Presbyteries, DEAN OF FACULTY'S SPEECH 39i as having reference to the title of the patron or the validity of competing pre sentations, aud which were held by the Court of Session to be contrary to law, and admitted others to the pastoral office in the parishes presented to, who had no presentation or legal title to the benefice, the said Court, even in such cases, never attempted or pretended to direct or coerce the Church Courts in the exercise of their functions in regard to the collation of ministers, or other matters acknowledged by the State to have been conferred on the Church, not by the State but by God Himself. On the contrary, they limited their decrees to the regulation and dis posal of the temporalities, which were derived from the State, and which, as the proper subjects of 'actions civU,' were within the province assigned to the Court of Session by the Constitution refusing to interfere with the peculiar functions and exclusive jurisdiction of the Courts of the Church." Then they proceed to indicate the cases there mentioned which are illus trations of the manner in which the Court had acted, as described in the general paragraph which I have read. Then at the bottom of the next page it proceeds : " And whereas pending the efforts of the Church to accomplish the desired altera tion of the law, the Court of Session — a tribunal instituted by special Act of Par liament for the specific and limited purpose of ' doing and administration of justice in all civil actions ' (1537, c. 36) with Judges appointed simply ' to sit and decide upon all actions civil' (1532, c. 1), — not con fining themselves to the determination of ' civil actions,' — to the withholding of civil consequences from sentences of the Church Courts, which, in their judgment, were not warranted by the statutes recog nising the jurisdiction of these Courts, to the enforcing of the provision of the Act 1592, c. 117, for retention of the fruits of the benefice in case of wrongful refusal to admit a presentee, or the giving of other civil redress for any civil injury held by them to have been wrongfully sustained in consequence thereof, — have, in numerous and repeated instances, stepped beyond the province aUotted to them by the Constitu tion, and within which alone their decisions can be held to declare the law, or to have the force of law, deciding not only ' actions civil' but 'causes spiritual and ecclesias tical,' and that, too, even where these had no connection with the exercise of the right of patronage, — and have invaded the jurisdiction." The Lord Chancellor: Is that so historically ? " Deciding not only actions civil but causes spiritual and ecclesiastical, even where these had no connection with the exercise of the right of patronage." Dean of Faculty : Yes, my Lord. I think the very first instance, the Stewarton Case, at page 35: "as for instance: By interdicting Presbyteries of the Church from admitting to a pastoral charge, when about to be done irrespective of the civil benefice attached thereto, or even where there was no benefice, no right of patron age — no stipend — no manse or glebe, and no place of worship, or any patrimonial right, connected therewith." That refers to the case of their having admitted the minister, and what is called the quoad sacra church which they had themselves erected. The Lord Chancellor: It refers to the Lethendy Case. These notes of names and cases were in the original document. Dean of Faculty : Yes. The Church had by the exercise of what they con sidered their own power by the Chapels Act, in short, made arrangements for taking a district of a parish wiilci. they thought required spiritual ministration, j—.*? The Lord Chancellor: You called attention to that in the early period of the argument. Dean of Faculty : They appointed a man to it and gave him the status of a minister there, and there was no manse of any kind. There could have been no objection from the State's point of view to putting him there to preach, but they gave him the status of a member of the Pres bytery. They said, "We have ordained you to the charge of that particular district of a parish. As an ordained minister appointed by us to that par ticular area we receive you as a member of the Presbytery, and necessarily as a member of the Synod and the Assembly." Then the question was raised by one of the heritors in the district whether the HOUSE OF LORDS had any power to do that, and the Judicatories of which they are members 392Church accordingly that question related entirely to the status of a man with no civil rights at all, and they were interdicted. The Lord Chancellor: It is not exactly what I meant, but I see what you mean. Dean of Faculty : They accordingly give the various cases which I brought under your Lordship's notice at an earlier stage, in which they sum up in a few words what they regard each of those cases as having done. It is a short sum mary of the decisions which have been pronounced against them and to which of course they had to submit. They sum it up upon page 38, at letter C : "By all which Acts, the said Court of Session, apparently not adverting to the oath taken by the Sovereign, from whom they hold their commissions, have exercised powers not conferred upon them by the Constitution, but by it excluded from the province of any secular tribunal, have invaded the jurisdiction of the Courts of the Church — have subverted its govern ment — have illegally attempted to coerce Church Courts in the exercise of their purely spiritual functions — have usurped the 'power of the keys' — have wrong fully acclaimed as the subjects of their civil jurisdiction to be regulated by their decrees, ordination of laymen to the office of the holy ministry, admission to the curs <^f jouls, Church censures, the preach ing of the Word and the administration of the Sacraments — and have employed the means intrusted to them for enforcing submission to their lawful authority, in compelling submission to that which they have usurped," and so on. In another paragraph, at the bottom of page 38, they say : " And whereas further encroachments are threatened on the government and discipline of the Church as by law estab lished in actions now depending before the said Court, in which it is sought to have sentences of deposition from the office of the holy ministry reduced and set aside " (that is the third Auchterarder Case, which I mentioned at an earlier stage), "and minorities of inferior Judicatories authorised to take on trial and admit to the office of the holy ministry in disregard of, and in opposition to, the authority of and of the superior Judicatories to which they are subordinate and subject. And whereas the government and discipline of Christ's Church cannot be carried on ac cording to His laws and the constitution of His Church subject to the exercise by any secular tribunal, of such powers as have been assumed by the said Court of Session. And whereas this Church" — now we come into contact with one of the disputed questions — "highly valuing, as she has ever done, her connection, on the terms contained in the statutes herein before recited, with the State, and her possession of the temporal benefits there by secured to her for the advantage of the people, must nevertheless even at the risk and hazard of the loss of that con nection and of these public benefits — deeply as she would deplore and depre cate such a result for herself and the nation — persevere in maintaining her liberties as a Church of Christ and in carrying on the government thereof on her own constitutional principles, and must refuse to intrude ministers on her congregations, to obey the unlawful coercion attempted to be enforced against her in the exercise of her spiritual func tions and jurisdiction, or to consent that her people be deprived of their rightful liberties." That, my Lords, is the first reference to the connection of the Church with the State. I ask your Lordships to observe the very different way in which that is spoken of from the other parts of the Claim where you come to spiritual independence, or to the intrusion of a clergyman against the wish of the people. The Lord Chief Justice: This was a Church document going to the Queen. Dean of Faculty: have said also, and strengthened their case. that, we hold Establishment as a fun damental principle. Pray relieve us from this dreadful impasse, where we have these three doctrines or fundamental principles to reconcile." Lord James of Hereford : It does say it would deeply deplore and de precate anything that breaks the con- But they might it would have "In addition to DEAN OF FACULTY'S between Church and nection — that is State. Dean of Faculty: "Highly valuing it," they put it. Lord James of Hereford : The people who are writing this say " we would deprecate any breach of connection between Church and State." Dean of Faculty: But that is not the way we speak of a fundamental principle. They would say : " Come what will, we must stand for spiritual independence." Lord James of Hereford : That was not the object of the Protest, but to make complaint of any interference with their government by the secular Courts. They direct all their thunder-bolts against that position, but they say, " Do not let this break the connection." Dean of Faculty : They undoubtedly say that, but also shadow out the course which was before them in the event of this Claim not being sustained. Do they suggest for a moment that that is to involve the surrender of a fundamental principle ? Lord James of Hereford : In shadow ing forth the cause, where do they say anywhere that they would wish to see a breach between their Church and State ? Dean of Faculty: I do not think they do say so. They say they regret it, but it is a very different thing to say, "We value highly a connection, and should be sorry to part with it," and it is another thing to say that connection between the Church and the State is a fundamental and essential principle which cannot under any circumstances be aban doned. That is what my learned friends are doing here. They are levelling up the Establishment. Lord Davey : No, I do not think they say that, but they say it is a distinc tive doctrine of the Founders of this Church. The Lord Chancellor: When you are considering it, and drawing an in ference from what is, at the best, only an omission from the particular language, you must regard the nature of the document, to whom it was sent, and for what purpose, because no question then arose about the disestablishment. SPEECH 393 Dean of Faculty: I should have understood if they had made no reference to leaving the Establishment at all. Then it might be said this is a document in which, perhaps, they did not think it proper to make allusion to something which they regarded as essential, but they very plainly announce here that it comes to a choice between surrendering what they regard as fundamental and essential principles — namely, spiritual in dependence and intrusion, and " In order to maintain them our connection with the State must yield, though we shall regret it." Supposing they had to say, "The circumstances are such that we shall have to consider what to do with regard to spiritual independence." They might say, " We make this claim for the purpose of relieving us from the difficulty we are in. We attach the greatest importance to spiritual independence. It is a fun damental principle with us to remain in the Estabhshment, and we appeal to the Crown to relax the Establishment so as to give us spiritual independence within the Establishment." That is not the alternative at all. They say, " Spiritual independence is so essential that we cannot by any possibility abandon that, and we foresee that that may involve our leaving the Establishment altogether, ana we do not describe our connection with the Establishment as essential and fun damental in the sense of spiritual in dependence, but simply as a connection we highly value and should desire to see continue." The Lord Chancellor: They are representing the mind of the Church as it then was. Dean of Faculty : I think they are. The Lord Chancellor: They re present this as what the Church feels. Dean of Faculty : Yes, but it is not an issue in this case that at the time of the Disruption those who left the Church would have preferred Establishment. I shall not dispute that, but I dispute that Estabhshment in any of those documents is made an essential or fundamental prin ciple. My learned friends, according to them, do not seem to dispute that there was a considerable power of alteration in the Church with regard to some matters, 394 HOUSE OF LORDS but they evade the exercise of that power with regard to this matter by elevating Establishment into the category of " essential and fundamental," by which I suppose you mean something which cannot be changed. Lord James of Hereford : You put great stress upon the words " even at the risk and hazard of the loss of that con nection " as showing they were -willing to make the great sacrifice of giving up the connection if they went out. Dean of Faculty: Yes, that is so. It means this I think : " Our principle of spiritual independence is so important, — that is, vital and fundamental, — that, therefore, although we value the other, that is essential, and therefore in order to maintain it, if we cannot maintain it within the Establishment, we shall leave the Establishment in order that we may maintain it outside." Then at page 39, letter F, the Claim proceeds : " Therefore the General Assembly while, as above set forth, they fully recognise the absolute jurisdiction of the Civil Courts in relation to all matters whatsoever of a civil nature, and especially in relation to all the tem poralities conferred by the State upon the Church, and the civil consequences at tached by law to the decisions in matters spiritual of the Church Courts — do, in name and on behalf of this Church and of the Nation and People of Scotland, and under the sanction of the several Statutes and the Treaty of Union, hereinbefore re cited, claim as of right that she shall freely possess and enjoy her liberties, government, discipline, rights and privi leges according to law, especiaUy for the defence of the spiritual liberties of her people, and that she shall be protected therein from the foresaid unconstitutional and illegal encroachments of the Court of Session." And they declare that they cannot in accordance with the Word of God, the authorised and ratified Standards of this Church, and the dictates of their consciences, intrude ministers on reclaim ing congregations, or carry on the govern ment of Christ's Church subject to the coercion attempted by the Court of Session, as above set forth ; and that at the risk and hazard of suffering the loss of the secular benefits conferred by the State, and the public advantages of an Establishment, they must, as by God's grace they will, refuse so to do ; for, highly as they estimate these, they cannot put them in competition with the inahen able liberties of a Church of Christ, which, ahke by their duty and allegiance to their Head and King, and by their ordination vows, they are hound to maintain, ' not withstanding of whatsoever trouble or persecution may arise.'" There again the two are brought into contact mani festly in the sense of treating the one as a thing desirable but which you may do without, have or not have, but which for their part they prefer to retain if it can be reconciled with those principles which they hold, which are fundamental, and which must be maintained whether the connection with the State is conserved or lost. Then between letters D and E they proceed : " And they protest, that aU and whatsoever Acts of the Parliament of Great Britain passed without the consent of this Church and Nation in alteration of or derogation " — Lord James of Hereford : They say " even at the risk and hazard of the loss of the secular benefits." What were the secular benefits that existed ? Dean of Faculty : By law there were churches and manses provided by the heritors of the parish under Statute law, and which, the moment that a man was ordained minister of a parish, he im mediately took possession of for the period of his incumbency. In addition to that he had an income assigned to him by law. Lord James of Hereford : Conferred by the State? The Dean of Faculty : Exactly, my Lord. Lord James of Hereford : If they went out they gave up all that ? The Dean of Faculty : Yes, all that — they surrendered everything. Lord James of Hereford : The bene fits conferred by the State would be the benefits of the Estabhshment, and those they gave up. The Dean of Faculty: I do not think that is what they mean there. By the "secular benefits" they meant their endowments, DEAN OF FACULTY'S SPEECH Lord James of Hereford : But they legal force ; and then, obtained them by virtue of being the Established Church. The Free Church members, on leaving that Church lost all those benefits. The Dean of Faculty: Of course. The effect was that when the minister of a parish left the Church, the church became vacant, and accordingly a new man was appointed. Lord James of Hereford : But these represent the risk and hazard they spoke of, and the loss they would sustain. The Dean of Faculty : Yes, the indi vidual man, the man who did incur that risk and hazard. I think it is most im portant to notice the way it is spoken of there : " the secular benefits " undoubtedly are the endowments the incumbent of each parish receives in respect of his status as minister of his parish, secured to him by the Statute Law. Apart from that, they speak of the public advantage of an Establishment. That is not descrip tive of a fundamental principle. That is a matter of Church economics. No doubt they represent there the existence pf an established Church, and the provisions of all the ordinances which it affords as an advantageous arrangement for the district in which it stands; but that is not put forward as a thing which they regard as essential and fundamental in the same way as they put forward the principles of their Church. Upon page 40, between letters E and F, they protest : " That all and whatsoever Acts of the Parliament of Great Britain, passed without the conseLu of this Church and Nation in alteration of or derogation to " their rights, and you find the words "unalterable and funda mental" occurring again between letters E and F: "but were secured by ante cedent stipulation provided to be inserted and inserted in the Treaty of Union as an unalterable and fundamental condition thereof, and so reserved from the cog nisance and power of the federal legisla ture created by the said Treaty." Then they protest that they are to be null. Then there was a passage founded upon at the bottom of the page, where they proceed to say that the Statutes, what has been done being at variance with the Treaty of Union, are all null and of no 395 while they will accord full submission to all such Acts and Sentences in so far — though in so far only — as these may regard civil rights and privileges, whatever may be their opinion of the justice or illegality of the same, their said submission shall not be deemed an acquiescence therein, but that it shall be free to the members of this Church, or their successsors at any time hereafter, when there shall be a prospect of obtain ing justice, to claim the restitution of all such rights and privileges, and temporal benefits and endowments, as for the present they may be compelled to yield up, in order to preserve to their office-bearers the free exercise of their Spiritual Government and Discipline, and to their people the liberties, of which respectively it has been attempted, so contrary to law and justice, to deprive them." There, again, you have the asser tion of the fundamental principle. If they had to sacrifice their connection with the Church in order to preserve to their office-bearers the free exercise of their Spiritual Government and Discipline, they at the same time say : " We think it is an injustice that we should have had to ex perience this, and accordingly we protest that, having experienced an injustice we should be entitled to claim restitution of that." That is not suggesting that Estab lishment is a fundamental principle. It does suggest, I quite admit it, and not only suggests, but proves, that at that time the party presenting this Claim had no objection whatever in principle to Establishment ; that not only had they no objection to it, but they preferred it. I think it is beyond doubt that that is so. They preferred it, and they said, " If we can get an Establishment in which our Spiritual Independence or absolute inde pendence of the State in every possible form is allowed to us, that is the system which we would prefer, but if we cannot get that, then we are the upholders and protectors of certain fundamental prin ciples connected with the Church which cannot be surrendered or abated in the slightest degree, and we must therefore refer our desire for Establishment to its proper place in relation to these other principles, and give effect to that act in 396 HOUSE OF LORDS accordance with the dictates of that which poral advantages and yet maintaining the we regard as essential and fundamental." principle. Lord James of Hereford : You will The Dean of Faculty : I am afraid, have to contrast this document with the my Lords, I must go through all these statement on page 48 which draws the documents. distinction between giving up the tem- Adjourned to to-morrow, at 10.30. DEAN OF FACULTY'S SPEECH 397 SIXTH DAY FRIDAY, 17th JUNE 1904. Dean of Faculty. — My Lords : At the rising of the House yesterday I had, I think, substantially finished my com ments upon the first document in Print A, — the Claim and Protest, — the object of my criticism upon that document being to show that, whilst the advantages of En dowment and Establishment were recog nised in the document, they were recognised in a very different form from what the document specifically described as essential doctrine and fundamental principle. Then, my Lords, the next document which I have to examine is the Protest, the document which follows immediately after that, which I am glad to say is a shorter document than the one which precedes it ; and therefore I shall not have to detain your Lordships by reading so much of it. But there is one clause in that document upon which my learned friends specially found, to which I there fore feel it my duty to direct your Lord ships' attention speciaUy. Your Lordships will find the Protest on Print A, beginning at page 43. This was the document which those who were leaving the Church signed as a protest against the treatment which they had received, and which they communicated to those who remained in the Church. The greater part of it has already been read to your Lordships, and I do not know that I require to read what is set out on page 44 beyond a passage at letter B, which is introductory to a series of heads falling under that. The Lord Chancellor. — I observe they are called Commissioners : what are they? I suppose they are appointed by some of the dissentient Presbyteries ? Dean of Faculty.— Those clergymen and elders who come from Presbyteries to attend the Assembly are called Com missioners. The Lord Chancellor. — Are they what we should call parishioners ? Lord James of Hereford. — At the bottom of page 43 it says : ' We, the undersigned Ministers and Elders, chosen as Commissioners to the General Assembly of the Church of Scotland.' The Lord Chancellor. — They would be representatives of the vestry or some thing of that kind, I suppose. Lord Robertson. — I am correct, am I not, in saying this : Supposing the Pres bytery to consist of twelve ministers, they elect three or four to the Assembly — that is to say, the Assembly of each year does not consist of every member and elder of the Church, — it consists of certain ministers and elders who are elected by their respec tive Presbyteries. Dean of Faculty. — Yes. The Lord Chancellor. — And they form the General Assembly? Dean of Faculty. — They form the General Assembly of that year. The Presbyteries meet and elect a certain pro portion, — I cannot at the moment say the exact proportion ; I think they elect a third of the ministers, who go to the Assembly to be, as they are called, Com missioners elected by them to form part of the General Assembly of the Church. The Lord Chancellor. — Then the Commissioners are none of them lay persons, are they? Dean of Faculty. — Yes ; they are. In addition to that, each Presbytery has the right of nominating certain elders, lay members of the Church, to be their representatives in the Assembly. Lord Robertson. — But then the lay members are office-bearers of the Church, or elders. Dean of Faculty. — Yes ; they must all be ordained members of the Church. The Lord Chancellor. — Then you never have what we should call in England a simple parishioner ! They must all be office-bearers or ministers? Dean of Faculty. — Yes ; the As sembly consists exclusively of ordained ministers or ordained elders, who are in 39§ HOUSE OF LORDS the Assembly what are called representa tive elders — that is to say, they represent the inferior Church court which has nominated them. Lord Robertson. — Just to complete it, would you mind reading the terms of the Commission, as they are Commissioners ? Dean of Faculty. — -Your Lordships will find the Commission in the Appel lants' Case at page 158. Mr. Johnston. — That is the Established Church form of it, but the Free Church form is the same. Lord Davey. — It appears somewhere else, I think, in the documents? Dean of Faculty. — It is quoted in the Appellants' Case at page 158 — that is taken from Cook's Church Styles, so no doubt it is correct. This is the Estab lished Church form; but I understand the Free Church form is the same. I do not know that it is all here ; but perhaps there is enough here for this purpose. The Commission to members is in these terms :—' Willing them ' (that is, the Pres bytery willing them) 'to repair thereto 1 and to attend all diets of the same, and ' there to consult, vote and determine in ' all matters that come before them to the ' glory of God and the good of the Church, ' according to the Word of God, the Con- ' fession of Faith, and agreeably to the ' constitution of the Church, as they shall ' be answerable ; and that they report ' their diligence therein on their return ' therefrom.' Now, the fact that the Assembly is so constituted, consisting merely of a third of the ministers and a certain proportion of the office-bearers of the Church, to a very large degree explains the reason for the Barrier Act ; because, of course, under the Barrier Act, on any overture being sent down to the Presbyteries, then every minister and elder — all these persons who are not attending the Assembly of the one year — have an opportunity of expressing their opinion upon what is proposed to be done when the matter comes up next year ; and in that way the whole Church have an opportunity of expressing an opinion on what is proposed. Lord Robertson. — The point I wanted to draw attention to is that these Commis sioners are acting under a Commission, which apparently restricts their operations to all that is in conformity with the Con fession of Faith. Dean of Faculty. — That is so ; it says, ' according to the Word of God, the Con- ' fession of Faith, and agreeably to the 1 Constitution of the Church.' The Lord Chancellor. — Yes. You have completely answered my question. I am sorry to have interrupted you, but I wanted to see what the value of this Report of this Commission was. Dean of Faculty. — Accordingly, my Lord, in that way, by the operation of the Barrier Act, no law goes through at all on which the whole Church has not had an opportunity of expressing an opinion. The Lord Chancellor. — You mean the whole Church as represented in the Presbytery. Dean of Faculty. — In the Presbytery. The Commission only subsists for the one year in one Assembly, and accordingly the next Assembly will probably consist of different individuals, not entirely, but to a considerable extent, because different individuals may have been chosen. The Lord Chancellor. — In all events, it is only the office-bearers and ministers. Dean of Faculty. — Invariably. Ac cordingly your Lordships will find at the beginning of the Protest, that the persons who sign the Protest describe themselves in this way : — ' We, the undersigned ' ministers and elders chosen as Commis- ' sioners to the General Assembly.' The Lord Chancellor. — That was the word that I wanted carefully expounded. Now I understand. Dean of Faculty. — Accordingly, my Lord, those who signed this Protest were gentlemen who came commissioned to attend the General Assembly of the Established Church ; but, as their Protest bears, they say, Looking to what has taken place, whilst we hold Commissions to attend the Assembly of the Established Church as an Assembly of the Established Church, looking at what has been declared to be the law, a Free Assembly cannot be held — we protest and we must go out. That, I submit, is the object of this docu ment. Your Lordships will see that they say upon page 44, at letter B, ' Consider- ' ing that the Legislature, by their rejec- DEAN OF FACULTY'S ' tion of the Claim of Right adopted by ' the last General Assembly of the said ' Church, and their refusal to give redress ' and protection against the jurisdiction ' assumed, and the coercion of late re- ' peatedly attempted to be exercised over ' the Courts of the Church in matters ' spiritual by the Civil Courts, have recog- ' nised and fixed the conditions of the ' Church Establishment, as henceforward ' to subsist in Scotland, to be such as these ' have been pronounced and declared by ' the said Civil Courts in their several ' recent decisions, in regard to matters ' spiritual and ecclesiastical, whereby it ' has been held, inter alia ' ; and then there is stated under the separate heads the results of the various decisions which have been given. Then upon page 46, after enumerating these various heads of decision, the Protest proceeds : ' And ' farther considering, that a General ' Assembly, composed, in accordance with ' the laws and fundamental principles of ' the Church, in part of Commissioners ' themselves admitted without the sanction ' of the Civil Court, or chosen by Presby- ' teries composed in part of members not ' having that sanction ' (that refers to the ministers of the quoad sacra Churches who under the decisions had been ruled out of the Church Courts, and accordingly, as an Assembly, they held the admission of these by order of the Church as necessary to the constitution of a lawful Assembly), ' cannot be constituted as an Assembly of ' the Establishment without disregarding ' the law and the legal conditions of the ' same as now fixed and declared : and ' farther considering, that such Commis- ' sioners as aforesaid would, as members ' of an Assembly of the Establishment, ' be liable to be interdicted from ' exercising their functions, and to ' be subjected to civil coercion at the ' instance of any individual having interest ' who might apply to the Civil Courts for ' that purpose. And considering farther, ' that civil coercion has already been in ' divers instances applied for and used, ' whereby certain Commissioners returned ' to the Assembly this day appointed to ' have been holden, have been interdicted ' from claiming their seats, and from sit- ' ing and voting therein ; and certain SPEECH 399 ' Presbyteries have been, by interdicts 1 against their members, prevented from ' freely choosing Commissioners to the ' said Assembly, whereby the freedom ' of such Assembly, and the liberty of ' election thereto, has been forcibly ' obstructed and taken away.' And then there is this, which is an important sentence : ' And farther considering, that, in these circumstances, a Free Assembly of the Church of Scotland, by law established, cannot at this time be holden, and that an Assembly, in accord ance with the fundamental principles of the Church, cannot be constituted in connection with the State without violating the conditions which must now, since the rejection by the Legislature of the Church's Claim of Right, be held to be the conditions of the Establishment : And considering that, while heretofore, as members of Church judicatories ratified by law and recognised by the constitu tion of the kingdom, we held ourselves entitled and bound to exercise and maintain the jurisdiction vested in these judicatories with the sanction of the constitution notwithstanding the decrees as to matters spiritual and ecclesiastical of the Civil Courts, because we could not see that the State had required submission thereto as a condition of the Establish ment, but, on the contrary, were satisfied that the State by the Acts of the Parlia ment of Scotland, for ever and unalter ably secured to this nation by the Treaty of Union, had repudiated any power in the Civil Courts to pronounce such decrees, we are now constrained to acknowledge it to be the mind and will of the State, as recently declared, that such submission should and does form a condition of the Establishment, and of the possession of the benefits thereof; and that as we cannot, without com mitting what we believe to be a sin — in opposition to God's law — in disregard of the honour and authority of Christ's crown, and in violation of our own solemn vows, comply with this condi tion, we cannot in conscience continue connected with it, and retain the benefits of an Establishment to which such condition is attached.' Then comes the protest : ' We therefore, the Minis- 400 HOUSE ters and Elders foresaid, on this the first occasion since the rejection by the Legislature of the Church's Claim of Right, when the Commissioners chosen from throughout the bounds of the Church to the General Assembly appointed to have been this day holden are convened together, do protest, that the conditions foresaid, while we deem them contrary to and subversive of the settlement of Church government effected at the Revolution, and solemnly guaranteed by the Act of Security and Treaty of Union, are also at variance with God's Word, in opposition to the doctrines and funda mental principles of the Church of Scot land, inconsistent with the freedom essential to the right constitution of a Church of Christ, and incompatible with the government which He, as the Head of His Church, hath therein appointed distinct from the civil magistrate. And we farther protest, that any Assembly constituted in submission to the condi tions now declared to be law, and under the civil coercion which has been brought to bear on the election of Commissioners to the Assembly this day appointed to have been holden, and on the Commis sioners chosen thereto, is not, and shall not be deemed, a lawful and free Assembly of the Church of Scotland, according to the original and funda mental principles thereof ; and that the Claim, Declaration, and Protest of the General Assembly which convened at Edinburgh in May 1842, as the Act of a free and lawful Assembly of the said Church, shall be holden as setting forth the true constitution of the said Church ; and that the said Claim, along with the laws of the Church now sub sisting, shall in nowise be affected by whatsoever acts and proceedings of any Assembly constituted under the condi tions now declared to be the law, and in submission to the coercion now imposed on the Establishment.' Now, your Lordships come to the passage ivhich was founded upon by my learned friend, and which I desire to make some. observations upon. It proceeds : ' And finally, while firmly asserting the right and duty of the civil magistrate to main tain and support an Establishment of OF LORDS religion in accordance with God's Word, and reserving to ourselves and our suc cessors to strive by all lawful means, as opportunity shall in God's good provid ence be offered, to secure the performance of this duty agreeably to the Scriptures, and in implement of the Statutes of the kingdom of Scotland, and the obligations of the Treaty of Union, as understood by us and our ancestors, but acknow ledging that we do not hold ourselves at liberty to retain the benefits of the Establishment while we cannot comply with the conditions now to be deemed thereto attached, — We protest that, in the circumstances in which we are placed, it is and shall be lawful for us, and such other Commissioners chosen to the Assembly appointed to have been this day holden as may concur with us, to withdraw to a separate place of meet ing, for the purpose of taking steps for ourselves and all who adhere to us — maintaining with us the Confession of Faith and Standards of the Church of Scotland, as heretobefore understood — ¦ for separating in an orderly way from the Establishment; and thereupon adopting such measures as may be com petent to us, in humble dependence on God's grace and the aid of the Holy Spirit, for the advancement of His glory, the extension of the gospel of our Lord and Saviour, and the administration of the affairs of Christ's house, according to His Holy Word ; and we do now, for the purpose foresaid, withdraw accord ingly, humbly and solemnly acknow ledging the hand of the Lord in the things which have come upon us, because of our manifold sins, and the sins of this Church and nation ; but, at the same time, with an assured conviction, that we are not responsible for any con sequences that may follow from this our enforced separation from an Estab lishment which we loved and prized — through interference with conscience, the dishonour done to Christ's crown, and the rejection of His sole and supreme authority as King in His Church.' Now my Lords, it is said that there is an assertion there, or an inclusion there of the principle of Establishment in such a way as to make it an essential and funda- DEAN OF FACULTY'S mental condition of the Church which was to be formed. My Lords, I submit, when the words are examined, they do not warrant any such interpretation. Your Lordships will observe how they are intro duced. This is a protest. They are pro testing certain points which they regard as vital and fundamental. The reference to this does not come in in the form of substantive protest — it is a sort of aside. Whilst they are going on to record their Protest with regard to the points which are vital and important upon which they are making their protest, whilst they are going along to record their protest, they incidentally, or as I should suggest by an aside, make an allusion to their view with regard to a matter which is undoubtedly per tinent to that with which they are dealing. They say, as the last head of their protest, ' And, finally, while firmly asserting the ' right and duty of the civil magistrate ' — I suggest that that means, we adhere to the view that we have always entertained upon that subject. We are doing some thing that might be held by implication to import that we have changed our opinions on the subject of the expediency and propriety of a State Church, but that is not the case. We want to make it clear upon the face of this document which we are signing that our attitude towards that is not altered. It is altered in fact by this, that we have now been instructed that the existing Church Estab lishment has attached to it certain con ditions as regards the clergy and certain rights as regards the State which we had hitherto regarded as not existing; and seeing that we cannot regard such an Establishment as an institution to which we can adhere without sin, we accordingly protest that we are leaving it upon the grounds that we set forth here. But, whUst putting on record our protest about that, we at the same time mention in cidentally, we still assert that our view in regard to the matter of Establishment is the same : that it is the duty of the State to have an Establishment in which the Church is absolutely supreme, and in regard to which no external authority in the State can be exercised at all. That has been our view all along, and we retain that view, but we protest 2o SPEECH 401 that we are leaving the Church because we have now found that those views which we entertained are not embodied in the Established Church as now constituted. My Lords, I submit that that view in the first place receives efficacy from what I have described, as the sort of incidental or casual way in which this matter is introduced as distinguished from the current, so to speak, of the protest. Then it receives support from the way in which it is introduced by the word ' asserting.' This is a protest. ' Assert- ' ing ' is a term strictly applicable to the statement of a view or of an opinion. Then I shall have a word to say afterwards with regard to the subject-matter of the thing which very much supports the view ; but I wish to deal with the language of it in the first instance. Then when we come to any reference to the Scriptures in this matter, properly construed, I submit it does not mean that the duty of the civU magistrate is at all a duty imposed upon him by the Scriptures. There are two references to the Scriptures in this matter. Between B and C it says, 'in ' according with God's Word, and reserv- ' ing to ourselves and our successors to ' strive by all lawful means, as opportunity ' shall in God's good providence be offered, ' to secure the performance of this duty ' agreeably to the Scriptures.' I interpret those words ' agreeably to the Scriptures ' in this way : To set up an Establishment which would be an Establishment in accordance with the Scriptures — that is to say, an Establishment in which there is spiritual independence. That is used adjectively or as descriptive of the Estab lishment which was to be set up, not as descriptive of the duty as being a duty founded upon the Scriptures. Your Lord ships will observe that the whole thing they were aiming at here was the asser tion of their idea that an Establishment ought to be absolutely independent of the State; and throughout this protest they declare that any Establishment which is not absolutely independent of the State is unscriptural, and in their opinion it would be a sin for them to be connected with it. Accordingly, when they speak here of securing ' the performance of this ' duty agreeably to the Scriptures,' that 402 HOUSE means that it is the duty of the civU magistrate to maintain an Establishment in which spiritual independence absolutely prevails. Then, my Lords, there is a further reference to the Scriptures. The Lord Chancellor. — What do you suppose the word ' maintenance ' includes ? The Dean of Faculty. — I think ' main tenance ' undoubtedly means sanctioning it by law — giving the State's legal sanction to it. The Lord Chancellor. — Does it not include pecuniary maintenance ? The Dean of Faculty. — I think the words 'maintain and support' probably would mean more than sanctioning. The Lord Chancellor. — Taking the two words together, does it include pecuniary maintenance ? The Dean of Faculty. — I think the two words ' maintain ' and ' support ' taken together must be held to include both elements. It is very difficult to resist the view that the expression 'maintain and support' does cover the ground both of Establishment and of Endowment. But it is not upon that that I found my argu ment. My argument is that, whilst that is a thing that is spoken of, it is not spoken of as an essential principle of the Church, but simply as a thing which they regard as a proper duty on the part of the State. The Lord Chancellor. — Is it reconcil able with that view to say that it would be a sin to accept pecuniary support from the State? The Dean of Faculty. — Quite, I think. I submit that that helps my argument. They say, Our theory of an Establishment maintained and supported by the State is one in which the State exercises no control at all, and in our view it would be a sin to have anything to do with any other Establishment. We therefore leave the Church, but we still maintain that abstract view of ours, that in a theoretically perfect relation between Church and State the State would support and endow a Church which would be absolutely independent of the State. That is what they are assert ing here. Lord James of Hereford. — Are you right in calling it an ' abstract view ' ? They say, 'reserving to ourselves and our OF LORDS ' successors to strive by all lawful means, ' as opportunity shall in God's good pro- ' vidence be offered, to secure the perform- ' ance of this duty.' Surely that gets you out of the region of abstraction ? The Dean of Faculty. — I have in my favour the fact that sixty years have elapsed, and the Free Church cannot point to one "single step having been taken to carry that out. The Lord Chancellor. — I do not know what you mean by that. What step could be taken ? The Dean of Faculty. — I say no step has been taken, and accordingly I say it is abstract — it is theory. A thing in regard to which a Church has existed for sixty years without being able to further in any possible way, must be, I submit, simply an opinion. The Lord Chancellor. — With sub mission to you, that seems to me to be a non sequitur altogether. The Dean of Faculty. — Of course they have perfect freedom to do anything they could to carry this out, but they have done nothing, and they could do nothing. They do not suggest they could do any thing ; nobody suggests that they have faUed to do anything they could have done or ought to have done. The Lord Chancellor. — What they record is that they adhere to that principle. The Dean of Faculty. — Yes. The Lord Chancellor. — I do not want to use any word that assumes the question in debate, but it is part, I will say if you like, of their strong opinion — using that word for the moment. I do not under stand with regard to your present argument what they could have done. It was not a question that depended upon them, or what they could do — they had left the Church. The Church still maintained, and has ever since maintained, its obedience to the Courts of Law in that respect until altered by Statute. The Dean of Faculty. — That is pre cisely the ground upon which I say they are dealing here, not with a practical matter, but with a theory or an opinion. The Lord Chancellor. — I am only replying to your observation when you say they did nothing. How could they have done anything ? DEAN OF FACULTY'S The Dean of Faculty. — I do not blame them for not doing anything. The Lord Chancellor. — It is not a question of praise or of blame, but what could they do ? The Dean of Faculty. — Nothing. The Lord Chancellor. — Then there is no question between us. The Dean of Faculty. — I do not see how they could have done anything. The Lord Chancellor. — Nor do I. The Dean of Faculty. — They were only expressing an opinion with regard to a matter as to which they were absolutely powerless. The Lord Chancellor. — Then I do not understand the relevancy of your observa tion that for sixty years they have done nothing, when you couple it with this, that they could do nothing. The Dean of Faculty. — I prefer to take it in that way : they were here speaking with regard to a duty on the part of a third party which they had no possible power to give any practical effect to. It is stronger for me to say that they could not do it ; it is a thing which they never could under any circumstances do any thing to further. My Lords, where a Church formulates a proposition with regard to something which does not enter into its own sphere of duty, and does not affect its own action in any way whatever, but relates exclusively to the duty of a third party, and is a matter over which they have no control and with regard to which they can do nothing, I submit that it is difficult to realise that that could be a fundamental principle of the Church. Lord Robertson. — I do not know that you are quite observing the words which my noble and learned friend on the other side of the House called your attention to. It is not merely an assertion, but a solemn promise ' to strive by all lawful means as ' opportunity shall ' ' be offered, to secure ' the performance of this duty.' The Dean of Faculty. — It is a reserva tion. Lord Robertson. — But this document, at all events, does not take your view that this was impossible and outside their ambit, but on the contrary it solemnly pledges these people and their successors SPEECH 403 to strive by all lawful means to secure the performance of the duty. The Dean of Faculty. — I read that as meaning this : We are leaving the Church, and doing so under protest; in doing so we do not wish our position with regard to the Establishment to be at all misunder stood. We adhere to the view that it is the duty of the civil magistrate to support and maintain an Establishment according to our idea of an Establishment ; and it is not to be supposed that in going away we, to any extent, displace our right to try by any means we can to get that view carried out. But when you come to examine what the view is, and to consider whether, looking at the subject-matter, it can be an essential or fundamental principle of the Church, the first thing that one meets is that it has nothing to do with the duty of the Church at all — that it is the duty of a third party, and the duty of a third party over whom the Church had no control whatever, and which therefore may remain to the millennium in the position of being beyond their control at all. They could do nothing, and my case is that they could do nothing. They were accordingly here simply expressing their view with regard to a matter which was not practical, — in the sense that the Church, in the perform ance of its duties as a Church, could take any action upon, or could take any step, but it was simply a record of their opinion of what was the duty of a third party. The question which has to be considered is, whether that can possibly be worked into the constitution of a Church as a fundamental principle. The Church exists, goes on, fulfils all the functions which it can possibly perform as a Church, and this stands aside as a thing that is beyond their sphere of action altogether, and with regard to which they can do nothing. I accord ingly call attention not only to the words but to the subject-matter of the thing which is being dealt with, for the purpose of suggesting that that gives sufficient ground for holding that what they are dealing with here is merely opinion, and not, as my learned friends contend, formu lating something which was either essen tial as a matter of faith or fundamental as a principle of the Church. Lord Davey. — Upon that point, while 404 HOUSE quite appreciating what Lord Low says, which you have repeated in substance (I do not say in language) about its being parenthetical and merely incidental, in one sense you know that may be considered to give greater strength to the assertion, because there can be no motive for intro ducing that in this parenthetical way (adopting that expression), except for the purpose of qualifying the protest which follows it, and preventing that protest from being misunderstood as being thought to imply a doctrine which it was not in tended to imply. The Dean of Faculty. — I do not know that I could object to that way of reading it. I think it was intended to say, In doing this we do not waive our opinion. Lord Davey. — It is something more than that. The Dean of Faculty. — We assert what we have asserted before. We con tinue to make the same assertion. Lord Davey. — But they firmly assert their opinion by their protest of the duty of it. You might paraphrase it in this way : We protest against the action of the Civil Courts, and we feel bound to leave the present Estabhshment, but in doing so we do not wish to be misunderstood, and we take this opportunity of firmly asserting our view as to the duty of the civil magistrate. The Dean of Faculty. — I do not object to that way of putting it. Lord Davey. — Very well. The Dean of Faculty. — But my argu ment with regard to that is, that that is not making that continued assertion with regard to the duty of the civil magistrate either a matter of faith or a fundamental principle of the Church which they are forming as an independent Church. That is the whole question : whether by these words they brought into the independent Church, which they were associating them selves to form, this view about the duty of the civil magistrate as a fundamental principle of that Church. I think it is perfectly clear that they recorded that as an adherence to their former view, and that it was not any objection to Establish ment which had anything to do with their leaving the Church, but they said, We now find that the law has decided that OF LORDS there cannot be Establishment in this country except of such a kind and subject to such conditions that we consider it would be a sin to accept it. The Lord Chancellor. — Do you say the Free Church has ever said that ? The Dean of Faculty. — I think so my Lord ; it says so here. , Lord Alverstone. — Not ' that there ' cannot be,' but ' there is not at present.' You said that 'there could not be an ' Established Church except of a kind ' they could not accept.' The Dean of Faculty. — I mean that there could not be at that time. I did not mean to say that there could not be under any circumstances, but they were pretty distinctly told in the cases that were decided, that, to use a famihar phrase, they were praying for the moon — that the idea of any State giving an Establishment of the kind they wanted was a thing that could not possibly be con ceived. That is the view of the majority of the learned judges about the matter. Lord Davey. — No doubt you wiU come to it afterwards, but while we are upon this point I should like to ask you to consider the bearing of Dr. Chalmers' address, which is made part of the 'Affectionate Representation of the Free ' Church,' which was addressed to the members and friends of the Church, and may be considered as the prospectus of the Free Church. The Dean of Faculty. — I do not know if that is a very appropriate description of it. Lord Davey. — In that address this is treated as the opposite sin. He says in effect this : While on the one hand we avoid the sin of Erastianism (putting it shortly, I do not say that he used that word), we must carefully avoid falling into the opposite sin of holding that the State is under no obligation to maintain religion. He treats it as the opposite sin. The Dean of Faculty. — That is a very curious address. I think it needs a good deal of reading to get exactly at the meaning of it. Lord Davey. — I think it does. The Lord Chancellor. — It seems to me very plain. DEAN OF FACULTY'S SPEECH The Dean of Faculty. — It is an impassioned address. Lord Davey.— It is ; but still, it is put forward by the whole body of people who founded this trust, as to which it is our sole purpose to find out what the trust is. It is their prospectus, which they put forward as a means of raising money. The Lord Chancellor. — They adopted and circulated it. The Dean of Faculty. — They issued a document giving an account of the pro ceedings, and directed the Moderator's Address to them to be attached to it. That is the form of the document. Lord Davey. — It was the basis upon which people were asked to contribute to the support of the Church. The Dean of Faculty. — There were plenty of other statements made on their behalf in addition to that. The Lord Chancellor. — No doubt you cannot analyse quite how much is drawn out by one statement and how much by another. Lord Davey. — However, I am afraid I am anticipating your argument, which I do not wish to do. Lord James of Hereford. — Just let me go back to the document itself, the protest, for a moment. I have already called attention to the fact that this is a pledge on the part of those who signed the protest, that as opportunity offered they ' would strive by all lawful means ' to 'secure the performance of this duty.' I give, of course, the fullest credit to that statement, — that that would be carried into effect, — and, if opportunity offered, I presume it would be carried into effect now by Free Churchmen. Now, what I wanted to know was this : as regards those members of the present union who were members of the United Presbyterian Church, would they carry that statement into effect — that they would take advan tage of any opportunity to secure that ? The Dean of Faculty. — Incidentally they would be quite entitled to. Lord James of Hereford.— But are they under any promise 1 The Dean of Faculty. — That is the next step in my argument. I shall show your Lordship that this was never made a condition of holding office by any one. 405 Lord James of Hereford. — That is not my point. The Dean of Faculty. — It was never imposed upon any office-bearer. Lord James of Hereford. — My point is this. There is one Church which was the Free Church, now becoming the United Church we will call it, and we have here the obligation that was accepted by the Free Church, to take advantage of any opportunity for securing the performance of this duty. My question is, Are those with whom they amalgamated under any such obligation ? The Dean of Faculty. — With defer ence, my Lord, I do not admit that the Church was ever under obligation with regard to that point. Lord James of Hereford. — They express their sense of the duty. The Lord Chancellor. — Have they made such a promise ? The Dean of Faculty. — I submit that this is not putting the Church under any obligation, but that the meaning of it is simply this : we are leaving the Church, and we are putting this on record. Lord James of Hereford. — But they were constituting the Free Church. The Dean of Faculty. — It is the record of the grounds upon which they are leaving the Church. Lord James of Hereford. — It is a state ment of what they will do, which of course was given in the utmost good faith. The Dean of Faculty. — I do not accept that it is a statement of what they will do. They are making a protest in regard to certain things The Lord Chancellor. — I am sorry to say I must interrupt you for a few minutes. (Adjourned for a short time and resumed.) The Lord Chancellor. — I am sorry to have interrupted you, Mr. Dean, but public duty commanded me. The Dean of Faculty. — My Lords, as to the clause which I was discussing upon page 48, I really do not know that I have further argument to offer to your Lord ships upon it. My proposition in regard to it is, that it is a clause which, when properly construed, is expressive of an 406 HOUSE OF opinion retained on the part of those who were protesting with regard to the duty of the magistrate, not inserted there in any sense for the purpose of formulating anything in the nature of an essential or fundamental principle of the Church as it was to exist after its separation from the Establishment, and that, whUst they carried the view of the duty of the State undoubtedly with them, — maintained it, and intended to maintain it, and said they reserved the right to maintain it, — it was a view with regard to a third party altogether external to the Church, not necessarily involved in the performance of any of the Church's functions, but really more a matter of economics than of fundamental faith, and accordingly it did not belong to the category of questions which could not be dealt with according to the will of the Church when it became thoroughly con stituted as an independent Church. My Lords, following upon that, there was the Act and Deed of Separation, which your Lordships have upon page 49, called the ' Act of Separation and Deed ' of Demission,' which is very short, in which, having stated the claim, and having stated the protest, they now formally sever themselves from the Estab lished Church, and they do so by the instrument upon page 49, in which they say : ' The ministers and elders subscrib- ' ing the Protest made on Thursday, the ' 18th of this instant May, at the meet- ' ing of the Commissioners chosen to the ' General Assembly appointed to have ' been that day holden, against the free- ' dom and lawfulness of any Assembly ' which might then be constituted, and ' against the subversion recently effected ' in the constitution of the Church of ' Scotland, together with the ministers ' and elders adhering to the said Protest, ' in this their General Assembly con- ' vened, did, in prosecution of the said ' Protest, and of the Claim of Right ' adopted by the General Assembly which ' met at Edinburgh in May 1842 years, ' and on the grounds therein set forth, ' and hereby do, for themselves, and all ' who adhere to them, separate from, and ' abandon the present subsisting ecclesias- ' tical Establishment in Scotland, and did, ' aud hereby do, abdicate and renounce LORDS the status and them, or any privileges derived to of them, as parochial ministers or elders, from the said Estab- ' lishment, through its connection with ' the State, and all rights and emoluments ' pertaining to them, or any of them, by ' virtue thereof : Declaring, that they ' hereby in no degree abandon or impair ' the rights belonging to them as ministers ' of Christ's Gospel, and pastors and ' elders of particular congregations, to ' perform freely and fully the functions ' of their offices towards their respective ' congregations, or such portions thereof ' as may adhere to them ; and that they ' are and shall be free to exercise govern- ' ment and discipline in their several ' judicatories, separate from the Establish- ' ment, according to God's Word, and the ' Constitution and Standards of the Church ' of Scotland as heretofore understood; ' and that henceforth they are not, and ' shall not be, subject in any respect to ' the ecclesiastical judicatories established ' in Scotland by law.' Then there were certain reservations as to the Ministers' Widows' Fund, with regard to which it is not necessary to trouble your Lordships ; but there is a resolution to send the Deed of Demission upon page 50 to the Assembly of the Established Church which they had left. There was a similar deed signed by elders on page 51 at the bottom ; it is substantially in the same terms, and they say below letter G what it is, and sign it : ' And did thereafter, along with divers ' other ministers and elders assumed by ' them, constitute themselves into a Free ' General Assembly, adhering to the Con- ' fession of Faith, and the Standards of ' the Church of Scotland as heretofore ' understood ' ; and did agree to separate from the Church. . Then the next document in chrono logical order is upon page 54, which is the 'Act anent the Model Trust Deed, and the terms of which, I think, I will require to bring under your Lordships' notice ; the Act is in these terms The Lord Chief Justice. — That was in the year 1844. In chronological order, ' The Affectionate Representation ' comes next, does it not ? The Dean of Faculty. — I took this because your Lordships wiU find it in the DEAN OF FACULTY'S Record. I am going to deal with that presently. Does your Lordship mean Dr. Chalmers? The Lord Chief Justice. — Yes. The Dean of Faculty. — Your Lord ships will find that they assign a very different position to that in their Record than upon the documents upon which I am founding. The Lord Chief Justice. — It was only because you said ' in chronological ' order,' Mr. Dean. The Dean of Faculty. — If your Lord ship is good enough to look in Con descendence 10 you wUl see what the Pursuers say formed the constitution of the Church. Lord James of Hereford. — In their case ? The Dean of Faculty. — Their case, my Lord, page 52, the tenth Article of the Condescendence ; that is the Pursuers' own representation of what they regard as the binding document : ' The said Free ' Church of Scotland is a voluntary associ- ' ation or body of Christians associated ' together under a definite contract involv- ' ing the maintenance of definite principles. ' That contract is constituted by the fore- ' said Claim of Right, Declaration, and ' Protest of 1842, Protest of 1843, and ' Act of Separation and Deed of Demission ' of 1843, and the Acts of Assembly of the ' Church of Scotland, in so far as not ' modified thereby. The foresaid con- ' temporaneous documents, viz., the Act ' of Assembly of 1846, cap. 12, and the ' Questions and Formula ' • Lord Davey. — Which page are you reading ? The Dean of Faculty. — Page 52 of the Appellants' Case: 'The Act of SPEECH 407 ' Assembly of 1846, cap. 12, and the Ques- ' tions and Formula thereby sanctioned, ' and the Act of Assembly of 1851, cap. 9, ' are in accord therewith, and expository ' thereof.' I do not in the least suggest that my learned friends are not entitled to found upon Dr. Chalmers' document which was issued, but they do not suggest that it entered into the Constitution of the Church in the way in which they allege these other documents did ; but it would be convenient, my Lords, as it has been suggested it is in chronological order, that I should say what I have to say about it at this stage ; it was issued in 1843. Your Lordships have it in Print C. The Lord Chancellor. — What are you speaking of now ? The Dean of Faculty. — Dr. Chalmers' speech, my Lord, Print C, page 6. The document is called The Affectionate Repre sentation of tlie Free Church of Scotland, 1843, issued by direction of the General Assembly of May 1843: 'It was agreed ' that a " Communication " be addressed, ' in the name of this Assembly, to the 1 members and friends of the Church ' throughout the land, giving a brief ac- ' count of the proceedings of Thursday ' last, together with a list of the pro- ' testing Commissioners, Ministers, and ' Elders ; and also of the Ministers who ' have concurred in the Protest ; and that ' the clerks, with the assistance of Mr. ' Jaffray, be instructed to prepare and ' publish the Communication with the ' least possible delay. It was further ' agreed that the account of these pro- ' ceedings should contain the address de- ' livered by the Moderator at the opening ' of this Assembly.' (That is the speech which was made by Dr. Chalmers when those who had left the Establishment were convened together as an Assembly for the first time. Then the 'Com- ' munication ' begins at letter D : ' Dearly ' Beloved in the Lord, — We deem it due ' to you and ourselves to lay before you, ' very briefly, the circumstances which ' have brought us together at this time, ' and have occasioned our separation from ' the Church established by law in this ' land. Many of you are doubtless aware ' that the General Assembly of the Estab- ' lished Church was indicted to meet in ' Edinburgh on the 13th May 1843, and ' to this meeting we, in common with ' many of our countrymen, looked for- ' ward ' ; and they record the meeting of the Assembly; and then they refer at letter G to certain members of the Assembly having been interdicted and thereby prevented from acting ; and then at letter D upon page 7 they ' declare our ' conviction that it could not be regarded, ' in the true sense, as a free and lawful ' Assembly of the Church. This was ' done by Dr. Welsh, who, after solemn 408 ' prayer, spoke to the following effect,' and then they proceed. I do not think there is anything very material in what follows im mediately after that, — it is about all this being, in their view, an infringement of the liberties of the Church. Then at the bottom of the page the protest is taken in ; and then Dr. Chalmers, it is recorded, 'addressed ' the Assembly as follows ' : ' The time has ' gone by for lengthened argumentation, ' either on one side or other, of the ' Church controversy ' ; and then your Lordships find that he formulates in a series of propositions the claim of the Church to absolute inherent power as a Church : ' It is clear,' he says on page 8, ' that, anterior to her connection with the ' State, the Church had a government of ' her own, and within the proper sphere ' of that government a certain inherent ' liberty, which, save by persecution, ' could not be violated. 2nd. When she ' entered into connection with the State ' she gave up no part of that liberty. It ' was her inalienable birthright, which, ' save by an act of treachery to her great ' Founder in the heavens, she could not ' part with. She gave her services, but ' her liberties were not hers to give — it ' being not only her privilege, but her ' bounden duty to hold them fast. 3rd. ' Our ancestors of the Church of Scotland, ' true to this principle, did not give up ' their Christian liberties when they ' entered into connection with the State. ' For the maintenance of these they in- ' curred the controversies and cruel per- ' secutions of a whole century ' ; and he refers to what they ultimately secured at the Revolution. Then ' 4th. ' The free and separate government in ' things ecclesiastical, which was then ' guaranteed to the Church, subsisted ' without violation, on the part of the ' Civil Courts, for nearly a century and a ' half ; nor, during the whole of that ' period, did she suffer any inroad.' In the fifth he records that the first breach effected in that jurisdiction was by the Act of Queen Anne; and then in the sixth : ' In these circumstances the Church ' made her appeal to Parliament,' and he narrates the claim ; and in the seventh he says : ' This application has been rejected, ' and tho Legislature having declined to HOUSE OF LORDS ' remedy the evil, which had lain dormant ' and unobserved in one of her own ' Acts for the period of 130 years, the ' Church is constrained to make a higher ' appeal from her constitution, now dis- ' regarded, to her conscience, which tells ' her that the ecclesiastical ought not to ' be subjected to the civil power in things ' spiritual, and is therefore compelled, but ' with the greatest reluctance and sorrow, ' to quit the advantages of the British ' Establishment, because fallen from its ' original prmciple, in the humble hope ' that, under God, she will be suffered to ' prosecute her labours in peace, on the ' ground of British toleration.' Then he proceeds : ' It is well that, for what you ' deem the Honour and Will of your ' Master in the heavens, you should have ' been strengthened to make the surrender,' and he refers to the renunciation which they had made of their civU rights in order to maintain their view of what was their obligation. Then on page 10 — I am not quite sure that your Lordships wish me to read the whole of this ; probably your Lordships have read it already : ' We ' read in Scripture, and we believe it will ' often be found to hold true in the ' history of human experience, that there ' is a certain light and joy and elevation ' of spirit ' The Lord Chief Justice. — There is nothing on that page. The Dean of Faculty. — I do not think so ; I think the point which is founded upon against me is on page 12. Mr. Johnston. — Pages 11 and 12. Lord James of Hereford. — 'By giving ' up your connection with the State,' on page 1 1 ; you had better read that. The Dean of Faculty. — Very well, my Lord : ' By giving up your connection ' with the State, and thus separating ' yourselves from the worldly advantages ' of such a connection, you may be said ' to have withstood a great temptation ' to sin in one form ; but such is the ' deceitfulness of the human heart, that ' without the heedfulness and the humility ' which apostles of old so pressed upon ' the early converts, there is danger of ' being carried away by temptation in ' another form — and temptation, too, to ' the very same sin. Rather than be DEAN OF FACULTY'S SPEECH ' seduced from one of your greatest prin- ' ciples, you have given up one earthly ' dependence ; but let principle have its ' perfect work, and have a care lest you ' be tempted from even the least of your ' principles by the promises and the ' allurements of another earthly depend- ' ence. Rather than compromise the ' authority of Christ over the affairs of ' His own Church, you have forfeited ' the countenance of men in power, that ' is, who have the power of this world's ' authority on their side. Beware of ' compromising another of your doctrines ' or articles of faith ; and in the defence ' of which the Church of Scotland did ' lately signalise herself over the authority ' of Christ, over the kings and govern- ' ments of earth, and the counterpart of ' this government.' Lord Davey. — That ' over ' ought to be amended. The Dean of Faculty. — I think it was said it should be under; we are agreed about that. The Lord Chancellor. — Yes. The Dean of Faculty. — 'Under the ' authority of Christ, over the kings and ' governments of earth, and the counter- ' part of this government, to uphold ' religion in the world — beware, we say, ' of making any compromise or surrender * of this your other principle, and this, ' too, to gain the countenance of those ' who may still be called men in power, ' that is, who have the power, if not ' of authority and office, have at least ' the power of numbers on their side; ' This may be termed a less principle ' than the other, of inferior consideration ' itself, and inferior consequence to the ' vital or spiritual well-being of Christ's ' Church upon earth. But let us not ' forget what the Bible says of those ' who break even the least of the coni- ' mandments, that they shall be called ' least in the kingdom of heaven. The ' men who should stand opposed to us ' on this second, or, as many choose to ' term it, this secondary question, might, ' with all the hay, and stubble, and ' wood of this, and it may be of other ' errors, be reposing on the like precious ' foundation with ourselves. They might ' be men with whom we differ, and yet 409 with whom we can agree to differ. They might be coadjutors in the great work of evangelising the people of our land — brethren with whom we can hold sweet and profitable counsel on the capita fidei, or weightier matters of the law, having one faith, and one Lord, and one baptism. But we shall not, even for their friendship, violate the entireness of our principles, or make surrender of the very least of them. It is not for those ministers of Christ whom I am now addressing, and who, on the altar of principle, have just laid down their all — thus quitting, and for the sake of one principle, the friendship of men who have the power of office, — it is not for them to give up another principle for the sake of courting the friendship of men who have the power of numbers. We must not thus transfer ourselves from one earthly dependence to another. We have no other depend ence than God. We acknowledge the authority, and will submit to the in fluence of no other guide than His eternal and unalterable truth as seen in the light of our own consciences. To be more plain, let me be more par ticular. The Voluntaries mistake us if they conceive us to be Voluntaries. We hold by the duty of Government to give of their resources and their means for the maintenance of a Gospel ministry in the land ; and we pray that their eyes may be opened, so that they may learn how to acquit themselves as the protectors of the Church, and not as its corrupters or its tyrants. We pray that the sin of Uzziah, into which they have fallen, may be forgiven them ; and that those days of light and blessedness may speedily arrive, when kings shall be the nursing fathers, and queens the nursing mothers of our Zion. In a word, we hold that every part and every function of a commonwealth should be leavened with Christianity; and that every functionary, from the highest to the lowest, should, in their respective spheres, do all that lies in them to countenance and uphold . it. That is to say, though we quit the Establishment, we go out on the Estab lishment principle — we quit a vitiated 410 HOUSE ' Establishment, but would rejoice in ' returning to a pure one. To express it ' otherwise, we are the advocates for a ' national recognition and a national sup- ' port of religion, and we are not Volun- ' taries. Again, if we thus openly ' proclaim ' The Lord Chief Justice. — Pausing there, would you tell me, Mr. Dean, who would be understood by the people of that day in that passage at D : ' The Voluntaries ' mistake us if they conceive us to be ' Voluntaries ' ? What Churches would be understood? The Dean of Faculty. — I think, my Lord, Dr. Chalmers in this address seems to be using 'Voluntaries' in two senses, but in that part of the address he is undoubtedly using ' Voluntaries ' in the sense my learned friends contend for as being persons who are of opinion that religion ought to be maintained by voluntary contributions. The Lord Chief Justice. — Whom would that include in those days? The Relief and the Secession Church ? The Dean of Faculty. — Not the Relief; I do not know, my Lord, that I can take it upon me to answer that, — there were so many Churches at that time. There . were undoubtedly a great many seceding Churches at that time, many of the individuals in which had particular views about that. The Lord Chief Justice. — I only wanted to know whom he meant by ' The ' Voluntaries mistake us if they conceive us to be Voluntaries ' in this point of view. The Dean of Faculty. — There is no doubt there were several Churches. The Lord Chief Justice. — -But you could not tell me which. The Dean of Faculty. — I am not sure that I know of any that had in its Articles — I do not think there was any. I am going at a later stage to show your Lordships that, when the United Presby terian Church was formed in 1847 out of two of the most prominent bodies, I think it is not disputable that Voluntarism was not in the least in their constitution, whilst at the same time I readily admit — I quite readily admit — that the opinion of the individuals forming it was in favour of Voluntarism. OF LORDS ' The Lord Chief Justice. — J did not want to interrupt you, and I did not want to anticipate what, no doubt, you are to come to ; I only really wanted to know what would be understood by that passage : ' The Voluntaries mistake us if they ' conceive us to be Voluntaries.' The Dean of Faculty. — I think he was speaking, my Lord, of the masses of the people who entertain that view ; I do not think he was speaking of constituted Churches there. No doubt the Free Church was at that time just being formed, and there was quite a cleavage of opinion throughout the country amongst people with regard to that matter; and when speaking in that passage, as I think undoubtedly he did, of people who were in favour of the religious ordinances being maintained by voluntary contribution, it seems to me he was speaking not of Churches constituted upon that basis, but of large masses of the people who entertain that view. In other parts of his address I think, undoubtedly, he was using 'Voluntarism' in the sense of national secularism. There is an illustration of that, I think, probably in the very next passage : ' Again, if we ' thus openly proclaim our difference with ' the men who, under the guise and ' principle (and of this principle we ' question not the honesty) refuse, in the ' affairs of the Church, to have any partici- ' pation whatever with the civil govern- ' ment, — still more resolutely must we ' disclaim all fellowship with the men ' who, under the guise of direct and ' declared opposition, can lift a menacing ' front against the powers that be.' Now, I think he is there speaking of those who were in favour of national secularism ; and Dr. Chalmers' own enunciation of his principles of Establishment at page 12, letter F, is really rather an enunciation of national religion than the establishment of any particular religion, because he says there, at letter F (this is the sum of the whole) : ' In a word, we hold that ' every part and every function of a ' commonwealth should be leavened with ' Christianity.' The Lord Chief Justice. — That cannot be if you read the two lines under D : ' We hold by the duty of Government to their means the Gospel -It is very DEAN ' give of their resources and ' for the maintenance of ' ministry in the land.' The Dean of Faculty. - difficult to say whether he means, by that, promiscuous endowment or the selection of some particular sect and the endowment of them ; whether he means by that that the State were to make a selection of some particular sect and endow them The Lord Chancellor. — Not a sect; I suppose he would say there is but one Church, and that that was the true one. The Dean of Faculty. — Each sect, my Lord The Lord Chancellor. — They would say it, but I am speaking of what he would say, and what he would mean ; he would not assume there was more than one Church. In his view there was but one Church, and that was the one whose doctrines were all right. The Dean of Faculty. — If it were read to that extent it would involve persecution. The Lord Chancellor. — That is exactly why I think from time to time you find disclaimers of persecution ; but for that it is very difficult to understand why they put that in, but I can see exactly the view; they said, 'Although that is the ' one true Church, yet we do not propose ' to persecute anybody else.' The Dean of Faculty. — No, my Lord ; but the question is, whether he meant by this — what did he mean that the State were to do ? They were to give of their resources — but to whom? Were they to give of their resources to the particular sect that he approved of? The Lord Chancellor. — He assumes that the Church of Scotland is the true Church, and indeed it is assumed in more than one of the documents that they are. The Dean of Faculty. — It would in one sense appear that they should transfer the endowment from the existing Estab lishment to the Free Church, but there were any number of other sects, and therefore he is not coming to close quarters with the question here in such a way as to formulate what would be treated as the articles of the constitution of a Church. He is dealing with the matter of the relation of the State to religion in OF FACULTY'S SPEECH 411 broad general terms, which never could have been adopted with a view to framing the constitution of a Church ; and accord ingly I do not think he professes to do so. He is merely expressing an opinion, and most accurately he sums it up by saying : ' " We are the advocates " upon a con- ' tentious matter upon which there was a ' great variety of opinion, — " we are the ' " advocates " for a national recognition ' and a national support of religion, and we ' are not Voluntaries.' My comment, my Lord, upon that document is that, in the first place, it was merely a speech made by the Moderator of the Assembly. The Lord Chancellor. — I think you would be quite entitled to say that, if the General Assembly had not sent it out. The Dean of Faculty. — But it was sent out, my Lord, I do not think as a manifesto of their constitution ; my learned friends do not suggest that. The Lord Chancellor. — I do not know in what capacity it was sent out, but it was sent out to those who were to support the new dissenting Church. The Dean of Faculty. — It was no doubt sent out as the address which had been delivered by the Moderator to the divines assembled who had just left the Church, but not sent out as a document formulating Lord Davey. — I am not so sure ; if you look at the resolution of the Assembly directing it to be sent out, which is to be found at B, page 22, I am not so sure that that is so. The Dean of Faculty. — They simply say, ' It was further agreed ' ; page 60 is where it is, I think. Lord Davey. — It is page 22. Lord Lindley.- — B, 22. Lord Davey. — 'It was agreed that a ' " Communication " be addressed, in the ' name of this Assembly, to the members ' and friends of the Church throughout ' the land, giving a brief account of the ' proceedings of Thursday last, together ' with a list of the Protesting Commis- ' sioners, Ministers, and Elders, • and also ' of the Ministers who have concurred in ' the Protest ; and that the Clerks, with the ' assistance of Mr. Jaffray, be instructed ' to prepare and publish the Communica- ' cation with the least possible delay. It 412 HOUSE ' was farther agreed that the account of ' these proceedings should contain the ' address delivered by the Moderator at ' the opening of this Assembly.' It looks to me very much like an apologia, if one might call it so, or a justification of the step that was taken in seceding of the rest of the world at large. The Lord Chief Justice. — This being their first meetmg. The Dean of Faculty. — They were going to let the public know what had taken place ; I cannot dispute that. Lord Robertson. ¦ — Dean of Faculty, I should hke to know what you say to this : the pinch upon you of this address is this, that it contains a practical warning and exhortation to the people that they are not to join the Voluntaries. The Dean of Faculty. — Or at least, if they join the Free Church they are joining people who at that time prefer the Estab lishment to Voluntarism. Lord Robertson. — Just observe, he says : ' We have left the one body for ' one reason ; a similar claim of principle ' prevents us from allowing you to join ' the Voluntaries.' The Dean of Faculty. — Yes, I think, my Lord, I do not dispute that. Lord Robertson. — That would apply to any body which was Voluntary in the sense of denouncing the national support of religion. The Dean of Faculty. — Yes, but of course when they came to the formation of their Church they came to much closer quarters than that ; a man came and said, ' I want to become an elder or office-bearer ' in your Church,' and then he had to come to close quarters with the Church, and find out from them what were really the binding and stringent things which constituted the bond between the officials of the Church. This was merely a sort of public proclamation of the circumstances under which they were placed, but not in the sense of making an offer, — to make contract with all and sundry on the basis of that document. They said: 'That is ' the position which we occupy ; our view ' about the Establishment remains as it ' was before, and if you come and associate ' yourselves with us, very well, then of ' course welcome.' This does not say so, OF LORDS because it was not intended to go so far as that, but if anyone acting upon this came to the Church they would have to see on what terms they would be received. I am going on immediately to show your Lordships what the Church did in that direction. I am afraid I must adhere to the order. Turning now to Print A — I take the ' Act anent the Model Trust Deed.' My learned friend — I do not know why — seemed very anxious to exclude the Model Trust Deed, or at least to have as little attention directed to it as possible. I am going to submit to your Lordships that that was one of the most authoritative and important documents in the whole case. It takes its origin at anyrate in the Act of 1844, which is upon page 54 of Print A, between B and C ; and also page 35 of B : ' The General Assembly having called for the report of a Committee appointed to consider the whole matter of the Trust Deed, the same was given in and read. The Assembly approve of the same, and enacted, and do hereby enact, in terms of said report, the tenour whereof follows, viz. : — Your Committee have had several meetings, and deliberated very fully on the whole subject remitted to them, and they unanimously approve of, and recommend the Assembly to adopt, the third or intermediate plan recommended by the Special Commission of last Assembly, viz : (I.) " That the "property of each place of worship be "vested in trustees chosen by the con gregation, to be held for the congrega- " tion, in communion with the Free " Church, as attested to be so by the "Moderator and Clerk of the General "Assembly; that"' (and I ask your Lordships to notice these words) ' " Church "to be identified as in the Model Trust " Deed ; the management of the property "to be in the Deacons' Court, — all, as "nearly as possible, as under the first "plan."' Of course, the meaning of that is this : If you wish to identify the Church with which the congregation is connected, it is the terms of the Model Trust Deed which have to be taken as a guide for the identification of the Free Church in the sense of this Deed ; ' " II. That in the ' "event of a certain proportion of the DEAN OF FACULTY'S SPEECH "ministers and elders, members of the "Church Courts, separating from the "general body, and claiming still to be " the true bond fide representatives of the "original protesters of 1843, and to be "carrying out the objects of the Protest, " more faithfully than the majority, then, "whatever the Courts of Law may de- " termine as to which of the contending "parties is to be held to be the Free " Church, it shall be competent for each " congregation, by a majority of its mem- " bers in full communion, to decide that "question for itself, so far as the pos- " session and use of their place of worship " and other property are concerned, with " or without compensation to the minor- "ity — such compensation to be settled " by arbitration " : it being understood that a disruption of the Church in the sense referred to in this extract shall consist only in the simultaneous separa tion, that is, the separation from the general body at once, or within a period not exceeding three months, of at least one-third of the ordained ministers of the Church, having the charge of con gregations in Scotland; and that such separation shall take place only on the professed grounds stated in the said deliverance of the Commission of Assem bly ; and it being further understood that, in order to determine who are members of the congregation entitled to dispose of the property in such a case, a roll of all the members of the Church in full communion shall be kept in each congregation, and annuaUy attested by the Presbytery of the bounds ; and that all such members, and such only, shall be entitled to vote ' Lord Davey. — Mr. Dean, what does that mean, — 'that such separation shall take ' place only on the professed grounds stated ' in the said deliverance of the Commission ' of Assembly ' ? TheDsAN of Faculty. — That they separ ate, my Lord, upon the ground that they think that they in separation are maintain ing more accurately the principles of the protest. I think that what that does in a sentence is this : it is framing the model of a deed on which the property of the congregations is to be held. It forecasts the possibility of difference of opinion in 413 the Church with regard to its principles, resulting in a separation. Well, the im plication of the deed, I think, is this, — that if there is a separation to the extent of a third on principle, then that is to be recognised as a situation rendering a specific mode of treating the congregational property necessary. I think the implica tion is, that if there is less than a third of the ministers, then the situation is not to be such as to imply any rights on the part of those who dissent or those who go away ; and what it says is this : If there is such a cleavage of opinion as means the separation of a third, then, in regard to the congregational property, it is not to be a question to-be determined at law which is the Free Church, — the majority or the minority, — but that is a point which is relegated to the determination of the in dividual congregation, who, by a majority, shall be entitled to decide whether the dissenting third or the remaining two- thirds is, in their estimation, the Free Church to which they are going to adhere, and there is provision then for compensa tion on a particular scale to the minority of the congregation who in that view are deprived of the Church. Your Lordships will find, when we come to the Model Trust Deed, that there is a specific purpose of trust inserted in the deed for the purpose of carrying out this general statu tory rule. Lord Davey. — Does the minority in the present case, which Mr. Johnston repre sents, amount to one-third of the ordained ministers ? The Dean of Faculty. — Oh dear, no ! Mr. Johnston. — No, it does not. The Dean of Faculty. — 26, I think, is the number. Mr. Johnston. — It is more than that, but not a third. The Dean of Faculty. — Does my learned friend dispute 26 ? Mr. Johnston. — Yes, I dispute it. The Dean of Faculty. — My informa tion is 26 ; but I daresay my learned friend, if he has got a different figure, will put it forward. The Lord Chancellor. — It is enough for your purpose, so far as any argument can be founded upon it, that it does not amount to a third. 414 The Dean of Faculty. are 1100 ministers in the Church, and the minority in this case is only about — it appears from the Record Lord Davey. — I have got my answer ; it is sufficient to say it is less than a third. The Dean of Faculty. — It is impossible to say that the case has arisen which is provided for here. My learned friend — I do not know why — says that a document taking its origin in that Act is to throw no light upon the constitution of the Church. Why ? For the purposes of all congregational property what is the Free Church is, according to that Act, to be determined by looking at the Model Trust Deed, and most naturally so ; it is bring ing before the public in a more close and formal way what the principles of the Church are than any other document in existence, because it was a document to be taken to every parish in Scotland and put before them as what the Free Church suggested to its adherents in that parish as being the form of deed on which they should settle their congregational property ; and as for the purposes of the deed what was to be held to be the Free Church was to be identified by the Trust Deed; of course, the Trust Deed set out at large all the principles upon which the body had acted who had become the Free Church. My Lord, as my learned friend said something to you about the document which was before the Church when the Act was passed being only a draft, I think I am bound to give your Lordships a note of the various points hi the Print which establish that this Model Trust Deed received the approbation of the Assembly. There is, first of all, the Act of 1844, to which I have just referred. Then in Print B, page 35 (1 am sorry to trouble your Lordships with this, but it is rendered necessary by the suggestion that this deed, which nobody doubts was acted upon in every case, has some flaw in its title) — at Print B, page 35, your Lordships will find under date 27th May, letter E: 'The ' General Assembly approve of and adopt ' the report ' (that is, the report about the Model Trust Deed), ' and remit to the ' law committee to prepare a deed in con- ' formity with the principles thereof, and ' to report to the Commission either at its HOUSE OF LORDS Of course there ' stated meeting in August, or at a special ' meeting to be called for the purpose, with ' power to issue the deed and to recommend ' its adoption to the several congregations ' of the Church.' If your Lordships will look at B, page 36 (that was upon the 27th May), upon the 11th September 1844 the Commission (the Commission is just the Assembly met by commission; it is ex actly the same as the General Assembly, so far as power is concerned) Mr. Johnston. — It is not the General Assembly ; it is a selection. The Dean of Faculty. — I beg pardon ; I am speaking of the power of the Com mission. When the Assembly meets in commission, then it has precisely the same power as the General Assembly ; I am sure my learned friend does not dispute that. Mr. Johnston. — Yes, I do. The Dean of Faculty. — They have got special powers ; there is a remit from the General Assembly to the Commission. Mr. Johnston. — Quite. The Dean of Faculty. — ' To report to ' the Commission either at its stated meet- ' ing in August, or at a special meeting ' to be called for the purpose, with power ' to issue the deed.' That is the General Assembly delegating to the Commission ; the General Assembly meets once a year, but there is always a Commission meets in the middle of the year. The Lord Chief Justice. — It is enough for you that it has been acted upon in hundreds of instances. The Dean of Faculty. — I~should like to make it perfectly clear that this is done most deliberately and formally : ' The ' Commission having called for the report ' of the law committee relative to the Trust ' Deed, Mr. Dunlop, convener of the Com- ' mittee ' (that is, Mr. Dunlop, Member of Parliament, who was undoubtedly one of the persons chiefly engaged in the for mation of the whole of these deeds, the Protest and the Claim, and many others), ' submitted a draft of the proposed deed, ' which, having been considered, was ' unanimously approved of, and recom- * mended for adoption, to the several con- ' gregations of the Church.' Then at B, page 37, the top of the next page Lord Lindley. — At the bottom of page DEAN OF FACULTY'S 36, is that important: 'The Commission ' ordered the foresaid deeds to be recorded '? The Dean of Faculty. — 'The law ' committee not being in circumstances ' to report relative to the Trust Deed, they ' were instructed to be prepared ' (that was in the month of August, my Lord, intermediate between May, when the remit was made to the Commission, and September, when the Commission met. I think that was a meeting of committee) ; ' the law committee not being in circum- ' stances to report relative to the Trust ' Deed, they were instructed ' to be pre- ' pared previous to Wednesday, the 11th ' day of September next, to which day the ' Commission agree to adjourn at the close ' of the business of the present meeting, ' for the purpose of considering the com- ' mittee's report, and with power to take ' up any other matters which may be ' brought before them.' The deed had not been ready for the consideration of the Commission, and they adjourned for the purpose of having it formally before them. Then on the 11th of September a draft was submitted, and it 'was unani- ' mously approved of, and recommended ' for adoption to the several congregations ' of the Church,' and accordingly it be came the law of the Church on the 11th of September 1844. Then upon page 37, at the top of the page : ' The Assembly ' appoint a committee to revise the minutes ' and print the Acts of Assembly; and ' the committee are instructed to have the ' Model Trust Deed printed and sent ' down along with the Acts of this year.' Accordingly, the Model Trust Deed is printed in the proceedings of the Assembly of 1851. I do not suggest it had not been acted upon previously, but when in 1851 they were issuing the Acts of Assembly they issued the Model Trust Deed along with the rest. My Lords, I submit it is quite out of the question under those circumstances to suggest that the Model Trust Deed was not one of the most authoritative documents. What other document is there in the case by which the Free Church Assembly so directly brought under the notice of all and sundry what the principles of the Free Church were? The Claim, Declara tion, and Protest was not circulated, so far SPEECH 4i5 as I know ; the Protest was not circulated, so far as I know. Lord Davey. — Yes, the Protest was included in the 'Affectionate Address.' The Dean of Faculty. — Yes, in the Representation. Lord Davey. — In the ' Affectionate Address.' The Dean of Faculty. — Yes ; to whom that went it is impossible to tell, but the Church had got methodised by the time the Model Trust Deed was framed, and no doubt that was the scheme contem plated by the Church for every congre gation in every parish settling its property which was to be occupied as a congre gation of the Free Church ; and that is the explanation why there is set out ad longum in the Model Trust Deed the whole scheme of the Church in separating from the Establishment — the historical narrative as to its separating from the Establishment, and the basis upon which it was set up. One must, my Lords, use some dis cretion in limiting one's quotation of documents here, and therefore I cannot possibly inflict upon your Lordships, although I think it is probable The Lord Chancellor. — We are supposed to have read it all, you know. The Dean of Faculty. — I cannot possibly inflict upon your Lordships the reading of this document, although, if one were asked where probably with most distinctness and accuracy everything was set out, this document would probably take, if not the first place, certainly very nearly the first place. Lord Robertson. — Dean of Faculty, as you put it thus pointedly, I would like to call your attention to what seems rather important on Print A, page 53 ; it is : ' The Assembly should further enjoin the ' several Presbyteries to record the Pro- ' test taken on the 18th May, together ' with the Act of Separation and Deed of ' Demission, at the beginning of their ' Presbytery Books, as the ground and ' warrant of their proceedings.' I mention it for this reason — rather as challenging or suggesting a doubt as to your giving the Model Trust Deed the primary place in the constitution of the Free Church. I suggest that this is the appropriate place 416 HOUSE to look for the constitution as the ' ground ' and warrant of the proceedings ' of the new Presbytery. The Dean of Faculty. — What I meant to say was, my Lord, that, so far as I know, the constitution of the Free Church was brought more in detail before all the ad herents of the Church in all the parishes by means of the Model Trust Deed than in any other way. When it comes to be a question of law as to what is to be held as the constitution or not the constitution, then probably the publication of the docu ment would stand aside as a matter not conclusive at anyrate, but, when it comes to be a question of bringing home to the people of Scotland as a whole what their position was, the Model Trust Deed ful filled that function, but, so far as I know, no other except Dr. Chalmers' speech, which included the Protest, and that no doubt would be issued to the public generaUy, whereas this would go to par ticular congregations, and the peculiarity of the Model Trust Deed seems to be this, — that every congregation who had got property on which they were going to build a church had specifically to apply their minds to the question : How are we going to settle it ? Shall we take the Model Trust Deed as the deed upon which this property is to stand, or shall we not? And they, therefore, in determining that, if they were sane people, must have read the Model Trust Deed to see : ' Is ' that the basis upon which we are dis- ' posed to settle our congregational pro- 'perty?' Now, my Lords, my learned friend challenged the accuracy of the Model Trust Deed as a document which is not accurate, by referring to the top of page 58, beginning at the bottom of page 57 : ' Considering, that whereas in the year ' 1560, and from that year downwards, a '- Reformed Presbyterian Church existed ' in Scotland, professing to be reformed exercising of Christ ' from Popery by presbyters * the functions of a Church ' within these realms, and, in particular, ' adopting and approving of a Confession ' of Faith.' My learned friend challenged the accuracy of that, but in challenging the accuracy of that he was asserting the view of the Estabhshed Church party who OF LORDS remained in the Church, and not the view of the Free Church party, who hold that view exactly as it is set out there and formulated in their Catechism of Prin ciples which I read to your Lordships yesterday ; it may be that the Estabhshed Church party (I do not suggest that my learned friend suggests he represents them) cavilled at the idea of how far there was State authority on the part of the Church when they first adopted this, but un doubtedly the Free Church party view was that our adoption of the Confession of their Faith was an Act of the Church wholly irrespective of the State. Then he says the two Books of Discipline are still extant in those details. The Books of Discipline ? They are not the Standards of the Church. Not according to the Established Church party's view, but that was exactly what the Free Church party maintained in their litigation. They said : ' We hold that the Books of Discipline ' have been the Standards of the Church ' all the time, irrespective of the State,' and accordingly the Lord Justice Clerk said in his judgment : ' If you could have ' made that out you would have estab- ' lished your position to be able to do ' anything, but of course the State would ' not take you on the basis of the Book of ' Discipline ' ; they selected the part they would agree to by way of Establishment, and therefore my learned friend, in chal lenging these, forgot that he was dealing with a document which set out the view of the Free Church party with regard to these questions, which I admit historically may be open to question, but which they were treating from the point of view of their own understanding of the matter. This document, as I have said, I certainly do not intend to inflict upon your Lord ships at length, but I want just to call attention to one or two points connected with it — the frequent reference to what is essential and fundamental. Now, if your Lordships would be good enough to look at page 58, at the bottom they say : ' And whereas ' (at letter G) ' it was at all ' times an essential doctrine of the said ' Church and a fundamental principle in ' its constitution, as set forth in accord- ' ance with the Word of God in the said ' Confession of Faith, that " there is no DEAN OF FACULTY'S ' "other Head of the Church but the Lord • " Jesus Christ," and that " the Lord ' " Jesus, as King and Head of His ' " Church, hath therein appointed a ' "government in the hands of Church ' "officers."' Now, there is not a word there about Establishment. Then upon page 59, letter D, there is again a reference to what is ' fundamental ' : ' And whereas, ' further, it was at all times a fundamental ' prmciple of the said Church that no ' pastor should be intruded upon any con- ' gregation contrary to the will of the ' people.' Then it proceeds to narrate the Barrier Act, and upon page 60, at letter E, it refers in these terms to the resolution of May 23, 1838: 'And ' whereas the General Assembly of the ' said Church, holden at Edinburgh in ' May 1838, passed on 23rd May 1838, in 1 reference to the essential doctrine and ' fundamental principle first above men- ' tioned, a formal Resolution in the f ollow- ' ing terms ' ; and then they quote the resolution which I read to your Lordships yesterday, and, as pertinent to what I am now speaking of, I now call attention to the words of that resolution at the bottom of the page : ' Do resolve that, as is de- ' clared in the Confession of Faith of this ' national Established Church — the Lord ' Jesus, as King and Head of His Church, ' hath therein appointed a government in ' the hand of Church officers distinct from ' the civil magistrate ' ; and at the top of page 61 : ' and that, in all matters touch- ' ing the doctrine, government, and dis- ' cipline of this Church, her judicatories ' possess an exclusive jurisdiction, founded ¦' on the Word of God, which power ' ecclesiastical (in the words of the Second ' Book of Discipline) flows immediately -^from God and the Mediator, Jesus "Christ, and is spiritual, not having a ' temporal head.' Then it says, between D and E : ' And whereas, in consequence ' of certain Acts, decisions, and proceed- ' ings of the Supreme Civil Courts of « the State, which the said Church held ' to be inconsistent with, and subversive ' of, the foresaid fundamental principles ' of its constitution, the General Assembly ' of the said Church held at Edinburgh.' Then, my Lord, I come to page 65, where there is a narrative of the Protest, 2d SPEECH 41? and in setting out as they do from the Protest, which is narrated at very con siderable length, the enumeration of the principles of the Church, your Lordships find that clause which I troubled your Lordships by arguing upon this morning and which I treated as an aside, as a clause merely aside, that is not put in. Your Lordships find at page 65, letter D, that they narrate the Protest : ' And did ' further protest, " That in the circum- ' "stances in which we are placed, it is ' "and shall be lawful for us, and such ' " other Commissioners, chosen to the ' " Assembly appointed to have been this ' " day holden, as may concur with us, to 1 " withdraw to a separate place."' Well, my Lords, what possible motive could there be for not putting that in, except that it was not looked upon at the time as one of the principles of the Church? In 1844 the Church's view was exactly the same as it had been in 1843. In formulating this document they do not put in the clause aside, but go on to narrate that which is the substance of the Protest, and accordingly, my Lord, I say that that shows that at the time in examining the Protest there was a totally different function assigned to the clause in the Protest about the civil government from what was assigned to those portions of the Protest which really set up the grounds — the fundamental grounds — upon which the Free Church party were then acting. Then, my Lord, at page 66 there is a clause at the bottom of the page. If the Church had been intending to put forward as one of its great principles the main tenance of constant striving to keep up the Establishment, surely they would have told the people in the parishes that if they formed themselves into a con gregation in connection with the Free Church, that was one of their principles. Now, they did not do that. Lord James of Hereford. — But they have declared in their Protest : ' We are ' not Voluntaries.' Does that character remain to them or not, although it is not stated in this Model Deed ? The Dean of Faculty. — Of course, my Lord, your Lordship is speaking of Dr. Chalmers' address. Lord James of Hereford. — It was in HOUSE OF the last words : ' 418 the Protest ; those are ' we are not Voluntaries.' The Dean of Faculty. — I think, as in a question between the Church and the congregation, the bond between them would be held to be the Model Trust Deed; that is what they were actmg upon. Any congregation which joined the Free Church on the basis of the Model Trust Deed specifically agreed to have the question of what was the Free Church identified by the Model Trust Deed ; and therefore, so far as they were concerned, so far as the congregations were concerned, the Model Trust Deed was to be exclusive of everything else. Then, my Lords, at the bottom of page 66, they say, at letter G: 'And whereas ' the said ministers and elders and those ' who adhere to them, thus form a body ' of Christians known by the name of ' " The Free Church of Scotland," separate ' and distinct from the Established Church, ' as now recognised and endowed by the ' State; but using and exercising the ' foresaid form of Church Government ' by Kirk-Sessions, Presbyteries,' and so on, 'and, in general, the same internal ' government, jurisdiction, and discipline, ' as before their said Act of Separation ' from the Church of Scotland, as now ' recognised and endowed by the State : ' And whereas, in order to secure and ' invest the foresaid subjects and others, ' and buildings erected on the ground ' thereof, in connection with the said ' Free Church of Scotland ' (now that is the Free Church of Scotland as defined in the narrative set out in this deed), 'it has been agreed to convey ' the same to the parties after-named, ' and designed as trustees.' Then, my Lords, the trust is declared upon page 68, and I call attention to the passage at the bottom of page 68 for those members of the House who were- not present at the former hearing. I do not know that it has been brought specifically under their notice ; at page 68, between E and F, the first Article is : ' Upon Trust that the building ' or place of worship erected, or in the ' course of being erected, upon the grounds ' hereby disponed, or any building or ' place of worship that may hereafter be ' built and be erected thereon, with the LORDS ' appurtenances thereof, shall, in aU time * coming be used, occupied, and enjoyed, as ' and for a place of religious worship, by a ' congregation of the said body of Chris- ' tians called the Free Church of Scotland, ' or of any united body of Christians com- 1 posed of them, and of such other body or ' bodies of Christians as the said Free ' Church of Scotland may at any time ' hereafter associate with themselves, ' under the foresaid name of the Free ' Church of Scotland, or under whatever ' name or designation they may assume, ' and to be made use of by such con- ' gregation occupying and enjoying the ' same for the time being, in the way and ' manner in which, by the usages of the ' said body, or united body of Christians, * places of religious worship may be, or ' are, in use to be occupied and enjoyed.' Then there is a series of provisions in which the possibility of union with another Church is frequently referred to; your Lordships will find the words ' body, or united body'* on the second line on page 69 — 'the said body, or ' united body of Christians.' The Lord Chancellor. — I suppose that has -reference to the previous assumption that they are hereafter to associate with themselves. The Dean of Faculty. — Yes, but ' the ' said body ' might have applied to the original body, whereas ' or united body of ' Christians ' means the body after union. The Lord Chancellor. — Yes. The Dean of Faculty. — Its repetition probably does not strengthen it, but at every later part of the page where the ' body ' is spoken of it is put in the alternative form 'body, or united body,' to meet the case of possible union. I do not think that I need trouble your Lord* ships with the detailed provisions of the deed as to the powers which they were to have, which very largely place the body under the power of the Assembly — which, of course, entirely places the body under the power of the Assembly; but the clause which requires to be considered along with the Act of 1844 is, 'ninthly,' on page 76. Lord James of Hereford. — You have nothing to say, Mr. Dean, as to the limitation there would be in this union DEAN OF FACULTY'S of the Churches. Do you say the party had full power to unite with any Christian Church? The Dean of Faculty. — I think prob ably that would be the question ; my contention is that they had, if the Church did it as a Church. Lord James of Hereford. — Roman Catholicism, or anything ? The Dean of Faculty. — The Church would certainly have the power to do it, and that the rights of any dissenters would fall to be regulated by the minority clause ; but if the minority thought that a union had been effected which was against the principles of the Church in 1843, then the deed makes provision for what their rights are to be. That is in the clause I am just going to read. If your Lordships will allow me to call attention to the clause (I am reading from the deed), the only point which I am not sure has been brought under your Lordships' notice at the present hearing is the clause at the bottom of page. The Lord Chief Justice. — I have it marked. The Dean of Faculty. — In the docu ment thereafter, whenever the body is spoken of, it is always spoken of in the alternative form, ' body, or united body.' Then the ninth purpose is on page 78 at letter G, and I shall have some words to say about that. SPEECH 419 (After a short adjournment.) The Dean of Faculty. — My Lords, I must trouble your Lordships with a few references to the Model Trust Deed upon which I was speaking, and the clause with which I shall have to deal in detail 0 that clause providing for a disruption of the Church. I think, perhaps, before I read that, I should ask your Lordships' attention, to the 4th clause of the same deed, which your Lordships will find upon page 72. I call attention to that for the purpose of showing the relation of the General Assembly of the Church. The 4th purpose begins at letter C. ' Fourthly, ' Upon further trust, that the said Trustees, ' or Trustee, acting for the time, shall, at ' all times, be subject in the management ' and disposal of the said building, or place ' of worship, and appurtenances thereof, ' and whole subjects hereby disponed, and ' in all matters and things connected ' therewith, to the regulation and direction ' of the General Assembly, for the time ' being, of the said body, or united body, ' of Christians, and shall be liable and ' bound to conform to, implement, and ' obey, all, and every the Act or Acts of ' the General Assembly, for the time ' being, of the said body, or united body, ' of Christians, in reference thereto ; and ' the Moderator and Clerk of the said ' General Assembly, for the time being, ' or of the then immediately preceding ' General Assembly of the said body, or ' united body, of Christians, or the parties ' generally known, or understood, to hold ' those offices for the time, shall, at all times, ' have full power, and sufficient status, and ' right and interest to pursue,' and so on; so that the property was really placed subject to the control and direction of the Assembly of the Free Church, what was the Free Church being to be determined for the purposes of this deed in the manner prescribed by the ninth head of the trust to which I am now to call attention. It is at the bottom of page 76, between F and G : — ' Ninthly, It is hereby ' specially provided and declared, that if, at ' any time hereafter, one-third of the whole 1 ordained Ministers, having the charge of ' congregations of the said body, or united ' body, of Christians, or any larger number ' of the said ordained Ministers, having ' charge, as aforesaid, shall simultaneously, ' or within a consecutive period, not ' exceeding three calendar months, not ' only publicly separate from the said ' body, or united body, of Christians, but; ' at the same time, publicly claim and ' profess to hold, truly, and in bond fide, ' the principles of the Protest of 18th ' May 1843, hereinbefore recited, and to ' be carrying out the objects of the said ' Protest more faithfully than the majority ' of the Ministers of the said body, or ' united body, of Christians, and shall ' unite in forming one body of Christians, ' having Kirk- Sessions, Presbyteries, Pro- ' vincial Synods, and a General Assembly, ' then and in that case, and anything ' herein to the contrary notwithstanding, ' it shall be competent to, and in the 420 HOUSE ' power of a majority of the congregation, ' in the use, occupation, and enjoyment of ' the said building, or place of worship ' for the time, to provide and declare, by a ' deed of declaration and appointment ' under their hands, to that effect, duly ' executed, that the ground hereby dis- ' poned, and buUding, or place of worship ' then upon the same, shall from thence- ' forward be held as in connection with ' the body of Christians adhering to the ' Ministers who shall have separated as ' aforesaid, and, for this purpose, to ' require and appoint the said Trustees, or ' Trustee, acting under these presents for ' the time, to convey and dispone the ' ground hereby disponed, and the building ' or place of worship, then upon the same, ' and whole appurtenances thereof, to any ' three or more Trustees in the said deed ' of declaration and appointment named, ' to be held by such new Trustees, and ' their successors, in trust, as after men- ' tioned : And, on such deed of declaration ' and appointment being executed, as said ' is, the Trustees or Trustee, acting under ' these presents for the time, shall be ' bound and obhged, as they are hereby ' bound and obliged, at the expense ' always of the receivers, and on being ' entirely freed and relieved of all pecuniary 1 obligations then affecting the subjects ' hereby disponed, or buildings thereon, or 1 affecting them as Trustees or Trustee, ' under these presents, or for or to which ' they, as such Trustees or Trustee, may ' be subject or liable, but no sooner or * otherwise, to convey and dispone the ' ground hereby disponed, and the build- ' ing, or place of worship, then upon the ' same, and whole appurtenances thereof, * to the said new Trustees who shall be in ' the said deed of declaration and appoint- ' ment named, and their successors in trust, ' for the said persons, subscribers of the ' said deed of declaration and appointment, ' as a congregation of the said body of ' Christians who shall have separated as ' aforesaid, and for the successors of such ' persons forming such congregation for ' the time being : such new deed of trust ' to be mutatis mutandis, as nearly as ' possible, in the terms, and of the import, ' of these presents, and to have for its ' object the placing the said congregation OF LORDS of the said body of Christians who shall have separated as aforesaid, and the Minister of such congregation, and the Elders and Deacons, and Elders acting as Deacons thereof, and the said body of Christians who shall have separated as aforesaid, and its Kirk-Sessions, Presby teries, Provincial Synods, and General Assembly, and the said new Trustees themselves, in the same relation respec tively to the ground hereby disponed, and buUdings thereon, and appurtenances thereof, and in the same relation to each other, in reference thereto, as was held, before the granting of the said new deed of trust by the congregation using, occupying, and enjoying the same, in virtue of these presents, and the Minister of such former congregation, and the Elders and Deacons, and Elders acting as Deacons, thereof, and the said original body, or united body, of Christians, and its Kirk-Sessions, Presbyteries, Provincial Synods, and General Assemblies, and the said Trustees, or Trustee, acting under these presents : Tenthly, It is hereby expressly provided and declared, that in the event of a deed of declaration and appointment, and new deed of trust, being executed as aforesaid, the parties signing such deed of declaration and appointment shall be subject and liable to pay and make good to the minority of the congregation with whom they were previously connected, who did not sign the said deed, and for behoof of the said body, or united body, of Christians, with which also they were previously connected, a proportion of the net value of the subjects disponed by such new deed of trust, corresponding to the number of such minority, as compared with the number of subscribers to sai£ deed of declaration and appointment.' My Lords, that is a clause making specific provision for the case of difference of opinion occurring in the Church to an extent which involves disruption — disrup tion to an extent implying one-third of the whole of the ministers of the Church leaving. That cannot imply the minority here, who of course are a very small body, but who, I do not say, are not entitled to raise this question. A question, however, might arise : Suppose the minority were DEAN OF FACULTY'S SPEECH Free Church in the opinion of this House, the Free Church, separated then the question might arise with regard to the congregational property as to whether there was not here a term of the trust which came into operation. The majority in such a case Lord James of Hereford: — I am very sorry that I do not quite follow you. What is the proposition you put here, because there is no disruption here? The Dean of Faculty. — There would be, my Lord, if your Lordships held there' was a disruption ; I am afraid I must con cede there is that; there is a disruption in this sense, that a certain number of the Free Church have constituted themselves into a body represented by my learned friend, distinct from the United Free Church. The United Free Church of course maintain the continuity of their existence, that they are the Free Church. Lord James of Hereford. — Do you say the minority here are the persons who ceased to belong to the Church ? The Dean of Faculty. — There are two parties before your Lordships — the United Free Church, whom I represent ; and the Appellants, who undoubtedly were minis ters of the Free Church, and who say that they are now the only Free Church — that they alone constitute the Free Church, because the large majority of the Free Church, by uniting with the United Presbyterian body, cut themselves off from the Free Church — dissented, in short, from the Free Church. That is the proposition they make. Lord James of Hereford. — But you do not admit that, do you ? The Dean of Faculty. — No, my Lord ; but I must deal with the case. This Trust Deed provides hypothetically for "possible contingencies. Lord James of Hereford. — Yes, other contingencies which I thought had not arisen here; but you treat this as a dis ruption, then ? The Dean of Faculty. — No, my Lord ; I have to provide for the contingency of your Lordships either affirming or revers ing the judgment. Suppose your Lord ships affirm the judgment, then I think it not doubtful that the effect of that would bo that the appellants would be held to be the body who had cut themselves off from 421 themselves from the Free Church, and I should not dispute. Lord James of Hereford. — What have they done to separate themselves from the Free Church ? The Dean of Faculty. — They have left the Free Church, my Lord, and gone to a separate place. Lord James of Hereford. — That is, they would not unite with the United Presby terians ? The Dean of Faculty. — That is so. Lord James of Hereford. — Is that leav ing the Church ? The Dean of Faculty. — They refused to unite ; they said : ' We maintain our- ' selves in an attitude of separation.' If the Free Church were entitled to unite with the United Presbyterians, and there was a continuity in their existence from the time they were the Free Church until now, of course any portion of their body (if that was within their powers and they were entitled to do it) who refused to accompany them simply separated them selves from the Church to which they belong. In like manner, if the appellants, the few gentlemen who constitute the body of appellants, established that they had a principle which notwithstanding the smallness of their numbers entitles them to be treated as the Free Church, I could not dispute that then we have cut our selves off from them; we certainly have refused entirely to accompany them into the position which they have taken, and there is therefore a cleavage within the Church, I think, undoubtedly of the character which is hypothetically dealt with The Lord Chancellor. — I want to ask you a question about that presently. The Dean of Faculty. — I say that there is therefore a cleavage within the Church of the character which is hypo thetically dealt with in the Trust Deed. I will illustrate what I mean by this : If the appellants had been a third of the ministers of the Free Church, I do not think I could have disputed that this clause would have applied, and that they would have been entitled to say : ' We ' should have congregational property dealt ' with in the terms of the ninth purpose 422 HOUSE ' of the Trust.' They are not in that position, because their numbers do not even approximate to a third. The deed very carefully guarded this right given to the minority, — that the right of the minority was not to be recognised unless it was a minority of such substantiality as to constitute one-third of the ministers of the Church ; but, if they had been a third, then I do not think I could have disputed that this deed would have apphed to their case. Of course, on the other hand, if they were the Free Church, then undoubtedly the body I represent would in that case be held to have left the Free Church and to have separated from the Free Church. They are, on the other hand, very much larger than one- third ; of course they are very nearly the whole body, and that I must frankly admit to your Lordships creates a difficulty in that case in the application of this Article, because, in order to get it made applicable — the point I am now raising — I require to show that my clients, the majority, fall within that clause. They do fall within it in the sense of being more than one- third, but I must frankly acknowledge to your Lordships that there are certain difficulties in bringing them within it in respect that they are more than a half. Lord Chancellor. — In respect that they are not a minority. The Dean of Faculty. — In respect that they are not a minority at all. They are a very large majority, and I have therefore, I admit, some difficulty. Of course, what I should point out would be that, being nearly the whole Church, the spirit of this trust points at this being referred to con gregations to say what is the Free Church in the sense of the Model Trust Deed, and if my clients had been in the position of being anything less than a half, I think it is perfectly clear that they would have been entitled to that. Unfortunately, as they are nearly the whole, they do not seem to fall within the particular letter of the trust. Lord Davey. — But it may be that, in a particular congregation, every member of the congregation may be adherents of Mr. Johnston ; what is required is that there should be one-third of the general ministers pf the Church, OF LORDS The Dean of Faculty. — Yes. Of course, my Lord, Mr. Johnston would be very well off in that case, because the congregation would be entitled to decide for him. I should be very glad to adjust matters on the footing of taking the views of the congregation upon the subject, but we are here on the Trust Deed. That is the point, my Lords, which arises. The Lord Chancellor. — I want to ask you two questions upon that Trust Deed. You observe at the top of page 77 : ' The ' said body or united body of Christians ' who publicly claim and profess to hold ' truly and in bond fide the principles of ' the Protest on the 18th May 1843 ' : is it, or is it not, the fact that the mere pro fession is enough to satisfy that con dition ? The Dean of Faculty. — They must publicly claim and profess, and most cer tainly. The Lord Chancellor. — If you could show from their declarations and the views they take about other things that that was not true, would that apply, or does the deed simply mean that their actual public profession is enough ? The Dean of Faculty. — I think they must be in the position of claiming and professing to act in accord with this. The Lord Chancellor. — Would claim ing and professing do ? Supposing it could be established to the tribunal that that was not consistent with their declarations, could the tribunal determine on a con struction of the deed that it was not a bond fide provision? The Dean of Faculty. — Yes, it must be in good faith ; it says so in words. The Lord Chancellor. — It does not in the deed ; it only says they must claim and profess. The Dean of Faculty. — 'And in bond 'fide' your Lordship will find in the second line, — 'but at the same time ' publicly claim and profess to hold truly ' arid in bond fide.' The Lord Chancellor. — Yes, but all they have to do is to claim and profess. I want to know whether in your view that is the subject of determination by any tribunal before whom it comes, or whether the tribunal would be stopped from inquiring into the bond fides of it DEAN OF FACULTY'S SPEECH 423 because they claim and profess, and have claimed and professed. The Dean of Faculty. — I think, my Lord, I could not dispute that the question would arise in connection with this deed of patrimonial right to property, and this is a trust on which right to property would depend. The Lord Chancellor. — Certainly. The Dean of Faculty. — I do not think that I could suggest that it would not be competent to a civil tribunal to determine whether the condition had arisen under the trust. The Lord Chancellor. — I think it is not a question of the condition being reasonable. What I ask is : In your view of the meaning of that deed, is it com petent to the tribunal to enter into the question whether they do bond fide hold these principles or not, or is their mere profession a public claim enough to satisfy the condition of the trust ? The Dean of Faculty. — I am obliged to your Lordship for calling my attention to it. I think possibly the true meaning of these words is that it would be enough to bring this into operation that the body pubhcly claimed and protested. The Lord Chancellor. — That is what I wanted to know ; you take that view ? The Dean of Eaculty. — I must say I had not considered that question, my Lord. Lord Macnaghten. — Besides that, they have to form a body of Christians. The Dean of Faculty. — The condition which must occur is the case of a body publicly separating from the united body, from the whole body. The Lord Chancellor. — Yes. The Dean of Faculty. — And when they separate (of course they are the masters of their own right to separate), I think the meaning of this is that they separate on the ground that they are more truly up holding the principles of 1843 than the party whom they are leaving; that they have the right to decide that for them selves, and that, having decided for them selves The Lord Chancellor. — Then the tribunal could not enter into that ques tion? The Dean of Faculty.— No, I think not, The Lord Chancellor. — Then you alter your first answer ? The Dean of Faculty. — Yes. The Lord Chancellor. — Very good. The Dean of Faculty. — I beg pardon. I think the condition contemplated in the trust purpose would be brought into ex istence by the mere fact of a certain per centage of the ministers separating upon a profession at the time of upholding more clearly the original principles than those whom they were leaving. That seems to me to be the meaning of it. The Lord Chancellor. — Very good. Now, my second question is this : Suppose in the terms of the Union it was held and professed to be held that upon certain matters each of the uniting bodies was entitled to preserve their own original opinions, would that be within this? The Dean of Faculty. — That would probably be a matter for the two bodies to determine. The Lord Chancellor. — Would it be for them to discuss them, or would it be at all within the terms of this deed ? The Dean of Faculty. — The party who was to separate or remain decides for itself the grounds of separation ; no doubt they might take into account • The Lord Chancellor. — That might be ; all I ask you is : Would it be within this provision that the Union, which is what you call attention to, must be such according to their proclamation and claim that they more faithfully than the majority of the ministers observe the principles ? The Dean of Faculty. — Profess and hold the principles of 1843 ? The Lord Chancellor. — Yes. Would a united body who satisfied that part of it be consistent with the proposition that in forming the Union each might maintain the principles that they had previously maintained, and which by the hypothesis were antagonistic ? The Dean of Faculty. — I think if the part of the originally united body said, ' We hold that by uniting with A, ' and upon the basis which we have ad- ' justed, we shall be more faithfully up- ' holding the principles of 1843 than by ' remaining in separation,' they would be sole judges of that. 424 The Lord Chancellor quite the proposition. The Dean of Faculty. — I desire to answer your Lordship's question. The Lord Chancellor. — It is too much to ask you, Mr. Dean, not to know what I am referring to, and I must put it to you plainly : Assuming there is this reservation of the right of private judgment, say, upon the question of doctrine, or the question — ¦ whether it is doctrine or not I will not at present say — of the duty of the State to provide for and support and maintain a form of religion; and suppose upon that the united body to say, ' I belong to this ' united body, and I claim publicly to be a ' more faithful exponent of the principles ' of 1843 than you are, but still we will ' unite ' ; then another -person who unites with him says, ' I do the same, although ' I take an entirely opposite view,' would that be within this provision? That is what I want to know. The Dean of Faculty. — I think, my Lord, it would. The Lord Chancellor. — You think it would — very good — that is the answer. The Dean of Faculty. — I think it would. Your Lordship asked me to con sider the case of the body uniting with them entertaining certain views. The Lord Chancellor. — Each unites with the other. The Dean of Faculty. — Yes; but, in the first place, starting from the original body, the Free Church, taking it in the first instance, there is a section of that, be it large or small ; there is another body, A. B., and on a certain subject individuals belonging to either body differ in opinion. We regard that as a secondary matter, but we think that by uniting with them on the basis of their retaining their opinions on that secondary matter which are differ ent from the opinions which we entertain on that secondary matter, still by union with them we are being united upon what is substantial and essential, and we shall be giving more effect to the principles of 1843 than we should do by keeping separate on the mere ground that there was individual difference of opinion on this secondary matter. The Lord Chancellor. — You intro duce language to which the deed is a HOUSE OF LORDS - That is not stranger ; I know nothing about secondarj matters at all. The Dean of Faculty. — That is the view of my cUents, my Lord; my clients un doubtedly regard this not as fundamental or essential, but secondary, and accord ingly they say : ' There is nothing to pre- ' vent our uniting with the United Presby- ' terian Church. The fact that individual ' members of the United Presbyterian ' Church entertain a different view from ' some of the individual members of the ' Free Church upon this question of ' Church Establishment does not in the ' least prevent the union of the two bodies ' in our estimation being a more effectual ' carrying out of the principles of 1843 ' than remaining separate, we regarding ' the principles of 1843 as being spiritual * independence and non-intrusion.' The Lord Chancellor. — You see, the hypothesis I put to you was that some of the principles of 1843 were not entertained by the United Body. The Dean of Faculty. — It might be difficult for a body starting from the assumption that they were differing upon what was essential ; that might make all the difference. The Lord Chancellor. — It eomes back to the question though, and that answers my questionin another way; if they differed, then, upon a matter which was essential, you would agree they could not unite and come within this provision ? The Dean of Faculty. — If they united with a body which did not entertain one of the essential principles, it would neces- sarUy follow that they could not by uniting be carrying out that principle. The Lord Chancellor. — That is ex actly what I should have thought. The Dean of Faculty. — They might require to consider whether by union upon several essential points, although there was difference upon one, they might still not more effectually carry out the views of 1843 in respect of the greater importance of the principles upon which they were united. Lord James of Hereford. — What would you say — would it be a good union if they left one essential principle ununited upon? The Dean of Faculty, —You ask what DEAN OF my contention is; my contention is that it would. Lord James of Hereford. — It would be a good union. The Dean of Faculty. — I contend to your Lordship that the Church have absolute power over its constitution by its constitution. I contend that that question does not arise in its extreme form here, because the whole of this matter of Establishment was not of the essence of the constitution. The Lord Chancellor. — I think you will find it does arise also on the matter of doctrine, but all I am entitled to do is to let you see what I am thinking of, in order that you may answer it ; I do not want to argue it with you. Lord James of Hereford. — You see, Mr. Dean, you wish to leave certain questions out as open questions, as they do in politics. The Dean of Faculty. — I think this union most unquestionably in 1900 took place on the basis of certain matters being left as open questions ; I am to contend to your Lordships that the question of Estab lishment was an open question by the constitution of the Free Church all along ; when I come forthwith to deal with the Act which they passed fixing the questions and formulae which were to regulate Lord James of Hereford. — Well, that must be a matter of degree ; if you had several open questions, the union would scarcely exist except in name. The Dean of Faculty. — I do not know, my Lord ; there might be any number of open questions without in the least inter fering with the legality of the union if they are agreed on the ordinances. Lord James of Hereford. — If you carry that to the full extent, you might have a Union in nothing but name. The Dean of Faculty. — Not if they are agreed on the ordinances; if two bodies concur in thinking that A, B, and C. are essential and fundamental, and if they are agreed upon them, and if they think they can in union give greater efficacy to these three fundamental prin ciples than in separation, it does not appear to me that there is anything inconsist ent in their saying, 'We shall combine ' for the purpose of carrying into efficacy FACULTY'S SPEECH that which we regard 425 as essential, ' although ' Lord James of Hereford. — But sup posing there are D. E. and F., also essential questions, and they do not combine in respect of these, what do you say then ? The Dean of Faculty. — I should say they would not combine in that case. No rational body would surrender what it regarded as an essential principle. Lord James of Hereford. — Not even to leave it an open question ? The Dean of Faculty. — If it was essential in the sense that it could not be left an open question. Lord James of Hereford, — I do not understand that — excuse me, I do not quite understand. Why should they not say, ' We hold this in suspense, retaining ' each our own different opinions upon this.' Could they not say that ? The Dean of Faculty.— I think your Lordship's correction of the answer I gave, or rather your Lordship's criticism of the answer I gave, is well founded. I do not think an essential could be left open ; I think the answer I gave your Lordship should be rectified. I think probably it is inconsistent with the idea of open ; if it is essential with two people transacting it really comes to a question of the basis of contract, and if there is an essential difference between the two people, I do not see how they could make a contract. The Lord Chancellor, — That is what I thought. The Dean of Faculty. — But I could quite understand two people making a contract and saying, ' We cannot agree ' upon everything, but we can agree upon ' everything that is essential, and we cau ' make an agreement in essentialibus, ' thinking it more beneficial that we ' should make the contract, being agreed ' in essentials although we cannot agree ( upon everything,' Then I oall your Lordship's attention to this clause for the purpose, first of all, of making the comment upon it that the scheme of this instrument is really to give the Assembly of the Church supreme power, and that, I submit, is entirely in consonance with the argument I sub mitted to your Lordships yesterday, as to the Church being a Church supreme with 426 HOUSE OF LORDS regard to its own affairs. Even in the matter of congregational property, where the congregations join and accept the Model Trust Deed, by accepting the Model Trust Deed they placed themselves in subjection to the Assembly, whose power is dominant with regard to the whole matter. Then with regard to the clause for distribution or division of property upon a difference of opinion in the bodies, I must frankly admit to your Lordships that it does not arise, it appears to me, except upon the supposition that my chents were held not to be the Free Church. In that case then, undoubtedly, the necessary consequence of that would be that they had left the Church ; that would be the next step in the proceedings — that they had left the Church. Their large numbers preclude me from saying that they are precisely within the letter of this trust, and a question would be whether they were not within the spirit of this trust in the sense that the matter should be left to the determination of the congregation as to what in the estimation of the congregation or the Church to which they belonged should be the body to which the Church should go with a right of compensation to the small number of congregations in which there might be found to be a minority. My Lords, in deahng with this Model Trust Deed, which, as I have pointed out to your Lordships, was, so far as I can see, an instrument connected with the Disruption which involved bringing home to the invited adherents of the Church, that is to say, to the people in parishes who were going to become the congrega tions associated with the Church, and who were to have it regulated in the deed, what the Free Church was to which they were attaching themselves by what was said to be in the Trust Deed, as far as I can see, there is not one single word in that deed which has reference to the Establishment principle. And it does seem an extraordinary thing, if the Church separated from the Establishment in 1843, and the duty of the civil magistrate to maintain and support the Church was an essential and fundamental principle of the Dissenting Church, — it is a most extra ordinary thing that in the deed, which was to regulate the rights of all their con gregations with regard to their property, there is not one word in regard to that. There is an abundant disclosure of the principles upon which the Free Church separated from the Established Church, namely, in order to uphold spiritual inde pendence in the Church to the full extent, but not the slightest reference to what I admit undoubtedly occurs in the Protest, as I have suggested, as a mere saving clause or aside. Not only is there no reference to it in the Model Trust Deed, but when the Protest is being narrated for the purpose of bringing permanently before the congregations the principles upon which the Free Church did leave, the Establishment, that aside, that refer ence to Establishment, is not narrated as a part of the Protest. Now, I ask your Lordships' permission to pass on to the Act of 1846, which is in Print A, page 84, and which I respect fully suggest is a very important docu ment, because it defined who might and who might not become office-bearers and members of the Free Church. Your Lord ships will find the Act The Lord Chancellor. — Act XII., 1846. The Dean of Faculty. — 1846, my Lord; the Church took a little time, no doubt, to settle down after the Disruption, but they did, as one of the very earliest acts they do, adjust the basis upon which they would admit office-bearers into the Church, and the Act provides : ' Whereas ' it has become necessary, in consequence ' of the late change in the outward condi- ' tion of the Church, to amend the Ques- ' tions and Formulae to be used at the ' licensing of probationers and the ordina- ' tion of deacons, elders, and ministers ' respectively, the General Assembly, with ' consent of a majority of Presbyteries, ' enact and ordain that the following shall ' be the Questions so to be used : And 1 considering that the Formula, to this Act ' subjoined, embodies the substance of the ' answers to the said Questions, the As- ' sembly appoint the same to be subscribed ' by all probationers of the Church before ' receiving license to preach the gospel, ' and by all office-bearers at the time of DEAN OF FACULTY'S SPEECH ' their admission : And the General As- ' sembly, in passing this Act, think it ' right to declare that while the Church ' firmly maintains the same scriptural ' principles as to the duties of nations ' and their rulers in reference to true 'religion and the Church of Christ for ' which she has hitherto contended, she ' disclaims intolerant or persecuting prin- ' ciples, and does not regard her Confession ' of Faith, or any portion thereof, when ' fairly interpreted, as favouring intoler- ' ance or persecution, or consider that her ' office-bearers by subscribing it profess ' any principles inconsistent with liberty ' of conscience and the right of private ' judgment.' Well, my Lord, the Free Church being constituted as it was, freed as it then was from any of the restrictions imposed by public statute, pro ceeded to exercise that inherent power which they contended had all along be longed to the Church ; and they accord ingly, in the first place, deal with the Con fession of the Faith, and they proceed to exclude certain possible interpretations of chapters in the Confession as not being part of the Faith on which they were founded themselves. They specifically ex clude intolerant or persecuting principles which, no doubt, in the view of many, were deduced from the clauses in the Confession as to the powers of the civil magistrate. It is undoubtedly that with which they are dealing ; the power of the civil magis trate, as described in the Confession, might, according to one reading, quite well be interpreted as the right of the State to take under its charge a particular form of religion and to debar all others The Lord Chancellor. — ' To suppress ' all heresies * is, I think, the language. The Dean of Faculty. — Yes, and accordingly the Free Church exercised the power of saying, ' Well, we bar any such ' interpretation of the Confession in so far ' as we are concerned ' ; and not only that — they not only bar intolerance or persecu tion, but they tell their office-bearers dis tinctly that by subscribing it they do not profess any principles inconsistent with liberty of conscience and right of private judgment. Now, my Lords, we come to the Ques tions, They had, of course, as the basis 427 on which they were to proceed, the Questions which had been in use in the Established Church prior to the Disrup tion, and no doubt they take that as the basis of what they are going to do. Your Lordships discover the change which they made by comparing the Questions and Formulae which were in use in the Estab lished Church under the Act of Assembly of 1711 with those which were adopted by the Free Church in 1846. Your Lord ships will find the Formulae which the Free Church adopted upon page 85, and in Print B, page 12, you find the Formulae which had been adopted by the Estab lished Church in 1711 ; they made some slight alterations at that time which I do not know are of very great materiality. Your Lordships will require to observe- that there are different questions appli cable to different office-bearers. The first Questions are applicable to the case of deacons or elders, and your Lordships will find the first Question is, ' Do you beheve ' the Scriptures of the Old and New ' Testaments to be the Word of God, and ' the only rule of faith and manners ? ' That, I think, is exactly the same as it was in 1711. Then I shall read, if your Lordships will allow me, the second Ques tion from the 1711 edition, page 13 of Print B (this was the Estabhshed Church) : ' Do you sincerely own and believe the ' whole doctrine of the Confession of ' Faith, approven by the General Assem- ' blies of this National Church, and ' ratified by law in the year 1690, and ' frequently confirmed by divers Acts of ' Parliament since that time, to be the ' truths of God contained in the Scriptures ' of the Old and New Testaments ; and ' do you own the whole doctrine therein ' contained as the confession of your ' faith ? ' The Question which was adopted by the Free Church upon page 85 of Print A is, 'Do you' Mr. Johnston. — Pardon me, that is, elders ; for the probationers it is on the following page. The Dean of Faculty. — I am afraid, my Lord, I am reading the elders' Ques tions, but if your Lordship turns over the page it comes to the same thing ; page 86 A is probably what should be com pared with page 13 of B; 'Do you 428 ' sincerely own and beheve the whole ' doctrine of the Confession of Faith ' approven by the General Assemblies of ' this Church to be the truths of God, ' contained in the Scriptures of the Old ' and New Testaments ; and do you own ' the whole doctrine therein contained as ' the confession of your faith ? ' Your Lordships will observe there that they rewrite everything connected with Na tional Church or Acts of Parliament, making the Confession which is adopted rest exclusively upon its approval by the General Assemblies of the Church. Then the 3rd Question in Print B, page 13, your Lordships will find makes a reference to the Establishment also : ' Do you sincerely own the purity of ' worship presently authorised and prac- ' tised in this Church, and asserted in the ' 15th Act of the General Assembly, 1707, 'entitled "Act against Innovations in '"the Worship of God," and also own ' Presbyterian government and discipline ' now so happily established in this ' Church : And are you persuaded that ' the said doctrine, worship, discipline, ' and Church government are founded ' upon the Holy Scriptures, and agreeable ' thereto ? ' Question 3 of the Free Church upon page 86 of Print A is : 'Do ' you sincerely own the purity of worship ' presently authorised and practised in ' this Church, and also own the Presby- ' terian government and discipline ; and ' are you persuaded that the said doctrine, ' worship, and discipline and Church ' government are founded upon the Holy ' Scriptures, and agreeable thereto ? ' — • dropping out the reference to the Estab lishment. The Lord Chancellor. — Because they could not say, ' now so happily established ' in this Church.' The Dean of Faculty. — No, they could hardly say that. The next Ques tion upon page 86 A is entirely new ; there was no corresponding Question in the Established Church Formula : ' Do ' you believe that the Lord Jesus Christ, ' as King and Head of the Church, has ' therein appointed a government in the ' hands of church officers, distinct from ' and not subordinate in its own province ' to civil government, and that the civil HOUSE OF LORDS ' magistrate does not possess jurisdiction ' or authoritative control over the regula- ' tion of the affairs of Christ's Church ; ' and do you approve of the general ' principles embodied in the Claim, De- ' claration, and Protest adopted by the ' General Assembly of the Church of ' Scotland in 1842, and in the Protest ' of Ministers and Elders, Commissioners ' from Presbyteries to the General Asseni- ' bly, read in presence of the Royal Com- ' missioner on 18th May 1843 ' (and I call your Lordships' attention to the limiting words), ' as declaring the views which are ' sanctioned by the Word of God, and the ' Standards of this Church, with respect ' to the spirituality and freedom of the ' Church of Christ, and her subjection to ' Him as her only Head, and to His Word ' as her only Standard ? ' Now, that was the Question framed for the purpose of imposing upon all probationers and office bearers the essential principles of the Free Church, and your Lordships will find The Lord Chancellor. — Which are embodied in the Claim, Declaration, and Protest. The Dean of Faculty. — But observe, my Lord, 'as declaring the views which ' are sanctioned by the Word of God, and ' the Standards of this Church, with ' respect to the spirituality and freedom ' of the Church of Christ, and her sub- ' jection to Him as her only Head, and to ' His Word as her only Standard.' That is the only head in the documents which are there mentioned which is imposed upon the office-bearer of the Establish ment as that which he must assent to as a condition of becoming an office-bearer. The Lord Chancellor. — In that new Church ? The Dean of Faculty. — Yes. The Lord Chancellor. — Which is being founded on the principle of being separated from the State. The Dean of Faculty. — Not only separate from the State, but spiritually independent. The Lord Chancellor. — By reason of its being separate from the State, and on that ground. The Dean of Faculty,— They neces sarily eliminated all reference to the exist ing State connection, but then over and DEAN OF FACULTY'S SPEECH above that they said, 'Very well, but ' what are we to impose upon our office- ' bearers as a condition of joining this ' body ? What are the principles of the ' new Church ? ' I do not say of the new Church, but- 429 The Lord organisation ? The Dean organisation. Chancellor. — The new of Faculty. — The new ' What are we to impose ' upon our office-bearers as the principles ' of this body ? ' There is nowhere that one would look more directly to find a disclosure of what were the essential doctrines or fundamental principles of the Church than in a question so framed ; and if your Lordships find that coinciding exactly with these documents, as I have attempted to construe them to your Lord ships, coinciding with the view that from beginning to end they take their stand upon spiritual independence as that which was essential and fundamental, and noth ing else, when they come to formulate the Questions which regulate the right of an office-bearer to entrance to the Church, that is exactly the principle which they apply. They leave freedom with regard to everything else ; indeed they pass these regulations in an Act in which they say, ' We do not accept even the Confession ' of Faith in a spirit which would imply ' anything like persecution or oppression, ' or in regard to the matter, dealing at ' that time, which to any extent would ' displace the right of liberty of conscience ' and private judgment.' Lord Davey. — ' While the Church firmly ' maintains the same scriptural principles ' as to the duties of nations and their ' rulers in reference to true religion and ' the Church of Christ for which she has ' hitherto contended,' does not that show the construction in which, and accom panied by which, the Confession of Faith is adopted as the confession of the proba tioner's faith ? The Dean of Faculty. — I submit, my Lord, that the office-bearer who answers these Questions and signs this Formula, signs this and nothing else. There is no reference whatever to the Act in the Questions. Lord Davey. — Might these persons not have thought that to require subscription and acceptance of the Confession of Faith as the faith of the subscriber was enough for that purpose ? The Dean of Faculty. — As asserting the Establishment principle, my Lord ? Lord Davey. — Yes. The Dean of Faculty. — I agree that they are dealing with a portion of the Confession of Faith, which has been re ferred to as connected with Lord Davey. — You know, Mr. John ston's argument has taken a rather larger scope than his argument had on the pre vious occasion, if my memory is correct ; he says that is only a part of a larger question, whether they have not let loose the whole of the Confession of Faith. That I understand him to put forward, that what the United Free Church has done is to leave at large (I think that was his expression) the whole Confession of Faith. The Dean of Faculty. — Of course I have to deal with that when I cojae to the alteration of the Questions in r)00 ; what I am dealing with now is exclusively what was the basis upon which the Free Church Lord Davey. — At anyrate, the Con fession of Faith is adopted as the candi dates' faith. The Dean of Faculty. — It is adopted, undoubtedly, subject to the qualification which is inserted in the Act of 1846, that it is not accepted as asserting Lord Davey. — You cannot read that without reading the whole of the sentence ; the same sentence which contains that — not only the same document, but the same sentence which contains what you call the qualification — also contains the firm maintenance of the other doctrine. However, I do not want to interrupt you. The Lord Chancellor. — What is it that you say in any part of No. 4 con trols and over-rides or qualifies the answer to No. 2 ? The Dean of Faculty. — I do not say that, my Lord. The Lord Chancellor. — Question No. 2 is, ' Do you sincerely own and believe ' the whole doctrine of the Confession of ' Faith,' and so on — ' Do you own the ' whole doctrine therein contained as the ' confession of your faith? ' 430 HOUSE OF LORDS The Dean of Faculty. — Yes, my Lord ; but I think that is over-ridden by the terms of the Act of 1846, which specifi cally says that they accept the part of the Confession of Faith dealing with the civil magistrate in a sense which is not in consistent with liberty of conscience and private judgment. I read that as meaning this, that the office-bearer who joins the Church, in accepting the Confession of Faith, is left free as regards conscience and private judgment on the matter of the duty of the civil magistrate, and that, accordingly, you have at the very foundation of the Free Church that liberty for individual opinion in the Free Church which is exactly the basis on which the union took place in 1900. My Lords, in the later Questions you will find there was a repetition of that fourth Question ; it became five in the Questions which are put to the probationer when he is about to be licensed, and in the^ormula which is signed (your Lord ships will find that on page 89). Com paring that Formula with Print B, page 14, your Lordships have the words in the new Formula as compared with the old. The probationer not only answers the Questions, but he signs the Formula on page 89. The Lord Chancellor. — Page 89? There must be some mistake. The Dean of Faculty. — It is A 89 and B 14 ; these are the two things to compare. The Lord Chancellor. — 'Formula to ' be subscribed by probationers.' The Dean of Faculty. — Yes. I really do not desire to read the whole of them. In the original one at letter C your Lordship has a reference to its being at present established : ' and also the Presby- ' terian government and discipline now ' so happily established therein, which ' doctrine, worship, and Church govern- ' ment I am persuaded are founded on ' the Word of God ' ; that is omitted, and then you have introduced into the new Formulae at page 89, letter F, after the doctrine, worship, and Church govern ment : ' I also approve of the general ' principles respecting the jurisdiction of ' the Church, and ber subjection to Christ ' as her only Head, which are contained ' in the Claim of Right, and in the Pro- ' test referred to in the Questions already 1 put to me ' ; all supporting the view that the right of private judgment was left entirely open to the person ; but it was imposed upon him as a condition of be coming an office-bearer of the Church that he should accept that which the Free Church regarded as its fundamental prin ciple, namely, being in subjection to Christ as her only Head, and to His Word as her only Standard. There are words at the bottom of the page which I believe I ought to bring under your Lordship's notice ; there is a reference to the ' General Assemblies, together with ' the liberty and exclusive jurisdiction ' thereof.' My Lords, the effect, I submit, of these documents is this, that the office-bearers of the Free Church might have consisted altogether of people who, as matter of opinion, held voluntary views. Suppos ing any man had entertained voluntary views as an office-bearer of the ' Free Church, is there anything in this con stitution which would have enabled the Church to arraign him as a person who had views inconsistent with his title as an office-bearer? His answer would have been : ' I am an office-bearer in the Free ' Church, and I have carefully considered ' the whole documents which constitute ' that relation, and those documents which ' constitute that relation make the matter ' of Voluntarism entirely a matter of ' opinion. It is relegated to the domain ' of conscience and opinion of the in- ' dividual, and not made a part of the ' standards of the Church at all, and ' therefore from the very beginning that ' was the situation, and most naturally' The Lord Chancellor. — I do not quite follow you there ; this is a question to be propounded to a probationer, and he is asked, 'Is it your faith?' There is no qualification in that. The Dean of Faculty. — It was pro pounded to probationers and other office bearers, my Lord. The Lord Chancellor. — Yes, arid the other office-bearers; I do not draw any distinction between a probationer and an office-bearer. The Dean of Faculty. — It is exactly DEAN OF FACULTY'S the same question with regard to the standards of the Church. The Lord Chancellor. — It seems to me very simple ; at present I am not quite certain that I follow what you mean ; this is a question propounded to a probationer or an office-bearer, it does not matter which, and it contains : ' Do you accept ' the whole doctrine of the Confession of ' Faith ? Is that your own faith ? ' If the person says ' Yes ' in answer to that, I do not understand how any qualifications somewhere else, which you are to find out by searching, affect that question. That is a question put to the man, and that is the answer he is to give. The Dean of Faculty. — Surely he would be entitled to say, ' And in answer- ' ing that question I have regard to the ' Act of Assembly which fixed that Ques- 'tion'? The Lord Chancellor. — I do not think he would ; at least I should have thought if he was an honest man he would not. The Dean of Faculty. — If he could point to the Act of Assembly and say, ' The Act of Assembly which fixed that ' question which was to be submitted to ' me" as an independent office - bearer ' specifically gave an interpretation ' The Lord Chancellor. — No, do not SPEECH 43i say it gives an interpretation ; you say it qualifies what is to follow on joining that Church, but you do not say it gives a qualification to those words : ' Do you ' believe the whole of that ? Is that your ' own faith ? ' The Dean of Faculty. — Yes, my Lord ; but the statute said, when fairly interpreted, it is not to be interpreted as favouring intolerance and persecution, and the Church does not consider that her office bearers, by subscribing it* profess any principles inconsistent with liberty of conscience and the right of private judg ment. Lord Davey. — I confess, Mr. Dean, that your construction of these words rather surprises me, and it seems contrary to the plain meaning of them. I should have thought the plain meaning of them was that the Church firmly maintains a certain position with regard to the civil magistrate, but at the same time it does not wish to interfere with the liberty of conscience and the right of private judg ment of other people who differ from them. The Dean of Faculty. — Yes. Lord Davey. — Not for their own members; it lays down that as the standard of the Church's faith ; but what it disclaims is a wish to persecute others who differ from them. The Dean of Faculty. — Certainly, my Lord, as matter of construction, the words at the end of the section are applicable to an office-bearer, — that she does not con sider that her office-bearers profess any principles inconsistent with liberty of conscience and the right of private judg ment. Lord Davey. — They subscribe to it in the sense I have mentioned, namely, the doctrine which I firmly maintain about the civil magistrate ; but at the same time the office-bearers must not think that by subscribing to it in that sense they at the same time proclaim any principle of persecution or interference with the liberty of conscience and right of private judgment of others who do not agree with us. It is one thing to maintain a doctrine, and another thing to persecute a person who does not agree with that doctrme. That seems to me the plain meaning of it. It is not the liberty of conscience of the office-bearers ; it is the liberty of conscience of people who do not agree with the office bearers. The Dean of Faculty. — Does it not include the office-bearers as well 1 The Lord Chancellor. — I should have thought not. The Dean of Faculty. — Does it not mean on the part of all ? They deal with it as a generality. They say, ' We do not ' treat those articles of the Confession of ' Faith as displacing the liberty of con- ' science and the right of private judgment ' on the part of anybody.' tord Robertson. — But I thought the whole of this was intended to meet the difficulty which arose from that part of the Confession of Faith which ascribes to the civil magistrate the duty of suppressing heresies. The Dean of Faculty. — Yes. Lord Robertson. — This Act of 1846 says, ' Nothing in the Confession of Faith 432 HOUSE OF ' is to be held as favouring persecution' ' (it plainly applies to that), and the office- ' bearers by subscribing it do not profess ' any principles inconsistent with liberty of ' conscience and the right of private judg- ' ment. ' The Dean of Faculty. — I submit it ' applies to all those parts of the Confession ' of Faith which relate to the civil magis- ' trate, including that of the establishment ' of religion and promoting the true religion. ' Undoubtedly, we are frequently interpreted as asserting a right on the part of the State to exclude every rehgion except one. It is intended to apply to everything in the Confession of Faith which could possibly import the duty on the part of the State to interfere with liberty of con science and the right of private judgment on the part of all and sundry. I submit that is the meaning of the section, and inclusive of the office-bearers. Then, if there had been going to be some separa tion of the office-bearers in this matter from the others, one would have expected something in the Questions which speci fically fixed the relation of the office-bearer to this matter, whereas there is nothing. The specific relation of the office-bearer is determined in Question 5, and yet there is not a word in that Question which would imply that he, to any extent, accepted the position which interfered with his liberty as distinguished from other people. If he was to stand in a different position from other people in that matter, the Questions were the place to bring that out, but there is not a word that does that. Then the next document I have to make a few remarks upon is the Act of 1851, which was issued and which your Lordships have at Print A, page 90. That is again a document which I do not intend to detain your Lordships by examining at length, but it is called attention to on the Record as au important document issued according to the Pursuers' view in accord ance with the standards of the Church. The Lord Chancellor. — I suppose it is the last paragraph of page 91 that becomes important : ' While this Church ' has ever held that she possesses an ' independent and exclusive jurisdiction ' or power in all ecclesiastical matters, ' "which follows directly from God, and LORDS ' the Mediator, Jesus Christ, and is "spiritual, not having a temporal head ' "on earth, but only Christ, the only ' "King and Governor of His Church," ' she has, at the same time, always strenu- ' ously advocated the doctrine taught in ' Holy Scripture, — that nations and their ' rulers are bound to own the truth of ' God, and to advance the Kingdom of ' His Son. And accordingly, with un- ' feigned thankfulness, did she acknow- ' ledge the good hand of the Lord, when, ' after prolonged contests with the enemies ' of the Reformation, — and, in particular, ' with certain parties who sought not only ' to uphold a form of Prelatic government ' in the Church, but to establish the ' supremacy of the Crown in all causes, 1 spiritual and ecclesiastical as well as civil ' and temporal, — a national recognition ' and solemn sanction of her constitution,' and so on. That is the passage, I suppose. The Dean of Faculty. — If your Lord ships will allow me, there is a recognition at the top of page 91 of what appeared to be, in the estimation of the Church, the important principles — at the bottom of page 90 and top of page 91 : 'When it ' pleased Almighty God, in His great and ' undeserved mercy, to reform this Church ' from Popery by presbyters, it was given ' to the Reformers, amid many troubles, ' to construct and model the constitution ' of the Church, in doctrine, worship, ' discipline, and government ' ; there assert ing the power of the Church over those matters. Then it refers at letter C to the peculiar and essential features of the Church : ' Of this settlement, besides that ' profession of the Evangelical faith which ' is common to all the Churches of the ' Reformation, the peculiar and essential ' features are : 1. The Government of the ' Church by Presbyters alone, or by that ' order of men which is indicated in the ' New Testament indiscriminately by the ' terms Presbyters, and Bishops or Over- ' seeis — Trpeo-fivrepoi and Ittio-kottoi ; and ' 2. The subjection of the Church, in all ' things spiritual, to Christ as her only ' Head.' Then it proceeds : ' From the beginning ' these principles have been held as funda- ' mental by the Reformed Church of ' Scotland ; and as such they were recog- DEAN OF FACULTY'S SPEECH 433 earliest standards — the setting forth the creed of the Church, ' a ' valuable treatise, which, though without ' any express Act of Assembly, has for ' ages had its place among them, — have, ' ever since the era of the second Reforma- ' tion, constituted the authorised and ' authoritative symbolic books of the ' Church of Scotland.' Lord Davey. — Where do the Books of Discipline come in ? Were they earlier ? The Dean of Faculty. — They come at a later stage. Lord Davey. — They are earlier stand ards. The Dean of Faculty. — It is men tioned at page 91. Mr. Johnston. — They are not among the standards mentioned upon page 93. The Dean of Faculty. — They are mentioned upon page 91: 'and as such ' they were recognised in her earliest ' standards, — the First and Second Books ' of Discipline'— 91 E. Lord Davey. — They are the oldest documents in point of date. The Dean of Faculty. — They are, my Lord, and your Lordship has them printed now in Print F ; they are the oldest after the Scotch Confession. Lord Davey. — Knox's Confession ? The Dean of Faculty. — Yes; I think Knox's Confession in point of date pre ceded it. At page 95 your Lordships have an important passage, I think ; at the top of the page they say : ' Thus, by God's grace, ' in this second Reformation, wrought out ' by our fathers amid many perils and ' persecutions, this Church was honoured ' by God to vindicate and carry out the ' great fundamental principles of her con- ' stitution — the government of the Church ' by Presbyteries alone; her inherent ' spiritual jurisdiction, derived from her ' great and only Head ; and the right of ' congregations to call their own pastors.' Then, my Lord, at page 96 there is a passage which very well illustrates the view taken of the importance of connection with the State or the reverse — at page 96, letter A, they say : ' Passing over the ' dark period of the closing years of the ' Stuart dynasty, and descending along ' the line of history to the era of the ' glorious Revolution, we find the Church, ' nised in her ' First and Second Books of Discipline— ' adopted by her own independent ' authority.' Then upon page 93 the scheme of the Act is to refer to the three important epochs in the history of the Church — the first Reformation, what is called the second Reformation as agamst Episcopacy, and the third Reformation as being in operation in 1843 against the assertion of State control ; but your Lord ships have at 92 F a reference to the great and essential principles of the constitution of the Church. Your Lordships have at 93 G a list of the subordinate standards of the Church, and I think I must read those, because I have occasion to question one of them very shortly. It says at the bottom of 93 : ' And having in ' view the uniformity contemplated in the ' Solemn League and Covenant, she con- ' sented to adopt the Confession of Faith, ' Catechisms, Directory for Public Worship, ' and Form of Church Government agreed ' upon by the said Assembly of Divines. ' These several formularies, as ratified, ' with certain explanations by divers Acts ' of Assembly in the years 1645, 1646, ' and particularly in 1647, this Church ' continues to this day to acknowledge as ' her subordinate standards of doctrine, ' worship, and government; with this differ- ' ence, however, as regards the authority ' ascribed to them, that while the Con- ' fession of Faith contains the creed to ' which, as to a confession of his own ' faith, every office-bearer in the Church ' must testify in solemn form his personal ' adherence ; and while the Catechisms, ' Larger and Shorter, are sanctioned as ' directories for catechising, — the Directory ' for Public Worship, the Form of Church ' Government, and the Directory for ' Family Worship are of the nature of ' regulations rather than of tests — to be ' enforced by the Church like her other ' laws, but not to be imposed by subscrip- ' tion upon her ministers and elders. ' These documents, then, together with a ' practical application of the doctrine of ' the Confession, in the Sum of Saving ' Knowledge,' — if your Lordships would be kind enough to look at that, that is my authority for treating that as one of the standards of the Church, or at least as 2 E 434 ' which had been twice before brought ' out of great troubles in her contendings ' against Popery and Prelacy, once again ' rescued from the oppression of arbitrary ' power, and lifting her head as the Free ' Presbyterian Church of Scotland. The ' bloody acts of the preceding time were ' repealed ; on the petition of the ministers ' and professors of the Church of Scotland, ' the civil sanction was given to the Con- ' fession of Faith; Presbyterian -Church ' government was re-established in the ' hands of those who had been ejected by ' Prelacy in 1661 ; and, to the wonder of ' many and the confusion of her enemies, ' this Church rose from her ashes, and ' was recognised as the same Church ' which, whether in freedom or in bondage ' — whether under the shade of royal ' favour or hunted as a partridge on the ' mountains — could trace its unbroken ' identity downwards from the very be- ' ginning of the Reformation.' Then, upon page 97 G, your Lordships have a reference to ' fundamental.' At page 99 A, at the top of the page, there is a reference to ' the most important ' (in speaking of her sphitual independence) 'and distinc- ' tive principles of her ancient Presbyterian 'polity.' At page 99 D 'fundamental' is referred to, and at page 102, at F — I think perhaps I ought to read the passage at page 101. The Lord Chancellor. — Which docu ment ? The Dean of Faculty. — The Act of 1851, my Lord, on page 101, after referring as it does to a union which took place between the Established Church and Associate Synod in 1839 before the Dis ruption, says, as communicating the view of the Church on the matter of union at letter F : ' This step was hailed with ' lively satisfaction by the supporters of ' the old hereditary principles of the ' Scottish Reformation, as not only a ' testimony to the returning faithfulness ' with which these principles were now ' maintained, but a pledge and presage ' also of other movements of a similar ' kind which might be expected to follow, ' as the work of reformation and revival ' went on : thus holding out the hope of ' this Church being honoured to be suc- ' cessful in healing the breaches of Zion, HOUSE OF LORDS ' as well as rebuilding the walls of Jeru- ' salem.' Lord Robertson. — Mr. Johnston re ferred us on that page to the passage between A and B. Lord James of Hereford. — ' And ' whereas the members of the Associate ' Synod do heartily concur with us ' The Dean of Faculty. — ' And whereas ' the members of the Associate Synod do ' heartily concur with us in holding the ' great principle of an Ecclesiastical Estab- ' lishment.' That was as between the Established Church and the Associate Synod, that was the union which took place before the Disruption of 1843. Lord James of Hereford. — But the principle is held by 'us,' by those who declared in 1851. The Dean of Faculty. — That is a narration of the Resolution of the Estab hshed Church of 1839, when the union took place between the Established Church and the Associate Synod. Lord Robertson. — But, Dean, the point is this, that your passage at F about this step being hahed with satisfaction, as showing that the ' breaches of Zion might ' be healed,' must be read along with the terms and conditions under which that breach of Zion was healed. The Dean of Faculty. — I accept that, my Lord, but it is certainly the recogni tion of the duty of a Church as far as possible to carry out union ; that is the purpose for which I referred to it, — that it is recognised as a spiritual duty, I do not say to abandon principle or to unite with those who hold different principles from themselves. The Lord Chancellor. — What do you say to that passage at page 103 between B and C : ' Holding firmly to the last, as ' she holds still, and, through God's grace, ' will ever hold, that it is the duty of ' civil rulers to recognise the truth of ' God, according to His Word, and to ' promote and support the Kingdom of ' Christ, without assuming any jurisdiction ' in it, or any power over it ' ? The Dean of Faculty. — That seems to me to be an assertion of national rehgion, and, so far as I can see, was accepted at the time when the United Presbyterian Church and the Free Church conferred as DEAN OF FACULTY'S to how far they concurred and how far they differed. Lord James of Hereford. — 'And ' especially to its most destitute portions ' from the public endowment of pastoral ' charges among them.' The Lord Chancellor. — I only in tended to call the Dean of Faculty's attention to it. The Dean of Faculty. — My answer to that is, that that, I think, falls to be read not as regards the particular application of that doctrine in the form of an Established Church, but as a recognition of national religion in opposition to national secularism, and accordingly your Lord ships will find by a cross-reference to B, page 55 F — I do not say in exactly the same words, but very nearly the same words, the same idea, I think, is found amongst the Articles of Agreement be tween the United Presbyterian Church and the Free Church when they were considering how far they agreed and how far they differed on the subject of Estab lishment. The second Article of the Agreement is : ' That the civil magistrate ' ought himself to embrace and profess the ' religion of Christ, and though his office ' is civil, and not spiritual, yet, like other ' Christians in their places and relations, ' he ought, acting in his public capacity ' as a magistrate, to further the interests ' of the religion of the Lord Jesus Christ ' among his subjects, in every way con- ' sistent with its spirit and enactments ; ' so that they were agreed in objecting to national secularism. The Lord Chancellor. — Will you tell me — I only interpose because I do not understand your words — what you mean by 'national religion' as distinguished from the establishment of a religion? How is a nation to profess its religion ? The Dean of Faculty. — Probably the best definition I could give of national religion would be the words I am now reading on page 55 ; these are Articles of Agreement between two bodies, one of whom was voluntary, and they said: ' Quite consistently with our voluntary ' views, our views as to Voluntarism, we 'entertain the view which is expressed ' upon page 55, letter F, that being Volun- ' taries we do not at aU entertain the view SPEECH 435 ' that the civil magistrate has no duty ' with regard to religion.' The Lord Chancellor. — But ' no duty ' with regard to religion,' aUow me to say, is too vague. What do you mean by it ? What duty do you suppose the writer of that intended to throw on the Government of the country ? The Dean of Faculty. — It certainly does not include maintaining and support ing a specific Establishment. The Lord Chancellor. — Then what does it include ? What does it mean ? How is a nation to express its selection of one form of faith ? The Dean of Faculty. — This document goes on to illustrate it ; if your Lordship will let me, I will take the word of the people themselves as to what they meant by it ; it is the view of the Voluntaries who agreed to it ; they say in Article III. that ' while the civil magistrate, in legis lating as to matters within his own pro vince, may and ought, for his own guidance, to judge what is agreeable to the Word of God, yet inasmuch as he has no authority in spiritual things, and as in these the employment of force is opposed to the spirit and precepts of a Christianity which disclaim and pro hibit all persecution, it is not within his province authoritatively to prescribe to his subjects, or to impose upon them, a creed or form of worship, or to interfere with that government which the Lord Jesus Christ has appointed in His Church.' That is the negative form of the duty. Then they say in Article IV. : That marriage, the Sabbath, and the appointment of days of humiliation and thanksgiving are practical instances to which these principles apply. (1) In regard to marriage, the civil magistrate may and ought to frame his marriage laws according to the rule of the Divine Word. (2) In regard to the Sabbath, the civil magistrate, and recognising its perpetual obhgation according to the rule of the Divine Word, especially as contained in the original institution of the Sabbath in the Fourth Command ment, and in the teaching and example of our Lord and His Apostles, and its inestimable value in many ways to human society, may and ought in its administra- 436 HOUSE OF ' tion to respect its sacred character, to ' legislate in the matter of its outward ' observance, and to protect the people in ' the enjoyment of the privilege of resting ' from their week-day occupations, and ' devoting the day to the public and ' private exercises of Divine Worship. ' (3) The civil magistrate may, and on ' suitable occasions ought to, appoint days ' on which his subjects shall be invited ' to engage in acts of humUiation or of 1 thanksgiving, but without authoritatively ' prescribing or enforcing any special form : of religious service, or otherwise interpos- ' ing his authority beyond securing to them ' the opportunity of exercising their free ' discretion for these purposes.' Of course there is another part of the community who entertain the view that the civil magistrate has nothing to do with these matters at all ; that, so far as the civil magistrate is concerned, he ought to stand aside altogether. The Lord Chancellor.- — I am afraid I yet do not compass what you mean by the phrases used, — is it, or is it not, according to your view the statement in this docu ment that there is a corporate and collec tive duty on the part of the nation to profess religion ; and if it is, in what way do you suggest that that duty is intended to be carried out ? The Dean of Faculty. — I think it does mean that it is the duty on the part of the nation to profess religion. Lord James of Hereford. — And to give support, surely ? The Dean of Faculty. — Not in national religion, but to further it. Lord James of Hereford. — Would you look then, Mr. Dean, at page 57, where those statements of distinctive Articles be tween the two Churches are stated ? The alternative views are put there : ' An Act ' of National Homage,' — would you kindly read that? The Dean of Faculty. — These are the points of difference. Lord James of Hereford. — Yes, but it sets out the Article of the Free Church. Just read the Article of the Free Church on the subject : ' As an Act of National ' Homage.' The Dean of Faculty. — ' As an act ' of national homage to Christ, the civil LORDS 1 magistrate ought, when necessary and ' expedient, to afford aid from the national ' resources to the cause of Christ, pro- ' vided always that in doing so, while re- ' serving full control over his own gift, he ' abstain from all authoritative interfer- ' ence in the internal government of the ' Church. But it must always be a ques- ' tion to be judged of according to times ' and circumstances, whether or not such 1 aid ought to be given by the civil magis- ' trate, as well as whether or not it ought ' to be accepted ; and the question must, ' in every instance, be decided by each of ' the two parties judging for itself on its ' own responsibility.' I do not think that is national religion in the sense Lord James of Hereford. — And from the national resources they are to have aid afforded. Will you just read in opposition to that the Article of the United Presby terians : 'That it is not competent.' The Dean of Faculty. — ' That it is not ' competent to the civil magistrate to give ' legislative sanction to any creed in the ' way of setting up a civil establishment ' of religion, nor is it within his province ' to provide for the expense of the minis- ' trations of religion out of the national ' resources.' Lord James of Hereford. — You get an exact conflict there between the two. The Dean of Faculty. — Certainly, but his Lordship asked me for a definition of national religion. Lord James of Hereford. — I think that shows what is meant. The Dean of Faculty. — This is not national religion, this is Establishment ; I admit there is a difference of opinion be tween these two bodies upon the question of Establishment. Lord James of Hereford. — How can you have a national religion without Establish ment? The Dean of Faculty. — I am afraid when I say national religion I do not mean national religion in the sense of an Estab lishment, but a recognition by the State of religion. Lord James of Hereford. — Yes, but when they come to define it here they speak of national resources being afforded. The Dean of Faculty. — Establishment is a particular application of the principle DEAN OF FACULTY'S SPEECH 437 of national religion, and is something quite distinct from a State not recognising religion at all — not taking note of the fact that there is such a thing in the world as a rehgion. Lord James of Hereford. — There may be tests of religion that the nation might apply. The Dean of Faculty. — They do not dictate any particular obligation, but they recognise that there is such a thing as religion in the world. They ought _ to regulate their conduct in accordance with that recognition. It is something perfectly distinct from instituting a particular form of Establishment. (Adjourned to Monday next at 10.45.) SEVENTH DAY MONDAY, 20th JUNE 1904. The Dean of Faculty. — My Lords, at the rising of the House on Friday I had concluded what I had to say upon the examination of the special documents as to the question whether the view stated as to the duty of the civil magistrate was, or was not, an essential and fundamental principle. My contention to your Lord ships was, that on the documents those words were not attributed to the matter in dispute in regard to the civil magistrate. I was about to ask your Lordships' atten tion to a passage in the opinion of the Lord Justice Clerk which I think my learned friend, Mr. Salvesen, founded on under the impression that it did support the contention that they used those words as applicable to what we term the Estab lishment principle. I submit that that is not the true import of that passage when looked at. Your Lordships will find at page 76 of Print D the passage which was referred to. The learned Judge had examined the documents before that with regard to the words ' essential and f unda- 1 mental,' and between letters E and F upon page 76 there is this passage. Perhaps I should begin to read a little before that, in order to make the connec tion clear. The learned Judge referred to one of the passages in which the word ' fundamental ' was used, and then be tween letters B and C he says : ' This was followed up by an Act and Declaration of the Free Church in 1851 as to what had been done in 1843 — viz. that the action had been one of "pubhcly re nouncing the benefits of the national " Establishments, under protest that it is "her being Free and not her being "Established that constitutes the real "historical and hereditary identity of the "Reformed National Church of Scot- " land." ' (Those words are quoted from the Act of 1851.) ' And in that document it was pointed out that the "whole " work " of the setting up of the Scottish Reformed Church, and its relief by severe struggles from Episcopacy, which "it "repudiated," was "begun and carried " on without warrant of the civil power," and that the Church had done it "by "the exercise of her own inherent juris- " diction." In ar other passage it is said, "Thus by God's grace, in this " second Reformation, wrought out by " our fathers amid many trials and per secutions, this Church was honoured " of God to vindicate and carry out the "great fundamental principles of her " constitution — the government of the " Church by Presbyteries alone ; her " inherent spiritual jurisdiction, derived " from her great and only Head ; and the "right of congregations to call their own " pastors." ' Then his Lordship proceeds : In more than one of the passages referred to, the expressions "fundamental prin- " ciple" and "great fundamental prin- " ciple " are used. An examination of the documents shows that the expression "fundamental principle" was not one which was employed indiscriminately and apphed to numerous doctrines, but was specially used for emphasis in regard to such things only which those using it held were essential to the Church's exist ence as a Church, and which, if they gave up, she would cease to be a Church of Christ at all. Thus in the Claim, Declara tion, and Protest of 1842 it is described " as an essential doctrine of this Church, "and a fundamental principle of its " constitution, . . . that there is no other " Head of the Church but the Lord Jesus " Christ." In the same document it is narrated historically that the Act of James the Sixth " recognised and estab lished, as a fundamental principle of "the constitution of the kingdom, that " the jurisdiction of the Church in these" (certain spiritual matters named) . . . "was exclusive and free from coercion "by any tribunals holding power or "authority from the State or supreme "civU magistrate." They declared this DEAN OF FACULTY'S ' to be " an unalterable and fundamental 1 "condition" of the Treaty of Union, and 'that they could not put the "public ' " advantages of an Estabhshment " in ' competition with the "inalienable liber- ' "ties of a Church of Christ."' Now, this is the passage which my learned friend Mr. Salvesen founded upon : ' I find in the documents only two declarations in which the expression "fundamental " principle " is used in connection with a statement as to the relation of the State to the Church.' I ask your Lordships' attention to those words : ' as to the rela tion of the State to the Church.' ' The Free Assembly in 1871 formulated the following declarations : — "Having respect " to the past history, the present position, "and the future prospects of this great " Union question, the Assembly think it " fitting at this juncture to declare their "unalterable adherence, in common, as "they believe, with that of all their "people, to the great fundamental and " characteristic principles of this Chiu-ch, "regarding — 1. The sole and supreme " authority of the Lord Jesus Christ and " His exclusive right to rule in and over " His Church, and the consequent obliga- " tion of His Church to be regulated in " all her proceedings by His Word alone. " For which end she claims in all spiritual " matters complete independence and im- " munity from all coercion and control "from without. And regarding — 2. The "prerogative of the same Lord Jesus " Christ as Head over all things to His " Church, and supreme over nations and "their rulers, who are consequently " bound, collectively and officially " ' The Lord Chancellor. — Those are the cardinal words upon which reliance was placed. The Dean of Faculty. — Yes, 'collec- SPEECH 439 ' tively and officially, as well as individu- ' ally and personally to,' — to do what ? — • ' to own and honour His authority, to ' further the interests of His holy religion, ' and to accept the guidance of His Word ' as making known His mind and will.' I ask your Lordships' attention to the three points mentioned there. Undoubt edly, those words import a duty of the State to do those three things— 'to own ' and honour His authority,' ' to further ' the interests of His holy religion,' and ' to accept the guidance of His Word.' ' And the Assembly, in the circumstances ' foresaid,' say they cannot abandon or compromise either of these essential prin ciples. Then his Lordship proceeds, at the top of page 78 The Lord Chancellor. — Are you coming back to discuss that again ? The Dean of Faculty. — Yes, I wish to deal first with what his Lordship says about the other Declaration. The Lord Chancellor. — Very good. The Dean of Faculty. — His Lordship proceeds : ' The other declaration is in the ' Act relating to mutual eligibility of ' ministers passed by the Free Church ' Assembly in 1873 ' — the words of which I think are practically identical with those which I have just read. I think his Lordship is right in saying that those are the only two instances in the papers in which the word ' fundamental ' ' is used in ' connection with a statement as to the ' relation of the State to the Church.' Then his Lordship proceeds The Lord Chancellor. — Before you pass from that, I should like to ask, Do you mean that those are the only things that are essential to the Church ? The Dean of Faculty. — No, I do not say that, my Lord. The Lord Chancellor. — Very good — that is all I was asking ; I only wanted to know how far you were going. The Dean of Faculty. — I am only following up my argument that in the documents the word ' fundamental ' is not used with regard to the Establishment — that is my point. His Lordship says, ' I ' find in the documents only two declara- ' tions in which the expression "funda- ' " mental principle " is used in connection ' with a statement as to the relation of the ' State to the Church,' and I am following up my argument, that, in being used there, it is not being used in connection with the Establishment. The Lord Chancellor. — I under stand. The Dean of Faculty. — Then his Lord ship says, between A and B on page 78 : ' I agree with the Lord Ordinary in think- ' ing that these declarations are not such ' as affirm anything which could not be 440 ' affirmed by those who are opposed to a ' State Establishment or Endowment.' (That is the point I desire to make upon this.) ' They seem only to emphasise what ' it must be the duty of the Church in ' the exercise of its spiritual functions to ' preach and teach to the State as a matter ' of duty, and only repudiate the idea that ' in a Christian community the civU ruler ' can, consistently with his duty, fulfil his ' functions regardless of the Divine autho- ' rity and principles as expressed in the ' Holy Scriptures, and accordingly it was ' with these declarations standing that the ' Union was ultimately effected.' (So that beyond doubt that was what the Church intended by these, because otherwise they would have been doing perfectly incon sistent things in formulating these declara tions on the one hand and making a Union which tied them or broke away altogether from Establishment on the other hand as a fundamental principle.) 'They ' show that the negotiations which led up ' to the Union were conducted by the ' great majority of the Free Church, who ' were favourable to it on the footing that ' " there was no objection in principle to ' " the formation of an incorporating ' "Union" (resolution of the General Assembly of the Free Church in 1871), ' while they acknowledged that " much con- ' " sideration is due to the difficulties which ' " still appear to an important minority ' " of esteemed and honoured brethren to ' " stand in the way." It thus appears ' that, while hi tne early days of the Free ' Church's existence very great importance ' was attached to the principle of a civil ' Establishment of religion, it was treated ' as subordinate, in the sense that it was ' in no way vital to the existence of the ' Church, and must be repudiated, and its ' benefits rejected, if the terms upon which ' the State might insist should be contrary ' to the sphitual liberty and authority of ' the Church in its own reign.' Lord Robertson. — ' The early days ' mentioned by his Lordship there are 1871 and 1873, are they not? The Lord Chancellor. — Yes ; the Gen eral Assembly of the Free Church of 1871 is what he is referring to. The Dean of Faculty. — I think so. The Lord Chancellor. — That is a great HOUSE OF LORDS many years after the foundation of the Free Church. The Dean of Faculty. — I am coming on to comment on the proceedings pre sently. I think what his Lordship is referring to there in speaking of the early days only means this Lord Robertson. — It means 1871 and 1873, does it not ? The Dean of Faculty. — Well, my Lord, I do not know. The Lord Chancellor. — Those are the two dates he refers to. He says those are the two declarations. The Dean of Faculty. — I should have said that he was there referring to the immediately post-Disruption time. The Lord Chancellor. — Surely not, because what he is referring to is what was done in 1871 ; that is the earliest date he mentions. The Dean of Faculty. — He is referring to the negotiations which led up to the Union, and he speaks of the expression of approval of the principle. I do not know that it is worth while stopping upon the point, but it would seem to refer to the time from 1881 onwards to an in definite date. Whether it stopped in 1881 or afterwards, I do not think his Lordship makes it quite clear, but I think it is manifest that he is referring to the time beginning from 1843 downwards. The Lord Chancellor. — Where does that quotation, 'There was no objection ' in principle to the formation of an in- ' corporating Union ' come from ; that is quoted from the Resolution of 1871, is it not? The Dean of Faculty. — That is so, my Lord. Lord Davey. — In the early days of my education, when I was a student of Logic, I was taught that there was a fallacy which was known as ignorantia elenchi, and this argument strongly reminds me of that. No one says that the maintenance of an Establishment is vital to the ex istence of the Church. The question is, What were the distinctive doctrines of the Church at the time when this trust was founded? The Lord Justice Clerk's argu ment, with great deference, does not seem to touch that point. He says it is not vital to the existence of the Church. DEAN OF FACULTY'S Clearly it was not, because the Church exists without the Establishment. The Dean of Faculty. — His Lordship says, I find two classes of principle in the Church — the one vital and essential, and the other subordinate ; and (he says) when I examine the documents I find that the one about Establishment is treated not as a vital one but as a subordinate one. The Lord Chancellor. — I shall have a word to say about that presently, but the present argument is in regard to this question of dates. What early days are referred to by his Lordship there ? The Dean of Faculty. — I think it must certainly begin at the beginning. The Lord Chancellor. — If you take it back to 1843, so far as I am concerned, I have not the smallest notion of any dissent upon the subject on the part of those who formed the Free Church as to the absolute duty of the State to establish a religious form of government. The Dean of Faculty. — That there was that opinion in 1843 I have never disputed. The Lord Chancellor. — I do not under stand what that means. These are mere words. An opinion about a theological question is doctrme. It is all very well to use the word ' opinion ' as if it was something distinct from doctrine. An opinion is an act of the mind, I suppose. If you mean that the one is an important opinion and the other is an unimportant opinion, that I can quite understand. One knows that among the school-men there was such a thing as a 'pious opinion,' which meant that it was something not important. The Dean of Faculty.— The one is vital to the existence of the Church in this sense, that they could not go on without their doctrine, but they could go on without this perfectly well. The Lord Chancellor. — As to that, when you talk about the absence of the word 'fundamental,' and so on, as appli cable to this doctrine, is there any part of any of these documents which treats the Christian religion as fundamental ? The Dean of Faculty. — Yes. The Lord Chancellor. — I mean, does it use that phrase as applicable to it ? The Dean of Faculty. — Yes, I think so. SPEECH 441 The Lord Chancellor. — I should have thought not. The Dean of Faculty. — I have always, in the course of my argument to your Lordships, taken the position that as re gards this Church, Christ being the Head of the Church, and the Holy Scriptures The Lord Chancellor. — I will take that very thing as an example. Is there any of these documents in which that is described as fundamental ? The Dean of Faculty. — Certainly, I submit. The Lord Chancellor. — I mean so described — not merely referring to its being so, but using the phrase ' fundamental ' as applicable to it. The Dean of Faculty. — I think that is so throughout the documents I have examined. My object in examining them was to show that the word was frequently used The Lord Chancellor. — We as lawyers are in the habit of using the phrase expressio unius exclusio alterius, but we must not apply such a principle as that to the language of these theologians. The Dean of Faculty. — My point in examining the meaning of the documents is to show that the documents say that certain things are fundamental, and they do not attribute that to this doctrine, or opinion, or tenet, call it what you will, which is in dispute. Would your Lord ship allow me to say in support of what the Lord Justice Clerk says, with regard to there being nothing in that paragraph on page 77 which might not be affirmed by a person opposed to Church Establish ment, that was assented to or what is quite equivalent to being assented to The Lord Chancellor. — But put it on the other side : is there nothing in that which would prevent a person who thought that it was the duty of the State, and a duty which must be enforced, and, as Dr. Chalmers says, one of the most valued principles, — I say, is there nothing in that which would prevent a person holding that view assenting to associate in religious work with a person who repudiated the notion of a State Church ? Dean of Faculty. — My point is rather that those who do repudiate Establishment, in the sense of State Establishment and 442 HOUSE Endowment, still affirm all that is set out in the second paragraph upon page 77. All that is set out there is, that it is the duty of the State to ' own and honour His ' authority ' The Lord Chancellor. — Now, on that point I think we are really a little wander ing into mere questions of words. How does the State ' own ' any particular form of religion? because this, you know, is ' officially.' Dean of Faculty. — Yes. The Lord Chancellor. — How does the State officially own any form of religion ? Dean of Faculty. — I would answer that by saying that our own country is a Christian State, and yet throughout the whole of the British Empire there is no Establishment except in England and Scot land. If you take Ireland, for instance, is not the Government of Ireland a Christian Government, and so throughout all our Colonies ? The Lord Chancellor. — I am afraid I could use your illustration against you, but I do not want to argue it with you. Ireland being, as you would say, a Roman Catholic country, I think your argument perhaps proves a little too much. Lord Macnaghten. — Partly Roman Catholic. The Lord Chancellor. — Yes, partly Roman Catholic. Dean of Faculty. — That is what I think is the point here, and your Lordships will find at Print B, page 55, that the United Presbyterian Church, in stating the terms of agreement and the points on which they are agreed, appear to me to accept that. At page 55, between letters F and G, there are the points of agreement between the two Churches : ' That the ' civil magistrate ought himself to em- ' brace and profess the religion of Christ, ' and though his office is civil, not ' spiritual, yet, hke other Christians in ' their places and relations, he ought ' (I ask your Lordships' attention to these words), 'acting in his public capacity as a ' magistrate, to further the interests of the ' religion of the Lord Jesus Christ among ' his subjects in every way consistent with ' its spirit and its enactment, and that he ' ought to be ruled by it in the making of ' laws, the administration of justice, the OF LORDS ' swearing of oaths, and other matters of ' civil jurisdiction.' Now, any one who assented to these propositions would, I submit, find nothing in the paragraph on page 77 which I read which was in any way inconsistent with his opinions and beliefs. Lord Davey.— But in that same docu ment on page 57 you have first the State ments wherein they disagree, and then the Statements wherein they differ. The Dean of Faculty. — That is so. I have to examine that document almost immediately in reference to the proceed ings that took place then. Now, my Lords, I will pass from that branch of the subject with which I have been dealing, for the purpose of making some comments upon certain matters which are founded upon; and upon which a different construction is put by the opposite side of the Bar from the view which we suggest, as regards the question whether the acting of the Church through out was not consistent with our interpreta tion of the documents, and not with the Appellants'interpretationof the documents. The Lord Chancellor. — Do you mean the argument that during all that period they have done nothing to strive to en force it ? Dean of Faculty. — No; I mean the things they have done which I contend were not consistent with their view. The Lord Chancellor. — Not merely acts of omission, but acts of commission. Dean of Faculty. — Yes; I say the things they have done were not consistent with the view it was in the sense in which it is used in this action — a fundamental principle which it was impossible to alter without unanimity. That is the sense in which undoubtedly it is used. My Lord, I propose to take those in order, and I will make my comments upon them in as narrow a compass as is possible. I think it will perhaps be most convenient to mention those which are founded upon by my learned friend, and the view which I found upon them, in chronological order. The first in chronological order was the answer to certain Addresses which your Lordships may remember were received by the Free Church almost immediately after the Disruption. The Lord Chancellor. — Yes. DEAN OF FACULTY'S SPEECH Dean of Faculty. — There were a number of Churches who sent Addresses. The Lord Chancellor. — Speaking generaUy, it was the Voluntaries who thought that what they had done was a great act of Voluntarism ; upon which the Free Church said, ' No, we are not Volun- ' taries at all ; you are entirely mistaken.' Dean of Faculty. — Yes; they said, ' We have not gone out as Voluntaries,' and that was quite correct, because it was on the question of spiritual independence that they had gone out. Now, these Answers were made by a Committee of the Assembly who were appointed to answer such Addresses. But, my Lords, this very same matter of these Addresses from other Churches was dealt with in the Proceedings of the Assembly of the year. I will give your Lordships a refer ence to it. The Proceedings of the Assembly at Glasgow under date the 18th October 1843, your Lordships will find in a little book I have here, at page 39. We will hand your Lordships a copy of the book containing it. There had been an Assembly at Edinburgh in May, and there had been an Assembly at Glasgow in October, and the subject of Addresses from the other Churches was one of the matters under the consideration of the Assembly. The Lord Chancellor. — Did you say it was in 1839 ? Dean of Faculty. — No, my Lord ; it was in 1843, a month or two after the Disruption. The Disruption was in May 1843, and this was a meetmg of the Assembly in October 1843. At that Assembly a Committee was appointed to answer Addresses that were received, and the matter was being discussed in the Assembly in October. And with regard to this matter of the Addresses from other Churches, Dr. Candlish, who was probably, with Dr. Chalmers, one of the most promi nent figures in the Free Church at that time, in speaking of the matter of the Addresses from other Churches, says this at page 39 of this book Mr. Johnston. — Is this a Proceeding or a speech at the Assembly which my learned friend is going to read ? Dean of Faculty. — I am quoting from the Proceedings of the Assembly. 443 Mr. Johnston. — A speech made in the Assembly is not part of the Proceedings of the Assembly in the sense of the Minute under which we have admitted reference to them. Dean of Faculty. — The whole re nunciation of probation is upon the foot ing that both parties can refer to these Proceedings. The Lord Chancellor. — I do not think we could exclude them, Mr. Johnston. Of course, the point that it ought to have been included in our book is another matter, but I think, apart from that, we cannot exclude it when we are discussing what is or is not part of the opinions of those who formed the trusts. I think Lord Eldon permitted members of the congregation to express their opinions as to what was the opinion of the Church. Mr. Johnston. — I merely took objection because it appeared to me that these speeches made in Assembly are not part of the Proceedings of the Assembly in the sense of the Minute which has been come to. The Lord Chancellor. — As I under stand, they are opinions expressed by members of the congregation. Dean of Faculty. — They are in the formal Minute. It is published in the Proceedings of the Assembly of the year. The Lord Chancellor. — I do not think we need waste time in discussing it. Dean of Faculty. — I am quoting from the Proceedings of the Assembly of the Free Church in October 1843. The Lord Chancellor. — While on the one hand, Mr. Dean, we quite think you are entitled to use them, apart from the technical point of their not being included in the Proceedings printed in this book, of course the inference to be drawn from the speech you are about to read is a very different matter from the inference to be drawn from Dr. Chalmers' speech, because that was a speech not only of an individual, but it was printed and circulated by order of the Assembly. Dean of Faculty. — I quite recognise that. But this is strictly pertinent, I submit, to the matter of the reception of the Addresses. The particular words in which the Address was answered were no doubt selected by the Convener of the 444 HOUSE OF LORDS Committee which answered the Addresses. They were not the words of the Assembly ; they were the expression of his view, though I do not in the least challenge these words. Lord Davey. — They were the expression of the Assembly, in the sense that a Board of Directors answers a letter by their Secretary by order of the Directors. The Secretary chooses the language, I daresay, but the letter is by order of the Directors. Dean of Faculty. — -It was whilst these Addresses were being answered that this speech was made. Dr. Candlish, in deal ing with the very matter of the Addresses received from other Churches, said this : ' And will the Assembly allow me in ' closing to say that I trust there will be ' no mistake in reference to the sentiments ' I hold of other bodies of evangelical ' Christians. My friends will bear me ' witness that I am the very last person ' who would stand on the rigid assertion ' of the mere theory of Establishments for ' the purpose of keeping up division or ' schism in the Church. So far from that, ' it appears to me that the distinct refusal ' of the states and kingdoms of this world ' to recognise the only principle on which ' we can consent to have the Church ' established — their refusal to establish ' the Church of Christ while they recog- ' nise her spirituality and freedom — ' leaves us to a very great degree of prac- ' tical liberty and a large measure of ' practical -discretion as to the terms ' on which we should stand with other ' Churches. Is the division and schism of ' the Christian Church to be kept up by a ' question as to the duty of another party ' (that is, the State) ' over whom we have ' no control ? Let it be that we maintain ' our different opinions as to the duty of 1 the State to support the Church, and the ' duty of the Church to receive support ' from the State when it is given con- ' sistently with spiritual freedom : still, ' shall that question, which has become a ' mere theoretical question in the Church ' of Christ, and which, so far as we can ' judge, seems destined to be a theoretical ; question till the time when the kingdoms ' of this world shall become the Kingdoms ' of our Lord and of His Christ, — shall ' that question prevent cordial co-operation ' and harmony among ourselves, and our ' united action in defence of our common ' Protestantism against the common foe ? ' Those are the words of a leader, probably the most prominent man of the Church, next to Dr. Chalmers, giving his guidance to the Assembly and to all those who per used the Proceedings of the Assembly with regard to the position which the doctrine of Establishment held in the Church. My Lords, my learned friend next referred to Proceedings relating to a person of the name of Hately WaddeU, which is printed at page 28 of Print D. Those Proceedings (which I certainly do not propose to read to your Lordships) related to a Petition of that gentleman, who certainly had extreme views, and, so far as the Assembly was concerned, all they did was to remit the matter to the Presbytery, and that matter never came back to the Assembly. What he had stated in the Petition to the Presbytery was stated in language of a certainly extraordinary character. Your Lordships will find at the top of page 31, at letter D, he spoke of the Established Church of Scotland in words which no doubt would be considered of very curious and extreme character. I do not propose reading them, but if your Lordships desire it your Lord ships will see in a moment what he says there. He describes the Church as ' worthless and pestilential and a nuisance ' to men as immortal beings,' and he speaks of it as 'an abomination to God, ' and ought to be destroyed.' It is a violent attack. The Assembly very natur ally sent the matter to the Presbytery, and they had to discuss the circumstances under which this extraordinary application had been made, and in the meantime they withdrew the licence of the applicant until the matter should be investigated and determined. He, in defiance of that with drawal, which he was bound to submit to, whether he was right or wrong, until the matter was finally determined, insisted upon continuing to act as a preacher within the district, and they accordingly charged him with contumacy for not obeying the orders of the Church, and his licence was withdrawn upon the ground of contumacy, as your Lordships will find at the top of page 40. ' The Presbytery, ' in accordance with their former deliver- -Was that very great DEAN OF FACULTY'S ' ance, finding him guilty of contumacy ' and of following divisive courses, did, | and hereby do declare, Mr. Peter Hately ' Waddell to be no longer a probationer of ' the Free Church of Scotland.' That, I submit, cannot go very far in the way of interpreting these documents. Lord James of Hereford.- done on the ground of the violence of his language, or of the fact of his putting forward this principle ? The Dean of Faculty. — I think, as is the common thing to do, when any matter of this sort is inquired into, they suspended his right for a time to preach ; and then, he having defied them, the whole question was changed into a question of contumacy, and the matter was never in the end run out upon the lines of the original petition. That has never been dealt with at all. Lord Robertson. — This was not, and could hardly be, pressed much against you, because Mr. Hately Waddell was well known to be a very eccentric person, and any proceedings in his case, I should think, would hardly be quoted as forming a precedent. The Dean of Faculty. — I only referred to it because my learned friend referred to it. I did not want to pass without notice a point which my learned friend had made upon this matter. I am obliged to your Lordship for the remark, because the document, if looked at closely, cer tainly most thoroughly demonstrates that. Now, my Lords, I pass to a much more important matter, and that was a proceed ing which took place in 1858 consequent upon certain unions which took place between the United Presbyterian Church and the Free Church in the Colonies. Both Churches are represented in the Colonies. The truth is, my Lords, the union took its origin in the Colonies much more than in this country. The Colonies were in advance of the adherents of the two Churches in this country. And accordingly, in 1858, in Victoria, the United Presbyterian Church and the Free Church there, or rather, I mean the Presbyteries of the Churches there, united. Three office-bearers of the Free Church objected to the Union, and came home to this country and applied to the General Assembly of the Free Church in SPEECH 445 1858 to recognise them as the Free Church in Victoria and to repudiate the United body, and accordingly the Free Church had then to consider what their attitude was to be between these two bodies — whether the Free Church by uniting with the United Presbyterian Church in Victoria had done anything which should cut it off from the Free Church here, and whether the small remnant which declined to unite were still to be treated as the Free Church body. That question was accordingly deliberately considered by the Assembly, and your Lordships have in Print F the proceedings in which that was dealt with. The Assembly deliberately adopted the view that there was nothing in the Union which should to any extent affect the relations of the Victorian Church with the Free Church, and declined to recognise the small body as being the Free Church, and very strongly urged upon them the desirability of accepting the Union which had taken place, and joining in it. Your Lordships will find an Act of Assembly on that matter on page 57. You will see that on the 31st of May 1858 the Assembly passed this Act : ' without pronouncing any opinion on the ' past proceedings of the Free Synod of ' Victoria on the one hand, and of the ' dissentient brethren on the other, the ' General Assembly feel bound to declare ' that the said Synod must be held as ' standing in the same relation to this ' Church in which it stood before the ' unhappy separation took place' (that was the separation consequent on the union with the United Presbyterian Church). 'And further, that whatever ' grievance the Dissentient Brethren may ' allege as regards the manner of the ' separation, and whatever claim they ' have on the sympathy of this Church ' as brethren actuated by conscientious ' motives who regard themselves as suffer- ' ing wrongfully, they cannot be recog- ' nised by this Church as occupying the ' position which has hitherto been occu- ' pied, and is still, in the judgment of the ' Assembly, occupied by the Free Synod ' of Victoria ' (that is, the United Synod), 1 the position, namely, of the Church in ' that Colony, which this Church recog- ' nises as her sister Church, maintaining 446 HOUSE OF LORDS ' her principles and in close communion ' with her.' Then it proceeds : ' In ' issuing this declaration, the General 1 Assembly feel constrained to record ' their deep and earnest sorrow for the 1 occurrence of so sad a breach among ' brethren who, in all essential particulars, ' are really of one mind, and the lively ' satisfaction with which they learn that ' overtures for the healing of the breach ' are now in course of being made on the ' part of the Free Synod of Victoria to the ' Dissentient Brethren, in accordance with ' a recommendation given by respected ' fathers and brethren of this Church. ' And in the spirit of that recommenda- ' tion, and of the first paragraph of this ' deliverance, it is the opinion of this ' Assembly that the healing may be, and ' ought to be, effected by all past occur- ' rences connected with this unhappy ' difference being henceforth forgotten, ' and. any acts done on either side being ' no longer founded upon, so that the ' Free Synod of Victoria may be thus ' restored to its former integrity and ' efficiency.' Then they say on the next page, at letter C : ' The General Assembly ' recognises the great desirableness of the ' union among all Presbyterians "holding ' "the Head which is Christ," in those ' large and important Colonies, as of the ' utmost consequence to the interests of ' Presbyterianism and the cause of true ' Religion ; and they entertain a lively ' hope that on such a basis as that which ' has been adopted in the negotiations of ' the Free Synod of Victoria with the ' other Synod there ' (that is, with the United Presbyterian Synod), ' and of ' which all the parties concerned appear ' to have approved, a strong United ' Church may speedily be raised up, ' embracing all sound - hearted Presby- ' terians in the Australian Colonies, and ' prepared to go forth in the name of her ' great and only King and Lord.' Then, my Lords, the same matter was further discussed in the Assembly in 1858. Your Lordships will find the basis of the union in which the Churches in the Colonies joined. The statements are all in the print. This union took place in Victoria, Nova Scotia, New Zealand, Queensland, South Australia, and New South Wales, and your Lordships have the basis upon which they united on page 214 of the print. The first is Victoria, ' Bases adopted in Unions ' recently consummated among Presby- ' terian Bodies in the British Colonies.' They included the United Presbyterian Church as well as the Free Church. The first is, ' That the Westminster Con- ' fession of Faith, the Larger and Shorter ' Catechisms, the form of Presbyterian ' Church Government, the Directory for ' Public Worship, and the Second Book ' of Discipline he the standards and ' formularies of the Church. (2) That, ' inasmuch as there is a difference of ' opinion in regard to the doctrines con- ' tained in these standards relative to the ' power and duty of the civil magistrate in ' matters of religion, the office-bearers of ' this Church, in subscribing these stand- ' ards and formularies, are not to be held ' as countenancing any persecuting or ' intolerant principles, or as professing ' any views in reference to the power and ' duty of the civil magistrate inconsistent ' with the liberty of personal conscience ' or the right of private judgment.' Your Lordships will observe that, differing from the Act of 1846, they have introduced the words ' or as professing any view in ref er- ' ence to the power and duty of the civil ' magistrate inconsistent with the liberty ' of personal conscience or the right of ' private judgment.' Then there follows immediately afterwards, the bases of union in regard to Nova Scotia, and your Lord ships will see at page 215, letter -E, the third basis, which is as follows : ' Finally, ' while recognising the responsibilities of ' the civil magistrate to God, and praying ' for the time when kings shall be nursing ' fathers, and their queens nursing mothers ' to the Church, the Synod finds that ' the question as to the mode in which ' the civil magistrate may discharge his ' responsibilities is one on which, in their ' circumstances, they are not called upon ' to come to any deliverance.' Then the Canada basis of Union your Lordship will find follows; and on page 216 between letters A and B, your Lordship will find the passage dealing with the civil magis trate, 'Further, that unanimity of senti- ' ment is not requhed in regard to the DEAN OF FACULTY'S SPEECH ' practical application of the principle ' embodied in the said Fourth Article, ' and that whatever differences of senti- ' ment may arise on these subjects, all ' action in reference thereto shall be ' regulated by, and be subject to, the ' recognised principles of Presbyterian ' Church order.' Then the Fourth Article is given on page 217; it begins at letter B : ' Of the Headship of Christ ' over the Nations and the duty of the ' civil magistrate. That the Lord Jesus ' Christ as the Mediator is invested with ' universal sovereignty, and is, therefore, 1 King of Nations, and that all men, in ' every capacity and relation, are bound to ' obey His will as revealed in His word : ' and particularly that the civil magistrate ' (including in that term all who are in ' any way concerned in the legislative or ' administrative action of the State) is ' bound to regulate his official procedure, ' as well as his personal conduct, by the ' revealed will of Christ.' Then the New Zealand basis follows on the same page. Lord Davey. — No doubt you are aware there was litigation in the case of Canada as to the Union between Churches, which came before the Privy Council. Dobie was the name of one party, — I forget the name of the other. The Dean of Faculty. — I confess I was not aware of that. Lord Davey. — It does not decide any thing relative to this case, because it turns upon the validity of certain Acts. The Dean of Faculty. — Of course, I am referring to these for the purpose of showing the attitude of the Free Church in 1858 towards such a Union of the Churches as exemplifying their principles. Lord Davey.— How does it show the attitude of the Free Church of Scotland ? The Dean of Faculty. — Because, I submit, they had applications to them to recognise the minority who differed ; and the Free Church of Scotland continued to admit the Ministers of the United Church (I will come to that immediately) and to treat them as Ministers of the Free Church, receiving them without any sub scription of standards at all. They accepted the united body as standing in exactly the same relation to them as they had done before,— they educated clergy- 447 men who were sent out to occupy positions in that Church ; they were inducted into that Church, and when they returned here they took their place in the Free Church without any admission or any subscrip tion. At page 193 of Print F your Lordships have a Minute in which the General Assembly had to deal with the application of a particular minority. Upon the 23rd of May 1860 the General Assembly took up the memorial from Mr. Miller of Melbourne. 'Mr. Miller ' appeared, and was heard in support of ' his memorial ' (Mr. Miller, I may say, was the representative of the dissenting minority at Melbourne). ' It was moved ' and seconded that, inasmuch as the Rev. ' William Miller of Melbourne and his ' brethren are ordained ministers of this ' Church, and are conscientiously of ' opinion that it is their duty to remain ' in connection with it, the General ' Assembly did, and hereby do, recognise ' them as in ecclesiastical fellowship with ' the Free Church of Scotland.' That motion was not carried ; a second motion was moved which was carried : ' It was ' also moved and seconded that, the 1 Assembly having heard the Rev. WiUiam ' Miller, of John Knox Church, Melbourne, ' Victoria, welcome him as a Free Church ' minister, who has laboured devotedly for ' several years in a distant land ; and with 'regard to the position in Australia of ' himself and certain other brethren ' referred to, the General Assembly, having ' respect to the Deliverance of the 'Assembly, 1858' (that was the Act which I read to your Lordships a little while ago), ' decline to recognise Mr. ' Miller and his brethren as the " Free ' " Presbyterian Church of Victoria," in ' ecclesiastical fellowship with the Free ' Church of Scotland; but the Assembly ' renew the expression of their earnest ' hope that the parties who have been at ' variance may yet see their way to recon- ' ciliation and re-union.' There was some modification in it, but your Lordships will find it as adopted at page 194, letter F. The final decision was this : ' The ' General Assembly having heard the ' Rev. WiUiam Miller of John Knox ' Church, Melbourne, Victoria, welcome ' him as a Free Church minister ' • 448 HOUSE OF LORDS The Lord Chancellor. — Though he the Colonies, was one of the dissentients who had been excluded from the Free Church at Victoria. The Dean of Faculty. — 'Welcome ' him as a Free Church minister who has ' laboured devotedly for several years in a ' distant land ; and with regard to the ' position in Australia of himself,' then it goes on ; it is substantially a reproduc tion of the other which I read. There is a wrong date in the Title on page 193. Your Lordships will observe it says 1863 — but it ought to be 1860 ; the Minute, you will see, is dated 1860. Lord Robertson. — Then is the con clusion, that you ought to hold out the right hand of fellowship to Mr. Johnston ? The Dean of Faculty. — Yes, but refuse to recognise him. I think what the Church did in 1858 and 1860 was that they quite acknowledged the merits of the gentlemen who came to them, but they said : ' We cannot recognise you as ' being the Free Church of Australia or ' Canada; we cannot recognise you as ' being that, because we recognise the body ' who have united; and as the Free ' Church Assembly we strongly recom- 1 mend you, seeing that you are agreed ' upon everything that is essential, to join ' them. We regret very much the differ- ' ences that have occurred, and accordingly ' we recommend you to join the united ' body.' And that is exactly the attitude which I present towards my learned friend's clients. We have nothing to say against them at all, and their merits and services. We cannot recognise them with regard to the attitude of separation they have adopted as being the Free Church ; but we cordially invite them to return to the fold which they have left. My Lords, the next document about which I have to say a word is what is termed the Mutual Eligibility Act of 1873. Your Lordships have had that document read, and therefore subject to referring to anything which your Lord ships may ask me to point to, I propose rather to comment upon it and state exactly what was done. Prior to 1843, members of the Colonial Presbyteries had been treated as Free Church ministers, and therefore mutually eligible; that is to say, any minister holding a parish in belonging to the Free Church, was quite eligible for election to a parish of the Free Church in Scot land without subscribing or doing any thing to show that his principles were according to the Free Church. In 1873 the same prmciple was extended to the United Presbyterian ministers. They were regarded as occupying a position relatively to the Free Church which made it quite proper and in accordance with the Free Church rule that there should be mutual eligibUity between the office-bearers of the two Churches, and accordingly the Mutual EligibUity Act of 1873 was passed, producing that result. It is a long time ago — very nearly thirty years before the differences which occurred in 1900. Now, it is perfectly true that that was not unanimous. Certain gentle men, Mr. Nixon, and a number of others who agreed with him, dissented, but they did nothing more, and from 1873 onwards that remained the law of the Church, and it is the law of the Church still. It may be that all those dissentients have passed away. There is no investigation into the personnel of the different groups, and that is thirty years ago, which is a long time. But at anyrate, all those who have come into the Church between 1873 and the present time have come in upon the basis of the Mutual Eligibility Act of 1873, which proceeded necessarUy upon the footing that there was no essential differ ence between the United Presbyterian Church and the Free Church which should prevent a minister of the one becoming a minister of the other. That Act, as I say, has applied from 1873 down to the present time, so that the result of the matter seems to stand thus. Of course, I will take the proceedings of 1892 and onwards in a different category. The result of the proceedings up to that time was this : That according to the argument which I have submitted to your Lordships the Documents did not make this Estab lishment principle a vital or an essential one ; that the practice of the Church was upon the basis of its not being so, as illustrated by the various points I have mentioned, namely, the treatment of the Colonial Churches which had united, and the Mutual Eligibility Act which they DEAN OF had prescribed for themselves in 1873, and nothing has been done by anyone since to undo that. My learned friend spoke of civil questions and the questions of property not having arisen ; but if this was a vital and essential principle, if the constitution of the Church was being turned upside down by the Free Church, of course my learned friend's clients and those dissenting could perfectly well have said : We cannot possibly allow this body with which we are associated, and within which we have important civil rights, to be reconstituted on a basis different from that on which we joined, so as to compel us to accept hereafter Establishment or civU endowment upon a basis which is different from the basis which we origin ally assented to. They had just as good a case for going to the Courts then as they have now, for the purpose of insist ing upon the civU property being left upon the same basis as that upon which it was based when they joined the Church. So, my Lords, I submit on that sequence Lord Davey. — What is your practical conclusion for that? That there is an ezceptio personalis against these people? The Dean of Faculty. — My point is this : that by universal consent- Lord Davey. — Do you say that there was in fact a union before they formally did it? The Dean of Faculty. — No, but the principles of this Church must be con sidered in 1900, not only in regard to the words of any particular document The Lord Chancellor. — The principles of the Church must be ascertained from the principles themselves as disclosed, not from what the parties did. The Dean of Faculty. — But if a Church chose in the course of its history unanimously to change its attitude to wards any passages in the original docu ments, I submit it was entirely for them The Lord Chancellor. — I should doubt that very much. However, I do not think that question arises here, because you would hardly say there was universal Hi acceptance of that; you only infer from 11 certain acts that they did, that there was. The Dean of Faculty.— Which was vr ¦ 2 f FACULTY'S SPEECH 449 only warrantable upon the footing that that was the construction of the docu ments. It seems to me to come to this : upon the construction of the documents set out by themselves they bear the meaning that this was not fundamental. Then you have the subject-matter of the thing itself of such a character as not to be appropriate as a fundamental principle, being really the act of a third party, and having nothing to do with the practice of the Church itself; and then, thirdly, you have the practice of the Church for a long time based upon the footing that this was not a principle of the Church that in any way impeded its free action. Now, my Lords, I pass on to the pro ceedings of 1892, which no doubt lies at the root of the alleged doctrinal change which is complained of, because the 1892 Act no doubt is incorporated or referred to in the questions which were framed in 1900 with regard to the union. Your Lordships have the Act of 1892 at Print A, at page 132. The Lord Chancellor. — That is 'an Act anent Confession of Faith.' The Dean of Faculty. — Yes, that is the Act. Now, my Lords, several questions un doubtedly arise with regard to that Act, but before I examine its terms I would again call attention to the position of the Appellants with reference to this Act. I am going to contend that there is here no alteration of doctrine which was not perfectly competent for the Church to make. But what is the attitude of the Appellants towards this Act? This Act was passed in 1892. It was perfectly competent for any one in the Church when this Act was passed, if they thought this was an invasion of their rights in any way whatever, to take either of two courses — either to leave the Church in respect of which the principles of the Church were disconform to the principles of the Church up to that time, or to take the necessary steps to prevent the illegal Act being carried through. But the Appellants did neither of those things. There were certain gentlemen in the Church in 1892 who disapproved of what was done, and they left the Church. They 45onow exist ; they are a small body — they are called, I believe, the Free Presbyterian Church. They said : We do not accept that; we differ from that. And accordingly treating this and interpreting their rights under the Constitution, as I contend, they fell to be interpreted, they said : If the majority of the Church have decided to make a change which we do not approve of, very well, we will exercise our right to leave. I have no doubt they did their best as members of this association to influence the other members of the Church in this matter and to get their own views given effect to, but they faded to influence the legislative course of the Church so as to induce them to do as they desired ; and they said: Well, if that is so, we will leave. But what is the position of the Appellants? They are in one of two positions ; and I am not prepared to tell your Lordships to which of the two they have to be referred. They were either in the Church and did nothing, or they have since come into the Church. They must be in one or other of those two categories. If they were in the Church in 1892 and did nothing, they must be held to have assented. If you have a Church, and a step is taken and dissentients leave the Church, is not the only inference from that, that those who remain in acquiesce ? Mr. Johnston. — They protested. Lord Alverstone. — We have been told that they protested. Mr. Johnston. — Their names are to be found amongst the protesters, but not among those that left. The Dean of Faculty. — I have looked at the Record for any statement that they protested. If my learned friend says so, I would accept anything he says with regard to a matter of that kind, but I cannot find in the Record any statement that they protested, nor do I find any statement that they were all members of the Church at the time. The Lord Chancellor. — I think the document referred to is on the very next page — page 134. The Dean of Faculty. — But they are not parties to that; at least, they do not say so. We have not got the signatures, HOUSE OF LORDS but they do not say on the Record that they protested. Lord Davey. — Nothing was done under that Act of Assembly at the time. The Dean of Faculty. — It has been the law of the Church from that moment till now. Every one who has joined the Church since 1892 has joined upon the basis of that Act. The Lord Chancellor. — I do not quite follow you. This document is : ' Protests ' and Dissents against Declaratory Act ' anent Confession of Faith, May 1892.' That is the same date. The Dean of Faculty. — That is so. The Lord Chancellor. — It is not signed in any way, and we do not know anything about the signatories. You know more about that than I do. The Dean of Faculty. — It is not signed, and accordingly I looked at the Record to see whether they said they signed it or not. Lord James of Hereford. — At letter C, on page 134, it says: 'We the under- ' signed.' The Lord Chancellor. — I suppose it was signed by some of them. I daresay Mr. Johnston could tell us who it was who signed it. Mr. Johnston. — I have the Record here, and I can tell you as to some of them. I can tell you that Mr. Bannatyne and Mr. Cameron, who are two of the Appellants, signed it. I have the list here, but I have not had it analysed. Lord Alverstone. — Mr. Johnston stated that some of the Appellants were protesting parties at that time. I took that note down at tho time. That is what he stated in his argument. Lord James of Hereford. — It says: ' We, the undersigned, dissent from the ' decision anent the Declaratory Act.' The Dean of Faculty. — From what my learned friend says it is quite clear that some of them protested. Did they all protest ? The Lord Chancellor. — I do not know. I thought we had better clear up first the question of fact which was not agreed upon between you, but for my own part I confess I do not think a protest which was a protest against what I may call a naked declaration, without anything DEAN OF FACULTY'S being done with reference to the property now in dispute, would be much avail either way. But we had better settle the ques tion of fact, whatever its value is. The Dean of Faculty. — What I sub mit is this. A Church is a living organ isation, and it is admitting people weekly or monthly, or perhaps daily. People who join it join it upon the basis of the existing law. If certain office-bearers of the Church, fading to get their way given effect to within the Church, find that the majority are against them, can they lie by for an indefinite period ? The Lord Chancellor. — I really do not quite see what this means, and I will tell you why. Supposing all you say were true, and that not one of these people protested, what then ? When there comes a general union, whereby people taking certain views (I will call them, if you please) think proper to associate together, if the property which was dedicated to one use (I will assume that to be so for the present moment if you like) was being applied to another use, then I could under- SPEECH 45i stand the dissentients interfering; but as long as nothing was done with regard to their property why should they interfere ? The Dean of Faculty. — It seems im possible to escape discussing the question whether the Act of 1892 was intra vires or ultra vires. Lord Davey. — Surely there is no means of determining that, because the Courts of law have no test to determine whether the act of a voluntary association of Christians is intra vires or extra vires until something is done affecting property which is within the cognisance of the Civil Court. The Dean of Faculty. — Yes, but I submit Lord Davey. — It seems to me a per fectly rational thing for members of this Church to say, 'I disapprove of this en- ' tirely ; I think it alters the basis upon ' which our Church was constituted, but ' I am not going to take the extreme step ' of causing a schism in the Church. Per- ' haps it may never be put in force at all ; ' at anyrate, I will wait until something is ' done before I take the extreme step of ' questioning it, and then I shall be at ' liberty to question it in a court of law.' The Dean of Faculty. — But, my Lord, I submit this necessarily works into the Union Lord Davey. — It does, but there is nothing that a Civil Court could take cognisance of, and the only course these people had was to leave the Church with which they were associated. It seems to me a rational thing to say : ' We will not ' do that ; we will wait and see.' The Dean' of Faculty. — If they had a contractual right which was being in vaded, surely they could have got it en forced at the time ? Lord Davey. — I do not see how. The Dean of Faculty. — Let me take two instances. The Act became operative the moment it was passed, and every man who joined the Church from that time forward joined on the basis of this Declar atory Act. The Lord Chancellor. — Even that, I think, is an overstatement. How do I know that any single person joined it in the sense you are now insisting upon ? The Dean of Faculty. — It was the law of the Church. The Lord Chancellor. — That may be, but that did not prevent the people who held the old views retaining their old views. I do not know that any single person other than those who were in full union with the Free Church as originally formed joined the Church after this declaration. That they might do so I agree, but I do not know that they did. The Dean of Faculty. — Until this was set aside in some way this was the law of the Church from 1892. The Lord Chancellor. — Be it so. You must look and see what it is. It is only their view of what the former declarations meant. The Dean of Faculty. — Take the case of property. My learned friends say : ' Give us the whole of the property as it ' stood in 1900.' How does it appear that the property was not left in complete sympathy with the alteration that had been made ? The Lord Chancellor. — I do not know whether any property has been left since 1892. The Dean of Faculty. — Oh yes, my Lord; more than £100,000. The Lord Chancellor. — It would only 452 HOUSE OF evade the decision of the whole case to suppose that somebody or another may have joined the Church since, or some one may have left property since 1892, because the great majority of the property, I suppose, was settled at the time of the Disruption. The Dean of Faculty. — Oh no, my Lord ; on the contrary. The Lord Chancellor. — At anyrate, a great part of it. I have no right to be speculating how much ; but some of it, at all events. That is enough to establish the right of those present, if they have a right. The Dean of Faculty. — My Lord, there are published accounts which show the position of the Church at various times. The Lord Chancellor. — Be it so ; but do not let us waste time on what is really immaterial. I will assume, if you please, that the majority of the property has been left since 1892; but assuming that, you will hardly deny that a considerable amount was left to it before 1892. The Dean of Faculty. — I beg your Lordship's pardon. I understood your Lordship to suggest that most of it had been settled at the beginning. The Lord Chancellor. — Very likely I was mistaken as to that. The Dean of Faculty. — Of course, I do not suggest that the bulk of the pro perty has come in since 1892. The Lord Chancellor. — That is all I meant to say. The Dean of Faculty. — Your Lordship can be supplied with a complete list of the property, because the published accounts of the Assembly show what was the position of the property year by year at the various dates. The Lord Chancellor. — That may on some future occasion form the subject of some farther argument as to the destina tion of property settled since 1892, but at present we have enough to show a right in the Appellants, if they have a right at all, to have a certain trust enforced with regard to the property before 1892. Lord James of Hereford.— Do you say that the Act of 1892 did in effect change any of the doctrines set out in the Con fession of Faith ? The Dean of Faculty. — I think it was only declaratory. LORDS Lord James of Hereford. — You do not say it effected any change in the doctrines. The Dean of Faculty. — My opponents say that. Lord James of Hereford. — You have not come to that point yet. The Dean of Faculty. — No, I only wanted to see the position of the Appel lants towards this Act. When I come to examine the matter I am going to contend that there is nothing in the Act which the Church has the slightest difficulty in determining. But the extraordinary posi tion of the AppeUants is this. They did not leave the Church in 1892, but they remained in it, and that is one of their Acts at the present moment in 1904. They have never repealed it ; they complain of what was done in 1902 — they remained in the Church until 1900. Lord James of Hereford. — But there was no union which affected property in 1892. The Dean of Faculty. — But all the property remained on the footing of the Act of 1892. Lord James of Hereford. — But the United Presbyterians did not come in in 1892. The Dean of Faculty. — No ; but what the Appellants say is, that the United Free Church left the Free Church in 1900. If they are right in that, they are the Free Church, and they continue to be the Free Church up to the present hour ; they are the Free Church that was constituted in 1843, and of course all Acts of the Free Church are naturally and necessarUy their Acts. The Act of 1892 remains one of their Acts. It was never repealed. Lord James of Hereford. — But the Free Church body, it is alleged, left in 1900 by virtue of their Union with the United Presbyterians. Dean of Faculty. — My clients it is alleged, the majority, did ; but of course if the minority are right in saying that they are the Free Church, if this Act of 1892 was an Act that was contrary to the con stitution of the Free Church, the first thing for them to do was to repeal it. They had got rid of the people that passed it, the majority, and if they complained that it was, to any extent, an infringement DEAN OF FACULTY'S SPEECH of the principles of the Church, the first thing to do was to repeal it. Lord Davey. — They may have done so, for anything I know to the contrary. Dean of Faculty. — It is public fact that they did not. This is the sort of fact one is obliged to refer to as facts that are notorious. My friends on the other side do not say they have repealed it. There fore, in regard to their relation to it from 1892 till 1904, I submit the AppeUants are not in the position to challenge the validity of it. The Lord Chancellor. — How soon after 1890 did they challenge it? Dean of Faculty. — Whenever the Union took place in the year 1900. In May the minority continued to act as the Free Church. They said : We are the Free Church ; they constituted themselves im mediately. The Lord Chancellor. — That is what I wanted to know. What is the date of the summons ? Mr. Johnston. — 14th December 1900. The Lord Chancellor. — That is im mediately after. Mr. Johnston. — Immediately after. Dean of Faculty. — Yes. They con stituted themselves, and they say there is uninterrupted continuity of the Free Church ; and being the same Church as was constituted in 1843, this Act is one of their Acts, like the rest. Now, my Lords, upon the question of what this Act did, and on the question of competency, I have a short argument to address to your Lordships upon the power of change ; but I did not wish to mix up the two things. In the first place, with regard to what the Act did, its main point, I think, is to emphasise that view of that part of Confession of Faith which deals with the free offer of Salvation, as distinguished from the foreordination of man to death. I at once admit it does put forward undoubtedly as part of the Creed of the Church the free offer of Salvation. It does not, however, on the other hand, exclude that part of the Con fession which refers to the necessity for the aid of the Holy Spirit in accomplish ing Salvation. Lord Davey. — I think the section or passage of the Act which Mr. Johnston 453 took exception to was the last one, which, it was said, put the Confession at large, and left the tenets of the Church, to be such as the General Assembly might from time to time determine to be material Dean of Faculty. — Is your Lordship referring to the Act of 1892 or to the Questions ? Lord Davey. — I am referring to the paragraph beginning: 'That while diver- ' sity of opinion is recognised,' and so on. Dean of Faculty. — ' That while diver- ' sity of opinion is recognised in this ' Church on such points in the Confession ' as do not enter into the substance of the ' Reformed Faith therein set forth, the ' Church retains full authority to deter- ' mine, in any case which may arise, what ' points fall within this description, and ' thus to guard against any abuse of this ' liberty to the detriment of sound doc- ' trine, or to the injury of her unity and ' peace.' Lord Davey. — Mr. Johnston's point was that that put the Confession of Faith at large, instead of the Confession of Faith being the standard of the Faith. Dean of Faculty. — The Church has for all time to exercise the jurisdiction there set out. If a man is libelled in the Church for departing from orthodoxy, the Church in the first instance in her judicial capacity interprets her own standards so as to define with regard to the particular case what is orthodox. Then they have to determine whether in the particular case there has been a deviation from that on the part of the person complained of. That, I submit, is merely an expression of the ordinary judicial power which any tribunal must have which has to deter mine whether a particular thing is of the substance of the Reformed Faith, and whether a particular individual has de viated from it. Lord Davey. — Surely that is a very different thing from saying (which I understand the founders of the Church in 1843 to have said) that the whole Confession of Faith is accepted as the standard of doctrine of the Church? That is one thing ; but it is a very different thing to say, ' that diversity of ' opinion is recognised in this Church on ' such points in the Confession as do not 454 HOUSE OF ' enter into the substance of the Reformed ' Faith,' and so on. Dean of Faculty. — Those words, ' the ' substance of the Reformed Faith,' are well known in the old statutes. That is the expression generally used in the statutes as regards the Confession of Faith — that the Confession of Faith em bodies the substance of the Reformed Faith. The Lord Chancellor. — One cannot avoid discussions of these questions when they arise. When I look at the top of page 133 I see this: 'That this Church ' also holds that all who hear the Gospel ' are warranted and required to believe to ' the saving of their souls ; and that in ' the case of such as do not believe, but ' perish in their sins, the issue is due to ' their own rejection of the Gospel call.' Then when I turn to the Confession of Faith, in Chapter III., in the third and fourth paragraphs, it says : ' By the decree ' of God, for the manifestation of His ' glory, some men and angels are pre- ' destinated unto everlasting life, and ' others foreordained to everlasting death. ' These angels and men, thus predestinated ' and foreordained, are particularly and ' unchangeably designed ; and their nuni- ' ber is so certain and definite, that it ' cannot be either increased or diminished.' Are those two propositions consistent with each other ? Dean of Faculty. — I think the Con fession of Faith has some propositions which the finite mind cannot reconcile, and which are termed, I think, mysteries ; and in so doing they do not originate them, but they simply embody in the Confession of Faith that which is found in the Scriptures. There will be found in the Scriptures themselves some pas sages The Lord Chancellor. — We have nothing to do with what is sound doctrine or what is unsound doctrine ; we are not here to decide any such question. The question is whether these two propositions are reconcilable with each other. Dean of Faculty. — I submit that the first question is whether they are not both found in the Confession of Faith. Lord James of Hereford. — How do you mean? LORDS Dean of Faculty.' — In the Confession of Faith there is both election and the free offer. I do not say that the free offer is stated with the same distinctness as the other ; but they are both there. The Lord Chancellor. — Do you really mean to say that the Arminian and the Calvinistic views are reconcilable with each other ? Dean of Faculty. — I do not say that the finite mind can reconcile them. Lord James of Hereford. — We are very finite minds. Dean of Faculty. — At the same time, it is quite easy to quote to your Lordships different passages from the Bible support ing both views. Lord Alverstone. — Can you quote anything from the Confession of Faith consistent with what the Lord Chancellor has read to you on page 133. Dean of Faculty. — I can quote from the Westminster Confession passages which seem to me clearly to impart free will on the part of man, and also free pardon in the event of his repenting and believing, whichseemto be inconsistent The Lord Chancellor. — I think when we come to this part of the argument it is impossible not to say that you must look at what was the meaning of the Confession at the time it was drawn up. It seems rather a strong statement to say that you could reconcile these doctrines at a time when, historically, we know they were so violently opposed that, I think, one side was described as liars and deceivers, and deprived of all civil rights by those in power who held the opposite doctrines. Dean of Faculty. — Would your Lord ship allow me to read a passage in the Confession, at Chapter XV. Your Lordships have the whole Confession in Print F. The Lord Chancellor. — I have a little book here which somebody has sent me, containing the whole Confession of Faith. Dean of Faculty. — It is all set out in Print F, beginning at page 124. The Lord Chancellor. — What is the chapter you refer to ? Dean of Faculty. — It is Chapter XV. The Lord Chancellor. — Chapter XV. is, ' Of Repentance unto Life,' DEAN Dean of Faculty. — Yes ; ' Repentance ' unto life is an evangelical grace, the ' doctrine whereof is to be preached by ' every minister of the Gospel, as well as ' that of faith in Christ. By it a sinner, ' out of the sight and sense, not only ' of the danger, but also of the filthiness ' and odiousness of his sins, as contrary to ' the holy nature and righteous law of ' God, and upon the apprehension of his ' mercy in Christ to such as are penitent, ' so grieves for and hates his sins as to ' turn from them all unto God, purposing ' and endeavouring to walk with Him in ' all the ways of His commandments. ' Although repentance be not to be rested ' in, as any satisfaction for sin, or any ' cause of the pardon thereof, which is the ' act of God's free grace in Christ ; yet is ' it of such necessity to all sinners, that ' none may expect pardon without it.' Then in Article V., ' Men ought not to ' content themselves with a general repent- ' ance, but it is every man's duty to ' endeavour to repent of his particular ' sins particularly.' ' VI. As every man ' is bound to make private confession of ' his sins to God praying for the pardon ' thereof ; upon which, and the forsaking ' of them, he shall find mercy.' Now, my Lords, that is the opposite doctrme almost as distinctly set out. The Lord Chancellor. — - 1 do not know that ; those may be included in those who are predestinated to life. The Dean of Faculty. — Then your Lordships have no doubt, — speaking of a finite mind, and dealing with it in a court of law, it is very difficult to approach any thing which is not so ; but the Confession of Faith speaks of predestination as a high mystery, manifestly indicating that it belongs The Lord Chancellor. — That may be, and I protest myself against being called upon to form any view in regard to that question. What I am called upon to determine is, whether these two views put forward as Confessions of Faith are reconcilable with each other. The Dean of Faculty.— Then will your Lordship allow me another passage upon seems to indicate the same view ; it is in Chapter VII., the third Article : ' Man by OF FACULTY'S SPEECH 455 to point out page 132 which ' his fall having made himself incapable ' of life by that covenant, the Lord was ' pleased to make a second, commonly ' called the Covenant of Grace ; whereby ' He freely offereth unto sinners life and " salvation by Jesus Christ, requiring of ' them faith in Him, that they may be ' saved ; and promising to give unto all ' those that are ordained unto life His ' Holy Spirit, to make them willing and ' able to believe.' Now, my Lords, in regard to this matter there is undoubtedly in the Con fession of Faith, just as in the Bible, the two views. The Lord Chancellor.— We need not, I think, try to make this discussion more theological than it is of necessity ; you should confine yourself to the Confession of Faith. The Dean of Faculty. — What has been done in the Act of 1892 is simply to give clearer expression to one of the views, not in the least negativing the other because your Lordship Lord James of Hereford. — Mr. Dean, do you treat them as being contradictory, the one view of the other in the Con fession of Faith ? The Dean of Faculty. — I think the first Article as to predestination — — Lord James of Hereford. — Would you mind reading, what I have in my mind, Chapter III. ; it is on page 128 of F, Article IV. : ' These angels and men, ' thus predestinated and foreordained, ' are particularly and unchangeably de- ' signed ; and their number is so certain ' and definite that it cannot be either ' increased or diminished.' I do not wish to go into theological arguments more than I can help, but, reading the effect of 'repentance,' is not that contrary to Article IV. which you have just read. The Dean of Faculty. — I think is; I am bound to say as matter construction of the Article alone, should say it was extremely diffieult read it as not involving an absolute foreordaining to everlasting death an unchangeable number. Lord James of Hereford. — May not what you have read as to repentance be applicable to those who do not come by predestination within " .... n it of I to this Article IV.? 456 HOUSE OF LORDS It cannot possibly apply to those who, unchangeable, are placed in that position of predestination. The Dean of Faculty.— No, but there is the other doctrine undoubtedly in the Confession of Faith, that by repentance and faith the sinner may be saved. Lord James of Hereford. — But may that not be applied to those who are not predestined, because this is only the predestination of a few ? The Dean of Faculty. — I do not think there is any such restriction, my Lord ; I think that is the Arminian doctrine, that they are all foreordained. The foresight of good works is the Arminian doctrine, I rather think. The Lord Chancellor. — No, no, no ; I do not propose to expound it myself, but the contradiction between them is, you know, that good works, a good life, and so on form part (according to the Arminian doctrine) of the conditions of salvation, whereas the Calvinistic doctrine makes it an unchangeable determination. The Dean of Faculty. — Yes, I cannot dispute as matter of construction that that is in the Confession; on the other hand, my Lord, I submit it is equaUy clear, as matter of construction, that the offer of salvation through repentance and faith is equally clear. Lord James of Hereford. — But to whom? May not that be an offer to those who are not predestined— who do not come within these few ? The Dean of Faculty. — It is to all who repent, my Lord. Lord James of Hereford. — But you must give some reasonable construction to the document, and it is contradictory.- The Lord Chancellor. — Those who are unchangeably lost never could repent, you know. The Dean of Faculty. — The words say so, and I feel the force of that con struction. My position about the matter is this, that there is in the Confession of Faith, and in that respect following the Bible — the two views. The Lord Chancellor. — I would rather not get into that region of the inquiry, because we really have nothing to do with it; I think from 1610 to 1619 the question was discussed in the Dutch Reformed Church, and they never did agree, because each of them maintained their views as being founded on the Bible. Fortunately, we have not got to go into that discussion ; all we have got to go into is, whether or not these two doc trines — by that Confession the earthly confession made by persons professing their particular views — are reconcilable with each other, so that the Arminians and Calvinists, instead of denouncing each other, as they did, ought to have shaken hands and agreed and said: 'We all mean the same thing.' The Dean of Faculty. — My Lord, the argument I offer with regard to that is this, that the Confession of Faith— neither the old Confession of Faith nor the Westminster Confession — is anything but a subordinate standard. The standard is the Scriptures, and neither Confession professes to be infallible, and therefore it leaves to the Church the interpretation of Scripture, the reconciling of the Con fession with Scripture, or where, in the opinion of the Church, the Confession deviates from Scripture, then the Church's own interpretation of Scripture. My Lords, the words in the two Confessions which disclaim the idea of infallibility your Lordships will find in the first place in Knox's Confession, the Scottish Con fession, page 78 E. The Lord Chancellor. — Knox's Con fession, you know, has been superseded as the test ; it is the Westminster Con fession with which we have to deal, because that is the Confession which is made the charter of the Free Church. The Dean of Faculty. — Yes ; but, my Lord, the Scottish Church had, before they adopted the Westminster, a Con fession which did not profess infallibiUty. The Lord Chancellor. — That may be, but what we have got to deal with is that Confession of Faith upon which this property was settled at the time of the Disruption. The Dean of Faculty. — That I agree to, my Lord ; but, on the other hand, if I show historically that the earlier Con fession disclaimed infallibility, it seems reasonable to suppose that the Scotch Church took the other, also keeping in view its disclaimer of infallibility. Your DEAN OF FACULTY'S SPEECH Lordships will find upon page 78, Print F, in the Scotch Confession, between D and E, the words — and I believe this disclaimer of infallibility in these two Confessions is peculiar to these two Confessions : ' Pro- ' testing, that gif any man will note in this ' oure Confessioun any article or sentence ' repugning to Godis holie word, that it ' wald pleis him of his gentilnes, and for ' Christiane cherities saik, to admoneise ' us of the samyn in writt ; and We of ' our honour and fidelitie do promeis unto ' him satisfactioun fra the mouth of God ' (that is fra His holie Scriptures,) or ellis ' reformatioun of that quhilk he sail prove ' to be amyss.' Now your Lordships will find in the Westminster Confession, Print F, page 155, Chapter XXXI. : ' Of Synods ' and Councils,' Article II. of Chapter XXXI. is as follows : ' As magistrates may ' lawfully call a Synod of Ministers and ' other fit persons, to consult and advise ' with about matters of religion ; so if * magistrates be open enemies to the ' Church, the ministers of Christ, of them- ' selves, by virtue of their office, or they, ' with other fit persons upon delegation ' from their Churches, may meet together ' in such Assemblies.' 'III. It belongeth ' to synods and councils ministerially to ' determine controversies of faith, and ' cases of conscience ; to set down rules ' and directions for the better ordering ' of the publick worship of God, and ' government of His Church ; to receive ' complaints in cases of mal-administration, ' and authoritatively determine the same : ' which decrees and determinations, if ' consonant to the word of God, are to ' be received with reverence and sub- ' mission, not only for their agreement ' with the word, but also for the power ' whereby they are made, as being an ' ordinance of God, appointed thereunto ' in His word.' 'IV. All synods or coun- ' oils since the apostles' times, whether ' general or particular, may err, and many ' have erred ; therefore they are not to be ' made the rule of faith or practice, but ' to be used as an help in both.' Now that is strictly applicable, I submit, to the Westminster Synod or Assembly, which was convened for the purpose of determin ing the doctrinal matters which were formulated in the Confession of Faith j 457 and the Confession of Faith, therefore, does not assume infallibility, and neces sarily therefore only professes to be a human interpretation of Scripture, and it may be found to deviate from Scripture, necessarily leaving to the Churches to determine for themselves the faith at those points at which the Confession is found in their view to be at variance with the language of Scripture. But then, my Lords, I apply a further test : Is this said to be a returning in 1892 to the recognised faith of the Presbyterian Church of Scotland? Your Lordships have reference in the papers to a book called 'The Sum of Saving Knowledge,' which embodies the views of the Church upon these matters, Print F, page 157. It is referred to as one of the Standards of the Church — not as one of the Stand ards, but as one of those treatises which, although not a Standard, has for genera tions been circulated and regarded as an expression of faith. Your Lordships find upon page 157, between C and D: 'The ' outward means and ordinances, for making ' men partakers of the covenant of grace, ' are so wisely dispensed, as that the elect ' shall be infallibly converted and saved ' by them ; and the reprobate, among whom 1 they are, not to be justly stumbled.' (Your Lordships will observe the anti thesis there is, not between elect and non- elect, but between elect and reprobate.) ' The means are especially these four. '1. The word of God. 2. The sacraments. ' 3. Kirk-government. 4. Prayer. In the ' word of God preached by sent messengers, ' the Lord makes offer of grace to all ' sinners, upon condition of faith in Jesus ' Christ; and whosoever do confess their * sin, accept of Christ offered, and submit ' themselves to His ordinances, He will ' have both them and their children re- ' ceived into the honour and privileges ' of the covenant of grace.' Then at the top of the next page the text in Scripture is quoted; and then at letter C: 'Here (after setting down the ' precious ransom of our Redemption by ' the sufferings of Christ, and the rich ' blessings purchased to us thereby, in the ' two former chapters) the Lord, in this ' chapter : 1. Maketh open offer of Christ ' and His grace, by proclamation of a free 458 HOUSE ' and gracious market of righteousness and ' salvation, to be had through Christ to ' every soul, without exception, that truly ' desires to be saved from sin and wrath : '"Ho! every one that thirsteth," saith ' he. 2. He inviteth all sinners, that ' for any reason stand at a distance ' from God, to come and take from Him ' riches of grace, running in Christ as a ' river, to wash away sin.' Lord James of Hereford. — I am afraid, Mr. Dean, I did not gather what is ' the Sum of Saving Knowledge.' What authority has it ? The Dean of Faculty. — Your Lordship will find it referred to in the Act of 1851, which is the publication of the Subordinate Standards of the Church by the Free Church in 1851, and at the top of page 94, Print A, it is described in this way — the number of documents are mentioned, and they say at letter C : ' These documents, ' then, together with a practical applioa- ' tion of the doctrine of the Confession, ' in the Sum of Saving Knowledge, — a ' valuable treatise, which, though without ' any express Act of Assembly, has for ' ages had its place among them, — have, ' ever since the era of the second Reforma- ' tion, constituted the authorised and au- ' thoritative symbolic books of the Church ' of Scotland.' And accordingly in the volume which contains the authorised Standards of the Free Church of Scotland ib is to be found. Lord James of Hereford. — At page 94 : ' These documents, then, together with ' a practical application of the doctrine of 1 the Confession, in the Sum of Saving ' Knowledge,' — this refers to it at C, — ' a valuable treatise, which, though with- ' out any express Act of Assembly, has ' for ages had its place among them.' The Dean of Faculty. — It had for ages been treated as a practical application of the doctrine, and accordingly, my Lord, in the volume which was published under the authority of the Act of 1851, and which has on its title page : ' The Sub- ' ordinate Standards and other Authorita- ' tive Documents of the Free Church of ' Scotland, published by Authority of the ' General Assembly,' and the date of the volume is 1851, 'The Sum of Saving ' Knowledge' is one of the documents OF LORDS embodied in that volume. Not only ' The ' Sum of Saving Knowledge,' but I sup pose no man ever entered a Presbyterian Church of Scotland without hearing that doctrine preached; the Act of 1892 did not originate that doctrine. ' The Sum of ' Saving Knowledge' had prevailed for ages, and the whole missionary effort of the Church of Scotland and of the Free Church and of the Free Church Missions throughout the world are all based on that part of Scripture, and therefore the Free Church was simply, as my learned friend Mr. Salvesen quite frankly admitted, doing what all Churches were finding themselves more or less under the neces sity of doing — meeting the difficulties which were entering into men's minds with regard to the requirements of a rigid and absolutely unmodified acceptance of all the views, however extreme, in any of these documents. As my learned friend Mr. Salvesen said, the Established Church of Scotland attempted it ; they, of course, were in the position that they are estab lished by statute on a basis which disables them, without the consent of the legisla ture, from making any alteration at all upon any of their Standards; but what was the use of the freedom which the Free Church purchased in 1843, if they- were not in a position as a Church — as a body whose duty it was to keep them selves in a proper relation with regard to all persons who wished to become members of their Church — if they were not entitled to adjust the Standards of their Church from time to time so as to meet a difficulty of that description? Above all, if they merely adjusted them in letter — in form and in letter — so as to make them conform to the doctrine which had been universally recognised for gener ations as the doctrine of the Presbyterian Church in Scotland. Lord James of Hereford. — Is your phrase ' to adjust the Standards ' a con vertible term with ' to change their doc- ' trines'? The Dean of Faculty. — I certainly claim for the Church, my Lord, the right to do that — change the doctrines. Lord James of Hereford. — Then we must go back ; it means you must also admit it to be a matter of degree ; you DEAN OF FACULTY'S could not change it from the general views of the Reformed Church to the views of the Church of Rome. Tho Lord Chancellor. — I rather think the Dean said you could. The Dean of Faculty. — I am afraid, my Lords The Lord Chancellor. — Your pro position went that length. The Dean of Faculty. — I cannot ad vance that further than I did before; I accept the view that this Church tumbles down and vanishes if it abandons the principle that Christ is the Head of the Church, and His Scriptures their only Standard. Then I think The Lord Chancellor. — I think you said in answer to me, Mr. Dean, — I do not want to bind you to it a bit, because these questions put in an interlocutory sort of way ought not to bind you if you do not adhere to them. The Dean of Faculty. — I endeavour to answer as well as I can. The Lord Chancellor. — I think I did ask you whether they might not next day have altered their faith to the faith of the Church of Rome, and you said, Yes, provided the Church of Rome recognised Christ as the Head of the Church ; I suspect you would find that no member of the Church of Rome would deny that Christ was the Head of the Church. The Dean of Faculty. — 'Christ the ' Head of the Church, and the Scriptures ' their only Standard ' ; I hesitated to give a categorical answer, my Lord, for this reason, that I frankly admit I do not profess to be so minutely acquainted with all the minutiw, of the doctrines of the Church of Rome. I have always under stood that the Church of Rome refuse to take their stand upon the Scriptures as the only Standard ; they take their stand not only upon the Scriptures, but upon tradition and many other things, and I could only answer the question, therefore, hypothetically. I think if the Church of Rome will accept that, then it seems to me, if that is an exhaustive statement of the position of the Church of Rome with regard to its faith and its Standards, then there is nothing, as far as I can see, to prevent the Free Church uniting with them; but short of abandoning that, — SPEECH 459 the abandonment of which would mean extinction, — short of the abandonment of that, I do riaim for the Church the power to modify 'ts doctrine in a constitutional way. Lord James of Hereford. — I do not say ' modify,' but ' change.' The Dean of Faculty. — I said modifi cation, but I meant change. Lord James of Hereford. — It is a matter of degree, too ; you must go to the extent of change. The Dean of Faculty. — I meant, my Lord, not putting doctrine away altogether, but I meant change, my Lord, and accord ingly I take the word. Lord James of Hereford. — To substi tuting one doctrine for another. The Dean of Faculty. — I meant not putting away doctrine altogether, but modifying it in the sense of substituting something for something else which existed. Lord James of Hereford. — Modifying may be reasonable. The Lord Chancellor. — On this part of the question, what do you suppose is the meaning of the question put to pro bationers and deacons, and others, I think : ' Do you abjure and reject, among others, ' the Arminian heresy ? ' What do you suppose that refers to ? The Dean of Faculty. — I think, my Lord, that would be a denial of election, and there is nothing in the formula of the Free Church which denies election ; they combine always with the free offer of salvation the operation of God's Grace by way of election, but they do extend the election doctrine so as to make it applicable to all those who repent and believe. Lord James of Hereford. — Mr. Dean, you said to me some little time ago, when I asked you if you contended that the statements in the Act of 1892 did not differ from the Confession of Faith, — you stated your view was that the statements of Faith in that Act of 1892, the Declar atory Act, did not differ from those stated in the Confession of Faith. If this last argument of yours is correct it is im material to you whether they agree or differ. The Dean of Faculty, — I must meet 460 HOUSE OF LORDS it both ways, my Lord ; I say, in fact, they do not, but if they do, then they have power ; that is my position. I am coming in a few minutes to deal with the question of whether they have power to do that. Lord James of Hereford. — If they do not differ ¦ The Dean of Faculty. — Of course, if they do not differ there is no question ; my contention is that they merely stif fened, so to speak, the expressions ; they do not put anything into the Confession. Lord James of Hereford. — I think you must admit they do differ from some parts of the faith, although they may not differ from other parts. The Dean of Faculty. — But if they have to deal with a doctrine which covers both, both the doctrine of election and the doctrine of free offer; if the document contains both human theses — in the first place it is fallible, but after all it is only an echo of the Scriptures in that respect, because election undoubtedly might be founded on Scripture. The Lord Chancellor. — I do not want to be in a position to have to argue that question ; it is a question as between those two human documents as to whether they can reconcUe them or not. If you want to prove that the Holy Scriptures justify that Article by anything they contain, I decline myself to deal with such matters here. The Dean of Faculty. — My answer with regard to the Act of 1892 is that it merely gave formal expression — that it was the duty of the Church in the cir cumstances finding that the existing formulas were bars in the way of the Church doing her duty ; it was her duty to consider her situation relatively to that difficulty, and to make it plain what, in the estimation of the Church, was their interpretation of those phrases which to many minds appear contradictory and ambiguous ; and undoubtedly the Re spondents stand by the Act of 1892, whatever are the consequences, and say that that is the doctrine which they preach, and accordingly they invite people to join them on that basis. The Lord Chancellor. — How came that Act of 1892 to be passed? Was it in view of union ? The Dean of Faculty— No, my Lord, I do not think it was ; I am told it was not. My learned friend Mr. Salvesen explains that ; he says the Estabhshed Church were doing the same thiDg. They found people were so staggered by the demand for absolute acceptance of matters which appeared to them contradictory and ambiguous that they required explanations, and there was a sinular movement operat ing in all the Churches. Mr. Johnston. — Mr. Dean, the move ment in the Established Church was after 1900 — after the union. The Dean of Faculty. — I think it was before that ; there were proposals again and again in the Assembly of the Established Church ; there were two parties there. There was a party in the Established Church. The Lord Chancellor. — What I mean was, that it appears to me that this Act of 1892 was passed in view of a possible union, so as to get rid of the difficulties of making the two Churches unite together by reason of these formulas. The Dean of Faculty. — AU I can say, my Lord, with regard to that is, that my instructions are that that was not so ; that it was part of a general movement which was operating throughout the Churches of the world, to endeavour as far as possible to meet those who were proposing to join the Churches in regard to matters which were causing great difficulty. Now, my Lord, I come to the 1900 documents Lord James of Hereford. — Before doing that, Mr. Dean, would you just tell me your view of the effect of the Act of 1894, on page 138? The Dean of Faculty. — That clearly makes it not obhgatory if any person chooses to come into the Church on the basis of the most rigid interpretation of the old documents, they may come ; they wiU not be rejected because they prefer to come in on the basis of the older and more rigid interpretation ; it is merely that it is not compulsory. Lord James of Hereford. — I do not quite follow. The Lord Chancellor. — 194 ? Lord James of Hereford. — Page 138. It is the Act of 1894 ; I stUl do not quite follow. DEAN OF FACULTY'S SPEECH 461 The Dean of Faculty. — Now, my Lord, the 1900 documents I can deal with very shortly, because the sting of them is said to be Lord James of Hereford. — You wUl excuse me, but why was that Act of 1894 passed? I rather think it is of rather more importance than anything you have yet dealt with, — the Act of 1894, at page 138. Was there any movement — any persons objecting to the Act of 1892 ? The Dean of Faculty. — That is the Declaratory Act of 1892: 'Whereas the ' Declaratory Act 1892 was passed to ' remove difficulties and scruples which ' had been felt by some in reference ' to the declaration of belief required from ' persons who receive licence or are ad- ' mitted to office in this Church, the ' Assembly hereby declare that the ' statements of doctrine contained in the ' said Act are not thereby imposed upon ' any of the Church's office-bearers as ' part of the Standards of the Church ; ' but that those who are licensed or ' ordained to office in this Church, in ' answering the questions, and subscribing ' the Formula, are entitled to do so in ' view of the said Declaratory Act.' I should think it quite evident from the terms of the Act that some persons pre ferred the old rigid Standards, and others preferred the new more libera 1 Standards, and that this is an Act for the purpose of giving the choice of either the one basis or the other. Some people are fond of bondage, my Lord, and it was evidently to enable those who preferred to be bound tightly to be still put under fetters. Lord James of Hereford. — It is not a question of being bound tightly ; it is between the Confession of Faith and what some people have contended was the new faith of 1892. The Dean of Faculty. — I do not admit that the Act of 1892 was a change of faith at all. Lord James of Hereford.— But some people contended it, you know. The Lord Chancellor. — You said you had the right to do it. Lord James of Hereford.— You said quacunque via you could if you liked. The Dean of Faculty.— I pass now to the documents of 1900, Print A, page 164, and I can deal with them very shortly, because it is the Act of 1892 which is the chief complaint with regard to that. There the first question is — there never is any change upon that, which is the real ques tion : ' Do you believe the Scriptures of ' the Old and New Testaments to be the ' Word of God, and the only rule of faith 1 and hfe ' (that always remains as the sheet anchor). Then the next question is changed : ' Do you sincerely own and believe the Doctrine of this Church, set ' forth in the Confession of Faith approven ' by Acts of General Synods and Assem- ' blies ; do you acknowledge the said ' doctrine as expressing the sense in which ' you understand the Holy Scriptures ; ' and will you constantly maintain and ' defend the same, and the purity of wor- ' ship in accordance therewith ? ' Now I think my learned friend Mr. Salvesen very frankly admitted that if it was not for the omission of the word ' former ' before ' General Synods and Assemblies ' it would not be very easy to point out much difference between that and the earlier question. I should deal with that, in the first place, because I think it per fectly clear that it means exactly the same as if ' former ' were in, because your Lord ship will see ' approven by Acts of General ' Synods and Assemblies.' Now this is the United Church. By the time this Act was passed a General Synod had ceased to exist; it necessarily, therefore, referred to approval in the past, because it required the approval of a body which had ceased to exist. Therefore : ' Do you ' sincerely own and believe the Doctrine 1 of this Church, set forth in the Confes- ' sion of Faith approven by Acts of ' General Synods and Assemblies ; do you ' acknowledge the said doctrine as express- ' ing the sense in which you understand ' the Holy Scriptures ' ; and my learned friends do not seem to found so much on the terms of the question as upon the fact that the Preamble authorises, at letter C : ' that probationers are entitled to take ' advantage of any of these Acts.' Now, my Lord, what are the Acts which are there mentioned ? There is, in the first place, the Act of 1647, by which the Church approved of the Confession of Faith subject to qualifications. Then 462 The Lord Chancellor. — Do you mean that those words are in ? The Dean of Faculty. — No. The Lord Chancellor. — That is your difficulty. The Dean of Faculty. — I am merely describing the Act; it is unquestionably the fact, however, that that was so ; the terms of the Act plainly do so ; ' Act XII. ' 1846, of the Free Church of Scotland' ; that is the Act fixing the Formula soon after the Disruption, the ' Declaratory Act ' 1879, of the United Presbyterian ' Church.' The Lord Chancellor. — That is a different Church. The Dean of Faculty. — I will show that immediately; 'And Act XII. 1892, ' with relative Act of 1894, of the Free ' Church ; and that probationers are en- ' titled to take advantage of any of these ' Acts.' Now, all these Acts have been under your Lordships' notice in the course of my argument, except the Declaratory Act of 1879 of the United Presbyterian Church. Now your Lordships will find that on page 182. The Lord Chancellor. — Of the same Print ? The Dean of Faculty. — Yes. If your Lordships have again to refer to this I can give your Lordships the pages in my print at which this is mentioned. It is at page 182. The Lord Chancellor. — This is the Presbyterian Church. The Dean of Faculty. — This is the United Presbyterian Church : ' Whereas 'the Formula in which the Subordinate ' Standards of this Church are accepted ' (it was in 1879 that they passed this Act, thirteen years before the other Act was passed) 'requires assent to them as an ' exhibition of the sense in which the ' Scriptures are understood : whereas these ' Standards, being of human composition, ' are necessarily imperfect, and the Church ' has aheady allowed exception to be taken ' to their teaching, or supposed teaching, ' on one important subject; and whereas ' there are other subjects in regard to which ' it has been found desirable to set forth ' more fully and clearly the view which ' the Synod takes of the teaching of Holy ' Scripture : Therefore the Synod hereby HOUSE OF LORDS ' declares as follows : — 1. That in regard ' to the doctrine of Redemption as taught ' in the Standards, and in consistency ' therewith, the love of God to all man- ' kind, His gift of His Son to be the 'propitiation for the sins of the whole ' world, and the free offer of salvation to ' men without distinction on the ground of ' Christ's perfect sacrifice, are matters ' which have been, and continue to be, ' regarded by this Church as vital in the ' system of Gospel truth, and to which due ' prominence ought ever to be given. 2. ' That the doctrine of the Divine decrees, ' including the doctrine of election to 1 Eternal Life, is held in connection and ' harmony with the truth that God is not ' willing that any should perish, but that ' all should come to repentance, and that ' He has provided a salvation sufficient for ' all, adapted to all, and offered to all in 1 the Gospel ; and also with the responsi- ' bility of every man for his dealing with ' the free and unrestricted offer of Eternal ' Life,' there they undoubtedly formulate the two doctrines — both election and the other. Lord James of Hereford. — And directly in contradiction of the preordination of the one portion of the Confession of Faith. The Dean of Faculty. — No, they say 'including the doctrine of election to ' Eternal Life.' Lord James of Hereford. — Yes, but those that are unchangeable, preordained, cannot be governed by that. The Dean of Faculty. — It has to be taken along with the other passages in the Confession. Lord James of Hereford. — I said ' one ' portion.' The Dean of Faculty. — I do not for one moment say I am able to reconcile all the portions of the Confession of Faith ; I do not attempt to reconcile all the state ments in the Confession of Faith. I think the two doctrines are both enunciated there. And I do not know whether any other finite mind can reconcile them, but I quite acknowledge that mine is too limited in range to be able to do so. The Lord Chancellor. — Those are large words. I should have thought the simpler proposition was that the two con tradict each other ; that is aU. DEAN OF FACULTY'S The Dean of Faculty. — I used the form I did, my Lord, because in connection with these matters one sees in treatises on the subject that it is always spoken of as being reconcilable, but the reconciliation is not patent to a finite mind. The Lord Chancellor. — Some of the most finite and most subtle minds, as I pointed out, certainly from 1610 to 1619, were engaged in fighting that question, and they did not come to the conclusion that the one was reconcilable with the other. The Dean of Faculty. — It has always been termed a mystery, and that means something beyond human comprehension. The Lord Chancellor. — Yes, but they did not so treat it, nor did those who adopted it as a rule of faith so treat it; they do not say, 'It is something we do ' not understand, and therefore we cannot ' agree to differ.' The Dean of Faculty. — The Confession calls it a mystery, my Lord ; the Con fession uses the word mystery. The Lord Chancellor. — I am talking of that particular third clause of the Con fession. The Dean of Faculty. — There is nothing, as far as I know, in the following articles until we come to Article 5, which may be read : ' That in regard to the ' doctrine of the Civil Magistrate, and his ' authority and duty in the sphere . of ' religion, as taught in the Standards, this ' Church holds that the Lord Jesus Christ ' is the only King and Head of the Church, ' and " Head over all things to the Church, ' " which is His Body " ; disapproves of all ' compulsory or persecuting and intolerant ' principles in religion-; and declares, as ' hitherto, that she does not require ' approval of anything in her Standards ' that teaches, or may be supposed to ' teach, such principles.' ' 6. That Christ ' has laid it as a permanent and universal ' obligation upon His Church,' and so on. I beg pardon, my Lord, that, I think, really exhausts what this does, but there was a document I think I ought to bring under your Lordships' notice. I see it is men tioned in the Preamble to the Act upon page 164. I only read the first branch of the Preamble, and I should have read the section also at letter C : ' It is hereby also ' declared, that the documents referred to SPEECH 4^3 ' in question No. 4, and there named for ' brevity the Claim of Right of 1842, the ' Protest of 1843, and the Basis of Union ' of 1847, are respectively "the Claim, ' "Declaration, and Protest," of 1842 and ' Protest of 1843,' and the last line : 'and ' the "Basis of Union adopted by the ' " Synod of the United Presbyterian ' "Church on 13th May 1847"'; so that the Basis of Union of the United Presby terian Church is in that way brought in along with these other Acts, as in view of the person answering the question. Then at page 180 your Lordship will find the Basis of Union, and I look at that for a minute for the purpose of saying that apparently there was nothing in that which effects any change whatever ; that was merely introduced as being the Stand ards of the United Presbyterian Church side by side with the Acts of the Free Church relating to the matter. This is the document which fixes the basis upon which the Secession Church and the Rehef Church united in 1847, and so became the United Presbyterian Church. In short, this is the fundamental Standard of the United Presbyterian Church : ' That the word of God contained in the ' Scriptures of the Old and New Testaments ' is the only rule of Faith and Practice. ' 2. That the Westminster Confession of ' Faith and the Larger and Shorter Cate- ' chisms are the confession and catechisms ' of this Church, and contain the author- ' ised exhibition of the sense in which we ' understand the Holy Scriptures ; it being ' always understood that we do not approve ' of anything in these documents which ' teaches, or may be supposed to teach, ' compulsory or persecuting and intolerant 1 principles in religion'; and then Article 10 The Lord Chancellor. — I suppose that is intended to refer to the Article of Faith which speaks of the necessity of the civil magistrates suppressing heresies. The Dean of Faculty. — No doubt that is with regard to the functions of the civil magistrate : '10. That the respective ' bodies of which this Church is composed, ' without requiring from each other any ' approval of the steps of procedure by ' their fathers, or interfering with the 464 HOUSE ' rights of private judgment in reference ' to these, unite in regarding as stUl valid ' the reasons of which they have hitherto ' maintained their state of secession and ' separation from the Judicatories of the ' Established Church, as expressed in the ' authorised documents of the respective ' bodies, and in maintaining the lawfulness ' and obligation of separation from ecclesi- ' astical bodies in which dangerous error ' is tolerated, or the discipline of the ' Church or the rights of her ministers ' or members are disregarded.' So that the United Presbyterian Church in regard to doctrine was undoubtedly, by this Act of 1879, — I do not say they were different before, but by this Act of 1879, not exactly — not substantially different, I think, from the position which was formulated in the Act of 1892 of the Free Church. Then their position with regard to the civil magistrate, as far as their Standards are concerned, was the same ; there never was at any time any imposition upon an office bearer of the United Presbyterian Church any view as to Voluntarism imposed upon them as a Standard. And accordingly, in the United Presbyterian Church, plenty of people in the United Presbyterian Church are in favour of establishment, but much the larger number are against, undoubtedly, and the Church has fre quently passed resolutions in favour of disestablishment, but that did not in the least affect the unity of the Church, or the unity of the office-bearers of the Church, because there was nothing in the Standards of the United Presbyterian Church which ever imposed any particular view about Voluntarism upon any of the office-bearers, and accordingly there was in that way diversity of view and complete freedom of opinion upon that matter. Now, my Lords, in these circumstances I submit that there was really nothing in the Union of 1900 which to any extent involved a departure from the principles of the Church at all. It was simply giving effect to a doctrine which I suppose is held by all Churches, that consistently with principle unity is a great aid to the efficacious discharge of their duties as a Church; and that taking the standards of the two Churches and putting them in juxtaposition, there was nothing in regard OF LORDS to their general articles of faith which could be said even to differentiate the one from the other in the least, and that with regard to the relations of the civil magis trate to the Church there was nothing in the standards of either Church which pre cluded the union in this country any more than in the colonies. But, my Lords, I should now like to call attention, and I think this is the last thing I am going to trouble your Lordships with, — with regard to the power which the Church had. The first day when I was opening my argument I brought under your Lordships' notice a considerable number of documents about that; there was one which I purposely held over to be dealt with at a later stage, namely, the Book of Discipline. Your Lordships have again and again seen that referred to; its history, indeed, is demonstrated by refer ence to the Acts of Assembly which bear upon it; next to the adoption by the Church of the Scotch Confession, Knox's Confession, it is the oldest of the Church Standards. Your Lordships will, of course, keep in view what I formerly said, that it was a contentious document in this sense, that the party in the Church who became the Free Church maintained that that was a standard obligatory, in respect of the inherent right of the Church, and alto gether irrespective of State recognition. The other party (those who remained in the Established Church) contended that to make it obligatory it required State recognition, which it did not receive. Of course, the Free Church carried it with it as one of their Standards, and accordingly referred to it again and again as one of their Standards. Your Lordships will find that document upon page 100, at Print F, and it is a comprehensive statement of the constitution of the Church. It is a long document, but I may say I shall read as little of it as I can, — merely those parts which seem to me necessary to the remark I am going to make upon it. In the first place, the title there is now established by the Acts of the Assembly which I referred to. Your Lordships will find it upon page 20, letter D, and page 22, D (you wUl see in the margin opposite the title the accuracy of the title acknowledged in the Acts of Assembly). DEAN The Lord Chief Justice. — Also of F. The Dean of Faculty. — Yes, page 20, at letter D: 'prescribed according to the ' rule of God's Word, in the Book of ' Policie and Discipline, agreed upon in ' the Assembly 1578, and insert in the ' register 1581.' Your Lordship will re member my pointing out the various Acts which requhed subscription of the Book of Discipline by the office-bearers of the Church from time to time. Now, my Lord, upon paged 00 we find, as one would expect, spiritual jurisdiction taken as the rock upon which the Church is to stand. The first Article says : ' The ' Kirk of God is sumtymes largelie takin ' for all them that professe the Evangill of ' Jesus Christ, and so it is a companie ' and fellowship not onely of the Godlie, ' but also of hypocrites professing alwayis ' outwardlie ane true religion. Uther- ' tymes it is takin for the Godlie and elect ' onlie, and sumtymes for them that exer- ' cise spiritual function amongis the con- ' gregation of them that profess the truth. ' 2. The Kirke in this last sense ' (which is, of course, the sense in which we are deal ing with it) ' hes a certaine power grantit ' be God, according to the quhUk it uses ' a proper jurisdiction and govern ement, ' exerciseit to the comfort of the hole ' Kirk. This power ecclesiasticall is an ' authoritie grantit be God the Father, ' throw the Mediator Jesus Christ, untoe ' His Kirk gatherit, and having the ground ' in the Word of God ; to be put in exe- ' cution be them, unto quhom the spirituall ' governement of the Kirk be lawful call- ' ing is committit. 3. The policie of the ' Kirk flowing from this power, is an order ' or forme of spirituall governement, quhilk ' is exercisit be the members appoyntit ' thereto be the Word of God : And there- 1 fore is gevin immediatly to the office- ' beararis, bequhom it is exercisit to the ' weile of the hole bodie.' Then at letter D : ' This power and policie ecclesiasticall ' is different and distinct in the awin ' nature from that power and policie quilk ' is callit the civill power, and appertenis ' to the civill government of the common 'welth.' Then at letter E : '5. For this ' power ecclesiasticall flows immediatlie ' from God and the Mediator, Jesus Christ, • and is spirituall, not having a temporall 2 G OF FACULTY'S SPEECH 465 ' heid on earth, bot onlie Christ, the onlie ' spirituall King and Governour of His ' Kirke.' Then the same idea is again pre sented at the bottom of the page at letter G : '8. It is proper to kings, princes, and ' magistrates to be callit lordis and domin- ' atours over their subjectis whom they ' govern civilly, bot it is proper to Christ ' onlie to be callit Lord and Master in tho ' spirituall governement of the Kirk, and ' all uthers that beiris office therein auoht ' not to usurp dominoun therein.' Then if your Lordships will be good enough to look at page 103 in the second chapter, the second article, it says : ' Againe the haill ' policie of the Kirk consisteth in three ' things, viz. in doctrme, discipline, and ' distribution. With doctrine is annexit ' the administratioun of Sacramentis. And ' according to the pairtes of this division, ' arisis a threfold sort of office-beiraris in ' the Kirk, to wit, ministeris or preachers, ' eldaris or governours, and deaconis or ' distrubuteris.' I just in passing may point out that at page 105, letter B, there is a clause the Church always founded upon as justifying their attitude as to non intrusion : ' In this Ordinar election ' (this is speaking of how the persons who bare ecclesiastical functions are admitted to their offices) ' it is to be eschewit, that na ' person be intrusit in ony of the officis of ' the Kirke, contrar to the will of the con- ' gregation to whome they ar appointed, or ' without the voce of the elderschip.' Then upon page 109 your Lordships have the different Courts of the Church set out. Lord Davey. — Then the Second Buik of Discipline was not acknowledged as a Standard of the Estabhshed Church, was it, because it had not been sanctioned by Parliament ? The Dean of Faculty. — That was the great bone of contention, my Lord. Lord Davey. — Then God forbid that I should raise it here. The Dean of Faculty. — The one party said : ' We do not need the recognition of ' the State ; the inherent right of the ' Church enables them to adopt this.' At page 109, letter D, it says : ' Assemblees ' ar of four sortis. For aither ar they of ' particular Kirkes and congregation ane ¦* or ma, or of a province, or of ane haUl 466 ' nation, or of all and divers nations pro- ' fessing ane Jesus Christ.' In modern phraseology the first would be the Kirk- Session, the second would be the Presby tery, and the third the General Assembly of the Scotch Church. Then between D and E : ' All the ecclesiasticall assemblies ' have power to convene lawfuUy togidder ' for treating of things concerning the ' Kirk, and perteining to their charge. ' They have power to appoynt tymes and ' places to that effect ; and at ane meiting ' to appoint the dyet, time, and place for ' aneuther.' Now, my Lord, that relates to a matter which in adopting the West minster Confession they qualified. Your Lordships will remember that in the Act adopting the Westminster Confession in 1647, I think it was, at the beginning of Print A, they approved of the Confession subject to the qualification on page 13 immediately below B. They had ex pressed their approval of the Confession, and they say : ' But, lest our intention ' and meaning be in some particulars mis- ' understood, it is hereby expressly de- ' clared and provided, That the not ' mentioning in this Confession the several ' sorts of ecclesiastical officers and Assem- ' blies shall be no prejudice to the truth of ' Christ in these particulars, to be ex- ' pressed fully in the Directory of Govern- ' ment. It is further declared, That the ' Assembly understandeth some parts of ' the second Article of the 31 Chapter ' only of Kirks not settled, or constituted ' in point of government : And that ' although, in such Kirks, a synod of ' Ministers, and other fit persons, may be ' called by the magistrates' authority and ' nomination, without any other call, to ' consult and advise with about matters of ' religion ; and although, likewise, the ' Ministers of Christ, without delegation ' from their Churches, may of themselves, ' and by virtue of their office, meet ' together synodically in such Kirks not ' yet constituted, yet neither of these ' ought to be done in Kirks constituted ' and settled.' Now that was because there was a conflict in that respect between the Book of Discipline and the Westminster Confession ; the Westminster Confession attributed to the civil magis trate the power of convening synods. HOUSE OF LORDS Well, the Scotch Church was prepared to accept that as applicable to Churches not constituted and settled, but they excluded that part of the Westminster Confession, thereby standing by the rule as laid down. If your Lordships will look at page 13 continuing, the reason is stated at letter F : ' it being also free to assemble together ' synodically, as well pro re nata as at ' the ordinary times, upon delegation from ' the Churches, by the intrinsical power ' received from Christ.' They held they had that power apart from the State altogether. Lord James of Hereford. — In the Established Church of Scotland who summons the Synods ? The Dean of Faculty. — They adjourn from one date to another. The Assembly could undoubtedly direct the Synod to meet on a particular date. The Assembly, which is the Supreme Court of the Church, adjourns from day to day, but no doubt the Commissioner for the Crown, who always attends the General Assembly, has always claimed the power to dissolve the Assembly if he thought proper. In tem pestuous days the Commissioner did dissolve the Assembly frequently. Some times the Assembly did not assent to that and continued sitting, but I think un doubtedly the theory of the Established Church is that they meet by Royal Authority. Lord James of Hereford. — The Free Church would never, after 1843, have acknowledged the right of the State in any way to interfere. The Dean of Faculty. — Never; of course, the whole Lord James of Hereford. — But this is spiritual superintendence. The Dean of Faculty. — The Assembly of the Free Church is entirely the act of the Church, and there is no controlling power at all so far as they are concerned. Then, my Lord, at the bottom of page 109 of print F, if your Lordships will be good enough to look at the Article that comes there, it is important, I think. The sixth Article is : ' The finall end of all ' Assembhes is first to keip the religion ' and doctrine in puritie, without error ' and corruption. Next, to keip cumeli- ' ness and guid ordor in the Kirk. 7. For DEAN OF FACULTY'S ' this orders cause they may make certane ' rewls and constitutions apperteining to ' the guid behaviour of all the members of ' the Kirk in thair vocation.' Then '8. ' They have power also to abrogate and ' abolish all statutes and ordinances con- ' cerning ecclesiasticall matters that are ' found noysome and unprofitable and ' agrie not with the tyme, or ar abusit be ' the people ' ; certainly formulating a very extensive power on the part of the Church. Lord Robertson. — But, Dean of Faculty, as this is a very crucial part of your argu ment I should like to put this to you : The eighth proposition on page 110, at letter B, according to the scheme of this Article, applies to aU the four kinds of Assemblies. I am putting to you a diffi culty which I think you will find to be rather grave. The four Assemblies are enumerated in Article 2, and as you pro ceed up to and including Article 8, I do not find any distribution of those powers, distinguishing what may be exer cised by the kirk-sessions, for instance, and what may be exercised by the General Assembly. Then going further on (for I have read through the whole of this chapter), when you come to doctrine it would appear that that is to be dealt with only by what are called ' a more general ' kind of Assembly,' which, apparently, is only called by Emperors or persons of that magnitude, and therefore I suggest to you, first, that your argument on Article 8 proves too much, because it would ascribe a power of dealing with doctrine to kirk- sessions and presbyteries as much as to assemblies ; and secondly, that in the latter part of this chapter it looks as if alterations of doctrine were relegated to something so uncommon and infrequent that they do not enter into the workaday regime of the Scotch Church. The Lord Chancellor. — I think that !s a problem you shall have time to con sider, Mr. Dean. Lord James of Hereford. — And digest. SPEECH 467 (After a short Adjournment.) The Dean of Faculty. — With your Lordships' permission I would call atten- ion a little more particularly to what is certainly a little more complicated chapter in this Book of Discipline, Chapter VIII., for the purpose of submitting to your Lord ships what my views are with regard to the interpretation. The Lord Chancellor. — What par ticular page are you referring to. The Dean of Faculty. — The Book of Discipline, page 109 of print F, where it deals with the different Orders in the Church and the different Assemblies in the Church, and at Article 2 on page 109, letter D, it speaks of four sorts of Assem blies : ' Assemblis ar of four sortis. For ' aither are they of particular kirks and ' congregations ane or ma, or of a province, ' or of ane haill nation, or of all and ' divers nations professing one Jesus ' Christ.' Now there was a certain amount of confusion introduced by that Article, from the fact that most writers upon this book have recognised that there is an omission from that description of one species of Assembly with which we are quite familiar in modern days, namely, a presbytery. There are four Assemblies referred to there. The particular kirk and congregation, of course, means the parish, one parish. Lord Macnaghten. — Then what is the meaning of those words afterwards, ' ain or ma ' ; would not that include a presbytery ? The Dean of Faculty. — That refers, my Lord, to something which is like a presbytery which is in Article 10, but which could not be said to be quite cor responding to our modern idea of a presbytery. Lord Davey. — I thought you told us a province corresponded with a presbytery. The Dean of Faculty. — No, my Lord, I think a synod. A province is, for ex ample, the Synod of Moray and the Synod of Edinburgh. Lord Robertson. — These things nowa days are called provincial synods, but whether that is referred to here or not is a question. The Dean of Faculty. — From the de scription given of them in the body of the book, I think it is more like that than being a presbytery. They are somewhat akin to a presbytery in Article 10, although I quite concede it does not altogether 468 HOUSE OF LORDS correspond to our modern presbytery : ' For aither are they of particular kirks ' and congregations ain or ma, or of a pro- ' vince of ane haill nation, or of all and ' divers nations professing one Jesu s Christ. ' I do not need to read again Article 3, which deals with their right of assem bling. Article 4 deals with the rule of the Moderator being appointed in each Assembly. Then by Article 5 : ' Every ' Assembly has power to send furth from ' them of their awin number ane or mo ' visitours to sie how all things beis rewlit ' in the bounds of their jurisdiction.' Then Article 6 : 'The finall end of all ' Assemblies is first to keep the religion ' and doctrine in puritie, without error ' and corruption. Next to keep cumelines ' and gude ordor in the Kirk.' Then I pass over the one which I have read, which is with regard to the power, because I am dealing now with the constitution of the bodies. The Lord Chancellor. — Where is that last passage you read ? The Dean of Faculty. — At the bottom of page 109, my Lord, the sixth Article : ' The finall end of all Assemblies is first to ' keep the religion and doctrine in puritie, ' without error and corruption. Next to ' keip cumelines and gude ordor in the 'Kirk.' 7. 'For this orders cause they ' may make certane rewls and constitu- ' tions apperteining to the gude behaviour ' of all the members of the Kirk in their ' vocation. 8. They have power also to ' abrogate and abolish all statutes and ' ordinances concerning ecclesiastical ' matters that are found noysome and un- ' profitable, and agrie not with the tyme ' or ar abusit be the people.' The Lord Chancellor. — ' Statutes and ' ordinances ' there, I suppose, mean what the words sigmfy; they would not in clude doctrine. The Dean of Faculty. — I am going to contend, in fact, that they do ; I am going to contend that statutes, at any rate, of the Lord Davey. — I should have thought 1 statutes and ordinances ' there were what we should now call 'rules and regulations.' The Lord Chancellor. — Yes, some thing of that sort. Lord Davey. — And I should have doubted whether ecclesiastical matters in this context The Dean of Faculty. — Anything the Church itself had done, but of course strictly limited within its spiritual domain. Lord Robertson. — Would the Church, especially at this time of day, have thought it a ground for abolishing a doctrine that it agreed not with the time ? The Dean of Faculty. — It is difficult to hear, my Lord. I am going to contend that that is an expression of full power, and that the Church is supreme to regu late its own affairs. The Lord Chancellor. — Would you think that any Church would have thought, in ruling their own affairs, to use your own phase, it was at liberty to alter or change any Christian doctrine ? The Dean of Faculty. — I am going to speak to that almost immediately ; but my proposition about that is that the position of this Church is that it has an inherent power to adopt its own doctrine at the beginning, and to regulate its own doctrine. Lord Robertson. — Such as fast days, and things of that kind. Do not you think it rather refers to fast days or fairs, or something of that kind ? The Dean of Faculty. — I do not think so, my Lord; all this seems to me to be involved in the spiritual independ ence of the Church. Lord Davey. — One is entitled to look, you know, to the times at which the Book of Discipline was issued in 1578, and to try to ascertain the meaning of it, and there were fast days and all sorts of things still observed in Scotland in those days. The Dean of Faculty. — Yes. But the question was whether the Free Church did not carry this into their constitution for the purpose of exercising, free from the State altogether, all the powers of a completely independent jurisdiction. The Lord Chancellor. — I should have thought the very last thing they would have said or contended for was that any one could change the doctrine, the doctrine would be that which they would say would be the one faith as to which no alteration was permissible. The Dean of Faculty. — The Church, my Lord, in forming itself as a voluntary DEAN OF FACULTY'S association, selected this doctrine : it chose what was to be its doctrine. The Lord Chancellor. — I think there is a fallacy lurking there — 'chose for itself,' — you mean, they chose for themselves to give certain forms and expressions to what their doctrine was ; but surely they con tended, as every Church has contended, that their doctrine is the true doctrine derived from the Divine authority. Lord James of Hereford. — And immut able. The Lord Chancellor. — Certainly. The Dean of Faculty. — Doctrine means interpretation of the Scriptures, my Lord ; I certainly do not admit that a Church, a perfectly independent Church, did not contain within itself a power of adopting any interpretation of the Scrip tures which from time to time appeared to them to be more consonant with truth than that which had previously prevailed. Lord Davey. — In one sense, you know, that is a truism of every voluntary associa tion : every voluntary association can do that quite independent of any civil control by any of the Courts in the kingdom ; so that does not carry us very far. The Dean of Faculty. — It carries me all the way I want to go, my Lord ; that is all the way I want to go, that this body had that power. Lrad Davey. — No. The Dean of Faculty. — And that every man who joined it knew they had that power. Lord Davey. — If you come to that view of the cases which have been decided on religious associations ¦ The Dean of Faculty. — Will your Lordship pardon me for reverting to the point to which my attention was directed by Lord Robertson just immediately before the adjournment, which relates to the various Assemblies which are mentioned here, and their respective powers ; I under take to return to the question of the limit of the power which is conferred. My Lord, in the tenth Article they say : ' The ' first kynde and sort of assemblies, although ' they be within particular congregations, ' yet they exeree the power, authoritie, ' and jurisdiction of the kirk with mutuall ' consent, and therefore beir sumtyme the ' name of the kirk.' (Of course, that means SPEECH 469 the parish in our modern expression.) ' When we speik of the elders of the ' particular congregations, we mein not ' that every particular parish kirk can, ' or may have their awin particular elder- ' schips, specially to land wart, bot we ' think thrie or four, mae or fewar par- ' ticular kirks, may have ane common ' elderschip to them all, to judge their ' ecclesiasticall causes ' (now that is, no doubt, a rough description, but not very unlike the modern Presbytery, which con sists of a few parishes congregated to gether), 'albeit this is meit that some ' of the elders be chosen out of every ' particular congregation, to concurre with ' the rest of their brethren in the common ' assemblie, and to take up the delations ' of offences within their awin kirks, and ' bring them to the Assemblie. This we ' gather of the practise of the primitive ' kirk, where elders or colleges of seniors ' were constitute in cities and famous ' places. The power of their particular •" elderschips, is to use diligent labours in ' the boundis committit to thair charge, ' that the kirks be kepit in gude order, ' to inquire diligently of nauchtie and ' unruly persons, and to travell to bring ' them in the way againe, aither be ad- ' monition or threatening of God's judg- ' ments, or be correction. It pertaines to ' the elderschip to take heid, that the ' word of God be purely preichit within ' their bounds, the sacraments rightly ' ministrat, the discipline rightly mantenit, ' and the ecclesiasticall gudes uneorruplie ' distributit. It belangs to this kynde of ' assembly' (now that is the kirk-session in the parish, I think) 'to cause the ' ordinances made be the assemblies pro- ' vinciall, national], and generall ' (that would be the Synod, the General Assem bly and the oecumenical council, the council of nations) ' to be keipit, and put ' in execution. To mak constitutions ' quhUk concerne to irplrrov in the kirk ' (that is, order in the kirk), ' for the decent ' order of these particular kirks where ' they governe : Provyding ' — now, this is a qualification of the powers of the session — 'they alter no rewls made by the ' general or provinciall assemblies, and ' that they mak the provinciall assemblies ' foresein of these rewls that they sal 470 HOUSE OF LORDS ' mak, and abolish them that tend to the ' hurt of the same. It hes power to ' excommunicat the obstinat. The power ' of election of them who beir ecclesiasticall ' charges ' ; and it goes on to speak of their powers of deposition. Then at letter F we pass to the provincial assemblies, or what undoubtedly are the modern Synods : ' Provinciall assemblies we call lawful ' conventions of the pastors, doctors, and ' uther eldaris of a province, gatherit for ' the common affaires of the kirkes thereof, ' quhilk also may be callit the conference ' of the kirk and brethren. Thir assem- ' bhes are institute for weighty matters, ' to be intreatit be mutuall consent and ' assistance of the brethren within that ' province as neid requyres. This as- ' semblie' (that is, the Synod) 'hes power ' to handle, order, and redresse all things ' ommittit or done amisse in the particular ' assemblies ' (that is, anything coming from the kirk-session to the Synod). 'It hes ' power to depose the office beireis of that ' province for gude and just causes deserv- ' ing deprivation. And generallie thir ' assemblies have the haill power of the ' particular elderschips whairof they ar ' collectit.' Then at the top of page 112 we pass to what undoubtedly is the General Assembly of the Church, the supreme court of- the Church of the particular nation : ' The nationall assemblie quhilk ' is generall to us, is a lawful convention ' of the haill kirks of the realm, or nation, ' where it is usit and gatherit for the ' common affaires of the kirk ; and may ' be callit the generall eldership of the ' haill kirk within the realme. Nane ar ' subject to repaire to this assemblie to ' vote bot ecclesiasticall persons to sic a 'number as shall be thocht gude be the ' same assemblie.' (There you have a fore cast of the means to be adopted by the. Presbyteries in selecting the members who are to attend the assemblies.) 'Not ' excluding uther persons that will repaire ' to the said assemblie to propone, heir, ' and reason. This assemblie ' (that is, the General Assembly) ' is institute, that all ' things aither omittit, or done amisse in ' the provinciall assemblies, may be re- ' dressit and handht.' Now, just as the provincial assembly was to be over the session, so here the General Assembly is to be over the Synod. They are entitled to review anything that has been done in the Synod ; and it pro ceeds : ' And things generally serving for ' the weill of the haill bodie of the kirk ' within the realme may be foirsein, ' intreatit, and set furth to Godis glorie.' I contend, my Lord, that that is conferring upon, — the theory of that is that the General Assembly is to have complete and absolute jurisdiction with regard to everything connected with the Church within the realm, 'It soud tak cair, that ' kirks be plantit in places quhair they ' are not plantit.' That was the founda tion of the Veto Act. Lord Davey. — The Chapels Act. The Dean of Faculty. — I beg your pardon, the Chapels Act. 'It soud pre- ' seryve the rewll how the uther twa ' kynds of assemblies soud proceid in all ' things. This assemblie soud tak heid, ' that the spirituaU jurisdiction and civill ' be not confoundit to the hurt of the ' kirk : That the patrinionie of the kirk be 'not consumit nor abusit : And generallie ' concerning all weighty affaires that con- ' cerne the weill and gude ordor of the ' haill kirks of the realm, it aucht to ' interpone authoritie thairto.' Now, that exhausts what is said with regard to the General Assembly. In the next paragraph you come to the general council or oecu menical council, which is apphcable to a variety of nations. 'There is besydes ' these, an uther mair generall kynde of ' assemblie, quhilk is of all nations and ' estaits of persons within the kirk, re- ' presenting the universall kirk of Christ : ' Quhilk maybe callit properlie the Generall ' Assemblie or General Councell of the ' haill kirk of God. These assemblies ' were appoyntit and callit together, speci- ' ally when ony great schisme or contra- ' versie in doctrine did aryse in the kirk, ' and wer convocat at command of godlie ' emperours being for the tyme, for the ' avoiding of schismes within the universal ' kirk of God : Quhilk because they apper- ' teine not to the particular estait of ane ' realme, we ceis further to speik of them.' My contention upon the construction of these articles is that there is there formu lated the three classes of assemblies, viz., kirk-session, synod, and general assembly, DEAN OF FACULTY'S with a somewhat loose shadowing out of the body which would consist of the re presentatives of several kirk-sessions no doubt finding its counterpart in modern times in the Presbytery, and that there was referable to each of these bodies, its particular function and j urisdiction. There is a clear classification of the bodies ; the kirk-session subordinated to the Synod, the Synod subordinated to the General Assembly, and the General Assembly, in addition to having the power of dealing with anything which had already been dealt with by either the kirk-session or the Synod, having vested in itself a general power of doing everything that was neces sary to further the glory of God, within the kingdom at its own hand. That, my Lord, is my construction in the clauses of this Book of Discipline, as dealing with that matter, and that they are quite in consonance with what has been done by the Church acting in exercise (according to the views of my clients) of the inherent right which the Church had to all the powers which are formulated here. This was really not a document conferring power upon the Church ; it was the Church of that day proceeding to state in a formal and consecutive shape, those things which, for the administration of its affairs at that time, it considered it had the right to do as an inherent right derived from God, not depending to any extent on any human authority or any power derived from the civil power, but being supreme, having a supreme spiritual jurisdiction of its own enabling it to formulate the scheme or method by which that absolutely inde pendent jurisdiction might be carried out within the limits of the Church. Lord Robertson. — But, of course, Dean, you refer to your argument as setting forth the power of the Church to legislate in matters of doctrine ; that is your thesis, but I must own I part with it, having failed to discover that within it. The only arbiter of doctrine mentioned here is the oecumenical council. The Dean of Faculty. — Well, my Lord, what was the state of matters at the date, 1578, when this was passed? The Church had themselves voluntarily adopted the Scotch Confession. If the Church had, by the efficacy of its own inherent right, SPEECH 471 adopted the Scotch Confession, would it not be giving an unduly limited construction to the words that they could abrogate and abolish all statutes and ordinances con cerning ecclesiastical matters, to say that they could not revise what they had done with regard to the adoption of the Scotch Confession? Suppose they had come to the conclusion that further knowledge, further investigation and learning, had disclosed that what the framers of John Knox's Confession had said would be sufficient to lead them to alter its terms in any of its parts was wrong, surely the Church, in forming itself by adopting that voluntarily and setting forth this as a description of its powers, must be held to have included a power to reconsider in relation to'lhat Confession, — and in point of fact they did. By what right did the Church consider whether they would abandon the Scotch Confession ? Lord Davey. — They never abandoned the Scotch Confession. Dean of Faculty. — Well, they adopted another. Lord Davey. — They adopted another, but that is another thing. Dean of Faculty. — They adopted another, and it is not possible to say they are the same. I do not take my stand upon what perhaps a theologian would call their fundamental points, but they are undoubtedly different in a great variety of points, and if the Church had the power The Lord Chancellor. — I do not think you go to the extent of saying there is anything contradictory in them. Dean of Faculty. — I do not know, my Lord. Election is dealt with differently in the one ; it is much more firmly dealt with in Knox's than it is in the Westminster Confession. Lord Davey. — The Assembly which adopted them in adopting them said that there was nothing in them contrary to accepted doctrine. Dean of Faculty. — Yes, my Lord, but the point I would respectfully press upon your Lordships, because it seems to me to o-o very deeply into it, is this : If a volun tary body has power to adopt a Confession it is very difficult to see why the body which has power voluntarily to adopt a 472 Confession has not power voluntarily to reconsider its relation to that Confession. The Lord Chancellor. — Well, you know these are words I do not quite follow ; it seems to me to adopt a particular form of words as sufficiently expressing the one doctrine and substituting another form of words in which the same doctrine is contained. It seems to me one thing to change the doctrine and a totally different thing to be content with either. Dean of Faculty. — My point is, that the power of adoption, my Lords, includes power of alteration. The Lord Chancellor. — That is what I cannot see. Dean of Faculty. — You have to deal with a body who are simply exercising their inherent right, as they consider it, of spiritual independence ; there is no con trolling power outside at all. The Lord Chancellor. — But as to spiritual independence, surely no one has ever pretended to suggest, at least in the Scotch Church, or in the English Church, that the words ' spiritual independence ' comprehend the power of themselves ad mittedly changing doctrine. Of course, what they may say is the same doctrine is one thing, but surely no Church would say they had a right to change doctrine. Dean of Faculty. — The test of that would be : Suppose they were unanimous — suppose they were all agreed that there should be a change in the relation of the Church to the existing Confession The Lord Chancellor. — You see, I do not understand quite what you mean by that form of words. My form of words is simple enough : Have they the power to change the doctrine ? Dean of Faculty. — Suppose they were unanimous ? The Lord Chancellor. — Suppose they were, have they power to do it ? Dean of Faculty. — If they were unanimous. Suppose a number of people associated together voluntarily for religious purposes, and they said to each other : ' Well, we will all agree to act together ' upon the basis of a particular statement ' of faith,' and then at a later period they said : ' Very well, now we all agree no ' longer to act together upon that basis, HOUSE OF LORDS ' but we agree to act together upon an ' alteration of that basis,' it is very difficult to see The Lord Chancellor. — I cannot understand why you will always introduce ' acting together ' and ' on the basis ' and so forth. Could they say: 'That was a ' doctrme we did once entertain, but we ' now think we were mistaken and we ' adopt another doctrine.' Dean of Faculty. — That is exactly what I meant to say. The Lord Chancellor. — That makes it plain. Dean of Faculty. — What I submit, my Lord, is that there is no external power to control them ; they simply have agreed to associate with each other on a certain basis. I quite understand the position of a dissenting minority, but when you take it on the question of unanimity, that they associate with each other on the basis of a particular pro fession of faith, that means : ' As long as ' we are all agreed that we shall associate ' with each other on that footing.' It would come to this, that suppose they were all agreed no longer to profess that particular faith, the only thing they could do would be that they would split off until there was nobody left, and yet the abstraction would remain of the association with the creed, every member of the association having left it. There is nothing which keeps it in existence for an hour except the voluntary act of con tinued association, and accordingly The Lord Chancellor. — That would be quite true, and I do not know if any body could control them, but the moment they have what I might call recorded the purpose of the trust, and reduced that to a particular form of doctrine, I do not know that any amount of unanimity will enable them to take over that property so settled to the purposes of that trust ; what becomes of it is another question, but they have no right to pass it over. Dean of Faculty. — If a number of people associate with each other and contribute funds for a specific purpose, and the whole of these people then say : ' We have changed our minds, we are all ' agreed about it '• The Lord Chancellor. — That I can DEAN OF FACULTY'S follow if you suppose the same persons; I should doubt even that, but suppose you have the same persons, there might be a difficulty in saying that there is any mode of restraining them, but that is not the point. The question is a greater number of other persons; forty years elapse, and then have the persons who fulfil the character of the beneficiaries (although the word is not strictly applicable) the power of changing the purpose of pious founder, and to say : ' Oh no, ' doctrine is going to be different ' ? Dean of Faculty. — It seems to that it must be dealt with in the branches of unanimity and difference of opinion ; first, consider what would be the powers of parties acting unanimously, and then, secondly, how far does difference of opinion affect the power? Now, my Lord, the first question is whether money gifted to a Church, or belonging to a Church, does not mean that it is the property of the Church for the time : the Church only exists in respect of its membership at the time, and that which is the Church — those who constitute the Church at the time, are the Church, and as such are the owners of the property, and if they are all agreed The Lord Chancellor. — I perfectly SPEECH 473 anything the me two agree, but it is rather startling to hear it, because from time to time, I will not say every one, but a very large proportion of Nonconformist congregations, have from time to time been adjudged to have no power to alter the disposition originally made by the benefactors ; and every Pro testant Dissenting Church in turn has, I think; had occasion to have recourse to the Courts of Law to draw back the conduct and management and dispensing of the money originally settled on their Church to the original purposes of the founder. Dean of Faculty. — These were all cases, my Lord, of property held on a special trust, with no power, as far as I can see, on the part of the body who held the property to make any change. The Lord Chancellor. — Well, I so far agree with you ; if you suppose the original foundation, we will call it the trust deed, gave express power, under certain conditions, to change the disposition of the property, I do not see unlawful about that. Dean of Faculty. — I was just going to make a comment upon it. I differentiate all the cases my learned friend referred to except one, as far as the Scotch cases are concerned, from the present ; except Forbes v. Eden, I differentiate all the Scotch cases from the present, in the respect that the property was given to a congregation belonging to a particular body, and the question always was, does the majority or the minority of that congregation belong to the particular body ? This is the first case, as far as I know The Lord Chancellor. — I do not think — you will forgive me for interrupting you — that is quite accurate. It is not that they belong to that particular body, but are they the persons professing the Christian faith which the original body professed. The purpose of the trust, I think, is the language used, and the question is whether they have those doctrines, and whether the money is being used for the diffusion and maintenance of those original doctrines ? Is not that how the question has always arisen ? Dean of Faculty. — No doubt the fact, whether the majority were the congre gation adhering to the Church or the minority depended on the question of the doctrines they were respectively profess ing, but the fact to be ascertained always was : Here is a trust for a congregation in connection with a particular body; does the majority or the minority The Lord Chancellor. — ' And pro- ' fessing particular views.' You will forgive me for saying you always drop that part of the definition — professing particular views. Dean of Faculty. — I did not mean to drop it, my Lord. I have already said that the fact of which was the body depended on the views they entertained ; there is no doubt about that, but in none of those eases has the element existed which exists here, that the property here belongs to a body which, according to its constitution, professes absolute spiritual independence, which I contend means exclusive control of their own affairs ; and the question therefore arises here, which has never arisen hi these other cases : 474 Has the body, or has it not, power to do what it has done ? In short, what is the trust upon which the property is held ? The Lord Chancellor. — That, I think, is the question. Dean of Faculty. — That differentiates this case from all those others ; the case of Aikman and that decided by Lord Eldon was dealt with specifically. My learned friend referred to the Kirkintilloch Case as a case bearing upon this, but the Lord Justice Clerk's opinion draws the sharpest distinction between property held for a congregation which has no power whatever to make any change upon its constitution and property held for a body which by its constitution has an inherent power of alteration, and accordingly holds that the doctrines applicable to the one case have no application to the other at all. The only case in which this question arose at all was Forbes v. Eden, and Forbes v. Eden was undoubtedly the case of a body with supreme power, because it was the case of the Episcopal Church in Scot land, and that was a Church as dis tinguished from a congregation; and accordingly the principle undoubtedly was involved there, and the case was dealt with, I admit, on the facts as not necessitating a decision of the general question, but the general rule of decision in such cases was certainly formulated by Lord Cranworth in the proposition, that an independent Church is in the position of an imperium in imperio. Now, no one would ever say that of a congregation. In aU the congregational cases one could not say that of the congregation. The whole question was the question of fact : Is the congregation, or is it not, in the position described by the truster ? But when you come to a body in the position of an independent Church, such as the Episcopal Church in Scotland, or as the Free Church in Scotland, then you have a body which claims to have supreme power with regard to all matters sphitual affecting themselves. The question necessarily therefore comes to be, what are the powers of that body, and are the things which they have done within or without those powers ? Now, my Lords, for my case I contend that if your Lordships were satisfied that HOUSE OF LORDS the principle of the Free Church was spiritual independence, that carries all the rest with it. What does spiritual inde pendence mean ? It means absolute power with regard to everything sphitual in connection with the Church, no power at all with regard to civil matters, but every thing spiritual, and accordingly having based themselves upon that fundamental principle The Lord Chancellor. — I think it only fair, from what is in my mind, to tell you at once that wherever they use that phrase they are endeavouring to dis tinguish their power as a Church, or as members of a Church, from the temporal power of the Sovereign. The Dean of Faculty. — Yes, my Lord, for the purpose of claiming that they are not subject to the control of the Sovereign at all in regard to such matters. The Lord Chancellor. — Yes, that is exactly what I think. The Dean of Faculty. — And therefore supreme. The Lord Chancellor. — But spiritual independence does not mean independence of every doctrine of the Christian Church. The Dean of Faculty. — If they were unanimous I should say they were, my Lord ; my proposition is, that if they weTe unanimous. The Lord Chancellor. — You are logical, I agree, but it is rather a bold proposition, it seems to me. The Dean of Faculty. — No doubt a question arises first with regard to a minority, and my contention with regard to the minority is this, that they form a part of an imperium in imperio. Any supreme body like the Church would prima facie be regulated in its matters by the majority; any member of that body who joins it knows that he is joining a body which has supreme power, and what is his position? He joins it as an in dividual, perfectly entitled to exercise his influence withhi that body for the pur pose of guiding and regulating the pohcy which they are to pursue ; but if he is unsuccessful in that, then he has simply to join a body with regard to which his power is limited, because he cannot get enough people to join him. The body has a supreme power, and must act in accord- DEAN OF FACULTY'S SPEECH 475 then I contend it falls within the juris- ance with its own rule ; and I quite agree that if a member of a minority could say : ' Well, I have been defeated, but I have ' not only been defeated, but I have been ' defeated by a breach of the Regulations ' which you have yourselves prescribed ' for the protection of the interests of ' minorities,' then it would be quite an inteUigible case, and accordingly, for the very protection of minorities, the Church here has, in the successive Barrier Acts it passed, made stringent Regulations con trolling itself in the exercise of the legislative power which it claimed to possess, and within these Acts is to be found the measure of the rights of minorities where there was a difference of opinion between them and the majority. The Lord Chancellor. — I should have thought that the Barrier Act was quite susceptible to what we are all familiar with — wharncliffe meetings and things of that sort with reference to a company. ' You shall not do this, that, or the other ' without a wharncliffe meeting, but still ' you cannot go beyond your Memorandum ¦ of Association.' The Dean of Faculty. — No, my Lord. The Lord Chancellor. — So that I should have thought the Barrier Act was very intelligible in that view, but still to keep my analogy you cannot go beyond the Memorandum of Associa tion. The Dean of Faculty. — I agree, and the Barrier Act is the Memorandum of Association with regard to procedure ; but where you find that the Church claims an independent spiritual jurisdiction in respect of inherent right, must not that carry with it a power within the Church to do every thing which affects spiritual matters? There is no external controlling power at all. The Lord Chancellor. — Just let me take your formula, ' to do everything that ' respects spiritual matters.' The Dean of Faculty. — In respect of spiritual matters — everything respecting spiritual matters — no controlling power at all, absolute independence with regard to spiritualia. The question then arises : Is the particular thing spiritual, or is it civil ? If it is civil , then I venture to think it is beyond the jurisdiction ; if it is spiritual, diction which they claim. Now, my Lords, applying those tests to the questions which we have here, the formulating of the views which they have done in 1892 with regard to the free offer of salvation to all sinners, is that not one of the matters spiritual which this Church by its Constitution was to regulate for itself ? It so happens that in this case it did not need any fundamental change, because it was simply giving formal ex pression to what had been the doctrine taught by the Church as appearing from the Sum of Saving Knowledge for cen turies, but I quite feel my case must go further than that. My contention is that they were masters of the situation with regard to doctrine, provided they adhered to the rules they had themselves pre scribed for regulating the mode of effecting any such change. The Lord Chancellor. — You seem to me to be adopting in omnibus the judgment of Lord Young. The Dean of Faculty. — Certainly, my Lord ; I think Lord Young's judgment goes to that, and I support it. It seems to me inevitably to follow from the fact that this is the property of a Church with supreme power. The. question is what is the power of the Church, and whether they have in this case committed any breach of it ? As I have said, my learned friend made some comments upon the limited nature of the power which the member of an Assembly was entitled to exercise by virtue of his commission ; he said that the terms of the commission were so limited as to preclude a member of Assembly from assenting to this union. The terms of the commission were that the man receives a commission from the Presbytery to attend and act at the Assembly in accordance with the Con fession of Faith and the Constitution of the Church. Well, my Lords, these words ' the Constitution of the Church ' bring in the whole of the Regulations of the Church under which they are to act in regard to any matter with which they are dealing ; and if your Lordships will allow me, as I have no reply, I shall just point out upon the Record at page 107 what exactly was done. The Lord Chancellor. — On the Record ? 476 HOUSE OF LORDS The Dean of Faculty. — On the Record, page 107, Statement 12. Lord Davey. — That is your case. Tb6 Dean of Faculty. — Yes, and I read tlie answer along with it ; your Lord ships will find that there was there a narrative of what was done in order to effect the Union which it was said was illegal. The first sentence is immaterial. Then it proceeds : ' The said General Assembly ' (that is, the Assembly of 1899) approved of the said report, and adopted an overture anent Union with the United Presbyterian Church, enacting and ordaining that the Plan of Union set forth in the proposals therein referred to " is authorised and accepted by this " Church with a view to an incorpora- " tive Union with the United Presby- " terian Church." This overture was ordered to be transmitted to Presbyteries for their opinion, in terms of the Barrier Act. The overture is referred to for its terms. The said overture received the approval of a majority of Presbyteries (70 approving and 4 disapproving), and in the following year the General Assembly of May 1900 passed an Act anent Union with the United Presby terian Church in terms of the overture above quoted by a majority of 593 to 29. Said Act thus became part of the bind ing law of the Church. It was passed by a lawful Assembly in terms of the constitutional law and practice of the Church. It was within the power and competency of the General Assembly, with consent of a majority of Presby teries, to authorise and accept the said Plan of Union, and the pursuers con tinued to hold office in the Church after said Act was passed. The same General Assembly of May 1900 adopted an over ture enacting and ordaining that an in- corporative Union may be effected by the General Assembly in terms of a Uniting Act therein set forth. The overture is referred to for its terms. The overture was transmitted to Presbyteries for their opinion in terms of the Barrier Act. It received the consent of a majority of Presbyteries (71 approving out of 75 and 4 disapproving, and 7 out of 8 foreign Presbyteries approving and one expressing no opinion). At the following General ' Assembly of the Free Church, held on ' 30th October 1900, it was passed, with ' the consent of a majority of the Presby- ' teries, into a law of the Church by a ' majority of 643 against 27. The whole ' of the said proceedings were within the ' powers of the Church.' Now, it is not disputed that these proceedings all took place as there narrated. That, my Lord, is a conclusive answer to the suggestion that there was any limit of the power of a member of Assembly by the Commission. Lord Robertson. — Dean of Faculty, I ventured to call your attention to that while you were speaking, and the point, as it seemed to me, is this, not on this question of the regularity of proceedings, but whether a man who was sent to the Assembly to deal with matters according to the Confession of Faith could alter the Confession of Faith. The Dean of Faculty. — What I con tend for is, that the next words must be taken along with it : ' And the Constitution ' of the Church.' H the Constitution of the Church gives them power to deal with the Confession of Faith, which I say it does, it gives them power to deal with doctrine, provided they do not do it as an Assembly which only consists of certain representatives of the Church ; but if they take care to secure the opinion of the Church as a whole by overtures sent to Presbyteries with an interval of a year, then they in that way obtain the opinion of the Church as distinct from the opinion of a particular assembly, and when the proposition comes to be relating to religion, government, discipline, or anything else, and when the Church has by the verdicts of Assemblies shown that it has the approval of a decided preponderance of the Church, then it becomes competent for the Assembly, on the ordinary prin ciples of its procedure, namely, to deal by the majority, to deal with a matter which has so been approved. The result of that is, that nothing can be done in the way of effecting a change which is not ascertained to be in consonance with the prevailing opinion of the Church. Your Lordship's observation I was conscious at the time was limited to the point your Lordship has put, but my learned friend Mr. Johnston used the powers of the MR. HALDANE'S Commission for the purpose of displacing the powers of an Assembly as not being an Assembly of the whole Church, but only of representatives of a Church as having power to do what they did, whereas the procedure which I have described having been adopted, the members of the par ticular Assembly then have the whole power of the Church to deal, as by a majority, with the matter which has been so brought up. My Lords, on the whole matter I submit to your Lordships that the decision of the learned Judges in the Court below is right, and that it should not be interfered with. SPEECH 477 Mr. Haldane. — My Lords, in rising to add some observations to the exhaustive argument of the Dean of Faculty, I am deeply sensible of my responsibility as regards your Lordships' time, but the importance of the case is such that I feel I ought not to leave any topic on which I can usefully supplement what the Dean of Faculty has put before your Lordships. I shall be able, I think,, to put what I have to put shortly, because it is really only upon two points that I wish to touch. The first is the subordinate one which has been discussed this morning, the question whether by the Declaratory Act of 1892 the Free Church did anything which was inconsistent with her Confession of Faith, and I am going to argue that, on the assumption which I make against myself for the moment, that she had not power to modify that Confession. The second is as to the nature of her constitution, and as to the powers which, as I contend, were inherent in her by virtue of that con stitution. My Lords, the case is a peculiar one, in this respect, that in the legal conception there is really not much difficulty; the legal question is a secondary question, and the problem -which is difficult is the con ditions which give rise to its solution. Which of two perfectly well-understood legal conceptions of the position of the Church is adopted, depends on what view the tribunal before which the case comes, takes of matters of history and matters of doctrine. Your Lordships, sitting as a Court of Law, have to travel outside what properly comes within the province of a Court of Law. This is no new experience. In the Bishop of Lincoln's case, your Lord ship on the woolsack laid it down that when such a case came before you, a case where the tribunal was called upon to decide matters relating to doctrine and matters relating to law, it was not only right but necessary to go outside what were the strict rules of evidence, and look to works of authority upon the matters of doctrine which emerged. The Lord Chancellor. — Rather, may I say, that it was within the strict rules of evidence. Mr. Haldane. — It was within the strict rules of evidence; your Lordship over ruled the argument which was addressed to you by my Lord Davey, who was Counsel in the case upon the point. Lord Davey. — What case was that ? Mr. Haldane. — The Bishop of Lincoln's case ; your Lordship remembers that ex ception was taken Lord Davey. — I was Counsel in the case. Mr. Haldane. - argued on behalf- - But your Lordship The Lord Chancellor. — My judgment, as far as I was an individual member of the Court, was. founded upon a decision of Lord EUenborough, who admitted Cantemer's History of the Turkish Empire as being legal evidence arising upon the state of things existing at the time. Mr. Haldane. — Your Lordship gave quite a full judgment on it, in the judg ment of the Committee, and it has always been a standard ever since upon these matters, and that is peculiarly apposite when one comes to the first question to which I have alluded, the question whether in the Declaratory Act of 1892 there is an inconsistency between the position there assumed as regards its doc trine by the Free Church, and the position of the Confession of Faith. My Lords, the Declaratory Act, which has been already fully read, is at page The Lord Chancellor. — Would you forgive me for interrupting you a minute ? Where is the Bishop of Lincoln's case reported ? Mr. Haldane. — Appeal Cases 1892, my Lord ; I have not got it here, and I am quoting from recollection, but I am sure 478 HOUSE the report is to be found in Appeal Cases 1892. The Lord Chancellor. — I remember very well to what you refer. Mr. Haldane. — Your Lordship re collects that that case in more ways than one is an analogy to what occurs here : there was an observation made by Lord James about the position of - the High Church party, which is illustrated by that case. The Bishop's practice was challenged in the Communion service ; certain things had been done in the celebration of the Communion which were challenged as being contrary to the Rubric. What was contended on the part of the Bishop was that this was matter for ecclesiastical determination, for determination of the Archbishop simply, and he was willing to appear and argue before the Archbishop, and did appear and argue before the Archbishop, but he would not appear before the Judicial Committee, and your Lordships fortunately had no difficulty in the case, because you agreed with the Archbishop and affirmed his judgment, and conse quently the question did not arise. -But the Bishop of Lincoln, as representing the view which he held, took up the position that, notwithstanding that the Church was established by State, there was re served to the Church a certain sphere in which they possessed exclusive spiritual jurisdiction to be exercised by the hier archy, into which no Court of Law could intrude. My Lords, a not dissimilar question came before the Lord Chief Justice in the Bishop of Worcester's case, which was a question of interpreting the Act of Henry viii., and Lord Alverstone may remember that I had the honour of arguing the rule for a mandamus before the Court on that occasion. The Lord Chief Justice. — I am not likely to forget. Mr. Haldane. — And that a very strenuous argument was addressed to your Lordship which did not prevail, that consistently with the Act of Henry viii. there still remained a sphere in which the jurisdiction of the Bishops, and par ticularly of the Archbishop, on a question of confirmation was preserved intact, and OF LORDS as to which there was no jurisdiction in the King's Bench Division of the Court to interfere. That was not adopted because of the strength of the terms of the statute, but you had the very position which is taken up by the Free Church here maintained Lord Davey. — Mr. Haldane, I cannot for the life of me find out — I have not yet found out — what this has to do with this case, because that is true of every voluntary, that is unestablished, associa tion of Christians throughout the kingdom, they are none of them under the control of the civil power ; they are none of them liable to have their doctrines dictated to them or to bave interference with their spiritual functions, or any simUar griev ances such as were complained of by the Free Church : it is common to them all. It was a very material and fundamental matter in their apologia or justification of their leaving the Establishment, and properly put forward as such, but how does that constitute a distinctive doctrine differentiating them from other voluntary associations of Christians ? They all had that in common, that no Court in the kingdom could pronounce their resolutions, or whatever they might be, to be ultra vires. Mr. Haldane. — My Lord, that is quite true, the jurisdiction of the Court only comes in in property, but it becomes very material when you get property on what trust the property is held. If it is a trust, for instance, for propagating ¦ Lord Davey. — If you say that is one of the distinctive tenets of this Church, differentiating it from other similar volun tary associations of Christians, that the doctrines of the Church are whatever the Assembly for the time being says they are, that of course is a conceivable state of things such as Lord Eldon in fact contem plated in the Craigdallie Case, but that surely must be demonstrated. That has nothing to do with the proposition upon which they separated themselves from the Established Church. Mr. Haldane. — Well, my Lord, that is my proposition, that they have Lord Davey. — I do not know whether I make myself clear, but that has always seemed to me to be the hitch in the learned Dean's argument. MR. HALDANE'S Mr. Haldane. — That is my proposition, my Lord, that they separated from the Church on the basis of saying, 'An ' Establishment is a good thing in the ' abstract; we cannot get it just now, but ' we should like to get it back ; ' but that is an Establishment in the High Church conception of it which co-exists with com plete liberty on the part of the Church to determine what its doctrine is to be, and, secondly, in answering the question Lord Davey. — Uncontrolled by the temporal Courts and the civil magis trate ? Mr. Haldane. — Absolutely uncon trolled, and that is a difficulty one has about the present case and about the argument of my learned friends. Every point they have been contending here, if raised immediately, the day after the Disruption, would have stultified what SPEECH 479 those who brought about the Disruption had done. Lord Davey. — Surely it is quite com patible with holding firmly the doctrine that the Church Courts and the Church is free from any interference by the temporal Courts (which is what the Free Church maintain), to hold at the same time that it maintains certain doctrinal standards — ¦ there is no contradiction in that — which distinguish and differentiate it from other similar associations of Christians. Mr. Haldane. — My Lord is good enough to say that, but you are taking this particular principle of polity or doctrine, or whatever you call it, as some thing which is excepted from the control by the Church of its own body of doctrine. You must say that Lord Davey. — All I say is — at least, I do not say it, nor yet have I had occasion to discuss or form an opinion — but all I suggest to you is, that what Mr. Johnston says is that that is one of the distinctive doctrines of this Association, which differ entiates this Association from similar bodies of Christians. However, I have said perhaps more than I ought. Mr. Haldane. — My Lord, it belongs to the second part of what I want to say to your Lordships, and all I will say is that my proposition is, that what is distinctive in this Church is what depends on the continuity of its existence, on the con tinuity of its system of government, and that even its system of government follows the basis of doctrine. There are certain limits I will have to deal with, but these limits do not extend to such a doctrine as the doctrine I am now stating, and my submission to your Lordships is that the Church is like an organism ; the materials may change, and there may be metabolism of every item of which it consists, and yet tb h Church goes on preserving its organic life through the medium of its system of Church government, which provides for a supreme Assembly, supreme in that matter of doctrine to which your Lordship referred, and which I agree was a dis tinctive matter of doctrine at the time the Church was founded. How long that continues, according to my proposition, which I am only stating to you in order to make it clear, depends upon the will of the Church itself, and so long as the Church preserves its identity, and until that set of considerations enters, consisting of the limitations with which I shall have to deal, the Church has supreme authority The Lord Chancellor. — At some time you will tell me in what the identity of the Church consists. I do not ask you now, but you will tell me at some time or another what in your view constitutes the identity of the Church. Mr. Haldane. — My Lord, I will do that simply in a sentence, by saying that is the nature of its government and the operations which take place under that government, but that is a thesis which I will have to develop. I now come back to the questions which arise on the Declaratory Act, and one is dealing here with questions which one regrets having to bring into a Court of Law, but which one must deal with as one can in the light of such knowledge as one possesses, and what I am most strongly to contest before your Lordships is that it would be proper or possible, consistently with the standards of know ledge, for this Court or any other Court to hold that the maintenance of the doctrine of Predestination is inconsistent with the maintenance of the doctrine of the free offer of the Gospel to all sinners without distinction, My Lords, these are two 480 HOUSE propositions which by every Church are held together, which Christians of all denominations, or nearly all denomina tions, unite in saying can be held together, and do hold together, either on the ground that the matter is a mystery which it is not for them to enquire into, or upon the grounds that these conceptions are easily capable of being conceived as recon- cileable if the proper speculative view is kept in mind. That is enough, we con tend, for us, if we can show first of all that the Confession recognises the Scrip ture as paramount, and then that these doctrines are distinctly laid down, as distinctly and more distinctly than they are here in the Scripture itself. The Lord Chancellor. — I do not think that would be enough for you in my view, because we are not here a College of theologians deciding what is the true doc trine ; what we decide here is whether two Churches are identical in doctrine, assuming doctrine to be part of the identity of the Church, and if they are not whether the difference between them is such as would prevent their uniting, that is all. Mr. Haldane. — It would be enough in that case if I showed that the two doctrines were not inconsistent, that they were not proved to be inconsistent ; that is enough for me, and that in being laid down as they are here the Church is only fulfilling its general mission of exposition and inter pretation to its members. The way in which the matter is stated is on pages 132 and 133. The Lord Chancellor. — Of the Record? Mr. Haldane. — Of Print A, the Declara tory Act of 1892. The first is a very careful statement : ' That, hi holding and ' teaching, according to the Confession, ' the Divine purpose of grace towards ' those who are saved, and the execution ' of that purpose in time, this Church ' most earnestly proclaims, as standing in ' the forefront of the revelation of Grace, ' the love of God — Father, Son, and Holy ' Spirit — to sinners of mankind, mani- ' fested especially in the Father's gift of ' the Son,' and so on (your Lordships observe that is an affirmance of the general character of the offer of salvation) : ' That ' this Church also holds that all who hear ' the Gospel are warranted and required OF LORDS ' to believe,' and so on : ' That this Church ' does not teach, and does not regard the ' Confession as teaching, the fore-ordina- ' tion of men to death irrespective of their ' own sin. That it is the duty of those ' who believe, and one end of their calling ' by God, to make known the Gospel to ' all men everywhere for the obedience of ' faith. And that while the Gospel is the ' ordinary means of salvation for those to ' whom it is made known, yet it does not ' follow, nor is the Confession to be held ' as teaching, that any who die in infancy ' are lost.' Now, my Lords, there are there two doctrines, one referred to and the other affirmed. The doctrine of predestination is only referred to and brought in infer- entially ; the doctrine of the offer of the Gospel to all men is affirmed. It is an affirmance of that side as against the somewhat greater stress that is laid in the Confession of Faith upon the doctrine of predestination, and the question which your Lordships have to determine, and the only question which your Lordships have to determine, is this : Is there anything in that statement taken so and understood as it must be, not according to the law of what is called ' plain men,' but according to the light of current co-temporary theological knowledge, which constrains the Court to hold that these two doctrines are incon sistent. Now, my Lord, on that the test is a pretty plain one, laid down by the Con fession of Faith itself; at page 127 of Book F your Lordships will find the test which the Confession lays down in all such matters. It is IX. and X. on page 127 : 'The infallible rule of interpretation ' of Scripture is the Scripture itself ; and ' therefore, when there is a question about ' the true and full sense of any scripture ' (which is not manifold but one), it must ' be searched and known by other places ' that speak more clearly. (X.) The ' supreme Judge, by which all contro- ' versies of religion are to be determined, ' and all decrees of councils, opinions of ' ancient writers, doctrines of men, and ' private spirits, are to be examined, and ' in whose sentence we are to rest, can be ' no other but the Holy Spirit speaking in ' the Scripture.' My Lord, that, of course, refers back for the test of the validity of MR. HALDANE'S anything which is stated there to the 6: ' Scripture itself, and consequently if you find in the Scripture that the two doctrines are stated with the same apparent anti thesis as appears in the Declaratory Act, or in other documents of the same kind, then these documents are to be read not as affirming contradictory propositions, but as affirming the two propositions, each of which is to be found in Scripture, and both of which are to be accepted. In the Scripture itself you find the clearest enunciation of the doctrine of predestination; you find, for instance, in the Acts, chapter xiii. verse 48 : ' And ' when the Gentiles heard this, they were ' glad, and glorified the word of the Lord : ' and as many as were ordained to eternal ' life believed.' I could multiply instances, but I have taken that as a good statement of the doctrine of predestination in its severe form. When you turn to other parts of the New Testament, there is as distinctly announced an offer of salva tion to all mankind ; in the Romans, chapter v. verse 18, there is this : 'There- ' fore as by the offence of one judgment ' came upon all men to condemnation ; ' even so by righteousness of one the free ' gift came upon all men unto justification ' of life.' My Lords, concerning the free offer of the Gospel there is the famous passage in John's Gospel, the third chap ter and the sixteenth verse : ' For God so ' loved the world, that he gave his only ' begotten Son, that whosoever believeth ' in him should not perish, but have ever- ' lasting life.' That is very often quoted on the other side of the controversy. Then again in the First Epistle of John, chapter ii. verse 2, there is this : ' And he ' is the propitiation for our sins : and not ' for ours only, but also for the sins of ' the whole world.' In Colossians, the first chapter, verse 23, runs in this wise : ' If ye continue in the faith grounded and ' settled, and be not moved away from the ' hope of the gospel, which ye have heard, ' and which was preached to every creature ' which is under heaven ; whereof I Paul ' am made a minister.' Just another refer ence ; there is the First Epistle to Timothy, the second chapter, verses 4 and 6 : ' Who ' will have all men to be saved, and to • come unto the knowledge of the truth.' 2h SPEECH 481 6 : ' Who gave himself a ransom for all, ' to be testified in due time.' My Lord, I need not, I think, quote more, but 1 would refer your Lordships just as additional references to Titus, second chapter, and the eleventh verse, which is a very strong statement of the offer being made to all men, and to the Second Epistle of Peter, third chapter, ninth verse. But, my Lord, it does not rest with the Scripture itself. The 17th Article in the Prayer-Book is just as distinct, your Lord ships will find. The Lord Chancellor. — Do you find anything in the 17th Article speaking of the condemnation of men ? Mr. Haldane. — No, my Lord; you will find men are elected to their salva tion, and unless the Church held there were an intermediate state (then that means they must be elected also) The Lord Chancellor. — My recollec tion of the 17th Article is that there is no reference whatever except ' wretch- ' lessness ' of unclean living, whatever ' wretchlessness ' means. Mr. Haldane. — ' Wretchlessness ' comes in there, and it is in that Article that the question arises; your Lordship will find it is printed at page 162 of F. It says: 'Predestination to Life' (this is the Article "Of Predestination and Elec- " tion ") ' is the everlasting purpose of ' God, whereby (before the foundations of ' the world were laid) He hath constantly ' decreed by His counsel secret to us, to ' deliver from curse and damnation those ' whom He hath chosen in Christ out of ' mankind, and to bring them by Christ ' to everlasting salvation, as vessels made ' to honour.' Now that is a statement of Calvinistic doctrine. The Lord Chancellor. — I am not quite so sure about that ; I think you will find there is something very equivalent to that in the Arminian doctrine, and I con fess upon all these quotations you have been giving it seems to me it is a little beside the question, because both the Calvinists and the Arminians derived their authority, or professed to derive their authority, from the Scriptures, and quoted the Scriptures on both sides on the subject. The question we are deter mining is, whether those who gave their 482 property, and intended to maintain and support one particular view as against another, could have their property taken from them because in later times some of those who have inherited the name have altered their views of the doctrine. Mr. Haldane. — My Lord, that is just the whole point which one cannot assume. Did they give their property for a doctrine which was opposed to the view which is in the Declaratory Act? The Lord Chancellor. — You know your proposition, which I note the purpose of, appears to be this, that the two doc trines, which certainly ever since the commencement of the seventeenth century have been recognised as directly opposed, are not really opposed at all. Mr. Haldane. — Yes; I do not admit for a moment, my Lord, that they are opposed. The Lord Chancellor. — I thought so. Mr. Haldane. — Or that they have been recognised as opposed. There is a great confusion about regarding what the difference between Arminianism and Cal vinism was. Calvinism taught the offer of the Gospel to all men, as I will show you in a moment. The contradiction between the two doctrines was this : . Arminius held that the source of man's salvation, of his power to take avail of the offer of the Gospel, lay in his own will, while Calvinism asserted that it lay in the sovereign Grace of God, and depended on the Will of God in manifesting that sovereign Grace. That was the real difference between the two. The Lord Chancellor. — I do not think so; I think the Council of Con stantinople of 1642, not so far apart, you know, from the date of the Westminster Confession, denounced the Calvinistic doctrine as being the most impious thing that could be imagined, because it re garded God as most unjust, entirely con demning men to eternal perdition before they had any opportunity of being tried, or submitted to trial, by the course of their life, and without regarding what they did during their life; the Greek Church, at all events at that time, de nounced that as the most impious thing that could be said. I am expressing no HOUSE OF LORDS opinion either way — I have nothing to do with it — all I say is, that to say that that is consistent with the other seems to me to be absolutely hopeless. Mr. Haldane. — My Lord, the con demnation of the Greek Church extended also to the passage I have just read from the Articles of Religion, which asserts that the ' Predestination to Life is ' the everlasting purpose of God, whereby ' (before the foundations of the world ' were laid) ' The Lord Chancellor. — But you must know very well, Mr. Haldane, how that is reconciled — I do not say whether truly or not ; what I said is, that it was the ever lasting purpose of God to give eternal salvation to those who complied with the condition of the Gospel as offered to them. We get into other questions, because that was again objected to, and Pelagius, whose real name was Morgan, said that there was no such thing as the original taint of corruption in man's nature, but everybody was born as innocent as Adam was before he committed sin. Mr. Haldane. — I know, my Lord, and that was the real source of the contro versy between him and St. Augustine; but the doctrine of original sin is not pre destination at all ; it was only secondary. The Lord Chancellor. — I do not know, but they hang together; one gets into these difficulties if you begin to treat as still open all the considerations under which, by the documents of the parties, they made their Trust Deed. Mr. Haldane. — The whole question here is whether they have made the assertion of an extreme form of one thing a condition of their trust; the whole question is, whether they have asserted the doctrine of predestination, not quite - in this form, because the offer of salvation is universal, but in such a form as to exclude the propriety of the offer of salvation to all men. I am bound to say, that so little have my learned friends' clients regarded it as a contradiction, that every Sunday they have preached in their Churches the offer of salvation to the whole of their people, and there is not a body of Christian ministers that does not do that. In practice the two are treated as reconcilable, and why? Because it is MR. HALDANE'S SPEECH 483 seen that the notion of the contradiction arises simply from the images which we form in relation to space and time of the Divine Will as a thing having some causal relation to another thing separated from it in space and time, the will of the human being. The moment that concep tion is challenged — the moment that is denied and challenged in the Confession itself — so soon do you get out of the contradiction. It arises simply from the pictorial conception which we are prone to form. The Lord Chancellor. — It is not what we think, or what we think they ought to have thought, but what they did think, and said. Mr. Haldane. — Well, it is a question of what they thought, and what they said, and I am telling your Lordships that I am respectfully contending that, found ing themselves upon the Scripture, they taught the two views as consistent, as the Scriptures taught them as consistent. I respectfully submit at this Bar that it is impossible to hold that two doctrines are in contradiction which occur in the Scriptures juxtaposed so as to be held consistently with one another. I point out to your Lordships that the greatest speculative theologians of our time have not only denied that there was any con tradiction between the two The Lord Chancellor. — Would you gravely contend that the divines who settled the Confession of Westminster, and the Legislature, indeed (because pieces of the Westminster Confession were, from time to time, until they were ultimately all, adopted by Parliament), held that the two doctrines were reconcilable with each other ? Mr. Haldane. — Most emphatically; it was laid down in the Synod of Dort that the two were to be held together. The Lord Chancellor. — The Synod of Dort denounced Arminians, deprived them of all their property, and exiled them if they would not abandon the Arminian doctrine. Mr. Haldane. — Yes ; but your Lord ship is presuming that Calvin did not preach the offer of salvation to all men. The Lord Chancellor. — They took a good practical view of what was necessary in suppressing what they called a heresy, and which some of these documents in terms denounce as a heresy. Mr. Haldane. — My difficulty in this case is that your Lordships seem to suggest — or some of your Lordships seem to suggest — that in these two doctrines there are two contradictory statements, two inconsistent statements, and that the view which is put forward in the De claratory Act is Arminianism. I am instructed at this Bar The Lord Chancellor. — I do not mean to say anything more, Mr. Haldane. Mr. Haldane. — I am in a little difficulty. The Lord Chancellor. — It would be unfair not to let you know what is passing in my mind, but I have done that suffici ently, and I say no more. Mr. Haldane. — I am in a little diffi culty in this matter, because I cannot leave a part of the case in which my clients may fail and on which I am instructed, when there is a complete answer, without making it. I cannot admit that this is Arminianism ; I cannot shorten this case, but it is totaUy contrary to my instructions that it is Arminianism. The doctrine of Arminius was, as I have said, that the source of man's salvation lay in his own will, and not in the will of God, and that was condemned. The Lord Chancellor. — Historically we know what Arminianism is by the Five Points which were presented to the Synod of Dort. Mr. Haldane. — I know, my Lord;. I have got the proceedings of the Synod of Dort here, and I have read them very carefully. The Lord Chief-Justice. — Argue that on these two Creeds as much as you like, Mr. Haldane, but speaking for myself it does not advance it one bit for the purpose of our present discussion, either to quote the Scriptures or to quote these Articles of the English Church, of which you have only read one part; it seems to me we have nothing to do with them — I do not agree with you, but we have got to con sider whether there is inconsistency in these doctrines. Mr. Haldane. — I know, my Lord, but you have to consider them in the light of the current argument. 484 The Lord Chief Justice. — Not in the light of the Enghsh Articles. Mr. Haldane. — In the light of the Scripture. The Lord Chancellor. — I do not think so ; what you propose that we should do would immediately change what we have to do with into a theological discussion as to what is the true doctrine, and not what is the meaning of these doctrines we have before us as constituting the Trust. Mr. Haldane. — But the proposition of my learned friends is that in the state ments in the initial paragraphs of the Declaratory Act of 1892 there is a doctrine contradictory to the doctrine in the West minster Confession that your Lordships have to determine. I was only asking your Lordships to bear in mind that this is no new question, that it is one on which theologians have pronounced for the last eighteen centuries, and that for this House to give a determination upon words which are words which have been used over and over again, and which have been introduced here as quotations from the documents of recognised authority, is to give a decision which, I submit, if it were come to, would be a very — I will say a very wrong one, to take these things quite apart from the sense in which they are understood. My Lords, there is no admitted contra diction between the foreknowledge and foreordination to salvation or the reverse of the particular individual and the free will of that individual ; the suggestion of the contradiction between the two arises entirely from a pictorial image which has been framed, and which gives rise to the suggestion that the two are inconsistent, but the first speculative theology of our time has pronounced that these two doc trines are not only reconcUable, but that not to hold them both leads to a conclusion which is characterised as blasphemous, that the will of God is also the origin of the evil purposes of man. You must hold the doctrine of predestination consistently with the free will of man to accept what is offered to him, and it is these two doc trines that are laid down in the Confession of Faith, and in this with almost equal distinctness, because the reference to this cannot be dissevered from the fact that in HOUSE OF LORDS the Formula of the Free Church there is a denunciation of Arminianism (your Lordships remember that) — whoever comes into the Free Church comes in nowadays on the basis of the Declaratory Act and renouncing Arminianism in express terms. Well, they must be taken as having had something intelligible in their minds, and what is intelligible was that they held this doctrine as a doctrine which was consistent with the Calvinism of the Confession. My Lords, Calvin himself preached this doctrine, and I should just like, because I am passing from it, to remind your Lordships that I have not read the whole of the 17th Article of religion. The Lord Chief Justice. — That is what I had in my mind when I spoke before. Mr. Haldane. — I know, but it is a powerful argument in my favour, because it goes on : 'As the godly consideration ' of Predestination, and our Election in ' Christ, is full of sweet, pleasant, and ' unspeakable comfort to godly persons.' The Lord Chancellor. — 'Godly per- ' sons,' you will observe. Mr. Haldane. — Yes, my Lord, to godly persons. The Lord Chief Justice. — I do not want to interrupt, but you have left out the passage at E. Mr. Haldane. — I have omitted it, but your Lordship has read it, and that is enough for me. Your Lordship observes that it is an express affirmation of the doctrine of what is caUed Predestination, that it is by the spirit working that the call takes place, — the most emphatic assertion of the distinctive doctrine of Calvinism, which was that it was the grace of God, by His will- The Lord Chancellor. — I quite agree with you, Mr. Haldane, that when you are dealing with what is meant by the particular wording, and so on, of a par ticular doctrine, it is impossible to dis regard what maybe called the contemporary theological controversies of the time. So far I quite agree. On the other hand, I think it is straining that principle very far to get other works of Calvin, and to refer us to his views; because undoubtedly it would be true to say that Calvin, anil MR. HALDANE'S Arminius too, both changed their views. What we have to construe is what the Free Church adopted as its Standard. Mr. Haldane. — Yes, I want to get what the Free Church The Lord Chancellor. — You want to show that Arminius himself was not an Arminian. Mr. Haldane. — I do not care about Arminianism ; my proposition is, that the doctrine of Arminianism is not in this Confession, but that it is the other side to the doctrine of Calvinism. Calvin SPEECH 485 preached this free offer just as much as any other person, and your Lordships will find an extract from Calvin's Commentary on John. I have the book here, and I will read your Lordships the passage, as I have got it. The Lord Chancellor. — I think Wes ley published a treatise which he called What is an Arminian ? Mr. Haldane. — Yes, my Lord, and I think in that treatise, if my memory does not deceive me, he justified himself. He did not accept the extreme form of the antithetical doctrine, but he The Lord Chancellor — I do think we are getting a little wide. Surely we must, if we can, admit, as I do, the power of exposition of contemporary theological controversy; but we must get a little quicker to what is the real test here, whether these two doctrines as agreed upon by their respective Churches are reconcilable. Mr. Haldane. — Well, take it so, my Lord, and I do not want to go one hair's- breadth beyond that, but I do want to show that the words I am going to quote of Calvin, from his Commentary on the Gospel of St. John, are just what one has here. He is commenting on the words, ' That whosoever believeth on him may * not perish,' and he says that 'it is a ' remarkable commendation of faith, that ' it frees us from everlasting destruction. ' For he intended expressly to state that, ' though we appear to have been born to ' death, undoubted deliverance is offered to ' us by the faith of Christ; and, therefore, ' that we ought not to fear death, which ' otherwise hangs over us. And he has ' employed the universal term whosover, ' both to invite all indiscriminately to ' partake of life, and to cut off every : excuse from unbelievers. Such is also ' the import of the term world, which he ' formerly used ; for though nothing will ' be found in the world that is worthy of ' the favour of God, yet he shows himself ' to be reconciled to the whole world ' when he invites all men without excep- ' tion to the faith of Christ, which is ' nothing else than an entrance into ' life.' Now, my Lord, that is Calvin's own word. The Lord Chancellor. — I do not agree with you, because you take a particular passage out of the writtngs of a very pro fuse writer, — and historically one knows that his views underwent from time to time great change. We have nothing to do with what he did at one time or another. What we have to do with is, what is this ? Mr. Haldane. — Your Lordships can only take a view adverse to what I am contending for upon the assumption that the Confession of Faith teaches the doc trine of what is called Pre-Ordination. The Lord Chancellor. — Forgive me for saying I do not do anything of the sort. I understood the language of the words and sentences in the ordinary and natural meaning of the words themselves ; that is all. Lord James of Hereford. — You have read something from Calvin. What is your object? Is it to show that the Con fession of Faith means something different from the extract ? Mr. Haldane. — No, my Lord, not different from the extract, but that the extracts, properly read, mean that the offer of salvation is made to all men. Lord James of Hereford. — You now take it in the non-natural sense of the words. Mr. Haldane. — Not the non-natural sense of the words, but the words inter preted in the light of theological know ledge on the subject. Lord James of Hereford. — Is there any doubtful expression in the words? Are they not as we may read them, or do you mean that there is a hidden difficulty from what is on the surface ? Mr. Haldane. — No, I mean this : if there were two ordinary human beings, 486 HOUSE OF LORDS and one had complete control over the other, and one predestined the other's actions, it would of course follow that the second, the one controlled, had no free wUl. What is held by theologians is that that is not true of the relation of the Divine mind to the human ; that has been held right through aU periods of the Church, and is held by the first theo logians of to-day. Lord James of Hereford. — With the greatest deference, I have not the sUghtest idea how that last answer of yours an swers what I have put to you. Do you want us to read that Confession of Faith different from its ordinary construction by the light of some things you are now putting in, or do you want to contradict the Confession of Faith ? Mr. Haldane.— I do not want to con tradict the Confession of Faith ; I say there is no contradiction. I say what occurs in the Confession of Faith is this, there are the two things, the one Fore- Ordination by God, and the other the Free Will of man and the freedom of the offer which is made to man, and these two are treated by theologians as consistent with each other. My proposition is that the Confession of Faith does not assert the one to the exclusion of the other. That is my proposition. The Lord Chancellor. — If they are treated as reconcUable by theologians, it was not the theologians who discussed that question at the period the Confession of Faith was settled ; they did not preach them as reconcilable. They denounced those who took different views in no measured terms. Mr. Haldane. — At the Synod of Dort they laid down the two The Lord Chancellor. — Pardon me, the final decision of the Synod of Dort was absolutely against the doctrine other than Calvinistic. Mr. Haldane. — Against Arminianism The Lord Chancellor. — There is no doubt what the Arminian doctrine was, because it was presented in five very distinct terms in the Five Remonstrances. Mr. Haldane. — Yes, but the decision was against Arminius, and the Free Church renounces Arminianism. The Lord Chancellor. — And they called upon those who wished to preserve their Community with the Reformed Dutch Church to sign a Declaration, and if they would not, they punished them and deprived them of their civil rights. Mr. Haldane. — Very likely, my Lord. The Lord Chancellor. — To say that they were reconcilable under those circum stances is rather strong. Mr. Haldane. — I have already said it was Arminius they were fighting with, and not the doctrine I maintain. Lord James of Hereford. — To come ' down to a very simple matter, — not to-night, as there is not time probably, but perhaps to-morrow morning, — I wish you would take page 2 of Appendix A, and take Articles III. and IV., and tell me how I am to read them by the light of any thing you have got there. I have not the slightest idea as to what you have said just now. (Adjourned to to-morrow at half-past ten o'clock.) EIGHTH DAY TUESDAY, Sist JUNE 1904. Mr. Haldane. — My Lords, I have this morning to deal with the question which was put to me by Lord James of Hereford, but before I do so there is one general aspect of the case which goes as much to my second point, as to the right of interpretation and legislation, as to this one on which I have instructions from my clients. These instructions are that they regard the point which we were discussing yesterday as going to nothing short of the right which they claim to determine the form in which they should preach the offer of a free Gospel. They consider their duty is to preach and interpret the word of God as revealed in Scripture as their only paramount standard, and that within that it is their duty to preach that in such form as they think right. Lord James of Hereford. — Do you mean that each and every one of them claims that right to himself individually ? Mr. Haldane. — No, as a Church. Lord James of Hereford. — You did not say so, and that is why I asked the question. Mr. Haldane. — As a Church. I am speaking only on behalf of them as a Church. Lord James of Hereford. — By resolu tion arrived at ? Mr. Haldane. — Yes. They demur therefore to the jurisdiction of any Court of Law to interfere with what they consider as the privilege which they won for themselves in 1843 by making a sacrifice ; and they desire to take their stand upon that principle whatever the conse quences. Now, my Lords, that does not affect at aU, of course, your Lord ships' jurisdiction, which is founded upon property. You have the power, of course, to deal with the property as you think fit, but speaking for them and their adherents they demur altogether to the jurisdiction of this or any other Court to interpret the matters that were under discussion yesterday, so far as their Church is concerned. Now, my Lords, a further observation which I have to make is that if this demurrer seems to have been made in an emphatic form rather late, it arises from this : the point as to predestination was never made in the Court below, nor is it raised in the Record. I do not think it is raised in the Record at all. The Lord Chancellor. — I do 'not know about that — I have been looking. I agree so far that they do not specify the particular tenet, but they do say they have departed from the faith of the Confession. Mr. Haldane. — Yes, that is upon the second point as to the general sub ordination of the Confession, and de parture from it generally, but I have looked through the Record and there is nothing specific as to predestination. The Lord Chancellor. — I agree with you, and I think it is much to be re gretted that if this question is to be raised, it was not done both in the Court below and more distinctly upon the Record. But still, here it is. We have the materials before us, and we must deal with them. Mr. Haldane. — I agree, and I must go on with my argument upon this point, and I must therefore follow up the point which Lord James of Hereford put to me yesterday. I was merely making the observation that the point arose in this House for the first time in the course of this litigation. The Lord Chancellor. — I think it is glanced at by the Lord Ordinary. However, I think, in substance you are right. I lament very much that if it is to be gone into, we should not have the assistance of the Judges in the Court below. Mr. Haldane. — One cannot help making this observation : that after all it is a question upon which the opinion of 488 HOUSE men of skiU might be of great assistance — in this case it is skiU in theological and speculative learning, just as in another case it might be skUl in science, or in chemistry in a patent case. It is very much to be regretted we have not the guidance of expert assistance such as we might have had on a proof in the Court below, but here we are, and we must take it as it is. The Lincoln case becomes relevant in this connection. The Lord Chancellor. — I quite agree. You cannot very well interpret some of these theological dogmas without having regard to what I might caU the theo logical hterature of the time. Mr. Haldane. — That is so. The Lord Chancellor.— When I say that I ought to be candid. I am not at all certain that that observation is in your favour. I wiU tell you exactly what I mean. You brought before us yester day the 17th Article of the Church of England. The Westminster divines had those Articles before them, and one by one discussed them, and they altered the 17th Article to the matter as it now stands. Mr. Haldane. — I do not desire to argue further upon the 17th Article than I did yesterday. My contention before your Lordships was that in the 17th Article you have the two doctrines — that of election to hfe, and the free offer of the Gospel. The Lord Chancellor. — I quite foUow your argument as to that. That is another matter ; but what I mean is this : Whatever explanation the 17th Article is susceptible of, those who were making the Westminster Confession, after very careful consideration, put this dogma in such a form that, certainly to ordinary intelligence, there is no getting out of it. Mr. Haldane. — May I say, with great respect, I agree to this extent : Un doubtedly the Westminster Commis sioners stated the doctrine in a form which lays more stress upon one side of it than on the other. The doctrine, as I showed your Lordships conclusively yesterday, is asserted in both its forms in Scripture. There is no doubt at aU that you find the doctrine of election OF LORDS and the doctrine of the free offer stated in those passages which I read, with many others which I could have cited. The Lord Chancellor. — I wiU not be tempted to enter into a theological controversy with you. AU I would say under protest is, that I am not satisfied that that is accurate. But do not let us discuss the question of the Scripture and what doctrine we may derive from it. The question we have to decide is what these people meant. Mr. Haldane. — Speaking of the inter pretation which the Westminster Divines put upon these passages of Scripture, that may or may not be strictly true, but of course the question is our paramount duty to interpret Scripture and to be guided by Scripture alone. That, I sub mit, is what the Westminster Confession says. The Westminster Confession seems to be no more than an exposition by the Westminster Divines of their views of these passages. I agree at the time the Westminster Confession was drawn there were certain tendencies to put too ex clusive stress upon one side of the anti nomy, and that rather shows itself in the tone of the Westminster Confession. But our case about the whole of the matter is this : The two sides of the doctrine are asserted in Scripture, and there arises what is known in high speculative matters as an antinomy, — an apparent contradic tion between two principles which conflict, which is not to be solved by regarding it from a practical point of view or anything that is competent from mere anthropomorphism. The Westminster Commissioners, desirous of not letting one side of the antinomy be asserted, as it has been asserted, to the exclusion of the other, laid stress upon the first; but my contention before your Lord ships — and this brings me to Lord James's question — is that both sides are in the Westminster Confession, as I shall show to your Lordships beyond doubt from contemporaneous documents with the Westminster Confession. For instance, the ' Sum of Saving Knowledge,' which is a Westminster document drawn up by one of the Scotch Commissioners there, and which was recognised in the Free Church Act of 1851 as one of MR. HALDANE'S the subordinate Standards, asserts this doctrine at least as strongly as it is asserted in the Declaratory Act. Lord Davey. — That was regarded, I think, not as a standard, but as use fully illustrating the conclusions to be drawn — not as a standard. Mr. Haldane. — I think the word ' subordinate ' qualifies the ' standards,' so that these documents came to be juxtaposed as if they were more or less of subordinate authority to the paramount authority of Scripture. My Lords, at any rate, those who put forward the ' Sum of Saving Knowledge ' were of opinion that there was nothing in the Confession of Faith, which they mentioned in the next sentence, which prevented them from regarding the two as part of a homogeneous whole of doctrine. Lord Davey. — They regarded the ' Sum of Saving Knowledge ' as illustrat ing and putting into a convenient cate chetical form the conclusions of the Confession of Faith. However, it does not matter. Mr. Haldane. — I think I may say I agree with your Lordship in that. At page 94 of Print A, they say that this book, amongst others, ' constituted the ' authorised and authoritative symbolic ' books of the Church of Scotland.' Lord Davey. — Yes. Mr. Haldane. — Therefore, if I can show that in the ' Sum of Saving Know- ' ledge,' which was a Westminster book, the interpretation put upon the doctrine in the Westminster Confession is the same as the interpretation in the De claratory Act, I submit I shall have brought the matter through. Now I come to Lord James's question, and I will ask your Lordships not to take the extract from the Westminster Confession which is given in the big book, but to refer to the full Confession of Faith as it is set out in Print F. Lord Davey. — Do you know the date of the ' Sum of Saving Knowledge ' ? Mr. Haldane.— Yes, it was a West minster document drawn up by one of the Scotch Westminster Commissioners contemporaneously with the Confession of Faith. . , Lord Davey.— I see they call it a SPEECH 489 ' practical application of the doctrine of ' the Confession.' Mr. Haldane. — Yes, it was an exposi tion of what they had agreed upon at Westminster. Lord Davey. — Is it not more like a devotional document ? Mr. Haldane. — Yes, it was meant more as a book of practical application. Now your Lordships will find the Con fession of Faith printed in full on page 124 of Print F. I must go through it a little, though not at great length. I pass over the first two pages, which are simply introductory, and I come to page 126. First of all, it sets forth in Article 4 : The authority of the Holy Scripture, for which it ought to be beheved and obeyed, dependeth not upon the testi mony of any man or church, but whoUy upon God (who is Truth itself), the Author thereof.' Then I pass over Article 5, which is to the same effect. Then Article 6 says : ' The whole counsel ' of God, concerning aU things necessary ' for His own glory, man's salvation, ' faith, and hfe, is either expressly set ' down in Scripture, or by good and ' necessary consequence may be de- ' duced from Scripture : unto which ' nothing at any time is to be added, ' whether by new revelations of the ' Spirit, or traditions of men.' That, of course, is an assertion that if there is anything in the Confession of Faith which is inconsistent with the Scriptures, it must go. The Scripture is the para mount standard. Then it says at the beginning of Article 7 : ' All things in ' Scripture are not alike plain in them- ' selves, nor alike clear unto all.' Then Articles 9 and 10 say : ' The infallible ' rule of interpretation of Scripture is ' the Scripture itself ; and therefore, when there is a question about the true ' and fuU sense of any Scripture (which ' is not manifold, but one), it must be * searched and known by other places ' that speak more clearly. The supreme ' Judge, by which aU controversies of ' religion are to be determined, and all ' decrees of councils, opinions of ancient ' writers, doctrines of men, and private ' spirits, are to be examined, and in whose ' sentence we are to rest, can be no other 496 but the Holy Spirit speaking in the Scripture.' Therefore I claim that if the words of the Declaratory Act are covered by any part of Scripture, say by these sentences from the Epistles which I read to your Lordships yesterday, or by the more general statement in the Gospel of St. John, we are entitled, notwithstanding anything that was in the Confession, to put them forward as a corrective to what we consider to be a one-sided view dwelt upon in the Confession, — we were as much entitled to lay stress upon them as upon the Westminster Confession itself, we were entitled to lay stress upon the aspect there dwelt upon as against the Arminian doctrine which had prevailed in Belgium twenty years previously. Lord Alverstone. — When you say ' we,' I take it you mean the Assembly ? Mr. Haldane. — Yes; I am speaking on behalf of the United Free Church Assembly. Lord Alverstone. — That is all I wanted to know, in order to follow you. Mr. Haldane. — That is a most material observation in regard to my second point, when I come to the identity of the Church. Then, my Lords, the next is Chapter IL, which is the definition of God, and it is of very great import ance, because in the third section of it it contains the doctrine of the Trinity, stated in its most abstract form — stated with perfect confidence, and raising what I call an antinomy, a conflict of principles just as great as the conflict which arises between predestination and free wiU. There is the assertion of the Three in One and the One in Three, which is as incomprehensible a mystery to anybody who sets himseU down to interpret plain words, as is the doctrine with which I am deahng. My Lords, aU these matters of doctrine have been dealt with on one of two footings by the Church. The Church has been sometimes content to say, ' These things are taught in ' Scripture, and they are therefore to be ' accepted and beheved by the exercise of 'faith though they may seem to be ' statements inconsistent with each other.' That is one hne of argument which has been taken by theologians. There is HOUSE OF LORDS another hne of argument which is only relevant here, not because your Lord ships are asked to accept it or go into it, but because it is enough for my purpose if I can show that it is a possible hne of argument, by which, not only are these things made consistent, but the only adequate view of the truth about these supreme aspects of existence, is that the whole controversy disappears when you raise the treatment of the question to what has been caUed by theologians the speculative point of view. That is one distinction out of many, which has been drawn between what has been caUed the empirical and the intelligible world, — the intelligible world of reahty lying behind this empirical world of space and time with which we are famihar as men in our daily hves. And it has been shown in great detail in systems of speculative thought that these diffi culties and these antinomies which arise whenever you try to apply the ordinary notions of experience are due to anthropo morphism. And even speaking of the highest topics, such as those which are dealt with in this particular Article No. 3, there is a tendency in men to represent them in images drawn from their daUy experience, but which are totaUy in adequate to these matters, and which give rise to contradiction. For instance, if you were asked in the case of two human beings how you could reconcile the complete control by one over the will of the other, and the power of one to predestine the action of that other with the freedom of the wiU of that other, you would say, and properly say, that that is a contradiction which could not be solved as long as you were looking at things from the point of view of things in space and time — that you are in a region of contradiction, a contradiction as great as a contradiction which we should take as evidence of error in our dealings in everyday hfe. But if you take the conception of God which is set forth in Article 2 of this Chapter II. of the Confession of Faith, it is perfectly plain that there is a conception there of the highest speculative order which lifts the matter altogether out of the region of anthropomorphism. In the middle MR. HALDANE'S SPEECH of the Article you will see it says, ' He is ' the alone fountain of all being, of whom, through whom, and to whom are all things ; and hath most sovereign do minion over them.' That means, if it means anything, that the entirety of reality is contained in the nature of God, and that outside Him there is nothing, and it is an altogether inadequate con ception of His relation to the will of finite man to regard this relation as the relation of a cause to effect in space and time different from it in space and subse quent to it in time. The Confession goes on to say, ' In His sight all things ' are open and manifest ; His knowledge 'is infinite, infallible, and independent ' upon the creature, so as nothing is to ' Him contingent or uncertain. He is ' most holy in aU His counsels, in all ' His works, and in all His commands.' Then, my Lords, in the next chapter we come to the application of this Lord Davey. — I should like to ask you this question, which you can answer yes or no. Would it be possible for the General Assembly to discard what are ordinarily known as Trinitarian doctrines and to adopt the Socinian or Unitarian doctrine ? Mr. Haldane. — No, because in my view those are expressly set out in the Scriptures. The doctrine of the Trinity is an integral part of the Scriptures. My case as to the identity of the General Assembly is that it is a corporate body of individuals of the Church. The Lord Chancellor. — Is not that rather dangerous ground for you, because both the Socinians and the Trinitarians purport to derive their authority and explain their doctrme from the Scriptures ? Lord Davy. — That is what I had in my mind in putting my question. I am not saying whether they are right or wrong, but they both claim that their doctrines are the interpretation of Scripture. Mr. Haldane. — I take my stand upon this : That anything I can find in the Scriptures is within my competency. The Lord Chancellor. — I quite follow you there, but what you have to deal with is this : When there are rival sects (I will put it in the strongest form 491 in order to try the principle), and one sect equally claiming its authority from Scripture, puts a certain interpretation upon Scripture, and claims that all that come within its fold shall adhere to and give that explication of Scripture which they have agreed upon, both sects, as I say, deriving their authority and claim ing to derive their authority from Scripture. Lord Davey. — The question I put was not an idle one, because it was exactly the question in Shaw v. Pearson, in Lady Hewley's case. There a Presby terian body, called, I think, the General Presbyterians, had gradually drifted into Unitarianism and Socinianism, and the chapels were held by the Unitarians and Socinians ; and the question was whether they were within the original trust. Mr. Haldane. — It was a question of interpretating the trust there which was plainly a question for a Court of law ; and the Court of law had to say what the meaning of that trust was. It was plainly a case in which the Court of law nolens volens had to determine the question. The Lord Chancellor. — That is exactly the question that is before us. Mr. Haldane. — Well, my point The Lord Chancellor. — So far as I at present understand the question. Mr. Haldane. — I am coming to the second point The Lord Chancellor. — I am open to conviction ; but that is how I under stand it at present. I observe that Lord Young takes a different view, because he claims the right of every body of Christians to change their view if they like ; and that is true enough as an abstract right ; but then he adds that that does not affect the question of property, and with all submission to his Lordship, the question before him was one of property. Mr. Haldane. — I think the matter as expressed in his judgment requires definition, but, defined in the proper way, I submit it is a perfectly intelligible theory. If you find a trust in which property has been put at the disposition of a body for the purpose of propagating 492 HOUSE OF LORDS its creed, and its creed is left within the discretion of the governing body, then I submit to your Lordships that while you have fuU jurisdiction over the property to find out what the trust is, you are met in limine by the question of what the doctrines are, and so far as they form part of the trust that is excluded from your jurisdiction be cause they are within the spiritual jurisdiction of the Church itself, and aU you have to do is to find out whether they have made a deliverance on the subject, and if they have you must foUow that — I say that, subject to this qualifica tion, which I wiU develop further later on — that if the governing body has done something which amounts to an act of apostasy (and I need not remind your Lordships of the difficulties that have always arisen in the history of these matters in defining apostasy), which amounts to the destruction of its own continuous existence by the body itself, — an act which may be committed, for instance, by the repudiation of what goes to the very root and essence of its existence, — in this case the headship of Christ and the infalhbUity of His word, — then I say it may be open to be said that that body no longer exists, and consequently the Court has to come in. But our case is that what we have done here is a long way this side of any such limitation. The Lord Chancellor. — I suppose it would be argued by those who take an extreme view upon this subject, that the alteration or qualification of your creed from Arminianism to Calvinistic doctrine is an act of apostasy — that is what they would say, I suppose — whether rightly or wrongly, I do not say. Mr. Haldane. — No doubt they would say that. Lord Davey. — Every expression of that kind is being used for and against you that is capable of being used, and it reaUy is a question where to draw the line as to apostasy. Mr. Haldane. — Yes. Lord Davey. — Your opponents, no doubt, wiU say, and have said, that the abandonment of the Estabhshment prin ciple is an act of apostasy. Mr. Haldane. — That is what they do say. Lord Davey. — But you admit that you come to the trench at last when you come to something material. Mr. Haldane. — I come to that when I get to the question of identity. My ' Lords, that is my definition. If I can bring myseh within that, if I am success ful in convincing your Lordships that we have exclusive jurisdiction over our doctrine, and over its interpretation, which enables us to change aU Con fessions of Faith which bind us only to what is the thread that runs through aU the changes in the units which make up our corporate existence, namely, the Headship of Christ and the infalli bility of His Word, then I should submit to your Lordships that the principles of the Disruption involved that we claimed an exclusive jurisdiction which enabled us not only to interpret Confessions but to remodel them within the hmit of identity which I have defined. Lord Robertson. — I did not quite gather that you had finished your argu ment upon the Confession of Faith. Mr. Haldane. — No, my Lord, I had not. This is a digression. Lord Davey put a question to me. Lord Davey. — I put a question apropos of the very Article you were reading. Mr. Haldane. — Yes; it was most relevant to what I was reading. Lord Davey.— I did not mean to interrupt your argument, but you were addressing your argument to this very question. Mr. Haldane. — Yes; there is one sentence I wiU add, and then I wiU leave the subject for the moment. It seems to me it is involved in the position taken up by my learned friends on the other side, that they could have come to the Civil Court the day after the Disruption on the point raised in both the Strathbogie Case and the Stewarton Case, and asked the Civil Court to inter fere if the Assembly had appointed a minister to preach the free offer of the Gospel. The very point of the complete right of the Church to determine whom it would call to its ministry in spiritual things, and what instructions it would MR. HALDANE'S SPEECH give to them (which was the root point in the Stewarton and Strathbogie Cases), would then have been raised in an acute fashion, because you must remember the Disruption took place, not upon the Establishment principle (for as regards the Estabhshment principle my clients not only had no objection to it but they held to it), but upon the consequential right which the Civil Court asserted to interfere to determine who should preach the Word, and in what sense the Word should be preached. My Lords, that is the very point upon which the Disruption took place, and I do not see myself how my learned friends could have maintained their contention at the Bar without being, in the view of the Free Church at that time, incapable of being received into its membership, on the ground that they were setting up that very inter ference of the Civil Courts in spiritual matters which the Free Church had broken off from the State in order to assert in the most unqualified form. Now, my Lords, going back to the Confession of Faith, I have pointed out that the conception of God is defined in terms which frees it from every taint of anthropomorphism, so far . as the men who drew this document could do so, which asserts that God is a Spirit, that His foreknowledge is not to be compared to our foreknowledge. Your Lordships will perhaps allow me to say upon this point, I do not desire to go into these speculative matters, and what I am going to say about them I am going to say on my own responsibility. The matter is one which I have some know ledge of ; there is a considerable library of works dealing with the subject, and I have here a passage which I took from one of the most recent works upon this subject, and I would hke to read a few lines of it to your Lordships, as showing the view of one of the most recent writers upon the absurdity (for he puts it as nothing short of that) of suggesting that between the foreknowledge and fore- ordination of the Divine Will, properly conceived, and the individual will, there is any inconsistency. The book I have here is Professor Taylor's Elements of Metaphysics, which was published in 493 1903. He was a distinguished Oxford lecturer, who is now a Professor of Philosophy at Montreal University. The Lord Chancellor. — You can read it as part of your argument. Mr. Haldane. — Yes; I will read it simply as a sentence from my own argument. My contention is that the whole difficulty, and the whole fallacy, and the whole consequential antinomy, arises from regarding the Divine Will as a cause separated in space and time from the wiU which it controls, instead of its relation to that mind and to that wiU being a relation of identity in differ ence, and difference in identity. You are raised into the conception of the inteUigible world, as distinguished from the empirical world, where no meta phors drawn from every-day hfe are of any guidance. And in this and in other systems it has been laid down, and laid down as part of the most systematic reasoning and most profound system of speculative thought that the world has ever known, that the inconsistency not only does not arise, but that it is even blasphemous to assert that a man's will is not free to this extent, that although predestined and controlled by the Will of God, he is at the same time free and responsible for the acceptance or non- acceptance of the offer of salvation. It is in regard to the partial union and identity of the Divine Will and the finite mind, and at the same time in the assertion of their difference, that the speculative omission hes. This is what Professor Taylor says at page 362 of his book, Elements of Metaphysics: The more rigid Calvinism, with its in sistence on the natural corruption of man's heart and the absoluteness of predestination, seems to secure logical consistency at the expense of outraging our moral convictions. Like so many popular theological problems, this of the conflict between God's omniscience and justice arises from a misconception of the issue. It is only when the category of time is illogicaUy applied to the ex hypothesi perfect, and therefore timeless, nature of God, that God's knowledge comes to be thought by as fore knowledge, before the event, and thus occasions 494 ¦ the difficulty which the " free will " ' theory was intended to remove.' Then, my Lords, I will refer to a passage in a very famous book, which I think has done more than any other to influence speculative thought and theology in England during recent years, by Mr. F. H. Bradley, of Merton College, Oxford, called Ethical Studies, a book which appeared about twenty-five years ago, and one of the most important books published in recent years upon this ques tion. He says at page 19 : ' Even when ' character is formed and the knowledge 'of it ' (that is, the ordinary character of a man) ' by others is not objected to, ' everyone knows it is the grossest rude- ' ness to affect to understand a man or to ' know him as well or better than he ' knows himself, unless the parties are on ' intimate terms. And one ground of ' this is no doubt the feeling just men- ' tioned, that a mind cannot be worked out ' like a sum, but repels the intrusion of ' an external mind ' (your Lordships will notice the words ' of an external ' mind '), ' that a man feels no pain at ' the thought that God knows his inmost ' being, and the elements of it ; or that ' he feels such pain only when irreligiously ' he thinks of himself and of God as two ' finite persons, as a confirmation of the ' above account. In that religious relation ' the relation ceases ; the self loses sight ' of its private selfness, and gives itself ' up to find itseU, and more than itself.' Now, my Lords, I have one other reference, and then I have done. There is a book which was published in 1841 by Professor Vatke, a Professor of Theology at the University of Berlin, which is perhaps the best-known book on the freedom of the will, and the most important work that has ever been written on that subject. I have myself translated a few sentences from that book, and I would venture to read them to your Lordships. I will read a trans lation from page 414 of the German edition. The title of the book is Vatke's Die Menschliche Freiheit. ' If we confine ' ourselves to the speculative conception ' of nature within the moments of the ' idea, there is no special difficulty in ' excluding sin from the Divine Will, and HOUSE OF LORDS it was only a mistaken fear of detracting from the Divine Grace and leaving still some merit to man which led the Augus tinian theology anxiously to exclude all human co-operation, and, by what ever sophistries it might attempt to deny it, to impute the guilt of the continuance of evil to the inoperative WiU of God in relation to the lost. The real ground of the misunderstanding certainly lay in the fact that human and Divine freedom were conceived in an unspecula- tive manner, and the two were not united in the identity of the idea, and the absolute over-against the finite, allowed to act as the living unity of aU the conditions posited by itself.' I do not ask your Lordships to follow these things out. I only cite them for the purpose of showing — and it is enough for me to show — that the first thinkers of the time upon these subjects teU us that, speculatively conceived, taken in their true scientific sense, between these two conceptions,— the conception of the Will of God as foreordaining the action of man in accepting the offer of salvation, and the responsibility of man for not accepting that offer made freely not to the elect alone but to all mankind, — there is no contradiction. There is what is called an antinomy. There is a book which some of your Lordships know, written by Mr. Balfour, upon the Foundations of Belief. The thesis of that book is that if you take science, if you take the nature of time and the nature of space, if you take things of every-day experience, and try to track them out to their ultimate meaning, you find, at every turn, contradiction. The thesis of the book is that the con tradictions in theology are not more striking than the contradictions of science, and that the solution to all these. con tradictions is to be found in tracking them to their source, and the mistake is that you have looked at things from too exclusive a point of view, and have not taken a large enough conception. Lord Alverstone.— Would you kindly tell me what you mean by ' antinomy ' ? Mr. Haldane. — I will give your Lord ships a concrete case of it. It is a very well known puzzle. Achilles sets out MR. HALDANE'S to overtake a tortoise, which is a hundred these yards ahead of him ; the tortoise gets over ten yards of ground while Achilles gets over the first hundred yards, so that the tortoise is stiU ten yards ahead. Then Achilles goes on, and the tortoise going on at the same speed as before, gets over one-tenth of the distance and is still in front, and so you go on dividing. Lord Alverstone. — That is to say he never catches it up. That is what you caU an antinomy ? Mr. Haldane. — Yes, because you can show to absolute demonstration, in which there is no apparent flaw on the face of it, that Achilles can never overtake the tortoise. The explanation, of course, is very easy. You take the conception of time as infinitely divisible. The Lord Chancellor. — I suppose the word is derived from the two Greek words ' anti ' and ' nomos.' Mr. Haldane. — Yes, my Lord ; but it has nothing to do with the antinomian controversy. The Lord Chancellor. — No ; but if you come to analyse it, I am not quite so sure that the antinomian heresy did not derive some of its force from some of the circumstances which you are insisting upon. Mr. Haldane. — The antinomian heresy came at an early date in the Church's history, at a time when controversy was turning upon another point. But no doubt there was an antinomy there ; I flunk your Lordship, if I may say so, is right upon that too. But, at any rate, that heresy was the exclusive assertion of one abstract view of things instead of looking at things from what the theo logians call the speculative point of view. The word ' antinomy ' was made famous in the philosophy of the philosopher Kant, in regard to the difference between the intelligible world and the empirical world. The Lord Chancellor.— I agree. In theological controversy it seems to have satisfied a good many people then, as it has done in later times, to invent word and to think that that a new explains the thing. . Mr. Haldane.— All I am doing now is not to ask your Lordships to accept SPEECH 495 things or even to follow me in my reasoning about them, but to recog nise that the first thinkers Lord James of Hereford. — The first thing is to understand you — I hope I have tried my best, but I cannot say I have succeeded very well so far. The Lord Chancellor. — I confess that, though this is very interesting, it does not strike me that it meets the point that was put to you and that still stands for exposition. We have got a particular form of words from which a particular set of persons say they derive this doctrine such as it is, a doctrine which was settled partly by Archbishop Ussher in the Articles of the Irish Church (because I think the Westminster Con fession adopted his words) and partly by such persons as Calamy and the learned Selden, who have put it in language which seems to me not to be susceptible of a double meaning at all — I cannot understand there being any ambiguity about what they have said. The persons who hold to that Confession say, ' That is what the Scripture teaches, and if you want to belong to my congregation you must accept that as the test whether you do belong to my congre gation or not.' Although your dis cussion (which is a little bewildering, if you will aUow me to say so) is very interesting, I think the plain sense of the matter is, ' Do you or do you not 1 hold these views ? if you do not you ' are not a member of my congregation.' Mr. Haldane. — If I were entitled to argue with your Lordship instead of before your Lordship, I would take your Lordship at once to the Westminster Confession, and challenge your Lord ship's minor premise. The Lord Chancellor. — By all means. Mr. Haldane. — My proposition is that the Confession of Faith does not assert exclusively the one side which your Lordship is putting— I submit your Lordship is laying stress exclusively upon one side of the antinomy, but that the other side is also here iu the Con fession The Lord Chancellor. — You seem to be fascinated by that word ' anti- ' nomy.' Would you mind putting iu 496 HOUSE plain English again what you mean by it. Mr. Haldane. — I mean this : That although in these matters there is a conflict of principles from one point of The Lord Chancellor. — That is how you translate it — a conflict of prin ciples ? Mr. Haldane. — Yes, two principles that come into conflict. Lord Davey. — It means an apparent contradiction. Mr. Haldane. — An apparent contra diction — I could not define it better than your Lordship has defined it, because the word ' apparent ' points to the meaning I have endeavoured to convey, that when you take a wider survey the contradiction is found to be no contradiction. For instance, in the teaching of the epistle which I read as regards the offer of salvation Lord Davey. — You would say that these are ' but broken lights,' and that the whole truth is ' more than they ' — that in the light of the whole truth contradiction disappears, but these are only broken lights. Mr. Haldane. — Yes; I am glad to take your Lordship's words. Lord Davey. — They are not mine, but the words of a much more distinguished person. Mr. Haldane. — I did not mean to suggest that your Lordship had invented them on the spur of the moment. The Lord Chancellor. — As to the doctrine itself, Wesley, who has written very much upon the subject, puts it in this way : That free wiU and predesti nation might form an arch in the skies but could not on the earth. One sees what he means by that, and if we were discussing it as a college of theologians, I could understand one going deeply into these mysteries. But the question here, as it seems to me, is, whether A. or B. adopts this particular form of language and says, ' That is the test by ' which it shall be known whether I am ' a member of the congregation or not.' Mr. Haldane. — I submit it is not a question of language, but it is the sub- stance OF LORDS Lord James of Hereford. — If it takes substance, the substance must be got from the language. Mr. Haldane. — It may be expressed in language, but the reason why this contradiction or antinomy arises is that the language is not adequate to the substance. Lord Alverstone. — I think you were going to refer to the Confession — what chapter were you referring to ? Mr. Haldane. — I was going to show your Lordships in the Confession, that although I agree with the Lord Chan- ceUor that the predestination side is more prominent than the other, for the reason that the Westminster Divines had to express themelves rather emphatically upon the Belgic heresy which had been so prevalent a few years before, the other side is also there. The Lord Chancellor. — I do not know whether your attention has been called to a very interesting book by the librarian of the British Museum, who has found out the minutes of the West minster Confession and translated them —I may call it a translation because the minutes seem to be half in shorthand or something hke it, and he has translated day by day the discussions in the minutes. This very matter was discussed, and, as I say, such persons as Calamy and the learned Selden were parties to those discussions, and what they undoubtedly meant to exclude was Axminianisin. Mr. Haldane. — I have not the advan tage of knowing that book to which your Lordship refers— I have heard of it, but I have never seen it. But I do know this from other sources — that some of the extreme Calvinists from Scotland came up— I think Samuel Rutherford was one, and Gillespie. The Lord Chancellor. — Two Scotch divines attended the Synod of Dort, and one Enghsh bishop. Mr. Haldane.— Yes ; and at the West minster Confession no doubt these minutes show, what one knows from elsewhere, there was very great controversy, and the terms of the Confession are a' com promise.TTTve LoRD Chancellor.— Archbishop Ussher had drawn up an article on the MR. HALDANE'S SPEECH subject in the Irish Articles, and they appear ultimately to have adopted totidem verbis Archbishop Ussher's for mula. Mr. Haldane.— My primary point on this is, that there is nothing in the Confession which excludes the preaching of the offer of salvation as an offer made to all men. I quite agree that you can take one side of the antinomy that would be so expressed that it would exclude it if taken by itself. For instance, if you take the passage that has been referred to as to predestination ; but if you take, for instance, this passage at the very beginning of Chapter III. (which is by no means the strongest passage I have, but I wiU come to the stronger ones by and by), I would ask your Lordships to look at this in the hght of what I have been saying. It begins : ' God from all ' eternity did, by the most wise and holy ' counsel of His own will, freely and un- ' changeably ordain whatsoever comes ' to pass ' (that is a deduction from the assertion of His omniscience which is contained in what goes before), ' yet so ' as thereby neither is God the Author of ' sin, nor is violence offered to the will ' of the creatures, nor is the hberty or ' contingency of second causes taken * away, but rather established.' What is that but asserting that the responsi bility of man is to be held in harmony with the predestination of God ? Then it goes on : ' Although God knows what- ' soever may or can come to pass upon all ' supposed conditions ; yet hath He not ' decreed anything because He foresaw ' it as future, or as that which would ' come to pass upon such conditions '— that I think answers Lord James's question. There you have the assertion of the exclusion of the notion of one will as dominating another such as we should be accustomed to in the language of everyday Ufe, and such as the language of everyday hfe expresses, and the asser tion that it is consistent with this doctrine of the individual as responsible for the non-acceptance of the offer of salvation. The heresy of Arminianism was this : Arminius said that the whole source of the acceptance of salvation hes in the will of the individual man— that it is not 2 i 497 affected by the decree of God, who has foreseen what will happen but in no way interfered. The doctrine of Cal vinism, on the other hand, was this — I am not talking of Calvinism in its most extreme form, but in the form put forward here in the Confession — the root of the doctrine as set forth in this Confession was that the will of God and the will of man were, in a sense, identical — that God's knowledge was a knowledge sub specie mtemitaiis, — under the guise of eternity, not of time, and consequently it was considered that the will of God and the will of man were coincident, and to some extent identical, and yet because man was a free spirit, although a finite spirit, it was the will of one who could go out into evil — that was an assertion of the wiU which coincided with the Divine will to this extent — that the Divine will was the Author of all exist ence ; and yet the will of finite man was a free exercise of will for which man was responsible. Your Lordships will find that stated here. You will find here the stiffest statement of the doctrine of predestination following on the passage I have quoted, — ' nor is violence offered ' to the will of the creatures, nor is the ' liberty or contingency of second causes ' taken away, but rather estabhshed ; ' then in Article 3, ' By the decree of God, ' for the manifestation of His glory, ' some men and angels are predestinated * unto everlasting hfe, and others fore- ' ordained to everlasting death. These ' angels and men, thus predestinated * and fore-ordained, are particularly and ' unchangeably designed ; and their * number is so certain and definite, that ' it cannot be either increased or dimin- ' ished.' That would be a sheer con tradiction of the first two Articles — Articles 1 and 2 in this chapter — were it not for the explanation which I have given to your Lordships, that the matter is not to be looked at in the way in which we look at affairs of everyday hfe Lord James of Hereford. — Please be a little more definite. What con struction do you put upon these words ? It is somewhat difficult to follow you. What meaning do you apply to those words ? 498 Mr. Haldane. — As second chapter about the nature of God — ' in His sight aU things are open and " manifest — His knowledge is infinite, ' infallible, and independent upon the ' creature so as nothing is to Him con- ' tingent or uncertain,' ' He is the alone ' fountain of all being, of whom, through ' whom, and to whom are aU things.' It is an assertion that outside the mind of God there is no existence — that aU else is appearance as compared with Him who is the reality — that into Him all falls, and that therefore the will of man is in one aspect identical with the wiU of God— that what man wills, God must will in eternity. Lord James of Hereford. — I do not follow that. I wish to speak with all reverence, but do you say that if a person here at this moment wills some thing, I am to read that into this Article 4 and to say that is predestination ? Mr. Haldane. — Yes; this I submit is an assertion that outside the wUl of God there is no action. Lord James of Hereford. — I want to know how you construe these words in Article 3 and especiaUy Article 4 of Chapter III. I do not see how the will of man can control this doctrine of predestination. Mr. Haldane. — AU that I assert is that the true relation of man to God is consistent with this doctrine of pre destination — that though God's will is the author of aU existence, and particu larly of man's mind and will, yet the will of man and his action is free, not withstanding that he owes the source of his being to the divine will of God — he is free and owes responsibility at the same time that God has foreseen and fore-ordained aU that comes to pass. To use the expression that I have used before, it is an apparent contradic tion, which can only be got rid of, as I have said, from the speculative point of view Lord James of Hereford. — Is it not said somewhere that it is a mystery ? Mr. Haldane.— It is a mystery, and if you turn to Article 8 of this very chapter you will see it is caUed a mystery, and there is a warning there as to hand- HOUSE OF LORDS is stated in the ling it with prudence and care It says: The doctrine of this high mystery of ' predestination is to be handled with ' special prudence and care.' Lord James of Hereford. — That is not the mystery I mean. It is your explanation which I could not follow. Mr. Haldane. — No doubt they are both very difficult. There would have been no conflict in the history of thought such as there has been, if it had not been so. So long as Christianity was under the domination of Greek philosophy, there was no difficulty The Lord Chancellor.— One is en couraged to think that the words mean what they say by remembering the fact that both the Greek Church and the Church of Rome denounced the doctrine so expressed as impious. Mr. Haldane. — The Church of Rome of course we know disclaimed the ultra doctrines of Calvinism. The Lord Chancellor. — And the Greek Church by the Council of Con stantinople in 1642. Mr. Haldane.— The Council of Con stantinople had a declaration upon the subject which one would require to scan before saying precisely. I have not got it here The Lord Chancellor. — The words are : Tov ®eov VTrorlO-qo-iv dSiKiorarov rvpav- viicfj xpco/xeiw eiovo-ia, fx,6vg Xeywv rfj OeXrjo-cL avrov rows fnev eis 86£av irpoopicrai, toiis Se airo/3a\eiv els KoXacnv /j.-r)Safi.S>s to epya avrwv 0-KOirov/j.evov, ov Tt av -yeVotro ao-e/3eo-Tepov ; Then it goes on to say in language which certainly is very intelli gible, that without reference to the deeds of men, some people are condemned by the wiU of God alone to eternal punishment and others predestinated to eternal hfe, than which, says the decree of the Council, nothing could be more impious, — ao-e- fiio-Tepov. Mr. Haldane.— I caught one word of your Lordship's quotation. I am sorry to say I have not the full words before me, but I think I caught the words ' by ' the will of God alone.' The Lord Chancellor.— Yes, the words are i^ovq ttj OeXrjcrei. Mr. Halda'ne.— That is just what Vatke in the passage I have read con- MR. HALDANE'S SPEECH demns in St. Augustine. He says that St. Augustine rode that doctrine to death — he put in the word 'alone.' Vatke points out that you cannot do that without imputing to God direct causation of evil, which doctrine he says would land you in what is really blas phemy if it is taken literally, and it is only by treating it as only expressing one side and by subjecting it to an interpretation from a higher point of view, that you get out of the apparent contradiction. The Westminster Con fession says that this is a mystery. It is. The Confession also states that ' neither ' is God the author of sin,' which He would be if that were so. Lord James of Hereford. — Will you give me the reference to the passage you are referring to ? Mr. Haldane. — It is Chapter III., Article 1 : ' Yet so as thereby neither is 'God the author of sin, nor is violence ' offered to the wiU of the creatures, nor ' is the liberty or contingency of second 'causes taken away, but rather estab lished.' There would have been the same condemnation of the doctrine in the Greek Church with the word ' alone ' in it The Lord Chancellor. — 1642 was very near the date of what we are deahng with. Mr. Haldane. — Yes, there is the coincidence. They are both striking at the word ' alone,' "l submit. My learned friend points out to me that upon page 129 it is said, just before the reference to predestination, above letter E, that the condemnation of mankind was ' to ' ordain them to dishonour and wrath ' for their sin, to the praise of His glorious 'justice.' There is the assertion of the responsibihty of the individual in con nection with that doctrine, but it does not stop there. I have only now dwelt upon the predestination part, but if you will turn to page 132, the chapter there deals with God's covenant to man which is the covenant of grace as distinguished from the covenant of works. Lord James of Hereford.— Just to go back for a moment to the commence ment of paragraph 7 of Chapter III., you see it says, ' The rest of mankind, 499 accordmg to the ' God was pleased, 'unsearchable counsel of His own will, ' whereby He extendeth or withholdeth ' mercy as He pleaseth.' That seems as if it was apart from any action of the individual. Mr. Haldane. — No, because if you look further down in the fifth line it says, ' and to ordain them to dishonour ' and wrath for their sin.' Lord James of Hereford. — Yes, but is not that in anticipation of predestina tion ? Mr. Haldane. — No, I think not, because that would be to attribute sin to the will of God as its direct cause, which is of course an impossible contra diction to what is said on the previous page. Lord James of Hereford. — Then there are these words : ' whereby He extendeth ' or withholdeth mercy as He pleaseth.' Mr. Haldane. — Then there comes of course the question of the nature of the relation of the will of man to the will of God. If there is identity in the mind and the will of man, — that is identity with a difference in it Lord James of Hereford. — You mean the relation of the will of God to the will of man — it is the man that is the subject. Mr. Haldane. — If you take it in the ordinary sense of the wiU of one human being to another, you get a contradiction, but you are outside the region of anthro pomorphism here, because in Chapter III., Article 1, it says, ' Neither is God the ' author of sin, nor is violence offered to ' the will of the creatures, nor is the ' liberty or contingency of second causes ' taken away, but rather established.' Lord James of Hereford. — I am most earnestly desiring to follow your argu ment, but I have great difficulty in following your argument at present. Mr. Haldane. — My argument is only this : That in this Confession you find two statements, which, interpreted according to the standard of interpreta tion of ordinary language, are in contra diction, but you are warned that they are not really a contradiction ; you are warned that this is a high mystery ; but there are the two sides — they are 500 HOUSE both there ; just as there may be a high mystery in the language of Scripture. They have to be understood either as belonging to the region of faith, in which region they are reconcilable, or they are to be reconciled in the way indicated by Vatke in the passage which I read to your Lordships — they are to be reconciled as Kant has done in his famous distinction between the empirical and the intelligible world. I do not ask your Lordships to accept any theory of reconciliation — it is enough for me that persons of authority have said that the two things are perfectly recon cilable. Lord Alverstone. — You say they have thought that the two things are capable of being reconciled ? Mr. Haldane. — Yes ; and secondly, it is enough for me to say that the Church has said that this is a mystery to be received as a matter of faith, and there fore there cannot be any contradiction between the two passages. The Lord Chancellor. — That might do very weU, but I am not quite certain that I follow all you say, because you are dealing here with metaphysics and not with theology, I think. But the plain proposition you have to meet is this : Whatever be its real meaning, although you may establish an esoteric meaning of it which to the ordinary mind is not plain (I am putting it mildly), the question is whether you have accepted a particular creed or test or symbol, caU it what you will (I mean symbol in the Greek sense, which literally meant a tally), whereby it should be known that you belonged to that congregation, and whether, having done that, you are at liberty afterwards, being some of the beneficiaries of the trust so settled, to say, ' No, I wUl not take that test. ' I wUl alter it, or at any rate I will establish ' a new form of subscription to it by ' which people shaU be entitled to under- ' stand it in a non-natural sense.' That is the question which, as it seems to me, you have to deal with, and I entirely protest against the idea that you have to go away from that and begin to discuss these doctrines in the abstract, either founding yourself on Scripture OF LORDS or on the metaphysical works of learned persons. What you have to do is to show that you have the right to alter the test which was the agreed test of those who belonged to the congregation. Mr. Haldane. — Your Lordship pro pounds a question to me, and I will answer it to the best of my ability. I deny, in the first place, that I have de parted from the words of this Confession. The Lord Chancellor. — That is quite open to you to argue, but I referred to that Article whereby anybody in future who has become a member of the congre gation, or an office-bearer, or what not, is entitled to understand the test of that Confession of Faith in a sense different from that which the words may bear. Mr. Haldane. — That belongs to rather a different branch of the argument. The Lord Chancellor. — I do not wish to interrupt your argument. Mr. Haldane.— I will take it on the predestination point, which is what your Lordship has been putting to me. Upon that your Lordship says, ' Here are words ' that assert the doctrine of the fore- ' knowledge and fore-ordination of God — ' you are bound to those.' Well, I read out the words that I have read to Lord James, ' Yet so, as thereby neither is ' God the Author of sin, nor is violence ' offered to the wiU of the creatures, ' nor is the liberty or contingency of ' second causes taken away, but rather1 ' established.' If I laid hold upon those words, I would be just as entitled to do so as your Lordship is to lay hold of the others, and if I asserted them exclu sively, I should very likely be guilty of the heresy of Arminianism, which I have denounced by my formula. What I should be doing would be to assert one side of the antinomy as containing the exclusive truth, as your Lordship is setting up the other side of the antinomy and suggesting it as the exclusive truth, and thereby setting up an extreme form of the doctrine of predestination, which belongs more to the times of St. Augustine and St. Thomas Aquinas. The Confession contains the two asser tions, just as the Scripture contains the two assertions, and aU we contend for MR. HALDANE'S SPEECH here is the right to maintain both asser tions. The Lord Ghancellor. — Forgive me. There I think is the weakness of what you have up to the present been saying. How do you maintain that ? You say that you may take these tests which were intended as the test and express your belief in them, having in your mind a qualification of this character, ' Al- ' though I am using these words, I may ' understand them as I please.' Mr. Haldane. — No. The Lord Chancellor. — If you can do that you get rid of all tests. Mr. Haldane. — If I go on to that I shall be going away from my present point. It is a point which I have to deal with later. The Lord Chancellor. — I interposed because your proposition is not one that I think is accepted. Mr. Haldane. — I have to deal with that point on the construction of the Declaratory Act, but what I am dealing with now is this : The Declaratory Act undoubtedly does contain the offer of salvation to all men to be freely accepted by them. My sole point at present is that that doctrine is in the Confession in a less prominent form than the doctrme of predestination, and being in the Con fession, as it is, certainly they were entitled to make it clear by a Declaratory Act, which is a statement of the Church upon the subject. The Church claims to hold these two doctrines together, either in virtue of the mystery of faith, or in virtue of the canon of interpretation which I have dealt with, which interprets it by going beyond the ordinary way of looking at things and looking at it from the specu lative point of view. All I am on at present is the claim of the Church to hold those two doctrines consistently with the Confession of Faith. I must come back to the Declaratory Act presently, and the other point which your Lordship on the woolsack has put to me, but at present I want to follow out the point I am now dealing with. For that purpose may I ask your Lord ships to go to page 132 and look at Chapter VII. I am now coming to the 501 part of the Confession of Faith which deals more with the covenant of grace, and passing away from predestination. The chapter is headed, ' Of God's ' covenant with man.' I will read the beginning : ' The distance between God ' and the creature is so great, that although ' reasonable creatures do owe obedience ' unto Him as their Creator, yet they ' could never have any fruition of Him ' as their blessedness and reward, but ' by some voluntary condescension on ' God's part ' (that is the assertion of individual responsibihty). Then it goes on in paragraph 2 : ' The first covenant ' made with man was a covenant of ' works, wherein hfe was promised to ' Adam, and in him to his posterity, ' upon condition of perfect and personal 'obedience. III.: Man by his fall having ' made himself incapable of hfe by that ' covenant, the Lord was pleased to make ' a second, commonly called the covenant ' of grace, whereby he freely offereth ' unto sinners hfe.' That is what Calvin interpreted as meaning to all sinners. Lord James of Hereford. — Is that clear ? May not that only be applicable to those who are not predestinated, because the number of those predestin ated is said to be ' certain and definite.' Then here you get all outside that definite number, who are not predestin ated ; otherwise, it would make an extraordinary contradiction. Mr. Haldane. — No, I submit not. In the knowledge of God, which is infinite, of course, the number of all who sin is certain and definite, and of course it is within the scheme of creation because He contains all creation within Himself — that is one side of the antinomy. The other side is : ' Thereby neither is God ' the Author of sin, nor is violence offered * to the wiU of the creatures ' — that is, to the individual. The whole scheme of Chapter VII. is that God enters into a covenant. Lord James of Hereford. — How can He enter into a covenant with those who are predestined ? Mr. Haldane. — Because the doctrine of predestination is not to be understood as the power of one man over another ; it is not anthropomorphic. It is to be 502 HOUSE OF LORDS understood as something that occurs above the forms of space and time, and the freedom of the individual as a free and finite spirit is to be reconciled in relation to its identity with God, from whom proceed aU things. Lord James of Hereford. — I never knew how incapable I was of under standing these things until I heard your argument. I know it is my fault entirely, but I cannot follow you. Mr. Haldane. — The whole system of the philosophy of Plato and Aristotle, Kant, and other great thinkers, cannot be put into half an hour's address. Lord James of Hereford. — You can not put them into my head in haU an hour. Mr. Haldane —Nor can what the Church has insisted upon as being a mystery be taken in half an hour. The Lord Chancellor. — Everybody who has taken that test is not supposed to have gone through a whole course of Greek philosophy ; the words themselves are very plain. Mr. Haldane. — May I remind your Lordship that in the history of the earhest times this controversy never arose, because they were familiar with the idea of the Divine vovs. You can never find the controversy in Origen or in Clement or in Justin Martyr. On the contrary, you find expressions that point to this, that they found no difficulty in regard to the matter. It is only what Vatke calls the unspeculative mind of Augustine, which was not versed in the Neo- Platonism of the Early Church, that originated this controversy. The Lord Chancellor. — Your point is that this Chapter III., Article 1, is at any rate an exception of free will, whether it is reconcUable or not ? Mr. Haldane. — Yes ; I am coming to the contemporaneous exposition of that which puts it beyond doubt that that was what people meant at the time. The Lord Chancellor. — What they meant was to do the reverse of what Arminius sought to do. They say in the discussion in the Westminster Con fession, in terms, they wanted to denounce Arminius and his heresy. Mr. Haldane. — Yes, as the Free Church denounces it as a heresy. We have always done so. We did not do it for the purpose of this union. The Lord Chancellor. — I should have thought that your proposition (and if I may say so, I think it is a little obscured by metaphysics), putting it in plain terms, is this : That, taking Arminius on the one side and Calvin on the other, if they had only been good metaphysicians, they would really have understood that they did not mean what they had said, but had misunder stood each other. Mr. Haldane. — Well, Arminius would certainly to the end of time have been denounced by some The Lord Chancellor. — I am afraid I must interrupt this interesting argu ment for a short time. After a short adjournment — Mr. Haldane. — My Lords, I am anxious to bring this part of my argu ment to a close as quickly as possible ; there are just a few more passages and one or two references I want to give your Lordships. I had dealt with Chapter VII., page 132 F, of the Confession of Faith, and pointed out to your Lord ships that above letter F the offer is unto sinners generaUy, ' promising to give ' unto all those that are ordained unto ' hfe His Holy Spirit, to make them ' wiUing and able to believe ' ; and my point was that there you have what is introduced in the later stages of the con tention, the other side of the antinomious teaching, the two sides being different. Then, my Lords, I pass to page 135, Chapter IX. Now here, I say, you have got the most absolute assertion, that it is not the WiU of God only, as in the heresy, or so-called heresy, of extreme predestination condemned by the CouncU of Constantinople, but the wUl of man also which operates. Page 135, ' Of Free Will,' Chapter IX. : ' God hath endued the wUl of man with ' that natural liberty, that it is neither ' forced, nor by any absolute necessity ' of nature determined, to good or evil ' (there is an assertion of free wiU). Lord James of Hereford. — I do not think anyone doubts that free wul MR. HALDANE'S SPEECH 503 must exist, and would exist, in the Confession of Faith, but the whole question is whether that iree will did exist among a class other than those who were predestined. Mr. Haldane.— This is quite general, my Lord. Lord James of Hereford. — Yes; but you must take it according to the subject matter you read before. Mr. Haldane. — I submit that is an unnatural reading of the context. Lord James of Hereford. — Why ? Mr. Haldane. — And there is no reason for reading it so apart from the text. Lord James of Hereford. — I will tell you one reason. That it is contradictory and absurd almost to contradiction if you do not read it so ; that is one reason. Mr. Haldane. — Our proposition is that it is not so ; every observation your Lordship has made would apply to the passages in the New Testament. Lord James of Hereford. — You are going into another field ; here you have an explanation which makes this cease to be contradictory, and makes it reason able. Mr. Haldane. — My point is that the most unreasonable thing of all would be to take the construction your Lordship considers reasonable, because it would make the will of God the direct cause of sin. Lord James of Hereford. — That is guarded against ; predestination is not the cause of sin. It is a great difficulty to explain it because it is a mystery, but I think the first part of the Articles gets rid of that difficulty. Mr. Haldane. — It is an immense difficulty if this hberty is only given to those whom God has elected. Lord James of Hereford.— It is not elected — selected . Mr. Haldane. — Selected. Then to those whom He has not selected hberty is denied, and yet they are punished for sins they had not free will not to commit. Lord James of Hereford.— The doctrine may be questioned as being a most remarkable doctrine, but we have - written here. it Mr. Haldane. — Have your Lordships got it written there ? The Lord Chancellor. — That is the point ; have we got it written there ? According to the ordinary words, and according to the usual construction of words and sentences of the English language, you have. Lord James of Hereford. — You have got some of it. Mr. Haldane. — Well, there, my Lord, you are deahng with something that requires special knowledge, just as the scientific specification of a patent does. The Lord Chancellor. — You say people ought not to understand it in the ordinary meaning, and that you must have some esoteric doctrine in your own mind which will enable you to filter down the words into some thing that I think practically means nothing. Mr. Haldane. — I take the ordinary meaning : ' God hath endued the will 'of man with that natural liberty, that ' it is neither forced, nor by any absolute ' necessity of nature determined, to good ' or evil.' What is plainer than that ? Why should it be read unnaturally ? Lord James of Hereford. — It is not unnatural ; it is explained by what has gone before. Mr. Haldane. — Why should it be explained by what has gone before ? It confines the doctrine to the Selected. Lord James of Hereford. — Because it contradicts what the Confession said before, if you do not do it. Mr. Haldane. — If you say it contra dicts it you assume the whole point against me. Lord James of Hereford. — I do not, indeed ; I assume I read there what is there. Mr. Haldane. — No, because your Lordship says the reason for giving this other than the general meaning is because of the contradiction. Lord James of Hereford. — It is to avoid contradiction. Mr. Haldane. — Is there a contra diction ? That is the whole point — my whole argument. Lord James of Hereford. — Take your reading ; how do you explain it ? 504 Mr. Haldane. — My reading is, that it is Lord James of Hereford. — Take it generaUy. Mr. Haldane. — This is an assertion that man possesses free will in harmony with the Divine predestination, which I have told your Lordship, and I have quoted authority. Lord James of Hereford. — If you read the definition of predestination, it is unchangeable, and must be. Mr. Haldane. — Your Lordship is only reading a part of it. The Lord Chancellor. — It says so ; it is incapable of change. Mr. Haldane. — ' Yet so, as thereby ' neither is God the Author of sin, nor is 'violence offered to the will of the ' creatures ' ; almost in the same sentence, page 128, above F. Lord James of Hereford. — ' These * angels and men, thus predestinated 'and foreordained, are particularly and ' unchangeably designed ; and their 'number is so certain and definite that 'it cannot be either increased or di- ' minished.' Mr. Haldane. — I agree ; and also in the same Confession : ' God from all ' eternity did, by the most wise and ' holy counsel of His own will, freely and ' unchangeably ordain whatsoever comes ' to pass : yet so as thereby neither is ' God the author of sin, nor is violence ' offered to the wiU of the creatures, ' nor is the liberty or contingency of ' second causes taken away, but rather ' established. II. Although God knows ' whatsoever may or can come to pass ' upon aU supposed conditions, yet hath ' He not decreed any thing, because He ' foresaw it as future, or as that which • would come to pass upon such con- ' ditions.' Lord James of Hereford. — If there is no contradiction it seems to me you are getting rid of the doctrine of pre destination altogether. Mr. Haldane. — No, my Lord, I am not ; your Lordship is assuming, if I may respectfully say so, an anthropomorphic conception of the Supreme Being. It is very difficult to discuss these things, but I must say your Lordship is really HOUSE OF LORDS assuming that the Supreme Being stands to a particular man in the relation of another man — a cause external to Him in space and time acting on space and time and separate from Him as one thing is separate from another. The whole point of the speculative teaching has teen that that is not so ; the whole point of the Church has been that that is a totally inadequate conception, and that, at any rate without resorting to any explanation, they have to hold the two things as in harmony and reconcilable. Lord James of Hereford. — Mr. Haldane, till you told me so I had not the slightest idea that I was conceiving that. Mr. Haldane. — I am afraid, my Lord, theologians would deal severely with your Lordship's statement. Lord James of Hereford. — I am much obliged to you. Mr. Haldane. — I will come in a moment to one or two explanatory contemporaneous documents ; I only want to finish this part. I have read to your Lordship Chapter IX., section 1, which I say is a general statement, and absolutely must be accepted as such. Then the only other thing I think I want to read is Chapter XV., the Doctrine of Repentance unto Life, page 139 : " I. ' Repentance unto life is an evangelical ' grace, the doctrine whereof is to be ' preached by every minister of the Gospel, ' as well as that of faith in Christ.' Now, my Lord, what a farce this all would be if it were meant that there were only certain selected individuals who attained salva tion independently of their own wiU, and in absolute dependence on the will of God as an external cause operating anterior to their volition in time. The Lord Chancellor. — I quite agree as to that, but that does not prove that that was what was meant, you know. Mr. Haldane. — Before one attributes any such doctrine to those who framed that Confession, including the great men whom your Lordship named this morning, surely one must see that it is so, and that one is not misunderstanding their doctrine — that it is not a case of dealing with The Lord Chancellor. — To a great extent I follow what you say, and agree MR. HALDANE'S SPEECH 505 with it, but you know one cannot resist this, that they did disagree upon that question ; that they did violently dis agree with each other upon that question, and that one set of persons agreed on one interpretation and another set of persons agreed with the other inter pretation. Mr. Haldane. — And they framed, my Lord, a compromise. The Lord Chancellor. — No, I do not think they ever did. Mr. Haldane. — It was passed unani mously, my Lord ; there was no dissent, I think, from the Westminster Con fession. My Lord, I am told that all divisions — your Lordship has this book from the British Museum, which would teU — but I am told all divisions were adjusted in the end, and that this doctrine was a compromise doctrine. The Lord Chancellor. — I do not think so, and I will teU you why. The language, such as it is, in that second, and third, and fourth proposition is taken verbatim et literatim from Arch bishop Ussher's Irish Articles ; that does not look like a compromise. Mr. Haldane. — They may have been a good formula ; I have not knowledge enough to know what the attitude of Archbishop Ussher was ; was he an extreme Calvinist ? The Lord Chancellor. — I have told you sufficient when I tell you that it is taken verbatim et literatim from the Irish Articles. Mr. Haldane.-— Of course, that depends upon what the contention of the Irish Articles is. The Lord Chancellor.— The Articles are in form the same. Mr. Haldane.— They may have con sidered that the Irish Articles embodied the best statement of the doctrine. The Lord Chancellor.— Yes, I think they did; but I understood you to be maintaining that there was a sort of compromise agreed upon in the West minster Confession. Now I do not find the least trace of a compromise. Mr Haldane.— Well, my Lord, some times the compromise is adopted on the footing of taking some very good state ment which commends itself to the parties as neutral ground. I want. just on this point The Lord Chancellor. — There was a Convocation of the Irish Church in 1615, and Articles were drawn up by Archbishop Ussher, and those appear to have been adopted for the purpose of discussion in the Westminster Con fession, and the Westminster Confession in the form in which it now stands agreed to it, and, I believe, so far as this Article is concerned, it is taken verbatim from Archbishop Ussher's form. Mr. Haldane. — Well, my Lord, be that as it may — - The Lord Chancellor. — The only force I give to it is that you said there was a compromise ; that is all, and in the Westminster Confession that com promise consisted in taking, I think in omnibus the Irish Articles. Mr. Haldane. — My Lord, of course, whether it was a compromise or not is left open; it may have been that they took Archbishop Ussher as a good neutral expression of the doctrine ; but be that as it may, I want just for a moment to contrast what is suggested as a one-sided view in this with the Synod of Dort. Now the Synod of Dort was a synod in which the doctrines of Arminius were reprobated. There are nine Articles in the first chapter, and if you stop at the first chapter of the decrees of the Synod of Dort you find an affirmation of Calvinism in a very stiff and strict form ; but when you pass to the second chapter of the Articles of the Synod of Dort you find the other side of the apparent contradiction stated ; you find the statement quite strong. I have got here The Lord Chancellor. — Their decree ultimately was that the doctrine — I think there was very strong language used with regard to it, but I will call it unsound doctrine. Mr. Haldane.— There was very strong language used in the first chapter of the decrees of the Synod of Dort affirming the doctrine of predestination, as strong language as there is used here. There was also, as consistent with that, used very strong language affirming the other HOUSE OF LORDS il..? further set of decrees My Lord, in the Synod of Dort, which was, 506 doctrine in in the second chapter. I have got here the Articles of the Synod of Dort, and in a moment I will give your Lordships the references. I am reading from the second chapter of the decrees of the Synod of Dort, the Articles on the doctrine of the death of Christ, and through it the redemption of man. First of all, 3. (now this is the Synod of Dort) : ' This death of the Son of God ' is a single and most perfect sacrifice and ' satisfaction for sins, of infinite value ' and price, abundantly sufficient to ' expiate the sins of the whole world.' ' 5. Moreover, the promise of the Gospel ' is, that whosoever beheveth in Christ ' crucified shall not perish, but have ' everlasting life ; which promise ought ' to be announced and proposed pro- ' miscuously and indiscriminately to all ' nations and men to whom God, in His ' good pleasure, hath sent the Gospel, ' with the command to repent and ' beheve.' (That is exactly the doctrine of the Declaratory Act of 1892.) ' 6. But 'because many who are called by the ' Gospel do not repent, or believe in Christ, ' but perish in unbelief, this doth not arise ' from defect or insufficiency of the sacrifice ' offered by Christ on the Cross, but from ' their own fault.' Then there is one other which is worth reading, the eighth : ' For this was the most free counsel, ' and gracious will and intention of ' God the Father, that the life-giving * and saving efficacy of the most precious ' death of His own Son should exert ' itself in all the elect in order to give ' them alone justifying faith, and thereby ' to lead them to eternal life : that is, ' God willed that Christ, through the ' blood of the Cross (by which He con- ' firmed the new covenant), should, ' out of every people, tribe, nation, and ' language, efficaciously redeem all those, ' and those only, who were from eternity ' chosen to salvation and given to Him ' by the Father.' So you have the two doctrines stated side by side in the same paragraph, and yet the persons who framed this Confession — these Articles — considered that they were framing a con sistent scheme or plan which might serve as a basis for a Confession of Faith. I think, only seventeen years before the Westminster Confession, there were emi nent English divines, and I think some of those who took part in the framing of the Westminster Confession. All I mean The Lord Chancellor. — I do not know. Mr. Haldane. — I think that was so ; I will not dogmatise about it. The Lord Chancellor. — There were two Scottish divines at the Synod of Dort, and one EngUsh bishop, but whether afterwards any of them became members of the Westminster Divines I do not know. Mr. Haldane. — I am told there were, at any rate, one or two ; their names have been furnished to me, but I do not think it very much matters. At any rate, there you have got in the Decrees of the Synod of Dort as great a contra diction as anybody could wish to see expressed in ordinary language. Lord James of Hereford. — Who would wish to see a contradiction ? The Lord Chancellor. — I have got now what I will call Archbishop Ussher's Article, strictly I should call it the Irish Article : ' By the same eternal counsel ' God hath reprobated,' etc. (reading to the words), ' which can neither be ' increased nor diminished.' That is the Irish Article. Mr. Haldane. — That is very much the same. There is also the other passage which I read to your Lordship to be found there too; the two sides of the antinomy appear to be stated from what your Lordship quoted to me. Perhaps your Lordships would be so kind as to turn to the ' Sum of Saving Knowledge,' at page 157 of F. That, as I have said, was a Westminster document. Mr. Johnston. — Mr. Haldane, we dispute that. You must not assume we admit that. Make your statement upon it, but do not assume that we admit it. Mr. Haldane.— It was published at the same time, and your Lordships remember the terms ; it is referred to in the Free Church Declaratory Act about their Standards. My Lord, the ' Sum ' of Saving Knowledge ' begins at page MR. HALDANE'S SPEECH 507 157, and the sentences I want are on page 158. At the top of page 158, under the section, ' Warrants to Believe,' there is a quotation, the source of which is not given, but I think it is Isaiah — I think I remember it as quoted from Isaiah — ' Ho ! every one that thirsteth, ' come ye to the waters.' (It says so here — yes.) ' Here (after setting down ' the precious ransom of our redemption ' by the sufferings of Christ, and the ' rich blessings purchased to us thereby, ' in the two former chapters), the Lord, ' in this chapter — I. — Maketh open offer ' of Christ and His Grace, by proclama- ' tion of a free and gracious market of ' righteousness and salvation, to be had ' through Christ to every soul, without ' exception ' (your Lordships notice, ' to ' every soul, without exception '), ' that ' truly desires to be saved from sin and ' wrath : " Ho, every one that thirsteth," ' saith he, He inviteth all sinners, that for ' any reason stand at a distance from ' God, to come and take from Him ' riches of grace, running in Christ as a ' river, to wash away sin, and to slocken ' wrath : " Come ye to the waters," ' saith he.' Now, my Lord, there is a writer contemporary with the Confession, recognised as an authority by the Free Church, laying this down, which he could not maintain if it had been supposed that there was any contradiction between the two sides of the antinomy which was more than an apparent contradiction. The last thing I want to refer to is Dr. Chalmers's own view, just about the time of the Disruption, of the meaning of the words which were then under dispute, and these, my Lord, I can hand to your Lordships in a book we have got. I will take first the extract from his Prelections on Butler's Analogy. It was before the Disruption when he wrote this, and I have got some he wrote a little later. He says— (I can hand your Lordships copies of the extract I am going to read, but I will read it m the meantime.) The Lord Chief Justice. — What page ? Mr. Haldane.— We have taken it out of the book because my learned friends objected to it. The Lord Chief Justice. — But what page in Butler's Prelections. Mr. Haldane. — It is pages 312 and 313 of the 1849 edition, and it is volume 9 of Dr. Chalmers's posthumous works. This is what Dr. Chalmers said about predestination : ' I shall not have time ' to go over the topic of predestination ' with the same fulness which some of ' you may recollect that I did last year, ' and most of you may recollect that I ' did two years ago ; but still it must ' be recurred to so far as to furnish me ' with the principles of a distinct de- ' liverance on the various questions that ' still lie before us in the text-book ; and ' I shall only say that, firmly persuaded ' though I be of that doctrine ' (that is, predestination), 'on grounds both scrip- ' tural and philosophical, and fully as I ' subscribe to the views and reasonings of ' President Edwards in his essay on the ' Freedom of the Will ' (he was an extreme Calvinist, who wrote from America), ' I should refrain from the ' slightest mention of it, if I thought it ' at all interfered with the universahty of ' the Christian salvation in point of ' proposition ' (my Lord, it is the uni versahty of the Christian salvation in point of proposition that is the thesis of the Declaratory Act in question ; he was speaking to divinity students here as a Professor in the University of Edin burgh ; he was a Professor ol Divmity), ' or if I thought I could not, with as much ' consistency and as great urgency as ' any zealous Arminian, beseech, and ' honestly beseech, every man to repent, ' and turn, and be saved ; if I could not ' say, in the hearing of an assembled ' congregation, however indiscriminate, ' and however numerous, that God had ' fastened a mark of exclusion upon none ' of them, that He sincerely entreated ' one and all to wash out their sins in ' the blood of the satisfying Atonement ; * nay, swore by HimseU that He had no ' pleasure in their death, but rather that ' they should come to Him and live. ' I take this early opportunity then of ' avowing my conviction that, Calvinist ' though I be, I hold there is nothing in ' Calvinism which should lay an arrest ' on the Christian minister, when he plies 5o8 HOUSE OF LORDS with the calls and invitations of the Gospel, not the whole congregation only whom he is addressing, but every indi vidual of that congregation, assuring him specificaUy, that if he is wilhng to be saved, God is stiU more wilhng to save him, laying before him an open way to heaven, which he is welcome, nay, importunately bidden to walk in ; and let him speculate and even murmur about the decrees of God as he may, they are his own stubborn will and his own evil deeds — they are these and nothing else which he between him and that blissful immortality, the portals of which, with waving flags of invitation, are, by the constitution of the Gospel, open to one and aU of the human family.' Now, my Lords, that is Dr. Chalmers, the leader of the evangehcal party in the Church of Scotland at the time, his chair founded upon the doctrines of the Church which embraced the Confession of Faith, stating that Cal vinism and the free offer of the Gospel, to him, Calvinist as he was, were two things that went together. In another book, I think written a httle later, his Institutes of Theology, which are in the posthumous works, and form volume 8 of them, at pages 403 to 407, he says (I do not want to read your Lordships the whole of it, or much of it) : 'I cannot but think that the doctrine ' of particular redemption ' (that is selection, to use Lord James's expression), ' has been expounded by many of its ' defenders in such a way as to give ' an unfortunate aspect to the Christian ' dispensation.' My Lord, I have got copies of these extracts, which I am using for your Lordships — just what I read, and nothing more [they are handed in]. That, my Lord, is what I read first ; that is Dr. Chalmers's Prelections on Butler's Analogy, pages 312 and 313. Your Lordship sees, from that extract I have read, the assertion by Dr. Chalmers of the two doctrines. The one I am handing in now is an extract from his Institutes of Theology, four pages, of the 1849 edition, volume 8 of his works, ' On the Universality of 'the Gospel.' The Lord Chancellor. — I cannot help thinking, you know, Mr. Haldane, that you are proving too much ; if all you are saying is true, what is the neces sity of altering the test, or advising people that they might take it, I will not say in a non-natural sense as you repudiate that, but each man according to his own view may take it. Mr. Haldane. — So far as this doctrine is concerned, I contend we never altered anything, but we have simply explained or expounded to our people that they need not trouble their heads about apparent inconsistencies, because here is the pith and marrow of what is taught in the Confession setting out that such The Lord Chancellor. — You will forgive me for saying they do not say that ; that is not what they do say. They say : ' You may take these tests ' but you may apply your own sense ' to it.' Mr. Haldane. — No, my Lord, I do not think they say that. The Lord Chancellor. — I think so. Mr. Haldane. — They say, ' Here is ' our exposition of what we mean.' I refer to the Case, page 132. The Lord Chancellor. — It is calming the doubts of people who hesitate to take these tests : ' We give you leave ' each according to his own view of what ' it means to take it in that sense.' Mr. Haldane. — The Overture is at page 132 of Print A : ' Whereas it is ' expedient to remove difficulties and ' scruples which have been felt by some ' in reference to the declaration of belief ' required from persons who receive ' licence or are admitted to office in ' this Church, the General Assembly, ' with consent of Presbyteries, declare ' as foUows : — That, in holding and ' teaching, according to the Confession, ' the Divine purpose of grace towards ' those who are saved, and the execution ' of that purpose in time, this Church ' most earnestly proclaims, as standing ' in the forefront of the revelation of ' grace, the love of God — Father, Son, ' and Holy Spirit — to sinners of man- ' kind.' And a little lower down : ' That this Church also holds that all ' who hear the Gospel are warranted MR. HALDANE'S SPEECH ' and required to beheve to the saving ' of their souls ; and that in the case of ' such as do not believe, but perish in ' their sins, the issue is due to their ' own rejection of the Gospel call. That * this Church does not teach, and ' does not regard the Confession as ' teaching, the fore- ordination of men ' to death irrespective of their own sin.' Now, my Lord, that is the form of Calvinism which was condemned in what your Lordship quoted to me from the Council of Constantinople — the resolution of the Greek Church ; that is not the Calvinism of the Confession, which never said ' irrespective of their ' own sin.' That is clear beyond question from the extracts that were read ; that is the extreme form, not merely of Calvinism but of Thomism ; it was the interpretation of St. Augustine's doc trine which was made out by Thomas Aquinas. That was the source of that doctrine. ' That it is the duty of ' those who believe to make known the ' Gospel.' Now, my Lord, surely there is nothing wrong in that ; there is nothing that can be said to be in the least a departure from the Confession itself. If I am right, it is merely an exposition of what is essential in the Confession. Your Lordships have got the extract from Chalmers before you, and I need not read it out, because if your Lordships would be so good as to look at it you wiU see it contains in language exactly such as I have read from the Prelections on Butler's Analogy, the assertion that both sides of the antinomy are true. Just at page 274, there is this sentence between B and C, in the last document your Lordships have got: 'There is not an ' Arminian or Universalist who contends * more zealously than we for the duty 'of the preacher to urge the offers of ' the Gospel upon every man, and the 'duty of every man to accept of these 'offers. God has made the salvation 'of the Gospel universal in point of 'proposition: the fault is man's if it 'be not universal in point of effect. There is the declaration of Dr. Chalmers fifty years before the Declaratory Act— Dr Chalmers, a Calvinist, proclaiming 509 himself a Calvinist and yet insist ing upon this doctrine as a doctrine of the Church of which he was one of the most evangelical and orthodox preachers. Lord James of Hereford.— Mr. Haldane, would you mind going back for one moment to page 161 of F, that is the extracts from the Larger Catechism of 1648, at letter G : 'Are the elect ' only effectually called ? ' (A.) ' All the ' elect and they only are effectuaUy 'caUed.' Mr. Haldane. — Yes, my Lord, that is quite true, and the explanation is this : Effectual calhng means that the sovereign grace of God is the only thing that is operative to mould the souls of men to the acceptance of salvation, but the wiU of man is not so separated from the will of God that the will of man exists apart from the sovereign grace of God ; the wiU of man is free to accept the volition of the Divine wiU with which it is identical, and the universal grace of God, which is the essence of effectual calling, is merely another way of say ing that God is the Creator of aU things. Effectual calhng simply means that the wiU of man and the will of God are identical in one aspect at all events. Lord James of Hereford. — No ; because if you read on, ' Although others may ' be and often are outwardly called ' by the ministry of the word ' (and I sup pose their will would go with that), ' and ' have some common operations of the ' spirit,' yet they are not called. Mr. Haldane. — If you look over the page the explanation is given : ' Effec- ' tual calhng is the work of God's spirit, ' whereby convincing us of our sin and ' misery, enlightening our minds in the ' knowledge of Christ, and renewing ' our wiU, He doth persuade and enable ' us to embrace Jesus Christ freely offered ' to us in the Gospel' It is we that will according to the doctrine. Lord James of Hereford.— They must be elected, which is predestination, before they can be effectually caUed. Mr. Haldane. — It is they who will; the will is the wiU of the individual because fore-ordination is not 5io HOUSE OF LORDS Lord James of Hereford. — Is the indi vidual the cause of his own election, then ? Mr. Haldane. — The election takes place in such a fashion as not to interfere with the responsibility of the individual, who exercises his own vohtion, which he does coincidentally with the vohtion of God ; in other words, God and man are not, for the purpose of the effectual calling which takes place in the case of the elect, two distinct minds, nor is the operation an operation ab extra. Effectual calhng is the work of the Spirit, which enables man by his own vohtion, as is stated on the top of page 162, to accept. Lord James of Hereford. — Then that effectual calhng, even by his own volition, is confined by the election to a portion only — ' All the elect and they only are ' effectually called.' Mr. Haldane. — All that that means is that those who accept the offer of the Gospel are people whom God not only has foreseen would, but, by virtue of the identity of their wills, God as it were willed simultaneously with their wills. Lord James of Hereford. — If it depends on the man's will, as I said before, you are abolishing the doctrine of predestination. Mr. Haldane. — I point to the same difficulty in aU the forms of the creed, — in the 17th Article of Rehgion, and I point to the same difficulty in the New Testament. Your Lordships cannot define these things by ordinary standards, or reconcile the two statements, and what one has got to say is that there are two principles which are apparently contradictory, but are solved as a mystery of faith, or solved in the highest speculative view ; that has been the doctrine of the Church at all times, and you cannot take these doctrines and interpret them apart from that assurance. If you point to one statement which seems to imply the determination ab extra of the particular will, you point to another statement which says ' No, it is the ' particular will.' Lord James of Hereford. — I wish to speak of this with aU reverence, but really it gets beyond my comprehension, the way you are putting that. You have told us the finite man cannot under stand it. Mr. Haldane. — The Confession itself says it is a high mystery, and the doctrine of the 17th Article of Rehgion says pre destination is a high mystery, and warns people from trying to reconcile the two sides of it. Lord James of Hereford. — And yet it is a doctrine presented to the people with the intention that they shall under stand it. Mr. Haldane. — Well, my Lord, with the intention that they shall accept it and beheve it. The assertion of the Church is that it is entitled to put forward these two doctrines and bound to put them forward. The doctrine of the Trinity your Lordship will find at least as great difficulty with Lord James of Hereford. — I find no contradiction. The Lord Chancellor. — I do not quite see why we should wander into another doctrine. Mr. Haldane. — It is the character of the doctrine it is relative to. Your Lordship says there is no difficulty. The Lord Chancellor. — There is no doubt there are difficulties, and there is no doubt that different Churches have solved them in a different way ; the question here is what is this particular Church ? Mr. Haldane. — I agree, my Lord, and my point is that one cannot put, even if I were otherwise competent, into an hour's time an exposition of what has taken some writers eighteen or twenty volumes to develop, and what has been the subject of system after system of speculative thought since the times of Plato, but I only point out that the Churches have held this consistently — that it was Dr. Chalmers's view, and it has been the view of the authorities, not only of the Free Church but of the Established Church before them, that it was their duty to teach both of these doctrines. The Church asserts its right to hold them ; if challenged, it says : ' These are matters of mystery. If it ' is necessary to go further, then I point ' out that, according, at any rate, to some MR. HALDANE'S SPEECH ' of the most eminent speculative writers, ' the two are to be held together.' Just as, concluding this, I would like to refer your Lordships to one other book ; I have got here Canon Mozley's book on Predestination. Canon Mozley was, as your Lordship knows, Regius Professor of Divinity at Oxford, and there is just a sentence or two which I marked in reading it at the end where he sums up. Canon Mozley takes the orthodox view, and when I say the orthodox view I mean the modified Calvinist view, — a pretty stiff Calvinist he is. The passage I refer to is at page 319 of the edition of 1883, the third edition. It is a treatise on the Augus tinian Doctrine of Predestination, by Canon Mozley, late Regius Professor of Divinity at Oxford, and he says : ' Yet the differences of opinion in our ' Church ' (after stating the differences) ' on the question of grace, and on some ' further questions connected with it, ' do not appear to be sufficient to justify ' either party in supposing that it differs ' from the other fundamentally, or so ' as to interfere with Christian fellowship. ' If the question of grace is one which, ' depending on irreconcilable but equally ' true tendencies of thought in man, ' cannot be settled absolutely either ' way, it seems to follow that a difference ' upon it should not occasion a distance ' or separation- And this remark will ' apply to such further and more par- ' ticular questions as are connected with ' this general question, and are neces- ' sarily affected by the view we take ' upon, and the mode in which we decide ' the general question. Such, _ for ' example, is the doctrine of baptismal ' regeneration. A slight consideration ' wiU be enough to show how intimately ' this doctrine is connected with the ' general doctrine of grace ; and that ' one who holds an extreme, and one 'who holds a modified doctrine of grace ' in general, cannot hold the doctrine of ' baptismal regeneration in the same ' sense ' (that is a third antinomy, my Lord). ' If a latitude of opinion, then ' 5H ' on this further and more particular one ; ' and that if an extreme predestinarian, ' and a maintainer of free will can main- ' tain and teach their respective doctrines ' within the same communion, they need ' not exclude each other when they come ' to give to their respective doctrines ' their necessary and legitimate applica- ' tion in a particular case. I cannot, ' therefore, but think that further re- ' flection will, on this and other questions, ' modify the opposition of the two ' parties in our Church to each other, ' and show that their disagreement is ' not so great as in the heat of contro- ' versy they supposed it to be. Differ- ' ences of opinion there will always ' be in every religious communion, so ' long as the human mind is as variously ' constituted as it is, and so long as ' proper liberty is allowed it to express ' and unfold this variety. But it depends ' on the discretion and temper of re- ' ligious men to what extent they will ' allow these differences to carry them : ' whether they will retain them upon * a common basis of Christian communion ' and fellowship, or raise them into an ' occasion of separation and mutual ' exclusion.' His doctrine is that the two are not irreconcilable, but they depend upon the exaggeration or in flation of the two opposite sides of the same question. The Lord Chancellor. — That there is no conflict between them, and that they ought both to hold the same doctrine. Mr. Haldane. — That people should hold both aspects of the doctrine. The Lord Chancellor. — It may be a very good view, but it was not the view of those who framed the West minster Confession. Mr. Haldane. — That is the point ; but at least I have put before your Lordships all I have to say upon this branch of the case. Now I want to come to what is the crucial part of this case. What did we intend to do in 1843, and was it done ? First of all, what did the Free Church (he sums up), ' may be allowed on the intend to bring about in 1843 — what ' general question, it seems to follow basis of association ? ' that an equal latitude may be aUowed The Lord . Chancellor. — I think, 512 HOUSE before you come to that, you will have to deal — do not do it if it puts your argument out, and postpone it till some other time — but what I think you will have to deal with is that Declaration which enabled people to have their own views notwithstanding they claimed to be members of the same Church. Mr. Haldane. — I am obliged to your Lordship. It is in the Declaratory Act on page 133, Book A, at-the end. ' That ' while diversity of opinion is recog- ' nised in this Church on such points ' in the Confession as do not enter into ' the substance of the Reformed Faith ' therein set forth, the Church retains ' fuU authority to determine, in any ' case which may arise, what points fall ' within this description, and thus to ' guard against any abuse of this liberty ' to the detriment of sound doctrine, or ' to the injury of her unity and peace.' On that I have two observations to make : First of all, the whole matter wiU faU within my treatment of the question to which I am coming, the power of the Church to interpret. The Lord Chancellor. — By all means ; I thought you were going to deal with reference to the doctrines you have just been speaking of, as to the power of a person to hold both these views, and therefore I called your atten tion to it ; but keep it in your own order, Mr. Haldane. Mr. Haldane. — I think your Lordship is quite right in saying it ought to be noticed upon the Declaratory Act itseU. The Lord Chancellor. — That is what I meant, but do not let me interrupt you. Mr. Haldane. — No ; I would just hke to make one observation which I am indebted to your Lordship for reminding me of, because I should have made it before, and it is that this merely asserts the doctrine which is set forth in the Confession itself, namely, in Article 31 of the Confession, ' On Councils and ' Synods, III.' page 155 : ' It belongeth ' to synods and councils ministerially ' (that has been interpreted as meaning as servants of Christ) ' to determine con- ' troversies of faith, and cases of con- ' science ; to set down rules and direc- ' tions for the better ordering of the OF LORDS publick worship of God, and govern ment of His Church ; to receive com plaints in cases of maladministration, and authoritatively to determine the same ; which decrees and determina tions, if consonant ' — not to the Con fession of Faith, but consonant ' to the Word of God, are to be received with reverence and submission, not only for their agreement with the Word, but also for the power whereby they are made, as being an ordinance of God, appointed thereunto in His Word. AU synods or councils since the apostles' times, whether general or particular, may err, and many have erred ; there fore they are not to be made the rule of faith or practice, but to be used as an help in both.' My Lord, I say, on the words to which your Lordship has called my attention on the Declaratory Act, that it is merely an expression, so far from being a departure from the Con fession of Faith, it is merely an exercise of the power expressly given to them by Chapter XXXI. Articles 3 and 4, of the Confession of Faith itself. That is the observation I wished to make. Lord James of Hereford. — There is nothing approaching to an equivalent to this in olden time, is there ? — this elasticity of judgment ; there is nothing corresponding to this before 1892, is there ? Mr. Haldane. — I know what your Lordship refers to — does your Lordship mean in the Free Church time ? Lord James of Hereford. — Yes, in the Free Church time before 1892 or even before 1843. Mr. Haldane. — My Lord, long before the Free Church, in 1690, there was an Act of ParUament ratifying the Con fession of Faith and settling the Presby terian form of government which gave some things that were very large ; it is at page 14 of Print A in the Preamble — that the Parhament ' conceiving it to ' be their bounden duty, after the great ' deliverance that God hath lately wrought ' for this Church and kingdom, in the ' first place to settle and secure therein ' the true Protestant religion, according ' to the truth of God's Word, as it hath of ' a long time been professed within this ' land ; as also the government of Christ's ' Church within this nation, agreeable ' to the Word of God, and most conducive ' to the advancement of true piety and 1 godliness, and the establishment of ' peace and tranquillity within this realm, -' —they, by these presents, ratify and ' establish the Confession of Faith now ' read in their presence, and voted and 1 approven by them, as the public and ' avowed Confession of this Church, ' containing the sum and substance ' (not verbatim et literatim) ' of the doctrine MR. HALDANE'S SPEECH 5i3 right in saying it was not designed and intended to lead people to what was afterwards done, but I mean I think there was, apparently from what one reads in these documents, a view towards Union in the minds of a good many people. Mr. Haldane.— Well, they might have thought that the Churches ought to get near each other about doctrine ; I think that is very likely true, but primarily the object of it was to allay doubts and difficulties which people had at the ol the Reformed Churches (which Con- time, and to provide for some settlement fession of Faith is subjoined to this of them. present Act), as also they do establish, ' ratify ; ' and then it goes on to say that they ratify the Presbyterian government and declare it to be the only government of Christ's Church within the kingdom, ' reviving it and renewing it,' and so on. I think that is the nearest in old times, and in the new times the nearest thing to it is the Free Church Act of 1851, which your Lordships have had referred to several times, and which declares the relation to each other of the standards. I shall have to say something about that presently. My Lords, passing to the second part of the case Lord James of Hereford. — One ques tion more : Was the Act of 1892 passed in anticipation of the Union ? Mr. Haldane. — No, it had nothing whatever to do with it. Mr. Johnston. — So you say. Mr. Haldane. — If you look into the Debates of the Assembly you will find, Mr. Johnston, it had nothing to do with the Union. The Lord Chancellor. — In one sense I think you are quite right, but I should think in one sense it was due to it — I do not mean to say the particular Union, but that the minds of some of the men in both Churches were gradually ap proximating to that idea. Mr. Haldane. — My Lord, just at this time there was a great movement in the Established Church itself (we have their Proceedings), and they wanted to change the Confession and alter the formula. The Lord Chancellor. — That is what I mean ; I have no doubt you are quite 2 K Now, my Lords, the first point I have to make upon the second question is, that there are two distinct matters to be considered : the first is, what was it that the Free Church sought in 1843 to_ do — what sort of Church was it they tried to establish ? and secondly, the quite distinct question, whether they succeeded in doing it, as, of course, it is open to your Lordships, who have complete jurisdiction over property, to come to the conclusion that they failed to do it. We are agreed here that the question is one primarily of contract, and secondly, of trust springing from that contract, and the question is, What was the contract and what was the trust which they set up amongst themselves ? and it is that contract and that trust we have got to examine. When you bear in mind that the purpose of the Disruption was primarily to emancipate the Church Courts from the control of the Court of Session, that the Disruption documents proceed upon a long narration of cases in which the Civil Courts have interfered in matters of doctrme (and when I say doctrine I am using it to include pohty), and when, for instance, you find the narrative of the Strathbogie and Stewarton cases, where the secular Courts, the Civil Courts, had granted interdict against the appointment by the Church itself of its ministers and office-bearers, and had come in in matters thereby of doctrine — when you bear that in mind, it is obvious The Lord Chancellor. — What do you mean bv doctrine ? 5i4 Mr. Haldane. — 1 doctrine ecclesiastical pohty ; I am not confining it to theological doctrine — I am including the right, for instance, to appoint their own ministers. When you bear that in mind, it is obvious that the primary object of the Disruption, by people who had maintained the Estab hshment principle, and who maintained they had exclusive jurisdiction not withstanding the Estabhshment principle, was to shake themselves free of the interference of the Civil Courts, and to be able to determine all those contro versies for themselves without let or hindrance. That undoubtedly was the primary purpose of the Disruption, and I say that with some emphasis, because the Free Church did not base its case upon this : ' We want to be rid of the ' Estabhshment.' Not at all. They said : ' We should desire to keep the Estab- ' lishment ; we beheve in the idea of an ' Establishment, but unfortunately it has ' been found to lead to these interferences ' of the Civil Court with us in matters of ' doctrine ' (interpreted in the wider sense in which I have used the word), ' and ' consequently breaking as we do upon ' this interference, the fundamental thing ' we assert is our spiritual independence.' ' Spiritual independence ' is a phrase which requires a definition, and it is obvious that it meant the power of the Church itseU to determine these matters of pohty and doctrine without inter ference from the Civil Court. Now, my Lord, that brings me at once to what limit they meant to put upon themselves in doing that. My state ment to your Lordships is that the identity of this Church, indeed, the identity of many Churches, but it is enough to take this one, consisted and was intended to consist in this, in its form of government. The Church is like an organism; to use a metaphor I used before, the organism parts with every part of its material every few years, but its identity ' consists in this, that it assimilates and parts during the' period of its hfe with the old material and takes in fresh material; so the Church does not consist in the identity of its members. It is not A., B., and C. HOUSE OF LORDS am including in coming together and entering ^ into a contract with each other which is to bind them and their estates ; on the contrary, it is the formation of an organi sation which is to remain, hke the hfe of the organism, notwithstanding the change which takes place in the consti tuent members. Now that that was the scheme or doctrine of the government of the Presbyterian Church is perfectly plain. The form of government which the Free Church adopted was adopted from the old days of the Estabhshment, and I am not sure your Lordships have had it quite distinctly. I wiU just state in a sentence what the government of the Free Church is. You begin with the congregation, which is a set of people who worship in a church, in a particular building, that is to say, under a certain kirk government. That kirk govern ment is the government of the kirk session, which consists of the minister and elders ; there is also a deacons' court, which deals with secular matters, but the minister and elders are the ruhng body. Anybody may become a member of the congregation in the sense of an adherent, as it is caUed, without any test so long as he is a person of reputable life ; he may be and often is an Episco palian or a person holding a creed which is not the creed of the Free Church, but he cannot go on the roll of com municants without — not submitting to any test, but — satisfying the minister, and it may be the elders also, that he is a person fit in views and fit in his spiritual condition to be a communicant. When he gets on the communicant roll he gets certain rights within the Church. The Lord Chancellor. — What do you mean by fit in his views ? Mr. Haldane. — There used to be a practice of the Free Church (I remember it myself when I was young) called the fencing of the tables : there was a sermon preached before the service to which those resorted who had pre viously been adjudged fit to come to the communion, and they received what was called a token, which was the sign that they had passed' the requisite examination, and (my learned friend wiU correct me if I am wrong in this) MR. HALDANE'S SPEECH they came up, and there was a very searching sermon preached, which pre vented them from coming and taking part in the communion unless they were persons who felt themselves in their consciences, as weU as by the examination to which they had been subjected, fit. They went on the com munion roll if they were persons who were actuaUy communicating with the Church, and before they could communi cate with the Church they had to satisfy the minister that they were persons of a spiritual frame of mind ; they were not subjected to any test; they had not to take any formula ; they had not to adhere to any principle The Lord Chancellor. — But I sup pose the minister was expected to satisfy himself that they Were instructed, as I would caU it — I will not say put to a test, but instructed in the religion they professed ? Mr. Haldane. — Well, my Lord, there is an ambiguity in your Lordship's phrase, — in the general principles of the Gospel according to Christ (I think that was the phrase), but not in Church exercises. The Lord Chancellor. — Not in the Church forms ? Mr. Haldane. — No ; I think a great many of the Establishment people and all sorts of Church people used to be admitted to the communion, and are. It is a question really of spiritual con dition and not of opinions about Church government or adherents to Church government. On coming on they have the rights of communicants, being subject to no formula. They have, when on the communion roll, the right of voting, and by their voting they elect the elders and deacons. The minister is chosen by the congregation, but he is ordained by the Presbytery, to which I will come in a moment. The kirk-session consists of the minister, chosen by the congrega tion and ordained by the Presbytery and the elders. They are the spiritual court of the Church, the element which, as I say, gives it its distinctive character and identity, and they are the people who make the particular congregation, the particular church, what it is. Above 515 them is the Presbytery, which consists of all the ministers of every church within the Presbytery bounds, and a representative elder from each congre gation. Above that is the Synod, which is merely an aggregate of Presbyteries which determine certain The Lord Chancellor. — That is the Synod which unites several Presbyteries. Mr. Haldane. — Yes, my Lord. The Lord Chancellor. — And I sup pose there is some limited number of Synods — not the whole of Scotland? Mr. Haldane. — My Lord, there is a Synod district ; it is not the whole of Scotland. Then comes the supreme body of the Church, the General Assembly, which meets usuaUy once a year, but may meet oftener, and sometimes does, and which can delegate its powers to a Commission, and which is the Supreme Court, and the Supreme Parliament of the Church, the imperium in imperio of which Lord Cranworth spoke. The Assembly consists of one -third of the ministers and an equal number of elders ; they are selected by the Presby teries, and they constitute the Assembly, and they are the supreme governing body of the Church. Now, that was the constitution of the old Established Church, and it is im portant to see what it was that the Free Church desired to do. In my view, which I am to submit to your Lordship, what the Free Church desired to do was to make the government by that body, and the continuance of the government by that body notwithstanding the change in the members of that body, the test of identity of the Church. It was Church government that was all-important, but it was Church government based on certain fundamental and distinctive principles. Now, what were these principles ? They were the Headship of Christ ; that was vital. The Lord Chancellor. — That was applicable to both. Mr. Haldane. — It was applicable to the Established Church too, of course ; the Headship of Christ was really an attribute of the Presbyterian form of government, the government appointed by Him in the hands of office-bearers 5i6 HOUSE according to the Presbyterian form of government, the whole thing founded upon His Word. Now, my Lord, it may be very difficult to determine at what point a Church so constituted ceases to be a Church. I need not remind your Lordship, who knows so much of these things, that the definition of apostasy of a Church has been one of the most subtle controversies which theologians have ever waged. The Lord Chancellor. — Will you teU me at once, because I think it might shorten this part of the enquiry : If I understand the Free Church intended to make their Church exactly what the Established Church was, with the single exception of Establishment, not different in discipline, not different in the actual government, in fact the same in the respect that it was to be under that hierarchy you have just related to us, with the single exception that the secular Courts were to have no power of inter ference at all ? Mr. Haldane. — Yes, my Lord, with one qualification I accept what your Lordship has said ; they had interpreted the old Established Church, notwith standing its statutes, as containing in its Assembly an exclusive jurisdiction over doctrine, government, and disciphne, which made it capable of excluding altogether the jurisdiction of the secular Courts, except as to certain matters of property, where there was a contract with the State ; that was aU. And of course the question here is not as to the jurisdiction over property — there is no doubt that wherever there is property, your Lordships have jurisdiction — but the question is, what is the trust ? If it was a trust to apply the property to the preaching of some particular doctrine, then the Court enquires what the doctrine is ; if it is a trust to put the determination of the doctrine, to the preaching of which the property is to be applied, under the complete and exclusive control of the Assembly or Synod, then the Court is bound by the decision of the Assembly or Synod. That is the distinction Lord Eldon recognised in Craigdallie, and which was more elaborated in Craigie v. Marshall, the Kirkintilloch Case, by Lord OF LORDS Justice-Clerk Hope, and the question is, which trust have you got here? The point I am arguing is that, having regard to what was the nature of the controversy on which the Disruption took place, the controversy as to the jurisdiction of the Courts, it was very extraordinary if the Free Church failed to secure to themselves in the fullest way what they were endeavouring to secure, and that is the recognition of the incapacity of the Courts to accept any other judgment than their own as to what ought to be their views of a particular doctrine or of a particular Confession. My Lord, I am quite aware that beyond that lies a question your Lord ships have raised more than once in the course of this argument : Do you say, then, there is no limit to that ? I say there is a limit to that, and that the limit consists in this, that the Church could not do any act which puts an end to the identity of its organisation. If the Church committed suicide, committed such an act of apostasy as to disentitle it to be called the Free Church, founded under the Headship of Christ, and teaching His Word, then the Church would cease to be a Church ; but so long as the Church remained identified (I am using the expression in the Act which directed the preparation of the Model Trust Deed) as a Church, the principal fundamental principle of which was the Headship of Christ, the government being in the hands of presbyters and office-bearers appointed by Him, and the foundation being His Word, so long had it complete control over its own doctrine. It foUows from that, of course, that it could adopt or modify or change. The Lord Chancellor. — I think there is a little fallacy in speaking of it as if it were a corporation, some abstract thing ; I should have thought that where you were deahng with an associated body of Christians, one of the essential elements of what is called the identity of the Church is its doctrines. Suppose an associated body of Christians — I do not say this is the case, you know, but to illustrate what I mean — and that they held doctrines A, B, and C ; trusts are made in respect of persons who are to MR. HALDANE'S maintain and teach A, B, and C; have they any right to modify any one of these ? Mr. Haldane. — If the trust is as your Lordship suggests it to me, No; but if they have got a government which is supreme and exclusive in matters of doctrine, then they may change the doctrine. Take an example of a much more commonplace kind, and suppose a club that is founded, with a club house, which is intended to be permanent, and a set of rules, and a committee, the rules providing for the control of the committee by a general meeting; and suppose it is provided in those rules that the general meeting, or for that matter the committee, shall have control over the purposes for which the club is to be carried on, then notwithstanding that, at the time the club was founded, the members may have come together with the view of promoting the principles, let us say, of some political creed or some particular object, if the constitution of the governing body is framed in wide enough terms to give the control of that amongst the things it controls, the Court cannot interfere. You have got there the element of identity con tained in the nature of the governing body, the general meeting controlling the committee. That is an illustration of a very crude kind of what appears here in a much more developed form, because we are dealing in this case with a body which was founded upon the highest and most solemn assertion of doctrine, associated together with the view of the exclusive Headship and government of Christ, a phrase which is very apt, when scrutinised in a docu ment by a lawyer, to pass as rather rhetorical, but which nevertheless The Lord Chancellor. — The diffi- SPEECH 517 culty I feel about that is, that .you might just as well say it was a rehgious body, without specifying the doctrines ; there is reaUy no Christian Church which does not recognise the Headship of Christ. Lord Davey. — I suppose what you say would be true of every voluntary association; they are absolutely free of the control of the Courts Temporal. Mr. Haldane.— My Lord, it depends on the constitution what effect that has upon property. Lord Davey. — Whether it is the whole body or the assembly which acts for it ? I do not see how that makes any differ ence. Mr. Haldane. — It makes no differ ence. Lord Davey. — You might say that just as well of every Church which is disestablished ; the doctrine which I understand they wished to assert by separating themselves from the Estab lished Church was that they owned no jurisdiction in spiritual matters outside their own Ecclesiastical Courts, that no Temporal Court had any right to intrude a minister, or to dictate to them the constitution of their Assembly by ex cluding ministers whom the Assembly determined to admit, which were two particular things, or anything of that kind. Of course, by separating them selves from the Estabhshment, and pro claiming that doctrine, they rightly differentiated themselves from the Estabhshment; but precisely the same thing is true, indeed it is what you mean by calhng a body a voluntary association of Christians, that they are not subject to the Temporal Courts. That is no distinction from other — I do not like to say dissenting bodies, but other non - estabhshed bodies ; that is no mark of distinction, and it is one they share in common. Mr. Haldane. — I quite agree, and that is my argument, that for the identity of this Church, at different parts of its history, you have to look to its history. Lord Davey. — As to this doctrine, the importance of which I do not under rate for a moment, about the Headship of Christ and the absolute freedom from the interference and dictation of the Civil Courts, that is not a mark of distinction from other non-established bodies. Mr. Haldane. — I agree, and my pro position is that the mark of distinction is to be found in the continuity of the organism, in the continued existence of the governing body. The Lord Chancellor. — The con tinuity of the particular persons who 518 HOUSE hold it. I am afraid I cannot agree with you. Mr. Haldane. — Not of the particular persons. The Lord Chancellor. — I should have thought it would have been a sufficient answer to what you are at present labouring so much to say, that there are a great number of associated bodies of Christians in this country, the Baptists, the Wesleyans, and the Bible Christians, and a great many others I need not enumerate ; your present argument seems to me to be that because all three of those associated bodies will undoubtedly assert and insist on the Headship of Christ, therefore there is no separate doctrine which distinguishes them from each other, and that a trust for the sake of the Wesleyans, we will say, could, without any breach of the rights of property, be used for the pur poses of the Baptists. Mr. Haldane. — Well, my Lord, my argument at your Lordship's bar, is this, that if you ask what is the test of identity, the test of the personal identity of this Church lies, not in doctrine, but in its hfe, in the continuity of its hfe, as ascertained by the fact that the majority have continuously kept on doing these things which are within their com petence, according to our opinion. Lord Davey. — The same was true of the Craigdallie case ; there the majority maintained, their organisation, and claimed to hold the chapel. Mr. Haldane.— My Lord, it was determined that the Craigdalhe Trust, a trust for the congregation — not a trust to put the property at the disposition Lord Davey. — I daresay my mind is cannot see associated association caU it an not sufficiently subtle, but I the difference between an body and an incorporated of Christians, whether you association or a Church. Mr. Haldane. — My Lord, take the case of the club, the club-house is held at the disposition, by the constitution, in reahty of the majority. Lord Davey.— I mean different in principle. Mr. Haldane.— Yes. Well, my Lord, J ara not at this moment dwelling on OF LORDS any distinction or want of distinction of the Free Church as so constituted from other Presbyterian bodies ; on the con trary, I think it came very near. The question I am putting to myself and trying to answer, is, Wherein did the identity of this Church consist ? and my answer is, That this Church was an organisation on a democratic basis ; it con served itself, it had an assembly which determined who should be its members, and so long as you had a majority of that assembly controlling things which, I assume for the moment for the sake of argument, were within its powers, so long did you preserve the hfe and identity of the organisation. The Lord Chancellor. — I should have thought the question of the majority did not arise at all ; at the particular moment they are the beneficiaries of the trust, but the question is, What was the original purpose of the trust ? Mr. Haldane. — Your Lordships im port trust into this, but my contention is that, as clearly as could be, the Free Church intended to put its property at the disposition of the General Assembly at the time, which had powers over doctrine and exclusive jurisdiction. The Lord Chancellor. — If you make that out, that is a totally different pro position ; you do not require for that purpose your identity. Mr. Haldane. — My Lord, I think you do, because at any moment, when the question is raised : ' Is the Free Church ' administering its property according ' to its trust ? ' the question is, What does the General Assembly say ? The Lord Chancellor. — The General Assembly itself is a fluctuating body. Mr. Haldane. — That is the majority. Lord Davey. — If property is held on such trusts as the General Assembly may from time to time declare, we have nothing to do with that. Mr. Haldane. — That reaUy makes the Model Trust Deed a deed of vital importance to this case, because, at all events, it declares the trust. The Lord Chancellor. — I will teU you why I do not place so much rehance on the Model Trust Deed, because all these things which I consider constituted MR. HALDANE'S SPEECH the trust are antecedent to that Model Trust Deed ; what they intended to do and what they did do was agreed upon, so to speak, and the Model Trust Deed was only contrived for the purpose of carrying into effect what they had already determined, and therefore not itself constituting the trust for the whole Church, but as a mode of carrying into effect the disposition of different parts of the property which were intended to be applied for the purposes of the whole Church. Mr. Haldane. — My Lord, I would respectfully call your Lordship's attention to the terms of the Act which directed the Model Trust Deed to be drawn ; the framers of it were directed to identify the Church in it, which assumes that the trusts were not all complete. My learned friend spoke of it as a deed framed The Lord Chancellor. — Supposing they bought land, they had necessarily to convey it to somebody under certain trusts. Mr. Haldane. — To frame the constitu tion and ascertain the identity of the Church in their deed, these were their instructions. The Lord Chancellor. — The declara tion of trust, in whatever form it is, would, of course, be operative. Mr. Haldane. — Yes. There comes in the question of what importance is to be attached to this deed ; my learned friend Mr. Johnston referred to it as containing inaccuracies — fuU of inac curacies, I think he said. The Lord Chancellor. — I think Mr. Johnston only pointed that out to show that this was not the thing that constituted the trust, and that the person that drew it was rather imperfectly informed as to what the purpose was. Mr. Haldane. — If you assume that the trust was something different, I agree ; if you do not assume that the trust was something different, but look at it, it becomes a very different docu ment, and on the question of the person drawing it not knowing, let me draw your Lordship's attention to this, which appears from the resolutions which are set out in B, The deed was prepared 519 by the most eminent divines in the Free Church, under the advice of a very distinguished member of the Free Church, perhaps the greatest conveyancer Scot land ever had, Mr. Andrew Rutherfurd, who was a year or two afterwards Lord Advocate ; it was drawn by Mr. John Clerk Brodie, who was reputed to be the first draughtsman of the day in Scotland at the time ; it was settled by Mr. Murray Dunlop, the legal adviser of the Church, also a very great authority on constitutional law and history. The resolution appears in Print B, thank ing these gentlemen for the immense pains which had been taken by them, and by Dr. Candlish and Dr. Cunning ham, and the eminent men with whom they had been associated in drawing the deed. The Lord Chancellor. — They only dealt, I suppose, with the materials supplied to them, what we should call the instructions. One does not suppose that these distinguished persons made the Standards which have been pointed out. Mr. Haldane. — Yes; these were the people who came out and formed the Disruption, and they were as familiar with the. Disruption as any person could possibly be. They were distinguished members of the Church, and my con tention before your Lordships is that, so far from there being any standard in the Model Trust Deed, the Model Trust Deed is an authoritative and typical exposition of the constitution of this Church. When you contrast Lord Davey. — You are to go to a trust deed prepared and revised for the purpose of declaring the trusts of congre gational property, to ascertain the trusts with regard to general property. Mr. Haldane. — It is a very important element in my argument, if I can make it out. If I can estabhsh my contention with regard to congregational property, because it is not probable that two trusts were estabhshed of a different kind, one for general property and the other for the other. Lord Davey. — You have the Model Trust Deed, and there is another trust deed of the general property ; it recites 520 HOUSE OF an Act of Assembly declaring it shall be held for behoof of the Free Church. Mr. Haldane. — Yes ; but, my Lord, if the constitution is set out in a way that bears out my argument on the Model Trust Deed, surely that forms a strong argument that the constitution is the same for the purposes of the other trust, surely that must be so ; you cannot have two constitutions within the Free Church. Lord Davey. — I do not know what may be the constitution. The Lord Chancellor. — I do not know, I am sure. Mr. Haldane. — It is for those who assert it to make it out. The Lord Chancellor. — Taking the case of a convocation, deahng with its Church, I do not follow the argument that they must necessarily indicate the same constitution. I daresay they do, but I do not foUow the argument that they must. Mr. Haldane. — One has to see under what circumstances the Model Trust Deed was suggested, and under what circumstances it was prepared. The origin of it appears in the Act of Assembly which your Lordships will find at page 54 of A. This is in 1844, when, as it appears from the previous documents, they were making interim arrangements for Church government, and still in a state of development as regards their constitution : ' The General Assembly, ' having called for the report of a com- ' mittee appointed to consider the whole ' matter of a trust deed, the same was ' given in and read . . . and they unani- ' niously approve of, and recommend ' the Assembly to adopt, the third or ' intermediate plan recommended by the ' special commission of last Assembly,' that the Church be identified as in the Model Trust Deed; and then there is a provision as to majorities, which is relevant to another point, but the identification of the Church is directed. Lord Davey, — I looked very carefully through the Model Trust Deed, and I did not find any identification whatever of the Church beyond the fact that it was the Free Church of Scotland with a certain government, LORDS Mr. Haldane. — Well, my Lord, the last thing I want to do is to read over again this very long deed. I shah endeavour to answer your Lordships' questions, and I refer to Print A, page 66, at the bottom. This refers back to recitals ; it sets out the result of what has been done before. The Lord Chancellor. — This is a narrative of facts. Mr. Haldane. — Yes, my Lord ; it is a recital of the effect of what has been done : ' And whereas the said ministers and ' elders, and those who adhere to them, ' thus form a body of Christians, known ' by the name of the " Free Church of ' " Scotland," separate and distinct from ' the Established Church, as now re- ' cognised and endowed by the State.' Now, there is your ascertainment of what passed ; that throws you back upon the description of it that is to be got from the earher narrative of principles. My Lords, for that one must turn first of all to the bottom of page 57, where they start by saying what the Reformed Presbyterian Church in Scotland ought to have been ; they speak of it as a Church ' professing to be reformed from ' Popery by presbyters exercising ' (they describe what was the Reformed Presby terian Church — of course they are speak ing of the existing Established Church in its wider aspect as the Presbyterian Church) ' the functions of a Church ' of Christ within these realms, and, in ' particular, adopting and approving of ' a Confession of Faith and two Books of ' Disciphne, stiU extant, under these ' titles.' Lord Davey. — The Church was identi fied by its approving of a Confession of Faith. Mr. Haldane. — Yes, my Lord, but that is Knox's Confession of 1560, and not this Confession of Faith. Lord. Davey. — I know it is a different Confession of Faith, but the identifica tion of the Church is its approving of a Confession of Faith, the Scotch Confession. Mr. Haldane. — Yes, some Confession of Faith ; I quite agree that a Confession of Faith is a convenient and a very valuable piece of machinery to a Church, but the value of this recital is =- MR. HALDANE'S SPEECH The Lord Chancellor.— In that same The Lord Chancellor deed, lower down, I find that it refers to the later Confession. Mr. Haldane.— I will come to that, but my point here is Lord Davey.— What I meant by my interruption, which I apologise for, is that it bears out what the Lord Chan cellor said — that the means of identifying a Church or association of Christians is the doctrines which they profess. Mr. Haldane. — Hardly; here they say there existed in Scotland a Reformed Presbyterian Church ' professing to be ' reformed from Popery by presbyters ' exercising the functions of a Church | of Christ within these realms ' (that is one thing; that is your Church of Christ), ' and, in particular ' (this is something more), ' adopting and approv- ' ing of a Confession of Faith and two ' Books of Disciphne.' If your Lord ship were right, the Books of Discipline are just as vital to the identification of the Church. The Lord Chancellor. — I think this is all recital — historical. Mr. Haldane. — I agree, my Lord. The Lord Chancellor. — But when you come down you find ultimately that it becomes their Confession of Faith ; look at the possessive pronoun, ' but also ' its Confession of Faith, which it had ' adopted in the year 1647.' Mr. Haldane. — I agree, my Lord, but what is that ? It is a recital of the effect of the Act of 1690, an Act passed whereby the Church was again recog nised as the Established Church of Scotland — its synods and government ' was ratified and confirmed, and its ' ministers declared to have right to the ' maintenance rights and other privileges ' by law provided to the ministers of ' Christ's Church within the kingdom, ' but also its Confession of Faith which ' it had adopted ' — the particular one it had adopted. The Lord Chancellor. — It is ' its ' Confession of Faith ' ; I call your atten tion to the word ' its.' Mr. Haldane. — The Church was again recognised and its Confession of Faith, which had been adopted in 1647, is the one they had then. 521 That is the Westminster Confession. Mr. Haldane.— And then it goes on that the Church continued to have existence in Scotland as a Church of Christ, and was, during the whole period to May 1843, recognised and endowed by the State as the Established Church of Scotland. That is the Church which has been before referred to as having possessed the Confession of Faith of 1560 and the two Books of Discipline, and then is said to have its Confession of Faith, which it had adopted in 1647, obviously assuming that it existed apart from what it had adopted, because it had power to adopt. I pray that recital in aid of my argument. Then you come on to what I think is most material : ' And whereas it was at all times ' an essential doctrine of the said ' Church ' The Lord Chancellor. — I will teU you that I think you misunderstood what I was saying to you ; it gives a recital which is essentially historical of what had happened, and it then describes — in my view, you know ; I put that forward for you to discuss if it is inaccurate — its own constitution, and speaks of the Con fession of 1647 as being its Confession of Faith. Mr. Haldane. — Yes, adopted by it. The Lord Chancellor. — Adopted by it, certainly. Mr. Haldane. — That is most im portant. The Lord Chancellor. — Just observe what we are upon ; never mind about the adoption of that, because what we are concerned with is this, that when the Free Church was established — I do not mean technically, but when it was formed — what they said was, ' We are ' exactly the same in all respects as that ' Church which we have so described ' in respect of its doctrine — that is, its Confession of Faith — but the only thing ' in which we differ is the interference ' of the secular Courts.' Mr. Haldane. — I agree, my Lord, it had been adopted, and they ratified and continued the Confession in their own body, HOUSE 522 The Lord Chancellor. — Be it so, then; that I should have thought sufficiently identifies the Church on whose behaU this property is settled. Mr. Haldane. — No, my Lord, because they had adopted and they might adopt another, as had been done according to this narrative of the history. The Lord Chancellor. — At present you have not satisfied me that they had any power to do more than this, namely, that once having put it for the adoption, the inculcation and main tenance of the principles of the Church that they have so described in all respects but one, I do not see any power to change the destination of that property at all. Mr. Haldane. — My Lord, the power comes from what follows. You have recital first of all that the Church adopted one Confession of Faith in 1560 ; it then goes on to say that it adopted this Con fession, that is, the existing Confession, in 1647, thereby implying that the Church has some existence apart from the Confession of Faith, otherwise they could not have laid aside one to adopt another. Lord Davey. — It did not lay aside one ; it never laid aside the Scotch Confession at all, and it adopted the Confession of 1647 on the express ground that they found nothing in it contrary to their previous doctrines. Mr. Haldane. — Yes. They put it on the ground that they found nothing in it contrary, but it was quite a different Confession. Lord Davey. — They said there was nothing in it contrary to the accepted doctrines. Mr. Haldane. — The Confession of 1647 was in many respects different from that of Knox. Lord Davey. — We have heard that so often ; I am quite wilhng to hear it again. Mr. Haldane. — I understood your Lordship to say just now Lord Davey. — It was put to the Dean of Faculty several times : Did he say they differed ? and he said no, that they were different in language and in OF LORDS other respects, but he did not say that they differed in doctrine. Mr. Haldane. — They differ in minor points of doctrine. I do not think the learned Dean ever meant to convey that there were no differences between the two in minor points of doctrine; for instance, this very doctrine of pre destination, which we have been dis cussing The Lord Chancellor. — I do not see what we have to do with that earlier Confession, because the Confession which is the charter of this new body, is the Confession of 1647. Mr. Haldane. — Well, my Lord, your Lordship says the charter, and thereby begs the whole question. The Lord Chancellor. — I only used that phrase — I did not mean to conclude you by it, but it was in order to emphasise what I meant, that we have nothing to do with the earher Confession. Lord James of Hereford. — No; but I understand your proposition to be a very simple one, that be the variations small or great, if the Church could depart from the one earher Confession, Knox's Confession, and accept that of 1647, they had power to vary it stiU further. We have, of course, nothing to do with the earher Confession as it stands. Mr. Haldane. — Your Lordship has put my point exactly. The Lord Chancellor. — That is altogether a misapprehension of what has been suggested to you ; the Church as it existed then was the Estabhshed Church, and within its powers and authorities, whatever they were (I do not know, I am sure), it could do what it pleased, subject to the authority of those who were in the government of it. We are dealing here with the settlement of property in the year 1843, and gathering their view of what was to be the trust to which that property was dedicated by their then declara tions. Mr, Haldane. — Well, my Lord, I must venture most respectfuUy, but radically, to dissent from the implica tion that is in that ; my whole case is this, that the property was placed at MR. HALDANE'S SPEECH the disposition of the Assembly, a body which had exclusive jurisdiction. The Lord Chancellor.— Then I should quite follow you ; if you can make out from anything that appears in this that it was put at the disposition of the General Assembly, and that they were entitled to do what they pleased, I should agree with you. Mr. Haldane. — My Lord, it says so in the most unmistakable terms, unless they are cut down by something that has gone before ; it says so in the fourth Purpose, at page 72 D ; the trust is : ' That the said trustees, or trustee, ' acting for the time, shaU at all times ' be subject, in the management and ' disposal of the said building or place ' of worship, and appurtenances thereof, ' and whole subjects hereby disponed, ' and in all matters and things connected ' therewith, to the regulation and direc- ' tion of the General Assembly for the ' time being, of the said body, or united ' body of Christians, and shall be liable ' and bound to conform to, implement, ' and obey, all and every the Act, or ' Acts, of the General Assembly for the ' time being of the said body, or united ' body, of Christians in reference thereto.' Lord James of Hereford. — You say to preserve the identity only. Mr. Haldane. — That is the limitation I admit. If they have committed such an act of apostasy as to destroy their identity, the Court wiU say the identity is gone, but I say the minority can never represent the Assembly. The Lord Chancellor. — And the majority of the beneficiaries can never alter the trust of which they are bene ficiaries. Mr. Haldane. — Your Lordship intro duces the term ' beneficiary,' and thereby, if I may respectfully say so, begs the whole question against me. I con test it as respectfuUy and firmly as I may. Lord Davey. — Use whatever term you please: Trust, or whatever term you prefer. Mr. Haldane.— I prefer to say that this property is put at the disposition of the General Assembly, which is a body acting by the majority. 523 Lord Davey. — Are you dealing with the congregational property now ? Mr. Haldane. — I am talking of the constitution of the Free Church ; all property, conveyed under this deed which is adopted for congregational purposes Lord Davey.— Are you talking of the property conveyed by this deed, or of the general property 1 Mr. Haldane. — I am talking only of property conveyed upon this deed, and that is a great deal — a miUion and a half of property. Lord James of Hereford. — If I were you, I would not shrink from the proposition that the subject of the trust cannot alter the objects of the trust. Mr. Haldane. — I do not shrink from that ; the subject of the trust, if I am right, is endowed with very large powers. Lord Davey. — I have no doubt, in all matters of management, the voice of the Assembly probably would direct whether a portion could be sold and another portion bought. Mr. Haldane. — My Lord, as regards doctrine, government, and discipline. The Lord Chancellor. — I am afraid we get back to the old proposi tion, whether you could devote this to the propagation of the Roman faith. Mr. Haldane. — I have got a good deal I want to say upon that, my Lord. The Lord Chancellor. — I do not want to restrict your argument at all, Mr. Haldane, but it might make some difference in the arrangements we have to make if you could give us some idea of when you anticipate closing your argument. Mr. Haldane. — I am deeply sensible of the extent to which we have encroached on your Lordships' time, and if it were not for the vitally important character of this case The Lord Chancellor. — Long as it has been, and it has been long, I do not at all say it has been longer than the importance of the case demands. Mr. Haldane. — I should aim at finish- 524 HOUSE OF LORDS ing by about one o'clock on Thursday, and I might get within that time. The Lord Chancellor. — You think we may hope that you would not go beyond Thursday. Mr. Haldane. — So far as I am con cerned, 1 should hope to come to a con clusion, so as to give my learned friend full scope, and allow the case to conclude on Thursday, but I do not know what length his reply may be. The Lord Chancellor. — Thank you; I am much obliged. (Adjourned to Thursday next at half- past ten o'clock.) NINTH DAY THURSDAY, 23rd JUNE 1904. Mr. Haldane. — My Lords, I have been in consultation with my learned friend Mr- Johnston about time, and I think I can finish what I have to say to your Lordships before one o'clock, in which case the rest of the day, my learned friend thinks, will be enough for his reply. Of course, as your Lord ships know, topics may arise and diffi culties emerge which defeat one's in tentions and purposes in that respect, but I hope to be able to compress what I have to say. The Lord Chancellor. — I notice you say topics may arise. Mr. Haldane. — I made an observa tion on Tuesday, which I will begin this morning by referring to. That observa tion was, That the legal conception in this case is not the difficult one. The difficult conception which a court of law has to deal with is, What was the historical and theological attitude of the parties. The Lord Chancellor. — ' What was ' the purpose of the trust ? ' I think more than one learned Judge has used that phrase. Mr. Haldane. — We are all agreed there was a contract and trust of some kind ; the question is, what it was. That depends upon a survey of the events which occurred immediately prior to the Disruption and the events which were contemporaneous with the Dis ruption itself. One has really to deal in this matter with the interpretation of the intentions, as -manifested in their deeds and words, of a body of men who played a historical part prior to and immediately after 1843. Two views may be taken of what they did. One view is that the essence of the Dis ruption consisted in the separation of those men, and the accumulation of a certain sum of money in the hands of trustees, which was to be devoted to the trust purpose of preaching a certain doctrine. That is one view, and if it is a proper view, then, of course, ab initio, the Courts have the power of coming in and saying, ' You shall not ' deviate from your trust.' If that were correct, the very day after the Dis ruption, notwithstanding the assertion of spiritual independence, it would have been open to anybody to go to the Courts and apply for an interdict agamst the diversion of the funds. That is not an immaterial observation. Your Lord ships find that, although the Free Church proclaimed the Confession as its standard, the Free Church proceeded at once to make a modification upon Confession. The Confession of Faith which I will ask your Lordships' attention to in the Print, because there is not enough of it in the other book, is printed at page 124 of F. It contains two articles which are very material upon this point. The first I want to refer to, though it is not the first in order, is Chapter XXIII., at page 148, about the Civil Magistrate. In that it is laid down — and I do not want to read it again — that the duty of the Civil Magistrate is ' to take order, that unity and peace ' be preserved in the Church, that the ' truth of God be kept pure and entire, ' that all blasphemies and heresies be 1 suppressed, all corruptions and abuses ' in worship and discipline prevented or ' reformed, and all the ordinances of ' God duly settled, administered, and ' observed. For the better effecting ' whereof, he hath power to call synods, ' to be present at them, and to provide ' that whatsoever is transacted in them ' be according to the mind of God.' Again, on page 145, there is another passage on the same topic — the fourth head of Chapter XX., between A and B, ' And for their publishing of such • opinions, or mamtaining of such practices ' as are contrary to the light of nature, ' or to the known principles of Chris- 526 HOUSE ' tianity, whether concerning faith, wor- ' ship, or conversation ; or to the power of ' godliness ; or such erroneous opinions ¦ or practices, as either in their own ' nature, or in the manner of publishing ' or maintaining them, are destructive ' to the external peace and order which 1 Christ hath established in the Church ; ' they may lawfully be called to account, ' and proceeded agamst by the censures ' of the Church, and by the power of ' the Civil' Magistrate.' Your Lord ships observe, for wrong doctrine they may be called to account and proceeded against, not only by the censures of the Church, but by the power of the Civil Magistrate. That doctrine was not unnatural at that time. At that time the Solemn League and Covenant had just been concluded between the ParUament of Scotland and the ParUa ment of England — a league which, if it had borne fruit, would have abolished Episcopacy in England. It was a league, the purpose of which was to establish the Presbyterian form of worship for the entire kingdom of England and Scotland, and I think Ireland also, and the Westminster Con fession was framed with this in view, that that league had been concluded between the two Parliaments. The Lord Chancellor. — That is not quite accurate, I think. As, indeed, I think, the recital of the Westminster Confession itself says, the object was to establish uniformity of religion in the three kingdoms. There is no doubt that when they came to discuss the question of Church government, what you say is quite true, but the object was to establish uniformity of religion. Mr. Haldane. — I think it was limited to that. AU I meant was, it was passed with this view that there had been this covenant, under which there was to be a uniform system of Church government all over England, and consequently it proceeded on the footing that there would be that uniformity. The materi ality of it is this. The position of the Establishment at that time was some what different from what the position of Establishment ultimately became. The Lord Chancellor. — I rather OF LORDS think what you are now glancing at formed part of the argument of the minority of the Judges when the Auchter arder Case arose. Mr. Haldane. — I think it was before them then. The Lord Chancellor. — Anything done after that must be assumed to have taken the form of what the majority of the Judges determined. , Mr. Haldane. — Yes, my Lord; but my observation was that the Establish ment as it occurred in the Confession was an Establishment principle which assumed a different form from what it came to assume two centuries after, when there had arisen various secessions from the Estabhshed Presbyterian Church. This Confession is framed on the footing of there being only one Church in their mind. Lord Davey. — The conception of the Confession of Faith was reaUy a theoc racy where the Church and State were in fact one, but looked at from different sides. The power of the civil ruler, and the power of the rulers of the Church, wielding the powers of the keys, both proceeded from the same source, and were only two instruments for the government of the world. Mr. Haldane. — Yes, my Lord; two instruments existing together. Lord Davey. — Yes. Helping each other within their own province and sphere. Mr. Haldane. — They are co-ordinate. The Lord Chancellor. — In that con ception there could not be more than one Church. Mr. Haldane. — There could not be more than one Church, and at that time, as a matter of fact, people were contem plating that there should not be more than one Church. What took place subsequently was that the Presbyterian Church broke up, that is to say, there were secessions from it, and when you come to 1843, the Established Church was only one Church out of a number of other Presbyterian Churches — no doubt the largest and most important, but still only one. The persecuting principle had been established in the Confession of Faith in 1647, not alto- MR. HALDANE'S gether unnaturally, having regard to the fact that only one Church was con templated. When the Free Church came into existence, almost the first thing it did, as soon as it constituted its Formula, was to change the Confession of Faith by eliminating the persecuting principle. I need not refer your Lordships to it again, but there is this very important fact, that the Formula of 1846 was couched in terms which did not require people to accept the persecuting principle. My Lords, it is worth just glancing at for a moment, because it was a radical change. Lord James of Hereford. — Page 145: ' By the power of the Civil Magistrate.' Is that power accepted by the Free Church now ? Mr. Haldane. — No, my Lord ; it was repudiated in 1846, at the time of the Disruption. It is the power of the sword. Lord James of Hereford. — In terms ? Mr. Haldane. — In terms, my Lord. That is the point of my observation, because, if you look for a moment at the Formula of 1846, which is printed at page 84 of Print A, you will see at page 85 they put it in the form of interpreta tion. ' And the General Assembly, in ' passing this Act, think it right to declare ' that while the Church firmly maintains ' the same Scriptural principles as to the ' duties of nations and their rulers, in ' reference to true religion and the Church ' of Christ, for which she has hitherto ' contended, she disclaims intolerant or " persecuting principles, and does not ' regard her Confession of Faith ' — what she has adopted out of the Confession of Faith of 1647 — ' or any portion thereof, ' when fairly interpreted, as favouring ' intolerance or persecution, or consider ' that her office-bearers by subscribing ' it profess any principles inconsistent ' with liberty of conscience and the right ' of private judgment.' The Lord Chief Justice. — You do not contend that that varied paragraph 3 of Chapter XXIII. ? Mr. Haldane. — Yes, my Lord. The Lord Chief Justice. — It says, No intolerance or persecution. I am speaking of page 148, paragraph 3— the one you read. SPEECH 527 Mr. Haldane. — It says : ' He hath ' authority, and it is his duty, to take ' order, that unity and peace be preserved ' in the Church, that the truth of God be ' kept pure and entire, that all blasphemies ' and heresies be suppressed.' The Lord Chancellor. — I could imagine that those words might be satisfied without any persecution. Lord Davey. — You can suppress heresy by degrees, teaching the truth. The Lord Chancellor. — There is no necessary absolute contradiction between them, surely. Mr. Haldane. — My Lord, I think that my strongest passage in this is page 145, the one I read, where it is said that anybody who maintains erroneous opinions may be proceeded against by the power of the Civil Magis trate. Lord Davey. — What are erroneous opinions ? Mr. Haldane. — ' As favouring in- ' tolerance or persecution, or consider ' that her office-bearers by subscribing ' it profess any principles inconsistent ' with liberty of conscience and the right ' of private judgment.' Surely it is within the right of private judgment to form erroneous opinions. Here, not unnaturally, the definition of 1843 put in a clause making it a duty of the State to take ' order that erroneous opinions be suppressed, if necessary, by the power of the sword. The Lord Chancellor. — All I say is that that is not necessarily persecution. Mr. Haldane. — I will caU it the suppression of erroneous opinions by the power of the sword. Lord Davey. — It was the prima facie construction, and I have no doubt that is what was meant, but the Church is at hberty to say, in accepting the Con fession of Faith, ' We accept it with ' this interpretation.' The Lord Chancellor. — If you turn • a man out of his manse because he preaches different doctrine to that which the Church authorises, I suppose the Church has no power to turn him out, but the Civil Magistrate may turn him out if he does not obey what the author ised authority compels him to do. I 528 HOUSE should hesitate to describe that as persecution. Mr. Haldane. — Is it not a httle more than turning him out ? The Lord Chancellor. — Perhaps I had better put more plainly what I mean. It is always easier in the concrete to discuss it. Supposing a man preaches a doctrine against the Confession, I presume there is some power in the Church to displace him. Mr. Haldane. — Yes. The Lord Chancellor. — Then, if he will not leave his manse, there is no power in the Church then. You must get the secular arm then, and bring an action of ejectment in this country, and whatever is equivalent to it in Scotland, and turn him out, and then you bring in the Civil Magistrate. Mr. Haldane. — Yes. The Lord Chancellor. — That is not persecution. Mr. Haldane. — It is not confined to that here. It is anybody who entertains or practises erroneous opinions which are ' destructive to the external peace ' and order which Christ has established ' in the Church ; they may be lawfully ' called to account and proceeded against ~ ' by the censures of the Church and by ' the power of the Civil Magistrate.' The Lord Chancellor. — I think you are reading the word ' proceeded ' there in rather a technical sense. Mr. Haldane. — On page 148 you have it again. He is ' to take order . . . ' that all blasphemies and heresies be ' suppressed, all corruptions and abuses ' iu worship and disciphne prevented or ' reformed, and ah the ordinances of ' God duly settled, administered, and ' observed.' The Lord Chancellor. — So far as blasphemy is concerned, that is an offence against the English law and the Scotch law, I presume. Lord James of Hereford. — Reading on, it says, ' for the better effecting ' whereof he hath power to call synods.' Mr. Haldane. — That is an action. Lord James of Hereford. — That is much more than an action of ejectment, or anything of that kind ; it is to call the synod. OF LORDS is Mr. Haldane. — Taking that point, one cannot conceive that the Free Church meant, when it came out, that their synods were to be at the call of the Civil Magistrate. That would be totally inconsistent with the very con ception of their Church. Their synods were to be called by themselves ; Christ is the only Head. To be at the caU of the Civil Magistrate would be totaUy inconsistent with that conception. What I mean is, they did in 1846 exactly what they do now. They proceeded to inter pret the Confession of Faith in a way which, in my view of it, amounted to a modification. They did it in 1846, and if my learned friend's argument is right, they did it at the risk of an inter dict which could have been obtained the next day from the Court of Session to restrain them from so doing. The relevancy of that argument is this. There are two conceptions of this case ; one is that in 1843 what really happened was that a sum of money was gathered together and put upon certain trusts to preach a certain doctrine, the doctrine which is contained in the Confession, and other doctrines. The other view is this, that the first thing they did when they came out, as the result of their controversy, was to establish a Church, and then a subsequent step was to gather together the property for the use of that Church, and to put it at the disposition of the Church. I referred your Lordships on Tuesday to the terms of the Model Trust Deed which I said bore that out. I want now to say a little more about what the nature of that Church was. The word 'Church' is not a juridical ex pression, and my Lord on the Woolsack has pointed that out, but it is an expres sion which, of course, varying in its application has been very well known from time to time in ecclesiastical history. There have been numerous definitions of it. Broadly spoken of, a church is an organisation, on a permanent basis, of persons who come together to worship. They are a spiritual com munity, and theh purpose is to belong to this spiritual community. They are a theocracy, and their purpose is that, MR. HALDANE'S SPEECH held together by certain common religious consciousness they may express them selves, and exercise themselves, by certain observances and acts of worship. That, of course, is a purely theocratic con ception and contains nothing that a Court of law can interfere with. But, of course, they have their visible expression. The visible expression of the Church is its form of -government and its member ship. Such a theocracy implies some form of government. That is not peculiar to Churches ; it is the character istic of every incorporated body, for that matter, and every unincorporated body, which is to have a permanent existence notwithstanding the change in its members. Take, for example, a club like the Athenaeum Club ; it is unincor porated, and its members are constantly changing. The test of its identity is to be found by looking at the history ; it is the same continuous thing which has been administered by a committee and under the direction of a majority of the members in general meeting, and preserving the identity of the club through the changes of the members. There may not be a single member who was there fifty years ago, but the club remains the same. That, my Lord, is a very faint illustration of the principle which you have in the case of a Church. In the case of a Church, you have the worship, you have certain principles, you have the common life of the members carried on, and it is not true to say that the identity of a Church consists of the doctrine which it holds. Let me give your Lordships an illustration. Suppos ing at the Disruption there had been eleven more bodies which had seceded, not from the Established Church, but had come together elsewhere, all of them holding precisely and identically the same doctrine as the Free Church, yet they would not have constituted the Free Church. The Free Church was this body of particular individuals who came together, who gave themselves a certain constitution, had a local habitat, and had a certain identity— they were particular persons. Its identity is the identity of an individual human being. It is not the colour of his eyes, nor 2 L 529 his opinions, nor his appearance, because that changes from time to time ; it is the continuity of his life that his identity lies in. The Lord Chancellor. — I doubt that very much. I think we are getting back into Bishop Butler's thesis on the subject of personal identity, which is a little metaphysical and remote from what we are doing here. Lord Davey. — I thought the identity of an individual was the continuous self-consciousness. Mr. Haldane. — Yes, my Lord, the element of continuity comes in, I agree. Lord Davey. — Continuous self-con sciousness, I thought. I am conscious ; there has been no break in my consciousness from the time I can remember. Mr. Haldane. — I think your Lordship is giving the right definition, but your Lordship is travelling into a high region which I was trying to keep short of. The Lord Chancellor. — That is what I was thinking you were doing, and I rather protest against it, in truth. Mr. Haldane. — But in everyday par lance, wherein is the identity of a man's existence ? The Lord Chancellor. — I do not know. There is a somewhat ludicrous form of representing that, in which a particular garment is represented in which one part is renewed, and another part is renewed, then what is the identity of the garment ? Mr. Haldane. — There you have the absence of hfe, and it is a very good illustration your Lordship has given of the antithesis of what I am putting. It is the continuity of life — the continuity and association in the form of govern ment. The Lord Chancellor. — That gets us into the question of what life is. Mr. Haldane. — In the case of a club, which is the illustration I took, it is the continuity of the existence of its govern ment. The Lord- Chancellor. — I should doubt that very much, because the form of government of a club varies very much. I have myself known in stances in which they have entirely 530 altered their views, and yet it purported to be the same club. Although, as you say, these iUustrations perhaps do not carry us very far, the Memorandum of Association of a company is a much nearer analogy ; you cannot go out of the Memorandum of Association. Mr. Haldane. — No, my Lord, but you have the Articles of Association also. The Lord Chancellor. — I expect if you looked at the origin of the Athen aeum Club you would find it supported to be an association of members devoted to science, or literature, or something of that sort. Although I happen to be a member of it, I do not remember what its charter is, but it is something of that sort, and almost any club that is formed has some written memorandum of what they purport to meet and associate for. Mr. Haldane. — Yes, and most clubs have power to change the rules. The Lord Chancellor. — Yes, but pre serving what you would call the identity of the club. Mr. Haldane. — Yes, very often a power which would extend to change the original objects. The Lord Chancellor. — That I very much doubt. Mr. Haldane. — Some club rules cer tainly have such a power. The Lord Chancellor. — There may be such clubs. Mr. Haldane. — My point was, assume such a case, the identity of the club remains. Lord Davey. — A club is not often kept together by the members of it holding the same opinions on any question — social clubs. Mr. Haldane. — They sometimes change, and remain the same club. The Lord Chancellor. — There would be a difficulty about the Reform if you enter into the question of its original purpose. Mr. Haldane. — I think there would be. Lord James of Hereford. — The Re form is now very catholic. Mr. Haldane. — It is now very catho lic, but I am not sure it would not have been heretical some years ago. The Lord Chancellor. — Here, where you are dealing with those associated HOUSE OF LORDS for a religious purpose, they are associ ated for a purpose which in their view is immutable. I mean, if it is the Truth of God, you cannot expect that to change. Mr. Haldane. — No, of course. I have said there are certain fundamentals which belong to their government here : the Headship of Christ, the Preaching of Christ's Word, the Scripture as the only paramount Standard, and I think also probably the Presbyterian form of government from some expression in the Model Trust Deed. Be that as it may, my point is, that the membership of the Free Church did not depend on what opinion you held ; it depended upon being admitted to their organisa tion, and being subject to their discipline. You only came to be a member of the Free Church if you came within the organisation, and the differentia of the organisation was that it was under the control of those Church Courts which, as I described on Tuesday, culminated in the Assembly which contained the office-bearers representative of the Church of Christ. Lord James of Hereford. — Is there anything about the power of the Civil Magistrate beyond paragraph 4 of page 145 which you quoted ? Page 86 A, I think, is the repudiation. Mr. Haldane. — I think so. Lord James of Hereford. — There is no other ? Mr. Haldane. — I think not — no, my Lord, except so far as the Declaratory Act of 1892 may be said to be one ; but earher than that, I think not. Lord James of Hereford. — It does not go beyond that ? Mr. Haldane. — I think not. The Lord Chancellor. — The De claratory Act of 1892 put in very plain form what the views of those who were framing it meant. Has that ever been acted upon in the Church ? I mean if there were persons who were disposed to refuse the authority of the Church to change its doctrine, has that question ever risen ? Mr. Haldane. — I think not, my Lord. The Lord Chancellor. — If so, have MR. HALDANE'S SPEECH the people been turned out of their manses for holding it ? Mr. Haldane. — I want to give your Lordship tho accurate answer to that, and if I may, I will consult my client. (After consultation.) Not under the Declaratory Act, my Lord. There have been people turned out for heresy,1 but it has nothing to do with the Declaratory Act. Lord James of Hereford. — Does para graph 4, of the doctrine of 1846, accord ing to your argument, in any way alter the Confession of Faith, or only declare it? Mr. Haldane. — According to my con tention, it was an alteration of the Con fession of Faith. The point I am laying stress on is that what was done in 1843 was to found, in the first instance, before there was any talk of property, a Church, that is to say an organisation with a particular form of government, that particular form of government being based upon the constitution of the old Established Church as understood by the Free Church — as claimed in the Claim of Right to be truly viewed accord ing to the view put forward by what became the Free Church. I have laid stress on this because here we have a question of identifying the beneficiary, and my argument comes to this, that if you find the majority acting within their competency The Lord Chancellor. — You slip in those words : ' acting within their ' competency.' You are immediately assuming the question in debate. Mr. Haldane. — I am not going to evade that, my Lord. The Lord Chancellor. — If you put in those words, then the proposition comes to nothing, because if they are competent to do it they are competent to do it. Mr. Haldane. — I was coming to my limitation in a moment. Your Lordship may not accept it, but I was going to state it. The majority acting within their competence, that is to say, acting as a majority, continue the history of the Church. What you have to look to when you want to identify the bene- 53i ficiary, is what is the shape which the Church in the form of that majority assumes at the time at which the ques tion arises. It depends, according to my view, just as the identity of a club would depend, on whether its consti tution at a particular time was the outcome of the work of the majority acting in general meeting within their powers. So here you have to look at the historical question : how has the Church developed, and what is the Church at the time at which you come to deal with it ? Now I come to the hmit of that. My Lords, according to my conception of the Free Church— I am going to argue it in a moment, but I am stating my proposition — the Free Church was absolutely exclusive, by the intention of its founders as manifest in their documents and in their actings, of the power of the Civil Court to enter and scrutinise their doctrines. There would have been no power to interdict anybody or raise any question of interdict upon the question whether the Formula changed the Confession. There could have been no question as to the propriety of the Church commissioning a minister to preach the True Gospel, although it might be held that free doctrine amounted to antinomy. In my view it was the element of the Church to determine the question of doctrine, and the Civil Court which had the civil authority was bound to accept the interpretation which the contract assigns to the Church exclusively. But I say, admitting certain elements, the body which did that must not destroy its identity. It must not commit such an act of apostasy as to make it no longer the Church acting through the majority of the members of the Assembly who were doing this. The paramount Standards of the Church were that Christ was its Head, that His Word was its only rule, and I think also — and I am not so sure of this — the Presby terian form of government. I will give your Lordships my reason for that view presently. If that is right, then, if the Assembly was committing an act of apostasy against these doctrines 1 Those ministers of the Free Church of Scotland who protested against the Declaratory Act, and formed the Free Presbvterian Church were not proceeded agamst for heresy. Actions were raised in January 1894 against two such ministers to have it' declared that, having ceased to be ministers of the Free Church of Scotland, they were not entitled to retain possession of the churches and manses occupied by them. 532 and was repudiating them, _ it was, as it were, committing suicide, and destroying its own existence. One might get into very difficult questions there as to when the right of the Court came in to say the beneficiary of the trust, the Church, has ceased to exist, but my contention before your Lordships is that anything we have done here is a long way on this side of anything of the kind. What have we done after all ? My Lords, we have entered into union with another body — the United Presbyterians. In all the things which I have just now wrongly or rightly described as the only essentials, we are entirely at one with the United Presbyterians. We accept with them the Headship of Christ, and accept with them His Word as the only rule of faith, and with them we accept the Presbyterian form of government. There are minor matters altogether on which we are agreed, as, for instance, the duty of the Civil Magistrate to observe re ligion. They hold that just as strongly as we do, both of us in that principle falling far short of a duty at any time to set up a form of Establishment. The Lord Chancellor. — With refer ence to your present observations, do you mean that only means that the Civil Magistrates ought themselves to be rehgious men ? Mr. Haldane. — No, my Lord; they officiaUy ought to enact that the Sabbath be observed, and the marriage laws be religious, and so on. That is set out in the heads on page 203 of F. Lord James of Hereford. — Those would be the laws of the land as well as the laws of the Church. Mr. Haldane. — Yes. It is the duty of the civil state to be rehgious. It is a creed held by many Churches. Lord James of Hereford. — Held by every Church ? Mr. Haldane. — I will not say every Church, but nearly every Church. Lord James of Hereford. — At any rate, the converse could not be held. Mr. Haldane. — No, my Lord, the converse could hardly be held. The Lord Chancellor. — Either you HOUSE OF LORDS you go too far or not far enough. What do you say is the religion of India ? Mr. Haldane.— The duty of the Civil Magistrate, I take it, is an abstract expression of the duty of the State in which the Church exists. I think your Lordships will find some very acute dis cussions which have taken place both within the Dissenting Churches and the Estabhshed Churches as to whether the Church in England has done right, as, for example, in the subsidies it has given to Mahometan colleges, and such hke. The Lord Chancellor. — Where you speak of the duty of the State to form rehgion, that either means that there must be a rehgion of some sort or another, in which case it means nothing, or it must mean that there is some one particular rehgion bound together by some great principle. You say the Headship of Christ, and therefore I gave you the instance of India. What is the rehgion of India, and what State support or adherence to it is there in the rehgion of India ? Mr. Haldane. — My Lord, the creed that is held by the two Churches may or may not extend to India ; it may or may not be confined to this country. All I mean is, that in the document, page 203 of F, the statement of principles on which the two Churches are agreed, you will find national rehgion insists on Sabbath observance. It is on page 204 : ' That the Civil Magistrate ought ' himseU to embrace and profess the ' religion of Christ ; and though his office ' is civil, and not spiritual, yet, hke other ' Christians in their places and. relations, ' he ought, acting in his pubhc capacity as ' a magistrate, to further the interests of ' the rehgion of the Lord Jesus Christ ' among his subjects, in every way con- ' sistent with its spirit and enactments ; ' and that he ought to be ruled by it in ' the making of laws, the administration ' of justice, the swearing of oaths, and other matters of civil jurisdiction.' Then they deal with marriage, and so on. The Lord Chief Justice. — I have read that document very carefully, and it seems to me that the whole of that MR. HALDANE'S SPEECH 533 Was for the purpose of accentuating the claim of the Church to spiritual inde pendence as distinguished from what I may call the principle of Estabhshment, where the State supports religion, if you look at page 205, paragraph 6, it says : ' That the Church cannot lawfully ' surrender or compromise her spiritual ' independence for any worldly con- ' sideration or advantage whatsoever.' I cannot find anything in that doctrme which is inconsistent with the Confession of Faith from the point of view of the Civil Magistracy. Mr. Haldane. — I simply gave it as an illustration of my contention. In 1900, the two Churches agreed, and the Free Church thought that they had reached a sphere in which what was most obvious was that the two Churches were working practicaUy upon the same lines. Sixty years had elapsed since the Disruption. The idea which the Free Church held of restoring the Estabhshment in a purified form had become academic ; it was, in their judgment, very unlikely that the State would take any such step as would recognise that complete spiritual in dependence in an Estabhshed Church which they aimed at, and they said : ' After all, what is our paramount ' purpose ? It is the worship of God, ' the religion of Christ, which is the ' teaching and doctrine which we hold in ' common. Our spheres of usefulness ' are overlapping. We think the most ' important thing would be to combine ' these spheres of usefulness for more ' completely carrying out the principles 'which are in common. The other 'matters belong to a subordinate ' position, and, in the lapse of time, may 'become less important.' What I am driving at is that what they did was to make an interpretation of their principles as they were held in 1843. It may or may not have been in the nature of an alteration, but if it was in the nature of an alteration, it was an alteration made for the purpose of giving effect, in the completest fashion it could, to their paramount purpose— the preaching of the Word of their Master. That was an object which the two Churches held m common, and the Free Church considered that it was entitled to subordinate the manner to the measure, and to put that forward. Whether that was interpreting or altering, they considered it was within their competence to do^Jt, and the reason they so considered was that they held in 1843 that the first thing they had done was to constitute themselves a Church, with certain powers to which I will refer ; that the property had been put, not upon certain defined trusts, like the congregational property, which was the subject of the adjudication in the case of Craigie v. Marshall, where there was a specific trust, but that the property had been put at the disposition of the Church, acting, in the case of the congre gational property, through the majority of the Assembly, which had in express terms, by the fourth purpose of that deed, power to direct, in all respects, how the trustees should dispose of that property. They considered that that being so, they were free, and they did it because they claimed to base themselves upon the conception of the Church, which the Courts had held to be wrong, but which none the less they were entitled to say, ' Is our interpretation, ' which we adopt and put into the ' organisation which we are contracting ' to bring into existence,' — the interpret ation of Lord Moncreiff, at page 174 of Print F. It was held by your Lordships' House that this interpretation could not be maintained consistently with the con ception which regulated the Estabhshed Church, but Lord Moncreiff said : ' I ' had learned in my earhest studies of ' the law of this country, and had believed ' it to be no subject of doubt or contro- ' versy, that the Presbyterian Church of ' Scotland, as originally constituted in ' its early history, and as finally estab- ' lished unalterably by the statutes of ' the Revolution, and the Union of the ' Kingdoms, possessed, by its courts of ' general assemblies, synods, presby- ' teries, and kirk-sessions, formed and ' modelled within it, powers and juris- ' dictions, both judicial and legislative, ' in all matters spiritual and ecclesiastical, ' absolutely independent and exclusive, ' except as limited by express enactments ' of the legislature not here in question, 534 ' and which no Civil Court, itself created ' by the State for other ends, could ' touch or control.' That was their conception of the Church which they wished to carry on in a contractual form, and with that wide conception, if one asks what were their intentions, can it be for a moment doubted that if interdict had been sought, the day after the Disruption, by somebody who said : ' No, you ought not to put that ' interpretation on the Formula.' Sup pose somebody in 1846 had said : ' No, ' you had no business to put in those ' words about persecuting principles,' can it be for a moment supposed that the Free Church would have considered that the Court was intended by their constitution to have had jurisdiction to discuss that question ? They would have said : ' No, the very thing for which we came out was to get inde pendence of the decision of this Court on this question of doctrine, and so far as property comes in, our property was accumulated after we had become a Church, and was intended to be held at the disposition of the Church, con stituted with these powers of legislative independence.' That was no notion which was contrary to the one conception, at all events, and indeed to the history for that matter of the Church from which they had broken away. I am not going over it again, but I remind your Lordships of what the Estabhshed Church had done. In the first case it had come together in 1560, not by any Act of Parhament, but by a conven tion of the people. Mary of Guise had just died, the Queen was out of Scotland, and the estates met the ministers ; and in 1560, without any Act of Parliament, they constituted the Church, and they proceeded to adopt a Confession of Faith — Knox's Confession. In 1566, that same Assembly of that Church approved another Confession, • — the Helvetic Confession, to which your Lordships have had the reference, — with certain exceptions, not as the Confession of the Church, but as an exposition of its doctrine. In 1578, the Assembly, asserting its legislative power, adopted the Second Book of Discipline. In 1580, HOUSE OF LORDS the Assembly had declared Episcopacy to be without warrant and without God's Word. In 1581, the Assembly had erected presbyteries. In 1590, the Assembly ordered subscription of the Second Book of Disciphne ; and in 1638, adopting the National Convention, ab jured the five Articles of Perth, abjured the bishops, and abjured Episcopacy. What the Free Church claimed to be successors to, undoubtedly was to have legislative power of a very large order indeed. In 1560 it adopted a Confession In 1647 it adopted another Confession before the State had intervened, the preamble to the Act of Assembly adopting it showing that the Assembly considered it was acting within its powers in adopting another Confession to supersede that of Knox. There was a material difference between Knox's Confession and the Westminster Confession. Knox's Con fession was silent about Sabbath observ ance. Knox had very httle to do with Presbyterianism strictly so named. The form of Presbyterian government was varying in the years which followed him, and his more recent biographers show that however stern he was about doctrines and pohtical questions, he was very easy going about dancing and Sabbath ob servance and other matters which became much more stringently regarded later. The Knox Confession is silent about the Sabbath. The Westminster Confession is rigid about it. Knox is silent on the doctrine of the Procession of the Holy Ghost. That, your Lordships may know, was the subject of a great filioque con- versy in earlier years, and always the subject of controversy in the Church. The Westminster Confession settles it one way, and Knox's Confession says nothing about it. Lord Davey. — Knox's Confession may be taken, where silent, to accept the views of the Western Church. The Western Church was divided from the Greek Church on that question, as we all know. The Greek Church left out the words ' filioque.' Mr. Haldane —They did. Lord Davey. — Knox's Confession must be taken to have assumed the current theological doctrine of the day where it is silent. MR. HALDANE'S SPEECH Mr. Haldane. — I would not like to make an admission to your Lordship on that, but I think it very improbable Knox would have taken any other view if his attention had been directed to it. My point is, that in the Westminster Confession, the doctrine is expressly laid down, and Knox's Confession does not deal with it. Lord Davey. — It is a much fuller Confession. It purports to cover the whole ground of Christian doctrme, almost. Mr. Haldane. — Yes, the doctrme of election is much more prominent, and is in a much more abstract form, in the Westminster Confession than in Knox's. Persecution is more prominent in Knox's Confession than in the Westminster Confession, because in Knox's Confession you find it most unmistakably laid down — the duty of the ruler to use the sword agamst those who are heretical. The Lord Chancellor. — You must take that to be a figurative expression. It means what the Roman Church always described as the ' secular arm.' I think an action of ejectment would be within the meaning of those who drew up that. Mr. Haldane. — Or the burning of a heretic. I cannot forget that Calvin burnt Servetus. I do not know whether Knox would have burnt anybody. The Lord Chancellor. — I am not prepared to say he would not, at present. I am simply commenting upon the meaning of the word. When you speak of the ' keys ' and ' sword,' one means the spiritual and the other the secular arm. What the secular arm may do, and did do, in the course of history is not the question. You need not neces sarily use the word 'sword' as an instru ment which will kill. Lord Davey. — Any coercive jurisdic tion would be that. The Lord Chancellor. — Yes. Mr. Haldane. — All I meant was that in the adoption of the Confession in 1647 in supersession of that of Knox the Assembly had taken a step which had no meaning except the assertion of a legislative power they possessed. Under the Second Book of Discipline they made an ordinance which abro- 535 gated a previous doctrine of theirs, and adopted a new Confession. I do not want to more than enumerate them, but they made various statutes from time to time about the form of subscription ; they altered the terms of the Formula, they passed various Acts which culminated in the notable one about spiritual independence, and not the least of all they passed three Barrier Acts which may have given no legis lative power in themselves, but which recognised that not only did the Church claim legislative power, but that it was exercising it and thought it necessary to put some restriction on the power of the majority to exercise legislative power. Lord Davey. — Your first Barrier Act purported to give the power. Mr. Haldane. — What it purports to do is to restrict a power which is recog nised as already existing. Lord Davey. — What it said was you cannot make changes except by the General Assembly. Mr. Haldane. — Yes, that is it, sug gesting that the General Assembly could make changes, and that it was necessary to put some restriction on that power. I notice that in the Act of 1734 the Church, finding that certain changes had been made which had not passed the Barrier Act, thought it necessary to legislate declaring these Acts to be annulled — not treating them as void, but treating them as Acts which it was out of their competence to pass, notwithstanding they had not been set down under the Barrier Acts, but Acts which it was constitutionally right to annul for that reason. My point on that is this, that in 1843, when the Church came out, it came out upon the footing of claiming for itseU, and, as I say, contracting to get amongst its members the complete freedom which the Judges had held, over-ruling Lord Moncreiff's view, that the Church of Scotland did not possess. What does that complete freedom involve ? It certainly involves this, that the Church had a government, and a government of such a kind that it could legislate as regards its doctrine without hmit, and free from the inter- 536 ference of the secular Court. The Church according to my view proceeded in this way. In 1842 there came the Claim of Right, that was a document first put for ward by Estabhshed Church ministers who were a majority of the General Assembly of the Estabhshed Church, and who were remonstrating with the State against the effect of the inter pretation which the Courts were putting upon the old Statutes. They said : ' This is a shock to us. What is ' paramount to us is our spiritual inde- ' pendence.' They were asserting in a very much more definite way the position some High Churchmen take up with regard to the Church of England — they were claiming an enormous latitude of spiritual independence. That produced no effect, and the year after comes a Protest. That was a document which was still an Estabhshed Church document, still a document by the majority, but a document in which that majority protested that it would be impossible for them to remain in the Estabhshed Church this state of things continuing. They said in the Protest : ' We are members of the Established ' Church, we do not dissent from the ' prmciple of an Estabhshment, on the ' contrary we think it a good prmciple ' and a right principle. We would ' fain maintain it. We go further. ' We claim to ourselves hberty to take ' such steps in the future as may be 1 desirable for the restoration of this ' our ideal of a Free Church under the ' cegis of the State.' But they said : ' Important as we consider the principle ' of Establishment, it is less important ' than something else — spiritual inde- ' pendence.' I do not want to read again the words of the Protest which you have had so often, but I think I am accurately representing the docu ment when I say that its substance is : ' Important as we think the Establish- ' ment principle is, we think it sub- ' ordinate to spiritual independence, and ' for the sake of spiritual independence ' we now leave the Estabhshed Church ' and constitute ourselves a dissenting ' body.' What was the effect of that ? The principle of Estabhshment which HOUSE OF LORDS was of moment so long as it was held by the Estabhshed Church — a Church recognised by the State and acting upon this principle in its practice — became a mere opinion when disestab lished. It became an ideal which it might or might not be possible to restore and recognise. It became of secondary and subordinate importance. It was not a principle of practice. Lord James of Hereford. — Are you quite right in saying When the Disestab lishment took place. Is it not safer to say Disruption ? Mr. Haldane. — I made a slip. I meant Disruption. I am obliged to your Lordship. On this the utterance of Dr. Candlish at the time, which has been already quoted to your Lordship, and which I should only just like to refer to for a moment again, becomes very important. Lord Davey. — It was a debate speech, in the debate on the answers to be given to certain communications. It repre sented the views of the speaker, not' the views of the Assembly. Mr. Haldane. — Yes, my Lord, it was a speech to the Assembly, and its rele vancy is this. The views of no man however distinguished can be taken as representing the views of the Church. Lord Davey.- — Unless the Church adopts the view according to its own manifesto. Mr. Haldane. — No doubt if the Church adopts anything it assumes a new sig nificance. AU I mean is that one is entitled to take the utterances of dis tinguished men at the time, whether Dr. Chalmers or Dr. Candlish, as show ing the interpretation they put on the language used. Lord Davey. — But you do not suggest that Dr. Candlish's speech in the course of a debate stands on the same footing as the address of Dr. Chalmers which was given by him as Moderator and adopted by the Church, by the Assembly, as their manifesto. The Lord Chancellor. — And it was circulated. Mr. Haldane. — The document in which Dr. Chalmers says ' We are no Volun- ' taries.' MR. HALDANE'S The Lord Chancellor. — Yes, but you must not by avoiding one sin fall into another. Mr. Haldane.— I am not, my Lord, going back. The Lord Chancellor.— I thought you meant that Dr. Candlish may be set off against Dr. Chalmers. Mr. Haldane.— No, my Lords, what I meant is that Dr. Candlish's utterance is a contemporaneous exposition of the relation the Establishment held to the spiritual independence. I was reading it as bearing out my argument that undoubtedly they all would have said : 'We are no Voluntaries.' They also subordinated that question to the still greater question of efficiency in preach ing the doctrine of the Church and the Constitution of their Church. Lord James of Hereford. — Did not the circulation of Dr. Chalmers's Pastoral, create or bring into existence some of the trust funds. Mr. Haldane. — There is not a particle of evidence of that, my Lord. Lord Davey. — It is the only document which appears to have been officially published as their manifesto. Mr. Haldane. — There were a good many documents which were officially pubhshed. The" Lord Chancellor. — They were published, but this was the only docu ment officially published and ordered to be circulated. Mr. Haldane. — This speech I am reading is part of the official proceedings of the Assembly which is sent to every presbytery. The Lord Chancellor. — That may be so as a matter of fact, but it was not ordered by the Assembly to be published in the same way. Mr. Haldane. — I quite agree, my Lord. This speech has not been handed to your Lordships, but it was read. Per haps it is just as weU your Lordships should have it, and copies shaU be handed to you as I am going to refer again to it. Dr. Chalmers had said not only officiaUy, but in his sermons : ' We ' are no Voluntaries.' Dr. Candlish would have said the same. They did say the same in the Protest. Dr. Candlish how- SPEECH 537 ever makes a speech which I think very much bears out what I am arguing before your Lordships, that the principle of Establishment, as it was in the hands of a body which had parted with the State, because it considered it of paramount importance to assert a yet higher prin ciple, namely, the principle of spiritual independence, had sunk Estabhshment to a subordinate position, and was, after all, a relativity. The document gives Dr. Candlish as saying, 'And will the Assembly ' allow me in closing to say that I trust ' there will be no mistake in reference to the sentiments I hold of other bodies of evangelical Christians. My friends will bear me witness that I am the very last person who would stand on the rigid assertion of the mere theory of establishments for the purpose of keep ing up division or schism in the Church. So far from that, it appears to me that the distinct refusal of the states and kingdoms of this world to recognise the only principle on which we can con sent to have the Church established — their refusal to establish the Church of Christ while they recognise her spirit uality and freedom — leaves us to a very great degree of practical hberty and a large measure of practical discretion, as to the terms on which we should stand with other churches. Is the division and schism of the Christian Church to be kept up by a question as to the duty of another party over whom we have no control ? Let it be that we maintain our different opinions as to the duty of the State to support the Church, and the duty of the Church to receive support from the State when it is given consistently with spiritual freedom : still shall that question, which has become a mere theoretical question in the Church of Christ, and which, so far as we can judge, seems destined to be a theoretical question tiU the time when the kingdoms of this world shall become the kingdoms of our Lord, and of His Christ — shall that question prevent cordial co-operation and har mony among ourselves and our united action in defence of our common Pro testantism against the common foe ? The questions that remain among our- 538 ' selves may stand in part as an obstacle ' against the union of incorporation, but ' I rejoice to adopt the words of my re- ' spected father, and say that they do ' not for a moment stand in the way of ' the union of co-operation, and that ' union is, in the meantime, in my ' opinion, more safe and more likely to ' be attended with happy and salutary ' results than a premature attempt to ' accomplish the union of incorporation.' Dr. Chalmers is ' the respected father ' whose words Dr. Candlish adopts. Dr. Chalmers himself says that the principle of an Estabhshed Church was a principle of what he caUed ' Christian economics,' that is to say, of a means to an end. Lord James of Hereford. — What does he mean where it says at letter D : ' Let it be that we maintain our different ' opinions.' Which were the two parties that maintained it. Mr. Haldane. — The parties were the Free Church and the other Churches who had presented addresses. Lord Davey. — -What I want to point out in this speech is that Dr. Candlish seems to say that the difference of opinion would be an obstacle against the union of incorporation, though not an obstacle against the union of co-operation. Mr. Haldane. — I think he uses the word ' premature.' Lord Davey. — By ' the union of in- ' corporation ' I understand he means such a union as you have effected with the United Presbyterian Church. Mr. Haldane. — He is speaking of a premature attempt to accomphsh a union of incorporation. Lord Davey. — He says ' the questions that remain among ourselves may stand in part as an obstacle agamst the union of incorporation,' but he says they do not for a moment stand in the way of the union of co-operation.' Lord James of Hereford. — ' Let it be that we maintain our different opinions as to the duty of the State to support the Church.' Would the Free Church be mamtaining the view that it was the duty of the State to support the Church ? Mr. Haldane. — Yes, my Lord. Lord James of Hereford. — Then even HOUSE OF LORDS Dr. Candhsh does say the Free Church required support from the State. Mr. Haldane. — They aU said : ' We ' are no Voluntaries we think not the ' Free Church specially, but there should ' be an Established Church supported ' by the State.' That is what they thought, and what Dr. Chalmers himself had described in another passage as a matter of Christian economics. Dr. Chalmers never raised that into a matter of high principle. He said : ' I hold ' the principle that Estabhshment is * right.' The misfortune in this case is that there is so much that has to be understood in order to understand any thing, that the case proceeds by frag ments, but I should teU your Lordships that I was referring to Dr. Chalmers' very own words. Lord James of Hereford. — Between letters E and F he says : ' ShaU that question prevent cordial co-operation and harmony among ourselves and our united action in defence of our common Protestantism against the common foe ? ' Is that Episcopacy or Roman Cathohcism ? Mr. Haldane. — I think that is irre- ligion generally. Dr. Chalmers had said in this very debate — and these are the words to which Dr. Candhsh referred : I have only a few concluding remarks to make with regard to these addresses. I have said that the more we meet together, and see eye to eye, we wiU be quite astonished with the discovery, that if not thoroughly, at least sub- stantiaUy, we are at one with each other. Now, perhaps, -what I have read to you may have suggested the idea that we may be substantially, although not thoroughly at one. There can be no doubt that so far as the essential doctrines of the Gospel are concerned we are at one. I beheve we are thoroughly at one upon every material question of Christian doctrine ; but we are not at one upon a question that has very much been agitated of late, and which is not a question of Christian doctrine, but a question of Christian economics. That is a very different sort of question ; and they are trying — many thanks to them MR. HALDANE'S ' for it — they are trying to help us ' forward to their optimism. They tell ' us with aU frankness and fidelity that ' they are voluntaries, and they hope ' that in good time we, in the fullest ' and highest sense of the term, will ' become voluntaries also.' He says the question is not a question of Christian doctrine but a question of Christian economics — that is a question of means to an end. I am reading from the speech of Dr. Chalmers in this very debate. It is the debate on the Addresses in the Assembly of the Free Church held in Glasgow on October 17th, 1843. I will just read the words again : ' I beheve ' we are thoroughly at one upon every ' material question of Christian doctrine ; ' but we are not at one upon a question ' that has very much been agitated of ' late, and which is not a question of ' Christian doctrine, but a question of ' Christian economics.' What he means is that the utility of an Estabhshment is as a means to a paramount end, and that therefore the doctrine of Estab hshment is not a Christian doctrine but a doctrine of Christian economics. It is quite consistent with that that Dr. Candhsh should have made the speech he did, and it is also consistent with Dr. Chalmers saying as he did say in the Pastoral Address : ' We are no Volun- ' taries. As a question of Christian ' economics we think an Estabhshed ' Church is a most necessary way of ' preaching the truth amongst the ' subjects of the State.' Lord James of Hereford. — All Dr. Candlish seems to say is that question of Disestablishment should not prevent cordial co-operation. He does not discuss the question whether it should prevent the union. Mr. Haldane.— I think it is a little more, my Lord, if you look at the rest of what he says. He says it is a mere theoretical question: 'Still, shall that 'question which has become a mere 'theoretical question in the Church of 'Christ, and which, so far as we can ' judge, seems destined to be a theoretical ' question till the time when the kingdoms 'of this world shall become the kmg- ' doms of our Lord and of His Christ— SPEECH 539 shall that question prevent cordial co operation and harmony among ourselves and our united action in defence of our common Protestantism agamst the common foe ? The questions that re main among ourselves may stand in part as an obstacle against the union of incorporation, but I rejoice to adopt the words of my respected father, and say that they do not for a moment stand in the way of the union of co operation, and that union is, in the meantime, in my opinion, more safe and more likely to be attended with happy and salutary results than a premature attempt to accomplish the union of incorporation.' Lord James of Hereford. — Is that the same thing as coming into one body ? Mr. Haldane. — I think that is what they mean. One must look at it by the historical method. It would be contrary, according to the argument which I respectfully submit to your Lordships, to the very spirit and notion of the men who founded this Church to suppose that they were to be tied up to one rigid and exclusive formula of 200 years before, and adopted in 1843, which was to bind them, and bind them in such a way that the temporal courts could come in and force their adherence to every letter of it. You cannot stop short in the argument of my learned friend of that in every detail — Sabbath observ ance, for instance, and every word that is put into the Confession. You are bound hand and foot, if my learned friend's argument is right, to submit to the interdict of the Civil Court if the Civil Court come in and interpret that. The Lord Chancellor. — That is be cause the law wiU do it whether they like it or not. It is not a question of whether they were disposed to allow the inter vention of the law, but the law wiU do it in invitos. Mr. Haldane.— I agree, my Lord, but there is a great difference. The law says, ' We will interpret your contract.' If you have contracted to place in the exclusive jurisdiction of your own Church Courts the interpretation of that, then the law will give effect to that contract, and will simply say, 'What have you 540' determined ? ' They wiU give effect to it in directing the disposition of the property. The law wiU not break the contract. The law respects the contract. It enquires what the contract is, and the question is not whether the juris diction of the Court was ousted — you cannot oust the jurisdiction of the Court — but whether they had entered into a contract by which they themselves were to be the interpreters of what was the substance of their faith. My suggestion to your Lordship is, that in the case of a Church like this, it was not only natural but necessary that their Con fession of Faith should be taken as the exposition for the time being of what was their cardinal and fundamental principle, namely, the gospel of Christ, which, according to theh views, they were bound as theh paramount and unalterable duty to preach. My Lords, it is not for us to concern ourselves as mere lawyers in interpreting what took place. Whether they were right or wrong we have nothing to do with the doctrine, but we are bound to have respect to the history of that period, to the character of the men who went into that union, to their utterances, theh acts, and their deeds. The deter mination of the question before this House is not the determination of a question which arises on the mere words of a single document, but is a question the answer to which is to be ascertained by a scrutiny of what happened over a period of years. My submission to your Lordships is that taking the story in its sequence, first, you have the claim made within the establishment for spiritual independence ; and secondly, the Protest — ' We are driven out of this ' Establishment ; we are no Voluntaries ; ' we do not wish to leave it ; we shall ' do what we can to restore it in a puri fied form ' ; thirdly, the separation and the constitution of the new Church, the nature of which has to be ascertained but which was essentiaUy a Church modeUed not on what the Courts had interpreted the old Established Church to be, but on what the Free Church party, the Evangelical party, as it was called, within the Church had interpreted the meaning of that con- HOUSE OF LORDS stitution to consist in — wrongly, no doubt, in the view of the Courts, but rightly from theh point of view of theh ideal— that they were bound to say, as they did say in the Protest, ' much as ' we value the benefits of an Establish- ' ment, they are subordinate with us ' to the great ideal of spiritual inde- ' pendence, and for that ideal, and for the ' sake of that paramount principle, we ' quit the Establishment.' Now, my Lords, in theh history of 1900, holding these paramount, they maintain that it is better for the fulfilment of their great duty that they should work in union with the United Presbyterian Church. They do not ask anybody to give up any doctrine. They do not impose upon any member of the Church any obligation to give up any opinion he has hitherto held. They say to the members of the United Presbyterian Church : Your formulas contain nothing inconsistent with our doctrine as regards an Established Church, but we know that a great majority of your people hold the doctrine of Voluntarism, not in the sense of extreme Voluntarism which amounts to Secularism, and which had been so much condemned in 1843, and against which there had been so much preaching, but in the modified form which said it was not only inexpedient, but might be wrong. Lord Davey. — Not only which might be, but was, they said, unscriptural. Mr. Haldane. — To give endowments. Lord Davey. — To accept endowments for the Church. Mr. Haldane. — A great many people held that. Lord Davey. — And it was the doctrine of the United Presbyterian Church. It was not only ' might be.' Mr. Haldane. — There is no doctrine of the United Presbyterian Church which lays that down as a principle of that Church. There are documents which show that it was the opinion of the majority of the members of the United Presbyterian Church, just as, I daresay, it was the doctrine of a minority of the people in the Free Church in its corporate capacity. Lord Davey.— I had a pamphlet in MR. HALDANE'S my hand the other day on the Jubilee of the United Presbyterian Church, in which that was the distinctive feature. The Lord Chief Justice. — That was by Dr. Martin. Lord Davey. — I was told it was an authentic document, and might be taken as a correct statement. Mr. Haldane. — I daresay it might be, my Lord, and in the same way I may remind your Lordships the Free Church Assembly has for many years passed resolutions for Disestablishment. Lord Davey.— For disestabhshment of a vitiated estabhshment. Mr. Haldane. — Of course, very strong things have been said about a change. All I say is that in no constituted docu ment of the United Presbyterian Church, in no formula, in no official statements of its principles, is there anything contained which is inconsistent with the position now maintained. I am not disputing that the United Presbyterian Church holds by a majority of its members a voluntary view which is not in harmony. Lord James of Hereford. — Not in harmony with what ? Mr. Haldane.— With that held by the Free Church in 1843. The Lord Chief Justice. — As Lord Davey has referred to the point, I want to put to you, upon this very point, three questions. It seems to me that I must ask you what your view is. I refer to the document B 57. In 1867, could the funds of the United Presbyterian Church have properly been devoted to the purpose of an Establishment ? Mr. Haldane. — My Lord, my answer is, undoubtedly, if the Synod had so resolved. The Lord Chief Justice. — Do you argue that it is consistent with the views of the United Presbyterian Church at that time that their funds should go to support an Estabhshment? Mr. Haldane. — No, my Lord, but they could have altered those principles, and then there would have been no inconsistency. The Lord Chief Justice. — In 1897, do you or do you not agree that civil establishments, according to the view of the United Presbyterians, were un- SPEECH 541 scriptural and unjust? I am taking words from this very document which was read. By that time the United Presbyterian Church had developed the clearer and fuller theory now held as to the unscripturalness and injustice of the civil estabhshment of religion. Do you say that is a right view of the feeling of the United Presbyterian Church or not? Mr. Haldane. — What I say is that the statement at page 57 is a statement of the distinctive opinion of the great majority of the members. The Lord Chief Justice. — I take it that in 1897 the majority held the view that it was unscriptural and unjust that there should be civil establishments at all. Mr. Haldane. — I think it very un likely. ' The Lord Chief Justice. — Is it your view that the United Free Church — the majority, I will say, if you like — now hold that civil establishments are un scriptural and unjust. Mr. Haldane. — No, my Lord, they are expressly allowed complete hberty of opinion upon that. The Lord Chief Justice. — I do not ask you about the liberty of opinion, but whether it is your view that the majority of the United Free Church hold the view that civil establishments are unscriptural and unjust. Mr. Haldane. — No, my Lord ; I think it is quite hkely the majority held the contrary view. The Lord Chief Justice. — But the Assembly of the United Free Church might hold that they might combine with an Establishment — that is your argument ? Mr. Haldane. — Yes, my Lord ; the old Free Church was much the larger body. I think it had about 400,000 adherents. The old Free Church is two-thirds of the whole, and accordingly, whatever the ' U. P.' view may have been, it is the view of people who would constitute a minority in the united body. But my view is, of course, that we are deahng there with subordinate principles. The Lord Chief Justice. — I under stood that perfectly, and I do not want 542to take you back to wanted to ask what your argument was as to the view at present of the majority of the United Free Church. Mr. Haldane. — Probably, if we had the facts, I think we should find two- thirds hold the Free Church view, and one-third hold the United Presbyterian view. Union has taken place on the basis of saying : ' This is so unimportant ' that we aUow everybody to hold his ' own view on the subject.' The Lord Chancellor. — I think you do a little injustice to both sides by saying they regard it as unimportant. They may have altered their views, but surely they did not regard it as unimportant when a considerable number of their body regard it as unscriptural. Mr. Haldane. — Only in the sense that I have been arguing, my Lord, namely, that this was a subordinate question altogether. The Lord Chancellor. — Sub - ordinate is one thing, but your phrase was unhappUy chosen. That is all. I do not think either of the parties would acquiesce in that phrase. Mr. Haldane. — Subordinate in this sense, that where there are two para mount objects, and they come in the course of time into conflict, then the one that is most important has precedence of the other. For instance, if there had been the very rigid view of Sabbath observance, and it had been found that was preventing people from joining the Free Church ana preventing the useful preaching of Christ's Gospel in the Church, then I most unhesitatingly argue it would have been within the competence of this Church to have said : ' That is a principle we once held of ' great importance and put forward with ' great distinctiveness, but a century or : fifty years has made us feel that what ' was once a help is now a stumbling- ' block.' The Lord Chief Justice. — Your answer is that it is competent for the Free Church to adopt the views of Dr. Chalmers about Establishment. Mr. Haldane. — Yes, and the Assembly could meet the Free Church and express Dr. Chalmers' view as the view of the HOUSE OF LORDS that. I only Church, and the Assembly's view would be : ' We could to-morrow send down ' to the Presbyteries overtures for union ' with the Established Church for a ' return to it ' ; the minority might fight, and I dare say they would, but the constitution of the United Free Church leaves it open to them to go right back on the principle which we were discussing. Lord James of Hereford. — Would the minority be bound to go back ? Mr. Haldane. — By the constitution of the United Free Church the Assembly has the most exclusive right of judgment in these matters, and the Assembly is a majority of the Assembly ; conse quently a minority must yield to what a majority determines, unless, indeed, there be some distinctive principle. It is clear there is not here, because we have the Formulas which settled the constitution of the United Church, and these Formulas carefuUy omit anything with reference to these principles. Your Lordships have had them read. It is competent in my view beyond doubt to the United Free Church to-day, to set up the Establishment principle in the most effective form, and the minority would have to submit. Therefore, I say, we have not gone away from anything that was fundamental. What we have done is in the exercise of our interpretive, and if you like, legislative power, de clared that in the course of time some thing which was once very important, and something which at one time we laid great stress upon, has, as circum stances have changed and events have succeeded each other, become of sub ordinate importance altogether to our paramount purpose, which is the preach ing of the Word of God in the most effective fashion, and consequently we have power to give up that altogether subordinate position which it assumes in the United Free Church. Your Lordships wiU have observed that my argument has involved the assertion of power to change — legislative power. That is involved in the meaning of sphitual independence. My learned friend Mr. Johnston seems to have assumed in his argument that the Free MR. HALDANE'S SPEECH 543 Church went out only on a question of patronage. Patronage was a compara tively small matter. There were in stances which arose in the various cases which were cited to your Lordships in which the Civil Courts outraged what was the deepest conviction of the majority by saying, ' Even as regards ' the determination of who are to be ' your ministers preaching in quoad ' sacra Churches, it cannot affect civil ' rights, and even as regards your ad- ' judication of who are to come within ' your own Assemblies, you are subject ' to the control of the Civil Courts.' It was about spiritual independence in that sense that Disruption took place and the Church Courts were constituted. It is important to observe that the constitution of the Church was not arrived at aU at once. It was a process of growth. Your Lordships may re member that there is an Act of the Church published in 1851 which sets out the sequence of its history, and there were also some interim Acts passed by the Assembly providing for the interim administration of the affairs of the Church whilst the constitution was being got into shape. There was a question put by Lord Robertson, in the course of my learned friend's argument, which bears upon this. Lord Roberlson referred to page 53 of Print A which was one of those very enactments of which I am speaking. It is in an Act of 30th May 1843 in which the General Assembly caUed for the Report of the Committee on the interim supply of Ordinances — that meant they had not worked out their constitution, they had not got the Model Trust Deed, and they had not identified the Church ; they had not completed their arrangements ; and of course they were far short of settling their Formulas, which did not happen till 1846. They made interim Ordinances and they said : ' You may have the ' Protest and Act of Separation and Deed ' of Demission as a sort of ground and 'warrant for the proceedings of the ' Presbyteries.' The meaning of that was to give to the Presbyteries the same sort of interim powers and directions as had been given to the Assembly itself. It was merely an interim Act, and the relevancy of it is this, as bearing out my contention, that the constitution of the Free Church was not a con stitution which was arrived at all at once. It was the result of the growth of two or three years and of proceedings which culminated in the Formulas of 1846, which were the final settled Formulas which determined who was competent to be an office-bearer of the Church. It gave, as my learned friend reminds me, continuity to the Presby teries, and gave them the principles upon which they might preserve a continuous line of action, — continuous with their old existence when they had belonged to the Established Church. The document to which I refer is the Act of 1851. This document has been already read, and I am not going to read it again, but your Lordships may remember this is the document which calls the Confession of Faith a sub ordinate standard. It states the history of the building up of the Church as something which went on without inter ference by the Civil Court. It states how the Church of her own motion adopted her confession. At page 95 it states what are the great fundamental principles of the constitution of the Church — one the government of the Church by presbyteries alone — and that is why I refer to that as possibly a fundamental prmciple. Then on page 97 it speaks of ' fundamental ' in another sense, at letter G : ' That no pastor ' shall be intruded into a congregation ' contrary to the wiU of the people.' What I want is what is stated at page 102, between letters B and C, after describ ing what went on up to the Disruption, it says : ' And as the crisis manifestly ' drew near, the whole body of those ' ministers of this Church by whom the ' contest was maintained met together ' in convocation, in November 1842, being ' convened by a large number of the 'fathers of the Church, and, after a ' sermon preached by the late lamented ' Dr. Chalmers, continued in deliberation ' for several successive days, spending ' a large portion of the time in united ' supplication for the guidance and grace 544 ' of God ; and did not separate till, with ' one mind and one heart, they were ' enabled to announce, in resolutions ' having, in the circumstances, aU the ' force of the most impressive vows and ' obligations, their final purpose, at all 1 hazards, to maintain uncompromised ' the spiritual hberty and jurisdiction of ' this Church. And this they resolved to ' do, not by prolonged resistance to the ' Civil Courts, should the Crown and ' ParUament of Great Britain refuse the ' redress craved in the above-mentioned ' Claim of Rights, but by pubhcly re- ' nouncing the benefits of the National ' Estabhshment,— under protest that it ' is her being Free, and not her being ' Estabhshed, that constitutes the real ' historical and hereditary identity of ' the Reformed National Church of Scot- ' land.' I refer to that because it describes the history of what was done, and it also refers to the principle of identity as contained in the Church. At page 28 of Print B in the Act of Assembly which adopts the pastoral address which is set out there, there is the same sort of thing stated, beginning at the bottom of page 27 : 'If it be truth, as we most ' firmly believe, that " the Lord Jesus, ' " as King and Head of His Church, ' " hath therein appointed a government ' "in the hands of church-officers distinct ' " from the civil magistrate," then it ' must be sinful to subject that govern- ' ment to the dominion of any other ' power, or to regulate the actings of it ' by any other standard than God's ' Word alone ' — you wiU notice there you have an exphcit assertion that it is God's Word alone and not Confession which is the ultimate test. ' We do not ' wish to involve you in the intricacies ' of subtle argument and doubtful dis- ' putation ; but it is the duty of every ' man to be able to render a reason of ' the hope that is in him. The time ' has been when the people of Scotland ' were well acquainted with the contro- ' versy respecting Christ's crown, and ' the free and independent spiritual ' jurisdiction of His Church. There is ' one simple and comprehensive way ' in which the subject may be stated ' and rendered abundantly intelligible. HOUSE OF LORDS ' Whatever a Church of Christ must do ' in order to preserve its existence, and ' discharge its whole duties to its Divine ' Head, it must continue to do in all ' circumstances, in adversity or in pros- ' perity, when persecuted or when sup- ' ported, established by the State ¦ or ' disestabhshed. It must be at hberty ' to obey Christ alone in all that He has ' appointed or commanded ; to admit, ' censure, or cut off, alike office-bearers ' and ordinary members, according to ' the principles and precepts of His Word. ' A3 no favour which the civil magistrate ' may show to the Church can give him ' any right to usurp an authority, in ' reference to spiritual matters, beyond ' what he is otherwise entitled to claim, ' so neither can the Church be justified ' in continuing to accept his favour, on 'condition ,of rendering to him sub- ' mission and subjection, beyond what ' she would feel herseh at hberty to ' render to a Christian magistrate, ' whether she enjoyed his favour or ' not.' How can it be said in the face of these two documents that the men who brought about the Disruption in 1843, and founded the Free Church as it stood then, would have admitted the jurisdiction of this or any other Court of a civil character to interpret the con troversy on doctrme which has arisen between my learned friends and myself. The course they are taking would be inconsistent with the Free Church. The Lord Chancellor. — What in your view is the identity of the Church ? I do not wish you to go through it all again, but will you answer me this question : Is or is not the identity of doctrine one element of the identity of the Church ? Mr. Haldane. — To that, my Lord. I must answer by saying, so far as the Confession is concerned, that is not an element of identity. The Lord Chancellor. — I am asking you the abstract question. Never mind about the application of it to this case. I ask you, in your view, does the identity of the Church, in part at all events, consist in the identity of doctrine ? Mr. Haldane. — Yes, my Lord in MR. HALDANE'S part to the identity of the doctrine of the Gospel — no other doctrme. The Lord Chancellor. — You say ' the Gospel ' ; I only want to know what your argument is — you add quali fying words : Does it or does it not form one of the elements of the identity of the Church in the sense in which you have been speaking of the word ' Church ' % Mr. Haldane. — My Lord, certain doc trine does — the doctrine of the Headship of Christ, for instance. The Lord Chancellor — I am not asking you that question ; we are dealing with identity. I do not wish to go into the questions Bishop Butler raised about personal identity; but, in your view of what you say is the identity of the Church, does or does not the identity of doctrine form one of its elements ? Mr. Haldane. — If I understand your Lordship's question rightly, I answer, identity of doctrme generally not. The Free Church had power to legislate about doctrine, and so had power to change it. The doctrine therefore might foUow. It might adopt a new Con fession of Faith according to my argu ment. There is something within which it must keep in order to preserve its identity as a Church. It must continue to hold and maintain the Headship of Christ, His Word as its only rule of faith, and, I think, also the Presbyterian form of government. The Lord Chancellor. — I will vary the question, then, to see whether we can understand each other. Apart from any provision in its Deed or Settlement, or whatever it is that constitutes it as a Church for making provisions for the alteration of doctrine, does or does not doctrine form one of the elements of its identity ? Mr. Haldane.— My Lord, no doctrine forms an element of identity of the Free Church, as I am representing it, except the doctrine which I have indicated, and which is set out in the citation from the Model Trust Deed of the identity of Christ and His Word, as the only Rule of Faith. That is my answer to your Lordship's question. I am asserting in the most strenuous terms here some power to change. 2 M SPEECH 545 The Lord Chancellor. — You have repeatedly spoken of, and indeed have placed great weight— justly, I think, according to your own argument — upon the words ' the identity of the Church,' and, for the purpose of understanding your argument and applying it, I wanted to know in what sense you were using the words ' the identity of the Church.' I regret to say you have not answered my question. Mr. Haldane. — I will try, my Lord. The Lord Chancellor. — I do not press it further. Mr. Haldane. — I assure your Lordship it is only because perhaps I am approach ing this question from a different point of view to your Lordships that I have difficulty in answering it. The Lord Chancellor. — There might be identity of property, an identity of persons, although if the Church is sup posed to continue beyond the period of human hfe, the identity of persons is of course out of the question. I only wanted to know in your own view, in your own phrase ' the identity of the ' Church,' what you admit or assert to be the elements of which the identity consists. I think it would be unfair to ask you to enter into a general thesis on that subject, and I only want you to tell me whether you did or did not assume that the identity of doctrine was one of the elements of which the identity of the Church must consist. Mr. Haldane. — I answer your Lord ship's question, no, because the Church has power to change doctrme according to my argument ; but in order to do that, it must be the Church, and it ceases to be the Church if it repudiates certain things which are vital to its existence, which constitute its existence — the Headship of Christ, which, of course, is not merely a doctrine, His Word as its only rule, and I think also the acting in the form of Presbyterian government. That is a matter of form, but that is .described as fundamental. That is why I laid great stress upon the Model Trust Deed as an exhibition of the identity of the Church. The Model Trust Deed, which has been very often read, and which I am not 546 HOUSE going to read again, sets out m its pre amble certain definitions. The Lord Chancellor. — I do not want to bring you back to the whole argument which you have gone through ; all I wanted to know was really to understand the precise effect and bearing of your own phrase which you so often use — ' the identity of the Church.' Mr. Haldane. — My Lord, I have been trying, I thought at rather undue length, to explain the meaning of that, and I trust I have given your Lordships an answer which, whether you agree with it or not, is at least an answer to the question. I have tried to do so. The Lord Chancellor. — I am afraid I must honestly confess that you have not, but I do not invite you to continue. It may be my insufficient apprehension. Mr. Haldane. — I am afraid it is I, my Lord, who have failed in not having properly apprehended the question you put. I thought I had answered to your Lordship's question, ' Does doctrine ' enter into the identity of the Church ? ' No — interpreting your Lordship's ques tion as meaning that the Church had to accept doctrines which it had no power to change. I assert it has power to change its doctrines, so long as it remains the Church. The Lord Chancellor. — The words ' the Church ' involve the whole ques tion. You say ' so long as it remains ' the Church.' Those are words ; but, if you reaUy desire to instruct me upon the matter, I want to know what really is in your mind when you use that phrase. The words ' the Church ' in volve identity. Mr. Haldane. — I think they do, my Lord. The Lord Chancellor. — You only answer me by a phrase — put it in the abstract, never mind this particular question. If there is such a thing as the Church in the sense in which you under stand it, is it or is it not part of the component parts of the Church's identity, the identity of doctrine ? Mr. Haldane. — No; not from my point of view. The Lord Chancellor. — That is an answer. OF LORDS Mr. Haldane.— I think I haye under stood your Lordship's question, and have given an answer which your Lord ship may not agree with, but it is my answer. My answer is, That the Church consists of an organisation of persons on a permanent basis for the purpose of worship, which involves Church government, which involves, in the case of this particular Church constitution, at any rate, the power to change doctrine. That power of the identity and con tinuity of hfe of the Church, consists in the continuity of the Church and its government in the hands of a majority of individuals, a democratic constitution, which has power so long as it continues to fulfil its function of being the office bearers into whose hands, according to their principle, Christ their Head has delegated government for the purpose of the teaching of His Word as it is in the Scripture. So long as they do that according to Presbyterian forms, they remain continuously the Church, and their actings and the history of their doings are the key to the identity of the Church at any particular period, and the key to the particular question of who are the beneficiaries, when any question is raised in a court of law as to who is entitled to the funds held for behoof of the Church. I do not want to go back to it. That is my answer, and I submit to your Lordships that that is exactly the Model Trust Deed, and exactly the series of definitions set out in the Model Trust Deed — the government of the Church by those appointed by the Lord Jesus Christ in the hands of the Church officers, distinct from the civU magistrates, and with the power of the key, His Word as the only rule, and the Presbyterian form of government involved, with the further recital that the jurisdiction of the Church courts is ultimate and absolute. Then I lay great stress on the great question before your Lordship on the present appeal on the Fourth Purpose. The Fourth Purpose says that the property under this Deed — and there can hardly be a different constitution of the Church from the constitution which is set out for the one and a half millions of MR. HALDANE'S property which is covered by this deed — is at the absolute disposition of the General Assembly. The trustees are to do what the General Assembly direct. Then the Ninth Purpose makes pro vision for a split. It is a remarkable provision. I rely upon it as showing that the Church never could do anything else than a majority of its members ; that majority might destroy themselves, commit suicide by such an act of apostasy as to put the Church to an end, tut the beneficiary under the trust could never be anything less than a majority. I rely upon that. ' It is hereby specially pro- ' vided and declared, that if, at any time ' hereafter, one-third of the whole ordained ' ministers, having the charge of con- ' gregations of the said body, or united ' body, of Christians, or any larger number ' of the said ordained ministers, having ' charge, as aforesaid, shall simultaneously, ' or within a consecutive period not ex- ' ceeding three calendar months, not only 'publicly separate from the said body, 'or united body, of Christians, but, at ' the same time, pubhcly claim and pro- ' fess to hold, truly, and in bona fide, the 'principles of the Protest.' My learned friend, the Dean of Faculty, answered his Lordship on the Woolsack when he asked whether the Court could enquire into the reahty of their profession, and he said, rightly I think, No ; it is only if they continue to ' hold, and to be ' carrying out the objects of the said ' Protest more faithfully than the ' majority of the ministers of the said 'body.' We both claim to be carrying out more faithfully the principles of the Protest, because we say that the supreme prmciple of the Protest is the one which I have referred to, and that the other one is subordinate to it. They say that the subordinate prmciple of Estab lishment is an essential one; but it is enough if either of us can, within the latter part, claim to be carrying this out. Then comes the reference to the majority, which I submit shows that the meaning of this Deed is that the bene- SPEECH 547 ficiary is always to be a majority oi the Assembly within those limits which I have defined, and that provision is here onlv made for the case of a third splitting off. In this case we have only from one view twenty-six, and from another thirty- five, ministers of a comparatively small body of adherents split off from over 1100 ministers and 1100 congregations. So they do not come within the words. But I am pointing out that this Deed has made provision for splits, and it has also made provision, as your Lordship will remember, for union. There is a provision earlier in the Deed under which this body might unite with another body, and it seems to me within the spirit of the Deed that, even if we were wrong in everything else, you could not take away the congregational property from it under this Deed, because the only pro vision is a provision made for a case which falls far short of ours — the case of our not being a majority. We ob viously constitute more than one-third of the ministers, and you can scarcely imagine that this Deed contemplated that, if we more than fulfil the condition it lays down as a minimum, we should not get what we should if this condition were barely fulfilled. I rely also for my proposition on the identification of the Church as the identification of the Church with the action of a majority of the Assembly, which, under the Fourth Purpose, is given the disposal of the pro perty; and, therefore, adopting the phrase on which my Lord James founded a question on Tuesday, ' Do you shrink ' from the test of saying the Church with ' all this power is a beneficiary ' : I said ' No ; the Church is a beneficiary with ' these powers, and could do what it liked ' with the property so long as it remained ' a Church.' My only limitation is its remaining the Church. The Lord Chief Justice. — Would your client kindly hand in the official proceedings and debutes of the United Free Church of 1901-1902. Mr. Haldane. — They shah be supplied to vour Lordships. Lord James of Hereford.— Have any steps been taken to carry out the wishes of the majority in respect of the pro perty? What is the position of the minority who hold ministries and do not agree ? Has any test been offered to them as yet ? 548 HOUSE Mr. Haldane. — In the second action, which is being heard along with this, there have been ejectment proceedings as regards the congregations of places of worship. Lord James of Hereford. — And that will be carried out. Mr. Haldane. — We do not desire to carry that out. Lord James of Hereford. — But that is the legal result. Lord Davey. — Three or four actions. Mr. Haldane. — There are actions pending, and there is the matter before your Lordships, and the question of legal right is of course raised in those actions. Lord James of Hereford. — Of course you do not allege that that minority has in any way departed from the Seces sion or Disruption of 1843, but they decline to come into the union. Mr. Haldane. — Yes, because they refuse to submit to discipline, I use the expression in the theological significa tion ; because they refuse to conform to the conditions of membership. They have taken proceedings against us, and we have taken proceedings against them, and that is how the matter stands in this unhappy condition of things, which one wishes very much were at an end. The position of matters is that the congre gational property is involved in the second action which has been opened along with this one. There is only one other topic on which I wish to touch, and that is this. If my argument is weU founded, then the test of membership is not the holding of particular opinions. A body of people might hold identicaUy and precisely the same opinions as the Free Church held in 1843, and might have held it next door in 1843, and yet they would not have been the Free Church. The Free Church is a physical aggregation of indi viduals who inhabit certain assembly houses, churches, and places, identified in their capacity as such by a common purpose, and by their submission to a common test, so far as their office bearers are concerned, of membership. The Lord Chancellor.— When you say ' holding ' you mean ' in occupation OF LORDS ' of,' because in this case the question may arise whether they are the persons who do hold it or not. Mr. Haldane. — I was simply taking 1843, and my proposition was this : In the St. Andrew's Hall, or wherever they met, you had a body congregated holding certain views, and constituting themselves the General Assembly of what they named the Free Church of Scotland. You might have had next door, in another hall, another body of people, seceders, or whatever they called themselves, holding precisely the same opinions. My observa tion is that, if my argument is right, these other people would not have been the Free Church. The Free Church is the actual association which has gone on from year to year, and which has had an actual continual history, and can be identified, just as you would identify John Jones, and say, notwithstanding his hair has changed colour, and his clothes are different, he is John Jones, who has had a continuous history. It is not the holding of any other opinions than those which are defined in the Formula which makes a man eligible for membership of the governing bodies of the Church. There is no test for mere adherenceship. There are only rehgious examinations so far as the communicants' roll is concerned, but when you come to office-bearers, the Church adopted certain -Formulas in 1846 from the Confession. The test of membership, I say, is simply a test which depends on the Formulas ; there is no overt reference to the Estabhshment principle there. The reference to the Protest is only to such part of the Protest as forms the spirituality of the Church with Christ as its Head. Your Lordship will remember, it is such parts of the Protest as refer to Headship that are incorpo rated into the Formula. The only way in which you can get in the Establishment principle is by reference to the Confession, and there, as I pointed out, the Estab hshment prmciple is held in a very broad form. For instance, there is no reference to any endowment in the Confession, none from beginning to end of the Westminster Confession. Lord Davey. — It may be construed one way or the other. MR. HALDANE'S SPEECH 549 We, at anyrate, have that if any other view were taken than Mr. Haldane construed it so. I perhaps express myself too positively, but we put that construction on it. The Campbeltown Case, which was a decision which may have been wrong, was that there was nothing about endowment in the Con fession. Lord Davey. — That was a decision of the Scotch Courts. Mr. Haldane. — It is not binding on your Lordships, but they did so decide it. Lord Davey. — But you do not admit that Lord Meadowbank can interpret the Confession of Faith ? Mr. Haldane. — I agree. Your Lord ships can interpret it in a case in which you have jurisdiction to do so. My point is, in answering the question, What constitutes membership of the governing body, the only thing to look to is the Formula, and the Formula is silent on this matter, except so far as you construe something out of the reference to the Confession. The membership of the governing body carries with it the power to belong to the majority, and the power to be one of the controlling forces of the Church. Therefore I lay stress upon this, that when you come to what, according to my argument, is the key to the identity of the Church, what the Church manifested in the majority of the members, and what its Church Courts have done, it is the principle which marks them out as being the Church of Christ, founded upon the Word of Christ as their sole rule of faith. Then you have a majority identified, not with reference to this doctrine, but by a subscription of the Formula as the only test of membership. If that is so, it is obvious that in the identity and constitution of the Free Church, what is most important is the principle of its government under the Headship of Christ, and not the holding of any par ticular doctrme which is not referred to in the Formula. That, my Lord, really concludes the observations which I desire to make in supplement to the argument of my learned friend, the Dean of Faculty ; and I submit to your Lordships, in conclusion. the view for which we have been con tending, the action of those who founded the Free Church, and who went out at the time of the Disruption, believing they had founded it, must be construed as an action founded upon a misconcep tion — a total misconception of their legal position. Instead of getting free from the interference of the Civil Courts, they appear, if my learned friend's argument is well founded, to have courted the interference of the Civil Courts, because they made a contract, which constituted a trust, by words which, if my learned friend is right, were to be interpreted by the Civil Court, and by no other tribunal of authority. Lord Davey. — Do you say there is no trust of this property which the Civil Courts have to interpret ? Mr. Haldane. — No, my Lord; but I say there is a trust for the Church, and when the Church has determined its doctrine, the Civil Court is bound to give effect to that determination. I am not contesting the jurisdiction of the Court. Lord Davey. — But surely the Civil Court must find out in some way, as in every trust, what trust for the Church means. Mr. Haldane. — I know, but in the Craigdallie Case the distinction was pointed out between the two, and in Marshall's Case the Lord Justice Clerk Hope laid down the distinction in still more express terms between a trust of property for the promotion of a par ticular opinion, and a trust of property to be placed at the disposal of the Church which has power to deal with it. The Lord Chancellor. — I think Lord Eldon laid down the exact contrary, and said the only test we can regard is the original purpose of the founders, and to refer it to any majority would be to make a new constitution, which is equally agamst the constitution of this Court and strange to our proceedings — or some words to that effect. Mr. Haldane. — I am not contesting that for a moment. Lord Davey. — Unless you make out that it was one of the tenets of the 550 HOUSE OF Church that the majority might from time to time fix its opinions. The Lord Chancellor. — That be comes part of the trust. Mr. Haldane. — That is what I mean. I must have expressed myself very imperfectly, because I was endeavouring to distinguish the two classes of cases. Lord Davey. — But the Civil Court must ascertain that for it? elf. I do not see how you can exclude the Civil Court. As long as there is property held upon certain trusts, the Court of Chancery in England, or the Court of Session in Scotland, must have juris diction over that property — that is inevitable. Mr. Haldane. — Of course, my Lord, I am not contesting that. Lord Davey. — In order tc exercise jurisdiction over that property they must ascertain the trust upon which it is held, and if the trust upon which it is held requires them to interpret certain written documents, they must interpret them to the best of their powers — that is inevitable. Mr. Haldane. — I agree, my Lord, that is inevitable, and we never con tested that in the least. Lord Davey. — I do not suppose any body claims more than that. Mr. Haldane. — Nor do we contest the further proposition that your Lord ships are not only entitled but bound to look to see the object of the founders of the Free Church. Lord Davey. — I should be very glad if you could relieve us from the burden of doing as much as that. Mr. Haldane. — I should be very glad to. The Lord Chancellor. — We have endured that burden for some time, and I am afraid we must endure it to the end. Mr. Haldane. — My contention here is not one for excluding jurisdiction, but it is this, that if we are right in our contention, the question of the doctrme for the time being, whether in Church polity or in the interpretation of the Confession — or the alteration of the Confession, for that matter — is within the competence of the Church Courts to deal with. LORDS The Lord Chancellor. — After all, that comes back to the same proposition, that if we arrive at the conclusion that was part of the original foundation cadit questio. Mr. Haldane. — I agree entirely, my Lord. Our whole argument has been confined to this, that it was part of the original foundation that that was so. The Lord Chancellor. — I suppose that would hardly be disputed by any body. That is a different proposition. It is simply this, that you have to interpret what was the foundation. Mr. Haldane. — That is the only question I have sought to argue at your Lordships' bar. Lord Davey. — We cannot get out of it, and we must see what the constitution was. Mr. Haldane. — I agree I am here on the footing of admitting your Lordships' jurisdiction, and asking you to deal with the question on the footing that that is the true issue. I submit, in conclusion, that if the true view of what happened be that there was no such Court with exclusive spiritual jurisdiction in these matters constituted within their Church, then the Disruption was a profound illusion, and the whole con ception of my cUents has been from the beginning of theit history a mistake. Mr. Johnston. — My Lords, I do not propose to any extent to enter into a re-argument of this matter, but there are certain points which I think it right I should give your Lordships our answer to. In the first place, your Lordship on the Woolsack asked the question some httle time ago, whether the result of the Declaratory Act of 1892 had been to eject, or had resulted in the ejection, of any ministers from the Church. I think I answer that question by asking your Lordship to remember that it was varied by an Act of 1894, which was passed ad interim in the year 1893, and which was intended, whether success- fuUy or not, to meet the case of difference of opinion on the subject of that De claratory Act. It is in Print A, at page 138 : ' The Assembly declares that the ' statements of Doctrine contained in ' the said Act ' — that is, the Act of 1892 — ' are not thereby imposed upon any of ' the Church's office-bearers as part of ' the standards of the Church, but that ' those who are licensed or ordained to ' office in this Church, in answering the ' questions and subscribing the Formulas, ' are entitled to do so in view of the said ' Declaratory Act.' It was therefore not compulsory on the officiating minister or the candidate. It was open to them to retain their views as the Church held them prior to 1892, or to take advantage of the views as the Church represented them after 1892. I think that accounts for there having been no question raised within the Chmch on the point of subscription to these doctrines. The difference now is that the officiating clergyman is com peUed to bring those matters in view on any occasion of a candidate coming before him for examination. The next point, my Lord, that was argued, or rather my learned friend founded an argument upon it, was that we, the remnant, or alleging ourselves to be a remnant of the Free Church, had not abrogated that Act as soon as the Union took place, and the difference between us and those going into Union arose. We have not done so. We have repeatedly considered it, but we have considered that while the matter was sub judice, we ought not to touch the Act. We considered that we were perfectly protected by the dissents that had been lodged at the time of the Act, and that now it would be the proper course to wait until the judgment in this case had been ascertained. There is another matter which has been raised to-day by Lord Alverstone, as to the actings of the Union party with reference to the Establishment. I cannot admit my learned friend's assertion that at present there remains two-thirds of the members of the United Free Church who maintain the old views of the Establishment, and perhaps one- third the reverse way, because I find— and I refer your Lordships to the passages from the Minutes of Proceedings quoted at page 139 of our case—' Thus on 28th 'May 1901, the General Assembly by 'a large majority approved of a report MR. JOHNSTON'S REPLY 551 '(No. XXIX.) by its Committee on 1 Church and State, in which that Com- ' mittee reported in these terms : — ' " . . . We shaU be quite frank as to " our position. The Committee under- " stand this to be that we must regard " the statutory connection now main- " tained by the State in Scotland with the Estabhshed Church as objection- " able in principle, and that its ter- " mina tion seems to us to be a necessary ' " step towards the relations between ' " Churches in Scotland which, we beheve, ' " are very widely desired. The Com- ' " mittee see no benefit to be gained by ' " allowing doubt to arise on that point." ' That declaration of the Committee is approved by the General Assembly itself. In the following year again, in May 1902, 'The Assembly caUed for the ' report of the Committee on Church and ' State. ... It was moved and seconded ' that " the Assembly approve of the ' " report, and return thanks to the ' " Committee, especially the first Con- ' " veners. The Assembly adheres to its ' " testimony in favour of the Disestab- ' " lishment of the Estabhshed Church ' " of Scotland, sympathises with the ' " Free Churches of England in their ' " resistance to the Education BiU for ' " England now before Parliament, and ' " re-appoints the Committee, with in- ' " structions to continue its vigilance ' " and take such wise action as events ' " may call for to advance the object in ' " view." ' That does not look as if the members of the original Church of 1843 were maintained by this United Church, and I take them in their own words, and leave them there. The next point that has been touched upon to-day that I would say a word on, is with reference to the position of churches and manses. Your Lordships will find that made perfectly distinct. My learned friend just now very kindly said that he would be very unwilling to eject us from our churches and manses, but I must refer your Lordships to the ' Condescendence V.' on page 14 of smaUer Appeal, where his position is clearly taken up ; at least, the position of those whom he represents. I will read from above letter E. ' On 5th 552 HOUSE ' March 1901, the Edinburgh Presbytery ' of the United Free Church of Scotland, ' in view of intimations made in writing * to the Clerk of Presbytery by the ' said Reverend Mr. Macalister and ' Reverend Mr. Gordon, to the effect ' above set forth, declared that they had ' ceased to be ministers of the Free ' Church of Scotland, now incorporated ' with and represented by the United ' Free Church of Scotland, and directed ' their names to be removed from the ' roll. They also declared that the charge ' of Buccleuch and Greyfriars Church in ' connection with the United Free Church ' was vacant.' That is the way in which they deal with the ministers of that Church. I would refer your Lordships as a very good example of what they maintain their power to be to the way they dealt with the Reverend Colin A. Bannatyne of Culter in Appendix D. at page 47. You will find the whole Presby tery proceedings on that and the next three pages, under which the Presbytery of Lanark dealt with the Reverend Mr. Bannatyne, who had declined to follow the majority into the United Free Church. I will take, for instance, page 49, in order not to read too much, ' The Presbytery, taking into consideration the tenor of Mr. Bannatyne's letter of 10th Nov. last, as also the pubhc reports as to his action during and subsequent to the Union Assembly, in presiding at a so- called General Assembly of the Free Church and otherwise, instruct the Clerk to write Mr. Bannatyne in their name, inquiring if he adheres to the position taken up by him in the said letter, disowning the jurisdiction and authority of the Presbytery ' — that is the Presbytery of the United Eree Church — ' and acknowledges the truth of the ' reports referred to ; with certification ' that the Presbytery will hold themselves ' free to deal with his case according to ' the laws of the Church.' Mr. Banna tyne rephes that he adheres to the position asset forth in his letter of 10th November, and at the bottom of page 50, it says : ' The Presbytery find that Mr. Banna- ' tyne, according to his own statements ' in letters sent by him in answer to in- ' quiries by the Presbytery, has severed OF LORDS ' his connection with them, and has ' joined himself to the separating body ' which claims the name of the Free ' Church of Scotland, and declines the ' jurisdiction of this Presbytery ' ; and at the foot there is this : ' The Presby- ' tery continue to cherish for Mr. Banna- ' tyne personaUy feelings of much regard. ' But in the circumstances which have ' been recorded, they find it, with regret, ' to be their duty to declare that the 'said Rev. Cohn A. Bannatyne is no ' longer a minister of the Free Church ' of Scotland, now united with and repre- ' sented by the United Free Church of ' Scotland. They direct his name to ' be removed from the roU of the Presby- ' tery, and they declare the congregation ' at Culter in connection with the United ' Free Church of Scotland to be vacant.' My Lords, the question which you have to determine is, whether the position of the United Free Church, and the position of the remnant members of the Free Church, justifies the former taking against the latter such steps as this, which results in the withdrawal of their churches and theh minister, and the instatement in their place of ministers to be selected and appointed from the United Free Church, and the suppression of their congregations as congregations of the Free Church. The Lord Chief Justice. — Would it also involve their not getting any stipend from the General Fund, or was no part of theh stipend paid out of the general funds ? Mr. Johnston. — The general funds, as I understand it, are practically collected from year to year — what is known as the Sustentation. The Lord Chief Justice. — Would any portion, of it go to ministers for their stipends ? Mr. Johnston. — They do. The Lord Chief Justice. — Then as suming that that gentleman had had so many pounds in the previous year, it would involve his loss of that also ? Mr. Johnston.— Quite. Your Lord ship should understand that the Free Church has always raised what is called the Sustentation Fund, which is practi- caUy an annual subscription. That is MR. JOHNSTON'S divided between the ministers according to certain principles. At the same time there is a small nucleus of capital, the income of which goes to them. Accordingly, of course, the subscriptions coming from the United Free Church, the old members of the Free Church will not participate in. I am not going to follow my learned friend Mr. Haldane into any discussion of the metaphysical, or the question of divinity. I could not do it if I tried, and I am certain your Lordships do not wish me to do so. He has not feared to tread in that branch of learning, but I cannot foUow him. But I would desire to point out to you one or two points in the Confession, without arguing upon them, which I think have to be kept in view. The first is at Print F, page 127, letters B to E, where in the first head or chapter dealing with ' The Holy ' Scripture,' my learned friend Mr. Haldane argued on the last two para graphs, 9 and 10, which say, ' (IX.) The ' infallible rule of interpretation of ' Scripture is the Scripture itself ; and ' therefore, when there is a question ' about the true and full sense of any ' Scripture (which is not manifold, but * one), it must be searched and known ' by other places that speak more clearly. ' (X.) The supreme Judge, by which all : controversies of religion are to be de- ' termined, and all decrees of Councils, ' opinions of ancient writers, doctrines ' of men, and private spirits, are to be ' examined, and in whose sentence we ' are to rest, can be no other but the ' Holy Spirit speaking in the Scripture.' Upon that my learned friend founded, as I understood, the contention that the Confession of Faith was no more a test or document in the nature of a Creed than any other, and that it was all over-ruled by this reference to the Scrip ture as the infallible rule of interpreta tion. My answer to that is : That chapter is preliminary to what follows. What foUows is the deduction of the Westminster Confession, accepted at different stages ; but it is the statement of the interpretation which the West minster Assembly of Divines placed upon the Scriptures, and which is just the REPLY 553 differentiating test or creed which dis tinguishes the Church of Scotland— and the Free Church has adopted the same— from all other Churches. It does not pretend to be any more infallible than any other Confession of Faith, but it is the Confession of Faith which, using the Scriptures as the infallible rule of interpretation, it has deduced. I submit you might deduce from that statement the idea that all that follows is a mere vague statement, to be altered according as from time to time the General Assembly of the Church chooses, to determine that, by the infallible rule of interpreta tion of the Scripture, something else should be inserted in the Creed of the Church. I submit, as I did before, that the rest of the Confession from Chapter II. onwards, is that view of the doctrine which these Churches with which we are dealing adopted, and that, if there be power to alter that, it must be found in the constitution of the Church, and not in the document itself. I think I support that by asking your Lordship to refer to page 150 of Print F, Chapter XXV., the fourth head of Confession, where, after distinguishing between the Catholic Church and the Church particular — the Catholic visible Church, and the particular Church we are dealing with — it says : ' This catho- ' lick Church hath been sometimes more, ' sometimes less visible. And particular ' churches, which are members thereof, ' are more or less pure, according as ' the doctrine of the Gospel is taught ' and embraced.' That clearly, I think, supports my contention that we are dealing with a particular Church, and with the mode in which the doctrine of the Gospel is taught, and embraced, in that Church. We are not concerned with the possibility that other particular Churches may hold the same general Christianity, but with a different state ment and determination of doctrine. The next passage which was founded upon is at page 128, letter F, dealing with God's Eternal Decree. I should say that my learned friends' references to this were with a view of showing that the Confession of Faith contained within it a. double doctrine — the doctrine pf HOUSE OF LORDS the doctrine of Arminius, Compare that with Chapter X. and you 554 Calvin and to put it shortly. Here he puts it par ticularly : ' God from all eternity did, by ' the most wise and holy counsel of His 1 own free will, freely and unchangeably ' ordain whatsoever comes to pass : ' yet so, as thereby neither is God the ' Author of sin, nor is violence offered to ' the wUl of the creatures ' — it is those last words that my learned friend Mr. Haldane founded upon ; but I must ask that those last words be read with regard to what follows, and I cannot read them, and I do not think your Lordships wiU read them, as detracting in any way from the absolute and distinct statement, as, for instance, in Article IV. : ' These angels and men, thus predestin- ' ated and foreordained, are particularly ' and unchangeably designed ; and their ' number is so certain and definite, that ' it cannot be either increased or dimin- ' ished.' I might multiply references to the same effect to a considerable extent, but I could not do more than ask your Lordships to contrast them with that one parenthetical statement, and ask your Lordships to consider whether the distinct statement of pre destination there in the Calvinistic doctrine is in any way detracted from by a parenthesis, the meaning of which is by no means clear. Then at page 132, letter F, my learned friend deduces what he understands the free offer of Grace to mean. As, for instance, in Head III. ' Man, by ' his fall having made himself incapable ' of hfe by that covenant, the Lord was ' pleased to make a second, commonly : called the Covenant of Grace : whereby ' he freely offereth unto sinners hfe and ' salvation by Jesus Christ, requiring ¦ of them faith in Him, that they may ' be saved.' But then you must read that with the words that follow : ' and ' promising to give unto aU those that ' are ordained unto hfe his Holy Spirit, ' to make them wilhng and able to ' beheve.' You cannot read the sentence apart. You must take both limbs, and when you do, you find that the latter shows that what is running through the Confession is the foreordination which you find in the earher sections. have that made perfectly distinct. Then at page 155 my learned friend Mr. Haldane founded largely, as I under stood, upon the powers given there to the Synod and Councils as indicating that they had a control over the Con fession of Faith itself. For instance, in particular he founds upon the statement in Article IV. ' All Synods or Councils since the Apostles' times, whether general or particular, may err, and many have erred ; therefore they are not to be made the rule of faith or practice, but to be used as an help in both.' Now, I conceive what that means is that the Westminster Divines have considered aU that has been done before, and have taken the assistance of that, and have produced this Con fession, which they do not maintain to be infallible, but which they maintain to.be the Confession which is to regulate the doctrine of the Church which is going to be founded upon it, and by no means to give to Synods and Councils in that Church a power to alter doctrines on the ground that nothing that has gone before is to be a rule of faith or practice. My Lords, I think it is answered by looking a httle above at Section III., where it is declared ' it ' belongeth to Synods and Councils ' — that is, Synods and Councils for the better government and edification of this particular Church — ' it belongeth ' to Synods and Councils ministeriaUy ' to determine controversies of faith, and ' cases of conscience.' ' Ministerially to ' determine controverises of faith ' is not to alter the doctrine, but to deter mine whether individual doctrine is in accordance with the Creed of that Church. ' To set down rules and direc- ' tions,' and so on ; ' to receive complaints ' in cases of maladministration, and ' authoritatively to determine the same : ' which decrees and determinations, if ' consonant to the Word of God, are to be ' received with reverence and submis- ' sion.' I say when you read the whole of that section together you cannot deduce from it the conclusion my learned friend does that it throws everything else mto the hands of the Synod to MR. JOHNSTON'S change the rules of faith and of practice just as the members of Synod of As sembly for the time being may conceive to be right. I pass now to ' The Sum of Saving ' Knowledge,' which my learned friend has founded upon. ' The Sum of Saving ' Knowledge ' is not a Westminster document. It was prepared by an individual Scotchman, in and about the time of the Westminster Assembly, and it certainly has been accepted with considerable favour by the Church, and its position is very accurately set forth at page 95 of Print A. Lord Davey. — A practical apphcation of the Confession of Faith. Mr. Johnston. — I ask your Lordship again to keep in mind how these docu ments are distinguished. You have at the bottom of page 93 the enumeration of the Westminster documents which are the standards of the Church : ' This ' Church continues till this day to ac- ' knowledge as her subordinate standards ' of doctrine, worship, and government.' Then it declares that the Confession is the test ; that the other documents, the Catechisms, are rather directories for catechising—' the Directory for Pubhc ' Worship, the Form of Church Govern- ' ment, and the Directory for Family '' Worship, are of the nature of regula- ' tions, rather than of tests.' And then, ' These documents, then, together with ' a practical apphcation of the doctrine ' of the Confession, in the " Sum of Sav- ' "ing Knowledge," — a valuable treatise, ' which, though without any express ' Act of Assembly, has for ages had its ' place among them, — have, ever since ' the era of the second Reformation, ' constituted the authorised and authori- 'tative symbolic books of the Church 'of Scotland.' A quotation is given from the 'Sum of Saving Knowledge' by Head III., but I think it right to read to your Lordship a portion of Head II. first of all. Head III. my learned friends have not printed. You have a portion at page 157 of Print F, Head III.— I am quoting from the authorised standards in the volume pubhshed along with the Act of Assembly of 1851— ' The Sum ' of the Covenant of Redemption is this : REPLY 555 ' God having freely chosen into hfe a ' certain number of lost mankind, for ' the glory of His rich grace, did give ' them, before the world began, unto ' God the Son, appointed Redeemer, that, ' upon condition he would humble him- ' self so far as to assume the human ' nature, of a soul and a body, and to ' personaUy know with His Divine ' nature, and submit HimseU to the law, ' as shadowed forth and satisfy justice ' for them,' and so on. It distinctly speaks of a certain number of lost mankind given to the Saviour before the world began. Then you come to the head which they quote. Your Lordships wiU notice, from the quotation they gave, this, ' the out- ' ward means appointed, not generaUy, ' but to make the elect partakers of this ' covenant, and all the rest that are ' called, to be inexcusable.' Then it says, ' The outward means and ordinances, ' for making men partakers of the ' covenant of grace, are so wisely dis- ' pensed, as that the elect shall be in- ' fallibly converted and saved by them ; ' and the reprobate, among whom they ' are, not to be justly stumbled.' The word ' reprobate ' has not the loose modern meaning of the wicked, but the rejected. In the law of election and succession law in Scotland we talk about approbate and reprobate, where im England you talk of election. That is the meaning of the word reprobate there. It does not mean the wicked, but the rejected, as distinguished from the elect. When you read that as prefacing pages 158 and 159, to which my learned friend Mr. Haldane referred, I do not think you can take from those expository references to parts of the Gospel that conclusion which Mr. Haldane argued for, that this really contemplated the double doctrine which he strove to maintain was to be found in the Standards of the Church. You must take the docu ment as a whole. You must take the initial part as well as these ' warrants to ' believe.' In the same way it would only be wasting your Lordships' time if I took the Catechism. There are quotations from the Catechism, but if I take one 556 HOUSE quotation I must take others along with it. There are questions from the Larger Catechism at page 161, and I say, if you are to read Question 68, you must first read Question 67, and if you read those two together, you find, I think, the doctrine of election is very, very clearly made out. That is the doctrine of pre destination, I think, as clearly as can be, and as my learned friend points out, it is quite inconsistent with the United Presbyterian Declaratory Act upon pages 182 and 183 of Print A. In the same way, if you read Question 63 you must also read Question 64. When you take the whole portions of any of these standard documents they give no ground for the conclusion that the contents result in a two-sided Confession. My Lords, I shall say nothing further upon the doctrinal question excepting that I must give your Lordships this explanation. It was asked how it comes about that the Court below had not dealt with it. It was argued before Lord Low. I have referred to the account of the debate before Lord Low. It was most distinctly argued there in both branches. It did not receive acceptance by Lord Low, and he does not refer to it. In the same way it was argued in the Inner House, but I must say not by any means with the same insistence as it would have been if we had found a Court willing to receive it. I think I must state this with blame to myseh, that we did not know our case then so weU as we know it now. We have had opportuni ties of discussion, which have certainly shown the strong points and the weak points in the case, and I must admit that the case has been argued in this House differently from what it has been argued in the Courts below; but it was before the Court, and I think your Lordships find that in Lord Trayner's Judgment, at page 88, he does make some reference to it. The Lord Chancellor. — He very slightly glanced at it. Mr. Johnston. — He very slightly glanced at it and no more. I should certainly wish, if possible, to have relieved the case of this difficult, doctrinal ques tion, but we have thought it was right OF LORDS that all points should be laid before your Lordships, and we ask, therefore, judgment upon it as weU as upon the question of the Establishment principle. We, at the same time, think that we are just as strongly founded upon the ques tion of the Establishment principle as upon the question of doctrme. I should like- at this point to take advantage of what my learned friends have done, and explain to your Lord ships precisely the position which we have taken with reference to the ad ditional matter which they have put before your Lordships. We came to a bargain with them, as we thought, at the time that the case was in the Inner House, as to the material upon which the case was to be disposed of, and we certainly contemplated power on either side to make reference to the Acts of Assembly and the Proceedings, but we certainly contemplated that the Pro ceedings of the Assembly meant merely the minutes of what was done. My learned friends, however — and I take it as somehow a good omen for my side of the question — in the last three months have had to go so far beyond what had been considered by both parties sufficient for the Court below, in order to bring theh case before your Lordships. One thing they have done has been to appeal to a passage from Dr. Candlish's speech when moving a certain motion with regard to communi cations which had been received from other congregational bodies. I shall refer to this because it appears to me to support me in several ways. The Lord Chancellor. — I do not think any of us regarded that as very important. We admitted it, certainly; but really, what an individual member said in his own capacity, and speaking for himself, can hardly be supposed to guide their Lordships in the decision at which they have to arrive. Mr. Johnston. — I think so, but may I venture to ask that I may take advan tage of it. I do not look upon it as against me. The Lord Chancellor. — You may think it a good thing ; he used it to give you an opportunity of replying in time, MR. JOHNSTON'S but I should myself have regarded as of the smaUest possible importance all personal opmions on either side. I gather from what you say you have a favourite passage of yours which you would hke to read, but, with the utmost respect to the reverend gentleman referred to, I do not regard it as of importance. What they said in their capacity for the Church, or authorised to be circulated by the Church, is a totaUy different thing. They are the opinions of individuals making a speech in a debate, and although we did not reject it under the circum stances as evidence, I have no doubt you have a paraUel passage with the exact opposite tendency. Mr. Johnston.— I was going to say that they had appealed to Csesar, in the person of Dr. Candhsh, and I was going to take them there. The Lord Chancellor. — I really think, considering the very wide and powerful argument you have used aheady, you are rather pouring water into your wine by such an allusion as that. Mr. Johnston.— All I meant is that in the same speech on one page he says one thing, and on the other page he says the other thing, and gives it most em- phaticaUy in the same lines as Dr. Chalmers, who, even in the small passage just quoted, did in fact seem to me to exactly hit the present position. There is no union of incorporation here, but there is a union of co-operation. It seems to me he described prophet ically what these people attempted to do. Then, my Lords, I wiU leave that question alone. Now, I have a few words to say with regard to the Dean of Faculty's main argument on the question of legislative power. Our thesis is this— and I have not as yet heard anything which seems to move me from it — that the Free Church, I will not say stands now, be cause there is a difference of opinion as to what the Free Church is, but it stood in 1843, after it was constituted, exactly where the Estabhshed Church would have stood if the Claim of 1842 had been acceded to, but minus the endowment. I say, the day after the Disruption they stood exactlv where the Established REPLY 557 Church would have been if the Claim of 1842 had been acceded to, and therefore what your Lordships have to determine is, What did the Claim of 1842 amount to. The difference between us is a difference between spiritual independence in such a wide sense as to justify the learned Dean of Faculty in arguing that the Free Church is absolutely independent in aU things spiritual, which it may call spiritual, and which it may determine to be spiritual, or whether they are inde pendent in the Une in which you find the Claim and Declaration of 1842 to be aiming at. I confess I cannot find any thing which justifies the existence of this idea of spiritual independence, because the word is not used in 1842 — the existence of this idea of spiritual independence to cover such an absolute freedom which my learned friend con tends for. He supports it by saying you are not to look at the reality of the history of the Church, but what these good people in 1842 or 1843 conceived to be the history of the Church. But, my Lords, I find that in the Declaration of 1842 — the very first thing in the first sentence — the General Assembly set forth that : ' Notwithstanding the securities ' for government thereof by General ' Assemblies,' and so on, ' and for the ' hberties, government, jurisdiction, dis- ' cipline, rights, and privileges of the ' same, provided by the statutes of the ' realm, by the constitution of this ' country, as unalterably settled by the ' Treaty of Union, and by the oath ' " inviolably to maintain and preserve " ' the same, required to be taken by each ' sovereign.' They themselves, without dubiety, found their claim upon privileges founded by the statutes of the realm, and therefore I refer to the statutes of the realm for the purpose of seeing what those privileges were, and you find those privileges are limited to government and disciphne, and that there is no idea in any of them to include the doctrine, except to this extent, as is shown in the passage in the Confession of Faith to which I referred a few minutes ago, doctrine as ministerially determined, that is to say, as determined in the various questions of indi vidual doctrme : ' It belongeth to synods 558 HOUSE OF LORDS ' and councils ministeriaUy to determine controversies of faith, and cases of con- ' science ; to set down rules and direc- ' tions for the better ordering of the ' pubhc worship of God, and government ' of His Church ; to receive complaints ' in cases of maladministration, and ' authoritatively to determine the same.' That statement of what belongs to synods and councils to do is exactly in accord ance with what is conferred upon them by the various statutes to which I have referred. Those statutes provide for the examination of ministers, they pro vide also for the Church having juris diction in matters of heads of rehgion ; but that, as the statutes themselves show, is for the purpose of determining whether any individual minister of the Church, or an office-bearer of the Church, is adhering to the doctrine of that Church, and, if he is not, they have powers of censure and powers of deprivation to be enforced, as the Lord Chancellor said, by the Civil Court, which is provided for by the very statutes themselves. Lord James of Hereford. — But suppose there was to be an attempted union between two bodies of the same faith, without any difference, that could only be effected by the synods, could it ? Supposing you had two irreproachably similar bodies, it is bound to be effected by the synod. Mr. Johnston. — I presume it is, and I was going to say one word as to the distinction between the Church as a whole and the synod or assembly. Lord Davey. — What do you under stand the Westminster Confession to mean by synods and councils ? Do you think they mean such a council as a General Assembly, or what is ordinarily caUed the Council of the Church ? Mr. Johnston. — The first paragraph says : ' For the better government, and ' further edification of the Church, there ' ought to be such assembhes as are ' commonly caUed synods or councils.' The word ' councils ' is never used in con nection with it ; it is ' assembly, synod, ' presbytery or kirk-session,' but i think what is intended to be described is the same thing. The learned Dean of Faculty, I think, misunderstood me on one point, which I desire to clear up. He said that we were agreed that the Free Church had no definite constitution. I think that he must have mis-heard what I said. I maintained that the Free Church had a most definite con stitution, and that you find that in the documents of 1842 and 1843, which documents every Presbytery is in structed to engross in the very fore front of its minute-book as the warrant for what it is going to do. That is the constitution. What I did say, and what my learned friend must have mis heard, was that the United Free Church has no defined constitution. I defy you to find from the documents of the United Free Church what the doctrine of it is. If you turn to Print A, pages 159 and 164, in the conditions which were imposed upon the union, you have such powers left to the Assembly that you cannot say that it has got any definite constitution, but a conflicting constitution, according as a majority may approve. Then at page 164 you have just the same thing again, by a reference merely to the ' doctrines of ' this Church ' instead of ' the doctrine ' of the Confession of Faith ' ; you have the doctrine set forth just as much as other matters on the previous point. Again I say I cannot accept the learned Dean of Faculty's contention that the constitution of the Church is to be found, not in these constituting documents, but, for instance, in the Model Trust Deed. There is a fact with regard to the Model Trust Deed that I wish to bring before you in connection with its context. As I have already said, it is the wildest thing in the world to suppose that the constitution of the Church would be found in a conveyancer's document, prepared for the conveyance of property merely, and not a pubhc document; but he asserted that no document could so emphaticaUy bring before the members of a Church what were its principles as the conveyance of their property. Would your Lord ships be so good as to look at the Ap pendix to the congregational case, in order that you may see just how much and how little it is correct. In the first MR. JOHNSTON'S place, your Lordships will understand, Lord the Model Trust Deed was framed with regard to a particular congregation. I think it was the Free St. George's, Edinburgh, which were the first, so to speak, to use it. It was used by them, and hy them it goes on to the record; but then, for the future, as for instance in the Appendix, page 3, of the smaller appeal, you find the terms of the charter are : ' I, James Watson,' . . . dispone to ' . . . trustees for the congregation of ' the body of Christians called the Free ' Church of Scotland, at present worship- ' ping in the Free Buccleuch Church, ' West Crosscauseway, Edinburgh, under ' the pastoral care of the Reverend ' Doctor Patrick Clason and the Reverend ' Robert Gordon, ministers of the said ' Church, and to their successors in office ' — which is a conveyance to them — ' and to ' the assignees and disponees of the said ' accepting trustees, whether to be named ' or appointed as aforesaid in hfe for ' the time, or of their said quorum, ' heritably and irredeemably : Primo, ' AU and whole.' Then foUows a descrip tion of the property, but, set out at the bottom of page 7, at letter G, is the reference to the Model Trust Deed : ' But in trust always for the ends, uses, ' and purposes, and upon the trusts, ' and with the powers, and under the ' conditions, provisions, and declarations ' contained and specially enumerated ' from primo to duodecimo, both in- ' elusive, in the disposition before ' referred to, made and granted by John ' Hamilton, Esquire, advocate, and others, 'to John CadeU.' That is the first condition of the Model Trust Deed which was used, as I said, in the case of St. George's Free Church, ' registered in the Books of Council and Session the thirteenth day of November, in the year eighteen hundred and forty- four, all of which trusts, ends, uses, and purposes, powers, conditions, pro visions, and declarations are here held as repeated brevitatis causa.' Lord James of Hereford.— Do all their grants of property follow the Model Trust Deed ? Mr. Johnston. — They foUow this deed. REPLY 559 James of Hereford. — And this deed follows the first deed. Mr. Johnston. — It imports by refer ence. Lord James of Hereford. — By the other deeds, so far as they are known, the particular grants are in this form. Mr. Johnston. — They are in this form. They import by reference the terms of the Model Trust Deed. The unfortunate member of the congregation who, accordmg to the learned Dean of Faculty, is to ascertain from the convey ance of his property everything that the Church claims as the constitution, is referred to the Books of Council and Session on the 13th day of November 1844, for the thirteen heads in which he is to find it. I can hardly understand the learned Dean making so much of the Model Trust Deed, just for that very reason, that it is not a pubhc document ; it is a lawyer's document. Even in all the deeds in which it is used, it is only used in that way. The Lord Chief Justice. — You mean the Trusts would not be in the Presbytery Book the same as the other document, so you say the Dean of Faculty was not correct in saying the people would know. Mr. Johnston. — That it was the deed which brings to the knowledge of the individual member of the Church — and even that only in the churches in which it is used — because there are a great number in which it is not. I say again the Act determining the Formula and Questions, is also not the constitution of the Church. The office-bearers are not the Church. To office-bearers a certain Formula is put, but my learned friends seemed to mix up in their own minds the judicatories of the Church and the Church itself. The idea of spiritual independence in the mouths of my learned friends is a very large phrase; but when you come to look first at the Declarator, then at the Claim, aud then at the Protest contained in the Deed of 1842, you will find their idea was entirely limited, and limited to the question of the independence of the Church Courts in the government of their own Church. The powers of the Assembly were a thing of gradual growth, 56o but they were fixed, as it seems to me, in 1690. It is quite true that there was no original constitution, that the powers of Assembly grew up partly by Parlia mentary sanction and partly by practice ; but coming to various stages of the Church history between 1560 and 1690, you have ups and downs, the Church having to assert itseU, just as the State had to assert itself against despotic power ; but you have everything crystaUised and fixed in 1690, and it is the Church of the Revolution Settlement which was the Church in being in 1842, and which gave forth that Declaration. It passes my understanding how my learned friends can assert, as they do, in the face of history, that the Church, as they call it, determined its own constitution, and, for instance, just as a test, deter mined in 1560 what its Confession of Faith was to be. I would, on that point, just say this : That it is made perfectly clear, not by the documents of historians, but by the document of the Church and State itself, that they did no such thing in 1560. In Calderwood's History of the Church, I find, not in his own words, but the quotation of the Supphcation which was made to the Estates of Parlia ment by the ' Barons, gentlemen, bur- ' gesses, and others, true subjects of this ' Realm professing the law of Jesus ' within the same, to the nobihty and ' Estates of Parliament presently as- ' sembled within the said Realm,' and that Supphcation supplicated Parlia ment that it would take steps with reference to the abohtion of Popery, and the determination of the creed of the Nation — not of the Church, because the Church did not yet exist, as is shown by Calderwood's further quotation : ' This Supphcation being read in audience ' of the full Assembly,' &c. [The learned Counsel read the passage.] Lord Davey. — What are you reading from ? What page in Knox's works. Mr. Johnston. — I am reading from Calderwood's History, Volume 2, page 11. Your Lordship is quite right ; you have in Knox something to the same effect. Lord Davey. — Is your point that the only mode in which the Assembly passed HOUSE OF LORDS Knox's Confession was a supplication to Parhament. Mr. Johnston. — They never passed it at all. There was no Assembly ; it was the Lords of Convention, the reforming nobihty, barons, and bur gesses who supphcated. Lord Davey. — It was a revolutionary document. Mr. Johnston. — Exactly. They sup plicated Parliament to entertain the conception of abolishing the Roman Church, and this Supplication being read in audience of the whole Assembly — (that whole Assembly is the Assembly of the Estates of the Realm) — it was remitted to the supphants to frame what they would have received as Confession, and that they did. Mr. Taylor Innes, whose book of course is not to be referred to except for some quotation, because it is a controversial matter, gives a quotation from the second volume of Knox, page 121. which says : ' This our Confession was ' publicly read,' &c. [The learned Counsel read the passage.] I think that disposes of the argument based by my learned friend on the preamble to the Confession. The preamble he re ferred to as implying that there was to be a power to alter. The Lord Chancellor.— I do not see how we have much to do with it, except in one point of the argu ment, which has been thoroughly exhausted with Knox's Confession. What you have made, what I may call the Charter of the Church for which you are appearing, was the Westminster Confession. Mr. Johnston. — My explanation is that the preface is not part of the Con fession, but was what the four Divines who prepared it prefaced to it in pre senting it to Parliament, and accordingly when you find in 1677 that the Confession is reapproved it is reapproved without the preface. I think, my Lords, these matters have been so very fully dealt with that I do not think I should be justified in taking your Lordships over any of the further documents. I submit that you find the Confession in its entirety the MR. JOHNSTON'S REPLY 56i basis of the Constitution of the Church, and that you find the Establishment principle just as emphatically contained in it, and I should ask your Lordships to look at the question which I propose to your Lordships in this way. The trust you will find at page 162 at letter F, and you find the new trust there declaring ' that the said Trustees and ' theh successors in office, to be from ' time to time appointed by the said ' General Assembly, shall hold the said ' property heritable and moveable for 'behoof of the United Free Church of ' Scotland, or any united body of ' Christians composed of them, and of ' such other body or bodies of Christians ' as the said United Free Church of ' Scotland may at any time hereafter ' associate with themselves under the ' foresaid name of the United Free ' Church of Scotland, or under whatever ' name or designation they may assume.' I ask your Lordships to determine, knowing the differences of opinion between the two elements which go to make up the United Free Church, and knowing also the indefiniteness of their constitution and their power to alter, is that trust consistent and com patible, or is it inconsistent and incom patible with the trust which you find in the same Print at page 55, a trust for and on behalf of the Free Church, and to hold such places of worship, and so on ? Are those two trusts the same ? I submit to your Lordships they are not, and if they are not, then the members of the Free Church whom I represent have done right in maintaining the constitution of the Free Church as it at present exists, and as it did exist, and that there was no obligation and no forfeiture imposed upon them for failing to follow the majority of the Assembly (who, as I point out again, are merely the office-bearers of the Church) into this Union, and therefore into the Establishment of this new Church. The Lord Chancellor. — Their Lord ships wiU consider this case. Judgment reserved. 2n X HOUSE OF LOKDS MONDAY, 1st AUGUST 1904. GENERAL ASSEMBLY OF FREE CHURCH OF SCOTLAND AND OTHERS (Appellants), AND LORD OVERTOUN AND OTHERS (Respondents). MACALISTER AND OTHERS (Appellants), AND YOUNG AND OTHERS (Respondents). Lords Present. The Lord Chancellor. Lord Macnaghten. Lord Davey. Lord James of Hereford. Lord Robertson. Lord Lindley. Lord Alverstone. JUDGMENT : THE LORD CHANCELLOR. My Lords, in this case the pursuers who professed to belong to the Free complain of a breach of trust, the Church of Scotland and others who, up trust being for the behoof of the Free to the time of the Union, had belonged Church of Scotland, and the breach of to the United Presbyterian body. They trust alleged being the use of certain purported to unite and to exclude from property being, as alleged, no longer their Communion, or, at all events, from used for the behoof of the Free Church all participation in their organisation, of Scotland, but for the maintenance those who refused to unite in the new and support of another and a different body, and have, of course, used the funds body, namely, the United Free Church, of which they claim to be the beneficial That body was formed in 1900, and owners for the use of the new united consisted of a certain number of those body. THE LORD CHANCELLOR'S This is the breach of trust complained of, and the question is whether that com plaint is well founded. Now, in one sense, there can be no doubt what was the original purpose of the trust. It was for the maintenance and support of the Free Church of Scotland. What was the Free Church of Scotland in 1843 can hardly admit of doubt. The reasons of those who then separated them selves from the Established Church of Scotland which they then gave for their separation are recorded with distinctness and precision, and I do not think there can be any doubt of the principles and faith of those who came out from the Church of Scotland and described them selves as the Free Church of Scotland. Their name was significant ; they claimed to be still the Church of Scotland, but freed from the interference by the State in matters spiritual. It was to the persons thus describing themselves that the funds in dispute were given, and, until the Union of 1900 with the other body, we do not hear of any difficulty having arisen in the administra tion of the trust. Now, however, the new body has estab lished a new organisation ; it is alleged to profess new doctrines, and its identity with the Free Church, for whose behoof the property was settled, is disputed, and it accordingly becomes necessary to con sider in what consists the identity of the body designated by the donors of the fund as the Free Church of Scotland. Speaking generally, one would say that the identity of a religious community described as a Church must consist in the unity of its doctrines. Its Creeds, Confessions, Formularies, Tests, and so forth, are apparently intended to ensure the unity of the faith which its adherents profess, and certainly among all Christian Churches the essential idea of a Creed or Confession of Faith appears to be the public acknowledgment of such and such religious views as the bond of union which binds them together as one Chris tian community. If this be so there is no lack of material from which to deduce the identity of the Free Church of Scotland. Its founders OPINION 563 left their Claim, Declaration, and Protest to stand for all time as a clear exposition, both of theh reasons for leaving the Church of Scotland when they did leave it, and as a profession of their faith as the true Church of Scotland though separ ated from the Establishment, which in their view was itself heretical from its submission to the temporal power in what they regarded as exclusively spiritual. Now, in the controversy which has arisen it is to be remembered that a Court of Law has nothing whatever to do with the soundness or unsoundness of a partic ular doctrine. Assuming there is nothing unlawful in the views held — a question which, of course, does not arise here — a Court has simply to ascertain what was the original purpose of the trust. My Lords, I do not think we have any right to speculate as to what is or is not important in the views held. The ques tion is what were, in fact, the views held, and what the founders of the trust thought important. Fortunately your Lordships have the authority of most learned Judges— their decisions now reaching back for something like a century — which I shall quote some what copiously as principles upon which such questions as are now in debate should be determined : — Lord Eldon with regard to the English law on this subject in England, Lord Moncreiff in Scotland, and Sir William Cusack Smith in Ireland, commenting upon Lord Eldon, have ex pressed themselves in a manner which I think can be well applied to the matter now in debate. Lord Eldon said (Craigdallie and Others, Appellants ; Aikman and Others, Respondents, Scot tish Seceders (Dissenters)) : ' With re spect to the doctrine of the English law on this subject, if property was given in trust for A, B, C, etc., forming a congregation for religious worship ; if the instrument provided for the case of a schism, then the Court would act upon it ; but if there was no such provision in the instrument, and the congregation happened to divide, he did not find that the law of England would execute the trust for a religious society, at the expense of a for feiture of their property by the cestui que trust, for adhering to the opinions and 564 HOUSE OF LORDS principles in which the congregation had originally united. He found no case which authorised him to say that the Court would enforce such a trust, not for those who adhered to the original prin ciples of the society, but merely with a reference to the majority ; and much less of those who changed their opinions, instead of being a majority, did not form one in ten of those who had originally contributed ; which was the principle here. He had met with no case that would enable him to say that the adherents to the original opinions should, under such circumstances, for that adherence forfeit their rights. ' If it were distinctly intended that the Synod should direct the use of the property, that ought to have been matter of contract, and then the Court might act upon it; but there must be evidence of such a contract, and here he could find none. He proposed, therefore, that the cause should be sent back with two find ings of this nature : — 1st. That the ground appeared to have been purchased and the house built for a society united, and pro posing to continue united in religious opinion. 2nd. That it did not in point of fact appear how this property was to be applied, in case the society should happen to differ and separate.' Then Lord Moncreiff (Craigie v. Mar shall, 12 Young, Tennent, Fraser and Murray, 560), commenting upon Lord Eldon's Judgment which I have just read, and repeating parts of it, said : '"If it were distinctly intended that the Synod should direct the use of the property, that ought to have been matter of contract, and then the Court might act upon it; but there must be evidence of such a contract, and here he could find none." He there fore proposed to remit the cause with two findings. Accordingly it was remitted with very precise findings, importing that it appeared sufficiently as matter of fact, that the ground was purchased, and was to be used for religious worship, " by a number of persons agreeing at the time in their religious opinions and persuasions, and, therefore, intending to continue in communion with each other '' ; and that the society had acceded to a body called the Associate Synod ; but that it did not appear, as matter of fact, " for what purpose it was intended at the time such purchase and erections were made, or at the time such accession took place, that the ground and buildings should be used and enjoyed, in case the whole body of persons using and enjoying the same should change theh rehgious prin ciples and persuasions ; or if, in con sequence of the adherence of some such persons to their original religious prin ciples and persuasions, and the non- adherence of others thereto, such persons should cease to agree in their original principles and persuasions, and should cease to continue in communion with each other, and should cease, either as to the whole body, or as to any part of the members, etc., to adhere to the Associate Synod." With these findings the cause was remitted for further consideration. 'There is no ambiguity in the principles on which Lord Eldon made this remit. Under the remit, the Court ordered a Condescendence, with a view to the ascertainment of the matters of fact, whether there was a real difference in the religious principles or not ; and afterwards pronounced an interlocutor, the result of which was, that the Court found that the pursuers " have failed to condescend upon acts done or opinions professed by the Associate Synod, or by the defenders, from which this Court, as far as they are capable of understanding the subject, can infer, much less find, that the defenders have deviated from the original principles and standards of the Associate Presbytery and Synod; and further find, that the pursuers have failed to render intelligible to the Court on what ground it is that they aver that there does exist, at this moment, any real difference between their principles and those of the defenders"; and therefore found it unnecessary to enter into the inquiries which had been directed by the House of Lords, under the supposition that the defenders had de parted from the original standards and principles of the Association.' Then Baron Smith in Ireland, on the same subject, said (Dill v. Watson, 2 Jones's Rep. 91 [Court of Exch. (Ireland) 1836]) : 'Again, I do not conceive that I appeal from the word of God to that of man, by THE LORD CHANCELLOR'S proclaiming or attesting by my signature, that I concur in the interpretation given by a numerous body of my fellow Chris tians to certain passages of Scripture. They agree with me, I agree with them in construction and consequent creed; but neither take their belief upon the authority of those others. Both draw their faith from the Bible as its common source; both con sider the Bible as containing the only rule of, and furnishing the only unerring guide to, a true faith ; each, with God's assistance and the subordinate and pious aid of human instruction, interprets as well as man's infirmity will permit ; both coin cide in the same interpretation ; that interpretation regulates their faith ; and all who thus coincide become members of the same religion. And thirdly, we do not coerce our neighbour by calling for his signature to our profession or articles of faith. We leave him free to adopt or to repudiate that faith, according as his reason, his conscience, and the grace of God may direct him. We but say to him, if you agree with us, affix your signature to certain articles, or in some way notify your recognition of their truth ; or if you disagree, withhold such signature or de claration. Aud we say of him, in the former case, that he is, and in the latter case, that he is not of our religion. We do not compel him to hold our faith ; we but ask him to inform us, by certain acts, whether he does hold it or does not ; and we ask this only if he claim to be enrolled as one of our body, and to be in religious communion with us. In the absence of such a test, our Establishment would not be a rock cemented into solidity by har monious uniformity of opinion ; it would be a mere incongruous heap of, as it were, grains of sand, thrown together without being united ; each of these intellectual and isolated grains differing from every other; and the whole forming a but nominally united, while really uncon nected, mass; fraught with nothing but internal dissimilitude and mutual and reciprocal contradiction and dissension. Hie dextrorsum abit; Me sinistrorsum. This, indeed, I should hold to be, in the language of a late prelate, "a Church without a Religion." ' The priuciples for decision thus, pro- OPINION 565 pounded have been recognised and acted upon ever since, and it would seem that it may be laid down that no question of the majority of persons can affect the question, but the original purposes of the trust must be the guide. Under these circumstances it would seem to reduce the question in dispute to an examination of the evidence as to what is the difference between them, if any, and if that difference does or does not accord with the original purpose of the trust ; but in examining this question one has to bear in mind not what we or any other Court might think of the im portance of the difference, but what the donors of the trust fund thought about it, or what we are constrained to infer would be their view of it if it were pos sible to consult them. The first point in dispute is very plainly set forth by the Pursuers in the 13th Condescendence. After pointing out in the 10th Con descendence that the Free Church of Scotland was a voluntary association or body of Christians associated together under a definite contract involving the maintenance of definite principles, the Condescendence 13 proceeds thus : — Page 53 of the Appellants' Case : ' As already stated, one of the essential principles recognised by those who associ ated themselves to form the Free Church of Scotland, emphasised by their leaders in their utterances at the time of the Dis ruption, and embodied in the contract of association or constitution of said Church as hereinbefore defined, is that it is the duty of the civil magistrate to maintain and support an establishment of religion in accordance with God's Word ; and the said Church, as originally associated, recog nised and maintained the propriety and advantage of the endowment of pastoral charges and the promotion of religious education by the State. The principle of the duty of the recognition of religion by the State by means of the establishment and, Where possible, endowment of a National Church, was moreover implicitly involved in the position claimed by the Free Church as being the Church of Scot land, freed merely from the control of the Civil Courts in matters spiritual. The said 566 HOUSE OF LORDS principle formed an essential principle of the Free Church of Scotland, and its maintenance was one of the main reasons for the formation of that Church as a separate association or body of Christians, distinct and apart from those who profess themselves to be "Voluntaries." There were several such associations of seceders from the Established Church of Scotland in existence at the time of the Disruption of 1843, holding views practically identical with those of the founders of the Free Church in matters of doctrine and as to the encroachments of the Civil Courts, but differing from them as regarded the duty above referred to. In regard to this, these bodies were "Voluntaries" in the sense of holding such action of the State to be unlawful. The foundation of the Free Church was a protest against the position of such Churches on the one hand, just as it was against the encroachments of the Civil Power on the other.' In reply to this the Defenders say, page 85 : — ' The Confession of Faith does nor contain or set forth the said alleged principle in respect to the rights and duty of the CivU Magistrate in regard to establishments of religion as an article of faith or doctrine or belief. It teaches that nations and their rulers are bound to own the authority of Christian truth, but the Free Church has always held that the teaching of the Confession in this matter is to be read and under stood in harmony with the principle (which the Confession also teaches) that the Christian Church has an independent government and jurisdiction in matters spiritual distinct from the Civil Magis trate, and also in harmony with the view that the Confession is not to be accepted as favouring intolerance or persecution or interfering with liberty of conscience. The alleged principle as to the right and duty of the Civil Magistrate to maintain and support an establishment of religion has always been in the Free Church an open question, in regard to which liberty of opinion has been permitted and exer cised, and as to which wide differences of opinion have all along prevailed.' These then, my Lords, are the two contentions upon which the first part of the contro versy depends. My Lords, I cannot doubt that upon this head there is an overwhelming body of evidence in favour of the Pursuers. Indeed, two of the learned Judges have stated in express terms that originally the Free Church did profess what has been conveniently called the Establishment principle, though, for reasons which wUl be dealt with hereafter, they do not think that those who now represent the Free Church are bound by that original opinion. My Lords, I am unable to understand by what test I am to ascertain what the donor of a fund has made essential to his gift unless it is by what he has said or written; and when I find that the Free Church invited support by the circulation of Dr. Chalmers' Address, what can I say but that he then expresses the views of the Church that he represents ? ' By giving up your connection with the State, and thus separating yourselves from the worldly advantages of such a connection, you may be said to have withstood a great temptation to sin in one form ; but such is the deceitfulness of the human heart, that without the heedfulness and the humility which apostles of old so pressed upon the early converts, there is danger of being carried away by temptation in another form — and temptation, too, to the very same sin. Rather than be seduced from one of your greatest principles, you have given up one earthly dependence ; but let principle have its perfect work, and have a care lest you be tempted from even the best of your principles by the promises and the allurements of another earthly dependence. Rather than compromise the authority of Christ over the affairs of His own Church, you have forfeited the countenance of men in power, that is, who have the power of this world's authority on theh side. Beware of com promising another of your doctrines or articles of faith ; and in the defence of which the Church of Scotland did lately signalise herself over the authority of Christ, over the kings and govern ments of earth, and the counterpart of this government, to uphold religion in the world, — beware, we say, of making any compromise or surrender of this your other principle, and this, too, to gain the countenance of those who may still THE LORD be called men in power, that is, who have, if not the power of authority and office, at least the power of numbers on their side. This may be termed a less principle than the other, of inferior consideration in itself, and inferior conse quence to the vital or spiritual well-being of Christ's Church upon earth. But let us not forget what the Bible says of those who break even the least of the Command ments, that they shall be called least in the kingdom of heaven. The men who stand opposed to us on this second, or as many choose to term it, this secondary question, might, with all the hay and stubble and wood of this, and it may be of other errors, be reposing on the like precious foundation with ourselves. They might be men with whom we differ, and yet with whom we can agree to differ. They might be coadjutors in the great work of evangelising the people of our land — brethren with whom we can hold sweet and profitable counsel on the capita fidei or weightier matters of the law, having one faith, and one Lord, and one baptism. But we shall not even for their friendship violate the entireness of our principles, or make surrender of the very least of them. It is not for those ministers of Christ whom I am now addressing, and who, on the altar of principle, have just laid down their all — thus quitting, and for the sake of one principle, the friendship of men who have the power of office, — it is not for them to give up another prin ciple for the sake of courting the friend ship of men who have the power of numbers. We must not thus transfer ourselves from one earthly dependence to another. We have no other dependence than God. We acknowledge the authority, and will submit to the influence of no other guide than His eternal and unalter able truth as seen in the light of our own consciences. To be more plain, let me be more particular. The Voluntaries mistake us if they conceive us to be Voluntaries. We hold by the duty of Government to give of their resources and their means for the maintenance of a Gospel ministry in the land : and we pray that their eyes may be opened so as that they may learn how to acquit themselves as the protectors of the Church, and not as its corrupters or CHANCELLOR'S OPINION 567 its tyrants. We pray that the sin of Uzziah, into which they have fallen, may be forgiven them ; and that those days of light and blessedness may speedily arrive, when kings shall be the nursing fathers and queens the nursing mothers of our Zion. In a word, we hold that every part and every function of a common wealth should be leavened with Chris tianity, and that every functionary, from the highest to the lowest, should, in their respective spheres, do all that lies in them to countenance and uphold it. That is to say, though we quit the Establishment, we go out on the Establishment principle — we quit a vitiated Establishment, but would rejoice in returning to a pure one. To express it otherwise, we are the advo cates for a national recognition and a national support of religion, and we are not Voluntaries.' It would probably be admitted by all that the authority of Dr. Chalmers as an exponent of the views of the Free Church could hardly be overrated, but it was not his personal view merely. The words were addressed, by him as Moderator, and were adopted unanimously and directed to be circulated by the Assembly. My Lords, I am reluctant to render longer what I have to say by literal quotations from authoritative declarations of the Free Church, but though I sum marise, I am actually using the language which originally, and for a long period afterwards, those who spoke on behalf of the Free Church have said and written, as follows : — 'The Free Church has ever highly valued her connection with the State.' ' Firmly asserts the right and duty of the Civil Magistrate to maintain and support an Establishment of religion in accordance with God's Word.' 'They' (the Free Church) 'reserve to themselves and their successors to strive by all lawful means to secure the performance of this duty.' 'The State was bound to establish and endow the Church.' 'The Free Church has not in the least degree altered its views respecting the lawfulness and the desirableness of a right connection between Church and State.' ' History and experi ence have convinced us ' (the Free Church) ' that there is a form of alliance which is 568 HOUSE at once practicable and agreeable to Scrip ture and highly beneficial.' My Lords, I cannot doubt that each of the utterances I have quoted is important, and to my mind conclusive evidence that originally, at all events, the views of the founders of the trust were in favour of the Establishment principle. The question whether they were fundamental or suscep tible of being changed demands a separate treatment, which, as it is applicable to both questions in debate, must be reserved for the present. Now, the views of the United Presby terian Church cannot be more definitely or more shortly stated than in their own language, authoritatively stated by them selves, and before their union with the Free Church. ' It is not competent,' they say, ' to the CivU Magistrate to give legis lative sanction to any creed in the way of setting up a civil establishment of religion, nor is it either his province to provide for the expense of the ministration of religion out of the national resources. It is Jesus Christ, as sole King and Head of His Church, who has enjoined upon His people to provide for maintaining and extending it by free-will offerings ; that this being the ordinance of Christ, it excludes State aid for these purposes, and that adherence to it is the true safeguard of the Church's independence.' In my view what follows does not at all qualify this passage, but in fairness it ought to be added : — ' Moreover, though uniformity of opinion with respect to civil establishments of religion is not a term of communion in the United Presby terian Church, yet the views on this sub ject held and universally acted upon are opposed to these institutions.' Here then we have the two bodies which are supposed to establish identity of religious belief, the one asserting the right and duty to maintain and support an establishment of religion, the other asserting that Christ's ordinance excludes State aid ; each of them therefore treats the question as one of religious belief and obhgation, and not one from which re ligious duties may be excluded. The second question in debate is the difference between the two bodies as to the two doctrines known as the Calvinistic OF LORDS and the Arminian doctrine of Predestina tion. I use these two phrases, subject to more ample exposition hereafter, in order to summarise what I have to say, as pre liminary to the discussion of the subject itself. I regret very much that we have not any opinion from the learned Judges whose judgments we are called upon to review. I am afraid, speaking for myself, I do not think it is competent to me to avoid dealing with it. It is included in the allegation of a departure from the doctrines which is complained of in the Summons, and it has been argued before your Lordships with great learning and ability. One observation made by the learned Counsel I entirely agree to, namely, that in discussing this subject one cannot ignore the contemporaneous theological discussions at the time the Confession of Faith was compiled. Now, the doctrine in dispute was the subject of a copious amount of literature all through the seventeenth century. Looking, then, at the history of the particular dispute which is brought into debate, it cannot be said that the language of the Confession of Faith was lightly drawn or arrived at without long debate and deliberation. Indeed, it may be said of the West minster Confession as a whole, it was composed with a deliberate and caieful scrutiny which may be regarded as hardly equalled in any theological discussion, and though Councils of the Church have lasted longer, yet if one regards the composition of the Assembly itself, the original parties to the discussion, the presentation of its different portions to Parliament, the adop tion of it by Parliament, and afterwards by the Church of Scotland, these things give an overwhelming sanction to it, and at all events to its original meaning by those who were content to accept it as a test of the unity of their religious belief. If this observation is true and applicable to the Confession of Faith as a whole (the minute report of its deliberations has been deciphered by the distinguished Director and Principal Librarian of the British Museum), the particular doctrine debated as part of the code of belief which the Free Church adopted in 1843, and THE LORD CHANCELLOR'S which it is alleged that the United Free Church has abandoned, can hardly be said to be one which any Christian Church could regard as a matter of indifference. It divided the Dutch Reformed Church at the beginnmg of the seventeenth cen tury. It proved the subject of debate at the Hague in 1611, and at Delft in 1613. An edict of the States of Holland sought to put an end to the controversy, but in vain; and finally, in 1619, at the Council of Dort, ten years after the death of Arminius, or Hermanson, as was his real name, the Arminian heresy, as it was described, was publicly condemned. Its professors were denounced as liars and deceivers, and those who participated in it were deprived of their civil rights unless they retracted. James the First is said to have procured the exile of Conrad Vorstius, one of the protagonists of the Arminian doctrines, and afterwards he wrote a pamphlet against him, and argued that he ought to be put to death for his unchristian doctrines ; while, on the other hand, the Councils of Constantinople in 1642 and the Council of Jerusalem in 1672, pronounced the following opinions : — Treating of what they describe as the Calvinistic doctrine, the Council of Con stantinople of 1642 says, in Cap. 3 : tov ©eov viroTL$r]o-i.v dSt/ccoraTov, TvpavviKrj Xpu>p,evov e^ovo-ia, p-ovy Aeycov rfj QeXr)0~ei avrov tovs p,ev el's oogav itpooplo-ai, tous Se a-TroBd-XXetv eh KoXaoriv, p.rjSap.Sis to. epya airuiv aK.OTrovfj.evov, ov Tt av yevono dcreySe- o-repov ; Deum facit iniquissimum, tyrannica potes tate utentem, aiens eum sola sua voluntate alios prsedestinare ad gloriam, alios in poenam mittere, nulla operum habita ratione. Quo quid magis impium proferri possit 1 The Synod of Jerusalem in 1672 said, in Cap. 3 : a.XXa Kal to rr/v Oeiav OeXrjo-iv alriav eXvai tS>v KaTaKpivop,evn>v outcos cra-Aws Kal dvatTtcos rrolav ovk e^et p,aviav ; iroiav ovk errafiepei Kara, tov ®eov cru/coc/>avTtav, Kal rrolav els to vij/os oi XaXel aSiKiav, /cat BXao-Pav TVS rrpoo-a- TcoXr}\fjlas Trap' avr£) otSaptev tois BeBrjXots yevojJ.evoK o-Keveai Sta fnox&y]pav avrSiv -rrpo- OPINION 569 atpeo-iv, /cat ap,eTav6rrrov KapSlav, cos Succuov TrapaxXu> aTrorjvap,evov p.)) yevoiro rjp.3.s ovtws tj inaTevaai, ry evvorjcrai tcos av eavrwv ecrp.ev ava8ep.aTi Se cucovtco Ka0vTroB6.XXop.ev tovs Ta rotaBra /cat Aeyovras, /cat j the Free Church 'as pastors, congregations, and kirk-sessions of the Free Church of Scotland.' The other case of union took place in 1876, also in the days of the Free Church. It is founded upon by the Lord Justice- Clerk in his judgment under a misappre hension which unfortunately enters pretty deeply into his Lordship's judgment. The Lord Justice-Clerk says of the Re formed Presbyterian Church that it ' cer tainly did not hold the Establishment principle ' ; and for this surprising state ment he gives as his reason that since 1689 they declined to become members of the Church of Scotland as established; abode by their objections to the Revolu tion settlement, and did not ' commit ' themselves to an approval of an alliance of the Church with the British State as at present constituted, having in view especi ally the unscriptural character of its ecclesiastical relations. Now, so far from the Reformed Presbyterians not holding the Establishment principle, they were the ecclesiastical heirs of the Covenanters, who held it passionately, and they repre sented the extreme right in Presbyterian orthodoxy. But they washed their hands of the Revolution settlement because the same State which established the Presby terian Church in Scotland ignored the ' Second Reformation,' and established in England the Prelatical Church, against which woe had never ceased to be de nounced by the Church of the ' Second Reformation.' Accordingly, the attitude of the Reformed Presbyterians on the Estabhshment question was exactly ana logous to that of the Free Church ; hold ing the Establishment principle, they held aloof from the existing Establishment because, as they held, constituted on wrong terms. The statement of the Lord Justice-Clerk, therefore, can only be sup ported if his Lordship means that men do not hold the Establishment principle if they decline to join the Establishment as constituted at the time. And if this be sound, it, furnishes (as already pointed out) a very simple end of the present case. The net result, then, of the history of these unions is this, and nothing more, that where the General Assembly have LORD ROBERTSON'S been satisfied about Presbyterian bodies that they held the same standard as them selves, and were sound on the Establish ment principle, those bodies have been admitted with full honours. I have hitherto discussed the case re lating to the general property of the Free Church, and I have come to the conclusion that the Appellants are entitled to prevail. The other action only differs because of the Model Trust Deed. Of it I have only to say that it is, and was treated in its inception as, a conveyancer's instrument; that its clauses about union seem to me to apply necessarily only to such unions as were competent to the Free Church ; and that they are entirely satisfied, and were probably suggested, by such cases as had occurred. It is not in such a Deed that you can look for constitutional changes, or for new powers not hitherto possessed. Regarding the whole of the property now in dispute, I cannot see how, in law or in fairness, a majority of the men who acquired it on the representations made in the ' Affectionate Representation ' could have been allowed, say in 1850, to carry off the property to the Voluntaries, and come forward arm in arm with the Volun taries, and claim it for the fused body. And after all the argument we have heard, I have discovered no reason which makes that fair and lawful in 1900 which would not have been so fifty years earlier. A serious and weighty argument was addressed to your Lordships on both sides of the Bar, relating to the Confession of Faith. That argument treated of two separate matters, which, in my judgment, must be separately considered. The first is whether the Respondents have not deposed the Confession of Faith from its place of authority as a standard of the Church, and whether this of itself does not take them outside the trusts under which the property is held. The second and quite separate question is, whether on one specific doctrine, viz., Predestination, the new formulary is not contradictory of the Confession of Faith. OPINION 603 On the former of these questions my judgment is in favour of the Appellants. First of all, I put aside any confusion which may arise from the substitution of the Westminster Confession for John Knox's Confession. It is with the West minster Confession that we have to do, and it seems to me that if anything is certain it is that the Free Church was pledged to the doctrine of the Westminster Confession as her doctrine and the doctrine of her office-bearers. Through all her history, and at every crisis of her history, assuming her identity with the historical Church of Scotland, she proclaimed this on the house tops and in the most solemn and deliberate of her testimonies. Freed from State interference in 1843, she pro ceeded to fasten on herself the old obliga tions. Of her rights in judicial cases to construe the Confession of Faith there is no need to speak. But that the Confession of Faith is 'the truths of God' was solemnly attested to be the personal belief of all who signed it. That this was found to be a hard yoke is credible, and has been asserted. Of the means at the command of the Free Church to alleviate this pressure I do not know. But what she has now done is to substitute a belief in ' the doctrine of the Church as expressed in the Confession of Faith,' and the general words in the first of the declara tions, adopted by the United Assembly on 31st October 1900, make it plain that the doctrine of the Church as part of her con stitution is intended to be mutable. This places the Confession of Faith in a pre carious instead of a stable position, and in my opinion this is an abandonment of an essential characteristic of the Free Church. Such being my opinion on the more general question as to the Confession of Faith, I deem myself absolved from the necessity of entering on that one of its articles which has been separately dis cussed, viz. Predestination. I am of opinion that in both cases the judgments ought to be reversed with costs. 604 HOUSE OF LORDS LORD LINDLEY. Mt Lords, in the year 1900 the Free Church of Scotland (which the Pursuers and Appellants claim to represent) and the United Presbyterian Church united and formed the United Free Church of Scot land. Property previously held by trustees in trust for the Free Church was trans ferred to trustees in trust for the united body, i.e. the United Free Church; and the question raised by the first appeal is whether this transfer of property was or was not a breach of trust and invalid, although sanctioned by the General As sembly of the Free Church, and by the great majority of the members thereof. The Court of Session decided this question against the Pursuers, and they have ap pealed to your Lordships' House against this decision. The second appeal relates to property conveyed to trustees for particular con gregations of the Free Church, the trusts of which are fully set out in the Model Trust Deed of 1844, which is one of the most important documents in the case. The question raised by the second appeal is whether the trusts declared by that deed are confined to members of the Free Church, represented by the Appellants, or whether the trusts are wide enough to include all the members of the United Free Church formed in 1900. The Court of Session decided this question also against the Appellants. Both appeals are really based upon the ground that the union of the two Churches could not be legally effected consistently with the constitution and standards of the Free Church, and that consequently the transfer of the property of that Church to the United Free Church was a breach of trust and invalid ; and that as regards the congregational property the benefit of the trusts of the Model Trust Deed can only be enjoyed by persons - professing the doctrines which the Appellants contend were the unalterable doctrines of the Free Church. My Lords, the whole controversy turns on the powers of the General Assemblies of the Free Church. If they have no power to relax the fetters which the Appellants contend bound the Free Church hard and fast from its birth, then these appeals ought to succeed. But If, as the Courts in Scotland have held, the General Assemblies of the Free Church have power to do what they have done, then these appeals must fail. I propose therefore to confine my observations entirely to this one crucial question. The circumstances which led to the secession of the founders of the Free Church from the Established Church and the views of the seceders are fully set out in the Claim, Declaration, and Protest of the 30th May 1842, and in the Protest of the 18th May 1843. These documents and the Model Trust Deed framed on the basis of these documents in 1844 show that whilst the seceders renounced all the benefits derived by the Established Church from its connection with the State, and shook off so far as they could aU interfer ence and control by the State, yet they clung tenaciously to the Holy Scriptures, the Westminster Confession, the two Catechisms, and the Second Book of Discipline, and regarded them as deter mining and regulating their doctrine, worship, discipline, and government. The government of the Church is declared to be in the hand of the Church officers, which means in the last resort the General Assembly. The. powers of this body, as originally established, are to be found in the Westminster Confession and in the Second Book of Discipline ; but the Free Church greatly enlarged these powers in 1843 and 1851, as wUl be seen presently. The Claim, Declaration, and Protest above referred to treat the immunity of the General Assembly from all State control as a fundamental principle of the Church of Scotland; and the Free Church was formed in order to secure this immunity more completely than the Civil Courts had declared to be .possible for members of the existing Established Church. Free dom from all State control in spiritual matters, as understood by Free Church men, is the raison d'etre of the Free Church. The Address to Her Late Majesty (30th May 1842), the Act of LORD LINDLEY'S Separation and Deed of Demission by Ministers (23rd May 1843), and the Deed of Demission by Elders (30th May 1843) which followed it, all put this as the great object of the whole movement. At the same time the claims of the seceders are declared to be based on the constitution and standards of the Church of Scotland as heretofore understood ; and in particu lar they considered it the duty of the State to promote religion as inculcated in the Westminster Confession and the other standards of the Established Church. By the expression 'heretofore understood' I think is meant understood by the Church of Scotland unfettered by Legislation and by legal decisions based upon it. I must now invite your Lordships' attention to the powers of a General Assembly of the Church of Scotland as declared in the Second Book of Discipline (1578), the Westminster Confession (1643, ratified by Statute 7th June 1690), and the Barrier Act (1697). The Second Book of Discipline is re ferred to in the Claim, Declaration, and Protest of 1842, as one of the Church's authorised standards, and hi the Act and Declaration of 1851 (which will be here after mentioned) as one of her earliest standards. It is a work of great authority. Speaking of Assemblies, it is laid down (Chapter VII. section 8): 'They have power also to abrogate and abolish all statutes and ordinances concerning ecclesi astical matters that are found noisome and unprofitable, and agree not with the time, or are abused by the people.' This is a very large legislative power exercisable by General Assemblies of the whole Church, but not I should think by smaller Assem blies whose functions are more circum scribed. The Westminster Confession is, next to the Holy Scriptures, the most authori tative document of all for members of the Scotch Church. It is plain from the language of this Confession that its framers laid no claim to infallibility for themselves and disclaimed infallibility for the Synods and Councils of the Church which should adopt that Confession (see Chapter XXXI., Article 4). But although infallibility is denied them, great power is conferred upon them; for Synods and OPINION 605 Councils are to determine controversies of faith and to make rules for public worship and government of the Church (see Chapter XXXI., Article 3). Their power is limited to ecclesiastical as distinguished from civil affairs (see Article 5). It is also declared- in the Confession itself that the Holy Scriptures are the foundation of the doctrine contained in the Confession, and are to be the foundation of the doc trines of the Church which adopts it (see Chapter I.). In all controversies of religion the Church is finally to appeal unto the Holy Scriptures (Chapter I., Article 8). Chapters I. and XXXI., when read to gether, appear to me to confer upon Synods or Councils the power of interpreting the Holy Scriptures and the various articles of the Confession when controversies arise as to their meaning; and as infallibility is disclaimed, it follows that an interpreta tion put by a Synod or Council on Scripture or the Confession is not binding for all time, but may be modified or even rejected and be replaced by another in terpretation adopted by a later Synod or Council, and declared by it to be in its judgment the true meaning of the Scrip tures or Confession upon the matter in controversy. I take it to be clear that there is a condition implied in this as well as in other instruments which create power, viz. that the powers shall be used bond fide for the purposes for which they are conferred. If, therefore, a Synod or Council under colour of exercising their authority were to destroy the Church which they were appointed to preserve, or were to abrogate the doctrines which they were appointed to maintain, their acts would be ultra vires and invalid in point of law ; and it would be the duty of every Court in the United Kingdom so to hold if the question ever involved a controversy as to civil rights, and so arose for judicial decision. For all persons who are members of the Church of Scotland its General Assembly is the highest Council of the Church, and it is difficult to limit the powers conferred upon it by the foregoing documents, except by an appeal to the implied condition to which I have referred. 6o6 HOUSE OF LORDS I cannot agree with those who contend that the powers of the General Assembly as declared in these documents are un limited; but I am not able myself to define the limits of its authority more accurately than above stated. It is prob ably impossible to draw a sharp line clearly dividing all acts of a General Assembly which are within its power from all acts which are beyond it. But it does not follow that it is impossible, or, indeed, difficult, to decide in the great majority of cases whether a particular act is within its power or beyond it. Great as the powers are, they are limited by what can be found in the Scriptures. The Church must be a Christian Church and a Reformed Protestant Church. So far all is plain. I should myself think that it must be a Presbyterian Church. But this question is disputable, and, hap- phy, does not arise. That very extensive but not accurately defined powers, both as to doctrine and government, are vested in a General Assembly of the Scottish Church, is ap parent from the Act of Assembly of 1697, commonly called the Barrier Act. Ex tensive but undefined power is there un mistakably assumed and recognised ; no limit is set to it ; but very important machinery is provided for its future exer cise to prevent hasty decrees. In that respect the Act is a restrictive Act, for, unless the prescribed machinery is adopted, an Act of Assembly cannot become a ' binding rule and constitution of the Church.' But the restriction only affects procedure ; the wide powers of the General Assembly are not curtaUed. This Act is, in my opinion, clearly appli cable to the General Assemblies of the Free Church. It was included in what was adopted when that Church was created. My Lords, if the case now before this House had to be decided on the docu ments to which I have already alluded, and without reference to any Acts of Parliament or other Acts of Assembly, I should hesitate long before I came to the conclusion that what the Appellants mainly complain of was beyond the power of the General Assembly of the Free Church. Any interpretation of Scripture or of the subordinate standards bond fide adopted by a General Assembly, and held by them better to express the doctrine intended to be expressed by the language used in the Confession itself cannot, in my opinion, be treated as beyond their power, but is well within it. But there are other documents which have to be considered, and especially the Model Trust Deed, prepared in 1844 under the instructions of the General Assembly of the Free Church, and for mally approved and adopted by it in 1851. It is therein recited that it was at all times an essential doctrine of the Church of Scotland that it should have a govern ment in the hands of Church officers, dis tinct from the civU magistrate or supreme power of the State, and that this govern ment comprehends 'the whole power of the Keys,' which expression, I under stand, includes those wide powers to which I have already referred in all matters touching the doctrine, worship, disciphne, and government of the Church. Then it recites the secession from the Established Church and the formation of ' the General Assembly of the Free Church of Scotland,' and the claim of the Free Church to all the powers and privileges and the same internal govern ment, jurisdiction, and discipline, accord ing to the true and original principles of the Church of Scotland before the separa tion. The Model Deed then gives a form of conveyance of property to trustees upon trusts declared at great length, but which may be shortly summarised as trusts for the use as a place for religious worship by members of the Free Church. These trusts clearly contemplate the union of the Free Church with 'other bodies of Christians as the said Free Church of Scotland may at any time hereafter associ ate with themselves,' and provision is made for worship by such united bodies. The fourth trust is very important. It is to the effect that the trustees shall at all times be subject, hi the management and control of the trust property, and in all matters and things connected therewith, to the regulation and dhection of the General Assembly for the time being of the said body or united body of Christians. Provision is made for the event of a when the borne in ap- LORD LINDLEY'S secession from the Church, which will be found in the ninth trust. These trusts are confined to the congre gational property which is the subject of the second appeal; but no one suggests that, as regards the constitution of the Free Church and the powers of the General Assembly, there is any difference between one set of members and another. In my opinion the Model Trust Deed emphasises and makes plain much that is obscure when the subordinate standards alone are looked at, especially legislation affecting them is mind. In the year 1844 trustees pointed to hold any property which might be bequeathed or conveyed to them for the Free Church, and also such places of worship as might be erected on sites granted to trustees nominated by the General Assembly, and also such other places of worship as persons might wish to convey to them on the terms of the Model Trust Deed. A fresh appointment was made in 1871. I pass on to consider what was done as regards the union of the Free Church with the United Presbyterian Church. Union with other Presbyterian Churches was apparently desired some fifty years ago, but in order to effect union with the United Presbyterians several arrangements of importance had to be made, particularly with reference to the mutual eligibility of the ministers and other officers of the two bodies to Church offices, and to adjustment of the different views held by the two Churches respecting Predestination and respecting their relation to the State, and the duties of the State as regards religion. It took many years to settle these pre liminary matters. In 1892 the General Assembly of the Free Church passed ' The Declaratory Act anent Confession of Faith ' ; and although a small minority of members protested against it, I am quite unable to discover any valid ground for holding this Act to be one which a General Assembly of the Free Church had no power to pass. It no doubt relaxes the excessive stringency of certain Articles of the Westminster Confession, if construed literally ; but it imposes no new fetters, and in relaxing the old ones, and so rendering them more OPINION 607 acceptable to many earnest Presbyterians desirous of remaining in the Church or becoming members of it, the General Assembly were honestly attempting to preserve the Free Church and its funda mental doctrines, and in my opinion there is no pretence for saying that they were false to their trust and were endeavouring to destroy any doctrines which it was their duty to preserve. My Lords, I can understand that an ordinary member of the Free Church, brought up from childhood to regard the Confession as an inspired document to be construed literally and in the same sense for all time, may think some of the doctrines set forth in this Act unorthodox ; but that is not the question on which this Appeal turns. The question is whether it is competent for the governing body of that Church, i.e. the General Assembly, complying with the conditions of the Barrier Act, to declare that the Confession, properly understood, does not require absolute uniformity of belief on the matters dealt with by the Declaratory Act. This is the great question at issue between the parties to this Appeal, and I have come to the clear opinion that on this question the Appellants are wrong. I come to this conclusion after a careful examination of the powers of the General Assembly as contained in the documents before referred to. These powers are, in my opinion, as fundamental in the consti tution of the Free Church of Scotland, and as essential to its preservation, as any of the doctrines of the Confession or other subordinate standards. The Appellants made a great point of the alteration made by this Declaratory Act in the fundamental doctrine of the Free Church respecting the principle of Establishment, by which I understand is meant the duty of the State to promote religion, and especially the Presbyterian religion, as set forth in the Westminster Confession, and sanctioned by Parliament as already mentioned. Chap. XXIII., Art. 3, of the Confession declares what, in the view of the Church of Scotland, is the duty of the State. Its language is very general, and leaves the State to determine in what manner it will perform such duty. Some, at all events, of the founders of the Free 6o8 HOUSE OF LORDS Church attached great importance to this principle of Establishment which was not held by aU Scotch Presbyterian Churches. But it does not follow that this principle was to be tenaciously adhered to for all time, and that no future General Assembly should have power to modify or relax it if, owing to changes of opinion or other circumstances, the General Assembly of the Free Church deliberately came to the conclusion that the preservation and healthy growth of the Free Church required the principle to be reconsidered. I cannot come to the conclusion that the view taken in 1843 of the duty of the State was a fundamental doctrine ad mitting of no explanation or modification. Dr Chalmers' Address, adopted by the Free Church, shows that he and its then members would have strenuously opposed the change made, but it does not follow that he or they would have denied the power of a future General Assembly to make such change after due delibera tion. As I understand the matter, the Free Church can and does fulfil all her sphitual functions without any State aid, and the attempt to obtain aid from the State, whilst repudiating all State control, has proved a failure. This doctrine as to the duty of the State, whether best described as a pohtical or a religious doctrine, is a doctrine which the General Assembly could, in my opinion, repeal or modify as might be expedient. In 1900 the Act uniting the two Churches was passed by the Free Church of Scotland, after complying with all the conditions of the Barrier Act. The Act was dated the 31st October 1900, and the two Churches were then formed into one under the name of the United Free Church of Scotland, and its supreme governing body was designated the General Assembly of the United Free Church of Scotland. Having regard to the constitution of the Free Church, I cannot agree that this union could only be legally vahd if assented to by all the members of the Free Church. As part of this transaction, the property held for the Free Church by its trustees was ordered to be conveyed to a new body of trustees for the United Free Church, and this was done ; but a dissentient minority protested. This transfer is complained of by the Pursuers, and is sought to be set aside. But having regard to the trusts on which the property of the Free Church was held, and to the powers of its General Assembly, the Pursuers have, in my opinion, com pletely failed to prove any breach of trust or misapplication of the property of the Church. The United Free Church is the Free Church lawfully enlarged ; the indi viduals entitled to the use and enjoyment of the Church property are lawfully more numerous than before. The Pursuers in the first Appeal have not been unlawfuUy excluded from such use and enjoyment. There is no evidence that any person has been deprived of the use and enjoyment of any property held in trust for the Free Church or the United Free Church, or any congregation of either, except a few ministers represented by the Appellants in the Second Appeal, who repudiate the authority of the General Assembly of the Free Church to make the changes com plained of, and who, by their own con duct, have deprived themselves of theh right to the benefit of the trusts on which such property is held. Both Appeals are based on the erroneous view that the Free Church had no freedom ; but that it was bound hard and fast to certain doc trines expressed in language admitting for all time of only one meaning. I am quite unable so to regard it. The struggle for liberty was not so abortive as that. In the course of the argument many statutes and decisions were referred to. Those which related to conflicts with the Established Church of Scotland are not so important for the present purpose as those which relate to disputes between members of non-Established Churches. The deci sions relating to the Established Church (namely, the Auchterarder case and other Scotch cases referred to in argument) would be all important if your Lordships had to consider the validity of acts done by the General Assembly of the Estab lished Church of Scotland; for that Church is governed not only by the West minster Confession and Acts of Assembly, but also by statutory enactments which make reform in her doctrines, worship, LORD LINDLEY'S OPINION discipline, and government difficult, if not and Cr. 72 ; Long v, impossible, without legislation. But the Free Church is emancipated from these fetters. As formed in 1843, the Free Church was purely a voluntary religious associa tion, both Christian and Protestant, and believed by its founders to be divinely instituted, professing doctrines based on the Scriptures and the old subordinate standards, governing itself by certain rules, and providing a representative assembly of its own for explaining its doctrines and for preserving the association by mak ing such changes in its worship,, dis cipline, and government as might be found expedient after consulting the whole body as required by the Barrier Act. A trust for the Free Church is, in my opinion, a trust for such persons as shall hold the doctrines and submit in ecclesiastical matters to the government and discipline adopted by the founders of the Free Church, with such modifications as may be made from time to time by the General Assembly of that Church, pro vided the conditions required by the Barrier Act are observed, and provided the Church is preserved as a Reformed Church with Presbyterian government. There is no statutory or other law which makes such an association illegal, or which compels it to accept the West minster Confession, whether with or without modification. The founders of the Free Church did 'accept it, but only subject to the powers which they insisted were vested in the General Assembly of that Church. So long, therefore, as the General Assembly does not exceed those powers or act contrary to some statutory or other law of Scotland, or commit any breach of trust as above explained, it is not the function of any Civil Court to interfere with it. This I regard as settled by the decision of your Lordships' House in Craigdallie v. Aikman (1 Dow, 1 and 2 Bligh, 529) ; Forbes v. Eden (L.R. 1 Sc. and Div. App. 568), and is in entire accordance with the general law of trusts applicable to such associations as the Free Church (see Attorney-General v. Pearson, 3 Mer. 353; Milligan v. Mitchell, 3 Al 609 Bishop of Cape Town, 1 Moo. P.C. N.S., at page 461). The distinction between an erroneous decision by a body having jurisdiction to deal with a particular subject matter, and a decision by a body having no jurisdic tion over the matter decided, is familiar to all lawyers, and must be steadily borne in mind in this case. In passing the Declaratory Act of 1892, and the Act of Union of 1900, I can discover nothing ultra vires or contrary to any law. Still less can I discover anything ultra vires or contrary to law in the interpretation put by the General Assembly of the Free Church on some of the Articles in the Westminster Confession, or in the altera tions made in the declarations and forms to be made and signed by the ministers and officers of the Church. It follows that, in my opinion, the transfer of property which is complained of (and which was simply consequential on the Acts of Assembly of 1892 and 1900), was neither ultra vires nor contrary to any law, and cannot therefore be success fully impeached. The foregoing observations apply to both appeals ; but the second appeal appears to me to present less difficulty than the first. I regret that any ministers should have been excluded from their offices; but the trusts declared by the Model Trust Deed are clear and explicit, and their validity cannot be questioned by those who have no title to the property to which it applies except under the pro visions of that deed. There has been no breach of the trusts declared by the Model Trust Deed. My Lords, I might have contented my self with saying that I concurred in the decision of the Court of Session, but the question between the parties is of such great importance, and its solution requires a careful study of so many documents, statutes, and decisions, that I considered I should not be adequately discharging my duty to this House if I did not set forth, as clearly as I could, the reasons which have induced me to give my voice for the dismissal of both Appeals with costs. M. 2Q 6io HOUSE OF LORDS LORD ALVERSTONE. Mt Lords, — Inasmuch as I am differing in a Scotch Appeal from the Judgment of the Lord Ordinary, affirmed unanimously by the Second Division of the Court of Session, I think it only right that I should state my reasons for the Judgment which I am about to give. The question raised by these Appeals is, whether funds invested in the names of trustees, and real property held on trust for the behoof of the Free Church of Scotland, have been dealt with in a way which constitutes a breach of trust. Both classes of property are now being applied, or it is proposed to apply them, for the purposes of the United Free Church, being a body of Christians formed by a union, or attempted union, of a great majority of the ministers and elders of the Free Church of Scotland, with the ministers and elders of the United Pres byterian Church of Scotland, and the point to be decided is, whether, having regard to the purposes for which the money and property were originally sub scribed, given, bequeathed, or conveyed, such application constitutes a breach of trust. The union, or attempted union, was assented to and approved of by a very large majority of the ministers and elders and congregations of the Free Church ; the actual numbers are not material, but, as I understand, all, except some thirty of the ministers, approved of the proposed union ; but the dissenting minority repre sent a very considerable body of adherents to congregations of the Free Church who do not approve of, and some of whom have protested against, the proposed union. The law applicable to funds which have been given for the purpose of a voluntary association such as the Free Church is well settled, and it is not necessary for me to do more than refer to the decision of your Lordships' House in Craigdallie v. Aikman to show that such funds, in the absence of express provision, must be applied for the benefit of those who adhere to the original principles of the founders. If the terms of the foundation of the trust provide for the case of schism, the Courts wiU give effect to them ; but if there be no such provision, the cestius que trust are those who adhere to the funda mental principles upon which the associa tion was founded. The Free Church of Scotland was formed in the year 1843 by what is caUed 'the Disruption,' or, in other words, the secession from the Established Church of Scotland of a large body of the ministers of the Established Church, who renounced entirely the pecuniary benefits of their connection with the Establishment, in maintenance of a protest which they had made against the interference by the Civil Courts with rights which they considered to be the rights of the Church. It is not necessary to trace the history of the Established Church down to 1843, or the history of the various secessions which had taken place before that date, but it is sufficient to say that those who founded the Free Church separated from the Established Church not upon any question of doctrine, but solely upon the ground which I have just mentioned, and which ground is in no way inconsistent with the principle of Estabhshment. The United Presbyterian Church was not then in existence ; it was formed in the year 1847, by the union of two Churches which had separated from the Established Church many years before, and were known as the United Associated Synod and the Rehef Church. It is necessary to consider carefully what was the constitution of the Free Church, in so far as it throws Ught upon the question raised for your Lordships' decision, viz. : What were the trusts upon which the property in dispute in this action was held 1 The first, and in fact the most important, question which arises on this part of the case may be stated as follows. It is maintained by the Appellants, and denied by the Respondents, that the principle of Church Estabhshment was adopted as a fundamental or essential principle of the Free Church of Scotland; and that its founders made that principle one of the main grounds for refusing to join other LORD ALVERSTONE'S existing voluntary Churches. It cannot, I think, be doubted that this principle was regarded as being fundamental by the founders of the Free Church, and was put forward as one of the main inducements in the appeals for pecuniary aid, in re sponse to which a very large proportion of the funds and property now held in trust for behoof of the Free Church was given. Upon this part of the case I might content myself with adopting the view which is expressed by the Lord Ordinary, and by more than one of the Judges of the Court of Session. Lord Low, in his Judgment, at page 58, expressed himself as follows : ' There is no doubt that the founders of the Free Church, when they left the Established Church in 1843, did so, declaring that they adhered to the principle of an Established Church, and that they seceded only because, as the law then stood, the Church did not possess that independence in what they regarded as matters spiritual, which in their view was essential in order to give effect to the cardinal doctrine of the Headship of Christ.' And later on, at page 59 : 'The Establishment principle (to use a con venient short phrase) was one which was regarded as of great importance by the Free Church at the commencement of its history, and naturally so, because, in the first place, it justified the action of those who had seceded, by proclaiming that they were not schismatics ; and, in the second place, the founders of the Church hoped that a change in the law might be effected which would enable them to return to the Establishment.' And Lord Trayner says, in even more emphatic language, at page 89 : ' The Free Church, from its constitution in 1843 down (at least) to its union with the United Presbyterian Church, professed the Establishment principle.' And at page 90 : 'It was the feature of the Free Church (prior to the Union) which dis tinguished it from all other Presbyterian Churches in Scotland, that it was the only Presbyterian Church not connected with the State which professed to hold the Establishment principle.' I am aware their Lordships, in other parts of their Judgments, expressed the view that the principle either cannot be OPINION 6n regarded as fundamental, or was one from which the General Assembly of the Free Church had power to depart ; but I refer to these passages at present only for the purpose of showing that, having regard to the views held by the founders of the Free Church with reference to the Estab lishment, theh union with the two then existing Churches, which subsequently united to form the United Presbyterian Church, would not, at that date, 1843, have been possible. In view, however, of the great import ance of the question, and inasmuch as opinions have been expressed that the principle of Establishment cannot be re garded as fundamental, I think it right, as briefly as possible, to examine the question for myself, and to state the reasons which have led me to the con clusion that it was regarded as a funda mental and essential prmciple of the Free Church at its foundation, for very many years afterwards, and, as I think, down to the time of the union with the United Presbyterian Church in 1900. Reliance was placed by the Appellants upon the language of Art. III. of Chapter XXIII. of the Westminster Confession, which is as follows : ' The Civil Magistrate may not assume to himself the administration of the Word and Sacraments or of the power of the Keys of the Kingdom of Heaven : yet he hath authority, and it is his duty, to take order that unity and peace be preserved in the Church, that the truth of God be kept pure and entire, that all blasphemies and heresies be sup pressed, all corruptions and abuses in worship and discipline prevented or re formed, and all the ordinances of God duly settled, administered, and observed. For the better effecting whereof he hath power to call Synods, to be present at them, and to provide that whatsoever is transacted in them be accordmg to the mind of God.' It was strongly urged by the Respond ents that that Article does not enunciate the principle of Establishment or Endow ment. As regards Endowment, the ob servation is probably well founded, but even taking the Article by itself, in my opinion it distinctly embodies the principle of Establishment. Whether this be so or 6l2 HOUSE OF LORDS not is not very material upon the point of view which I am at present considering ; the more important question is, how was it regarded by the founders of the Free Church 1 The first important document is that of the 30th May-1842. This was a Claim, Declaration, and Protest made by then ministers of the Established Church be fore theh secession ; it is therefore not to be expected that the references to Estab lishment would be very distinct, but at Appendix A, p. 39, a passage occurs which has not been quoted and which is in the following words : ' And whereas this Church, highly valuing as she has ever done her connection on the terms con tained in the statutes hereinbefore recited with the State, and her pos session of the temporal benefits thereby secured to her for the advantage of the people, must nevertheless, even at the risk and hazard of the loss of that connection and of these pubhc benefits, — deeply as she would deplore and deprecate such a result for herself and the nation, — persevere.' This passage of the Declaration which follows, and the concluding words of the Protest (Appendix A, pp. 40 and 41), show that even in a document in which a claim was being made by members of an Established Church to sphitual independ ence, they thought it right to point out the importance which the signatories at tached to the principle of Establishment. The principle is, moreover, emphatically enunciated in the document entitled ' The Protest of the Commissioners to the General Assembly on the 18th May 1843.' This being the first Assembly of the then newly-formed Free Church, the words are of such importance that I think it right to quote them : ' And finally, while firmly asserting the right and duty of the civil magistrate to maintain and sup port an establishment of religion in accordance with God's Word, and re serving to ourselves and our succes sors to strive by all lawful means as opportunity shall, in God's good provid ence, be offered, to secure the performance of this duty agreeably to the Scriptures and in implement of the statutes of the Kingdom of Scotland and the obligations of the Treaty of Union as understood by us and our ancestors, but acknowledging that we do not hold ourselves at hberty to retain the benefits of the Establishment while we cannot comply with the condi tions now to be deemed thereto attached.' It is, in my opinion, significant and to be borne in mind, that this Protest was one of the first official acts of the Free Church. As far as I know, there is no document or evidence which suggests that there was at the time of which I am speaking, viz., the year 1843, any doubt or difference of opinion as to that which was understood by the expression the Establishment principle ; but it is suffi cient for my purpose to quote two passages from the Pastoral Address of the 30th May 1843, which was embodied in an Act of the Assembly of the Free Church, and to which the ministers were directed to call the attention of theh people on the 15th June 1843. These passages from that address state the principle as foUows : 'It was ever held by the Established Church, indeed, that the Church and the State being equally ordinances of God, and having certain common objects con nected with His glory and the social welfare, might and ought to unite in a joint acknowledgment of Christ, and in the employment of the means and re sources belonging to them respectively, for the advancement of His cause.' And later : ' So, upon the other hand, the State held directly and exclusively from God, and was entitled and bound to exercise under its responsibility to Him alone, its entire secular sovereignty, including therein whatever it was competent for or binding upon the State to do about sacred things or in relation to the Church, as, for ex ample, endowing and establishing the Church and fixing the terms and condi tions of that establishment.' These passages show clearly what was understood by the founders of the Free Church as the Establishment prmciple. I will not quote again the passage from Dr. Chalmers' speech in 1843, to which such frequent reference was made, but it is impossible to read it without being satisfied that he at least made the prin ciple of establishment one of the funda mental principles of the Free Church, and LORD ALVERSTONE'S OPINION that his view was adopted unanimously by the Assembly on 20th May, who directed that an account of the proceed ings of the previous meeting should be sent to the ministers and friends, which account should contain Dr. Chalmers' address as Moderator. It should be noted in passing, that the Protest of the 18th May 1843 was directed to be recorded at the commencement of the Presbytery books, and I have not the slightest doubt that those documents to which I have referred were regarded by the ministers and members of the Church as formulating the essential principles upon which the Free Church was founded. It was a time of great excitement, and the attention of the Free Church ministers and their con gregations and friends throughout the country would be closely directed to these important documents, and I doubt not that every line would be closely criticised and considered. There is, moreover, a remarkable con firmation of this view in the language used in reply to the addresses received from other congregational Churches in other parts of the kingdom in the year 1843. I need scarcely point out that in replying to such addresses the elders of the Free Church would have no object in criticising, still less of traversing, any opinions which had been expressed in addresses of a friendly character trans mitted to them, and this gives greater force to the language used in reply to such addresses, of which I would cite the two passages set out in the documents before us (Appendix D, p. 21): 'But you mis apprehend the nature of the movement which we have made in supposing that we have in the least degree altered our views respecting the lawfulness and the desir ableness of a right connection between Church and State.' (Appendix D, p. 35) : ' History and experience have convinced us that there is a form of alliance which is at once practicable and agreeable to Scripture and highly beneficial. We have renounced the temporal advan tages of the Scottish Ecclesiastical Estab lishment, not in consequence of any altera tion in our views on this subject, but because the Civil Courts had violated our constitution, and Parliament, under the 613 guidance of an infatuated Government, had sanctioned that violation.' I pause here to notice an argument strongly urged before us on behalf of the Respondents, and which appears to have had weight with the Lord Ordinary and the Judges of the Second Division, viz., that the passages in the documents leading up to the foundation of the Free Church, and hi the preamble to the Act of 1846, to which I shall refer, were parenthetical, and related to the action of third persons, viz., the civil magistrates, and not of the Church itself. So far from weakening the force of the declaration couched in the terms in which it is, the fact, in my opinion, gives it additional weight. The separation was in no way promoted because the dissenting ministers objected to the pinciple of Establishment; that principle was not attacked by the claims of the Courts against which they had protested, and yet its recognition is considered of such great importance as to receive the prominent notice which I have quoted. Then, with reference to the argument that it relates to the action of third parties, also strongly pressed upon us, I am unable to see how such an argument assists the Respondents. It seems to me also to give additional weight to the firm assertion of the right and duty of Churches to sup port the State in the performance of its duty towards religion by the medium and through the agency of an Established Church, which assertion the protesting ministers were making. It seems to me, moreover, that a brief consideration of the Establishment prin ciple as contrasted with the principle of Disestablishment, is sufficient to show its fundamental or essential character. The one seeks to enforce the paramount duty of the State in its official capacity to recognise religion, to maintain and support the Church, the other desires to see all connection between the State and the Church broken down and destroyed, and to prevent the State from exercising any control whatever over the Church in any cajDacity, and, of course, from endowing or assisting to maintain a church ; and if, as I shall point out later, the United Presby terian Church certainly considered any civil Establishment of religion unscriptural 614 and unjust, it is difficult to understand how such a distinction between the views held by two Churches can be regarded as otherwise than fundamental and essential. Nor does it seem to me that the sugges tion made by Lord Trayner, that the different view taken on this question by the Free Church and the United Presby terian is a matter of pohty and not as a matter of faith, makes any substantial difference. In one sense the questions on which the Free Church separated from the Estabhshment were not matters of faith, but, in my opinion, the difference between the Free Church and the United Presby terian was a difference not on a mere matter of detaU, but upon a fundamental principle. For these reasons I have arrived at the conclusion that the founders of the Free Church regarded the Establishment prin ciple not only as one of the very greatest importance, but as fundamental and essen tial, and that at that date union between the Free Church and either of the Churches subsequently forming the United Presby terian Church, would have been out of the question. If I am right in this view, its bearing on the question raised before us is of the greatest importance. It cannot, in my opinion, be questioned that the documents to which I have referred and the principles which they embody were the documents upon the basis of which the donors of a very large proportion of the trust funds, the application of which is in question in this case, made their gifts and donations, and upon the faith of which also the real property in question was conveyed. This conclusion leads one to consider whether the history of the Free Church since 1843, and events since that date support the view, that property held for its behoof may without breach of trust be applied for the purposes of a Church which supports the principle of Disestablishment. I pass therefore to consider briefly the history of the Free Church upon this point from 1843 to 1900. In the year 1846 we find the Church thinking it right to declare that she ' firmly maintains the same scriptural principles as to the duties of nations and their rulers in reference to true religion and the Church HOUSE OF LORDS of Christ for which she has hitherto con tended.' I regard this as a distinct recog nition of the Establishment principle, and as in no way weakened by the words following, which disclaim intolerant or persecuting principles. Five years later — in the year 1851 — in a formal Act and Declaration of the Assembly, the principle of Establishment is again recognised as of the highest importance; the words used are : — ' Holding firmly to the last, as she holds still and through God's grace wUl ever hold, that it is the duty of civil rulers to recognise the truth of God according to His Word, and to promote and support the Kingdom of Christ without assuming any jurisdiction in it or any power over it, and deeply sensible, moreover, of the advan tages resulting to the community at large, and especially to its most destitute portions, from the public endowment of pastoral charges among them.' Again, in the year 1853, the Church, in emphatic language, reaffirms the principle, calling special attention to that of Estab lishment : ' That this Church maintains unaltered and uncompromised the prin ciples set forth in the Claim, Declaration, and Protest of 1842, and the Protest of 1843, relative to the lawfulness and obli gation of a Scriptural alliance between the Church of Christ and the State, and the conditions upon which such an affiance ought to be regulated.' In the year 1864, when the question of union between the Free Church and the United Presbyterian Church was actuaUy under discussion, the committee of the Free Church stated, as one of its distinctive principles, that, as an act of homage to Christ, it is the duty of the civil magis trate, when necessary or expedient, to employ the national resources in aid of the Church; and again, in the year 1867, the principle is enunciated in even stronger language : ' As an act of national homage to Christ, the civU magistrate ought, when necessary or expedient, to afford aid from the national resources to the cause of Christ, provided always that in doing so, while reserving full control over his own gift, he abstain from all authoritative interference in the internal government of the Church.' LORD ALVERSTONE'S OPINION Later, in the year 1873, when dealing with the question of eligibility of ministers, the General Assembly declared that it adhered to the great fundamental principle of the Church under two heads, the second of which was as follows : — ' Secondly, the prerogative of the Lord Jesus Christ as head over all things to His Church, and supreme over nations and their rulers, who are consequently bound collectively and officially, as well as individually and per sonally, to own and honour His authority, to further the interests of His holy religion.' These passages from the proceedings of the Free Church satisfy me that for a period of thirty years after the Free Church was founded the Establishment principle was regarded as fundamental, and I doubt not that during that period, and in re liance on that principle, a considerable part of the property in question was given and conveyed to trustees for behoof of the Free Church. It was suggested by the Respondents that the union of the Free Church with the Church known as the United Original Seceders in the year 1852, and with the Reformed Presbyterian Church in 1876, afforded arguments in support of the union with the. United Presbyterian in the year 1900. I am wholly unable to follow that argument. I do not propose to trace the history of the two Churches with which the Free Church united, beyond saying that, as far as I can gather from the papers, the Free Church, in uniting with them, in no way abandoned or altered any one of the principles which it had pro fessed in the year 1843, but, on the contrary, both the united Churches repre sented that they were in complete sym pathy with the Free Church. As regards the United Original Seceders, it is only necessary to examine the Representation and Appeal made by the Synod of that Church in the year 1852 to see that their union with the Free Church was based upon and only consistent with the view that the Free Church still maintained the Establishment principle. In the case of the Reformed Presbyterian Church, the statement in the Act of Union that the united Churches accept the preamble to Article XII. of the Free Church Assembly, 615 1846, which I have already cited, proves, in my opinion, that the maintenance of the Establishment principle was the basis of union between the Free Church and the Reformed Presbyterian. The action of the Free Church in the years 1892 and 1894, though it must be considered when considering the question of the powers of the General Assembly, has, in my opinion, very little, if any, bearing upon the point which I am at present discussing. In the first place, these Acts were objected to ; and I would point out that, although the Act of 1892, which is undoubtedly of great importance in connection with the second branch of the case, has no direct bearing upon the question of Establishment, one of the main grounds of objection and protest was that stated in the following terms (Appendix A, p. 134): — 'Because under the head which refers to intolerant and persecuting principles which is to take the place of the present preamble to the Formula, all reference to the duties of nations and their rulers to true religion and the Church of Christ as therein set forth, is wholly omitted.' It now becomes necessary to consider the position of the United Presbyterian Church in reference to the Establishment principle. The possibility of a union of the Free Church with other bodies of Christians was undoubtedly contemplated by its founders ; two such unions have in fact taken place ; it becomes therefore of importance to consider whether or not the United Presbyterian Church was a Church with which the Free Church could pro perly unite, and whether it would be a breach of trust to apply funds held in trust for behoof of the Free Church as originally constituted to the purposes of the united body, now the United Free Church. In my opinion this matter does not admit of serious doubt. I am aware it was argued by the Respondents that the United Presbyterian Church between the years 1847 and 1900 might, without breach of trust, have united with the Establish ment, or applied its funds in aid of Establishment, and it was contended by Mr. Haldane that the United Free Church could do so without impropriety. Without referring to all the documents which, I 6i6 HOUSE OF LORDS think, contradict this view, I would call attention to the view held by the United Presbyterian Church as stated in the Report of 1864, which seems to me to be wholly contrary to this view : — ' That in asmuch as the civU magistrate has no authority in sphitual things, and as the employment of force in such matters is opposed to the spirit and precepts of Christianity, it is not within his province to legislate as to what is true in religion, to prescribe a creed or form of worship to his subjects, or to endow the Church from national resources; that Jesus Christ as sole King and Head of His Church has enjoined upon His people to provide for maintaining and extending it by freewill offerings, and this being Christ's Ordinance it excludes State aid for these purposes, and that adherence to it is the true safe guard of the Church's independence.' And again in 1867 : — 'That it is not competent to the civil magistrate to give legislative sanction to any creed in the way of setting up a civil establishment of religion, nor is it within his province to provide for the expense of the ministrations of religion out of the national resources, that Jesus Christ as sole King and Head of His Church has enjoined upon His people to provide for maintaining and extending it by freewUl offerings, that this being the Ordinance of Christ it excludes State aid for these purposes, and that adherence to it is the true safeguard of the Church's independ ence. Moreover, though uniformity of opinion with respect to civU establishments of religion is not a term of communion in the United Presbyterian Church, yet the views on this subject held and universally acted upon are opposed to these insti tutions.' Further, I am wholly unable to reconcile this argument with the statement proved in evidence and made on behalf of the United Presbyterian Church. In 1897 a Tract, Number xxv., prepared by the Com mittee of the United Presbyterian Church on the disestablishment and disendowment of the Established Churches of England and Scotland, was issued by the United Presbyterian Church, and sent to all the ministers of the Free and Established Churches. In that Tract not only is it stated that the United Presbyterian Church maintains as one of its most distinctive principles that it is not the province of the State to establish and endow the Christian Church, but that civil establish ments of religion are unscriptural and unjust. In the face of these documents, it seems to me impossible to adopt the contention of the Respondents ; but here again I should be justified in relying upon the opinion of theh Lordships in the Scotch Court. In the course of his Judg ment Lord Low said : ' On the other hand, it seems to me to be equaUy certain that the United Presbyterian Church never read the Confession of Faith as laying down that it is the right and duty of the civil magistrate to maintain and support an Established Church. There does not appear to be any material difference be tween the two Churches upon the point so far as their standards are concerned, but the view of the United Presbyterian Church as a whole has always been that it is not within the province of the civil magistrate to endow the Church out of public funds, and that the Church ought not to accept State aid, but ought to be maintained by the freewill offerings of its members.' Loid Trayner, moreover, states in emphatic terms, that the United Pres byterian Church had throughout the whole period of its existence repudiated the Estab lishment principle. With reference to the attitude of the United Free Church and the possibUity of its adopting a different view, the state ments in the Resolutions of the Assembly of the United Free Church passed in the years 1901 and 1902, to the effect that the Establishment was objectionable on principle, and recording its testimony in favour of disestablishment of the Estab lished Church of Scotland, which state ments were not attempted to be qualified by the Counsel for the Respondents, are in my opinion conclusive against any such contention. The only argument on this point remain ing to be noticed is that which was founded upon the documents agreed to by the Assembly of the Free Church and the Synod of the United Presbyterian Church at the time of union. These documents transfer and convey all the property and funds of the Free LORD ALVERSTONE'S Church of Scotland to the united body, but it was said that the modified forms of questions formulated by the General Assembly of the United Free Church in the year 1900 were not inconsistent with the principle of Establishment, in so far as that was a fundamental principle of the Free Church, and that office-bearers were left free to hold their own individual views on this question. If I am right in the view which I have endeavoured to express, that the principle of Establishment was regarded by the founders of the Free Church as a funda mental principle of that Church, and was so maintained for a period of more than thirty years after its foundation, the fact that the Free Church of Scotland, in uniting with a Church pledged to disestablishment principles, and regarding civil establish ments of religion as unscriptural and un just, had agreed to treat the matter as an open question, seems to me entirely beside the mark for the purposes of the present discussion. The Respondents must justify not only a nominal union, but the claim to apply the trust funds to the purpose of the united body, and to dispossess, as they have attempted to do, the Free Church ministers who have declined to' join the United Free Church, from the possession of their manses and churches. Unless the Respondents can make good [their point that the application of the moneys for the purpose of the united body does not amount to a breach of trust, the fact that they agreed for the purpose of the union not to raise any question cannot afford a justification. The only remaining point which requires notice upon this part of the case, is the argument that the terms of the Model Trust Deed, which was settled by a com mittee of the Free Church and approved by the Assembly in 1844, justifies the transfer of the property to the united body. This argument is based mainly upon the first and fourth trusts, and in cidentally upon the ninth trust. The object of this trust-deed was undoubtedly to ensure that the property should be held for the purposes of the Free Church as originally constituted. It proceeds upon a general outline of the history of the Established Church, the Disruption, and OPINION 617 the subsequent formation of the Free Church. The first trust was, in my opinion, a provision not unnatural from a conveyancing point of view, that the trust should not cease in the event of the Free Church of Scotland uniting with themselves other bodies of Christians. It would, in my judgment, be contrary to every rule of law applicable to such a case, to hold that it gave the Assembly of the Free Church power by mere union to divert the funds to a body which did not conform to the fundamental principles of the Free Church. Still less can the Respondents rely upon the fourth trust, which was the natural sequence of the recital (Appendix A, pages 66 and 67), as to the continuation of the form of Church government by Kirk Sessions, Presbyteries, Provincial Synods, and General Assemblies, and bestowed upon the General Assembly of the Free Church the same powers as those which had been enjoyed and claimed by the Assembly of the Established Church. The ninth clause not only affords no argu ment for the Respondents, but incidentally supports the contention of the Appellants. The majority who consented to. the union with the United Presbyterian Church did not purport to carry out the object of the Protest of the 18th May 1843 more faith fully than the Appellants, who are the minority. Clause 9 only contemplates an apportionment or division in the event of a section not less than one-third of tho whole of the ordained ministers claiming to be carrying out the objects of the Protest more faithfully than the others. In my opinion, this accentuates the ex treme importance attached by the Church at its foundation to the Protest of the 18th May 1843, and would make it en tirely ultra vires of a section of ministers, purporting to act under the ninth trust, to disregard the assertion of right and duty therein made, and to claim under this clause to associate itself with a body which was openly promoting disestablish ment. It is contended by the Respondents — and this is really the foundation of the Judgment of Lord Young — that the General Assembly had power to legislate in such matters, and to abandon the 6i8 HOUSE OF LORDS Establishment principle, even though and notwithstanding that it may have been one of the fundamental principles of the Free Church. This question has a bearing upon the second ground relied upon by the Appellants, viz., that the Assembly of the Free Church had de parted from the Westminster Confession and the standard of the Church, and had made changes in doctrine inconsistent with the fundamental principles of the Free Church. The powers of the Assembly of the Free Church were, in my opinion, no greater in relation to the fundamental principles upon which that Church was founded than were the powers of the Assembly of the Established Church. If I am right in the view which I have ventured to express, that paragraph 3 of Article 23 of the Westminster Confession, and the documents to which I have referred as showing the fundamental principles upon which the Free Church was founded, did make — to adopt once more the language of the Act of 1873 — the Establishment principle one of the great fundamental principles of the Church, I am wholly at a loss to under stand upon what ground it can be said that the Assembly, either of the Estab lished Church or of the Free Church, had the right to permit its ministers and elders to depart from that principle. I agree that the Barrier Act, upon which so much reliance was placed by the Re spondents, though it confers no new powers, recognises that the General Assembly possesses some powers of alter ation with reference to doctrine, worship, discipline, and government, but they do not, in my opinion, include a power to subvert or destroy fundamental and essential principles of the Church. I have now to say a few words upon the second point upon which reliance was placed by the Appellants, to the effect that the Free Church, by its Acts of 1892 and 1894, and the Assembly of the United Free Church by their Acts of October 1900, with reference to the ques tions and formulae to be used in the ordination and induction of ministers and office-bearers, have departed from the fundamental principle of the Free Church in the matter of doctrine, and particularly in relation to the doctrine of Predestina tion and Free Will as set forth in the Westminster Confession. For reasons which I wUl briefly state, had this been the only ground upon which exception could be taken to the action of the Assembly of the Free Church, I am not at present satisfied that it has acted in excess of its powers. I do not wish to express a final opinion, as I do not consider it necessary for the purpose of determining the legal rights of the parties to these Appeals, and further consideration might satisfy me that the objection by the Appellants, that the As semblies of the Free Church and the United Free Church have released theh ministers and office-bearers from adherence to the Westminster Confession, as such, has more weight than I am at present disposed to attach to it. On the other hand, the argument of the Dean of Faculty and Mr. Haldane satisfied me that there are pas sages in the Westminster Confession, and in other standards of the Church, which might require such explanation and ex position as would fairly come within the words used in the Barrier Act — ' alter ation in doctrine.' I do not feel myself competent, at any rate upon the informa tion at present before me, to express any final opinion upon such a point, and I do not therefore propose to base my Judg ment upon the second ground which was urged before us on behalf of the Appel lants. It only remains to consider the position of the Appellants, and theh rights as a minority of the ministers and elders of the Free Church representing congrega tions, or portions of congregations, who are not prepared to join the United Free Church. It is not contended that they have changed their principles ; it is not urged that they have departed from any fundamental or essential principle of the Free Church ; it is not alleged that they are not faithfully carrying out the objects of the Protest of the 18th May 1843. The Respondents are threatening to at tempt to eject them from their churches and manses, and to deprive them of any right to participate in any funds of the Church, simply on the ground that they decline to become members of the United LORD ALVERSTONE'S OPINION 619 Free Church. The decisions of the Court that they are unwilling to become mem- of Session in Craigie v. Marshall, and bers of a body which has not only aban- Couper v. Burn, unless overruled by your doned a fundamental principle of the Lordships' House, are wholly inconsistent, Church to which they belong, but supports in my opinion, with any such right on the a principle essentially different from that part of the Respondents, and I am un- on which that Church was founded. able to support a Judgment which would For these reasons I am of opinion that deprive the persons forming a minority the Appeal should be allowed. of their rights, simply upon the grounds QUESTIONS PUT. In each of the Cases. That the Order appealed from be reversed. The Contents have it. That the Respondents do pay to the Appellants the Costs both here and below. The Contents have it. GENERAL ASSEMBLY OF FREE CHURCH OF SCOTLAND AND OTHERS (Appellants), AND LORD OVERTOUN AND OTHERS (Respondents). QUESTIONS PUT. The Cause to be remitted to the Court of Session to declare in terms of the third and sixth declaratory Conclusions of the Summons, and for any necessary consequential proceedings. The Contents have it. MACALISTER AND OTHERS (Appellants), AND YOUNG AND OTHERS (Respondents). QUESTION PUT. The Cause to be remitted to the Court of Session to assoilzie the Defenders from the Conclusions of the Action. The Contents have it. THE ORDERS OF THE HOUSE OF LORDS. The following is the text of the judgments pronounced by the House of Lords in the Church cases : — BANNATYNE V. OVERTOUN. In the leadmg action, Bannatyne v. Overtoun : — ' It is ordered and adjudged, by the Lords Sphitual and Temporal in the Court of ParUament of His Majesty the King assembled, that the said interlocutors complained of in the said appeal be, and the same are hereby, reversed : And it is further ordered that the cause be, and the same is hereby, remitted back to the Court of Session in Scotland, with a direction to declare (1) that the association or body of Christians calling themselves the United Free Church of Scotland has no right, title, or interest in any part of the whole lands, properties, sums of money, and others which stood vested, as at the 30th day of October 1900, in the Right Hon. John Campbell, Baron Overtoun, and others, as general trustees of the Free Church of Scot land ; and (2) that the said appellants (pursuers) and those adhering to and lawfully associated with them, con form to the constitution of the Free Church of Scotland, are and lawfully represent the said Free Church of Scotland, and are entitled to have the whole of the said lands, property, and funds applied according to the terms of the trusts upon which they are respectively held, for behoof of themselves and those so adhering to and associated with them, and their successors, as constituting the true and lawful Free Church of Scotland, and that the defenders, the said Right Hon. John Campbell, Baron Overtoun, and others, as general trustees fore said, or the defenders second enumer ated, or those of the defenders in whose hands or under whose control the said lands, property, and funds may be for the time being, are bound to hold and apply the same (subject always to the trusts after-mentioned) for behoof of the pursuers and those adhering to and associated with them as aforesaid, and subject to the lawful orders of the General Assembly of the said Free Church of Scotland, or its duly appointed Commission for the time being, and in particular that they are bound to denude them selves of the whole of said lands, property, and funds in favour of such parties as may be nominated as general trustees by a General Assembly of the Free Church of Scotland, or its duly appointed Commission for the time being, but subject always to the trusts upon which the said lands, property, and funds were respectively held by the said defenders for behoof of the Free Church of Scotland as at 30th October 1900; and to do therein as shall be just and consistent with this judgment and direction : And it is further ordered, that the respondents do pay, or cause to be paid, to the said appellants the costs of the action in the Court of Session, and also the costs incurred in respect of the said appeal to this House, the amount of the said last-mentioned costs to be certified by the Clerk of the Parliaments : And it is also further ordered, that unless the costs, certified as aforesaid, shall be paid to the parties entitled to the same within one calendar month from the date of the certificate thereof, the Court of Session HOUSE OF LORDS in Scotland, or the Lord Ordinary officiating on the Bills during the vaca tion, shall issue such summary process or diligence for the recovery of such costs as shall be lawful and necessary.' MACALISTER V. YOUNG. In the action, Macalister v. Young : — ' It is ordered and adjudged, by the Lords Spiritual and Temporal in the Court of ParUament of His Majesty the King assembled, that the said interlocutors, complained of in the said appeal, be, and the same are hereby reversed : And it is further ordered that the said cause be, and the same is hereby, remitted back to the Court of Session in Scotland, with a direc tion to assoilzie the defenders from the conclusions of the action, and to do therein as shall be just and consistent with this judgment and direction ; and it is further ordered that the respondents do pay, or cause to be paid, to the said appellants the costs of the action in the Court of Session, and also the costs incurred in respect of the said appeal to this House, the amount of such last-mentioned costs to be certified by the Clerk to the Parhaments ; and it is also further ordered that unless the costs, certified as aforesaid, shall be paid to the parties entitled to the same within one calendar month from the date of the certificate thereof, the Court of Session in Scot land, or the Lord Ordinary officiat ing on the Bills during the vacation, shaU issue such summary process or diligence for the recovery of such costs as shall be lawful and necessary.' ROYAL COMMISSION. In December 1904 a Royal Commission designated the United Free Church was appointed to inquire into all the of Scotland, but certain other members facts connected with the funds and of the Free Church refused to enter properties held by the Free Church of the Union, and remained as the Free Scotland prior to 31st October 1900, Church : And whereas after the Union and in which the Free Church was the United Free Church of Scotland interested prior to that date, and to continued to hold and administer the report. The text of the Royal Com- said funds and properties : And whereas mission is as follows :— there ensued litigation between the said Free Church and the United Free Edward the Seventh, by the Grace Church as to their respective rights so of God, of the United Kingdom of Great far as held by the general trustees, Britain and Ireland, and of all the British final judgment in which litigation was dominions beyond the seas, King, pronounced by the House of Lords in defender of the Faith, August 1904 : And whereas by the To our right trustv and right well- judgment of the House of Lords it was beloved cousin and "councillor, Victor declared that the general property Alexander, Earl of Elgin and Kincardine, ^rem dealt with did not belong to Knight of our most noble Order of the the V^d/Iee Church and that said Garter, Knight Grand Commander of Church had no right, title, or interest our most exalted Order of the Star of therein, but that the same was vested India, Knight Commander of our most £ *he ^ Church upon the trusts of eminent Order of the Indian Empire- the constitution thereof ; and in a case , . r as to congregational property appealed chairman, to the Houge of Lords tne claim of Our right trusty and well-beloved tne United Free Church thereto was Alexander Smith, Baron Kmnear, one negatived : And whereas it is doubtful of the senators of our CoUege of Justice how far the Free Church are or may in Scotland, and our trusty and well- be in a position to carry out the trusts beloved Sir Ralph William Anstruther, ag declared by the House of Lords: Baronet ; And whereas there were certain other Greeting ! funds and properties in which, prior Whereas prior to the 31st October to 31st October 1900, the Free Church 1900 the Free Church of Scotland was interested, being the general property held directly or through the medium so far as not dealt with by the judgment of trustees various funds and properties, of the House of Lords, and the congrega- hereinafter called ' the general property,' tional property other than that dealt with and further funds and properties were by the case in the House of Lords and four held by trustees in connection with other cases ruled thereby, which funds the various congregations connected with and properties are the subject of dispute the said Church, hereinafter called 'the between the United Free Church and ' Congregational property : ' And whereas the Free Church, and it is apprehended in 1900 certain members of the Free there may be further litigation between Church entered into a union with the the parties : And whereas it is desirable United Presbyterian Church, and the to make provision for the application Church formed by that Union was of the general property in so far as the 623 624 ROYAL COMMISSION Free Church is not or may not be in a position to carry out the trusts thereof, and also to make provision as to the future ownership and right to the occupa tion and use of such other congregational and other properties and funds, and to obviate the necessity for further litigation : And whereas inquiry is ex pedient : — Now know ye that we, reposing great trust and confidence in your knowledge, discretion, and abihty, have nominated, constituted, and appointed, and do by these presents nominate, constitute, and appoint you, the said Victor Alexander. Earl of Elgin and Kincardine, Alexander Smith, Baron Kinnear, and Sh Ralph WiUiam Anstruther, to be our Com missioners to inquire into aU the facts connected with the said funds and proper ties, and to report as to whether any or what action should be taken thereon by legislation or otherwise : And for the better enabhng you, our said Commissioners, to make the said inquiry, we do by these presents authorise and empower you to call before you, or any two of you, such persons as you may judge necessary, by whom you may be the better informed of the matters herein submitted for your consideration, and every matter connected therewith ; and also to caU for, have access to, and examine aU such books, documents, papers, or records as you shaU judge hkely to afford you the fullest information on the subject of this our Commission ; and to inquire of and concerning the premises by all other lawful ways and means whatsoever : And we do further by these presents authorise and empower you, or any two of you, to visit and personaUy inspect such places as you may deem expedient for the more effectual carrying out of the purposes aforesaid : And our further will and pleasure is that you do, with as httle delay as possible, report to us under your hands and seals upon the matters referred to you as aforesaid, and that you may have power to certify to us, from time to time, your several proceedings in respect of the matters aforesaid, if it may seem expedient to you so to do : And we further wiU and command, and by these presents ordain, that this our Commission shall continue in full force and virtue, and that you our said Commissioners, or any two of you, may from time to time proceed in the execu tion thereof, and of every matter and thing therein contained, although the same be not continued from time to time by adjournment: And for your assistance in the execu tion of these presents, we do hereby nominate and appoint our trusty and weU-beloved Robert AUeyne Lee, Esquire, advocate, to be secretary to this our Commission. Given at our Court at St. James's, the 17th day of December 1904, in the fourth year of our reign. By His Majesty's command. (Signed) A. Graham Murray. The Secretary for Scotland at the same time appointed Sir John Cheyne, K.C., as a Commissioner to determine the interim state of possession of churches, manses, etc. The terms of the Commission are as foUows : — Whereas a Commission has been appointed under the Royal Sign Manual to inquire and report as to matters concerning the ordering of the properties general and congregational held in connection with the Free Church of Scotland as it existed prior to the 31st day of October 1900, and it is very desirable that pending such investigation litigation should be suspended and opportunities afforded for congregations to worship and provision made for the interim use and occupation of churches, manses, mission halls, and other like properties : now therefore I, the undersigned, His Majesty's Secretary for Scotland, do hereby appoint Sir John Cheyne, K.C., as Commissioner forthwith to examine into the circum stances connected with the actual occupa tion and use of the churches, manses, mission haUs, and other Uke properties connected with the Free Church of Scotland prior to the 31st day of October 1900 ; and to determine, without pre- COMMISSION 625 judice to the eventual rights of parties, what should be the interim state of possession of the said properties until the whole matter is regulated by Act of Parhament or further determined by action at law : and I appoint James C. Pitman, Esq., advocate, as Sub- Commissioner and secretary, with power to hold such inquiries as Sir John Cheyne may direct. Given under my hand and seal at Whitehall, this 17th day of December 1904. (Sd.) A. Graham Murray, His Majesty's Secretary for Scotland. INDEX Act and Declaration of 1851 ; 61, 67, 70, 95, 126, 227, 2.38, 432, 543, 596, 614 Act of Union, 12, 14, 16, 38, 258-9, 476, 571, 583, 608 "Affectionate Representation" of Free Church, 1843 ; 95-6, 225, 407-12, 566, 574, 581, 587, 594, 613 Arminianism ; see Declaratory Acts and Westminster Confession Auchterarder Cases, 83, 210, 278, 350-1 Barrier Act 1639 ; 379 Barrier Act 1641 ; 311-12, 379-80, 385, 600, 606 Barrier Act 1697 ; 27-8, 71-2, 101, 186, 272-4, 308, 380, 570-1, 582, 590, 600, 618 Basis of Union of U.P. Church, 12, 34, 243, 463 Calvinism ; see Declaratory Acts and Westminster Confession Campbeltown Case (Smith v. Galbraith), 71, 78, 123, 242, 305, 580, 599 Candlish, Dr, quoted, 444, 537, 577 Catechism, 509, 556 Chalmers, Dr, Address as Moderator, 1843 ; see " Affectionate Eepresentation " on Butler's Analogy, 507 Institutes of Theology, 508 on Establishment Principle, 538-9 Chapel Act, 347 Civil Magistrate ; sic Establishment Principle Claim Declaration and Protest, 6, 59, 119, 210-21, 386-96, 586, 612 Colonial Churches, Unions in, 445-8 Cook, Dr, quoted, 383 Couper v. Burn ; see Thurso Case Craigdallie v. Aikman, 87, 195, 336, 563, 572, 579, 590, 609, 610 Craigie v. Marshall ; see Kirkintilloch Case Cruickshank v. Gordon, 131, 360 Culsalmond Case, 353 Declaratory Act 1879 ; 12, 252, 254-5, 326, 462, 480-5, 501 Declaratory Act 1892 ; 11, 33, 58, 85, 134, 255, 324, 453, 460, 570, 607, 609 Declaratory Act 1894 ; 328, 460-1 Deed of Demission, 78-9, 227, 406 DU1 v. Watson (Creed), 266, 564 Election, Doctrine of ; see Declaratory Acts and Westminster Confession Establishment Prmciple, 9, 25-6, 35-6, 40, 58, 69-71, 77-8, 84, 89, 120, 123, 128-9, 220, 224, 228, 244-6, 255, 265, 328, 400, 526, 566, 573, 577, 584, 588, 595, 608, 611 622 INDEX Forbes v. Eden, 130, 268, 286, 474, 601, 609 Formula ; see Questions and Formula Free Buccleuch and Greyfriars Church, 47-9, 151, 194 General Assembly of 1638 ; 285-8, 378 General Assembly of Free Church, powers of, 57-8, 185, 191, 271, 284-93, 294-5 514-18, 531, 535, 542, 570, 581, 604 Gray's Catechism, 362-7, 576 Helvetia, Confession of, 371 Hill, Principal, quoted, 382 Jubilee Tract of U.P. Synod, 10, 247-8, 588, 616 Kirkintilloch Case (Craigie v. Marshall), 88, 232, 296, 564, 619 Knox's Confession, 176, 197-8, 200, 456, 534-5, 560, 600 Lord Fullerton in Stewarton Case, 358 Lord Jeffrey in Stewarton Case, 359 Lord Moncrieff in Stewarton Case, 357 Marnoch Case, 83 Model Trust Deed, 28, 46, 50, 63, 108, 132, 154-6, 158-60, 165-9, 229-34, 412-26, 546-7, 558-9, 584, 590, 603, 606, 617 Mutual Eligibility Act, 11, 30, 127, 250, 448 Pastoral Address 1843 ; 95, 221, 587 Plan of Union, 13, 37, 258 Predestination ; see Declaratory Acts and Westminster Confession ,, Mozley, Canon, on, 511 Property of Free Church, 23-4, 40, 86 Protest of 1843 ; 7, 61, 125, 222, 397-405, 580, 596, 612 Questions and Formulas of 1711 ; 235, 312, 427 Questions and Formulae of 1846 ; 17, 25, 61, 98, 236, 323, 426 Questions and Formula for Deacons in Free Church, 33, 276 Questions and Formulas of 1900 ; 17, 76-7, 98, 261-2, 313, 323, 461 Questions and Formula of U.P. Church, 34-35, 243 Reformed Presbyterian Church, 32, 133, 276, 333, 602 Belief Church, 34, 242 Rules and Forms of Procedure of U.P. Church, 35, 243 Secession Church, 34, 242 Second Book of DiscipUne, 188, 203, 216, 278-84, 288, 357, 372> 464-71, 582, 601, 605 Smith v. Galbraith ; see Campbeltown Case Stewarton Case, 83, 342, 354 INDEX 623 Strathbogie Cases, 83, 352 Subordinate Standards, 8, 34, 368, 456 Sum of Saving Knowledge, 457-8, 489, 555 Synod of Dort, 483, 505-6 Thurso Case (Couper v. Burn), 88, 298, 619 Trustees, General, 6, 14, 38-9, 177, 182, 261, 340 United Associate Synod of Original Seceders, 29, 132, 240, 602 Veto Act, 348 Westminster Confession, 60, 62, 122-3, 206, 220, 253, 266, 293, 370, 377, 456, 488-9, 493-500, 568, 586, 598, 603, 605, 618 Printed by Morrison & Gibb Limited Edinburgh ¦//¦//'/ !i. '/¦¦/,'l,'.'/. ¦¦¦-¦' ¦¦¦/ ¦ '/¦:''¦'/,', :¦.¦¦ ¦W iffHI