§ Mr. Fox Maule
said that, in rising to bring under the consideration of the House the question of which he had given notice, he felt so deeply the general interest which that question excited in the country to which he belonged, and he felt so much the responsibility which he undertook in bringing it before the House, that although it was at all times necessary he should appeal to them for their indulgence, he did most earnestly upon the present occasion, not for his own sake alone, but on account of the subject itself, request their patient attention whilst he brought the principles upon which this great question turned, probably for the first time, fully and fairly before that House. He had had the honour a short time since of presenting to the House a petition from a commission of the General Assembly of the Church of Scotland, a petition which, though it emanated from that body which was 355 called a commission of the General Assembly, yet, for the sake of making the matter clear to English Members, he might say it was in character and substance the same as the General Assembly itself, inasmuch as it consisted of all the same elected members, being somewhat analogous to a committee of the whole House of Commons, and bearing the same relation to the General Assembly as a committee of the whole House bore constitutionally to the House itself, with the Speaker in the chair. From that body he had had the honour, in association with others, of presenting a petition to the House. That petition comprehended two distinct grievances. The first of those grievances was, that an infringement had been made upon the constitution of the ecclesiastical courts of Scotland, of which the General Assembly was the head and chief, by an invasion of the rights and privileges of their jurisdiction by the civil courts of the country, a complaint and a grievance which, in his opinion, involved an invasion of the constitution of that portion of this kingdom to which he had the honour to belong. The second grievance of which the petitioners complained was one which they stated had existed under the law for many years: it was the grievance of patronage. It was no new complaint, either for the Church of Scotland, or for the people of Scotland to complain of patronage, but one which, though for a while it might have remained dormant, had never wholly ceased. Patronage was felt to be a ruling and general grievance by the people of Scotland and as true religion from time to time revived in that country, so the complaint against patronage from time to time increased in strength. These were the two distinct complaints embodied in that petition; and the commission of the General Assembly prayed the attention of the House to both of them. He would first call the attention of the House to the complaint or grievance affecting the constitution of the ecclesiastical courts by the interference of the civil courts, and which the petitioners conceived to be an invasion of the constitution of all the church courts of Scotland. He was afraid that much misrepresentation had existed with reference to the claims of the General Assembly upon this subject, and those misrepresentations, which originated first of all with the various enemies with, which the 356 Church of Scotland had to contend, had at last, he regretted to say, been propounded and adopted by her Majesty's Government. He trusted that those misrepresentations had been adopted unintentionally and in error, for he was unwilling to believe that a government, of which the right hon. Baronet opposite was at the head, one who, whilst he was connected with the patronage of the Church of Scotland, administered it not only to the satisfaction of the country, but much to the public benefit—he was unwilling to believe that a government, of which that right hon. Gentleman was the head, would deliberately mix themselves up with and adopt misrepresentations for which he should show there was not an atom of foundation. In referring to papers which had been delivered to the House, he found a letter addressed by the Secretary of State for the Home Department in answer to a memorial addressed to her Majesty's Government by the General Assembly; and in that letter he found a statement made with reference to the claim of the Church of Scotland. It was there broadly stated, that in resisting the civil authorities, those who were entrusted with spiritual powerImagined themselves suffering for conscience sake, and not only that in all causes spiritual they were the sole judges, but that they alone were competent to determine what was spiritual and what was civil.Yes, that they alone were competent to determine what was spiritual, and what was civil. Now, he must take the liberty to say that this was not correct. The clergy of Scotland did not claim alone to be the judges of what was spiritual and what was civil. That claim he was ready to admit, if it had been made, would have been one which he could not have supported, because it was fraught with danger to the religious as well as to the civil liberties of the country. What the General Assembly and the church courts of Scotland claimed was this, that they within their own sphere, constituting independent courts— like any other courts which existed in Scotland were independent within their own sphere, and without prejudice to the independance or the determination of any other court whatsoever, had the right of saying, in matters brought before them, what were the limits of the spiritual and of the civil parts of the case. That was! their claim. But did that correspond 357 with what was alleged in the letter of the right hon. Baronet the Secretary of State for the Home Department? It was there said, that they claimed alone to be the judges of what was spiritual and what was civil, Now, mark — they did no such thing, but they claimed that for their own courts, which they readily admitted to belong to every other court in its own sphere. That right they denied to no other court the right of determining what was spiritual and what civil in cases brought before them. All the General Assembly stood up for was this, that they were an independent court, recognized in the constitution of the country, established by law, and as independent and as free within their own sphere as the civil courts of the country. Now he thought that this claim was fully borne out by the statutes of Scotland, Whatever the claim might be, unless it were so borne out, he for one would not have supported it. He was not there to argue upon any fanciful grounds, or upon any theoretical system. All that be had to contend for was, that the established Church of Scotland stood upon the statutes of Scotland, and that they (the Legislature) had no right, at least, the civil courts had no right, to deprive them of that which by the statutes they possessed. He trusted the House would bear with him whilst he alluded for a short time to the statutes upon which the Church of Scotland claimed her jurisdiction. The first year to which he should refer, was the year 1567. From that year might be dated the connection, as it were, between the Presbyterian religion of Scotland, and the law and statutes of Scotland, It was certainly true that previous to that year the Presbyterian Church of Scotland had existed as the Church of the people of Scotland, though not in connection, as at present with the state. But in the year 1567, though not till then, the Church of Scotland was adopted by the state, and an Act of Parliament was then passed which gave the church courts their legal status. The fourth act of that year retained anew the confession of faith; the fifth act abolished the mass; the sixth act was anent the true kirk, declaring it to be the only true church in Scotland. The seventh was a very important act; it was entitled "Anent the admission of them that shall be presented to benefices, having cure of ministry," and it provided that 358 the examination and admission of ministers within the realm should be only in the power of the kirk, now openly and publicly professed within the same. The act then went on to narrate the order of presentation, and to establish for the first time what was commonly called the jus devolutum, declaring that if the patron did not within six months, after a vacancy, present, the power of presentation for that turn should lapse to the church. Then came the following provision:That if the superintendent refuse to receive a qualified presentee, the patron may appeal to the superintendent and ministers of that province where the benefice lies, and if they refuse, then to the General Assembly of this haill realm, he whom, the cause being decided, sail take end as they decern and declare.That was the statute of 1567. It appeared that several propositions had been made by the church to the Parliament of Scotland. Among others he found one, thatTo this our kirk be granted, and by this present Parliament confirmed, such privileges, jurisdictions, and authority as justly appertains to the true kirk, and that no jurisdiction ecclesiastical be acknowledged within this realm other than that which is or shall be, in this kirk, or flow from the same.In the twelfth act of that Parliament, this proposition had been taken up, and acted upon, it was called "Anent the Jurisdiction of the Kirk," and in reference to the articles given in by the kirk, and the jurisdiction appertaining to it, it stated that the King, with the advice of the Regent, and of the three estates, has granted jurisdiction to the kirk in preaching the true word, in the direction of manners, and in the administration of both sacraments, and it added,And that there be no other jurisdiction ecclesiastical acknowledged within this realm other than that which is, or shall be, within the said kirk, or that which flows therefrom concerning the premises,Such were the proceedings in 1567; and he looked upon these as the original statutes by which ecclesiastical jurisdiction was given to the church; and unless fee should be able to follow these statutes through the varied history of the Parliament of Scotland, he was willing that his case should be taken as "not proven." In 1579, the sixth Parliament of James 6th, chapter 7 of the statutes renewed the 359 statute of 1567, and it was also entitled, "Anent the Jurisdiction of the Kirk." In 1581 both these statutes were renewed by Parliament, and then followed the celebrated act of 1592, which was sometimes termed in Scotland "the Charter of the Presbyterian Church." By that statute all the others in which church government had been previously recognised were distinctly re-enacted, and it was declared that the only ecclesiastical jurisdiction in the realm was that which flowed from the Presbyterian Church. It was not his object to detain the House by following the church through all the troubles and struggles to which it had been exposed, but by a single act all that had been so long and so strenuously maintained during so many years was taken away at one fell swoop. In 1662 was passed the statute for restoring the archbishops and bishops of Scotland. He mentioned this statute in order to take advantage of the preamble, which set out with declaring,That the ordering and disposal of the external government of the church doth properly belong unto his Majesty, as an inherent right of the crown, by virtue of royal prerogative and supremacy.It proceeded to state,His Majesty, considering how necessary it is that all doubts and scruples which from former acts or practices, may occur to any concerning the same be clearly removed, doeth therefore, of certain knowledge, and with the advice aforesaid, rescind and annul all Acts of Parliament by which the sole and only power and jurisdiction within the church doeth stand in the church, and in the General Assemblies of the church, and all Acts of Parliament which may be interpreted to have given any church powers, jurisdiction, or government, other than that which belongeth to dependence upon and subordination to the sovereign power of the realm.These words showed that at this period there existed the strongest impression, that for the purpose of re-establishing the supremacy of the King in matters ecclesiastical, it was absolutely necessary to repeal laws which gave that supremacy, not to the head of the state, but to the church courts, and to the church courts only. The same argument might be derived from the preamble of the act of 1669; but he would not trouble the House with the precise words, and would proceed to the period of the Revolution— an event brought about more perhaps by the country to which he (Mr. F. Maule) 360 belonged than by any other part of the empire. In 1688, after various struggles between the Presbyterians of Scotland and those who asserted the doctrine to which they never would submit, viz., the supremacy of the King in matters ecclesiastical, the Revolution took place. At that time a claim of right and a statement of grievances was presented by the kirk of Scotland; and in that claim and statement it was distinctly made a portion of the offer of the Crown to William and Mary that the ancient Presbyterian government of the Church, as enacted in 1567, confirmed in 1581, and re-confirmed in 1592, should be adopted as the only church government of Scotland, and that all acts inconsistent with it should be repealed. Accordingly, in 1689 prelacy was once more abolished, and all the statutes for establishing it were entirely rescinded. In 1690, the Presbyterian church government, as ratified and confirmed by the Parliament of 1592, was once more restored, excepting on the subject of patronage, which was a question reserved for future consideration. All the judicial power of the church in her own courts, which had been recognised in 1567 and 1592, was reestablished without change. In the year 1695 further acts were passed with refernce to that portion of the question which had been reserved, and patronage was then left, not certainly in the hands of the patrons, but in other hands, which placed it pretty much under the control of the people. He now came to the union between England and Scotland. In addressing himself to that particular period, he begged to remind the House, and English Members in particular, how jealous the Scottish nation was of that religion for which their ancestors had contended, and for which they had suffered so severely. Not only would they not permit the commissioners of the union to treat upon the subject, but by appealing to their highest courts, and by using their strongest language, they endeavoured to secure to the church of Scotland the enjoyment of the privileges finally achieved for them by the Revolution. Their intention was, that no change whatever in time to come should take place in the particular form of church government as settled by the Act of Security. In fact that act was guarded in every possible manner: it was embodied in the treaty of union, and, before any Sovereign assumed his seat on the Throne 361 of these realms, Scotland took care that be should make a declaration to maintain the rights and privileges of the Presbyterian church as established by the Act of Security. He would take the liberty of referring the House to an abstract of the Act of Security as it applied to the subject before the House. It ratified and confirmed the Presbyterian church government as established by former statutes, and declared it to be an unalterable, fundamental, and essential condition of any treaty of union to be concluded between the two kingdoms, without any alteration thereof or derogation thereto of any sort. Such was the language used at that time, plainly showing a determination to secure the permanent enjoyment of the Presbyterian religion. He had met with an opinion with reference to the Acts of Union and Security, which perhaps might have some weight with Scotch Members. It was contained in an extract from a speech of the late Lord President Hope, he believed when he was Lord Justice Clerk, and it was contained in Sir John Connell's book upon tithes, p. 390, and was to the effect following:—At the union much was to be done; the existence of the Presbyterian church was to be provided for, so that it might remain in all future time unaltered from its then state. This was to be done by means of a treaty with a country in which a different church, at least a church under a different hierarchy, was established; but this could not be left to be settled by a Parliament in which Scotland was not represented. Our ancestors at that time looked on the church of England as not a true church— in fact, they looked on it as worse than the church of Rome. He himself thought that there was so little variance between the Scotch and English churches that he would communicate with either; but our ancestors thought differently, and they decided that the Parliament of Great Britain should have no power to repeal the settlement, and he was of opinion that an attempt to do so would be a dissolution of the union, and that resistance on the part of the people of Scotland in such case could hardly be termed rebellion.Such were the words of Lord President Hope, and he apprehended that some importance would be attached to them. From this view of the statutes of Scotland, not read, he was free to admit, with the critical acumen of a lawyer, but with an earnest desire to arrive at their constitutional meaning, he had come to the conclusion that they supported the just 362 claim of the Presbyterian church, that, in all matters ecclesiastical, it should have a right within its own sphere to be an independent court, without reference to any other. He would now trouble the House with an opinion much higher than his own upon this point: he alluded to that of Lord Moncrief, lately expressed in deciding upon the Stewarton case. It was not his intention to enter into the merits of that case, the Members of the present Government having stated that they had not yet made up their minds entirely to forego the question, but to await the issue of pending proceedings in courts of law, before they decided whether it would or would not be expedient to legislate upon it. Lord Moncrieff said:—That he had learnt in his earliest studies of the law of this country, and he believed it to be no subject of doubt or controversy, that the Presbyterian church was originally constituted in its early history, and finally established, unalterably, by the statutes of the Revolution, and of the union with England, in the possession of courts of General Assembly, &c, which had power and jurisdiction, both judicial and legislative, on all matters spiritual or ecclesiastical, absolutely, independently, and exclusively, which no civil courts, created by statute for other ends, could touch or controul. He believed this to have been so settled, or at least to have been fundamentally secured, and an unalterable principle in the constitution of the state. This had been accomplished by a series of statutes more stringent and more unambiguous than the laws which had created or defined any other jurisdiction.Lord Moncrieff afterwards went on to state, that—
He spoke at present only of the general principle, that there was in the constitution of these realms such an exclusive and independent jurisdiction, both judicial and legislative, on all matters ecclesiastical vested in the courts of the Presbyterian Church. Although he was well aware that the claim to this independent position had at various times been vehemently opposed as very distasteful to some, yet he must be allowed to say, that until the discussion of the present day arose he had never heard it denied as a matter of fact that such was the law.Such was Lord Moncrieff's opinion in the outset of his argument, but he went on to say, that —In the face of the letter and spirit of the statutes, as he read them, there was now found to be no separate jurisdiction; he would only express his most decided and deliberate opinion against that principle, which, accord- 363 ing to his best judgment, tended to results which he trembled to contemplate.Such were the words of Lord Moncrieff, confirming the opinion he had formed of the propriety, nay, of the absolute right, of the claim set up by the church courts. To the same effect he might also quote the language of Lord Cockburn, who had said, that—He could not discover a single clause which gave, or even indicated, the existence of a power in any civil tribunal to control the ecclesiastical acts of the Church: the reverse seemed to him the key-stone of the ecclesiastical structure, not as described by ambitious churchmen, but as fixed by the Legislature. If the principle contended for were well founded, the Court of Session could always enter the church courts and control their acts, and it seemed to him an inevitable conclusion that the Church possessed no independence whatever.These opinions of Lord Moncrieff and Lord Cockburn fully confirmed those he (Mr. F. Maule) had always held; and if a doubt on the subject had ever crossed his mind, the decisions of those two great men would have completely satisfied him of this—that if the question were so nicely balanced in the courts below, it became the Legislature, as the regulator of the constitution, to take it immediately in hand, and to give it the best consideration. The right hon. Baronet had stated, in his letter, that the question of jurisdiction was a question of law?—Whether a particular matter in dispute is so entirely spiritual as to fall exclusively within the jurisdiction of the church courts, or whether it involves so much of civil right as to bring it to a certain extent, within the jurisdiction of the civil courts, may often be a difficult question.To that extent he agreed with the right hon. Baronet, but when the right hon. Baronet added,—It is a question of law, and questions of law are decided in courts of law, and questions of jurisdiction are also decided there.He must take leave to differ upon that point. In the first place, he maintained for the ecclesiastical court an equal right with the Court of Session, to decide for itself, and within itself, what were the limits between civil and ecclesiastical functions in cases brought before it. He acknowledged the same power for the Court of Session, but he acknowledged no more. The highest authority he had been 364 able to find on the subject of the jurisdiction of the Court of Session went with him to that extent, and no further: he would read a very short paragraph from the "Institutes" of Lord Stair: —It is implied in the office of the Lords of Session, that they should interpret all acts of Parliament, without which they must be incapable to determine all civil causes; which interpretations, however, have no other effect but in relation to the said causes, without prejudice to other judicatories to interpret the same as they are convinced.It seemed to him that the Court of Session had mistaken its functions, and had assumed to itself privileges belonging only to the State. Without meaning any disrespect to the Court of Session, he contended that it was the duty of the House to take cognizance of such a departure from the principles on which it was established; and he called on the House to resolve itself into a committee for the purpose of considering what he thought, under this point of view, was a great national question. He was aware that it was difficult at all times to reconcile conflicting jurisdictions; but, for one, he would never admit that, when two courts, equal by law and by the constitution, independent of each other, come into conflict upon matters however trifling, or however important, so that one assumed to itself the right to say that the other was wrong, there was no means of settling the dispute. As he read the Constitution, it became Parliament, which was the Supreme power, to interfere and decide betwixt them. If the House consented to the committee, he should suggest that, if the matter could not otherwise be decided, the House should address the Crown, in order that a declaratory act might be passed, better to define the jurisdiction of each court, and to limit each to its proper province. He maintained that, in ecclesiastical matters, the Church courts had as much right to define the limits of their jurisdiction, as any other independent courts. Conflicts might arise, he knew, and if they did arise, it was the business of Parliament to interpose, and not to allow one tribunal to assume undue authority over another. If the question were difficult, if the Gordian knot could not easily be untied, it was the duty of the Legislature to cut it, by making a law adopted to the circumstances. That was his reading of the 365 Constitution—that the manner in which he thought the subject ought to be taken up by the House. Having said thus much upon the subject of the first grievance, he wished now to advert to the next grievance—the exercise of patronage. It was almost unnecessary for him to argue it at any length, because it was admitted on both sides; but the principle of non intrusion might be given in two words: it was, that no minister should be intruded upon a congregation contrary to the will of that congregation. This had been a standing principle of the Presbyterian church from the earliest times; it had endured from the very hour and moment of her first existence; it had been borrowed from the practice of the primitive ages, and remained from the time it was first adopted an integral part of the constitution of that Church. The right hon. Gentleman (Sir J. Graham) in the letter to which he had already referred, said, that the attack upon patronage was a modern invention:—It would seem (said this letter) that this attack on vested rights secured by statutes, is of modern date, and that the civil authorities were not the aggressors.Surely the right hon. Gentleman could not mean to say, that the principle of non-intrusion was a principle of modern dale. If the right hon. Gentleman looked to the Second Book of Discipline, he would find that the principle of non-intrusion was there distinctly laid down. It was asserted in 1592; it was asserted in 1638; it was asserted over and over again; it was asserted up to the hour that the Act of Queen Anne was passed, and from the hour that the Act of Queen Anne was permitted to be placed on the Statute-book, it had been asserted by more or by fewer of the elders, the ministers, and the people of the Church of Scotland, as a principle from which (as he trusted) the Church of Scotland would never depart. Previously to the passing of the Act of Anne, the presentation was guarded by many popular checks; and by the Act of Security, an act which ought never to be invaded, the power of concurring in the appointment of their ministers was secured to the people. It was after this that the Act of Anne was passed. If it were of a recent date, perhaps, it would not be consistent with the usages of that House to refer to the motives for passing it; but, as 366 a matter of history, he believed that few who heard him were not perfectly aware, first, of the surreptitious manner in which this act was passed; that it was passed without the knowledge of those immediately concerned; it was hurried through the House of Commons; it was hardly detained in the other House a sufficient length of time for the General Assembly to protest against it. Some suspicion did attach to it at the time, and history had confirmed it. The passing of this act, by the ministry of that day, bore little reference to the condition of the Church of Scotland; but it was passed for other purposes. To show how little trust could be placed upon all the stories which were palmed off upon people, and how much pains were taken to misguide them, it was but a few days since he had seen an address from a Presbyterian clergyman in London, broadly making an assertion which would make all who heard it smile —that the Act of Queen Anne was passed for the purpose of reconciling the people of Scotland to the Hanoverian succession; that the Jacobites were the chief supporters of the Episcopalian Church of Scotland, among whom no patronage existed; and it was thought right, in order to prevent the Presbyterians from following a bad example, to inflict upon them the evil of patronage. That was the statement made deliberately by the Rev. J. Cumming; and if such statements could be palmed off on the gentlemen of England, they should be guarded how they should take in information by that source. Another statement, he rejoiced to say, had been fully and fairly contradicted. It had been said that the Wesleyans of England took no interest in these proceedings of the people of Scotland. The fact was set at rest by the petition which that body had this night presented, and which had been read at the Table. When the act of 1712 was passed, one would have supposed if that act had been acceptable in any degree to the people of Scotland, there would have been little difficulty, that no time would have been lost in carrying it into effect, but it remained for nearly twenty years a dead letter on the statute-book. The first forced settlement was made in the year 1730. The proceedings began in the year 1726, and it took four years to bring the first offspring of this unnatural monster into being. During that period Mr. Duncan Forbes, of Culloden, one of the most 367 able lawyers that Scotland had ever produced, protested against the law, and so did the people of Scotland; and yet this was ever described as a law for their satisfaction. In 1736 the principle of non-intrusion, which was now said to be a modern claim, was re-asserted in the General Assembly. From that day matters began, most unfortunately for Scotland, to assume a different aspect. Presbyterianism began to grow lukewarm, and finally cold. The church courts themselves, to the eternal disgrace of those courts, recognized the principle of forced settlements, and they themselves applied to the civil courts. He absolved the civil courts from doing more than the statutes required them to do; but he did leave on the General Assembly and the church courts of the last century the entire blame of suffering the religion of Scotland to pass into that lukewarm and cold state in which it had for many years existed. Then, about the beginning of this century, the evangelical spirit in Scotland began gradually to gain a little more strength; it was perpetually growing silently, but surely, and though it had some force and increase of numbers in the church, it never happened till the year 1834 that the evangelical body in Scotland became once more the majority in their church. What was their first act? What were the consequences which grew out of the evangelical strength in Scotland? As it grew the incompatibility of patronage and of the Act of Anne with the existence of the Presbyterian religion became apparent. He might refer hon. Gentlemen opposite to the opinion of Scotland in the years 1831, 1832, and 1833, on the subject of patronage. In the year 1834, the General Assembly came to the resolution of adopting that law of the church which had been so severely commented on; but he thought he could show the House that they did not pass that law, at least with the utter disapproval of England. In the year 1833 there were discussions in the House of Commons on the subject of the abolition of patronage, and the General Assembly, who were then considering the subject, might look naturally to the tone and feeling of that House. He found that in July, 1833, Sir George Sinclair brought forward his motion for the abolition of patronage, or for the repeal of the act of Queen Anne. Amongt the many Members who spoke upon that occasion, 368 he was more particularly anxious to call attention to those who spoke from Scotland, in reference to the opinions that prevailed at that period, and as to their extent. Mr. Ross, then Member for Montrose, said,I consider that the members of the church of Scotland have by the original constitution of that church, a direct voice and control in the election of their ministers.The learned Gentleman who then filled the office of Lord Advocate said,Why not leave the whole subject to be dealt with by that venerable body from whom had proceeded all regulations respecting the church of Scotland since the days of John Knox.The hon. Member for Newcastle-under-Lyme (Mr. Colquhoun) saidHe asserted the perfect independence of the church of Scotland from all control,And went on to animadvert strongly on the act of Queen Anne. Mr. Gillon and Mr. Johnston were of opinion that the General Assembly might deal with this question. He then came to a high authority—to the authority of one whom that House had placed in the Chair; Lord Dunfermline said thatIt would, in my apprehension, be a most indecent proceeding in this House, when we know that there is a church Parliament in Scotland, to proceed to legislate upon that subject without previously ascertaining the sentiments of that body. I apprehend, therefore, that the only course which my right hon. Friend could possibly take would be to leave the question to the decision of the General Assembly.Then, again, in the year 1834, Sir G. Sinclair moved for the appointment of a committee; that committee was granted, the report of which contained much valuable information. The hon. Member for the county of Morayshire (Major Cuming Bruce) then stated, embodying the opinion of the hon. Member for Aberdeenshire, and going further than he (Mr. Fox Maule) presumed to go.The hon. Member for Aberdeenshire says, that the General Assembly of the Church of Scotland is in ecclesiastical matters sovereign, and consequently that it could not be bound by the decisions of this House, which would have no force in our church courts till sanctioned by the General Assemby.The hon. Member added, "Sir I believe this is the case; "he did not believe 369 it was the case, he did not go so far. He did not agree with the hon. Member upon that point, but he quoted it to show that the General Assembly in passing the veto law did find encouragement in the public mind, particularly the public mind in Scotland, and that the veto law would have the public support. But he would go beyond that House. The law was passed—no fault was found with it—and in passing that law let him call the attention of the owners of patronage in Scotland to a fact. What was the result of that law? There was a great cry in Scotland for the repeal of the Act of Queen Anne, and to take away patronage, or what was termed the right of property in presentation. He did not recognise any such right. It was taken away in 1695; an act of Parliament restored it to the patrons without paying anything; if Parliament chose, it might take it away again—the owners would have no claim to indemnity or remuneration. In passing the act of 1834 it was the intention of the General Assembly to deal as lightly as it could with the owners of patronage. The General Assembly had two objects in view—one was the paramount assertion of the principle of non-intrusion, that was, that no minister should be intruded on a parish contrary to the will of the people; their next object was to do this, making the least objectionable encroachment on what was termed the right of patronage. They could not have laid their hand more lightly upon it in any way. Instead of re-enacting the call, they said that the patron should have the benefit of all parties who should not appear to exercise the veto; they said that the patron's nominee should be rejected only if the people came in propria persona to state their objections. They, therefore, enacted the great principle of the Church with as little encroachment as they could consistently with the right of patronage. Well, the law was passed. Was there anything to suppose that it was contrary to the statute law of the land, that it was inimical to the high authority, or that it would be opposed in the manner in which it had been? In the first place, there was in the General Assembly the Solicitor-general of the then Government. He was a member of the General Assembly, and voted for it. In the next place, it was passed in the month of May, and in the month of July in the same year the Lord 370 Chancellor, from the Woolsack, in presenting a petition from the Synod or Glasgow on the subject of church patronage, said: —My Lords, I hold in my hand a great number of petitions, from a most respectable portion of his Majesty's subjects in the northern part of this island, all referring to one subject—I mean church patronage in Scotland—which has greatly and powerfully interested the people of Scotland for many months past, and respecting the expediency of some change in which there is hardly any difference of opinion among them. The late proceedings in the General Assembly (in passing the veto law) have done more to facilitate the adoption of measures which shall set that important question at rest, upon a footing advantageous to the community, and that shall be safe and beneficial to the Establishment, and in every respect desirable, than any other course that could have been taken; for it would have been premature if the Legislature had adopted any measure without the acquiescence of that important body, as no good could have resulted from it. I am glad that the wisdom of the General Assembly has been directed to this subject, and that the result of its deliberations has been those important resolutions (viz. the veto law) which were passed at the last meeting.That was the opinion of the great man who then held the Great Seal (Lord Brougham. He came now to an equally high authority, although one opinion was delivered from the Woolsack, and the other from the hustings. He could imagine a messenger had just arrived from the General Assembly, when Lord Campbell (then Attorney-general) said at Edinburgh, on the 28th of May, 1834,—I rejoice to think that not many hours since a law has gone forth from the General Assembly which may have, under the blessing of Providence, the effect of reforming the Church of Scotland, and bringing it back to the standard of its former purity, and removing from it every objection and every complaint. By a majority of forty-six, last night, Lord Moncrieff's motion was carried, by which every parish will henceforth have an opportunity of inquiring into the qualifications and the character of its clergyman. The abuse of patronage will now be effectually remedied, and all cause of complaint be removed, both within and without the Church of Scotland." …"By the glorious struggle that has been made to restore the Church to its former purity, this triumphant victory has been gained.That speech was delivered the very morning of the vote which had been come to at two or three o'clock in the morning. 371 Now, he thought that the General Assembly and the individual members of the Church of Scotland could hardly be blamed, after the encouragement they had so received for the act of 1834, from such high authorities, if they persevered in, and even took credit to themselves for having passed that act. For the three years and a half he would venture to say that no Scotchman would contradict him in the assertion that never did the administration of patronage in the Church of Scotland work so well—so comfortable, if he might use the expression, for the patrons—so advantageously for the people—with such increased means of doing good to the Church itself—as during the three years and a half that this law was allowed to work Unmolested. So far had it even gained over its opponents, that Dr. M'Farlane, of Glasgow, an out-and-out supporter of unlimited patronage, had come to the belief that the Veto Act was a blessing to the country. His noble Friend (Lord John Russell) administered the patronage of the Crown in relation to the Church with such anxiety on his part, that such presentations as were made by the Crown were acceptable to the parishes in Scotland. In the midst, however, of all this prosperity, there came a sudden change: and it was extraordinaryWhat great events arise from little things, From now small beginnings vast events may flow.Than in the Auchterarder case the veto was never more decidedly expressed; the dissentients to the presentee were little short of 300. Yet, from this case the Church of Scotland had been interrupted from that hour to this in that bright career of prosperity which every well wisher to the Church would have hoped to see continued. The right hon. Gentleman opposite (Sir James Graham), in commenting on the Auchterarder case, in his reply to the General Assembly, had made an accusation against the majority of the Church of Scotland, which he (Mr. F. Maule) must say, he regretted should have emanated from his authority, or from that of the Government, and he must take leave at this time in reference generally to this answer to the memorial and addresses of the General Assembly, to state that he had read the whole answer with considerable regret. He had looked in papers given Out in the name of the Government for some distinct argument on the great 372 principle, and a dealing with the principles of constitutional law. He was sorry to find that the paper were rather marked with a character of a partizan advocate here and there—unintentionally, it might be, and he was willing to give the right hon. Gentleman credit for having been led away—but he did trace such expressions and in none more so than in the passage to which he was about to refer. In the 21st page of his answer to the General Assembly, the right hon. Gentleman used very sharp and very laconic expressions. He told them that having submitted their case to the courts of law, they ought to abide by it: —The Assembly submitted the question at issue to the judgment of the Court of Session. They were dissatisfied with the decision. They had their legal remedy. They used it. They carried the judgment by appeal to the bar of the House of Lords; and in the last resort the judgment of the Scotch court was confirmed, and the Veto Act was pronounced to be illegal. This solemn decision fixed the principle of law; which rules all the minor cases which have since arisen. The judgment in the second Auchterarder case, which found the patron and presentee entitled to redress in the form of pecuniary compensation for a civil wrong, was a legal sequence of the former judgment, and here, again, the Assembly was content to plead before the civil tribunal; and again, the Assembly refuses to submit to the compulsion of an adverse decision.That was a repetition, in words more mild and sentiments more refined, of a warm accusation against the General Assembly which fell from the judgment seat, that,—In refusing to submit to these decisions they are prepared to thimble-rig us.That was the expression used by a judge on the bench when speaking of the same circumstances as were alluded to in the letter of the right hon. Baronet. He (Mr. F. Maule) thought that if the right hon. Gentleman had given himself more time for consideration, he would have seen that whatever accusation might have been made against the church courts for asserting their independence, they of the House of Commons ought not to be the parties to launch it. He thought that any one who reflected upon the position which that House occupied with reference to the civil tribunals of this country, would see that there was a close resemblance between the position of the House of Commons and the Court of Queen's Bench, and the po- 373 sition of the General Assembly with reference to the Court of Session. The General Assembly claimed to have its own privileges; those privileges were appealed; against in another court, who instead of refusing to interfere, as he thought they ought to have done, were prepared to receive the complaint, and to come to a decision. The General Assembly hesitated to appear before the Court of Session. They paused, as they had seen the House of Commons pause, before it appeared, when its privileges were arraigned before the Court of Queen's Bench. The House of Commons also claimed its own privileges, and it properly stood by those privileges when they were interfered with by any court. The General Assembly did the same with respect to the Court of Session. Both came to the same decision, and the House of Commons was placed in the same situation by the act of the Court of Queen's Bench as the General Assembly was with respect to the Court of Session. Both believed that the courts of law would see that they had no jurisdiction, and would not have considered the question. Both the House of Commons and the General Assembly were disappointed. Would any one say, that the House was thimble-rigging the courts of law, if they did not submit to the decisions of those courts? The Church courts, maintaining their own privileges and denying the jurisdiction of the other courts, had submitted to an investigation by the other courts—denying the jurisdiction, but in the hope that the other courts would coincide with them, and would have dismissed the cases, saying that they had no jurisdiction. He would not pursue the parallel further; he would leave it to those who could more ably deal with it; but that the analogy did exist no one would deny; and they might depend upon it, that, as in the case between the House of Commons and the Court of Queen's Bench, so in the case of the Church courts and the Court of Session, the longer they permitted any doubts to exist, the more trouble would they be involved in here, the more trouble would they be involved in there. The Church courts were accused further, that after the decision of the House of Lords they persisted in maintaining the veto. He must be permitted to say, that this was not exactly the case, because the Church of Scotland, anxious that these differences should be settled with as 374 little further dispute as possible, directed! the Presbyteries, so far as they could, to postpone the cases between the patrons: and the congregations, or to refer them to the General Assembly. That was, that they should suspend the Veto Act in the hopes of an amicable settlement. Since that, various appeals had been made to her Majesty's Government, rumours were from time to time current: sometimes they were excited by hopes that Government would take up the subject, and legislate upon it; and again rumours were current which made them despair of all assistance. The Government he did not accuse for not legislating, because, if they continued to leave the matter without legislation, they must take the responsibility. The Government had not thought fit to legislate, and the General Assembly now came to the House of Commons to take up the question, and they said, that if they meant to save the Established Church of Scotland from the disruption of all its best and most efficient Ministers, and in one word all its chivalry in connection with the State, they must take the matter into their own hands. This was the only manner in which they could deal with the subject; and he must not be suspected of endeavouring to intimidate the House, when he stated that he would deeply deplore the consequences which might ensue if the Legislature should refuse to deal with it. He feared that reports had been circulated which were too eagerly believed— reports intended to influence her Majesty's Government—that the question was making but a trivial impression on the people of Scotland: that if there were a secession, it would be a secession of Ministers without the accompaniment of their flocks. The House might believe that It was not an exaggeration, when he said, not only that there would be a large secession of the best and most efficient Ministers of the Church of Scotland, but also of a body to which they could scarcely attach less importance than to the Ministers themselves— he meant the eldership of the Church of Scotland; and no One could value too highly or more than he did that important body. As to the communicants, the days of restriction had long since passed. Every One could take his own course, and could worship his God according to the dictates of his own Conscience. This they might rely upon; and to convince the House of the feeling of the 375 people of Scotland, he need only read one passage from the introduction to a pamphlet proceeding from an hon. Gentleman opposite. He said,—To expect from a people resolute as the Scotch, who have proved their resolution throughout a series of political events of no small importance, that they will abandon their ancient faith, is to forget the recollection of the past, and to substitute the vision of a disordered fancy, for the sober conclusion of the judgment.He agreed in this, and he believed that the people of Scotland were intent upon nothing so strongly as the ancient establishment of the Presbyterian religion, with all its authority as recognized by statute, with all its jurisdiction as proved by past history, with all its liberal and popular powers as expressed by acts of Parliament. He would call to the attention of the House the fact that the great majority of the Members of that House were what was termed of the evangelical part of the Church. He would ask the House to listen for a moment to the changes which had taken place in the Church of Scotland since the evangelical party had become the majority in what he might call her councils. Previously to the year 1834 there were but two missionary schemes attached to the Church of Scotland: these were instituted only in 1824, and were established after great exertions on the part of those who were then the ministers of the church. In 1834 there was established a scheme for church extension; and with reference to this he felt himself individually bound to support the claims of the church in this country, because he had deemed it to be his duty, when the church came to that House to aid her in that scheme, on principle to oppose her having any grant of the public funds. In 1836, three schemes were proposed, which had for their object the religious instruction of the settlers and colonists detached from this country, through the wide sphere to which our colonies extended. In 1838, the Scotch Church established a scheme for the conversion of the Jews; and such was the zeal of her members under this new enthusiasm, that while, in 1834, the collection for all these purposes amounted to 4,800l. a-year; in 1842, it amounted to a sum no less than 25.000l. Was this a time, he asked, when disorder was stalking abroad with giant strides, when men's minds were un- 376 settled, and there were no real principles to bind them, for a body of men, whose merits were so acknowledged and known, who had so striven to disseminate amongst the people of this country, both at home and in our colonies abroad, the true principles of religion, was this a time to treat such men with neglect? He apprehended that it was not, and he entreated the House to pause before, by any refusal to go into Committee— where only a discussion could take place with due effect— they gave a final answer to the demands which were made. He had endeavoured to show the House, with reference to this matter, first of all that the claims of the church with regard to her jurisdiction were founded upon the statute law of the land. He had followed those claims from the year 1567 down to the last statute enacted by Parliament. With reference to the broad question, he proposed that the House should take this matter into their own hands, that they should declare more definitively than now the matters wherein the jurisdiction of the church and of the civil courts lay, that they should maintain the provinces of both separate and distinct, and that if conflicts should arise they should be disposed of as occasion required. He did not ask the House to pass a simple act for the total repeal of the statute of Anne. He did not mean to say that for himself he should prefer that course, but he said that the more strongly the principle of non-intrusion was recognised, the better would the people of Scotland be satisfied. He did not ask for a measure based on the same principles with that brought forward by the Earl of Aberdeen; that measure was offered to the church, but the members of the church most consistently withstood its introduction. The members of the church had been accused of asking power for themselves—they had been accused, that, amidst all the agitation which had been moved, they had been actuated by feelings of ambition, such as we read of in the history of older times. If such had been the case—if such had been the desires of the Church of Scotland—how could they have obtained power more entire, more irresponsible, than that which was given to them by the act of the Karl of Aberdeen They would have had the power, under that act, of compelling, in all cases of objection, the people to give their reasons for that rejection, of which 377 reasons they were to be the sole judges. It would have vested in them the entire power of rejecting or accepting the presentee; but, actuated by no feelings of clerical ambition, they nobly rejected every measure which did not involve the principle of the settlement of the question, which did not involve the emanation of power from the people. They had, in his opinion, completely relieved themselves from all the accusations on this head which had been brought against them, and he was sincerely glad that he had this opportunity of justifying the church from the foul aspersions which had been cast upon it. They had sought no power they sought none with reference to the institution of presentees— all that they required was, that they should judge that the man was fit for the office; but, above all, that he was fit for the locality to which he was to be sent. Let the institution be with the people, and of this he was sure, that there were events in the history of the Scotch Church which proved that, however the propriety of entrusting the people with this power might be questioned in other cases, the people of Scotland having been found worthy of the trust in former ages, they might with safety again place that power in their hands. He expressed this opinion as a Presbyterian and a Scotchman, in the firm persuasion and conviction that religion was the best bulwark of a country, and that in this particular instance the institutions of Scotland would not, by the measure proposed, be in any way assailed. He thanked the House for the patience with which the observations which he had thought it his duty to make had been received. He had endeavoured to state this case without mixing up in it anything like party considerations, without making any assault whatever upon any political question. He had endeavoured to treat it as a matter connected only with a consideration of the constitution of the country, and with the principles and opinions of the people amongst whom it was agitated; and he must say, that if there was ever a question which involved the feelings of hon. Members on both sides of the House, this was it. It recommended itself to gentlemen of Conservative principles, by bearing on it the stamp of those ancient institutions which it was their pride and their boast to uphold. To hon. Gentleman on that side of the House, the case recommended itself as being founded on the very existence of the 378 liberty of the people, for they would find that throughout the history of the country, whenever the Presbyterian Church flourished, the liberties of the people then flourished too. He trusted, therefore, that both sides of the House would embark with cordiality upon the consideration of the question— involving, as it did, principles of the greatest importance. He trusted that the House would consent to go into Committee, wherein, upon the principles which he had stated, he should bring forward definite propositions, and take measures towards procuring the settlement of this question— a question which, if allowed to find its own settlement in the way which was now threatened, would, perhaps, not only give rise to events not to the advantage of true religion, but would give a shock to the institutions of the country, which it was most desirable to avoid. He moved:—That this House will immediately resolve itself into a Committee, to take into consideration the petition of the Commission of the General Assembly of the Church of Scotland, and the matters therein contained.
§ Sir J. Graham:
Sir, I am quite sure that the House, as well as the right hon. Gentleman who has just spoken, will acquit me of being actuated, in the slightest degree, by anything approaching to a controversial spirit. I will endeavour to imitate the calm and dispassionate manner in which the right hon. Gentleman has discussed this great question; and I can assure the right hon. Gentleman, and the House, that I participate with him in feeling all the importance of this question in its intimate connection with the happiness and peace of Scotland at this juncture. I have not the same advantage of an intimate acquaintance — a long and hereditary acquaintance with the people of that country— enjoyed by the right hon. Gentleman, but J do know the character of that people; I have studied their history, and I admire their virtues; and I entirely concur in the language of a work by the hon. Member for Newcastle-under-Lyne, which has been quoted by the hon. Gentleman who preceded me, and which I think does justice to the character of that gallant and independent nation. I am perfectly aware that there are no questions which excite their feelings in the same degree as those which are connected with their national Church. It is the honour and boast of the nation that in coming to the settlement by which 379 they were united to the Crown of England, they preserved, by treating with England upon independent terms, that national Church as a mark of their independence and of the perseverance with which they resisted the dominant power views of the constitution of the Church now of England, until they could secure to themselves the establishment of their free religion; upon which consideration alone they could be induced to consent to the Union. I think, therefore, that in discussing this question in the British Parliament, we are bound to regard it with peculiar care; we must look at it not with English feelings, nor with the prejudices of Englishmen, but we are bound to regard it upon the principles of the Union, and to try and settle the question upon Presbyterian principles, as established by the Act of 1690— the Act of Union— and subsequent statutes. I must begin with stating to the House that, so far from having willingly embarked in this controversy with the Church of Scotland, 1, upon the part of the Government, studiously avoided it to the last moment. If the House will bear with me I should wish to refer them to the letter which I addressed to the Marquess of Bute, the Queen's Commissioner, with reference to the declaration and protest anent the encroachments of the Court of Session on the spiritual jurisdiction of the Church; and they will find that I did endeavour studiously to avoid entering upon a controversy of this description, which I feared must add to the bitterness which existed, and might not in any way alleviate those angry feelings which I wished to assuage, The Government persevered in that silence until they found it necessary to depart from it. The Commission of the General Assembly, and the General Assembly spoke through that Commission, remonstrated against the perseverance in that silence on the part of the Government, and their remonstrance was so direct that the Government felt compelled to give a distinct and definite answer. The passage to which I refer in the memorial of the Commission of the General Assembly is as follows:—That the claim common to all her Ma-jetty's subjects, to have an application for redress of grievances, and an answer accorded to it, appears to your memorialists to be, at all events, not less strong where the body complaining is of such a character and constitutional standing as the Church of Scotland, and where her claims are vested on the funda- 380 mental statutes of the realm, and national treaty, and the granting or refusing redress involving such momentous consequences, and that even for the guidance of her conduct, the Church is entitled to know whether the Government of the country are to rest upon the views of the constitution of the Church now acted upon by the courts of law, or are willing to adopt measures for securing her in possession of those privileges which she considers to belong to her under that constitution.This was so determined an appeal to the Government for a distinct answer to the memorial, that consistently with the respect due to the church they could no longer avoid entering into the controversy, however adverse to their views, or whatever risk was run of engaging in a conflict which they had so long sought to avoid; and in my answer I stated the extreme reluctance which I felt at being compelled to reply; but a refusal to answer after such a demand might be considered disrespectful, and inconsistent with the relations which her Majesty was most anxious to maintain with the Church of Scotland. I must say that I heard with deep regret the right hon. Gentleman express an opinion that the general tone and character of the answer I gave to the General Assembly had disappointed their expectations, and that the right hon. Gentleman saw ground to find fault, if not with the language, at least with the spirit of that answer. I can declare most solemnly that it was my roost earnest and sincere desire to avoid in that answer to the utmost degree, consistently with the maintenance of truth and my own candid opinion, any sentiments which could give cause of offence to that venerable Assembly. I may not have succeeded in that object, but the House will give me credit for candour and for the sincerity of my wishes. I will endeavour upon this occasion to speak exactly in the same spirit which I then sought to exhibit. It is impossible for me not to regard that national institution—the Church of Scotland —as one of the most valuable that exists in the United Kingdom. I have repeatedly stated to the House that I do not believe there is in Christendom any church that has done greater good at less cost to the community than the Church of Scotland. The right hon. Gentleman spoke of the misrepresentations that are afloat upon this controversy. It is quite natural there should be misrepresentations on both sides. I most solemnly disclaim on the part of her Majesty's Government, the 381 slightest, the most remote wish to subvert or change the Presbyterian discipline established by law in Scotland, 1 am quite satisfied that no Church could ever be more congenial to the feelings of the great body of the people than the Church of Scotland, I believe that her parochial ministers, in connection with her parochial schools, have a hold on the affections of the people. I believe that so far from abusing their power, they have exerted it to the best possible purpose; and I am quite satisfied that the character of the people, their industry, their love of order, their admirable sense, their moral conduct, their religious feelings, are in a great measure, under the blessing of Providence, to be ascribed to that national institution, I am, therefore, actuated by any thing but hostile feelings towards the Presbyterian Church. I speak with a warmth and sincerity which is incapable of dissimulation when I say that nothing in my public life has grieved me so much as this unhappy dispute. I think it more peculiarly unfortunate on this ground, that it arose precisely at a moment when the influence of this Church was extending itself — its usefulness was fully approved, and when it shone with the purest and brightest light. I do not believe that at any period of its history it had so complete a command over the people of Scotland, or was ever more firmly fixed in their affections than when this unhappy controversy arose. Having said thus much with regard to the institution itself, and its useful character, the House will, I trust, bear with me when I say, that I think the dominant party in that Church deeply responsible, whatever may be the issue of this sad controversy, for the part they have taken in the proceedings that led to it. It has occurred to me, and it is impossible to doubt it, that the peculiar character of the people of Scotland, their attachment to their religious institutions, and everything connected with their religion, has rendered it a most difficult question to adjust. I feel the great importance of this crisis, which, it is said in the memorial of the Assembly, will lead to a disruption in the present Established Church of Scotland. I see all the importance of those considerations, but I tell the House that they are secondary, in my opinion, compared with the effect which this controversy produces on the social interests of the country. Englishmen can hardly understand it; but I know that at 382 the present moment this great question of schism in the Church of Scotland is tearing society to pieces, and rending the very heart and vitals of the country— it is dividing families, setting father against son, and mother against daughter, and this controversy, pushed to its utmost extent, will have the most fatal, demoralizing effect— fatal, no less to the State than to the happiness and domestic peace of this unfortunate country. How melancholy! that this Christian religion, which was ushered to Earth as bringing the glad tidings of peace and good-will to man, should, by the passions of mankind, be made, as it were, the root of bitterness, hatred, and controversy, and should bear engrafted on it all the worst passions of our sinful nature! As a Minister my power is but small; as an individual it is still less; but were it possible, on any terms, which I did not believe in my conscience would lead to still greater evil, to arrange this controversy, there is no exertion which I would not make to arrive at so happy a settlement of this most lamentable dispute. I have thus ventured to speak of my private and individual feelings in this matter. It is now my duty to recur to it in a shape in which it is more immediately presented to us as a great legislative and political question. The right hon. Gentleman has stated, that in my letter to the moderator of the General Assembly, there is, as the right hon. Gentleman terms it, a misrepresentation. I am anx[...]o discuss this point in the most frank spirit with the right hon. Gentleman. The right hon. Gentleman said, that I charged the General Assembly with; claiming that they alone were competent to decide in disputes that might arise in cases of a mixed civil and spiritual character—with claiming to decide exclusively! what was spiritual and what was civil. I wish, with the permission of the House, very shortly to advert to the evidence, which I think sustains my proposition, that they do claim, in disputed eases, the exclusive right of determining what is civil and what spiritual. In the first instance, I will cite the passage from the memorial, which is not the act of the Church, because it did not emanate from the General Assembly, but from the convocation, which, however, I believe, contains in itself the voice of the majority of the General Assembly; for, as stated by the right hon. Gentleman, that convocation in Edinburgh is in great part, the same 383 majority which rules the Assembly; and I beg the House to listen to this passage. It is at page 17 of the memorial of the Convocation to her Majesty's Government, dated the 17th of November:—That the General Assembly, in the said claim further represented and solemnly declared their conviction,' that the government 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 power as has been assumed by the said Court of Session;' and in their address above-mentioned, solemnly assured her Majesty, that they could not, in accordance with the dictates of their conscience, and their views of the word of God, submit to the coercion attempted over them in the exercise of their spiritual functions by the said court, and must refuse to do so, even at the hazard of the loss of the temporal advantages they at present enjoy.It is impossible that any language can be more explicit than this as to co-ordinate jurisdiction, for which the right hon. Gentleman contends. It is plainly stated, that if in any matter which partakes partly of a spiritual character and partly of a civil character, the civil courts should interfere in any degree, at once, by that interference the whole spiritual liberty of the Church is prostrated beneath the supremacy of the civil courts. This, it is true, did not come directly from the General Assembly, but I will cite two passages which proceed directly from that body, because they are contained in the claim of right presented to her Majesty. At the conclusion of the enumeration of the judgments passed by the civil courts, all of which, as I contend, are founded upon the judgment in the Auchterarder case, and are natural consequences of that judgment, and arise from a pertinacious adherence to the Veto Act, which has been declared to be illegal, the Commission of the General Assembly makes this assertion:—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 government, have illegally attempted to coerce Church courts in the exercise of their purely spiritual functions, have usurped the ' power of the keys,' have wrongfully 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 cure of souls, church censures', the preaching of the word, and the administration of the 384 sacraments; and have employed the means entrusted to them for enforcing submission to their lawful authority in compelling submission to that which they have usurped— in opposition to the doctrine of God's word set forth in the Confession of Faith, as ratified by statute, in violation of the Constitution, in breach of the Treaty of Union, and in disregard of divers express enactments of the Legislature.Now this cannot be stated to be anything less than the assumption of the right, not only to interpret statutes, but to make laws, and to uphold them in defiance of the civil tribunals. But if any doubt should remain, this matter is rendered still more clear by a subsequent passage in the same paper, where the House will see what is the protest made by the General Assembly: —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, right, 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 stipulation, provided to be inserted, and inserted in the treaty of union, as an unalterable and fundamental condition thereof, and so reserved from the cognizance 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, right, and privileges, are and shall be, in themselves, void and null, and of no legal force or effect.Can there be a doubt, as to the meaning of these passages, taken in conjunction with each other? First, they say, that any interference of courts of law upon questions where spiritual rights are concerned, though involving civil rights, would prostrate spiritual liberty. And then, when we come to the protest, they declare whatever act of Parliament passed without the consent of the Church and the nation, shall be null and of no effect. I think the case, as it stands upon those documents, sufficiently clear; and, I think, that to such claims and to such a protest consistently with constitutional rights, liberty, and the maintenance of the law, no concession should be made. I confess that I was anxious to hear what were the precise claims of the Church as staled by the right hon. Gentleman, and I think I am accurate in saying, that the claims he has put forth this evening, though somewhat different in phraseology, are, in spirit and effect, identically the same as those which I have stated. The right hon. 385 Gentleman stated the claims to be, that within their own sphere the Church courts should decide when any matter was brought before them, whether it is spiritual or not. I took down the words of the right hon. Gentleman, and I think I have given an accurate description of the claims which he, as their advocate, has put forward. Allow me to ask what is the sphere within which that power is to be exercised? It is indispensably necessary that the sphere should be defined. If not, I ask, in a country where law is to prevail, and the caprice of a body independent of the law is to be tolerated, how are we to arrive at a knowledge of the sphere within which that power is to be exercised? And if a dispute should arise as to those limits, who is to determine it? The right hon. Gentleman said, that the claim of independence on the part of the Church of Scotland is irresistible; and I by no means deny that, in a certain sense, the independence of the Church of Scotland is secured by statute and by treaty— in a treaty concluded in the most solemn manner in which two countries could enter into any compact, it was agreed that a formal alliance should be contracted in certain particulars, as necessary for the independence of Scotland. It was not termed the Church of Christ as existing in Scotland, but the Presbyterian Church of Scotland as established by the State. And what were the terms on which this Church was established? Such was the caution of the statesmen who framed the act of union with Scotland, that they did not leave to the Church of Scotland the power of changing or modifying the tenets of that Church from time to time; but when they adopted that Church and formed an alliance with it, they came to a solemn compact with respect to that which was spiritual, and took the precaution of embodying in the act of union the confession of faith at length; thereby binding the Church of Scotland, even with respect to spirituals. It is true, as has been urged, that the Church is not the creature of the State, but still the state employs the Church on certain terms, as the religious instructor of the people of Scotland. What then was the compact entered into at the time of the Union? In the first place, that the confession of faith should not be changed; and the second branch was, that while the Church should continue to be the instructor of the people of Scotland in that faith, 386 so fixed by act of Parliament, it should enjoy certain specific advantages. I conceive the compact to be distinct and clear; and in the sense upon which the Church of Scotland now contends for independence, I deny, with respect to spirituals, that she is at liberty to depart to the right or to the left from the confession of faith, as embodied in the act of Union; and, on the other hand, the authority of deciding upon questions arising out of the interpretation of the statutes must rest, I contend, with the Supreme civil Tribunal. After all, this is the turning point of the whole matter—all the rest is the mere fringe of the case. The real question is this—when a dispute arises between jurisdictions which are co-ordinate and co-extensive, who shall decide in the last resort? The right hon. Gentleman adopted the limitation which has recently been put forward and absolutely denied the exclusive jurisdiction of the Church courts; but he set up a claim which is equally untenable, namely, that they possess co-ordinate jurisdiction. A case may be supposed of courts thus possessing equal power, and right, and jurisdiction for the interpretation of the same statute, putting a different interpretation on it. This is no imaginary case, because it is the very case of which I am now speaking. I do not wish to pursue this point further than is necessary to make it clear; and I must say again, that the real question to be decided is in whom, in case of disagreement between the two jurisdictions, is the power of the last resort to be vested? There have been several fanciful illustrations of the subject. I find them recorded in the answer of the General Assembly to ray letter. In it they talk of different great branches of jurisdiction, belonging to supreme tribunals, independent of each other. They talk of a court having authority in fiscal matters, and that those matters had to be determined in the Court of Exchequer; that criminal courts are the courts of justiciary and the civil courts, the courts of session. I do not deny that there is a regulated sub-division of judicial power in the way described; but this is all done by the State, and by statute for specific objects. The fact is, there is a delegation for certain purposes of the entire jurisdiction of the State to different bodies in different descriptions of cases. In each of these cases there is a limitation as to the extent and province of the jurisdiction. So I contend, that there 387 is a limitation to the power of the Church in the statute, which established and regulated that Church. But to return to the point at issue. A dispute has arisen upon the interpretation of the statute of Anne as applied to the question, whether a qualified minister should be taken on trial or not. The Auchterarder Presbytery adopted the interpretation which the Church courts attached to this question, and refused to licence the presentee. The Strathbogie Presbytery took the minister on trial in conformity with the order of the civil court; and although the assembly have put their veto on the proceeding, the veto of the Church courts. On the other hand the Auchterarder Presbytery disregarded the mandates of the civil court, and at once rejected the minister presented to them. The civil court said, that it was bound to admit him to trial, but the Church courts said, that they were bound not to admit him, and declared that they never would admit the presentee against whom the veto had been issued. The question then turns upon the point, which is right and who is to decide? I am convinced that in this country it would be a matter of great inconvenience if direct legislation should be adopted in every case in which there may be any contest respecting disputed jurisdiction. Such a course of proceeding, I think, would be most mischievous and dangerous. Nothing could render matters more unstable than for the legislature to interfere in every individual case of dispute or difficulty. As a general maxim of law no right can be given to any man or body of men, which cannot be vindicated by a plea either in equity or law. By whom then can this plea be interpreted, unless by the civil tribunals? The right hon. Gentleman says, that, the Church of Scotland will not be bound by the dictum of the Court of Session. I admit that the Church of Scotland is not bound by the dictum of the civil courts, for in every case of dispute there is an appeal to the highest tribunal of jurisdiction in this country—I mean the House of Lords. I contend that the jurisdiction of the chief court of appeal in this country is fixed and established. In this appeal of last resort the decision of the House of Lords is final and conclusive. In this case the assembly have appealed twice to the House of Lords—I might use the term, 388 have submitted to its jurisdiction. When the assembly felt itself aggrieved by the decision of the court below, it appealed to the House of Lords; and when that tribunal gave judgment in the case, the assembly refused to abide by it. The result then is, that all the difficulties in which the Church is placed, have arisen from its refusal to abide by the law of the land as laid down by the highest tribunal in the country. The right hon. Gentleman relied on the judgment, on this subject, of certain persons of the greatest intelligence and of the highest authority, connected with the Church of Scotland. Now, I cannot help referring, on the same point the that was alluded to by the right hon. Gentleman, to the judgment of a man of the greatest virtue and excellence, and learning; who is one of the highest ornaments of the judgment seat, and warmly attached to the liberties of his country. I allude to the opinion given by Lord Gillies in the Auchterarder case. The question, observe, is whether the Church under the guise of Ecclesiastical authority does not assume to itself jurisdiction in civil matters. Now attend to the judgment of Lord Gillies on this point. He says, expressly; I quote his words:—The reasoning is this: The general assembly can legislate in matters Ecclesiastical. Any thing which has been the subject of a resolution in the General Assembly is or becomes a matter Ecclesiastical. Therefore the General Assembly can legislate in that matter. They do not, indeed, say that their resolutions can convert a civil matter into an Ecclesiastical one; but they do say, that a fundamental law of the Church may be established by resolutions of the Assembly, and that this being done, the Assembly thence and therefore, acquires, or possesses, a power to make any law necessary for carrying into effect such a principle.I cannot rely upon a higher authority than the principles laid down in the latter part of the address of this learned judge; and the inevitable conclusion is, that the General Assembly set forward claims which are not only dangerous to civil liberty, but which it is impossible to maintain by sound argument. The right hon. Gentleman laboured extremely to prove, that in ecclesiastical matters, the Church should exercise jurisdiction. No one disputes this right. The Church of Scotland has hitherto exercised, and may continue to exercise jurisdiction in ecclesiastical matters as long as it pleases. 389 But then the whole point turns upon the question, what are ecclesiastical and what are civil matters? The right hon. Gentleman has referred to the non-intrusion principle, and said, that that principle has really always been recognised in Scotland. I am far from denying, that the feelings of the Presbyterian people, are in favour of this claim, but I deny, that at any period, except for a short time in 1649, and shortly after the Restoration, about 1662, the people of Scotland have been entitled, except on cause shown, to object to the presentee, whom the patron or Kirk Session might nominate. On this point, I can cite the highest judicial opinion, and one which I believe will not be questioned in this House. Lord Core-house, a judge of the highest reputation, and of the most profound learning and attainments, gave a decided opinion on this particular portion of the matter at issue. His Lordship said:—From the Reformation to the date of the Veto Act in 1834, I can discover no trace of authority for the doctrine that the dissent of the congregation or of any part without reason assigned, of which the Presbytery could judge, was sufficient for the rejection of a presentee, whatever might be his qualifications; and I consider this Veto Act an unwarrantable innovation. It is true that the congregation is always to be consulted, and nobody is to be intruded upon them, provided their objection is founded upon good reasons.On the part of her Majesty's Government, I have never denied this. In my letter I put upon record the opinions of her Majesty's Government, with regard to the strict Presbyterian rule which governs this matter. I have never denied, that after the presentee had been taken on trial, it was competent for the people to make their objections when the Presbytery met. to moderate in the call. Those objections must be stated fully, fairly, and without reserve. It is then the duty of the Presbytery, acting judicially, to hear the reasons for those objections—to sift the motives upon which they are urged— to adjudicate upon them, and to determine, according to the words of the statute, whether the objections be founded on "causeless prejudice or not." Is, then, a declaratory law necessary or not? I must be permitted to say, that after the most careful revision of the judgments that, have been given in the Auchterarder case, and after the best consideration that I could give to the subject, I have not 390 been able to find a single dictum of any judge which could induce me to question the opinion I have already given in the letter addressed by me to the moderator, on the matter of law as regulating the judicial power of Presbyteries, before the act of admission to a benefice is complete. My belief is, that by the law of Scotland, as it now stands, co-existent with the right of the patron to present, is the right of the people to object, and it is the paramount duly of the Church court to decide upon the objections, be they what, they may; and I do not find any trace or indication on the part of any of the Scotch judges, that the solemn judgment of the church court with reference to objections, such as, that the presentee was not well qualified, fit, or acceptable, would be set aside by the civil courts. The right hon. Gentleman spoke of a declaratory act to settle this question. The right hon. Gentleman said he was influenced in suggesting this by a passage in the memorial of the General Assembly which he read to the House. Now, considering the spirit which has been manifested by the General Assembly, I do not believe that any declaratory act of the kind would be satisfactory to them, because that body has declared, that any act of Parliament on the subject, passed without the consent of the Church would not be obeyed by them; nay more, that it would be "null and void." With an anxious desire to settle this question, I confess, that I almost despair of doing so by legislative means, after what has taken place. It appears, that it is now rather convenient to say, that the abolition of patronage is a secondary consideration. The grounds of objection which had been urged against, patronage were the same as those contained in the protest which proceeded from the General Assembly, and I had no reason to believe, until I received the answer to my letter from the General Assembly, that it had abated in the slightest degree from its former demands for the abolition of patronage. But, supposing the right of lay patronage were abolished, the difficulty would not be got rid of. The right hon. Gentleman says, that this is not a vested right; but I remember that in a former Session, the right hon. Gentleman said, that the right of presentation should be bought up, as it constituted a valuable property. No doubt, that the right of presentation can be 391 bought and sold in the market, and, therefore, it may be regarded as any other marketable property. It is impossible, therefore, that this property could be taken without compensation being made to the owners. But if this were done by statute, and you abolished the patronage belonging both to the Crown and lay proprietors, and determined to carry out the principle which, it is said, was embodied in the act of 1690, and gave the right to the people to elect their ministers, you would not escape from the difficulty. You would pass an act and say that the right of patronage for the future rested in the people; but it is quite clear that the same difficulty as at present would exist; for the nomination of the then patrons, though a popular body, might be set at nought by the Presbytery. I should like to know how the difficulty is got over, if a person elected by the popular voice were rejected in this way. I should like to know how we should escape from such contests as, unhappily, have recently occurred, by the mere abolition of patronage. When the presentee is found to be qualified, and when he has been elected by the popular voice, he becomes possessed of civil rights connected with the parish. He becomes possessed of the right to a stipend, and at the same time, the right to be put in possession of the manse. Now, suppose, that under some new veto law adopted by ecclesiastical authority, the Presbytery or Assembly refused to induct this presentee who had been elected by the majority. I ask, how, under the co-ordinate jurisdiction now claimed, is this new right to be determined? How is the presentee to proceed unless by endeavouring to seek a civil remedy in a court of law? I am sure, that the more the matter is debated, the clearer will it become that the interference of the Church with civil rights in defiance of the decision of the courts of law, and of the highest court of appeal, is as untenable in argument as it is contrary to every constitutional doctrine. The right hon. Gentleman complained, that her Majesty's Government had not legislated on the subject. I admit, that the right hon. Gentleman did not do so in terms of censure, but still he complained that the Government had not proposed any measure to the Legislature The right hon. Gentleman said, he thought it would be better that any proposition on this matter should 392 originate with the Executive Government, and that it should be responsible for the proceeding. As long as my colleagues and I entertained a hope, by a declaratory enactment, to remove doubts as to the limits and powers of the Church courts to reject presentees, and after it was hoped that the judgment of the House of Lords in the appeal on the Auchterarder case would remove some of the difficulties— while there was such a hope, her Majesty's Government were not indisposed to propose some legislative enactment. Even so lately as on the eve of the meeting of the last General Assembly it was not unwilling to bring forward a measure for this purpose; but after the General Assembly had passed the Address to her Majesty, and after the claim, declaration, and protest of the General Assembly, it became obvious to the Government that no such measure as it could consent to propose or sanction, would give contentment to the Church or the General Assembly in Scotland. The General Assembly asked the House to legislate on the matter. Now, I cannot understand the precise nature of the legislation which is required by that body. I listened with great attention to the speech of the right hon. Gentleman with the view of learning what kind of legislation would be satisfactory to the General Assembly. And here I would observe, that in point of form I could have objected to the present proceedings, as it is necessary that all matters touching religion should originate in a committee of the whole House; but I was anxious, if possible, to learn what was the nature of the legislation that was really desired by the Church. In the absence of the right hon. Gentleman a short time since, I asked the hon. Member for Leith whether he could inform me, if the House went into committee, what would be the nature of the measure which was to be proposed; but I did not obtain any satisfactory answer, nor have I been able to satisfy my mind on this essential point from the speech of the right hon. Gentleman. With reference to the abolition of patronage, it is impossible for any Member to introduce any bill on the subject, without the assent of the Crown being first stated to the House, as the rights of the Crown are deeply involved in the question; and entertaining the opinion which I do, it is impossible on my part to give my assent to such a measure. The right hon. Gentleman said, 393 that this and the other acts which he referred to had been passed purely for political purposes. Now, it is perfectly well known that when the Act of 1690 passed, which recognised Presbyterian Church Government in Scotland, the commissioner of King William had assented to the abolition of patronage. It was said that Melville, by conceding this point, lost the confidence of King William and was never restored to it, as it appeared that that sovereign attached the greatest importance to the retention of patronage. It is true that the Tory Government in the reign of Anne passed the act to which the right hon. Gentleman referred; but three years afterwards the house of Hanover came to the Throne. The Tory Government was removed and the Whig Government, was restored, but no attempt was made to rescind that act. I believe that Dalrymple, who was most strongly opposed to patronage, became the Lord Advocate under the Whig Government; but he made no attempt to get rid of that act. Indeed there is not the slightest intimation or notice on the journals of Parliament of any step having been taken on the subject. This matter appears to have been allowed. to remain at rest in Parliament and even in the Assembly there was only an annual protest against it, which protest was discontinued in 1784. For more than half a century after this the law of Scotland on this subject was obeyed without dispute or resistance, and the right of patronage was exercised with perfect confidence. In 1834 the question arose which led to the present unhappy conjuncture as regards the Church of Scotland. About that time a most able and learned judge—I mean Lord Moncrieff— declared in his evidence before a committee of the House of Commons, just before the Veto Act was brought forward, that he believed that of late years patronage had been exercised much more carefully than theretofore, and not only were the true interests of the people regarded, but care was taken that persons were appointed who were likely to be acceptable to them as ministers; but, at the same time, there was no denying that the force of public opinion acted much stronger than formerly as a check on the undue exercise of the right of patronage. I would ask whether this does not shew that any abuses which might formerly have existed, regarding patronage, have practically ceased? For my own part, after the best 394 consideration that I can give to the question, I am of opinion that the maintenance of patronage is necessary, and, as a Member of the Government, I cannot, on the part of the Crown, assent to any enactment intended to abolish the right. If, however, the right hon. Gentleman had been prepared to move resolutions and had announced his intention to do so in committee, and had stated the principles on which he intended to legislate, I should not have insisted on any objection in point of form; but after the speech of the right hon. Gentleman, seeing that the time has arrived when the opinion of the Legislature should be pronounced with respect to these pretensions of the Church of Scotland, and that it is desirable that all suspense on this matter should be removed, I think, on the whole, that I shall best consult my duty by resisting the motion. The Government is anxious to leave to the constituted authorities of the Church of Scotland the most undisputed and free exercise of its power as fixed and settled and ascertained by the law of Parliament. I do not believe a declaration of the law relating to the Church of Scotland to be necessary, and, as far as her Majesty's Government is concerned, and as I am at present advised, I do not think any measure which we could propose would be satisfactory. These pretensions of the Church of Scotland, as they now stand, of a co-ordinate jurisdiction, and the demand that the Government should by law recognise the right of the Church to determine, in doubtful cases, what is spiritual and what is civil, and thereby to adjudicate on matters involving rights of property, appear to me to rest on expectations and views so unjust and unreasonable, that the sooner they are extinguished the better. It cannot be supposed that any Government shall maintain in the statute book a law for the settlement of ministers in parishes, and allow the Church to make another law in direct opposition to it, and for the avowed purpose of defeating its provisions. Such a supposition can never be realised except in a country where law, order, equity, and common sense have ceased to reign.
was understood to say, that it was with reluctance he trespassed upon the House, and nothing but a strong sense of duty should induce him to address it. He was deeply impressed with a sense of the difficulty of the question, 395 and he considered that the question itself, and the principles on which it must necessarily be decided, related mainly to the law of Scotland, and to the principles of the Scottish constitution as laid down by Scottish statutes; law and principles very different in themselves, and in their application, from those with which Gentlemen, familiar only with English laws and the English constitution, were acquainted. There was one point in which he entirely agreed with the right hon. Baronet, namely, that it was impossible for the House to address itself to the consideration of this question in too calm and temperate a manner. Something might be gained if the matter were deliberated upon in a calm and conciliatory spirit; but certainly nothing but evil would result from allowing anything like acrimony or party spirit to be introduced into the discussion. He trusted he should be found to follow out the example so well set him in this respect by the right hon. Gentleman who had preceded him. He felt no difficulty as to the ground on which the contest itself stood. He considered, that the House had nothing to do with certain terms which had been made so much use of in the newspapers and elsewhere; he, for his part, should not even refer to the sacred matters which had been introduced; they were engaged simply in the consideration of a constitutional question—one of very great magnitude, no doubt, involving interests of a most complicated and important nature, but which must be considered altogether, with reference to the constitution, to the law of Scotland, in its letter and its spirit. In the first place, he would say this—the right hon. Baronet might regard it as a concession, he thought it none; he asked nothing for the Church of Scotland, he made no claim, he set up no pretension on its part, which, after due consideration of the constitution of Scotland, and of the statute law concerning the subject, should not be found justly to belong to that Church. But on considering what were the pretensions and the claims of that Church, he must premise that he quite agreed with the right hon. Gentleman near him in thinking, that they had some right to complain of the representations which had been made on that subject in the letter of the right hon. Baronet. He thought, that if the right hon. Baronet, instead of reading a certain passage from 396 a memorial which was not a memorial of the General Assembly of the Church of Scotland—instead of reading one particular passage—which passage, moreover, the right hon. Gentleman did not read in full—had turned his attention to the full explanatory statement which had been made by the special commission of the General Assembly in answer to the right hon. Baronet's letter, he would have been able to have put the House in possession of a more fair and more satisfactory statement of what really were the claims of the Scottish Church, than the right hon. Baronet had brought before the House. That these claims might, at first sight, appear to English Gentlemen of somewhat an extraordinary nature was not improbable; that the claims made by the Scottish Church, as to its peculiar judicature in that country, might be very different from any claims which could be made in this country by the Established Church, or might not, must not surprise hon. Gentlemen; but this was not the question at issue: nor must they judge the Scotch Church by the rights of the English Church. It was not the wisdom of the right hon. Baronet, or the wisdom of the present Parliament, or of that House, which was to settle the question as to its existing bearings. The question was, what was, in point of fact, the constitution of the Church of Scotland, as given to that Church by various statutes towards the end of the sixteenth and in the course of the seventeenth centuries. The expediency of what had been done was not the question. The question was, what had been done, and what was the actual state of the case? In Scotland there were no fewer than four jurisdictions, not adjudicating the same matters, adjudicating altogether different subjects; co-ordinate in that way, and to that extent, all of them being independent of each other, none of them in any degree submitting to the other, each of them being responsible to the State, for the exercise of its jurisdiction within its own province, but none of them being in the slightest degree subject to the control for anything done within its province to the other judicatories. He had observed the right hon. Baronet smile when he spoke of these different judicatories not adjudicating on the same matter, but such was simply the fact. The subject matter of the jurisdiction of these various tribunals were in 397 general well known and clearly defined, but not more distinct or better defined, than was the difference between what was ecclesiastical or spiritual—what was civil and what was criminal. There were questions, of course, which arising, say before a criminal court, ran on the verge of the distinction between what was a civil and what a criminal matter; and the cases might be such that even the best informed lawyer might find it very difficult to decide whether the subject matter was of a criminal nature, and as such ought to come before a criminal court only; or whether it was of a civil nature, and as such cognisable only by a civil court; but there were extreme cases in which a doubt arose as to which of the four jurisdictions was entitled to the adjudication. The point, so far, was whether or no the system was fairly useful and sufficient, for ordinary cases, and he had no hesitation in saying, that it was. At all events, it was clear, that the Church of Scotland had maintained the power, and the right to exercise that jurisdiction which she now claimed, for a very long period of time, dating back to the sixteenth century; that the other courts had never, till within the last few years, sought to interfere with the power of the Church in her spiritual management; that this system had worked harmoniously, without difficulty, the wheels going on in the smoothest possible manner, with the exception of one or two slight and accidental occurrences, there having been in no instance any general obstruction created till within the last few years. The question before the House was simply whether they should go into committee to consider the petition which had been laid before them; and whether they went into committee or not, the real question remained—whether the subject matter of this petition did not call in a most imperative manner for the consideration of the House. If the right hon. Baronet opposite thought that the course which had been pointed out was not such as ought to be supported, the right hon. Baronet should at least point out some other remedy; for assuredly neither the Government nor the House would be relieved from the responsibility of refusing to consider this deeply important subject by the off-hand manner in which the right hon. Baronet declared that the proposition made being altogether unsatisfactory, the 398 best way was simply for Parliament to adhere to the answer which Government had already given to the General Assembly. That was not the usual course pursued towards an important and constitutional body of men, coming before the House with a petition of this description. That petition was drawn up by the special commission of the General Assembly of the Church of Scotland — a commission admitted on all hands to be the legal organ of that Church, and the only parties who could speak in behalf of that Church. And this was what they complained of: they complained of certain decisions pronounced by the courts of law in Scotland; not of one or two decisions, merely affecting particular patrimonial interests, but of a long course of judgments; and he should have occasion before he sat down, not to go into details, but to let the House see what was the state of confusion worse confounded to which matters had come, in consequence of these judicial invasions of the constitution of the Church as settled by statute. It was impossible to shut their eyes to the really dangerous position in which matters now stood in Scotland; and what he said and should say was with no idea of menace, but with the view of bringing strongly before the House the propriety, and even the absolute necessity, of listening to the representations of the Assembly, and then if the right hon. Baronet did not approve of the proposition which would be made by the right hon. Gentleman near him, the right hon. Baronet could propose some other remedy. Certain it was, that for the prayer of the petitioners to be refused, more especially on the principle staled by the right hon. Baronet, would produce the most deplorable results. A schism would almost inevitably be created in Scotland which would never he cured—which would shake the respectability—which would destroy the utility, perhaps the very existence of that Church, and lead to consequences far beyond any that might now be anticipated. Let it not be imagined that the courts of law were coming out of this conflict with honour. He was sure he should always speak with respect of those tribunals before whom he practised, and with high personal regard of the judicial dignitaries who presided over them; but he must make the House acquainted with one fact, which, perhaps, they were not aware of, but which formed a most important and vital 399 part of the question. In consequence of the judicial decisions which had been made by the courts of law, interdicts, or, as they would be called in England, injunctions, had been pronounced in a multitude of cases, which subjected the parties to fine and imprisonment. These interdicts had not only not been enforced, but they had been treated by all parties with open disregard and contumely. They had been read in large assemblies, generally assemblies for public worship, and, having been read, were then torn into pieces, as a convincing and unequivocal mark of the utter contempt in which they were held by the persons against whom they had been issued; and the parties who had obtained the interdicts had not dared to have them enforced against the persons refusing to obey them. This had happened not once or twice, but in many cases. When he himself held the office of Lord Advocate, he was told that it was his duty to prosecute for such contempt as this, and the government to which he had belonged had been twitted in another place for not having undertaken such prosecutions. He had, however, conceived that it was not his duty to institute prosecutions in such cases, and he found his opinion corroborated by the conduct of his present successor in office, who, although these interdicts were now far more numerous than ever, and everywhere treated with utter contempt, had deemed it advisable to leave the consideration of the insulted tribunals to the parties who had obtained the interdicts not conceiving it necessary to step out of his way for the purpose of prosecuting those who resisted the interdicts. But it was to be observed that the contempt which was thus with impunity heaped upon these interdicts, had a most injurious effect in striking a serious blow at the character of the courts of justice, a consideration which he deemed to be one of great weight. It was undeniable, indeed, that anything which tended to bring the courts of law into disrepute was in the highest degree to be deprecated, and this afforded another strong reason why the petition of the special commission should be taken into consideration, with a view to a remedy. He had complained that the right hon. Baronet had not read the whole of the passage he had quoted, and the statement made by the special commission in answer to the right hon. Baronet's letter. Now, in 400 page 25 of the papers before the House there were these passages:The special commission still more deeply regret that her Majesty's Government should have characterised the claims of the Church, in regard to her spiritual jurisdiction, as pretensions founded on the assumption that the courts of law 'have no power to determine whether matters brought before them are within the scope of their authority, if, in the opinion of the Church, these matters involve any spiritual considerations; that neither sentences of courts, nor decrees of the House of Lords, nor even acts of Parliament, shall be effectual, if they interfere with the rights and privileges of the Church, of which interference, and of which spiritual considerations, the Church itself is to be the exclusive judge.' The Church has been exposed to this erroneous representation of the nature of her claims from quarters whence it is no matter of surprise that such misconstruction should have proceeded. She scarcely could have expected it at the hands of her Majesty's Government. The special commission most confidently assert that the Church has never put forward such pretensions; on the contrary, she has uniformly disclaimed any such power of absolute and exclusive determination so as to bind other courts, or fetter them in any way in the regulation of their own conduct, according to their own conscientious conviction, in regard to the matters which they may have to decide. She has always maintained, and she has rested much of her case upon the plea, that all the several supreme courts of the kingdom to which respectively belong the adjudication of matters civil, of matters criminal, of matters fiscal, and of matters ecclesiastical, do each of them possess, as of right, and must of necessity exercise, the powers of determining for themselves respectively, and for the guidance of their own conduct, whether the matters brought before them, and the proceedings to be adopted thereon, be within the scope of their peculiar jurisdiction; but on the other hand, that no one of these courts can authoritatively impose its opinions on the others; deprive them of the free, unfettered exercise of their judicial judgment, for the regulation of their conduct in matters coming before them; or coerce them in a course of procedure in such matters not in accordance with their own conscientious convictions, but in accordance with the views of that particular court which seeks authoratatively to impose its interpretation of the law upon the others.… … The Church, has indeed, protested against all sentences of courts and Acts of the Parliament of Britain,' in alteration of, or derogation to,' her rights and privileges, as settled at the Revolution, and secured by the treaty of Union. The ground of her protest is plain. When Scotland entered into a legislative union with England,—a nation whose voice in the united Parliament would be so overwhelming, and among whom a form of church government 401 was established, in resisting the imposition of which the people of Scotland, for several generations, had endured so much suffering— she naturally took the utmost possible precaution to avoid the risk of injury to the privileges and government of the Church, the fruits of a struggle so long continued and severe. This matter, therefore, was not allowed even to be treated of by the commissioners for the Union, but by an antecedent stipulation (embodied in a statute of the Parliament of Scotland, which was verbatim inserted in the Acts of the Parliaments of both kingdoms agreeing to the treaty), it was declared to be an ' essential and fundamental condition ' thereof, under the most solemn sanctions, that this settlement of the Church, with its government, discipline, right, and privileges, should be maintained inviolate, ' without alteration thereof, or derogation thereto, in any sort, for ever.' This matter was, therefore, excluded from the cognizance of the federal legislature, created by the treaty of union, and of course, from that of all its subordinate authorities; against any acts or sentences in derogation to the privileges and government so secured, the Church must continue to protest. But nevertheless she, as a kingdom not of this world, has no warrant to contend against the supreme power of the state in regard to its own functions, in relation to the establishment of the Church, however wrongfully she may deem them to be exercised; and therefore when the mind and will of the Legislature shall have been ascertained as to the conditions which they hold shall henceforth be deemed those of the establishment in Scotland, she will, doubtless, while protesting, bow to that power, and if she cannot fulfil the conditions, yield up the benefits and immunities therewith clogged.The true position of the question, then, was this, and he begged to draw the attention of the House to the point; the true position of the question was this: the Church maintained—We have an independent jurisdiction, supreme in itself, not under the control of any other jurisdiction, but subject only to the control of Parliament; and that jurisdiction extends to and embraces all things spiritual. The Court of Session of Scotland is also a supreme tribunal, independent, not to be controlled within its own province, responsible only to the State; that jurisdiction extends only to things civil. There is another tribunal the Court of Justiciary, independent, and responsible to no other authority but the State; and the jurisdiction of that court is over matters criminal. We claim for ourselves that we shall retain this separate and independent right over things spiritual, subject to no control but that of the State.He would avail himself for a moment of an important admission which had been 402 made by the right hon. Baronet in his letter. The right hon. Baronet said:—The Church court alone can create the pastoral relation between the presentee and his parish; or dissolve it when it has been created.It was admitted, then, that while these courts were exercising spiritual jurisdiction, they were not under the control of any other tribunal. It was admitted by the right hon. Baronet himself, that the matter under adjudicature in any case being ecclesiastical or spiritual, the jurisdiction of the Church courts within such their own province was complete, and not to be controlled by any other jurisdiction. The right hon. Baronet must continue to admit this, or no longer adhere to his letter. The Church was here discussing claims purely of a spiritual and ecclesiastical nature, not verging on disputed ground, not approaching a civil matter, as perhaps might be said of the Auchterarder patronage case. If the Church courts were even to commit a great injustice in treating an ecclesiastical or spiritual matter, if this befel within their own province they would still remain free from the control of any other tribunal, save the supreme power of Parliament. So, if the courts of justiciary, the criminal courts of Scotland, committed an injustice, however oppressive, yet still, if they kept within their own province, the wrong done could only be remedied by the state, and the same principle applied to the civil courts. But then came the question—a question, no doubt, attended with difficulties—how in such cases as the Auchterarder case, where the matter in dispute may approach to the nature of a mixed case, how shall we fix the line of demarcation, so as to decide at which court the case shall be tried, the civil court, or the Church court? In considering such a question, it was necessary to attend closely to the constitutution of the different courts, and in the event of the question being undecided, the only course would be, that each court, explicating its own jurisdiction, should adjudge the case as far as it related to its particular province only, and proceed thereafter with the case to those effects, which lay within its own jurisdiction, leaving it to the other court to come to a decision upon the other branch of the case, and deal with it in its effects depending thereupon, even though the conclusion upon it might be a different one. 403 He did not mean to say that it was the height of political wisdom to frame a constitution in which there was no court superintending and overruling the rest, except the court of Parliament: but the question was this—the Church courts and the civil courts in Scotland, being by old established law, each supreme and independent of the other, what right had the judges of the civil Courts to overrule, and defy, and destroy the church courts. The House of Commons would not submit its privileges to the courts of law. Parliament of course, held its privileges by law, but it would not submit its privileges to a court of law. Parliament said, "We are the exclusive judges of the matter, and we will not allow the courts of law, as interpreters of the statutes, to tell us whether the privileges we claim are or are not privileges; and we will judge for ourselves, and not allow the courts of law to interfere at all in the matter." And the view which the Church courts took of the matter was this: We have got by statute exclusive jurisdiction in all things spiritual; you the Court of Session have no jurisdiction in such matters; and, therefore, we claim to be left free and unfettered in our just jurisdiction. There could not be stronger language than that of the statutes which had conferred the jurisdiction on the Church Courts of Scotland. The act of 1567 said—The Kingis grace, with auise of my Lord Regent, and thre estates 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 manneris, and administratioun of holy sacramentis; and declaris that there is na other face of kirk, nor other face of religion, than is presentlie by the favour of God establishcheit within this realme; and that thair be no other jurisdictioun eclesiasticall acknawledgeit within this realme, other than the quhilk is and sal be within the same kirk, or that quhilk flows thairfrae concerning the premisses.That gave an exclusive spiritual jurisdiction to the Church, and gave it that jurisdiction to the exclusion of the civil courts. And the act concludes with a commission to certain Lords and Ministers,To seirche furth mair specialle, and to consider quhat other speciall points or clauses suld appertaine to the jurisdiction, privilege, and authoritie of the said kirk; and to declare their mindis thairanentis to my Lord Regent and the estates of this realm at the nixt Parliament.404 In 1592 another act was passed, cap. 116, which fully ratified and confirmed all the statutes made in favour of the Kirk,And specially the 1st Act of the Parliament halden at Edinburgh the 24th day of October, 1,500 four score and ane years, with the haill and particular acts therein mentioned, quhilk shall be as sufficient as gif the same were here exprest,There was here clearly, then, through the medium of the Act 1581, which was referred to, what is equivalent to an express ratification, and re-enactment of the statute 1592, of the Acts of 1567 and 1579, "Anent the jurisdiction of the Kirk," which were two of the particular acts mentioned in the Act 1581. The Act 1592, as was well known, fixed the Government of the Kirk by certain gradations of Church courts, and combined with the general ratification already alluded to, amounted, he stated on good authority, to a positive enactment that Church government should be absolute, and the church courts, exclusive, at least in all matters declared to be within the "jurisdiction of the Kirk," by the Acts 1567 and 1579, or any of the other statutes, expressly ratified and confirmed through the medium of the Act 1581, and the special ratification of it and all the statutes mentioned in it. This view was confirmed by other parts of the statute. It abrogated and annulled all statutes made at any time before,Against the liberty of the true Kirk jurisdiction and discipline thereof, as the samin is used and established within the realm;" and it declares, "that the Act 1584, c. 129, shall nowise be prejudicial nor derogate any thing to the privilege which God has given to the spiritual office-bearers in the Kirk, concerning heads of religion, matters of heresie, excommunication, collation, or deprivation of ministers, or ony siklike essential censures, speciallie grounded and having warrand in the word of God.These acts continued in force, the right hon. Baronet would observe, until the Act of 1662 was passed, by which Presbyterianism was abolished in Scotland, and prelacy established. Now, this recissory act, in the description which it gives of the powers which it repealed of the Presbyterian Church, fully confirmed the extent and importance of those powers. It states, after setting forth that the supremacy of the Church is in the King, thatHis Majesty, considering how necessary it is that all doubts and scruples which, from former acts or practices may occur to any concerning this sacred order, be cleared and 405 removed, both therefore of certain knowledge, and, with advice foresaid, rescind, cass and annul all acts of Parliament, by which the sole and only power and jurisdiction within the Church doth stand in the Church, and in the general, provincial, and Presbyterian assemblies and Kirk-sessions; and all acts of Parliament or council, which may be interpreted to have given any Church power, jurisdiction, or government to the office-bearers of the Church, their respective meetings, other than that which acknowledged a dependence upon, and subordination to the sovereign power of the King as supreme. And, particularly, his Majestie, with advice aforesaid, doth rescind and annul the first Act of the twelfth Parliament of King James VI., holden in the year one thousand five hundred and ninety-two, and declares the same and all the heads, clauses, and articles thereof void and null in all time coming.Now, that act annulled all the power of the Church; and, in annulling it, showed very clearly that all the power and jurisdiction within the Church doth stand in the Church, and in the Church exclusively. The Legislature of 1662 said, in effect by the recissory act that the Presbyterian Church had exclusively spiritual jurisdiction, and a new constitution was introduced to abolish it. In 1669, cap. 1, another statute was passed, by which it is declared that "his Majesty hath the supreme authority and supremacy over all persons," and following up the law for rescinding the Presbyterian constitution of the Church, vested all the supremacy in the Crown. Matters remained in this condition till the Revolution of 1688, when one of the first things which attracted the attention of the Scotch Parliament was to restore the Presbyterian Church. By the statute of 1689, cap. 3, prelacy was done away with, and the Presbyterian Church restored. The act of 1662 was rescinded, and then the Presbyterian Church became re-invested with all the privileges and powers it possessed before the act of 1662. The act of 1689 declared that the first act of the second Parliament of King Charles 2nd, entitledAn act asserting his Majesty's supremacy over all persons, and in all causes ecclesiastical, is inconsistent with the Church government now desired, and ought to be abrogat; therefore their Majesties, with the advice and consent of the estates of Parliament, do hereby abrogat, rescind, and annull the foresaid act, in its whole heads, articles, and clauses.By that act, the King's supremacy was especially annulled. The King was not 406 the head of the Scotch Church, and the supremacy of that Church rests not on the common law, but is plainly declared by the statute law. The King's supremacy was abolished by the act of 1689, and the supremacy of the Church restored. Then the act of 1690 annulled all the acts derogatory to the Protestant religion and Presbyterian government, and that act declared the whole jurisdiction to be within the Church and its courts. He contended, then, that the whole jurisdiction in ecclesiastical matters and all ecclesiastical judgments were contained within the Church, and all flowed from the Church. This excluded the jurisdiction of the Court of Session from all things ecclesiastical. He was not speaking of any individual case, but of the general jurisdiction of the Church. And what was the result, as now exhibited in Scotland, of the interference of the civil courts with the ecclesiastical jurisdiction. There were seven parishes of Scotland, in which the only man who could not baptize a child, preach a sermon, nor perform any pastoral functions whatever—the only man in those seven parishes who, it was impossible, could perform any ecclesiastical functions whatever, in consequence of the interdict of the civil judges—who could not preach, not only in the Church, nor even in the churchyard—the only man in each of those seven parishes who could not perform any ecclesiastical function whatever, was sent into those parishes expressly by the act of the General Assembly. Was not that a matter which required consideration? Could it be right that things were in that condition? Was that not monstrous Were not these circumstances which demanded the most careful consideration of the House of Commons? Were they not called upon to make themselves judges of this, and say what were the rights of the Church, and what were the rights of the civil courts? The House was called upon to step forward, and put an end to this state of unquestionable doubt and difficulty. They were not called upon to give judgment against the General Assembly, nor find the interdict of the civil courts erroneous. But the civil courts had taken it on themselves, he did not say whether they were right or wrong, to judge of the powers of the General Assembly. They had issued injunctions against ministers appointed by the assembly, and had inter- 407 fered with the discipline of the Church. They had suspended or interdicted ministers from performing the pastoral functions. They had interdicted Presbyteries from performing the functions of a spiritual court, and from receiving charges against pastors. In one case brought before a presbytery, they had taken on themselves to decide what were the duties of a presbytery, and had interdicted it from acting within its own jurisdiction. A case, for example, was brought before a presbytery, in which a clergyman was accused of gross immorality, and even of crime; the presbytery took cognizance of the case, but the civil courts had interfered, and had interdicted the parties from carrying the case to a conclusion. The presbytery finding the pastor guilty of a spiritual offence, pronounced on him a sentence of deprivation; but the civil courts had rescinded the sentence. The civil courts, therefore, were not satisfied with exercising a civil jurisdiction—they had interfered with the discipline of the Church; and matters which were purely spiritual and ecclesiastical. Though the Church deprived a man of his spiritual character, the civil court said he should baptise, preach, and administer the sacrament—the Church shall have no jurisdiction in the matter; and the man it has deprived shall perform his spiritual functions in spite of the decree of the Church. They acted, he thought, still more adversely to the rights of the Church, for they enabled the minority of a presbytery to overrule the majority. The whole question in dispute was one case of conflicting jurisdiction; and Lord Cunning-hame had carried his power so far, that he rescinded the acts of the General Assembly. The consequence of this dispute, and of the civil courts sustaining those ministers whom the Church deposed was, that one clergyman might live in the manse, might draw his stipend, might cultivate his glebe, but he could not perform any ecclesiastical act; and another appointed by the General Assembly, had no power whatever. This conflict between the civil courts and the General Assembly could not be continued without great danger to the Church, nor without painful consequences to the country. It was that question of the general jurisdiction which he asked the House to consider, and which the clergy of Scotland came before the House, not with the language of 408 menace, but respectfully to tell the House, that if this confusion of jurisdiction continued, if their ecclesiastical and spiritual powers were trampled down, if they remained suspended from fulfilling their duties, it would inflict great hardships on individuals, and cause great injury to the State. They applied to Parliament not to undo what had been done, but to remedy the existing evils, and provide against the future recurrence of similar evils. The line of demarcation between the civil and ecclesiastical powers was not distinctly drawn; and if the Parliament should act as the Government acted—if it did nothing to satisfy the wishes of the clergy, he was afraid that a schism would ensue, and be extremely injurious. The clergy applied to Parliament, and it was the duty of Parliament to settle this question of disputed jurisdiction. He trusted that the House would take a wiser course than the Government, and take the question into its consideration, by granting the committee moved for by his right hon. Friend. There was another question besides that of general jurisdiction—the question of non-intrusion—which demanded a different remedy. It was stated by the right hon. Baronet, that on this point the General Assembly was the aggressor, and that it ought to have recalled the Veto Act. But the right hon. Gentleman appeared to forget the circumstances under which the Veto Act was passed. It was passed with the approbation of the law officers of the Crown belonging to the Government of 1833 and 1834. It was passed with the full consent of the legal advisers of the Crown, and it received the assent of the Lord Chancellor of that time, who said, as it was introduced by Lord Moncrieff, and adopted as the only mode of saving patronage at all, that it ought to be sustained. In fact, the Veto Act was proposed in order to stop the growing clamours against patronage, and Lord Moncrieff brought it forward with the assent of the Government, as a just and satisfactory measure to all parties. It was acted on, too, for some years with the best effect, and in its results was not unsatisfactory to lay patrons, so far as it bound the presbytery to take a presentee on his trials. Then came the case of Auchterarder. The general question of jurisdiction was mixed with that, and the civil courts decided against the Veto Act. 409 The Lords confirmed the decision of the Court of Session, and by their confirmation the operation of the Veto Act was suspended. He was not the adviser of the Church, but if he had been, he should have advised the Church then to recall the Veto Act, after the judgment of the Lords. He thought it would have been better for the Church then to have done so. It was not necessary to give up its jurisdiction; but for the sake of harmony, and taking into consideration the state of things in Scotland as well as the decisions of the courts, it would have been better for the Church to have recalled the Veto Act. The question had a spiritual aspect, and it had also a temporal aspect. [An hon. Member: What do you say to the Strathbogie case?] That was a case altogether wide of the present question. The Strathbogie case rested on different grounds. The only question there was, whether the presbytery had overstepped its duty. The question before the House, however, was not whether one or the other party had overstepped the line of its duty, but there being this conflict, between the Church and the Court of Session, would the Legislature interfere to prevent the consequence, which would be most calamitous? As to the intemperate language which was used on one side and the other, he could not allow that to weigh in the scale, nor would he decide which was the more intemperate. In the Strathbogie case, the question was as to the power of the presbytery, and he did not mean to say that it had been discreetly exercised, but it was exercised as that House exercised its privileges, without reference to the court of law. The presbytery thought it had the power to carry its own decrees into effect, just as the Court of Chancery exercised its own jurisdiction, and would not allow that to be questioned by the courts of law. That House would not allow its privileges to be questioned by those courts, and it had lately sent men to prison, and kept them there till they were attenuated, who had only carried out the decrees of those courts. The presbytery, in like manner, had only carried out its own jurisdiction. As to the question which party was the aggressor, he would not enter on it; but he would say, and he said it though he knew he should meet the judges in court in a day or two, that the language used on the bench had done much to exasperate the evil. The clergy had been spoken of, 410 by one of the judges, as "rebels and thimble-riggers," as playing the game of "odds I win, even you lose." He would not name the judge, but he said, with extreme pain, that language of that kind had tended much to embarrass the question. He did not say which party was right or wrong, but when it was considered that the church of Scotland consisted of laymen, together with the clergy, the question whether the General Assembly deserved all the reproaches cast on it must remain subject to great doubt. If the House followed the course of the right hon. Gentleman, and gave no relief—no hope—the result would be that the people would be as little satisfied as the clergy. He would say one word on the Earl of Aberdeen's bill. He would not state that that bill was of a nature to settle the question, and he should always object to any measure which increased the power of the clergy, but it told well for the clergy that Lord Aberdeen's bill gave them a considerable power which they did not before possess. But they refused that measure, though it increased the power vested in the Church, because it did not admit of the principle for which they contended, of popular election. They showed their sincerity, he thought, by rejecting the Earl of Aberdeen's bill. The clergy objected to the measure, though conciliation would have been for their advantage. But they chose to expose themselves to great disasters, and their families to great hardships, in order to take their stand on a principle. They would not give up their character—they would not sacrifice what they thought was the truth —they decided against the measure because it contained no popular concession, and were prepared to take the consequences on their own heads. He agreed with the right hon. Baronet that it was impossible to overrate the importance of the question now before the House; and the House perhaps would wonder less at the great powers, ecclesiastical and spiritual, which the Parliament of Scotland had conferred on the General Assembly, when he stated that it was composed of clergy and laity, the latter being two fifths, and the former three-fifths of the whole body. It was not the Scotch clergy, but the Scotch Church, consisting of both lay and spiritual persons, that was endowed with these large powers and entrusted with these important duties. As to the clergy, 411 he would say that they maintained an appearance of great respectability on very slender stipends; they were admitted to the society of the great, and they lived in harmony with the poor; they dispensed charity as well as religious instruction; and had won the admiration and affection of the people. He trusted, that this question would be so settled as to retain those excellent men within the Church, and so settled as to give satisfaction to the people of Scotland.
§ Mr. Colquhoun
trusted that before entering into the argument he might be permitted to make one remark applicable to the able and temperate speech of the right hon. and learned Gentleman who had just sat down. The question now was not which party had been the aggressor in this contest. All should now endeavour to forget whatever of intemperance might have been exhibited on either side of the question. If, by entering into the committee now asked for, anything could be done to stay the progress of that schism which all must deplore, he thought he might answer for both sides of the House that the motion would at once be acceded to. He feared that the main point of the controversy was not exactly as the right hon. and learned Gentleman had stated it. He wished it were, and that the Assembly had had the right hon. and learned Gentleman for their adviser. The right hon. and learned Gentleman, in discussing the question of non-intrusion, had alluded to the bill of Lord Aberdeen. Would the House permit him to state what was the doctrine of the Church on the question of non-intrusion? It was, that let the qualification of a presentee be what it might, if the will of the congregation were expressed against him, it would be an absolute bar to his appointment, and the Church courts would consider it a sin and a crime to intrude such presentee. Now, unless the House were prepared to recognize that conclusion, it was plain that the committee would be of little use. He asked the House were they prepared to adopt that doctrine. He had always thought it inconsistent with the principles of the Church of Scotland, and he asked the House whether they would take the fluctuating and temporary opinions of the day, or the recorded and stereotyped opinion of the constitution of the country. The right hon. and learned Gentleman had said that if the congregation objected it was a bar to the presentee. What said the Book of Disci- 412 pline on the subject? It said that if a man's doctrine was found to be sound—if he was able to instruct the people, and that the Church had nothing to allege against his life or doctrine, the congregation should be compelled to receive him. The same principle was laid down in 1649, at a time when the Church was left entirely to its own guidance; and then it was enacted that if a presentee were opposed through causeless prejudice, that man should be placed in the parish. Also, in the Act of 1690, it was expressly stated that it was not enough for the congregation to say they would not have the presentee, but should give their reasons, and if the Church did not approve of those reasons she was to overrule them and place the man. What said the bill of Lord Aberdeen? It stated that the Church was to be left free to judge of objections. The only difficulty he (Mr. Colquhoun) had found with respect to the bill of Lord Aberdeen was that it did not, in his opinion, sufficiently give the Church courts the power of judging, which they ought to have. He thought that in a case when a presentee did not edify the people, the Church courts would not have sufficient power under the bill to set him aside. But a proposal was made and sanctioned by the Government, giving ample powers to the Church courts to reject any man against whom reasons should be assigned, provided these courts could say on their consciences that it was not for the edification of the parish that such persons should be placed in it. In his opinion no offer could be fairer or more liberal. He would not then enter upon the grounds on which the bill was rejected, but he must deplore that the offer to which he had alluded had not been accepted, as he believed that its acceptance would have put an end to the controversy. He could not help thinking that there were vast numbers in the country who, if they understood it would have accepted the proposal. He believed that many were uninformed on the subject. Indeed, on one occasion, his excellent Friend, Sir G. Sinclair, to whom the Church of Scotland was so deeply indebted, having been reproached by some clergymen for deserting the Church, ascertained that they had never read his correspondence on the subject. He would now mention a case which would show to the House the injustice of the principle of the Veto Act. In 1839 he had recommended a gentleman, Mr. Mackintosh, to the patron of the parish of 413 Daviot, in Inverness-shire. He afterwards ascertained that the presentation was in the hands of the Government, who presented, but a local cabal, without cause assigned, rejected the presentation, and substituted a Mr. Cook, and this in spite of a special clause in the Veto Act against caballing or conspiracy. He thought the House would never accede to an act which permitted such injustice. The next important question was that of jurisdiction. On that point the doctrine held by the Church courts was, that an act, which could only be done by a particular court, must of necessity be within the exclusive jurisdiction of that court, and that court must be free from the interference of any other tribunal. They then went on to say that the refusal of a congregation to admit was a portion of their jurisdiction. They admitted that such doctrine did not agree with the municipal law, but that the matter in question was not a civil act. In 1592, when the basis of the constitution of the Church was established, a compromise was effected between the Church and the State. The Church wanted to get rid of patronage, and the State would not agree to that, and accordingly a compromise was effected, binding the Church courts to take a man on his trials, and, on these trials, to pass judgment upon him. If the veto had been repealed, as had been recommended, these unhappy difficulties would never have arisen. He had strenuously advised Dr. Chalmers in Edinburgh, and Dr. Buchanan in Glasgow, to repeal the veto; and he regretted that they did not follow his advice. This was in 1840. But since then the claims set up by the non-intrusion party in the Church had gone very great lengths. Dr. Candlish claimed the entire control over the presentee as a spiritual matter. On these grounds he was not prepared to concede the claims of the Scotch Church. But at the same time he readily admitted that the probable consequences of refusing concession were of a very grave nature. If there were any means of preventing the expected schism, he would willingly see them adopted, and he did not think it was yet too late for his right hon. Friend to bring in a measure on the basis of that of 1841, or that it would be unacceptible to many of the ministers of the Church of Scotland. He did not think it would stop secession from the Church, and he feared that those clergymen who were among its brightest ornaments would be among the number—his 414 illustrious friend Dr. Chalmers, for instance, and Dr. Candlish, who certainly would not accept such a measure; but still he was of opinion that several earnest and honest-minded men would be glad to adopt it. If the offer made to these clergymen in 1841 had been made fifteen years ago, he was satisfied that there was not one of them but would have accepted it with thankfulness. He, therefore, entreated them, before they entered on the course of agitation which was certainly injurious to the Church, while it was so doubtful as regarded themselves, to pause in the course they were pursuing.
§ Mr. P. M. Stewart
said, that the vast importance of the question before the House must be his apology for venturing to address it at this late hour. He sympathised deeply in the accumulated trials of the Church of Scotland. Bishop Leighton, he believed it was, had said, "that he would scarcely have planted Christianity itself at the cost of the sad sufferings of the Presbyterian Church," and these trials were not yet over. But there was one trial characteristic of the present crisis, which was among the sharpest to endure —he meant that of her past friends and supporters being now, in this dark hour of need, her fiercest opponents. If there was one man in this House more than another whom he (Mr. Stewart) could have expected to appear as her zealons and able advocate, it was the hon. Member who had just sat down (Mr. Colquhoun); but who, from being one of her warmest friends had now taken up the position of her greatest foes. Comparing the sentiments published by that hon. Gentleman at the last election, with those he had avowed to-night, he could scarcely believe in the identity of the candidate for Kilmarnock in 1841 and the hon. Member for Newcastle-under-lyme in 1843. What said the hon. Gentleman in his published address?—I have felt it my duty (said he) to maintain the great institutions of my country, those especially which secure to us our religious rights, the best foundation of civil liberty. Of those institutions one of primary importance is the established Church of Scotland, which long required extension, and has been recently exposed to danger. I have felt it right to demand her extension, and maintain her integrity. I will support her at this crisis in her just and reasonable claims to the independent jurisdiction and the rights possessed by her people in the appointment of her ministers, which I find 415 recorded in her Constitution, and of which no aw must be suffered to deprive her.In his Address to the electors of Port-Glasgow, on the 24th of June, 1841, the hon. Gentleman said—It had been widely whispered at Kilmarnock, that he would not stand by the Established Church. He would say that to both the Established Churches of the United Kingdom he was warmly attached. In regard to that of Scotland, he would be a party to no compromise of principle, and would oppose any measure calculated to interfere with her independence in spiritual matters. From whatever quarter she might be assailed he would be her defender. He had written a pamphlet, pointing out the injurious consequences that would result from the passing of such a measure as that proposed by Lord Aberdeen. Of the Duke of Argyll's bill he highly approved, and should give it, or any measure of the same kind, his warmest support.The hon. Gentleman had blamed the majority of the General Assembly for having, in a great degree, produced the present crisis, by not having repealed the Veto Act immediately after the Auchterarder case was decided. He (Mr. Stewart) on the contrary, applauded them for not having done so, because, by so doing, they would have appeared to abandon that principle which it embodied, and because the decision of the House of Lords in that case had swept away every other mode in which they could have embodied the non-intrusion principle. The hon. Member who spoke last had alluded to the correspondence published by Sir George Sinclair. Now, in looking over that correspondence, he found a letter to Sir George, by" a Conservative M.P.," in which the following passage occurred:—In vain you ask me for an opinion on your letter on the Scottish Church question: I vow to God I cannot understand it, with its veto-ism, its Presbyteries, its elders, its General Assemblies, its Commissions, its lay patronage, and I cannot pronounce upon them. I have no memory for them, nor does any one with whom I hold intercourse know or care a single straw about the matter—but for its being so managed or mismanaged as to have caused a loss to the Conservatives of half a score of seats at the last election—and much do I grieve to hear your own is one. The whole question addles my brain.He adduced this testimony for the purpose of seriously entreating those in that House who did not understand the question, to abstain altogether from voting. 416 Since the time of the Union no question had affected Scotland so deeply from one end to the other; and no wonder, for the Church of their Reformation was involved in the decision which would be pronounced to-night, This was no party question, but a momentous national question, which involved the peace of Scotland and the good faith of England. It was difficult to argue a Presbyterian question before Episcopalians. The Reformation stamped the difference which continued till the present day between the two churches established in these realms. The Reformation in England emanated from the monarch in some degree against the will of the people, and the Anglican church had from that time assumed a monarchical character. In Scotland the Reformation emanated from the conviction of the people, in opposition to the will of the sovereign, and therefore assumed a republican character. He trusted English Gentlemen would bear that in mind, and then they would be likely to arrive at a more just and safe conclusion. Knowing these facts, it was with some surprise that in another place he heard a noble and learned Lord, a late Chancellor of Ireland (Lord Campbell), himself the son of a Scottish clergyman, speak as if he had forgotten that at the English reformation the King assumed to himself the power of appointing and presiding in ecclesiastical courts, in which all cases were adjudicated which formerly were appealed to the Pope in Rome; but that in Scotland the case was diametrically opposite—no power was reserved to the Crown in things ecclesiastical—all power in such matters being vested exclusively in Church courts. As an exemplification of the difference on the subject, he would only mention that in England Sir T. More lost his head for denying the spiritual headship of the monarch—while in Scotland Sir A. Bruce was ejected from the Parliament met to settle the Act of Security, merely because he was suspected of a leaning towards an acknowledgment of an earthly head. Scotland then contended for the standards of her Church—she did the same now. She contended for nothing more than her standards as confirmed by act of Parliament, and secured by solemn treaties. The two principles for which she had assumed her present attitude were non-intrusion and ecclesiastical independence; and 417 both of these principles were distinctly laid down in her standards. What said the first book of her discipline?It appertaineth to the people and to every congregation to elect its own minister, and no minister shall be intruded contrary to their will.That was the standard of the Church, and the same spirit ran through the whole, otherwise they would not have been put forth so boldly, and referred to so generally, and so distinctly, as they had been of late, and without contradiction. The Scotch reformers went to the primitive church for a model upon which to construct their own, and they had brought forth a very perfect constitution, for they produced a constitution which equally provided against clerical domination and popular disorder. As authorities for the assertion that the Scotch reformers had taken the primitive church for their model, the hon. Gentleman quoted Beza, Cyprian, the Bishop of Carthage, Pope Gregory, who was chosen by the whole Roman people, Gibbon, and Adam Smith. Father Paul, the Historian of the Council of Trent says—As to the manner of electing ministers, a person not known was never received, nor could a bishop even ordain those of whom the people did not approve." Gibbon says, "The freedom of election existed long after the establishment of Christianity, and the people of Rome enjoyed in the Church the privilege which they had lost in the Republic of choosing the magistrates whom they were bound to deny. It was every where admitted as a fundamental maxim of religious policy, that no bishop could be imposed on an orthodox Church without the consent of its members." And Adam Smith says, "In the ancient constitution of the Christian Church, the bishop of each diocese was elected by the joint votes of the clergy, and of the people of the episcopal city.The right hon. Baronet the Secretary for the Home Department had quoted from the Confession of Faith, but he had only quoted to suit his own views. Had he gone on a few passages further, he would have found it laid down that synods and councils were to dispose of all things ecclesiastical. He would have found that it appointed a government of Church courts for ecclesiastical matters wholly separate from the civil magistrate. Many hon. Members would recollect that the learned Selden had an argument upon this subject of Erastianism with a young Scottish clergyman named Gillespie. Selden argued 418 for three hours; he was answered by Gillespie in a speech of an hour, and at its close Selden said —" That hour's speech had knocked clown the learning of a life." The right hon. Baronet the Secretary of State for the Home Department led him to expect great things, for he said that this question was to be judged of on the principles of the Union. In claiming the rights of the Scotch Church they desired nothing more than this. He would ask the House to consider the nature of the oath taken by the Sovereign on accession to the Throne of this realm, as prescribed by the act of security and union. The Sovereign took and subscribed an oath to maintain and preserve inviolate the settlement made under the treaty of union as to the government, rights, and privileges of the Scottish Church. The real question before the House he considered to be this—whether the Church was to be entitled to claim the benefit of the settlement made by the treaty of union, or whether she was to be subjected to what is commonly called the act of Queen Anne? The treaty of union was, in fact, the act of Queen Anne, as much as it was the act of Bolingbroke: but the question was, to which of these acts was the Church to be subjected? He could refer the House to the opinions of several eminent men in condemnation of the justice of the act of Anne Lockhart of Carnworth, a secret friend of the banished family of Stuart, said it was wished, by the introduction of patronage, to restore episcopacy in Scotland, and to undermine the Protestant succession; and similar opinions had also been expressed by Smollett, Dreg-horn, Lord Prestongrange, and Andrew Crosby. He wished to call attention to the fact that, with respect to patronage, the patrons in Scotland had received not only the purchase, but the price. In 1649, when patronage was abolished, the tithes of the parishes were given to the patrons, in lieu of the patronage. On the restoration of Charles 2nd patronage was restored, and the tithes were refunded by the patrons. In 1690, when patronage was again abolished, the tithes were again made over to the patrons, and they received, besides in a few instances, a payment in money; but in 1712, when patronage was restored, there was no refunding of the price which had been paid for its abolition, so that at this moment the 419 patrons possessed, not merely the price, but the purchase itself. He made this assertion on the authority of the acts of Parliament 1649, 1662, 1690, and 1712, and also on the authority of President Dundas, who drew up a statement on the subject; and on evidence before committee in 1834. The right hon. Baronet had said that no authorities had been adduced showing the character and real design of the act of Queen Anne. He (Mr. Stewart) had quoted several, and begged, in addition to them, to refer the right hon. Gentleman to the authority of Sir Walter Scott, who stated that,The restoration of lay patronage in Queen Anne's time was designed to separate the ministers of the Kirk from the people, and to render them more dependent on the nobility and gentry, amongst whom, much more than the common people, the sentiments of Jacobitism predominated;And Bishop Burnet confirms this powerfully, quoting the Act of Security and Union. He says,After that an act was brought in for restoring patronage. It was set up by Presbyterians from the first, as a principle, that parishes had a right to choose their ministers, so that they had always looked on patronage as an invasion. It was urged that by act of Union, Presbytery, with all its rights and privileges, was ' unalterably ' secured. Yet the bill passed through both Houses. By these steps the Presbyterians were alarmed when they saw in the success of every motion that was made, a design to weaken, and undermine their Establishment.It was not, he conceived, surprising that a great hatred of the system of patronage existed in Scotland, where about nine-tenths of the dissenters had seceded from the Church on the ground of its existence. In proof of the extent to which anti-patronage opinions had gained ground in the General Assembly, he would state the numbers who had voted against the system of patronage at several distinct periods during the last ten years. In 1832 there were no votes recorded against the system; in 1833, there were 32; in 1836, 60; in 1841, 149; and in 1842, 216,—there being, during the last year, a majority of 69 against the system of patronage. At the conclusion of the right hon. Baronet's celebrated letter, which he did not consider a very judicious production, it was stated that the Church of Scotland asked for the absolute abrogation of the civil lights of patronage with respect 420 to the Crown and other patrons. He thought, however, it was manifest that a settlement short of that would satisfy the Church. Then why not allow the Veto-law? If they described the jurisdiction of the courts and allowed the Veto-law, the whole question might be settled, and the unfortunate results which seemed to be impending avoided. The Veto-law was in action for four years, 200 presentations had taken place under it, not above ten or twelve ministers were rejected, and those had been provided for in other places, excepting only the cases introduced into civil courts. Such was the working of the measure that every patron in Scotland had blessed it for the effects it was producing, and the Auchterarder case, the source of all our present difficulties, and which perhaps involved as unfortunate an exercise of patronage as ever was attempted, was not pursued either at the desire, or at the cost of the noble, patron himself. Other parties, having no interest in the parish, were the authors of the mischief. Why not therefore allow the Veto-law? Why be afraid of a principle in the Presbyterian Church of Scotland which already is in full and unrestricted force in the Presbyterian Church of Ireland? The right hon. Baronet, says, "But that church is not endowed." What! Has he forgotten the Regium Donum—gradually increased from 14,000l. to 36,000l. within the last ten years? Yet the Presbyterian Church of Ireland enjoys every privilege for which the Church of Scotland is now striving. Let not the House be blind to the consequences of the decision they might come to. Petitions had been presented that evening, showing that upwards of 500 of the principal men in the Church of Scotland would secede unless her claims were granted to the Church. The Earl of Aberdeen, when advocating, in 1840, the second reading of that bill which Lord Chancellor Cottenham said the Church of Scotland did themselves infinite honour by not accepting, had in the strongest terms, urged Lord Mel bourne not to delay taking some steps to remedy the evil and settle these unhappy disputes; and yet now, when the evil was much aggravated it appeared they were to have no remedy whatever. With respect to the meeting of the Convocation on 17th November last, an eye-witness stated that nearly 500 ministers had come together, consisting of all the talent, with 421 few exceptions, and all the piety with still fewer exceptions, of the Church of Scotland, who, coming from the remotest parts at that season of the year, must be considered as forming such an assembly as never had met before; and they came to resolutions that, sooner than protract the struggle, and embroil the country, the whole 500 would secede. He trusted the Government would not be misled by what he had heard stated elsewhere—that the people of Scotland would approve of their declared determination to let the law take its course, and not to interfere. Never was there a more unfounded assertion made, and Government and the Legislature should be on their guard against such uninformed informants. The people of Scotland were deeply and painfully interested in this vital question. They now watched with intense anxiety the decision of the Legislature, for on that must depend, whether the religious citizens of Scotland were to sing for joy—" The snare is broken, and we are escaped;" or whether they were" to hang up their harps on the willows, and weep for their Zion." "Now it comes," were the last words of the great Scotch Reformer, when death approached; and such, he feared, must now be the sigh of the Presbyterian heart, in contemplating our Church as an Establishment. "But do not let me be misunderstood," said Mr. Stewart;" it is asserted by one of Our greatest writers, that ' the body and the soul may be so proportioned, that one can endure all that can be inflicted upon the other; that virtue can stand its ground as long as life; and that a soul well constituted, will sooner be separated than subdued,' and so it is with the church of my fathers. You can separate, but you cannot subdue her. She was a Church, as the right hon. Baronet stated, before you adopted her as an Establishment, and you solemnly engaged to preserve to her all her then existing privileges. Scotland now claims the fulfilment of the Treaty, and nothing more. If you are tired of the bargain, break it off, by taking back your temporalities, and by leaving our Church unshaken in her eternal principles of perfect Spiritual freedom. But, O, beware of the consequences in these days, especially when the wisest among you seem to discern many symptoms of religious revolution at large, and seriously consider whether it be not the part of wisdom, as well 422 as of justice, to grant to us, the Presbyterians of Scotland, our undeniable claims, and thus, in doing justice to our Church, you will do that which must prove for the good of your own Church, and for the safety, honour, and welfare of our Sovereign and her dominions."
§ Debate adjourned.