HL Deb 03 May 1841 vol 57 cc1377-92
Lord Dunfermline

had been requested to present a petition from the seven suspended Ministers of the Presbytery of Strathbogie, praying their Lordships "to apply such a remedy as in their wisdom the present emergency seemed to require;" and in rising pursuant to notice to do so he felt bound to lay before the House a brief statement of the facts of this case, the conduct which they had pursued, the manner in which they had been treated, and subsequently the persecutions to which they had been exposed. It would be familiar to most of their Lordships that in 1834 the General Assembly of the Church of Scotland passed a measure which has since been known by the name of the Veto Act, and by which the right—the absolute, unrestricted, unrestrained right—of dissent was given to the male heads of families in communion with the Church in the appointment of a minister to a vacant parish. They would also be well aware that Mr. Edwards had been presented to the parish of Marnoch, in, the presbytery of Strathbogie, to whose appointment these parishioners had objected; and that the Presbytery, acting in the first instance in obedience to the Veto law, and the wishes of the General Assembly had refused to take Mr. Edwards upon his trials. Mr. Edwards obtained a judgment against the petitioners who had rejected him, directing the presbytery, after trial and examination, to admit Mr. Edwards, if found qualified, as presentee to the church and parish of Marnoch. In consequence of this decree, Mr. Edwards called upon the Presbytery to perform the statutory duty, which it had been found was incumbent upon the members of Presbyteries of the Established Church, in terms of statutes of the realm. The petitioners held themseles bound, as ministers and members of Presbytery, to obey that decree of the Supreme Court; and they conscientiously believed, that all members and all ministers of the Established Church must perform the obligation imposed upon church courts by statute. Having intimated their intention to obey this decree, the Commission of the General Assembly, upon the 11th of December last, proceeded to suspend them from the office of the holy ministry, and from the exercise of any of their functions as members of Presbytery, expressly on the ground that such intention to give effect to the decree of the Supreme Civil Court was contumacy against the authority of the Established Church, and must be treated and punished as such by the ecclesiastical courts. The petitioners hoped that they would not be exposed to consequences and to punishments so severe and deplorable, because they were willing to obey the law. If they thought that their vows of obedience to the Established Church, and their duty as ministers and members of the same, were inconsistent with their duty as subjects, they would at once withdraw from the church of their fathers; for, as ministers of the gospel, they could not place themselves in rebellion against the law, and they could not understand how obedience to a judgment of the House of Lords and of the supreme tribunals of the country could be inconsistent with their duty as members of the church established by law, or contumacy against a church whose authority in regard to the settlement of ministers in the parishes of the establishment was that which statutes have recognized and ratified. They submitted that this state of things, which might also soon occur in many other cases, required the interposition of the legislature, by whose statutes the duties on presbyteries of the Established Church of Scotland were imposed. They therefore prayed their Lordships To take the premises into consideration, to apply such legislative remedy as the nature of the case requires, and to pass some statute by which the petitioners, who are acting in obedience to a decree of the Supreme Court, may be protected in the discharge of their statutory duty, and the church courts be restrained from punishing or depriving parties of offices held under the laws of the country for obeying the decree of the supreme courts which gives effect to the statutes of the realm. He felt it to be his duty to bring this subject under the consideration of their Lordships, that assembly being a proper tribunal to apply to when any injustice was committed, either with reference to a clergyman or to a layman. It was necessary for the peace of Scotland, that the course which had been pursued by the commission of the General Assembly should be arrested; because if it were persevered in, it could produce no other result than that of placing Scotland in a state of the utmost embarrassment. It might be said, that some objection lay against this course of proceeding, on a point of form, connected with proceedings now pending in the Scottish court. No person could respect more than he did proceedings in those courts; and if it could be clearly proved that such was the fact, he would give way to that representation. But he did not believe that in this case any such objection could be fairly taken. He wished to place the case on a broad and extended ground. This was not a mere question between individuals. It was a great public question, and must be decided by competent authority. Those who were now struggling for supremacy in the Church had taken an extreme course in suspending these petitioners. And what did the petitioners pray for? They called' on their Lordships to relieve them from that severe and continued persecution with which they were assailed, merely because they paid prompt obedience to the laws of their country. The act of 1834 invaded the rights of property as to Church patronage, and when it came under the consideration of the Scottish courts was held by them to be invalid. Their Lordships' House arrived at the same conclusion, having affirmed the decree of the Court of Session. The resolution of the General Assembly of the Church of Scotland was, as their Lordships well knew, opposed in all respects to the derision of the courts of law in Scotland. It was to this effect:— The Assembly while acknowledging the exclusive jurisdiction of the civil courts in all that related to the civil rights of the Church, yet asserted that the Lord Jesus Christ was the only spiritual head of the Church; that the General Assembly derived no authority from the civil magistrate; that their jurisdiction was founded upon the word of God, who was their only spiritual King and Governor, Their spiritual jurisdiction and authority so received they were prepared to defend, and assert, by the blessing of God, at all hazards; that they had determined finally to enforce the submission of the office-bearers and members of the Church of Scotland, over whom they would exercise the ecclesiastical authority with which they were invested. Here was a distinct claim for independence. Here was a straightforward declaration that they did not recognise the authority of the civil court. The question between the Church and the nation had then been appealed to their Lordships. They had affirmed the decision of the Court of Session, and the point at issue was thus settled by the supreme tribunal both of England and Scotland. The whole facts of the case proved, that the General Assembly were the aggressors. They had, in the first place, done wrong by passing an illegal act, and they had aggravated and increased that wrong by meeting the judgment of the civil court by the resolution which he had read. So, throughout the whole affair the Church had been the aggressor. The anxiety of these unfortunate petitioners to obey the wishes of the Church Courts had been sufficiently shown by their having originally acted in accordance with the provisions of the Veto Act, and in their having refused to take Mr. Edwards on his trials. But the law of the land, expressed by the voice of the civil court, had told them that they must examine that gentleman, and the interdict commanding them so to do was but a repetition of the words of the Act of Parliament which had passed in the reign of Queen Anne. This injunction they had obeyed, and in consequence of this act of obedience by the civil court, they had been taken before the commissioners of the assembly, who had said to them, "You have obeyed the orders of the civil courts, and therefore you shall be suspended." Could there, he asked, be a more decided act of resistance? The commissioner had proceeded, and had preferred against them an indictment, which had led to their deposition. Now, in that indictment—he stated this boldly without fear of contradiction—there was not a single act of these gentlemen mentioned for which they had not had the authority of the civil courts. These facts were all admitted, and nothing now remained but that the General Assembly should pronounce the formal sentence of deposition against them. He was afraid that he should do injustice to these petitioners if he did not call their Lordships' attention to some other points in this case. He wished to draw their attention to what would be the effect of pronouncing this sentence of deposition. As he read the Act of 1592, these benefices would be declared vacant, and the patrons deprived of their patronage. Was it not, he would ask, under the Act of 1592, open to the heritors in every one of these parishes to say to the minister—" If the Courts of Session suspend you from your legal right, I will not pay you one farthing of your stipend?" Those seven gentlemen, therefore, might be called upon to bring actions against he could not say how many heritors to recover their stipends. The Crown was patron of one of these benefices, and these churches being declared vacant in consequence of the deposition of these individuals, what would his noble Friend do? Would he sustain or abandon the presentee of the Crown? His noble Friend might say, that he would not interfere; but he most be permitted to say, that such a resolution could only endure for a very short time. How would his noble Friend act? If he abandoned the presentee of the Crown he would side with the Church, but, at any rate, under these circumstances, he could not maintain a position of neutrality. Let this collision between the Church and State go on, and the litigation which would arise would be most harassing and ruinous to those clergy of the Scotch Church that were disposed to obey the law. Here there was another view in which the question might be viewed well worthy of attention. He would ask the House what hopes they could entertain that justice would be properly administered in the Church Courts of Scotland whilst matters remained in this condition of conflict between the civil and ecclesiastical law? The General Assembly was now about to meet under difficult and trying circumstances. A periodical, which was the organ of the dominant Church party, speaking on this subject, said— The Assembly will meet under trying circumstances. One of two things must happen—the ministers who have been suspended must be deposed, or the Church of Scotland must be deposed. What would be the conduct of the members of that Assembly when they were convened, of course he could not say. He could only hope that they would evince a spirit more in accordance with the law. He now came to the most painful part of the question, because he must call his noble Friend's attention to the grounds on which he thought the members of the Church of Scotland were entitled to entertain serious doubts whether they could receive that support from the Government to which they were justly entitled. He should have thought that the suspension of the ministers was a fact so astounding, that any Government would have thought it important to have examined the whole subject, and would have felt that it was a duty to have come to some conclusion. At least he ought to have gone to this extent—to the extent of declaring as his decided opinion, that he would enter upon no negotiations, that he would admit no preliminary, nor proposition, until the law was obeyed. This, he could inform his noble Friend, was the general opinion of supporters of the Government in Scotland; and he must be permitted to add, that the general impression in that country was, that all the Government patronage and favour had been conferred on those who had actively opposed the law. He thought that the Assembly, composed as it partly was, of men of retired habits, and who lived almost out of the world, should receive some unequivocal declarations of the intentions of the Government to encourage it to do its duty, and obey the law. He thought, that under the circumstances, the time had come when something should be done. It might be said, that "we will wait until the Assembly meets." Could any man wish that by such an assurance, either from his noble Friend or the House, the Assembly should be induced to take the one last and desperate step? He, therefore, asked his noble Friend, why he did not at once give some firm and specific assurance which should operate so as to encourage them to support the law? He did not think that the authority of the Government was so weakened amongst those who opposed the law—if its voice were strongly and clearly expressed—as not to have a great effect in their deliberations. If his noble Friend said, that he would wait, he could only infer, that if certain steps were taken, he would then interfere. Would it not be better to prevent now than to punish hereafter? Why not interfere now? It was not a case of private right, but a great public question; and he would ask his noble Friend why the defence of that public question and the vindication of the law should be cast on these unfortunate individuals? The Lord Advocate was the person on whom ought to devolve the duty of maintaining the public interest, and enforcing obedience to the law. He felt every confidence that his learned Friend, if intrusted with that duty—though the report should be true, that he favoured the views of the dominant party in the Church—would execute the law efficiently and vigorously. Under all the circumstances, he did earnestly hope that his noble Friend would be in a condition to say, that he had now made up his mind to give a firm and decided answer—that he was prepared, in the event of the Assembly taking strong measures against these individuals, to say that he would sustain them and assert the law—that he would do what he could to restore order in this state of disorder—that that which had been guaranteed should be applied, and that there should be no means used to defeat the intentions of the State in making these endowments. The noble Lord concluded by moving for a copy of the libel (or charge) preferred by the General Assembly against the seven ministers.

The Duke of Argyle

was glad that this discussion had taken place, because it would probably lead to a settlement of the question; and, when it was settled, he was sure that it could only be settled in conformity with the rights and privileges of the Church of Scotland.

Viscount Melbourne

—My Lords, my noble Friend in presenting this petition has entered into a most able and elaborate history of the differences between the General Assembly and the Courts of Law in Scotland. He has expressed a very strong opinion on the subject—an opinion upon which I do not mean to say whether I agree to it or not. Certainly upon that part of his statement it is not necessary for me to make any observations. My noble Friend has well stated, that it is not a question of a private nature—that it is not a question between patron and presentee—between those gentlemen and the rights which they claim; but it is unquestionably a great collision between two bodies in the State—a great collision between the ecclesiastical and high legal authorities in Scotland. In contests of this nature the part which I should always take is perfectly clear; but, at the same time, it is unnecessary for me to declare it on the present occasion. But when my noble Friend requires me to state distinctly that it is the full and entire intention of the Government to maintain and support the law—to maintain civil rights—I cannot have any hesitation whatever—I cannot have any doubt in giving him that assurance and making that declaration in as decided terms and in as firm a manner as it can possibly be made; but when my noble Friend goes further and asks me, provided the General Assembly takes those measures against these gentlemen which are apprehended in the petition, whether I would then introduce a legislative measure to settle the question, upon that point I must be understood to give no answer. In a constitution such as ours—a constitution composed of many bodies —of many powers—of many different and separate jurisdictions, it is unquestionably in the highest degree necessary that those powers and jurisdictions should each be confined within its own proper sphere of action, and restrained to its own proper limits. But it will happen sometime that one breaks out of bounds, and contentions will arise between bodies in the State with respect to the limits of their jurisdiction as to matters over which they have authority. From these the greatest inconvenience necessarily must arise, and I have no doubt that my noble Friend stated to your Lordships correctly the inconvenience which may arise from the difference between the authorities in Scotland; but, when an inconvenience of this kind arises, it does not necessarily follow that the Government must immediately interfere, and that the legislative power must immediately be called into action to put an end to such a state of things, if is the duty of the Government to consider whether the inconvenience is greater or lesser than the inconvenience which would arise from making an alteration in the frame of the constitution, and in the jurisdictions of the respective authorities. Therefore, in the course of last Session, I was not willing to concur in the bill of my noble Friend opposite (the Earl of Aberdeen), which went, to a considerable degree, to affect the rights of patrons; nor do I think, on the reading of this present petition, or in anticipation of any conduct of the Assembly, which perhaps may not follow, that I am called upon to say, that I will introduce a measure which must necessarily affect that which has hitherto been considered to be the rights, privileges, and authorities, of the General Assembly. I say, therefore, that neither on the one side nor on the other am I prepared to alter the constitution of the Church of Scotland. That is a very serious matter, indeed, my Lords. My noble Friend opposite by his bill unquestionably intended to make an alteration in the right of patrons, and any measure which must be necessary to redress the wrongs inflicted on these gentlemen must necessarily effect an alteration in the constitution of the General Assembly. I am not prepared to pledge myself to a measure of that kind at the present moment. I do not see my way in the question, and I am not prepared to say, until I see ray way, whether I would rather bear the inconvenience which arises from the present state of things than bind myself to a step which I do not see whither it may lead me, nor to what advantge it may conduct me. My noble Friend has observed on the conduct of the Government in the whole affair; and he has brought some charges against us, which he will forgive me for saying I do not think are of a very serious character. He says, that when the General Assembly proceeded to violent measures against these Ministers we should have broken off all communication with it. The Church knew as clearly as it possibly could, that we disapproved of that conduct; that we thought the claims were erroneous; but that, if they were right in the claims which they put forward, they were unquestionably wrong in the manner in which they sought to enforce them. I do not see, that any benefit could have arisen from the course suggested by my noble Friend; that of breaking off all communication with the Assembly. I do not see what would have been the advantage of that course. Perhaps it would have only increased their violence, and perhaps they would have said, "We are utterly neglected by the Government, and we have therefore nothing to do but to follow our own course." My noble Friend has also said, that the stream of patronage of the Government has been directed to those who held the opinions of the dominant party in the Church. I do not know much myself about the patronage of Scotland. It is not very large; it is not, perhaps, of any very great importance; and possibly the persons who may have been preferred may have held these opinions; but I apprehend that it was not on account of those opinions, that they were so preferred, and therefore I should think that those who appointed them were not aware of the opinions which they held on the subject. Unquestionably we will maintain and support the law, but really I do not see my way sufficiently in the question to enable me to hold out any prospect of the introduction of a legislative measure for altering the law.

The Earl of Aberdeen

said, that having last year presented some petitions, and having also sought to legislate upon this subject, he felt it necessary to make a few observations. The noble Lord who had presented a petition that evening had stated the case so clearly, and pressed it so strongly on the attention of her Majesty's Government, that little remained for him to say. The hardship of which the petitioners complained had been greatly aggravated since last year, and every year must add to the cruelty and injustice which they suffered. The whole offence charged against them was their obedience to the law as laid down, not only by the Court of Session, but by their Lordships' House. The noble Viscount had said, that he would not undertake to give any opinion on the conflicting judgments of the courts of law and the General Assembly. But would the noble Viscount give him leave to ask whether the House of Lords was to be the supreme interpreter of the law of the land in matters of appeal or not? It was not the judgment of the Court of Session alone, but a judgment pronounced upon appeal by their Lordships, for their compliance with which these unfortunate men were persecuted. They had waited until compelled by legal proceedings; they had done nothing except under constraint, and at a period when, if they had disobeyed, they would render themselves liable to pecuniary damages or personal confinement. And to this their Lordships had reduced them, for no other crime except their obedience to that which they had proclaimed to be law. The noble Viscount Said, that he would maintain the law, but would not interfere between these different constituted authorities. What did the noble Viscount mean by maintaining the law? How could he maintain it but by giving it effect? Had the noble Viscount any doubt of what the law was? The dominant party in the General Assembly maintained that the decision of their Lordships' House was illegal, unconstitutional, and in violation of their privileges, derived from the supreme head of their Church. Were their Lordships prepared to admit this? Were they prepared to stultify themselves by consenting to have the judgment, which they had so pronounced, quashed by any authority within these realms? It was a question whether, if the General Assembly acted in contravention of the authority of Parliament, they did not cease altogether to have any legal existence. The state had imposed certain conditions on the Scottish Church, and one of these was to admit all qualified persons presented to benefices. Were they to be permitted to deny the obligation under which they existed as an establishment? The General Assembly had endeavoured to justify themselves by a reference to the Confession of Faith, the only recognized standard of the Church of Scotland. They talked of their second book of Discipline, and pretended to support the claims therein contained by a reference to the Confession of Faith. Now, the latter was embodied in an act of Parliament, and they had a right to refer to it as their guide. But, although their second book of Discipline unquestionably formed the foundation of the Act of Parliament, by which they were constituted in 1592, yet the act specifically excluded these claims on which they now relied as forming part of the Confession of Faith; for in that very act patronage was excepted. The state expressly excluded those parts which gave this patronage to the presbytery. In reply to an observation which had fallen from the noble Viscount (Viscount Melbourne), he would read an extract from the Confession of Faith, showing that the civil magistrate was not excluded, but desired to interfere, in a state of affairs precisely analogous to that which now exists. The noble Earl read as follows:— But he (the civil magistrate) hath authority, and it is his duty, to take order that unity and peace prevail in the Church, that the worship of God be kept pure and entire, that all blasphemy and heresy be suppressed, that abuses of worship and discipline be prevented, and all the ordinances of God duly administered and maintained; and for the better effecting thereof that a certain number of singers be present thereat, and see that all things are done according to the word of God. The authority of the Church was therefore not exclusive, even in spiritual matters. The Church could no more alter a single particle in the Confession of Faith than could any individual, without the consent of the Legislature. A violent collision had taken place, and the utmost confusion and disorder existed. He would not call it rebellion, because men were accustomed to connect with rebellion acts of violence; but it was not the faults of many of these reverend gentlemen that others were not in open rebellion, and with arms in their hands too, against the execution of the law, through the inflammatory and seditious harangues with which they had excited the whole country against the decisions of the courts. And this was the state of things which the noble Viscount said, he could afford to allow to go on a little longer. In the observations which fell from the noble Viscount about the distribution of the Government patronage in Scotland, he supposed that the noble Viscount alluded, not to the clerkships and other civil offices, but to appointments in the church. When last this subject was mentioned in the House, he saw a direct proof of complicity on the part of the Government with some of the most violent of the majority of the Assembly. It was thought that it would be highly beneficial to the University of Edinburgh to establish a certain professorship, and a Gentleman was named. It was subsequently discovered, however, that this gentleman was one of the prime agitators of the present question, and one who, he should have thought would have been the last to be chosen. It was also discovered that this individual had been guilty of a decided breach of the law, for he called an inter diet pronounced by the proper tribunal a part of the law of the land. And what had the noble Marquess done? He suspended the appointment, but instead of appointing some other individual, he said that he would exercise his own discretion. Did he mean to say, that there were not fifty other persons qualified to fill the office, and in all respects unobjectionable? It was, therefore, either a job created for this person's especial advantage, or the noble Marquess was bound to fill up the vacancy according to the exigencies of the public service. Would the noble Lord consent to allow the judgments of that House to be set at nought by the majority of the General Assembly? He held the conduct of her Majesty's Government to be most disingenuous in not stating their opinion of the conduct pursued by the majority of the General Assembly, while he I would affirm without hesitation his belief that the views of not a single Minister differed in this respect from his own. He held then, that they were bound to give their moral support to the cause of peace and order by a declaration more specific than that which the noble Viscount had made. The noble Viscount would forgive him for saying, that the course which he was r pursuing was not worthy of him. The noble Viscount would acquit him of approaching this subject with any party motive; and he implored the noble Viscount to interpose with some well-armed measure in so disastrous a state of things, to prevent the arrival of a still more disastrous crisis. He hoped that it was not too late for the Government to turn their minds to this subject. They must sooner or later grapple with the question of what was to be done to support the judgments of the courts und of that House. An alteration of the law would not dispose of that difficulty.

The Marquess of Normanby

said, he thought his noble Friend near him had given the only answer that could be expected, or that any one hail a right to expect. His noble Friend had stated his determination to uphold the law. The noble Earl wanted to know what he meant. Its meaning he thought was simple enough. The noble Earl carefully avoided stating what was specifically to be done, and he could not expect his noble Friend to pledge himself specifically as to what he would do in the event of the General Assembly taking any particular course. The General Assembly would either keep within their powers or exceed them. In the former case they could only be checked by legislation—in the latter there were civil courts to appeal to. The noble Earl had said, that the stream of Government patronage in Scotland had flowed towards those who had thus violated the law. Now with respect to church patronage in Scotland, it had been the habit of the Crown before he took the seals of his present office, to issue a leet to select a candidate, and with respect to the persons put on the leet no one was put on because he was of non-intrusion principles. His noble Friend near him might, perhaps, say he had been misinformed or deceived, but he had reason to believe from those on whom he relied that, this was not the case, and that whilst perhaps no person had been excluded from the leet on account of his principles, still that the patronage should not be bestowed in favour of those who violated the law. The noble Earl had alluded to Mr. Candlish's case. After all that had been said before, he was somewhat surprised that his case was now revived. He had never said, that it was "necessary" to establish the professorship, but when a vacancy arose he thought it a good opportunity of carrying out the recommendation of a commission that had sat seven years back, but on consideration he did not think, looking at the state the Scotch Church was now in, that it was a favour- able moment to create a new professorship so intimately connected with the doctrines and practice of that Church.

Viscount Melville

said, that it was in the power of the Government to direct the Lord-Advocate to take steps to protect those seven ministers in their benefices. The General Assembly had no power or process by which to carry out their decrees. If the seven ministers refused to quit their glebes, all that the church authorities could do would be to go to the sheriff—not authoritatively, not calling upon him as a ministerial officer to assist them with the civil process—but by humble petition, craving his aid in his judicial capacity. This, however, it would be rather dangerous for the sheriff to exert, and he would probably hesitate to stir in the matter. He hoped that Government would reconsider their course. At any rate, if the General Assembly proceeded to deposition, it would be the duty of the Government to interfere forthwith, and not to allow these seven ministers to incur the ruinous expense of defending their causes in the courts, but direct the Lord Advocate to interfere to protect them.

The Earl of Roden

said, that when the noble and learned Lord described the whole stream of Government patronage as having flowed to those persons to whom he referred, he (the Earl of Roden) thought he pronounced the highest compliment to the Ministry that they had ever received. The observations of the noble and learned Lord on the eminent persons whom he had attacked were in his (the Earl of Roden's) opinion far too strong. He was convinced the General Assembly were only doing what they conceived to be their duty.

The Earl of Haddington

knowing the influence which the noble Earl bad in Ireland, hoped he would suspend his opinion till he had made himself fully acquainted with the history of what had taken place in Scotland. He knew the high respectability of the Ulster Presbyterians, but there was a great difference between their case and that of the Scotch Presbyterians. In Ireland they were Dissenters, and might feel they had some right to expect that no one should nominate their ministers; but in Scotland they were part of the Established Church. He wished now to make an observation on the subject of leets. He thought there never was a device more calculated to sow dissention in the country and in the Church than the practice which had been commenced by Lord Grey's Government of issuing leets on the occasion of vacancies in the Church of Scotland. It had given rise to canvassing by sermons and other discreditable practices. With respect to Mr. Candlish he was extremely happy to hear from his noble Friend opposite that it was not the intention of Government to fill up the appointment which they had intended for that Gentleman. If their Lordships desired to show their regard for the Church of Scotland, and their desire to add to its efficiency as a useful religious establishment, they would do all in their power to prevent the misfortune which would ensue should the General Assembly make another declaration in opposition to the decision of the Court of Session.

Petition laid on the Table. Motion for a copy of the charge against the seven Ministers agreed to.