HL Deb 17 July 1843 vol 70 cc1202-6

On the motion of the Earl of Aberdeen, the Church of Scotland Benefices Bill was read a third time.

Lord Cottenham

moved the amendment of which he had given notice, to omit in the first clause the word "declared," so as to render it merely an enacting measure. The declaratory word to which he objected, stated that to be the law of Scotland which was not in fact the law.

The Lord Chancellor

considered it a very extraordinary circumstance that the noble and learned Lord had never discussed the bill on its merits. The object of the bill was to put an end to disputes and discussions on points of form. It had been said that this bill was an encroachment upon the rights of patrons; but he denied it. On the contrary, the bill would place the rights of patrons on a better foundation than ever. He hoped, for the sake of putting an end to the agitation in the Scottish Church, their Lordships would pass the bill. There could be no doubt that the congregation had a right to object to the presentee, and that the presbytery had a right to decide upon that objection. That had been the general opinion as long as he could remember. He believed there was no foundation whatever for the objections of his noble and learned Friend, and he, therefore, felt compelled to oppose the amendment.

Lord Campbell

supported the amendment. The noble and learned Lord appeared to think that this measure would introduce harmony, contentment, and happiness among the Members of the Church of Scotland, whereas it was his opinion that it would produce discord and discontent, and would do great prejudice to that venerable establishment. He felt it his duty to declare solemnly his opinion of the measure which would injure the establishment in England as well as Scotland, and instead of making the latter more popular and more respected, it would make a church which had heretofore been that of the whole population, the Church only of the minority, and induce those consequences which had been seen in another part of the United Kingdom. All he could at present do was in the most solemn manner to protest against the measure, and wash his hands from all participation in it.

The Earl of Aberdeen

said, that when three years ago he had introduced this measure, the noble and learned Lord then on the Woolsack (Lord Cottenham) although opposing the bill, had never hinted that it contravened the judgment in the Auchterarder case, and consequently he had not thought the measure open to such an objection. He was surprised that the noble and learned Lord should lately, for the first time, have started it. It could not be supposed that any political object was connected with the measure. He had the consolation of knowing that the unmitigable opposition of the noble and learned Lords had greatly commended the measure to the people of Scotland. When the measure was first introduced, he had heard comparatively but little of it; but since the opposition of the noble and learned Lords, he had received, from all parts of Scotland, letters of encouragement and approbation. Although he did not expect that the bill would bring back those Members who had already seceded from the Church, some of whom had returned, he felt certain that it would retain in the Church those who were waiting until the bill should pass into law. He contended that, if the opinions of the noble and learned Lords were acted upon, the Church of Scotland would be disestablished. Every precaution, he thought, was taken in the bill to ensure a conscientious and honest judgment being given by the presbytery. As to the apprehensions which the noble and learned Lord entertained with respect to the ecclesiastical tyranny which he thought would grow out of the measure, he confessed that he did not share them. Practically, nothing new was ordained in the bill; its principles had now been acted on for ten years, and had received the sanction of a law of the Assembly. If any presbytery should exceed its powers and reject a presentee on the ground of any objections not personal to the candidate or relating to his Ministerial gifts, the civil courts would give a remedy. In the present state of the Church, he was unwilling to anticipate the fate of that portion of it which had not seceded, but he hoped that the wise and moderate course pursued by the late General Assembly would preserve the Church from those evils which would follow on any increase of the secession. The noble and learned Lord asked who approved of this bill; but he rejoiced to know that it had the sanction of one of the most active and distinguished leaders of the Church (Dr. Cook), and that 400 other ministers had signified their approbation of it. He could not but express a sanguine hope that, supported as the bill was by the General Assembly, unanimously, and by the presbyteries, in only one of which had there been any disapprobation of the bill expressed, and then only by an individual, it would confer a signal benefit on the Church of Scotland.

The Marquess of Breadalbane

, taking great interest in the religious question which had so much agitated Scotland, and being intimately acquainted with the sentiments of the people of that country in relation to it, should hardly think that he discharged his duty if he did not rise in his place and declare, that he conceived noble Lords to have fallen into a very gross error, if they supposed this bill could have the least tendency to allay irritation and pacify the Church of Scotland, or to satisfy the Presbyterians of that country. Even if it had been calculated to do good, the time for it was gone —the occasion was already past; it was too late to attempt remedies after the evil had been permitted to take its course. As a Presbyterian, he had thought it his duty to secede from the Established Church, and having done so, the bill could have no personal effect on him, or on those who thought with him. They were of opinion, that the course taken by the Government in imposing conditions on the Church was hostile to the fundamental principles of its constitution; and, therefore, 500 ministers with 1,000,000 of the people of Scotland, had thought it their duty to secede from the Established Church. As one of the patrons of churches in Scotland, he felt bound to protest against the bill on general grounds, because he conceived it to be a direct transfer of the patronage of Scotland from those who held it to the Church, placing an irresponsible power in that body. Could there be a greater clerical domination than would now exist under this bill? It was not a measure constructed on the principle of non-intrusion, to enact that no minister should be appointed to a parish contrary to the will of the people, but to enact that no one should be appointed contrary to the will of the Pres- bytery. He maintained that to be the real effect of the bill, and, therefore, he should certainly give it his most determined opposition.

Lord Cottenham

said, noble Lords had entirely omitted to discuss the only question before the House, whether the word "declared" should stand, and the measure should or should not be one of enactment. By the act of the General Assembly in 1833, which the noble Earl told them was the foundation of this bill, the rights of the patrons were quite as much invaded, as by the Veto Act. The act of 1833 gave power to the people to object to a presentee on any general ground, not confined to his ministerial qualifications, and to the Presbytery to judge of the objection, and to reject him if they thought him unfit; so that, in fact, any objections might be made, and any judgment pronounced on them. The Auchterarder case decided that the rights of patrons should be respected, and if they were violated, it was immaterial whether the Veto Act, or the act of 1833 was made the instrument of doing so. If that act were valid, the General Assembly might, in fact, repeal an act of Parliament; because the act of Anne secured the rights of patrons, and the Assembly's act of 1833, with the resolutions of I843, destroyed those rights. Was the House to be asked to pass this bill merely because the General Assembly in 1833 had thought it proper to pass an act transferring the right of patronage from the patrons to the Presbytery? If their Lordships rejected his amendment, then the question would be put on the bill passing, and he should move that the debate be adjourned to that day three months, merely to record his opinion that the bill should not pass.

Amendment negatived.

Lord Cottenham

moved to omit words from the second clause, giving the Presbytery power to have regard to the whole circumstances and condition of the parish to the spiritual welfare and edification of the people, and to the character and number of persons by whom the objections shall be referred.

Amendment negatived.

In the fifth clause, the noble and learned Lord moved to add a proviso, reserving to the presentee objected to, "all remedies now competent by application to the civil courts'.

Amendment negatived.

On the question, that the bill do pass,

Lord Cottenham moved, that the debate be adjourned to that day three months.

Amendment negatived.

Bill passed.

Their Lordships adjourned.

The following Protest was entered against the Third Reading.


"1. Because the bill, so far as it professes to be declaratory, declares to be law, that which is not now the law of Scotland.

"2. Because the bill, so far as it professes to be enactive, contains provisions which confer undue power upon the Church courts, and are derogatory to existing rights of patrons.



ZETLAND, for the 2nd reason,

LYTTLETON, for the 1st reason,


MONTEAGLE, of Brandon,



Additional reasons by the Marquess of Breadalbane:—

"Because this act interferes with the concerns of the Church in a way that is inconsistent with its spiritual independence; it being unconstitutional for the Legislature to make any alteration in the government and discipline of the Church, or to prescribe the forms of the procedure of its courts, without the co-operation and sanction of the Church itself. "Because it is a fundamental principle of the Church of Scotland, that no minister be intruded on a parish contrary to the will of the congregation; whereas, by the present bill, this principle is wholly set aside, and another, viz., that no minister be appointed to a parish contrary to the will of the Presbytery and other Church Courts, is established in its place, thus subverting an essential article of the Presbyterian Church.

"Because by this act, both the Crown and lay patronage will be substantially transferred into the hands of the Presbyterians of the Church, thus creating an ecclesiastical domination, subversive of the principles of civil liberty, and wholly repugnant to the principles of the Presbyterian Church.