HL Deb 09 May 1843 vol 69 cc12-22
Lord Campbell

rose, pursuant to notice, to present a petition relative to the Church of Scotland, which he had deferred from Friday last to this day, at the request of the Marquess of Breadalbane. The petition was from members elected to the General Assembly indicted to meet at Edinburgh on the 18th of May current, and it prayed for the adoption of measures to render nugatory the illegal proceedings occasioned by quoad sacra ministers and elders having been elected members of the Assembly. Their Lordships' attention had just now been directed to the distracted state of Ireland, and he regretted that it was his painful duty to call upon them to listen to an account, that of the distracted state of another portion of the empire— he meant Scotland—as regarded the Church of that country. After briefly adverting to the government of the Church of Scotland the noble and learned Lord said, a plan had been lately adopted by the Church of making new parishes, and permitting the incumbents of those new parishes, who were called quoad sacra ministers, to vote for deputies to the General Assembly. Their right to act in this way was contested and decided against by the court of law in Scotland; but an appeal to their Lordships was lodged, and the petitioners who signed the petition he had to present to their Lordships complained of the purpose for which that appeal was instituted, and of the manner in which it was conducted. After the decision of the court in Scotland these quoad sacra ministers voted for deputies to the General Assembly, under the plea that their right was not definitely decided against, as an appeal had been instituted; and as many as thirty-four of them, he believed, were elected deputies; and this done, immediately after the elections the appeal was withdrawn. The petitioners stated that they were assured that these quoad sacra ministers, being thus elected, meant to claim their right to sit and vote in the General Assembly; and that thereby a colourable majority might be obtained to destroy the constitution of the Church of Scotland, and for passing a vote which it was said was to be proposed for separating the Church entirely from the State. The petitioners prayed the House to guard against so great an evil by some legislative enactment, After great consideration he thought that no legislative enactment was expedient or necessary. He could not believe that after the solemn decision of the Supreme Court in Scotland, these quoad sacra ministers would present themselves as members of the General Assembly, in defiance of the law. But, if they should present themselves, it was his firm belief that they would not be permitted to sit. The Lord High Commissioner, representing Her Majesty in the General Assembly, would not continue at an assembly where the law was set at defiance. He placed confidence in the prudence of the people of Scotland, and he thought there was reason to believe that the danger which was threatening might pass away without legislative interference. In the leaders of the party he placed no confidence whatever. He trusted, however, they would yet see the error of their ways and cease from further urging on their deluded followers. If they did so, he had some hope that those whom they were trying to mislead would, upon reflection, become satisfied that there was no ground for the step which they were seeking to have adopted. All that the House of Lords had determined was, that the Presbytery were bound to make trial of the person presented to a living by the undoubted patron. That House had decided that, and nothing more; so that if the Presbytery were of opinion that the person so presented was deficient in literature or morality, or had some personal defect, he might still be rejected. No one ever thought of encroaching on that power, which most undoubtedly belonged to the ecclesiastical courts. Where, then, was the ground of grievance? or why should a power be now asked for the Church which it never enjoyed, and which his noble and learned Friends said it ought not to enjoy? What was inducing members of the Church to leave it on all sides, notwithstanding the willingness which had been expressed to confer new powers upon them, instead of depriving them of powers they had hitherto enjoyed? He was disposed to make concessions, but the question was, in what shape they should be made? He could not say that he concurred in those proposed by the bill of the noble Earl opposite, which gave, in his mind, a dangerous power of check to the Church. He would prefer seeing that check conferred upon the people. The language used upon this subject was most appalling. Those who had eagerly supported the Establishment, had expressed themselves hostile to all voluntary churches, and shown a great antipathy to Dissenters, were now, not only determined to leave the Church themselves, but, as far as their power extended, to utterly overturn and subvert it. In that object, however, he did not think they would receive much support. It was said, that they were required to obey their ecclesiastical superiors in all things, but such was not the fact; they were obliged to do so only in the case of all lawful commands. Suppose the General Assembly should come to a resolution that patronage was to be abolished, or that the oath of allegiance was to be dispensed with, or that all should be deposed who did not contribute to the Non-intrusion fund—was it to be said that such an act of the Assembly would be binding, or that those who had taken an oath to obey their ecclesiastical superiors would be under the necessity of obeying that law? No such thing. The first pledge of the minister was to be true to the Establishment. That was the first and most binding oath which the minister made at the time of his ordination. It was, besides, declared by an act of the Assembly that no one could, under the pretence of zeal for the doctrines of the Church, seek to alter or subvert its discipline. With regard to the convocation which took place last November, he condemned it as unconstitutional and unwise. A great number of well-meaning, but not very enlightened, ministers in the country were inveigled to that meeting by great names, and were there told, as he believed, that, if they entered into the pledge proposed, the Government would be frightened, and must succumb, and that there was no danger of any secession whatever. The pledge was given, and they were held to it by being told that, if they departed from it, they would be covered with infamy in this world, and doomed to everlasting sufferings in the next. He hoped those men would reconsider the course they had pursued, and that they would recollect that they were bound to the Established Church as it now existed, and that great injury must arise from the plan they proposed. He should grieve to see the Church of Scotland, which had hitherto enjoyed the confidence and affections of a vast majority of the people, become, like that of Ireland, the Church of the minority. Although there might not be any necessity for legislative interference, yet the expression of their Lordships' individual opinions on the present occasion might have a salutary effect. He was sure the noble Marquess behind him and the noble Duke opposite—the illustrious chief of his race, both friends of civil and religious liberty, were not prepared to say that there was any ground for the secession that was going on, or for the threats of destruction which were made against the Church by those who had sworn to defend it. The noble and learned Lord concluded by presenting the petition.

The Marquess of Breadalbane

did not see what object the petitioners had in coming before that House. They asked generally for legislation; but the question they asked it on was purely ecclesiastical, that question being whether those quoad sacra ministers were really legal members of the Presbytery, and whether they could be chosen as representatives to the General Assembly. He must confess that he thought their Lordships would best consult that conciliatory spirit which was especially called for on the present occasion by not passing any opinion on the subject, but allowing the General Assembly practically to solve the question, thereby giving the Assembly an opportunity of acting in that manner which the best friends of the Church would wish to see them act in. On a former evening a noble Lord observed, that there had been no interference as yet with the ecclesiastical privileges of the Church of Scotland; but, in reply to that, he would quote a remark of Lord Moncrieff, judge of the Court of Session, and one of the ablest men on the bench, in giving judgment in a question lately brought before him. Referring to that very topic, he said,— That the demand of the pursuers amounted to a sentence of deposition or suspension from the spiritual functions of the ministry to be pronounced by the Court of Session on the majority of the ministers and elders of the Presbytery of the Church, who had not been disfranchised by any legal process, and that if they were competent he knew not what shred of spiritual independence was left to the Church of Scotland. This was most decided language, and well worthy the highest respect and consideration. He would at once refer to the point which had led to these collisions between the civil and ecclesiastical powers in Scotland—namely, the mode in which ministers should be appointed to the parishes of Scotland. In the endeavour of the Church to assert its principles it went too far, and interfered with the civil rights. The courts took cognizance of this, and declared the Act of Assembly respecting the appointment of ministers illegal. Then the judgment of that House declared that the Presbytery had no right to decide, except upon the technical qualifications of the person presented; but their Lordships would see that that decision wrested from the Presbytery a power which they had always previously possessed, namely, the power of judging of the general suitableness of the presentee. The Presbytery ought to have the power of seeing, not merely whether the presentee possessed the necessary amount of learning, but whether he possessed the physical capabilities of communicating it, and this very useful and important power their Lordships had taken away. On this point the people were the best judges; that is, whether they could be edified by the doctrines of the minister. Another point was, whether the Presbytery were judges in purely spiritual offices, without the coercion of the temporal courts. The spiritual independence of the Presbytery of the Church of Scotland was guaranteed by statute, and had been founded on custom and usage. A third point was, as to the power of the Church to provide for the spiritual wants of the country in proportion to those wants. For this purpose, the persons in question had been appointed to parishes, but only quoad sacra, merely as to pastoral superintendence; and to deprive the Church of the power of supplying the spiritual wants of the country in proportion to those wants, was to deprive it of a most useful and beneficial power. He trusted that his noble Friend the Secretary of State for Foreign Affairs would be able to enunciate the views and principles of the Government upon this great and important question, for he was convinced that the enunciation of the views and principles upon which her Ma- jesty's Government were prepared to act, would afford the means of arriving at a solution of the question, and of preventing that disruption of the Church which must inevitably take place at the next session of the General Assembly unless some concession were made.

The Duke of Argyle

made a few observations, but they were quite inaudible.

The Earl of Aberdeen

had hoped that the letter of his right hon. Friend the Secretary of State for the Home Department to the Commissioners of the General Assembly, and the declarations which he had made in that House, would have been sufficient in the way of explanation of the views of Government to have rendered unnecessary the appeal which his noble Friend had made to him. He did not know what he could now add to that explanation, but he had no objection to repeat it, if it could afford any satisfaction, His noble Friend might be assured that her Majesty's Government felt a great desire to witness the termination of the unfortunate dispute which agitated the Church of Scotland, and to avert by every means in their power a disruption of that church by the secession of some of its ministers, followed, as it would probably be, by a considerable proportion of the most pious and orderly of the people of Scotland, and that, to prevent it, they were ready to make any sacrifice—that was, any sacrifice consistent with their paramount duty to the country, and a regard for the real interests of the Church itself. Before any attempt of this kind could be made it was necessary to see whether there was any chance of its being attended with success, and to take care in making the attempt not to incur evils as great as it was intended to remedy; and he thought that under existing circumstances, if the Legislature were now to sanction the triumphant contempt of the judgment of that House, and the open defiance of the law, it would create greater evils than it would remedy. Let their Lordships look at the position in which the Church had placed itself, through the conduct of the leaders who had had the guidance of this unfortunate dispute. Not only had they refused to repeal the Veto Act, but from year to year they had gone on to assert their determination to maintain it, and in the last communication from the commissioners of the Assembly he saw no disposition to abandon an act which had been declared by that House to be illegal. It was said that the election of those persons took place during the pendency of the appeal to that House; but the appeal did not alter the law as declared by the courts below; the law did not require to be confirmed by the decision of that House, though the House might reverse the decision of the inferior courts. The election of the ministers was, therefore, equally illegal whether an appeal was entered to that House or not, and those gentlemen placed themselves in a responsible situation if they claimed, under such circumstances, to enforce a right to become Members of the Assembly. If the leader-of that party in the Assembly were prepared to be satisfied with the enjoyment of all the rights and the power which the Church of Scotland had ever by law possessed (except during a short and troublous period), there would be no great difficulty in dealing with the subject; but, if they were determined to assert claims quite unheard-of in the history of the Church, even at a time of the greatest violence, when the monarchy was overthrown and the Church triumphant,—if they insisted upon maintaining these claims, setting up rights utterly inconsistent with the civil and religious liberty of this Protestant country, and establishing a domination at once odious and degrading, her Majesty's Ministers could not only never give their assent to such pretensions, but would oppose them by every means in their power. With respect to the observations of his noble and learned Friend opposite (Lord Campbell), his noble and learned Friend, whilst he gave him credit for not impugning the judgment of that House in the Auchterarder case, had said that he had made use of observations inconsistent with that decision. His noble and learned Friend had done him no more than justice in supposing that he had not any intention of impugning that judgment; on the contrary, he considered it a most just and righteous judgment; but, although he coincided in the correctness of that judgment, it did not follow that, if the noble and learned Lord made a speech of two hours in delivering the judgment, he was to assent to everything contained in that speech. He had heard the late Lord Eldon say, that a wise judge would never give any reasons when he affirmed the judgment of a court below, because his judgment might probably be right and his reason might be wrong. Now, the reasons which had been given in pronouncing the judgment in the Auchterarder case had tended to unsettle the minds of the people of Scotland, and to produce the results which had taken place. In the Auchterarder case the question of the qualification of presentees had not been decided; it had arisen only incidentally in the courts below, and no opinion had been given upon this point, except obiter, by the noble and learned Lords in affirming the judgment, and if the point had been argued before them their opinion might have been different. He knew what the opinions of all the judges of the Court of Session were upon this point, though they had not been called upon to decide it. The Lord President took no notice of it, but the Lord Justice Clerk did, and said that, Prior to the Veto-act, the Church uniformly had the right of determining on the objections of any members of the congregation to the qualification and fitness of the presentee; the great advantage of which was, that no man could be inducted into a benefice without the assent of the Church to his collation after hearing the objections of the congregation, and no man could be set aside without an opportunity being afforded to the Church of openly ascertaining the validity of the objections to him, and that they were not merely the result of causeless prejudice. Lord Meadowbank said, If objections are offered to the admission of a presentee, it is the duty of the Presbytery, being in the place of the ordinary, to take notice of the objections, and hear the reason of dissent; but the power of determining rests with the Presbytery alone. Lord Corehouse took the same view of the subject, observing that, No one was allowed to be inducted in the face of a dissent, provided it was founded on good reasons, that the voice of the people was always heard, but the reasons of the dissent were judged of by the Presbytery. All the judges argued against the veto, but were still of opinion that the people might object, and that the Presbytery decided as to the validity of the objections. This was the opinion of the judges who pronounced the decision which had been affirmed by that House, and therefore there was nothing inconsistent in concurring in the decision of the Auchterarder case, and at the same time entertaining the opinion he had expressed. He admitted, that if the question of fitness had been argued before the noble and learned Lords, and they had decided the point, he should adopt their judgment as implicitly upon that point as he did upon those which they had decided in the Auchterarder case; but as it had not been argued, as they had only pronounced an opinion in passing, he did not think it necessary, supported as he was by the opinion of all the judges in Scotland—. for he believed all concurred in the doctrines he had expressed—.to acquiesce in the opinion of the noble and learned Lords. He had the more reason to adhere to this view of the question, because he knew, that with all the learning, and intelligence, and power of the noble and learned Lords, still it was not the law of England they were investigating, but a law to which their prejudices (for all had prejudices) were hostile. He must say, that seeing as he did what were the opinions of the judges in Scotland, the noble and learned Lord must forgive him for saying, that till the question had been argued before them, he should adopt the opinion of men who had made the law of Scotland the study of their lives. He could only repeat, that under the circumstances, her Majesty's Ministers had but one desire —to see this lamentable state of approaching anarchy in the Church of Scotland terminated. His noble Friend (Lord Breadalbane) had given the Assembly some good advice, which they would do well to adopt, and he hoped that his noble Friend would use the influence he possessed with many of the Members to reconcile them to a course of proceeding with reference to this question which might have the happy effect of restoring peace within the walls of that Jerusalem to which they were both such sincere well-wishers.

The Marquess of Breadalbane

asked whether the noble Earl was prepared to allow that the decision of the Church-courts should be final, except that they should not interfere with civil rights?

The Earl of Aberdeen

said, he had stated the principles which the Government were prepared to adopt, namely, that the congregations had a right to object, and that the presbytery were to judge of the reasons, and they were bound to give great latitude to objections to the fitness of a presentee.

Lord Brougham

said, the noble Earl had observed that the opinions to which he had alluded, delivered by his noble and learned Friend and himself, were not necessary for the decision of the particular question before the House, and that if the point had been argued they might have come to a different conclusion upon it. But the noble Earl was ignorant of the case if he supposed that the points were not argued. The points were argued by one side though not upon the other, and they would of themselves have decided the question, and have gone far to shake the grounds of the Auchterarder case in the court below. To adopt the opinion and proposition of his noble Friend behind him (the Marquess of Breadalbane) would be just the same as if in a dispute between two contending parties one were to be allowed to decide for both. With respect to the question of patronage, he (Lord Brougham) was perfectly satisfied that the law of Scotland was perfectly decisive upon the subject. If it were to be allowed that the presentee of the patron could be rejected by the congregation, no matter how satisfactory he otherwise might be in life, literature, and conversation, there would be an end to patronage; but that was not the law of Scotland, and he hoped he should never live to see the day when it would be. If such should ever be the case, the pulpit would be made a place for canvassing, and every species of indecency derogatory to religion would ensue. At the same time, though such was not the law of Scotland, the congregations were not excluded from expressing their objections to a presentee, or from stating the grounds of those objections; but, the patron having made his presentation, if no allegation could be sustained against the life, literature, and conversation of the person so presented, he must be by law the clergyman of the parish. If that were not so, patronage would be a mere mockery. It would be a good ground of objection if a person who could not speak Gaelic were to be presented to a parish where the English language was not understood, or if a minister who could not speak English were presented to a parish where one part of the inhabitants spoke English and the other Gaelic. These would be good grounds of objection, but it was no ground where life, literature, and conversation were admitted, to object merely out of caprice. Let the congregation, by all means, have the power of ob- jection, but do not, at the same time, let them control the patronage. He had heard, with great satisfaction, what had fallen from his noble Friend opposite (Duke of Argyll). His noble Friend, however, had, he feared, not been heard with sufficient distinctness in that place where it was most important that he should be heard. He thanked his noble Friend for the very important advice which, in the conclusion of his observations, he had given to his countrymen, by whom be was deservedly looked up to, and by whom he (Lord Brougham) was satisfied his advice would be received with attention and respect. He hoped the advice would be followed, and that those who now threatened a secession from the Church would pause before they carried their threat into execution; for, as had been well observed by the noble Duke, under the circumstances of the case, they ought to rest satisfied with what they bad got and with what they were likely to get, and not by discussing minor differences hazard the more important object involved in the peace and integrity of the Establishment. That he considered would be a most deplorable event, which he trusted would not take place; for he did not believe, as the noble Earl (the Earl of Aberdeen) appeared to think, that the seceders would take with them any great number of the most pious and orderly of their flocks.

Lord Campbell

expressed himself agreeably surprised at the tone which the discussion of the petition had assumed. He hoped that the party who now considered themselves the dominant party in Scotland would see that they were mistaken; that if they persisted in their parricidal attempts they would be defeated; and that the Church of Scotland would continue undisturbed, to dispense the blessings of religion through many future ages.

Petition to lie on the Table.

Their Lordships adjourned.