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 '^ PRINCETON, N. J. *g 
 
 Presented by Dr. TL. Patron. 
 
 
 BX 9084 
 
 .B43 
 
 1874 
 
 
 Begg, James, 
 
 1808- 
 
 -1883. 
 
 Memorial 
 
 with the 
 
 opinions 
 
 of eminent 
 
 counsel in 
 
IJt Itz M^J. y-^ 
 
 ^9U 
 
5 iyi4 
 
 MEMORIAL^-/. , .. -^ 
 
 WITH THE 
 
 OPINIONS OF EMINENT COUNSEL 
 
 IN REGARD TO THE 
 
 CONSTITUTION OF THE FREE 
 CHURCH OF SCOTLAND, 
 
 AND REMARKS ON 
 
 OUE PEESENT STATE AND PEOSPECTS. 
 
 BY 
 
 y 
 
 JAMES BEGG, D.D. 
 
 EDINBURGH: 
 JOHNSTONE, HUNTER, & CO. 
 
 1874. 
 
PRINTED BY BALI.ANTYNE AND COMPANY 
 EDINBUROH ASM) LONDON 
 
PEEFACE 
 
 The object of this publication is to demon- 
 strate that the principle of National Eeligion 
 is embedded in the Constitution of the 
 Free Church of Scotland. In consequence of 
 the new Voluntary agitation which has arisen 
 amongst us, it is necessary to vindicate the con- 
 sistency of those who resist this agitation, and 
 claim to represent the principles of 1843. True 
 Free Churchmen are, from their very profession, 
 bound to be the strenuous advocates of national 
 religion ; they are bound to resist all proved 
 abuses ; but they never will be found resisting 
 measures of necessary reform in the Established 
 Church, agreeing with so-called " Liberation - 
 ists," or sympathising with the atheistic maxim 
 that civil government has only to do with " the 
 outward and secular affairs " of nations. But 
 how can men who accept of office in our Free 
 Churches be kept to the maintenance of their 
 professed principles ? This is a question of the 
 most serious import, and yet is little considered. 
 
IV PREFACE. 
 
 The principles of the Free Church of Scotland 
 were adopted with the utmost deliberation, and 
 are embodied in our Constitution, as this pub- 
 lication demonstrates, in language of the utmost 
 clearness. Every office-bearer swears that he 
 will maintain them ; and yet in a single gene- 
 ration they are, so far as we can see, by many 
 office-bearers virtually and practically rejected. 
 How is this to be prevented or rectified ? 
 
 We have been familiar with the corruptions 
 of Established Churches, and the difficulty 
 of rectifying them. A new, unexpected, and 
 equally great difficulty, however, plainly exists 
 in Nonconformist Churches, and we should like 
 to hear a simple and j)ractical solution of this 
 difficulty, if that be possible. Under the plea 
 of spiritual independence — a very good plea, 
 if scripturally stated and lawfully used — ma- 
 jorities in Dissenting Churches seem now to 
 claim the right of diverting property from its 
 intended purpose, of trampling on their own 
 constitutions, and setting minorities at de- 
 fiance. This has been the great vice of cer- 
 tain Nonconformist Churches. It is a matter 
 that must soon engage very serious attention, 
 and the materials here supplied will illustrate 
 the nature of the evil in the case of the Free 
 Church of Scotland. 
 
PREFACE. V 
 
 In looking calmly over the past and present, 
 we cannot fail to see that the Free Church has 
 suffered very seriously in character and influ- 
 ence by the departure of some of her leading- 
 men and their followers from first principles. 
 The great mass of the people and a number of 
 ministers are still uncorrupted by the so-called 
 "progress," but real ''backsliding," of recent 
 years. But had our whole Church remained 
 steadfast and united in maintaining the prin- 
 ciples of 1843, our position would have been 
 at present one of commanding influence for 
 ofood. The late erratic movements of a con- 
 siderable number have been as shortsighted 
 and inconsistent with enlightened policy, as 
 with sound scriptural principle. 
 
 For the preliminary matter contained in 
 this volume, the Author alone is responsible. 
 But the Memorial and Opinions herewith pub- 
 lished deserve most careful attention on the 
 part of all who really desire to understand the 
 History and Constitution of the Free Church 
 of Scotland. Now that Scotland is being 
 frankly dealt with, for the first time for gene- 
 rations, by a wise and patriotic Government, 
 as a Presbyterian country, it is well to know 
 exactly where we all stand. No attempt is 
 likely to be made now to compel us to become 
 
VI PREFACE. 
 
 Voluntaries. Circumstances are being entirely 
 changed, and new questions are evidently 
 opening up. It is earnestly to be desired that 
 our Church, without haste, prejudice, or com- 
 promise, may have grace to deal with all 
 such questions in the wise, Christian, and 
 patriotic sj)irit of Knox, Melville, Henderson, 
 and Chalmers. 
 
 It may be added, that besides the Memorial 
 now published, a supplementary Memorial was 
 prepared in regard to the actual details of the 
 course to be taken in 1873 if the plan of 
 Mutual Eligibility had been finally adopted by 
 the Assembly. It is not thought necessary to 
 publish that other Memorial at present, but in 
 regard to it, and the course of procedure to be 
 adopted, the most valuable advice was ob- 
 tained from William Watson, Esq., Advocate, 
 the present Solicitor-General. Our best thanks 
 were also due to our able law-agent, John Welsh, 
 Esq., of the firm of Keegan & Welsh. Provi- 
 dentially, a most painful contest was rendered 
 unnecessary ; and one result of this publication 
 will be to preserve, in a convenient form, a 
 record of the principal facts. 
 
 Edinburgh, 50 George Square, 
 September 1874. 
 
CONTENTS. 
 
 PAGE 
 
 State op the Question ..... 9 
 
 The Establishment Principle part of the Constitu- 
 tion of the Free Church of Scotland . . 9-17 
 
 Endangered by the Union Negotiations . . 17-18 
 
 This Danger averted in 1873, and the Original 
 
 Principles confirmed .... 18-28 
 
 Difficulty of holding Nonconformist Churches to 
 
 their Principles ..... 28-32 
 
 How the Case would have been met if it had been 
 
 forced to an issue .... 32-37 
 
 A plausible Evasion exposed . . . 37-52 
 
 Importance of the Establishment Principle . 52-56 
 
 The Civil Law in regard to the Liberty of Non- 
 established Churches .... 56-78 
 
 The Theory of the Church of Scotland as embodied 
 in the Confession of Faith and ratified by Law, 
 with the effect of the New Patronage Act . 78-90 
 
 The future of Scotland. Importance of a Union 
 
 of Scottish Presbyterians on Sound Principles , 90-100 
 
 Memorial to Counsel , . . . . 101 
 
 Opinion of John Millar, Esq. (now Lord Craighill) 235 
 
 Opinion of E. S. Gordon, Esq. (the present Lord- 
 Advocate) . . . . . . 238 
 
 Opinion of Andkew R. Clark, Esq , Advocate (the 
 present Dean of Faculty), and J. B. Balfour, 
 Esq., Advocate ..... 2:16 
 
THE STATE OF THE QUESTION. 
 
 The attitude of nations and their rulers to- 
 wards true reliction and the Church of Christ 
 is a matter of paramount importance. '* Be 
 wise now therefore, ye kings ; be instructed, 
 ye judges of the earth ; serve the Lord with 
 fear." Concerning the Church of Christ it is 
 said, " The nation and kingdom that will not 
 serve Thee shall perish ; those nations shall be 
 utterly wasted." The importance of this was 
 clearly acknowledged by John Knox in the 
 first Confession of Faith of the Scottish 
 Church, as follows : — 
 
 '' Moreover, to kings, princes, rulers, and magis- 
 trates, we affirm that chiefly and most principally 
 the conservation and purgation of the religion ap- 
 pertains, so that not only they are appointed for 
 civil policy, but also for maintenance of the true 
 religion, and for suppressing of idolatry and super- 
 stition whatsoever, as in David, Jelioshaphat, 
 
10 THE STATE OF THE QUESTION. 
 
 Hezekiah, and Josiah, and others highly com- 
 mended for their zeal, in that case may be espied." 
 
 The same vital principle has been strongly 
 maintained during all our subsequent ecclesi- 
 astical history. Although in the covenant- 
 ing struggle the essential right of the people 
 to serve Christ as the only King in Sion, and 
 to defend their religious liberties even unto 
 blood, necessarily became prominent, the truth 
 of the universal supremacy of Christ and His 
 Word underlay the whole contest. The 
 liberty of the Church Courts and people to 
 serve Christ according to His word was, under 
 the name of "spiritual independence," spe- 
 cially contended for also, and forced into pro- 
 minence during the Ten Years' Conflict, in 
 consequence of an attempt to overbear the 
 Church Courts and people by means of the 
 Patronage Law. But that conflict itself was 
 connected with an anti- Voluntary struggle, and 
 would have had no meaning — in truth, would 
 have been aJosurd — if the Church had seen it 
 to be a duty to abandon the advantages of a 
 Church Establishment and all union between 
 Church and State. From the Moderator's 
 
THE STATE OF THE QUESTION. 11 
 
 chair of the first Free General Assembly, on 
 the day of the Disruption, Dr Chalmers ac- 
 cordingly dispelled all doubt on this subject 
 by exclaiming — " We hold that every part and 
 every function of a commonwealth should be 
 leavened with Christianity, and that every 
 functionary, from the highest to the lowest, 
 should in their respective spheres do all that 
 in them lies to countenance and uphold it. 
 That is to say, though we quit the Establish- 
 ment, we go out on the Establishment prin- 
 ciple — we quit a vitiated Establishment, but 
 would rejoice in returning to a pure one. To 
 express it otherwise — we are the advocates 
 for a national recognition and national sup- 
 port of religion — and we are not Volun- 
 taries." 
 
 The princijDle of national religion is there- 
 fore embedded in the Constitution of the Free 
 Church of Scotland. This is as certain as any 
 fact can be. Of this, all who took part in the 
 Disruption struggle, or who know anything of 
 its history, cannot fail to be aware. Apart 
 from the strong declarations of Dr Chalmers 
 to this effect from the chair of the first As- 
 
12 THE STATE OF THE QUESTION. 
 
 sembly of the Free Church, there is other 
 evidence of the most conclusive kind. The 
 Protest laid on the table of the General As- 
 sembly by Dr Welsh in 1843, previous to the 
 Disruption, contains the following passage : 
 " While firmly asserting the right and duty of 
 the civil magistrate to maintain and support 
 an establishment of religion in accordance with 
 God's Word, and reserving to ourselves and our 
 successors to strive, hy all lawful means as 
 opportunity shall in God's good providence he 
 offered, to secui^e the performance of this duty 
 agreeably to the Scriptures, and in implement 
 of the statutes of the kingdom of Scotland, 
 and the obligations of the Treaty of Union as 
 understood by us and our ancestors." This is 
 sufficiently explicit, but the same document 
 also affirms that "the Claim, Declaration, and 
 Protest of the General Assembly, which con- 
 vened at Edinburgh in May 1842, as the act 
 of a free and lawful Assembly of the said 
 Church, shall be holden as setting forth the 
 TRUE Constitution of the said Church." 
 Now, what does this " Claim, Declaration, and 
 Protest " say on this subject ? The conclusion 
 
THE STATE OF THE QUESTION. 13 
 
 of it is as follows, and nothing can be less am- 
 biguous — " Tliey especially invite all the office- 
 bearers and members of this Church, who are 
 willinof to suffer for their alles^iance to their 
 adorable King and Head, to stand by the 
 Church and by each other in defence of the 
 doctrine aforesaid, and of the liberties and 
 privileges whether of office-bearers or people 
 which rest upon it ; and to unite in suppli- 
 cation to Almighty God, that He would be 
 pleased to turn the hearts of the rulers of this 
 kingdom to keep unbroken the faith pledged to 
 this Church in forrwer days by statutes and 
 solemn treaty, and the obligations come under 
 to God himself to preserve and, maintain the 
 government and discipline of this Church in 
 accordance ivith His Word ; or otherwise, that 
 He would give strength to this Cliurch — office- 
 bearers and people — to endure resignedly the 
 loss of the temporal benefits of an Establish- 
 ment, and the personal sufferings and sacrifices 
 to which they may be called, and would also 
 inspire them with zeal and energy to promote 
 the advancement of His Son's kingdom in what- 
 ever condition it may be His will to place them ; 
 
14 THE STATE OF THE QUESTION. 
 
 AND THAT IN HiS OWN GOOD TIME He WOULD 
 PvESTOEE TO THEM THESE BENEFITS, THE FRUITS 
 OF THE STRUGGLES AND SUFFERINGS OF THEIR 
 FATHERS IN TIMES PAST IN THE SAME CAUSE, 
 
 and thereafter give them grace to employ them 
 more eflfectually than hitherto they have done 
 for the manifestation of His glory." All this 
 of course is inconsistent with Voluntaryism. 
 But those who remember the circumstances 
 cannot fail to be aware that nothing else would 
 have been satisfactory to the people, or would 
 have expressed the mind of those who took 
 part in the Disruption struggle. It is only after 
 a generation has passed away that some lead- 
 ing men, who have apparently changed their 
 own ground, and a number of young ministers 
 who were not honoured to take part in the 
 Disruption struggle, or to sacrifice anything 
 for the principles of the Eeformed Church of 
 Scotland, are apparently seeking to shift the 
 Free Church of Scotland from her original 
 basis, and to identify her with the unscriptural 
 and revolutionary principles of modern dissent. 
 Fortunately the original documents remain, 
 and cannot be altered. How men can recon- 
 
THE STATE OF THE QUESTION. 15 
 
 cile to themselves the propriety of attempting, 
 by whatsoever means, to alter or ignore a Con- 
 stitution which they have sworn to maintain, 
 and which was made only yesterday, is another 
 question. It affords a striking illustration of 
 the instability of human things, and not least 
 of disestablished churches, and raises a most 
 serious question yet to be settled. But the 
 truth of God and the God of truth are un- 
 changeable ; and in so far as the property of 
 Nonconformist Churches is concerned, there 
 is a civil law which, if appealed to, will doubt- 
 less keep that property to its original desti- 
 nation. 
 
 The main object of this publication is to lay 
 before the Church and the world a Memorial, 
 with Opinions of distinguished Counsel, in re- 
 gard to the true Principles of the Free Church 
 of Scotland on the subject of Church Estab- 
 lishments. If any Opinions were obtained 
 on the other side we shall be glad to see 
 them. This publication is expedient in con- 
 nection with the completion of the legislation 
 which, by the Divine blessing, prevented our 
 Church from being rent asunder in 1873, and 
 
16 THE STATE OF THE QUESTION. 
 
 it has become essential also in consequence of 
 the new and somewhat violent agitation w^hich 
 has recently arisen for the overthrow of the ex- 
 isting Establishments, and in which some Free 
 Churchmen are taking a zealous, although, as 
 we think, an inconsistent, part. The meaning 
 of legal opinions is not that lawyers are to settle 
 the principles of our Church, except in regard 
 to property. They are not to determine their 
 Scriptural truth or spiritual bearings ; but in 
 all questions of property the civil power is 
 supreme. In the matter of property the Free 
 Church is only a trustee, and it is important 
 to know definitely what are the conditions of 
 the trust, what the j^rinciples have been — main- 
 tained in 1843, embodied in the Constitution of 
 the Church, contended for since, and in con- 
 nection with which all our property has been 
 collected. If a change is to be made in our 
 principles, we must begin at the beginning. 
 If our Church is to be altered without uni- 
 versal consent, all our arrangements must be 
 commenced on a new footing, leaving the ex- 
 isting property to those who are still prepared 
 and determined to stand on the old ground. 
 
THE STATE OF THE QUESTION. 17 
 
 No questions of the nature indicated did 
 arise, or could possibly have arisen, for many 
 years after the Disruption — indeed, until the 
 mass of the Disruption fathers had gone to 
 their rest. These men had fought with the 
 greatest eagerness against Voluntaryism, as in 
 effect leading to national atheism. They had 
 claimed to be the true descendants of Knox, 
 Melville, Henderson, and Carstairs, who were all 
 unhesitating supporters of Church Establish- 
 ments. AYith them the Free Church of Scot- 
 land was simply '^ the Church of Scotlandfree." 
 
 A great change, however, arose in connec- 
 tion with the Union negotiations, whether 
 as cause or effect. These were begun in 
 1863, coupled with a professed determination 
 to carry them on with " due " regard, which 
 was explained to mean *' absolute " regard to 
 the principles of the Free Church of Scotland. 
 It soon appeared, however, that very different 
 views were entertained by leading men as to 
 the objects to be aimed at, and the issue of 
 ten years' protracted conferences, after several 
 ruptures and much conflict and confusion, was 
 simply to develop a scheme according to which 
 
 ^ 
 
 
 
18 THE STATE OF THE QUESTION. 
 
 the Free Church was to abandon her distinctive 
 principles — for it was proved that if she aban- 
 doned one she must abandon both — and sink 
 to the level of the United Presbyterians, who 
 glory in proclaiming that they are on principle 
 the enemies of all Established Churches. The 
 last shape which this contest took was an at- 
 tempt to establish an absolute and unqualified 
 mutual eligibility of ministers between the 
 United Presbyterian, Eeformed Presbyterian, 
 and Free Churches, of course on the assump- 
 tion that their principles were identical. This, 
 however, was strongly resisted, and the as- 
 sumption on which it rested strenuously 
 denied ; and had this project been pressed, 
 it w^ould have ended in a complete rupture 
 of the Free Church in 1873. Indeed, when 
 the Assembly of 1873 met, nothing else than 
 a break-up was anticipated, and all neces- 
 sary preparations were made accordingly. 
 The crisis, however, in the good providence 
 of God, was averted by a proposal made by 
 Dr Candlish, which proved satisfactory to all 
 parties. This proposal embodied a clear ad- 
 mission of the principles of the Free Church 
 
THE STATE OF THE QUESTION. 19 
 
 on the subject of national religion. The 
 result of it was effectually to qualify the 
 eligibility and admission of ministers from 
 other Churches by the express condition that 
 they should previously receive, in every case 
 of a proposed call, distinct information of 
 the peculiar principles of the Free Church, 
 and should clearly assent to these before their 
 settlement. The form which the arrangement 
 took was not what we anticipated or desired. 
 We were anxious that the Mutual Eligibility 
 Scheme should cease, along with all attempts 
 to unite incongruous elements. Failing this, 
 we desired that the Overture on Mutual Eligi- 
 bility should be suspended until the new over- 
 ture by which it was to be effectually quali- 
 fied had also passed, not merely as an interim 
 Act, but as part of the permanent law of the 
 Church under the Barrier Act, and therefore 
 we guarded ourselves on this subject by a 
 protest. At the same time, we could not 
 deny that the substance of our demand was 
 conceded — and if confirmed, as was promised, 
 conceded permanently — although somewhat in 
 a cumbrous way, and therefore we most cor- 
 
20 THE STATE OF THE QUESTION. 
 
 dially united in giving thanks to God, who 
 had so wonderfully interposed for our deh- 
 verance. This qualification of the Mutual 
 Eligibility Overture has now become part of 
 the permanent law of the Church, having 
 been adopted by an overwhelming number of 
 Presbyteries, viz., 71 out of the 76, no Presby- 
 tery having objected to the overture, although 
 five did not report. It is as follows : — 
 
 " The General Assembly, with consent of Pres- 
 byteries, enact and ordain. That in every case of 
 induction into any spiritual office or function in 
 this Church, the person to be inducted shall sign 
 the formula prescribed in Act XII. 1846, intituled. 
 Act anent Questions and Formula, during public 
 worship on the day of induction, immediately 
 after giving satisfactory answers to the questions 
 appointed in said Act to be put to him; and that 
 in every case of a minister being proposed to be 
 called who belongs to another branch of the 
 Church of Christ, if the Presbytery find the call 
 regular and sufficient so far as the congregation is 
 concerned, they shall adjourn to meet on a subse- 
 quent day, not sooner than a fortnight, nor later 
 than foiu weeks thereafter, except when the call 
 is to a minister in the Colonies, in which case the 
 period of adjournment may be prolonged; and 
 shall transmit to the minister proposed, to be 
 
THE STATE OF THE QUESTION. 21 
 
 called an extract of that finding, together with a 
 copy of the said Act XII. 1846, as hereinafter 
 amended, including the preamble (see p. 23) — as 
 
 WELL AS THE ENACTING PART, aS also a COpj of the 
 
 present finding of the Assembly in full, embracing 
 the Act of Assembly, Class I. No. 3, of date Thurs- 
 day, 29th May 1873, passing the Mutual Eligi- 
 bility Overture into a standing law, with relative 
 declaration in full, and also a copy of this Act, in- 
 forming him that if no communication is sent 
 beyond a simple acknowledgment of their receipt, 
 the Fresbytery will then^ upon the assumption that 
 no difficulty exists on his part as regards the said 
 documents^ proceed in the case according to the 
 laws of the Church. And at the diet for the in- 
 duction of any minister thus called, the Presbytery 
 shall, before the induction service, record the fact 
 that the provisions of the Act have been duly 
 complied with. 
 
 ''The Assembly also, with consent aforesaid, re- 
 scind the last clause of section 9 in the second 
 head of the said Act XII. 1846, as being super- 
 seded by the provision now enacted, anent the 
 time and manner of signing the formula." 
 
 Apart from the conservation of our Free 
 Church principles, thus secured, there are 
 several advantages in this new arrange- 
 ment, even as compared with the previous 
 system. The subscribing of the Formula 
 
22 THE STATE OF THE QUESTION. 
 
 *' during public worship on the day of induc- 
 tion " is a decided improvement upon the pre- 
 vious method. It not only makes sure that 
 the thing shall be done, but it lets the people 
 clearly understand the condition on which 
 their minister has been settled amongst them ; 
 viz., his open avowal, by word and writing, of 
 Free Church principles. There has been too 
 little in Scotland of an admission that the 
 settlement of a minister over a cono^reo^ation 
 implies a mutual engagement — an engagement 
 of support and encouragement in the Lord on the 
 part of the people, and an engagement to main- 
 tain fixed principles and to discharge understood 
 duty on the part of the minister. That this is 
 implied is certain, but it has not hitherto been 
 very clearly brought out. In America we have 
 seen this exhibited distinctly at a settlement, 
 by an open questioning of the congregation as 
 well as of the minister. It is not so here. 
 Now we certainly secure an approximation to a 
 better system by making the minister not only 
 give *' satisfactory answers to the questions 
 appointed in said Act," but in the presence of 
 the congregation also to sign the Formula " dur- 
 
THE STATE OF THE QUESTION. 23 
 
 ing public worship " on the day of his induc- 
 tion. It is also of advantage that in accepting 
 ministers from other Churches, we are not 
 now called upon to express any approbation 
 of everything in the constitutions of the 
 Churches themselves from which they come. 
 We accept of the men simply as units, and 
 solely on the ground of their personal character 
 and acceptance of the principles of our own 
 Church. By agreeing to our principles, more- 
 over, they accept of the '' doctrine of the Con- 
 fession of Faith" as '^the confession of their 
 faith," including, of course, the doctrine of 
 national religion as clearly taught especially 
 in the twenty-third chapter. To make this 
 clear, moreover, they are now called upon 
 to adhere to *'the preamble" of the Act 
 1846, anent Questions and Formula, "as well 
 as the enacting part," said preamble being as 
 follows, and in both its parts inconsistent 
 with theoretic Voluntaryism : *' The General 
 Assembly, in passing this Act, think it right 
 to declare, that while the Church ^rm/?/ main- 
 tarns the same scriptural jpinnciples as to the 
 duties of nations and their rulers in reference 
 
24 THE STATE OF THE QUESTION. 
 
 to true religion and the Church of Christ for 
 which she has hitherto contended, she disclaims 
 intolerant or persecuting principles, and does 
 not regard her Confession of Faith, or any por- 
 tion thereof when fairly interpreted, as favour- 
 ing intolerance or persecution, or consider that 
 her office-bearers by subscribing it profess any 
 principles inconsistent with liberty of con- 
 science and the right of private judgment." 
 Nothino' could be more distinct than this. It 
 not only explains and re-affirms the principles 
 of our Church, but refers to her past contend- 
 ings, which were, undoubtedly, both against 
 Voluntaryism and Erastiani*sm, as explanatory 
 of what is meant. This does not bind Free 
 Church ministers or other office-bearers to any- 
 thing new. It is merely an assertion of thatw^hich 
 we had from the beginning ; but it excludes 
 men, possessed of honour and honesty, from the 
 ministry of our Church who are not prepared to 
 assent to the principle of national religion as 
 thus defined and maintained in the Church of 
 Scotland since the Eeformation. Of course, it 
 implies that ministers already within our 
 Church are bound to no less, in the way of 
 
THE STATE OF THE QUESTION. . 26 
 
 principles, than those whom it may be pro- 
 posed thus to admit ; and it, at the same time, 
 discards the idea that the Confession of Faith, 
 *' fairly interpreted," teaches, or maybe sup- 
 posed to teach, intolerant or persecuting 
 principles. 
 
 Another kindred question, not referred to in 
 1873, and depending on other principles, has 
 since been incidentally raised, and may yet give 
 rise to debate. The Church legislation of 1873 
 was intended to afford a definition of the terms 
 upon which ministers could enter the Free 
 Church. The men who are prepared to assent 
 to the principles to which we have referred, of 
 course simply become Free Church ministers, and 
 enter our Church as such, to whatever denomina- 
 tion they may have previously belonged. But 
 whilst this is a clear definition of the way in 
 which men may enter our Church, the question 
 still remains, how can they leave it ? Some 
 mystery has been attempted to be thrown 
 over this by the appearance of United Presby- 
 terian commissioners in the Free Presbytery of 
 Glasgow, pleading for the removal of a Free 
 
26 THE STATE OF THE QUESTION. 
 
 Churcli minister. This, however, is a very 
 dijfferent matter, and what took place in the 
 case of JVIr Thorn by no means settles the ques- 
 tion raised. The case broke down, and the 
 question will probably be tried in another way. 
 But if it had proceeded, the real point would un- 
 doubtedly have emerged, and could only have 
 been settled by reference to another question, 
 viz., Has the Free Church authority to send away 
 any of her ministers from her communion ? or, 
 in other words, to hand over any of her ministers 
 by ecclesiastical authority to the United Pres- 
 byterian Church, or to any other body ? Has 
 the Church power to send a minister out of her 
 communion by her inherent authority, with 
 or without his consent ? We say, with or 
 without his consent ; for if the matter is to 
 be pleaded by *' parties," except by courtesy, 
 and treated in the ordinary way, by ecclesiasti- 
 cal authority, this is implied. Can the Church, 
 in the supposed case, do more than allow the 
 minister to go ? AVe can translate a minister 
 from one church to another within our own 
 borders by Church authority, with or without his 
 consent ; but can we deal in the same way with 
 
THE STATE OF THE QUESTION. 27 
 
 one of our ministers called to the English, Irish, 
 United Presbyterian, Keformed Presbyterian, 
 or Colonial Churches ? Can we authoritatively 
 remove him out of the Church ? The question 
 only requires to be asked to prove the absur- 
 dity of such an idea. The thing cannot be 
 done. There is no law permitting it, and any 
 attempt to make such a law would be resisted 
 to the uttermost. Whatever formalities, there- 
 fore, may be adopted or tolerated in the way of 
 courtesy in connection with the proposed call- 
 ing of our ministers by other Churches, the re- 
 sult must ultimately in all such cases resolve 
 itself simply into the will of the individual 
 minister himself. It is dutiful and necessary 
 that the Church Courts should be informed of 
 what is contemplated, and if this is done by 
 deputation, we see no objection to it as a 
 fair mark of respect. If a minister wishes to 
 go to another Church, the Church Courts may, 
 if they see cause, let him go, and declare his 
 church vacant. Beyond this their power does 
 not and cannot extend. 
 
 The state of the matter is therefore this : A 
 minister may enter the Free Church on clearly 
 
28 THE STATE OF THE QUESTION. 
 
 avowing her principles. He may leave the Free 
 Church on his own responsibility, although the 
 Church cannot possibly possess any authority to 
 separate him from her communion so long as 
 he is free from Church censure. But no minister 
 can enter without at the threshold professing 
 our distinctive principles in regard to national 
 reliction, as embodied in our standards and Dis- 
 ruption documents. 
 
 Here, however, a very important and diffi- 
 cult question arises : How can Nonconformist 
 Churches be kept to the maintenance of their 
 own principles ? This is a question which at 
 one time we should not have thought of ask- 
 inor, althouo^h we mio^ht have been warned 
 that it was not an unnecessary one by the 
 lapse of so many English Presbyterians into 
 Socinianism, so many Scotch Seceders into 
 Voluntaryism, and of a large body of the Irish 
 Presbyterians into Arianism. It is now a ques- 
 tion of very considerable importance, and our 
 experience during recent years proves that it is 
 one of no small difficulty. The constant appeals 
 to " overwhelming majorities," in opposition 
 to the principles of our Church, seem to prove 
 that in the estimation of some even the funda- 
 
THE STATE OF THE QUESTION. 29 
 
 mental principles of the Church may be sub- 
 verted by mere numbers. The undoubted fact 
 that we have a Constitution, which no power of 
 numbers can alter, seems to be disrecrarded, if 
 not denied, by some, and spiritual independence 
 seems to be Confounded with a right to do 
 whatsoever we please. If we are to act as if 
 we had no Constitution, and thus to be still 
 the ''servants of men," our position is surely 
 incapable of vindication. Presbyterianism is 
 a scriptural system, and can only be worked 
 satisfactorily on scriptural and high-toned 
 principles. 
 
 As early as 1847, speculations were put 
 forth in certain quarters as to the propriety 
 of changing the general policy of our Church 
 in the direction of Voluntaryism. In the same 
 year — the very year of his lamented death — 
 Dr Chalmers uttered a number of emphatic 
 testimonies in favour of adhering strictly to 
 our original ground. "We rejoice," said he, 
 " in the testimony of the Free Church for the 
 principle of a National Establishment, and 
 most sincerely do we hope that she never will 
 fall away from it. . . . Sorely aggrieved as 
 
30 THE STATE OF THE QUESTION. 
 
 she has been by our rulers, she will neither 
 underrate the importance of their friendship, 
 nor yet the solemn obligation which lies upon 
 them to care for the religion of the people, and 
 to provide, within their sphere, for this best and 
 highest interest of the commonwealth." In the 
 same year, the celebrated Hugh Miller also wrote 
 strongly in condemnation of the same proposed 
 policy. He said, amongst other things — 
 
 " Whether right or wrong in my convictions, I 
 am at least thoroughly convinced that it would 
 have the effect, if acted upon, of placing the great 
 Protestant front of the empire in a fatally false 
 position, and would, besides, be peculiarly injurious 
 to the Free Church. . . . We have, I think, direct 
 evidence that, though the war against Popery is, 
 in its effects on those who prosecute it, an emi- 
 nently safe war, the war against Establishments 
 is not. Never, at least, was the Church more 
 spiritual than when she was warring against 
 Popery ; never did any Church, in any contro- 
 versy, become more secular than the Voluntaries 
 of Scotland when warring against Establishments. 
 . . . The war against Popery would be strictly 
 constitutional; the war against Establishments 
 would not : it would of necessity endanger, with 
 the assailed institutions, not a few precious rem- 
 nants of the Revolution Settlement, in which no 
 class have a larger stake than we. And it is, 
 
THE STATE OF THE QUESTION. 31 
 
 besides, a grave question wliether the Free Clmrcli 
 would not lose immensely more, by forfeiting the 
 esteem of all solid men hostile to a position so 
 revolutionary, than she could possibly gain through 
 any consequent accession to the number of her 
 allies from the ranks of the restless and the dis- 
 satisfied. . . . Such a war . . . would justly lay 
 our Church open, if waged ere the present genera- 
 tion had passed away, to a charge of gross and 
 suspicious inconsistency." 
 
 After this we had a period of rest. But, as 
 we have seen, the same scheme was lately 
 renewed with fresh energy, and is apparently 
 not yet abandoned. All this raises a serious 
 question about Nonconformist Churches. Our 
 Church claims to be emphatically free, but 
 majorities are not always scrupulous, and how 
 shall we secure adherence to our Constitution ? 
 No doubt our Church is sound in theory, and 
 has clearly defined principles ; but in practice 
 we are manifestly shifting our ground, and the 
 growth of this evil has been seen and deplored 
 by independent and intelligent men for a num- 
 ber of years. That it was about to land us in 
 an unsound scheme of Education, and in 1873 
 in actual rupture, by the persistent proposal that 
 we should abandon our Disruption principles 
 
32 THE STATE OF THE QUESTION. 
 
 and amalgamate with an avowedly Voluntary 
 Church, in opposition to the remonstrances of 
 a large number of the ministers and the peti- 
 tions and memorials of 123,000 of the people of 
 our Church, is now part of our public history. 
 Some may be anxious to know what redress 
 we could have obtained, even in that extreme 
 case, if matters had been forced to an issue. 
 Some coolly told us that we had no alternative 
 but to abandon our principles, or abandon our 
 property — that, after sacrificing our all at the 
 Disruption in connection with the proceedings 
 of the State, we must now submit again to 
 the same ordeal at the hands of our own 
 brethren, who, to use the graphic language of 
 one of themselves, having laid down their all 
 for the sake of their testimony, were about to 
 end by laying down the testimony itself. 
 This, however, was far from being the case. 
 The difficulty did not lie, as many supposed, 
 in the clause of the Model Deed in regard to 
 the secession of one-third of the ministers. 
 That can only apply, and was only intended to 
 apply, to matters of detail, otherwise it must 
 be supposed that more than two-thirds of our 
 ministers could not only alter the fundamental 
 
THE STATE OF THE QUESTION. 33 
 
 princij^les of our Constitution, but carry our 
 Church and property, for example, over to 
 Popery. The difficulty lay rather in the over- 
 whelming power given by the Model Deed to 
 the General Assembly. It was well that the 
 matter was not driven to an issue, but this 
 difficulty would have been met by the orderly 
 establishment of a new General Assembly, 
 holding and avowing the precise principles of 
 the Disruption. In that case, the question 
 would at once have been raised, Which was the 
 true General Assembly of the Free Church of 
 Scotland, entitled to administer its temporal 
 affairs ? If matters are ever driven to a 
 serious issue, not by mere speeches, however 
 offensive these are, but by an overt act of a 
 majority of our Church directly embracing 
 Voluntaryism, and if the position is seriously 
 and wisely contested, it is not difficult to 
 anticipate the probable result. But surely it 
 is hard that we should be forced even to con- 
 template such an issue. The solemn vows 
 taken by the office-bearers of a Christian 
 Church ought to ensure their implicit main- 
 tenance of fundamental principles; and if at 
 
34 THE STATE OF THE QUESTION. 
 
 any time they change their minds, they surely 
 ought at once — if they cannot persuade the 
 whole body to change — to leave the com- 
 munion. The opposite course is most objec- 
 tionable, and a fruitful parent of strife within, 
 and infidelity without. We may apply to this 
 too common evil at present the solemn words 
 of Scripture : '^ And one shall say unto him. 
 What are these wounds in thine hands ? Then 
 he shall answer, Those with which I was 
 wounded in the house of my friends." It is 
 sad indeed if at any time the morality of the 
 market-place rises higher than the morality 
 of the Church. 
 
 Many are apt to exclaim — But would you 
 in any case appeal to the Civil Courts to 
 decide such a question as. Which is the true 
 Free Church ? The answer is — Of course we 
 would, in self-defence, if actually driven to 
 it, but only for the one purpose of deciding 
 the matter of property. All property is 
 avowedly under the control of the State and 
 its courts, and we are to render to Caesar the 
 things which are Caesar's, as well as unto God 
 the things which are God's. As Free Church- 
 
THE STATE OF THE QUESTION. 35 
 
 men, we should, as at the Disruption, decide 
 our course of action by the Word of God, and 
 irrespective of all temporal considerations ; 
 but we should feel it to be most unfair that 
 a great mass of property should be diverted 
 from its original object, and devoted to a 
 purpose which the testators, many of whom 
 have now passed away, would have abhorred. 
 Some of us feel that we should never have 
 built our churches and manses, to some of 
 which we are large, if not the largest con- 
 tributors, if we had ever thought of these 
 being turned over to Voluntaryism. So much 
 of this false play, however, has been carried 
 on with impunity in Scotland, in other Dis- 
 senting Churches, that we should like to see a 
 case fairly tried upon this clear and broad issue, 
 although we trust that such a proceeding may 
 be unnecessary in our own Church. Meantime, 
 it is well to lay before the Church the result of 
 our investigations in view of a probable crisis. 
 The Memorial now published embodies a full 
 and candid statement of our case, apart from 
 all heat and excitement. The questions have 
 no reference to minorities or majorities, but to 
 
36 THE STATE OF THE QUESTION. 
 
 tliose great principles of the Constitution by 
 whicli all are equally bound to abide, as in the 
 case of any other human partnership. It will 
 be seen that the eminent lawyers whose opi- 
 nions are herewith published are unanimous in 
 holding (l) that the Free Church has a Consti- 
 tution which can be pleaded, as in the Cardross 
 case it was pleaded, in a civil court ; (2) that 
 the Establishment principle is embodied in 
 that Constitution ; (3) that this cannot be made 
 an open question ; and (4) that no majority, 
 however great, can alter this ao^ainst the will of 
 any minority, however small. 
 
 Of course, other questions of detail are not so 
 clear; and two of these eminent men repre- 
 sent that the scheme of Mutual Eligibility 
 might not be deemed inconsistent with our 
 Constitution, since in being admitted men must 
 profess to hold, although untruly, the Estab- 
 lishment principle. The difficulty arose from 
 declaring eligible to our highest offices men 
 not connected with our Church, and -not pre- 
 viously holding, but repudiating, our principles. 
 Civil judges might be trusted, we should think, 
 to decide satisfactorily such a question accord- 
 in-^' to its broad and essential merits. 
 
THE STATE OF THE QUESTION. 37 
 
 The teclinical point thus raised is not without 
 some plausibility, although it does not affect the 
 moral aspects of the question. It may be well 
 that we look at it now with calmness, and 
 state our impressions in regard to its ecclesias- 
 tical and legal bearings. Apart from other 
 questions, there are certain things in all 
 Churches which manifestly form part of the 
 ground of their separate existence, which may be 
 called the vital principles of their constitutions, 
 and which therefore cannot be altered without 
 a revolution — the abandonment of which, in 
 truth, implies a dissolution of these particular 
 Churches as previously existing. This, amongst 
 other things, is without doubt the case with 
 the Establishment principle in the Free Church, 
 whether we consider the doctrines of her Stand- 
 ards, or the fact that she did not join the United 
 Presbyterian Church at the Disruption, but 
 deliberately and intentionally declared herself a 
 Church, opposed to Voluntaryism, and based on 
 the Claim of Eights — viz., a claim to all the 
 rights and privileges of the Establishment ; 
 and that, till recently, she most carefully and 
 strenuously maintained this position in form 
 
38 THE STATE OF THE QUESTION. 
 
 as well as in substance. Now, what was 
 recently proposed ? It will not be seriously 
 maintained, that although the Constitution 
 cannot be altered directly, it may be altered 
 indirectly, and by a side-wind, or that a United 
 Presbyterian minister, previously an avowed 
 Voluntary, and still an avowed Voluntary, 
 was expected, by the mere technical act of being 
 admitted into the Free Church, to be changed 
 quite unintentionally, as by magic, into a sound 
 defender of Church Establishments. This can- 
 not be gravely argued. No such change was 
 indeed contemplated. On the contrary, the 
 whole transaction was to have proceeded on the 
 assumption that there was no diflference in prin- 
 ciple, or none of any importance, between the 
 Churches, and the forms of admission were not 
 expected to make any change whatever on the 
 princijDles of the men admitted. Instead of 
 these forms being intended thereafter to afford 
 any effective safeguard to ecclesiastical jdccu- 
 liarities, or being any longer a tribute, to the 
 distinctive principles of the Churches respec- 
 tively, the authoritative interchange of minis- 
 ters, without any previous avowal of change. 
 
THE STATE OF THE QUESTION. 39 
 
 might justly be lield to imply — could not, 
 indeed, reasonably imply anything else .than 
 that all distinctions had vanished by some 
 strange process, and that a man could now 
 walk from one of these Churches to the other 
 without changing his principles at all. 
 
 This plan indeed followed the avowal that 
 there was "no bar" in principle to a complete 
 incorporation of the Churches. It was a 
 clear departure, at the same time, from all the 
 rules which are enforced in every other human 
 society. Such a thing, so far as we know, was 
 never before done, and would not be tolerated 
 in any other department of human life. A 
 man must join a body before being eligible to 
 office therein. A man might be an eminent 
 lawyer, for example, and yet, until he is 
 actually admitted into the Faculty of Advo- 
 cates, he could not be elected Dean of Faculty. 
 A man must be a physician or surgeon respec- 
 tively before he can be elected President of 
 the Faculty of Physicians or Surgeons. It 
 will not do in either case, or in any analogous 
 case, to say that he may be elected first and 
 become qualified afterwards. Such a theory 
 
40 THE STATE OF THE QUESTION. 
 
 would not be tolerated in any other profession 
 or society, and why should it be in the Free 
 Church ? Here men were to be declared 
 eligible to the highest offices in the Free 
 Church without previously becoming members 
 of it, or holding its principles. From the 
 beginning of Christianity, we are not aware 
 that such a theory was ever before seriously 
 propounded, and certainly it was never before 
 propounded in Scotland. 
 
 Previously, the Free Church had made the 
 most anxious provisions for having her distinc- 
 tive principles avowed by her office-bearers 
 before their admission to office. There are Acts 
 of Assembly enjoining the Professors to call 
 the attention of their students to these princi- 
 ples once at least every session ; providing that 
 the Protest should be inserted at the com- 
 mencement of the Eecords of every Presbytery 
 as the " ground and warrant " of all their 
 proceedings ; that these documents should also 
 be printed along with the other Standards of 
 doctrinal belief. A Catechism also was pre- 
 pared and sanctioned by the Assembly for the 
 use of the young, in which the principles of 
 
THE STATE OF THE QUESTION. 41 
 
 these documents are clearly set forth. In 
 order that ministers and probationers should 
 have correct views of these principles, they 
 were required to acknowledge them as setting 
 forth correctly their individual views and 
 beliefs, and this after due examination. This 
 strictness upon these points was imported from 
 the Established Church, an Act of the General 
 Assembly of which, in 1782, sets forth that 
 such provisions are necessary to avoid *^ the 
 danger that ariseth to this Church and to the 
 souls of the people by licensing any to preach 
 the Gospel who are not duly qualified accord- 
 ing to the rules laid down in Scripture." 
 
 The Free Church all along previously sub- 
 jected ministers seeking admission to her 
 communion from other denominations not 
 identical with her own, and before they were 
 declared qualified to receive calls, to careful 
 tests, for the purpose of ascertaining that they 
 really held her distinctive principles, and of 
 receiving an explanation of the reasons which 
 induced them to seek admission into the Free 
 Church. By the law 1850, which it was pro- 
 posed to alter, it was enacted — an enactment 
 
42 THE STATE OF THE QUESTION. 
 
 whicli was intended certainly to apj)l7 to the 
 United Presbyterians — " that if there is a 
 diversity of principle between the Free Church 
 of Scotland and the applicant's former denomi- 
 nation or Church, what account does the appli- 
 cant give of the change of his views ? " and 
 also, ''Is the applicant well acquainted with 
 the events a,nd controversies which led to the 
 Disruption between the Church and State in 
 1843 ? and are the Presbytery satisfied of his 
 adherence to the principles maintained by the 
 Church at that "period f " 
 
 These provisions are remarkable in many 
 ways. They prove conclusively that in 1850 
 the principles of the Free Church were un- 
 changed ; that there was no intention at that 
 time, on the part of the Free Church, to declare 
 qualified to receive a call any minister who 
 did not first avow her principles as understood 
 in 1843. But what were the principles of the 
 Free Church in 1843 ? We need not say they 
 were entirely opposed to Voluntaryism.. 
 
 What was the reason for abolishing, there- 
 fore, these requirements ? Had the United 
 Presbyterians as a body adopted Free Church 
 
THE STATE OF THE QUESTION. 43 
 
 principles ? This is not alleged. Could any 
 reasonable interpretation be put upon this pro- 
 posed transaction, especially as read in connec- 
 tion with previous events, except that it was the 
 purpose to throw down all existing safeguards 
 against Voluntaryism and other United Pres- 
 byterian views ? No other reasonable con- 
 struction could possibly be put upon it. If 
 the United Presbyterians were really, and not 
 merely in form, to become Free Churchmen, 
 no change of the law was necessary. 
 
 The Overture in question was designed to 
 supersede all precautions, and to declare that 
 the previous rules were not to be applicable to 
 ministers of the United Presbyterian Church, 
 who were to be callable at once, and, if called by 
 Free Church congregations, were to be ordained 
 and admitted on the same footing as ministers 
 duly qualified in our own Church, or in other 
 Churches whose principles were the same as 
 those held by the Free Church. There was to 
 have been an immediate and formal removal of 
 all the existiniT safeo-uards in connection with 
 the eligibility or callableness of United Presby- 
 terian ministers ; so that not only without pre- 
 
44 THE STATE CF THE QUESTION. 
 
 viously avowing Free Church principles, but 
 whilst avowing the very opposite, they were all 
 by one sweeping enactment to be placed on the 
 same level with the ministers and probationers 
 of the Free Church. This would have been an 
 undoing of all the careful provisions which 
 had been made during the previous years for 
 securing to the members and adherents of the 
 Free Church a thorough knowdedge and appre- 
 ciation of her distinctive principles. It would 
 have been the eligibility as public teachers of 
 men who were not required to be members of 
 the Church, or to hold or profess her principles 
 — in short, a tacit abandonment of the Pro- 
 test and Claim of Eights, an admission that 
 there was no further need for the testimony of 
 the Free Church on the subject of the duties of 
 nations and their rulers, as such, towards Chris- 
 tian truth and the Church of Christ, and that 
 it was immaterial whether these principles were 
 maintained or exchanged for those of Volun- 
 taryism. The result of this arrangement would 
 have been, as a Judge has expressed it in 
 another case, that the members of the Free 
 Church would become members of a United 
 
THE STATE OF THE QUESTION. 45 
 
 Church, in which the ministers and office- 
 bearers would not be qualified in the manner 
 deemed essential by the separate body to which 
 they now belong; and that, so far as regards the 
 material point of Church Establishments, which 
 has all along been deemed essential as a test on 
 the qualification of ministers, probationers, and 
 office-bearers, the doctrines and system of the 
 Free Church will cease to exist. 
 
 It is quite unnecessary to prove that this 
 scheme of Mutual Eligibility contained in it 
 all the objectionable features of the previous 
 schemes of Union. This was very fully and 
 frequently done, and it was proved, besides, 
 that the scheme was fraught with two addi- 
 tional elements of evil. It was union without 
 a basis, and union in opposition, not only to the 
 immemorial practice of the Church, but of all 
 human societies— viz., that men must avow the 
 principles of a body, and be in connection with 
 that body, before they can be eligible to office 
 therein. By the unanimous Act of the Assem- 
 bly 1799, c. 5, which was appointed to be in- 
 serted in the Eecords of every Presbytery, and 
 which was tacitly confirmed by the Actof Assem- 
 
46 THE STATE OF THE QUESTION. 
 
 bly 1842, c. 9, it is declared to be " agreeable to 
 the constitution, the laws, and the decisions of 
 this Church," that no man shall receive a call 
 to any charge who is not a licentiate or minis- 
 ter of the Church in full standing ; and the 
 Presbyteries are enjoined, " if a call or presenta- 
 tion shall at any time be laid before them to 
 any one not so qualified, instantly to pronounce 
 a sentence refusing to sustain such presentation 
 or call, and declaring it null and void." This 
 Act has not been repealed, and ought to have 
 been repealed as a necessary precursor to the 
 new legislation, even if that legislation had 
 been competent in itself. It could only be 
 repealed after being sent to Presbyteries under 
 the Barrier Act, for by the Act 1736, Sess. 8, 
 it is provided as follows : — 
 
 '' The General Assembly appoints and enacts — 
 That no Acts rescissory of any standing Acts of the 
 General Assembly be passed, until such Acts rescis- 
 sory be first transmitted to the several Presbyteries 
 of this Church, and their general opinion had for 
 rescinding the same." 
 
 Since the Disruption, none have been de- 
 clared qualified to receive calls except ministers 
 
THE STATE OF THE QUESTION. 47 
 
 or probationers of tHe Free Church, or ministers 
 from Churches connected with the Free Church, 
 on the ground of expressly avowing her prin- 
 ciples — Churches which would have been 
 incorporated with her had thej been situated 
 in Scotland. The ministers of the United 
 Presbyterian Church, like ministers of other 
 Churches holding avowedly different views 
 from the Free Church, have been always 
 admitted only after confessing a change of 
 opinion, and satisfying the Presbyteries and 
 the Assembly that they understood and had 
 adopted the principles all along held by the 
 Free Church, and specially contended for in 
 1843. Adherence to this rule is evidently 
 essential to a maintenance of the Constitution 
 of the Church. And yet it was proposed 
 entirely to set it aside in favour of a 
 principle never previously adopted in the 
 case of any properly organised association, 
 civil or ecclesiastical — viz., that men should 
 be held eligible to the highest offices in a 
 body, not only without joining it or avowing 
 its principles, but whilst openly disavowing 
 them. Taken in connection with the whole 
 
48 THE STATE OF THE QUESTION. 
 
 Union moyement, tlie '^ no-bar" declaration 
 of the Assembly 1867, and the subsequent 
 proceedings in the direction of wholesale in- 
 corporation with the United Presbyterians, 
 on the ground of making the distinctive jDrin- 
 ciples of the Free Church " open questions," 
 this plan could only be regarded as an attempt 
 to accomplish piecemeal, and by a side-wind, 
 what it was deemed inexpedient to consum- 
 mate directly. The principle of such a scheme, 
 if admitted, might have led afterwards to a 
 declaration of eligibility to Free Church pulpits 
 on the widest possible scale, and on the part of 
 men holdino; the most heretical views. If an 
 after-profession could have made all right in 
 the case of men repudiating our distinctive 
 principles, why might we not declare all 
 other sects — Socinians, or Eomish priests — 
 eligible to calls ? Three bodies of professing 
 Christians, moreover, in the same country, 
 after declaring their ministers mutually eli- 
 gible, could not possibly, without manifest 
 schism, have remained without full incorpora- 
 tion. The scheme in this aspect of it was only 
 the Union question, therefore, in another form. 
 
THE STATE OF THE QUESTION. 49 
 
 It may be added, that for the Free Church, 
 after the sweeping United Presbyterian Mani- 
 festo in regard to Disestabhshment, to declare 
 all the ministers of that Church eligible to her 
 ministry would have been a very flagrant de- 
 parture from the principles of 1843. 
 
 A great constitutional question was in- 
 volved in the Mutual Eligibility scheme of 
 Union as proposed, — supposing that it could 
 have been successful in virtually obliterating 
 the Establishment principle from the creed of 
 the Free Church, — and this both in ecclesi- 
 astical and civil law. When men join to- 
 gether in a Nonconformist Church, upon clear 
 and recorded principles, can any majority, in 
 opposition to a protesting minority, rightfully 
 change or abandon those principles, either 
 directly or by any process leading to the same 
 result, without dissolving the association ? 
 This question is of vast importance, not only 
 in itself, but because of the speculations abroad 
 as to the removal of all Established Churches. 
 If the Established Churches are ever removed, 
 what security are Churches in a non-established 
 condition to have for their liberty and the 
 
 D 
 
60 THE STATE OF THE QUESTION. 
 
 maintenance of their principles ? If a mere 
 majority in tlie Church Courts may change 
 the very fundamental principles of their con- 
 stitutions, where is their security ? The pro- 
 posed change was a very marked and flagrant 
 one, touching as it did the very ground of the 
 original separate existence of the Free Church, 
 and therefore raised this question with much 
 emphasis. But still greater changes were 
 supposable, and might no doubt have been 
 carried out with impunity, if the right to 
 make such changes had been admitted. Were 
 even partnerships in business liable to change 
 at the mere will of a majority, all such agree- 
 ments between man and man would become 
 impossible. More sacred ought surely to be 
 the constitutional arrangements of Churches. 
 Unestablished Presbyterianism would become 
 impossible unless some fixed and unalterable 
 elements were understood to exist in ecclesi- 
 astical constitutions. But even supposing a 
 right of change were admitted to exist, with- 
 out the dissolution of the body, what is to 
 be said about the accumulated property of 
 Churches? Experience proves that Non- 
 
THE STATE OF THE QUESTION. 51 
 
 established Churches may accumulate vast 
 masses of property. This property is un- 
 doubtedly given on the assumption that the 
 fundamental principles of the body shall 
 remain unchanged. Many of the men who 
 gave the money have departed this life, 
 leaving their property to be guarded by the 
 Civil Law. The destination of all other pro- 
 perty after men are dead is jealously watched 
 and guarded by that law. And are we to sup- 
 pose seriously that a mere majority in the 
 Church Courts may do what can be done 
 nowhere else ? may not only make the most 
 sweeping changes, no matter under what 
 plausible pretexts, but at the same time by 
 the same means turn over the whole property 
 of the Church from the purposes for which the 
 testators left it, to purposes which they would 
 have strongly disapproved ? This surely would 
 be to place the Church above the State, even 
 in the matter of property, and to introduce 
 an ecclesiastical despotism which might ulti- 
 mately lead to the most serious consequences. 
 And yet all this was undoubtedly implied in 
 the course proposed, and in the supposition 
 
52 THE STATE OF THE QUESTION. 
 
 that it could have been sanctioned by the 
 civil law. We never had the least apprehen- 
 sion that such a result would have taken place 
 if the debate had unfortunately been forced to 
 an issue, and we trust that, as a constitutional 
 and legal question, the matter is now finally 
 set at rest. 
 
 Some may say that theoretic Voluntaryism 
 has scarcely an existence in the Free Church, 
 that all that is said in connection with the pro- 
 posed overthrow of the Established Churches 
 is said on the ground of mere expediency. 
 We are not quite sure of this, but be it so. 
 This is no reason for giving defective repre- 
 sentations of our principles — concealing the 
 fact in motions made in the General Assembly, 
 that we do hold the Establishment principle 
 — resisting those reforms in the Established 
 Church which at one time we would have hailed 
 — acting with Liberationists who regard all 
 connection between Church and State as abso- 
 lutely sinful, and finding that there is *^ no 
 bar " in the way of an actual incorporation 
 with avowed and rampant Voluntaries. BaiKe 
 Craig, of Kilmarnock, was ordered to be sum- 
 
THE STATE OF THE QUESTION. 53 
 
 marilj deposed by the same Assembly wliicli 
 passed the Veto Act, simply because he had 
 presided at a Voluntary meeting. 
 
 No doubt, some who profess to hold the 
 Establishment principle allege that it is a 
 mere abstraction which can never lead to any 
 practical issue, and that, therefore, it may 
 be abandoned or made an open question. When 
 we think of how it is connected with the glory 
 of Christ as " King of kings, and Lord of lords,'' 
 it is strange that any one should entertain this 
 view, and equally strange that any observing 
 and intellio^ent man should imao^ine that we 
 have nearly seen the end of all Establish- 
 ments. This is a mere dream and delusion, 
 even in so far as the existing Establishments 
 are concerned. In truth, those Establish- 
 ments of late have been greatly strengthened 
 by the incoherent denunciations and unscru- 
 pulous schemes of modern Dissenters. Our 
 duty is to seek their reform, not their de- 
 struction. But even if it were otherwise, a 
 number of other vital questions are inseparably 
 bound up with the maintenance of the Estab- 
 lishment principle. Voluntaryism being a 
 
54 THE STATE OF THE QUESTION. 
 
 denial of the moral nature and obligations of 
 States, leads directly to national atheism. It 
 confounds the State with " the world," for- 
 getting that civil government is a Divine 
 ordinance, and that the civil magistrate is a 
 *^ minister of God" unto the people for good. It 
 is questionable whether Popery itself more 
 directly robs Christ of His glory — the glory of 
 having '' all power in heaven and on earth." 
 It sets aside the true theory of free and scrip- 
 tural government. Upon pretence of great 
 spirituality, it will have nothing to do with 
 the State, and yet it will enter into the most 
 unworthy alliances, and adopt the most un- 
 scrupulous means to accomplish its ends. It 
 is a most revolutionary principle, and would 
 set aside all that is sacred in our present na- 
 tional arrangements — for example, the Protest- 
 antism of the Throne — the opening of Par- 
 liament with prayer — the maintenance of the 
 purity of the text of Scripture — the sacredness 
 of the Sabbath, and the laws of marriage — 
 oaths in courts of justice, — and, above all, the 
 Scriptural education of the young. If the 
 Establishment principle is given up, — or 
 
THE STATE OF THE QUESTION. 55 
 
 short of this, if we are to make light of 
 the obligations of national religion, the 
 most serious consequences would undoubtedly 
 follow. In this point of view, instead of its 
 being a small question with which we are 
 dealing, or one of little importance, it is 
 probably the largest question that can be 
 raised, and enters more deeply than any other 
 into- all the relations of social life. This is 
 not a mere theory. The doctrine of the 
 United Presbyterian Church, to the effect that 
 civil government has only to do with the 
 outward and secular affairs of communities, 
 goes all this length. The Voluntaries of 
 America, where there is no Established Church, 
 are fiercely contending for the extirpation of 
 all revealed religion and morality from the 
 action of the State : whilst a great association 
 has been established there, whose objects are 
 embodied in the following declaration : — 
 
 '' We labour to secure such amendments to the 
 constitution of the United States, as will suitably 
 express our national recognition of Almighty God 
 as the author of national existence, and the source 
 of all power and authority in civil government ; 
 of Jesus Christ as the ruler of nations, and of the 
 
56 THE STATE OF THE QUESTION. 
 
 Bible as the fountain of law, and the supreme 
 rule for the conduct of nations." 
 
 The strong feeling, however, on the part of 
 many is, that Dissenting Churches are neces- 
 sarily more free than Churches recognised and 
 established by the State — indeed, that the only 
 real security for spiritual independence is an 
 entire separation of Church and State. Now, 
 we do not in the least undervalue the vast im- 
 portance of toleration, nor would we on any ac- 
 count, or for any consideration, sacrifice the true 
 spiritual independence of the Church of Christ. 
 This ought to be maintained at all hazards. 
 But it is a misunderstanding to suppose either 
 that there can be an entire separation of Church 
 and State, or that the civil government has 
 truly recognised the spiritual independence 
 of Non-established Churches. Such Churches 
 are recognised simply as Voluntary associations 
 of individuals bound by contract, which con- 
 tract the civil courts claim the absolute ri^ht 
 of expounding and enforcing. States may 
 enslave Churches, and Churches may connive 
 at their own bondage ; but if the arrangement 
 is otherwise unobjectionable, the best way of 
 
THE STATE OF THE QUESTION. 67 
 
 securing spiritual freedom, as all our ancestors 
 maintained, is to get the State to recognise 
 the creed and jurisdiction of the Church, and 
 to shut out its own courts from interfering 
 with spiritual acts and decisions. 
 
 That we have correctly stated the position 
 of all Non-established Churches in the esti- 
 mation of our civil authorities can be fully 
 proved. 
 
 In an interesting volume, recently published 
 by ^' Longmans, London, 1874," and containing 
 an account of the " O'Keeffe Trial," the posi- 
 tion and rights of unestablished Churches is 
 discussed, amongst other things. Mr Justice 
 Barry (p. 16) says, ''Lord Eomilly lays down 
 the law as to Voluntary Churches." He then 
 quotes the following, amongst other state- 
 ments, by Lord Eomilly : — 
 
 " The rule by which the courts are bound is 
 this — If any number of persons, either in England 
 or in any of its dependencies, associate themselves 
 together, professing to follow a particular religion, 
 not being the religion of the State, the court 
 must, when applied to, inquire into what the doc- 
 trine and discipline of that religion are, and must 
 then enforce obedience to them accordingly. Thus 
 
58 THE STATE OF THE QUESTION. 
 
 if they be Presbyterians, or Independents, or "Wes- 
 leyans, or Baptists, or the like, the court ascer- 
 tains, as a matter of fact, upon proper evidence, 
 what the doctrines, ordinances, and rules are by 
 which the particular sect of religionists is bound, 
 and enforces obedience to them accordingly. It 
 is needless to cite authorities to establish this 
 proposition. The books abound with decisions on 
 the subject, all of the same character," &c. 
 
 The Lord Chief- Justice (p. 85) says : — 
 
 ** The rules and regulations of a Voluntary 
 Church may be called ' laws ' by way of courtesy 
 or convenience, but they can have no force or 
 acceptance here but as the terms of a contract, 
 and the court could take no notice of them even 
 as such, unless to enforce some civil right, or 
 redress some civil wrong, and can regard them 
 as binding so far only as they are consistent with 
 the laws of the land." 
 
 Speaking again of the state of all the Churches 
 of Ireland under the non- established system, he 
 (pp. 570-71) says : — 
 
 '^ All Churches in Ireland were now upon a 
 footing of perfect equality, and occupied ,a posi- 
 tion similar to that of Colonial Churches. The 
 rights and privileges and obligations of bishops 
 and other officials did not now subsist bylaw, but 
 were based upon contract, and were to be ascer- 
 
THE STATE OF THE QUESTION. 59 
 
 taiued simply by tlie law ordinarily applied to 
 cases of contract." 
 
 This, of course, reduces the theory of 
 Christian Churches to one of mere human ar- 
 rangement, and ignores the idea of discipline 
 as flowing from Christ, or resting on any higher 
 authority than the contract of a Mason Lodge, 
 or other ordinary secular association. It vir- 
 tually places the civil judges above the courts 
 of all Non-established Churches, so far as the 
 civil law is concerned. 
 
 Before referring to the recent cases in Scot- 
 land in which the position and legal rights of 
 Nonconformist Churches have been dealt with 
 in our civil courts, it may be well to refer to 
 the fallacy which exists in many minds on the 
 whole subject. Men who have never seriously 
 considered the question, or who do not pene- 
 trate below the surface, are ready to say, ** We 
 get nothing, and we wish nothing, from the 
 State, and therefore it is out of the question 
 that we should be subjected to any State 
 supervision or control." There is a confusion 
 of ideas here. We may get no State en- 
 dowment, and we must discharge purely 
 
60 THE STATE OF THE QUESTION. 
 
 spiritual duties as individuals and Churclies at 
 all hazards; but there are two things over- 
 looked. It is not true that we are or can be 
 entirely separated from the power of the State. 
 The Church of Christ is in though not of the 
 world. "We do not refer to any special public 
 advantages, to exemptions from tolls and taxa- 
 tion, but we all have ecclesiastical property, 
 manses, churches, and sometimes endowments. 
 The right to all these is protected by the State, 
 and if injustice in regard to them be attempted, 
 the civil courts are open for our protection. We 
 do not say that this gives the State any right 
 to control our spiritual acts. But neither, if 
 the State acted properly, do the endowments 
 of the Established Church furnish any ground 
 for Erastian interference. This we are per- 
 fectly prepared to prove. The serious diffi- 
 culty, however, does not lie here. There 
 are points of contact between the action of 
 Churches and of States which tend to promote 
 collision, unless the matter is amicably adjusted 
 and regulated by a clear and understood 
 agreement. Character and status are, in one 
 sense of the word, civil rights, and in another 
 
THE STATE OF THE QUESTION. 61 
 
 sense they are the very matters with which 
 Churches meddle in every case of discipline. 
 For Churches therefore to say, "We get 
 nothing from the State, and therefore civil 
 government has nothing to do with us," 
 scarcely touches the real practical difficulty. 
 Neither is it any solution of the problem to say, 
 " Civil courts will not meddle or even look at 
 the proceedings of Churches, except where 
 some civil right is involved." It is quite 
 possible in every case that may be raised to 
 allege civil interests, and in every case of 
 discipline it is as easy as possible to complain 
 of the invasion of civil rights. If men were 
 disposed to be litigious, there might thus be 
 endless questions raised; and we are persuaded 
 that we are exempted from this, not on the 
 ground of any abstract theory, as many ima- 
 gine, but mainly because of the strength of 
 public opinion, especially in Scotland, formed 
 in better times, and by men who better under- 
 stood this subject. The theory of " contract," 
 indeed, now held by the civil courts as the 
 only ground on which they tolerate the exer- 
 cise of discipline in Non-established Churches, 
 
62 THE STATE OF THE QUESTION. 
 
 is very confused and unsatisfactory, and might 
 be so worked as to end in sheer persecution, 
 or to prostrate, if this were permitted, the 
 Churches at the feet of the State. 
 
 That this is no visionary speculation will be 
 manifest to any one who will study the subject 
 with care, and especially the two recent cases 
 in which this matter was pretty fully discussed, 
 viz., the Cardross Case, which began in 1859, 
 and the case of Forbes v. Eden, which began 
 in 1865. In the first of these cases, Mr 
 M'Millan demanded, not that his manse, &c., 
 should be retained, but that the sentences of the 
 General Assembly of the Free Church should, 
 by the power of the civil court, be ** reduced, 
 retreated, rescinded, cassed, annulled, decerned, 
 and declared by decree of our said Lords to 
 have been from the beginning, to be now and 
 in all time coming, null and void, and of no 
 avail, force, strength, or efi'ect in judgment 
 or outwith the same in all time coming, and 
 the pursuer restored and reponed thereagainst 
 in integrum.''' The Court did not shrink from 
 this portentous issue. They were quite prepared 
 to face it ; and when the Free Church pleaded 
 
THE STATE OF THE QUESTION. 63 
 
 that *' the sentences complained of being 
 spiritual acts, done in the ordinary course of 
 discipline by a Christian Church, tolerated and 
 protected by law, it is not competent for the 
 civil court to reduce them, and the actions 
 should therefore be dismissed," the Lord Ordi- 
 nary repelled this objection, and his judgment 
 was unanimously affirmed by the Court. It 
 has been alleged that the Court ultimately 
 resiled from this position. We are not aware 
 that any good evidence can be produced of 
 this. The case broke down upon a tech- 
 nical ground as to the proper parties to 
 be called as defenders ; the matter ended 
 in some confusion, and what the issue miefht 
 have ultimately been, had the case proceeded, 
 no one can tell. The Free Church, of course, 
 would have disregarded at all hazards any 
 attempt thus to reverse her spiritual sentences, 
 whilst in all temporal questions readily sub- 
 mitting^ to the civil courts. But it is sio-nifi- 
 cant to find that, in the subsequent case of 
 Forbes v. Eden, the Lord Chancellor fully 
 endorsed the legality of the action of the 
 Court of Session in the Cardross Case. He 
 said (Session Cases, Series IIL vol. v. p. 47) 
 
64 THE STATE OF THE QUESTION. 
 
 ^^ The case of McMillan v. The General Assem- 
 bly of the Free Church of Scotland (23 Dunlop) 
 was frequently relied upon in the course of the 
 argument, and the opinions of the Judges were 
 referred to on both, sides. The appellant urged it 
 as a strong authority in his favour, because it was 
 there held that sentences of suspension and depo- 
 sition pronounced by the General Assembly of 
 the Free Church of Scotland, a voluntary religious 
 association, against one of its ministers, were 
 properly the subject of an action of reduction and 
 damages, on the allegation that such sentences 
 had been irregularly pronounced, in excess of their 
 powers, and in violation of the conditions which 
 regulated the proceedings of the association 
 amongst themselves, and which were alleged to 
 form a contract amongst the members of the asso- 
 ciation. But it must be observed that in that 
 case there were actual sentences of suspension and 
 deposition, from which the loss of the pursuer's 
 emoluments as minister of the Free Church of 
 Cardross followed as a consequence." 
 
 The Lord Chancellor adds, in reference to 
 Mr Forbes : — 
 
 " The appellant in this case has not been dis- 
 turbed either in his charge of the congregation at 
 Burntisland, or in his legal position as a minister 
 of the Scotch Episcopal Church. If he had been, 
 though in this latter respect only, I should have 
 considered, with the Lord Justice-Clerk, that ' the 
 
THE STATE OF THE QUESTION. 65 
 
 possession of a particular status — meaning by that 
 term the capacity to perform certain functions or 
 to hold certain offices — is a thing which the law 
 will recognise as a patrimonial interest, and that 
 no one can be deprived of its possession by the 
 unauthorised or illegal act of another without 
 haviug a legal remedy.' " 
 
 No one can fail to see that this implies the 
 annihilation of the spiritual province, coupled 
 witb a claim of the most Erastian nature — a 
 claim of right to review, and, if the civil judges 
 think proper, to reverse the most sacred acts 
 of Non-established Church Courts. 
 
 The case of Forbes v. Eden (1865), differed 
 in some important respects from the Cardross 
 Case. It was an action raised by the Kev. 
 George H. Forbes, Episcopalian minister at 
 Burntisland, against the Eight Eev. Eobert 
 Eden, D.D., and other members of the Gene- 
 ral Synod of the Scottish Episcopal Church, 
 concludino^ — 
 
 '^ (1.) For reduction of certain canons enacted 
 by the Synod, which altered the canons in force 
 when the pursuer was ordained; (2.) fur declara- 
 tor that it was ultra vires of the Sjmod to enact 
 these, and that he was entitled to celebrate divine 
 
 E 
 
(j6 the state of the question. 
 
 service according to tlie former canons ; and (3.) 
 for damages for injury done to liim tlirougli his 
 bishop refusing to license a curate engaged by the 
 pursuer, who would not subscribe the new canons." 
 — (See Cases Decided in the Court of Session, 
 Third Series, vol. iv. pp. 143-76.) 
 
 It is unnecessary to refer to the minute 
 particulars of this case ; but, on the face of it, 
 the civil courts were asked to adjudicate 
 authoritatively on questions essentially spiri- 
 tual, although alleged to have had a necessary 
 connection with temporal consequences. The 
 case was ultimately rejected, mainly on the 
 ground that the temporal results had not 
 occurred, and were chiefly, if not wholly, pro- 
 blematical. Unlike Mr M'Millan, Mr Forbes 
 had not been deposed or deprived of any 
 civil right, and the alterations in the canons 
 complained of were alterations made, it would 
 seem, in accordance with a jDower in the Synod 
 secured by the "contract" of the denomination. 
 But apart from all this, how did the Court 
 treat the demand of Mr Forbes ? Did they 
 reject the idea that they could deal authori- 
 tatively with the most spiritual proceedings 
 
THE STATE OF THE QUESTION. 67 
 
 of Non-established Churches as incompetent ? 
 On the contrary, describing the action, the 
 Lord Justice- Clerk says : — 
 
 ^^ His complaint against them is, that in mak- 
 ing certain alterations on the code of canons they 
 have violated the constitution of the religious 
 body to which both parties belong, and have thus 
 committed a breach of contract. 
 
 " He alleges, further, that he cannot conscien- 
 tiously obey or conform to the new law and the 
 altered code ; and as by that altered code itself 
 he is taken bound to do so under heavy penalties, 
 including degradation from the office, functions, 
 and character of a clergyman, he has a material 
 interest, personal and patrimonial, to challenge 
 the legality of the alterations complained of, and 
 to seek the protection of the law against their 
 enforcement. 
 
 '' To the general relevancy of such an action it 
 does not appear to me that any good objection 
 can be stated. 
 
 " If a society, whether for secular or celigious 
 jmrposes, is bound together by articles of consti- 
 tution, and an attempt is made to alter any fun- 
 damental article of the constitution, the general 
 rule of law undoubtedly is, that a majority may 
 be restrained^ on the application of the minority^ 
 from carrying the alteration into effect,'''' 
 
68 THE STATE OF THE QUESTION. 
 
 His Lordship distinguislies between Non- 
 conformist and Established Churcbes thus : — 
 
 ^^ The position of a minister or clergyman in a 
 Dissenting communion differs no doubt from that 
 of a minister of the Established Church, and from 
 that of a member of any of the law or medical 
 corporations, inasmuch as he has no legal or recog- 
 nised status.'''' 
 
 The opinion concludes thus : — 
 
 "It is unnecessary to say anything in detail 
 of the conckisions of the summons. The sole 
 grounds of action being, for the reasons which 
 I have stated, irrelevant, according to my opinion, 
 I am necessarily led to the same conclusion with 
 the Lord Ordinary, and am for adhering to his 
 interlocutor." 
 
 In giving his opinion on the case, Lord 
 Neaves, manifesting, as the Lord Justice-Clerk 
 also did, much historical knowledge and learn- 
 ing, reserves his opinion on the vital question, 
 to which we are now referring, as follows : — 
 
 " Clerical orders conferred by a Non-established 
 Church may have little or no civil effect in this 
 part of the island ; but they may possibly confer 
 benefits elsewhere, which may entitle the pursuer 
 
THE STATE OF THE QUESTION. 69 
 
 to have them preserved by the interference of a 
 civil court." 
 
 Again : — 
 
 ^^ This being the case, the question is, whether 
 the alteration made by the canons of 1863 as to 
 the relative position of these offices was ultra vires 
 or contrary to contract. On this point it seems 
 almost sufficient to refer to the 21st canon of 
 1838, which is the same also as the corresponding 
 canon of 1811. It is there set forth as the right 
 of the Church at large, and of every national 
 Church in particular, ' to ordain, change, and 
 abolish ceremonies or rites of the Church ordained 
 only by man's authority.' " 
 
 His Lordship concludes : — 
 
 " Upon the whole, being clearly of opinion that 
 the pursuer here has not shown any excess of powers, 
 or any breach of contract, I am for adhering to the 
 Lord Ordinary's interlocutor." 
 
 In all the Courts certain Judges, no doubt, 
 made strong statements to the effect that it 
 was only in so far as civil rights were concerned 
 that they would review ecclesiastical sentences. 
 We know that in the case of Dr Warren, de- 
 posed by the Wesleyan body, the Lord Chan- 
 cellor declined to interfere, but not because 
 Non- established Churches have their inherent 
 
70 THE STATE OF THE QUESTION. 
 
 power recognised by law — not because it is in- 
 competent for the civil court to meddle directly 
 with their most sacred proceediugs. You will 
 search for such a theory in vain. Non-estab- 
 lished Churches claim to have spiritual power 
 from Christ, and will maintain this at all haz- 
 ards, but the State does not sanction this claim. 
 The judgment in the case of Forbes v. Eden did 
 not proceed on this ground ; whilst the theory 
 that Non-established Churches exist only as ordi- 
 nary societies established by ^' contract,*' implies 
 that the civil courts, which must interpret all 
 contracts, have a paramount jurisdiction over 
 them, and may deal with their most sacred 
 affairs. Their rights are not recognised by 
 statute, and therefore the civil courts, whilst 
 using words of grace and courtesy, and some- 
 times declining to interfere, claim a right of 
 unlimited supervision. 
 
 When the case of Forbes v. Eden reached the 
 House of Lords, the judgment of the Court of 
 Session was affirmed, but the right to deal 
 with spiritual sentences was not disavowed. 
 The judgment was given against Mr Forbes 
 only on the merits. The Lord Chancellor took 
 
THE STATE OF THE QUESTION. 71 
 
 the ground that no damage had been sustained, 
 but was only apprehended. His Lordship 
 said (p. 47) : — 
 
 *^ If it had not been for the petitory conclusion 
 of the summons, I think there might have been a 
 plea to the relevancy of the action upon the claim 
 for reduction of the enactments in the code of 
 canons of 1863. Supposing the appellant to have 
 really suffered damage by reason of the code of 
 1863, it would have been open to the Court to 
 consider whether the General Synod had authority 
 to make the canons from which this injury had 
 arisen." 
 
 Lord Colonsay, whose views on the Cardross 
 Case are so well known, on the present occasion 
 said : — 
 
 ^^A court of law will not interfere with the 
 rules of a voluntary association unless it be neces- 
 sary to do so in order to protect some civil right 
 or interest which is said to be infringed by their 
 operation. Least of all will it enter into questions 
 of disputed doctrine when it is not necessary to do 
 so in reference to civil interests. 
 
 " In the present case no objection is taken to 
 the jurisdiction of the Court, for this plain reason, 
 that the appellant has by the shape of his action, 
 coupled with his allegations against the proceed- 
 ings of the Synod as affecting his civil rights and 
 
/2 THE STATE OF THE QUESTION. 
 
 interests, entitled himself to have the judgment 
 of the Court on those civil rights and interests ; 
 and the conclusion for reduction which the sum- 
 mons contains was not an inapt conclusion in refer- 
 ence to such demand, because it might be pleaded 
 against a mere petitory action that those rules 
 stood in the way, and that, until they were set 
 aside, it was incompetent to the Court to go into 
 the question which would have been raised by the 
 petitory action. The meaning of that part of the 
 summons which seeks for reduction, therefore, is 
 that, in so far as those rules can be pleaded against 
 the demand for redress in reference to his civil 
 interests, they are complained of and assailed in 
 the summons " (p. 54). 
 
 The whole matter, therefore, resolves itself 
 into this : Unestablished Churches are tole- 
 rated, and, in ordinary circumstances, will not 
 be meddled with, but they have no recognised 
 jurisdiction, — their rights are not secured by 
 any statute, — they are regarded simply as volun- 
 tary associations, having, to use the language 
 lately employed by a subordinate Judge, no 
 " public privileges higher than or different 
 from any other body of persons associated for 
 a common object, be it trivial or important, 
 temporal or spiritual. . . . The circumstance 
 
THE STATE OF THE QUESTION. 73 
 
 that a number of people agree to form them- 
 selves into a society for the promotion of reli- 
 gion, and to call it a Church, in no respect dif- 
 ferences them in a question such as the present 
 from any other body of persons who associate 
 themselves for a non-religious but lawful pur- 
 pose. No such community has any ' jurisdic- 
 tion ' in the ordinary sense of the word." This 
 can scarcely be regarded as a very satisfactory 
 state of matters, and may yet lead to the most 
 serious complications. But this is the theory 
 which some, without due consideration, extol 
 as all but perfect, or at least as much better 
 than an amicable agreement ratified by statute 
 between Church and State. 
 
 No doubt some are ready to say, " Might 
 not the State agree in general to declare the 
 spiritual independence of all Churches, and 
 thus to make an entire separation between the 
 temporal and the spiritual provinces ? " But 
 how is this to be done, even if the State were 
 willing ? Is the State formally to sanction all 
 organisations which call themselves Churches, 
 and any proceedings they may choose to adopt ? 
 The impossibility of this is clear. On the other 
 
/•i THE STATE OF THE QUESTION. 
 
 hand, if the magistrate is to discriminate, as we 
 hold he must, to maintain his own position and 
 discharge his own duty, a definite understanding 
 is necessary in regard to the spiritual province. 
 We are under the impression that these vague 
 speculations only indicate a want of thought, 
 and that some, to avoid the evil of Erastianism, 
 are ready unconsciously to fall into the oppo- 
 site error of Po23ery, and to claim not only the 
 right to obey the Lord Jesus Christ as speak- 
 ing in His Word, but to do whatever they 
 please without challenge from any quarter, 
 under the name of spiritual independence. This 
 was never the doctrine of the Church of Scot- 
 land, and this phrase has been a good deal 
 misapplied. The old mode of expression is much 
 better : a government established by the Lord 
 Jesus in the hand of church ofiicers, " distinct 
 from the civil magistrate." There is a great 
 tendency at present, on pretence of " progress," 
 to reject lawful authority, and even to disregard 
 unquestionable obligations, notwithstanding 
 great professed esteem for the " contract " as 
 opposed to the '' established " system. We are 
 not sure what the ^' contract " on the part of 
 
THE STATE OF THE QUESTION. 75 
 
 the United Presbyterians would be held to be 
 if a serious question were to arise. The old 
 contract of the Seceders was, that they were 
 to "appeal to the first free, faithful, and re- 
 forming General Assembly." We presume 
 this has been superseded ; but what precisely 
 has been substituted it might be difficult to 
 say. But we know what is held to be the 
 ^' contract " of the Free Church. At a meet- 
 ing of the Commission of the Assembly, held 
 in January 1860, specially called to consider 
 the Cardross Case, a carefully-prepared report 
 was submitted, from which the following is 
 an extract : — 
 
 " Now it is important to observe that there were 
 produced in the civil court by the defender (i.e., 
 the Free Church) at the very outset of these 
 actions the foresaid several documents — (1.) The 
 Claim of Rights; (2.) The Protest; (3.) The 
 Deed of Demission; (4.) The Formula or Vow 
 signed by the pursuer. These several documents 
 form what has been called by Mr McMillan the 
 Contract. In reality they form, in conjunction with 
 the Confession of Faith, and other standards to 
 which the foresaid documents refer, the Constitution 
 of the Free Church of Scotland, to which its mem- 
 bers and office-bearers are held to have given their 
 
76 THE STATE OF THE QUESTION. 
 
 adherence by the simple fact of becoming members 
 of that Church." 
 
 Dr Candlish, in speaking of the Cardross 
 Case at the same meeting of Commission, 
 said — 
 
 " The question reserved is. What is the consti- 
 tution or the contract between Mr M'Millan and 
 us ? .... What more evidence can be given 
 as to what our Constitution is ? We put in our 
 Claim of Rights — we put in our Deed of Demission 
 — we put in our Formula,'''' ^c. 
 
 Now if this be our contract, upon the 
 strength of which every Free Church minister 
 holds his position, and is entitled to administer 
 discipline, is it not binding upon office-bearers 
 as well as upon the people ? This " contract " 
 is entirely opposed to Voluntaryism ; and if 
 one or more members of a Free Church con- 
 gregation were to demand from the civil court, 
 on the ground of breach of contract, that their 
 minister, having avowed Voluntary principles, 
 should be found no longer entitled to live 
 in his manse or to preach in his church, 
 we should like to know what would be the 
 result ? 
 
THE STATE OF THE QUESTION. 77 
 
 Exceptional circumstances require excep- 
 tional remedies ; and if either Free Church 
 or Established Church ministers wish to avoid 
 the raising of disagreeable questions, we would 
 strongly advise them to abide honestly by their 
 ordination engagements. 
 
 AVhilst both theories, however, are at pre- 
 sent considerably abused, and may be made 
 instrumental, under a better arranfjement, for 
 the vindication of truth and the punishment 
 of inconsistency, it would be very hard to 
 prove that, other things being equal, the mere 
 toleration of Non-established Churches under 
 the theory of "contract" affords a better 
 security, or anything like so good a security, 
 for the liberty of the Church as the formal 
 sanction of its creed and jurisdiction by Par- 
 liament, and the formal shutting out of the 
 civil courts from meddling with the decisions 
 of the Courts of the Church. This w^as the old 
 theory of Scotland, and it certainly proved 
 and illustrated the wisdom of our ancestors, 
 although it was rendered inoperative, or rather 
 it was rendered mischievous and intolerable, 
 by the unconstitutional and infamous Act of 
 
78 THE STATE OF THE QUESTION. 
 
 Queen Anne. The right of unlimited inter- 
 ference, on the ground of contract, on the other 
 hand, might lead to mischievous interference at 
 all times, and to the most dangerous extent, 
 with our spiritual proceedings. 
 
 This is a very dijfferent theory from that of 
 the Confession of Faith, which, fortunately, 
 is still part and parcel of the law of the land — 
 viz., '' The Lord Jesus as King and Head of 
 His Church hath therein aj)pointed a govern- 
 ment in the hand of church officers distinct 
 from the civil magistrate." This doctrine con- 
 stitutes the true liberty of the Church, which, 
 apart from the Act of Queen Anne, would 
 have remained inviolate in the Established 
 Church of Scotland to this day. The Act of 
 Queen Anne really made the difference by in- 
 troducing an incompatible civil right into the 
 very heart of the sanctuary. Some attempt 
 to deny this, but it was most clearly under- 
 stood at the time of the Disruption. The cir- 
 cular, signed by thirty-two leading ministers, 
 calling the convocation together, in November 
 1842, was six months after the Claim of Eights 
 had been adopted. Out of this convocation 
 
THE STATE OF THE QUESTION. 79 
 
 the Disruption sprang, and yet this circular, 
 in view of the whole circumstances, brings the 
 matter to this precise point. 
 
 '^ However alarming," said this circular, '' the 
 late decision of the House of Lords undoubtedly 
 is — being indeed, if not remedied by the Legisla- 
 ture, subversive of the Church's essential liberties ; 
 still, it is satisfactory to observe that in the pub- 
 lished speeches delivered on the occasion of pro- 
 nouncing that decision [by Lords Brougham, 
 Campbell, Cottenham, and Lyndhurst], not one 
 attempt is made to dispose of the great constitu- 
 tional argument on which the Church of Scotland 
 rests her undoubted right to spiritual independence. 
 For aught then said, her Claim of Rights, adopted 
 and set forth by the last General Assembly, re- 
 mains entire and unanswerable. There is not one 
 of the Acts of Parliament which that document 
 lays before us, and by which the absolute supre- 
 macy of our courts in things spiritual was un- 
 alterably secured, — there is not one of these acts 
 at all mentioned, or in the least adverted to, by 
 any of the noble and learned Lords who spoke on 
 the late memorable occasion. If unanimous in 
 the adverse sentence which was then pronounced, 
 they seem not less to have been unanimous in the 
 silence wherewith they pass over one and all of 
 the statutes which recognise and secure the ab- 
 solute and exclusive jurisdiction of the ecclesias- 
 tical courts in things spiritual. The judgment 
 
80 THE STATE OF THE QUESTION. 
 
 PROCEEDS ON A SINGLE SENTENCE IN A STATUTE OF 
 COMPARATIVELY MODERN DATE [the Act of Queen 
 
 Anne restoring Patronage], witliout the slightest 
 reference being had to the numerous, solemn, and 
 fundamental laws of the kingdom, recognising in 
 the most ample and unqualified terms the rights 
 and immunities of the Church. And without en- 
 tering into the legal merits or demerits of the 
 judgment, its undoubted effect is to place us in a 
 position where we may represent with all deference 
 to the Legislature, that the specific statute rested 
 upon by the civil courts has now, for the first 
 time, and in opposition to all former opinions, 
 been so construed as t02:flace it in direct conflict with 
 the constitution unalterably secured to the National 
 Church of this country. We can, therefore, pre- 
 sent this alternative to the Legislature, and crave 
 their own decision upon it — whether they will de- 
 stroy the constitution of the Church, or remodel 
 this particular statute^ which has been made to 
 conflict against it ; and so long as we have the 
 faith of treaties and of coronation oaths for our 
 securities, we may hope that the Legislature will 
 yet respect the privilege assigned sacredly and in- 
 violably to our Church, and which both at the 
 Rewlutio7i and at the Union of the kingdoms were 
 declared to belong to her without any alteration for 
 ever.'' — {Free Church Magazine^ second series, vol. 
 ii., pp. 3, 4.) 
 
 Apart from other questions wliicli must still 
 
THE STATE OF THE QUESTION. 81 
 
 be raised in connection with the present state 
 of our ecclesiastical affairs, the Act of Queen 
 Anne and the Act of Lord Aberdeen are now- 
 swept from the statute-book, and the recogni- 
 tion of the creed and discipline of the Church 
 in settling ministers stands clear as at first. 
 The present excellent Lord Advocate, in ad- 
 verting recently to this aspect of the question 
 in the House of Commons, is reported to have 
 taken this ground. He said — 
 
 " The decision in the Auchterarder case, which 
 led to the proceedings that ultimately resulted in 
 the Disruption of 1843, proceeded upon the terms 
 of the Act of 1592, revived by the Act of Queen 
 Anne, which obliged and astricted the Presbytery 
 to take on trial any presentee alleged to be quali- 
 fied. The refusal of the Presbytery to take such 
 a presentee on trial, in consequence of the passing- 
 of the Veto Act, was held to violate the civil rights 
 of the patron and presentee as recognised in these 
 Acts, and therefore the civil courts held themselves 
 entitled to interfere with the action of the Church 
 courts. But such a state of things cannot again be 
 after the present bill is passed, because the express 
 enactments of these Acts are repealed. In cases 
 since 1843 the civil courts have certainly distinctly 
 recognised the final and exclusive jurisdiction of the 
 Church courts within their own province. I will 
 
82 THE STATE OF THE QUESTION. 
 
 not weary the House by referring at any length to 
 these cases, but I quote a very few words from 
 the opinions of the judges in some of them. In 
 the case of Sturrock versus Greig, in 1849, Lord 
 Medwyn, speaking of the two jurisdictions, eccle- 
 siastical and civil, said, * Whenever the matter 
 clearly falls within the proper province of the 
 Church court, its proceedings cannot be questioned 
 in a civil court.' In the case of Lockhart v. the 
 Presbytery of Deer, in 1851, Lord President 
 Boyle said — ^ We, the Court of Session, have 
 just as little right to interfere with the proceed- 
 ings of the Church courts in matters of ecclesias- 
 tical discipline as we have to interfere with the 
 proceedings of the Court of Justiciary.' In the 
 same case, Lord Ivory, speaking of the Auchter- 
 arder and Strathbogie cases, said — * I am bound 
 to hold that these cases were rightly decided ; but 
 what was the ground on which the Court inter- 
 posed? It was not because they thought them- 
 selves entitled to interfere with the proper eccle- 
 siastical jurisdiction of the Church courts, but 
 because they held that the Ecclesiastical courts 
 were going out of their province, and were touch- 
 ing matters which were properly questions of civil 
 right.' The latest case of all was Wight versus 
 the Presbytery of Dunkeld, in 1870, in which the 
 Lord Justice-Clerk (Moncreiff) said — ' Within their 
 spiritual province, the Church courts are as supreme 
 as we are within the civil, and as this is a matter re- 
 lating to the discipline of the Church, and solely 
 
THE STATE OF THE QUESTION. 83 
 
 within the cognisance of the Church courts, I think 
 we have no power whatever to interfere.' Lord 
 Benhohne said — ^ The whole constitution of the As- 
 semhlj^ appears to me to render them independent, 
 within their own jurisdiction, of any interference 
 at the instance of the Court of Session.' This 
 being the unquestioned law of the land, and the 
 bill already providing that in all these matters re- 
 lating to the appointment of ministers touched 
 by it, the final and exclusive jurisdiction of the 
 Church courts should be fully recognised, I do 
 not think it necessary to insert in the bill an 
 assertion of the final and exclusive jurisdiction of 
 the Church courts in regard to matters which are 
 not touched by it." 
 
 It is remarkable that in the Assembly 1841 
 Dr Cunningham argued, in regard to the 
 operation of the Act of Queen Anne, and the 
 necessity for its absolute repeal, precisely as 
 the Lord Advocate does now after its aboli- 
 tion. Dr Cunningham held that the Patron- 
 iicre Act had introduced a civil rio:ht into the 
 Church, and thus furnished a pretext for all 
 the invasions of the Court of Session ; and he 
 clearly refuted the allegation, still repeated, 
 that Patronage was not the main cause of all 
 the difficulties which ended in the Disruption 
 of 1843. 
 
84 THE STATE OF THE QUESTION. 
 
 " There is a clause," said lie, *^ in my motion 
 which asserts that patronage is the cause of the 
 difficulties in which the Church is at present in- 
 volved. Now I do not mean that it was directly 
 in consequence of what the Church was doing in 
 connection with patronage that these difficulties 
 have arisen. They arose in consequence of our 
 maintaining the great principle that no man 
 should be intruded into a congregation contrary 
 to the will of the people — a principle that was 
 well worth contending for, well worthy of the 
 Church to spend and be spent in maintaining. 
 It is in consequence of our asserting that prin- 
 ciple that our difficulties have arisen. But it is 
 true, likewise, that the decision of the Court of 
 Session is founded on the infamous and detestable 
 Act of Queen Anne. (Great cheering.) It is on 
 that law that all our difficulties are based. Some 
 tell us that we should only ask for a modification 
 of this Act — such a modification as would prevent 
 it from ever again serving as an instrument of 
 such oppression. This, I take it, is a short-sighted 
 view. Our opponents do not pretend to find a 
 direct warrant for their proceedings in the Act of 
 Anne. They only find it in that Act in so far as it 
 constitutes a civil right. They are, they tell us, 
 the guardians of civil rights, and as they see no 
 other very obvious way of enforcing this right, 
 they resort to the tyrannical and oppressive mea- 
 sures of which we complain. But if the Act of 
 Anne be the foundation, real or alleged, of all 
 
THE STATE OF THE QUESTION. 85 
 
 these proceedings, does that not give us the best 
 ground for maintaining that the Church ought to 
 come to the conclusion that there will be no peace 
 till that Act is removed out of the way? We 
 hold ourselves imperatively called upon to tell the 
 State its whole duty, which is to get this accursed 
 thing removed, to get this element of civil right 
 which has been introduced into the Lord's house 
 for ever expelled. This is the substance of our 
 position, that patronage is a plant which our 
 Heavenly Father hath not planted, and which 
 must therefore be rooted out." — {Blue Book^ 
 1841.) 
 
 In the discussion on the report of the Non- 
 intrusion Committee in the same year, 1841, 
 Dr Cunningham made a remarkable statement 
 bearing upon another allegation sometimes re- 
 peated at present — viz., that Parliament ought 
 to overturn the judgments which led to the 
 Disruption. Speaking of the Bill of the Duke 
 of Argyll, he said : — 
 
 " It would put an end to the oppressions of the 
 civil court, and leave the ministers of the Church 
 to go about the employments of the ministry in 
 peace. Dr Hill asked them if it would settle the 
 case of Marnoch and Auchterarder. No, it would 
 not settle these cases ; but would the repeal of 
 the veto settle them? (Cheers.) According to 
 
86 THE STATE OF THE QUESTION. 
 
 the views of Dr Hill and his friends, there was 
 no way of settling these cases but by sanctioning 
 the revolting atrocity at Marnoch, and forcing in 
 Mr Young upon the reclaiming parish of Auchter- 
 arder. No ; the Bill of the Duke of Argyll could 
 not settle these cases, hut it would prevent all such 
 cases in time to come; and these cases, however 
 painful and annoying they might in the meantime 
 be, they would yet get over." 
 
 From this extract it is quite clear that Dr 
 Cunningham recognised the distinction be- 
 tween the legislative and judicial functions of 
 the Government. Except in revolutionary 
 times Parliament does not overturn or disallow 
 the decisions of the Judges of the land, but 
 simply alters the law upon which these judg- 
 ments are founded, so that they may not occur 
 again. This has been effectually done in the 
 present case. The whole foundation of the 
 two judgments in the Auchterarder Case — the 
 only judgments carried to the highest court of 
 appeal — has been swept away by the Duke of 
 Richmond's Bill ; and the jurisdiction, of the 
 Established Church, with the rights of the 
 people in the settlement of ministers, is clearly 
 recognised. Thus the exception which had 
 
THE STATE OF THE QUESTION. 87 
 
 been introduced in a way so offensive by- 
 Queen Anne's Act to the noble doctrine of the 
 Confession of Faith, in regard to the spiritual 
 government '^ distinct from the civil magis- 
 trate," is now swept away, and the liberty of 
 the Church in this matter of settlinor minis- 
 ters, as in others, distinctly acknowledged. 
 K it is said that this is done by Parlia- 
 ment, and therefore is Erastian, the answer 
 is, that Parliament only undoes its own evil 
 legislation. The same power which raised the 
 difficulty could alone remove it. It only does 
 its duty when it removes it, and any one 
 objecting to the recent statute on this ground 
 might easily raise similar objections to all the 
 ecclesiastical legislation of the past, to the Act 
 1592, or the Act 1690. A rather novel idea 
 in regard to the spiritual independence of 
 Churches has, no doubt, lately arisen in certain 
 quarters. It began at first with those who, 
 before the Disruption, were quite willing that 
 the Act of Queen Anne should remain, but 
 who insisted that, notwithstanding this tolera- 
 tion of a civil right in the ecclesiastical pro- 
 vince, the Parliament should declare that the 
 
88 THE STATE OF THE QUESTION. 
 
 Church might do whatsoever it pleased. No 
 doubt they intended to confine their action 
 only to spiritual things, and they would not 
 have disputed the right of the magistrate to 
 resume his temporal gifts in special cases of 
 collision. But the whole scheme was confused 
 and impracticable. They did not see that the 
 simpler plan was to remove the temporal right 
 altogether from the spiritual province, so that 
 such collisions might never occur. Since then, 
 this idea, as is generally the case with erroneous 
 ideas, seems to have been exaggerated to the 
 effect that, as no Government will declare the 
 right of Churches to do as they please, there 
 ought to be, or at least there can be, no Church 
 Establishment on lawful terms. All this arises 
 very much again from a confusion of ideas. 
 We have proved that in temporal matters no 
 unestablished Church will be allowed to do 
 what it pleases if it pleases wrong, any more 
 than an established one. On the other hand, 
 the line between thino^s civil and thinofs ecclesi- 
 astical is sujfficiently broad and palpable, and 
 after all that has been said, the doctrine of 
 co-ordinate jurisdiction, asserted by the more 
 
THE STATE OF THE QUESTION. 89 
 
 sober disruptionists and anti-patronage men, is 
 not only thoroughly defensible if the jurisdic- 
 tions are not confused by such a statute as 
 Queen Anne's Act, but it is the doctrine of 
 Scripture and of the Confession of Faith, and 
 therefore of the Constitution of Scotland, and 
 is capable of being worked most harmoniously 
 in practice. 
 
 But a most important question still remains 
 — What is to be the future result of the recent 
 legislation upon the Presbyterians of Scotland ? 
 He would be a rash man who would speak 
 dogmatically on this subject, although we may 
 well anticipate the best. We are strongly per- 
 suaded that the recent legislation has been 
 right in itself, and that it is highly acceptable 
 to the great mass of the Scotch people. It is 
 the very kind of legislation which Dr Chalmers 
 himself ultimately regarded as essential. In 
 the Assembly 1841 he said — 
 
 " Were I a Conservative Prime Minister — and 
 I use the term not in its party, but in its good 
 and general meaning, as expressive of that policy 
 which were the best conservator of public order and 
 of all our institutions — I should deem it a master- 
 stroke of sound and able statesmanship to give the 
 
90 THE STATE OF THE QUESTION. 
 
 people of Scotland tlie election of their ministers, 
 believing, as I do, that whatever may be the sem- 
 blance, there is not one common point of practical 
 or substantial analogy between a democracy in the 
 Church and a democracy in the Commonwealth, 
 when guarded, as our Church is, by her orthodox 
 standards, and administered by a soundly-educated 
 clergy." 
 
 This is exactly what a " Conservative Prime 
 Minister" has done. For the first time for 
 300 years, the Scotch Presbyterians may be 
 said to be left to the management of their own 
 affairs ; and as the very credit of their system 
 is at stake, an immense responsibility rests on 
 all who have any influence in guiding public 
 opinion, and especially in regulating ecclesi- 
 astical affairs. It ought to be a matter of 
 earnest prayer that all may be animated by 
 a Christian and patriotic spirit, and guided by 
 heavenly wisdom, in a matter so important. 
 Anything like mere sectarian objects and nar- 
 row views ought to be laid aside, as unworthy 
 of our noble country, our grand forefathers, 
 and the living representatives of Knox and 
 Chalmers. Much will, under God, depend on 
 the wisdom with which the new regulations in 
 
THE STATE OF THE QUESTION. 91 
 
 regard to the election of parochial ministers 
 are framed, and the spirit of right principle 
 in which a Bill so excellent in itself is worked. 
 All who wish well to Scotland must desire 
 that the leaders of the Established Church, in 
 particular, may know the responsibility under 
 which they act. As to union, it is much 
 more easy to make breaches than to heal 
 them, and time only will tell the result of 
 the recent measure. The great barrier is re- 
 moved, but there are still difficulties on both 
 sides of various kinds, to which it is unneces- 
 sary here more specially to refer, and any 
 attempt to force a reunion, not resting on in- 
 telligent conviction, would only end in evil. 
 There are theoretical and practical questions 
 yet to be dealt with. It is to be hoped that 
 they will be dealt with in a wise and Christian 
 spirit, since every true and enlightened patriot 
 must desire to see the long-scattered Presby- 
 terians of Scotland again gathered into one 
 upon a basis of truth and liberty. At the same 
 time, complete amalgamation, though desirable, 
 cannot be forced, nor is it absolutely necessary 
 to a large measure of practical unity of action. 
 
92 THE STATE OF THE QUESTION. 
 
 But some still urge that the only way of 
 uniting the Presbyterians of Scotland is to 
 make the Establishment principle an open 
 question, and to sweep away all the existing 
 Church Establishments. Of all the delusions 
 afloat, this is probably the greatest. It is 
 a poor compliment to the ministers of the 
 Established Church to suppose that they 
 would abandon their sworn principles and 
 unite with Voluntaries and revolutionists, 
 if only their temporal rights were abolished 
 — especially if abolished at the instance of 
 the very men who are professing to seek 
 union with them. The scheme is far from 
 feasible. We, who have no connection with 
 the Establishment, hold as firmly as ever the 
 duty of national religion as part of divine 
 truth. Voluntaryism is a thing of yester- 
 day, and instead of being an element of 
 union, it has been the great dividing element 
 amongst the Presbyterians of Scotland since 
 the beginning of the century. A .union 
 would be purchased too dearly at the ex- 
 pense of adopting a novel, unscriptural, and 
 revolutionary principle, which might ulti- 
 
THE STATE OF THE QUESTION. 93 
 
 mately overtlirow botli Church and State. 
 On the other hand, it has been found quite 
 practicable in our colonies to have a union of 
 all the Presbyterians upon the old basis, and 
 the most eager Voluntaries have not only seen 
 their way to join this union, but to share, 
 without reluctance, in the gifts of the State. 
 We cannot doubt that it would be so in this 
 country if all other real obstacles of principle 
 and practice were removed out of the way. 
 A union on the old basis is the thing to be 
 sought, and a union of all sound Presbyte- 
 rians. This is the true balm for the wounds 
 of Scotland, if it could only be obtained. The 
 sectarian and inconsistent theory of union 
 which has been so eagerly pressed, has only 
 issued in dividing congregations and ministers, 
 lowering the status of the Free Church, and 
 turning our Assemblies into scenes of disorder. 
 Had the Free Church stood firmly on the old 
 ground, she would have occupied a noble posi- 
 tion at present, and might have had much 
 influence in not only bringing about a union 
 worth living to witness, but a better state of 
 things than we or our fathers have seen since 
 
94 THE STATE OF THE QUESTION. 
 
 the Reformation. All our sacrifices and efforts 
 might thus have proved still more prominently 
 of the greatest permanent advantage to Scot- 
 land. We trust the great object which as 
 Christian patriots we seek may yet be accom- 
 plished by the combined wisdom and unsec- 
 tarian feeling of the true men of the kingdom. 
 We must not reject the experience of the past 
 in favour of dangerous, untried, and unsatis- 
 factory modern theories. All experience com- 
 bines to prove that the scriptural principles 
 of our Reformers are of imperishable import- 
 ance ; and that the joint and harmonious action 
 of Church and State, as ordinances equally 
 divine, is essential to the solid and perma- 
 nent good of the nation. Of course we must 
 on no account sacrifice essential principles ; 
 but this is quite as true in regard to Volun- 
 taryism as to Erastianism. 
 
 The experience alike of the past and pre- 
 sent is eloquent in lessons. No machinery 
 can grapple successfully with the social- evils 
 of our country, and break up the heathen 
 masses of our large cities, but the old paro- 
 chial system, extended and adapted to pre- 
 sent circumstances. It is surely alarming, in 
 
THE STATE OP THE QUESTION. 95 
 
 addition to intemperance and other clamant 
 evils, to hear of 500,000 human beings con- 
 signed to heathenism in Scotland, whilst we 
 are talking coolly of removing a portion of 
 the existing Christian machinery, and turning 
 the money to secular purposes. Instead of this, 
 not only do we need all the money, but more 
 money, and a higher average of ministers, men 
 of more power and energy, with a comprehen- 
 sive union of Presbyterians and a reconstructed 
 ecclesiastical system upon the old basis, in 
 order that our country may rise to its former, 
 or even to a higher, eminence. Scotchmen are 
 still great in all parts of the world. In connec- 
 tion with the old parochial system, it was said 
 not only that the highest fruits of intelligence 
 and Christian principle were by the Divine 
 blessing realised, but that *^the taverners com- 
 plained that their trade was gone, the people 
 were become so sober." Very much has, no 
 doubt, been done by voluntary contributions 
 and by the efforts of Nonconformist Churches, 
 for which we cannot be too thankful to God, 
 but all has not been done that is urgently 
 necessary. We are neither supplying minis- 
 ters in sufficient numbers for the growing 
 
96 THE STATE OF THE QUESTION. 
 
 population, nor of suificient quality, nor are 
 we supporting them adequately. Many minis- 
 ters are worse paid than colliers, and the 
 quality of those that serve at the altar is not 
 being elevated. They cannot live as they 
 ought, or make any provision for their fami- 
 lies. Let any one read the First Book of 
 Discipline, and see the noble ideas of Knox 
 in regard to the kind of provision due to 
 the ministers of God, and he will see what an 
 amazing contrast it presents to the hunger- 
 bitten system which at present so widely 
 exists. Amidst the rapid rise in the incomes 
 of all other classes of society, the ministry 
 is apt to sink and be neglected, and already 
 we feel this evil amidst our many divisions and 
 crude speculations. On the other hand, were it 
 possible to have, on the old basis, a true union 
 of Presbyterians — a redivision of parishes — a 
 breaking up of all the masses of heathenism 
 into manageable districts under due super- 
 vision — a minimum stipend to our mioisters 
 of £300 or £400 a year, with a manse — were 
 we to have the poor and the education 
 of the country managed gratuitously as for- 
 merly, by Christian agency instead of by 
 
THE STATE OF THE QUESTION. 97 
 
 a costly army of comparatively inefficient 
 functionaries, the greatest good would result 
 to all classes, and we are confident that an 
 immense pecuniary saving would be effected. 
 How far all this is practicable, of course, re- 
 mains to be seen. It depends, under God, 
 very much on the wisdom of our people, and 
 the reasonable and Christian spirit of those 
 who guide the counsels of churches. We do 
 not despair, especially when we see the great 
 stumbling-blocks and roots of mischief of the 
 past removed ; and we trust all classes of Pres- 
 byterian ministers will, as time advances, be, 
 by the Divine blessing, equal to the occasion. 
 
 There are other powerful considerations in 
 favour of unity amongst the Presbyterians of 
 Scotland. The sons of Knox and the Cove- 
 nanters ought ever to be foremost in the great 
 struggles of the world for truth and liberty. 
 It has not been so of late. Whilst we have 
 been torn asunder by interference from without 
 and imnecessary debates within, the great 
 enemies of all our Churches have been making 
 the most strenuous efforts and the most por- 
 tentous progress. Atheism of the most un- 
 disguised type is now boldly appearing in high 
 
98 THE STATE OF THE QUESTION. 
 
 places. Eomanism^ is openly '^ compassing 
 sea and land " to make proselytes, and boast- 
 ing that slie expects soon to regain lier former 
 tyrannical supremacy in Britain. The intoler- 
 ant disciples of Laud in England, from whom 
 our ancestors suffered so much, are again 
 manifesting the old spirit, and even seeking 
 disestablishment with a view to dominion. 
 Amidst all this, Scotland is bound not to 
 be neutral, leaving her brethren in England 
 and elsewhere to fight comparatively unaided. 
 She should seek, as of old, to stand in the very 
 front of the battle. This might be one of the 
 most blessed results, not only to the world, 
 but to our own generations yet unborn, of a 
 true union amons^st ourselves. 
 
 Were the objects at which we have hinted 
 accomplished on sound principles, it would 
 be a glorious day for Scotland. It would, 
 in the language of Dr Chalmers, " light up a 
 jubilee " throughout the land. Meantime, let 
 right principles be held fast by those who 
 see their importance, and let wise measures 
 be promoted, unawed by opposition and un- 
 deterred by any dijBficulties. Let us, in humble 
 dependence on the Divine strength and bless- 
 
THE STATE OF THE QUESTION. 99 
 
 ing, do what we can for God and truth, 
 acting zealously, as we have opportunity, both 
 in our beloved Scotland and throughout the 
 world. The position of Scotland is very pecu- 
 liar. After being torn and rent by civil and 
 religious debates for centuries, we have now a 
 state of comparative peace, whilst upwards of 
 80 per cent, of the population are still un- 
 derstood to be Presbyterians, holding a Con- 
 fession of Faith which has never been formally 
 altered. On the other hand, with much 
 poverty, crime, and heathenism in certain 
 quarters, we have much wealth and Christian 
 liberality in others, more true liberty than has 
 been enjoyed in the land since the days of 
 Knox, and a scheme of education which, 
 although still deficient in its higher depart- 
 ments, bids fair, if wisely managed, to realise 
 the noblest conceptions of our great Eeformer. 
 What we want now is high Christian patriot- 
 ism, unity in the truth, and such a diflfusion of 
 saving knowledge and living Christianity as 
 shall reach to the lowest depths of society, and 
 extend to the utmost limits of the kingdom ; 
 and this, too, not only for ourselves, but for a 
 still higher object, viz., that we may take a 
 
100 THE STATE OF THE QUESTION. 
 
 worthy part in the greatest of all work, the 
 entire Christianisation of the world. For such 
 great and glorious blessings we must look ear- 
 nestly to Him who alone doeth marvellous 
 things, and with whom is the residue of the 
 Spirit. ^' Lord, revive Thy work in the midst 
 of the years, in the midst of the years make 
 known; in wrath remember mercy." " Make 
 us glad according to the days wherein thou 
 hast afflicted us, and the years wherein we have 
 seen evil." " They that shall be of thee shall 
 build the old waste places, thou shalt raise up 
 the foundations of many generations, and thou 
 shalt be called The Eepairer of the breach, The 
 Eestorer of paths to dwell in." 
 
 P.S. — The following Memorial was pre- 
 pared by men who, acting together, combined 
 legal knowledge with an acquaintance with 
 the history and principles of our Church. 
 Other necessary documents were also prepared 
 in contemplation of a Disruption, which was 
 thought inevitable, but these were, by the 
 gracious interposition of God, rendered unne- 
 cessary. They may perhaps see the light 
 at some future time. 
 
MEMORIAL TO COUNSEL. 
 
 Accompanying tliis Memorial there are sent to 
 Counsel — 
 
 (1) A volume containing the Standards of the 
 Free Church of Scotland, published by 
 authority of the General Assembly, as set 
 forth in Act c. ix. 1851. This Act is printed 
 in this volume as a preface ; after which the 
 Confession of Faith and Catechisms are 
 given; and the other authoritative documents 
 are placed in the Appendix. 
 
 (2) Acts of the Free Church Assembly for 1843 
 and 1851. 
 
 (3) Catechism of the Constitution of the Free 
 Church, sanctioned by the General Assembly 
 of 1847. 
 
 (4) Rules and Forms of Procedure of the United 
 Presbyterian Church. 
 
 (5) Summary of the Principles of said Church. 
 
 (6) Statement by the Committee of the Synod 
 
 of the United Presbyterian Church, of the 
 
 u 
 
102 MEMOKIAL TO COUNSEL. 
 
 grounds which justify and demand prosecu- 
 tion of the Disestablishment and Disendow- 
 ment of the Established Churches of Eng- 
 land and Scotland. 
 
 Disputes have lately occurred in the Free Church 
 of Scotland, arising out of certain proposals for 
 the Union of that Church with the United Pres- 
 byterian Church. Those in favour of such a 
 Union have been obliged, in the meantime, to 
 abandon the proposals as originally made, and to 
 seek to effect their object in another way — viz., 
 by what is called " The Scheme for the Mutual 
 Eligibility of Ministers of the Free Church, the 
 United Presbyterian Church, and the Reformed 
 Presbyterian Church." As some of them deny that 
 this scheme is designed to accomplish this object, 
 the scheme itself must be looked at strictly on 
 its own merits, and irrespective of any such sup- 
 posed object. That Counsel may understand the 
 exact position of matters, it is needful to narrate 
 briefly the proceedings in regard to the proposed 
 Union out of which this scheme sprang. 
 
 I. 
 
 Narrative of negotiations anent Union. — When 
 the Free Church General Assembly met in 1863, 
 certain overtures were laid on its table in favour 
 
MEMORIAL TO COUNSEL. 103 
 
 of the Union of the Non-established Presbyterian 
 Churches in Scotland, and also a letter from the 
 Synod of the United Presbyterian Church, inti- 
 mating that a committee had been appointed by 
 that Church for a similar purpose, and proposing 
 a conference. On these overtures and that letter 
 being read and considered by the Assembly, they 
 aofreed to the followino^ motion : — " That the 
 General Assembly, cordially approving of the 
 object contemplated in the overtures, and recognis- 
 ing the duty, especially in present circumstances, 
 of aiming at its accomplishment by all suitable 
 means consistent with a due regard to the priiiciples 
 of this Churchy unanimously resolve to appoint a 
 committee to take into consideration the whole 
 subject of union among the Non-established 
 Churches in Scotland, and in particular, the 
 General Assembly authorise the committee to 
 confer with the Committee on Union, recently ap- 
 pointed by the Synod of the United Presbyterian 
 Church, as well as with representatives of any 
 of the other Churches named or indicated in the 
 overtures, should occasion or opportunity of doing 
 so arise ; and the Assembly appoint the committee 
 to report upon the whole subject to the General 
 Assembly of next year." It will be observed 
 that this resolution was passed, subject to " a due 
 regard to the principles of the Free Church." 
 The attention of the Union Committees of the 
 
104 MEMORIAL TO COUNSEL. 
 
 Free Churcli and United Presbyterian Churches at 
 their early conferences was directed to the obtain- 
 ing of information as to the Standards and Constitu- 
 tions of the two Churches ; and the result of these 
 inquiries was embodied in a Report, setting forth at 
 length the various documents and standards which 
 formed the Constitutions of the two Churches, 
 to which report reference is made below (pages 
 137-140 hereof). 
 
 After obtaining this information, the Com- 
 mittees of the two Churches mapped out their 
 work, and distributed into several heads those 
 matters which required to be considered and dis- 
 cussed. (This scheme, it may be here stated, to 
 save after explanation, was termed the '' Pro- 
 gramme.") The first head of this programme was 
 — " The extent to which the two Churches agree on 
 the province of the Civil Magistrate in relation to 
 Religion, and the Christian Church." The other 
 heads of the programme need not be noticed, as 
 no questions on these points are to be referred to 
 hereafter in this Memorial. 
 
 The Committee then proceeded to consider the 
 first head of the programme, and presented an 
 interim report to the General Assembly of 1864, 
 which was adopted ; and the Assembly also re- 
 appointed the Committee with its former instruc- 
 tions. In 1864-65 the Free Church Union Com- 
 mittee also conferred with Committees which had 
 
MEMORIAL TO COUNSEL. 105 
 
 been appointed by the Reformed Presbyterian 
 Churcli and the English Presbyterian Church; 
 but it may be well here to state that the questions 
 to be submitted to Counsel for opinion relate only 
 to the difference between the Free Church and the 
 United Presbyterian Church. 
 
 The Free Church Committee on Union, so re- 
 appointed, reported their proceedings to the next 
 Assembly, 1865 ; and on the adoption of their 
 report, were again re-appointed. They were again 
 re-appointed by the General Assembly of 1866, 
 with this in addition, that the report was ordered 
 to be sent down to the Presbyteries of the Church 
 for consideration ; and if so disposed, they were 
 instructed to send up suggestions to the Union 
 Committee as to points on which they might want 
 more information. A large number of Presbyteries 
 did send up such suggestions — a few did not. 
 After perusing these, the Union Committees of all 
 the negotiating Churches went again over the first 
 head of the programme carefully, and drew up 
 this Report : — 
 
 I. Report on first head of programme. — Certain 
 Ai'ticles of Agreement held by the Committees in 
 common. 
 
 II. 1. Distinctive Articles by the Free Church 
 and English Presbyterian Church Committees, 
 
106 MEMORIAL TO COUNSEL. 
 
 wliicli were : — " As an act of national homage to 
 Christy the Civil Magistrate ought^ when necessary 
 and expedient J to afford aid from the national re- 
 sources to the cause of Christ, provided always 
 that in doing so, while reserving full control over 
 his own gift, he abstain from all authoritative 
 interference in the internal government of the 
 Church. But it must always be a question to 
 be judged of according to times and circumstances, 
 whether or not such aid ought to be given by the 
 Civil Magistrate, as well as' whether or not it 
 ought to be accepted ; and the question must, in 
 every instance, be decided by each of the two parties 
 judging for itself, on its own responsibility." 
 
 2. Distinctive Articles by the United Presby- 
 terian Church Committee, which were : — " That it 
 is not competent to the Civil Magistrate to give 
 legislative sanction to any creed, in the way of set- 
 ting up a civil establishment of religion, nor is it 
 witliin his province to provide for the expense of 
 the ministrations of religion out of the national 
 resources ; that Jesus Christ, as sole King and 
 Head of His Church, has enjoined upon His people 
 to provide for maintaining and extending it by 
 free-will offerings ; that this being the ordinance of 
 Christ, it excludes state aid for these purposes, and 
 that adherence to it is the true safeguard of the 
 Church's independence. Moreover, though uni- 
 formity of opinion with respect to civil establish- 
 
MEMORIAL TO COUNSEL. 107 
 
 ments of religion is not a term of communion in 
 the United Presbyterian Cliurcli, yet the views on 
 this subject, held and universally acted upon, are 
 opposed to these institutions." 
 
 (This article was afterwards, in a general way, 
 acquiesced in by the United Presbyterian Synod.) 
 
 3. Distinctive Articles of the Reformed Presby- 
 terian Church 
 
 III. Statement as to the relation of the several 
 gotiating Churches 
 established in Scotland. 
 
 negotiating Churches to the existing Church 
 
 Resolutions thereanent, — When this report of the 
 Union Committee was taken up in the Assembly 
 of 1867, there was much discussion on the ques- 
 tion, and a motion and two amendments were 
 submitted to the House. The motion was : — 
 *^ That the General Assembly approve of the re- 
 port, and express their grateful satisfaction with 
 the large measure of agreement under the First 
 Head of the Programme, as well as with the 
 reiterated assurance of entire agreement under the 
 Second Head. Further, the General Assembly 
 being more than ever impressed with the duty 
 and importance of aiming at a cordial union 
 among all the dis-established branches of the 
 Church of Scotland, re-appoint the Committee 
 with the former instructions. And beiag of 
 
108 MEMORIAL TO COUNSEL. 
 
 opinion, as at present advised, that, as regards tlie 
 First Head of the Programme, considered in itself, 
 
 THEEE APPEARS TO BE NO BAR TO THE UNION CON- 
 TEMPLATED, the General Assembly, while reserving 
 final judgment on the whole case, and every part 
 thereof, direct the Committee to give their earnest 
 attention to the other heads of the Programme, 
 especially those which deal with the worship, 
 government, and discipline of the Church, and 
 with those important j^ractical questions which 
 relate to property and finance." The following 
 amendments were also brought forward : — 1. 
 " That the Assembly, in receiving the report laid 
 on the table by the Committee on Union with 
 other Churches, approve of the diligence of the 
 Committee, and re-appoint it with its former 
 instructions. The Assembly at the same time — 
 considering the immature state of the question, 
 the overtures now on the table, and the fact that 
 whilst only one-third of the ministers of this 
 Church are entitled to be present in the Assembly, 
 the people of the Church at large have never been 
 consulted in regard to this matter at all — reserve 
 their judgment on any part of the Programme 
 till the Union Committee shall have cornpleted 
 its work, by bringing up a report on all the heads 
 of the Programme, with definite proposals, and 
 the grounds on which they rest, so that the 
 General Assembly and the Church may have the 
 
MEMORIAL TO COUNSEL. 109 
 
 wliole subject before tliem." 2. ^' That the 
 General Assembly approve of the report, and 
 express their satisfaction with the increased and 
 large measure of agreement under the First Head 
 of the Programme, as well as with the amount of 
 harmony under the Second Head. The General 
 Assembly continue to be deeply impressed with the 
 duty and importance of aiming at the union of all 
 the disestablished Churches of Scotland, and re- 
 appoint the Committee, with former instructions. 
 And they direct their Committee to use all dili- 
 gence in prosecuting the conferences on all the 
 subjects to be embraced, with a view to a final 
 report, which shall contain the conclusions arrived 
 at, with the grounds on which they rest, so that 
 the General Assembly may be in circumstances to 
 submit the whole question in a satisfactory form 
 to the Church at large." There being three 
 motions, the House divided between the second 
 motion and the third. The third was carried by 
 90 to 65. The third motion was then put against 
 the first motion. The division was as follows : — 
 For 1st, 346 ; for 3d, 120 ; majority for 1st motion, 
 
 Dr Begg then rose and said, — ^' Moderator, I 
 wish to lay on the table of the General Assembly 
 the following protest : — ' We, the subscribers, for 
 ourselves, and on behalf of all others who may 
 adhere, do hereby protest against the resolution 
 
110 MEMORIAL TO COUNSEL. 
 
 now adopted by this Assembly, and tliat on tlie 
 following, among other grounds : — 1st, Because 
 the resolution, as adopted, implies an abandonment 
 and subversion of an admittedly constitutional 
 principle of the Free Church of Scotland. 2d, 
 Because the resolution, as adopted, is ultra vires 
 of this Assembly. For these and other reasons, 
 we protest, that we and all other office-bearers and 
 members of the Church shall not be committed by 
 the said resolution to any action that may be taken 
 thereupon, and shall be at liberty to oppose all 
 such action by every competent means. (Signed) 
 James Begg, D. D. ; Peter Denny ; John Forbes 
 D. D. ; James Galbraith ; James Gibson, D. D. 
 Robert M'Corkle, minister ; James Julius Wood 
 D.D. ; D. Thorburn, M.A. ; Robert Gault, minister 
 William Balfour, minister ; John McMillan, elder 
 Patrick Borrowman, minister ; A. Macbride 
 minister ; John Irving, elder ; D. Crighton, elder 
 Alexander Cameron, minister ; D. Macdonald, 
 elder; Wm. Moffat, minister." The Assembly 
 appointed this protest, with reasons, to be kept in 
 retentis. The following dissent, with reasons, 
 was also given in and read, and ordered to be 
 inserted in the Minutes : — " We, the undersigned, 
 for ourselves, and on behalf of all others who may 
 adhere to us, dissent against the resolution now 
 adopted by this Assembly, for the following amongst 
 other reasons: — 1st, Because the resolution, as 
 
MEMORIAL TO COUNSEL. Ill 
 
 adopted, implies an abandonment and subversion 
 of an undoubtedly constitutional principle of the 
 Free Church of Scotland. 2d, Because the 
 resolution, as adopted, is ultra vires of this 
 Assembly. (Signed) James Begg, D.D. ; James 
 Gibson, D.D. ; John Irving, elder; James Julius 
 Wood, D.D. ; Eobert Gault, minister; Thomas 
 Gardiner, minister." To this dissent Mr Borrow- 
 man, minister at Glencairn, and Mr M'Corkle, 
 minister at St Ninian's, intimated their adherence. 
 The following dissent was also given in and read : — 
 *' We dissent, because we deem the resolution come 
 to by the Assembly as fitted to hinder instead of 
 furthering the proper union of the Churches. 
 (Signed) William Nixon, Thomas Main, James 
 Stark, Alex. Ferguson, Thomas Hislop, John 
 Fraser." Dr J. J. Wood, Dr Begg, Dr Gibson, 
 Mr Nixon, Mr Main, and Captain Shepherd, then 
 resigned their places as members of the Union 
 Committee. A number of members afterwards 
 adhered to the above protest and dissents. 
 
 EFFECT OF THE RESOLUTION. 
 
 The object of the resolution so adopted was 
 chiefly, it will be seen, to declare that there was 
 under the First Head of the Programme no bar to 
 Union, which meant either that the Churches held 
 the same views on the questions embraced under 
 
112 MEMORIAL TO COUNSEL. 
 
 itj or else that the amount of the difference between 
 them thereon was so little as to be of no moment. 
 Proposal for Union on the basis of Westminster 
 Standards.— From May 1867 to May 1870 the 
 Union Committee continued its labours, and, in 
 that latter year, suggested in their report that the 
 General Assembly should consider the question of 
 a Union of the negotiating Churches, on the basis 
 of the Westminster Standards, "as at present 
 accepted by the said Churches." The General 
 Assembly adopted this suggestion to the extent of 
 sending it down for the consideration of Presby- 
 teries, directing them to send up their opinions 
 thereon. They did so : but these returns were of a 
 very conflicting kind. When these and the Union 
 Committee's Annual Report were considered, the 
 General Assembly (1871), seeing that undoubtedly 
 great opposition prevailed against an immediate 
 incorporating Union of the negotiating Churches, 
 determined to abandon any proposals in that direc- 
 tion in the meantime, and instructed the Union 
 Committee to direct their attention for the present 
 '' to those measures which may seem best fitted to 
 draw the negotiating Churches into closer and more 
 friendly relations to one another, to encourage and 
 facilitate their cordial co-operation." 
 
 II. 
 
 Report anent Mutual Eligibility, — In compliance 
 
MEMORIAL TO COUNSEL. 113 
 
 with these instructions, the Union Committee 
 reported to the General Assembly of 1872, that 
 they had taken up and considered these three 
 subjects : — 1. The training of ministers in the 
 various churches ; 2. The mutual and reciprocal 
 eligibility of ministers of fixed charges in any one 
 of the negotiating Churches to fixed charges in any 
 of the others ; and 3. Co-operation in Home and 
 Foreign Missions. 
 
 To the second of these only it is needful to call 
 the attention of Counsel. On it the Union Com- 
 mittee thus reported : — 
 
 " In connection with this subject, the Joint 
 Sub- Committee (of the Union Committee) entered 
 into a careful inquiry as to the state of the existing 
 law and practice in the several negotiating Churches 
 with reference to the admission of ministers from 
 other Churches. The results of this inquiry will 
 be found in the appendix to this report. It may 
 be necessary here only to say, that the law in all 
 the Churches upon this point is substantially the 
 same. Into none of them can a minister be 
 admitted from any other Church without having 
 his application reported to and sanctioned by the 
 Supreme Court of the Church into which he seeks 
 admission. In the Free Church this whole matter 
 is regulated by Act 8 of the General Assembly of 
 1850; but in that Act it is expressly provided that 
 its provisions ^ shall not apply to the ministers 
 
114 MEMORIAL TO COUNSEL. 
 
 belonging to the Presbyterian Churches in England 
 and Ireland, and in the Colonies, with which the 
 Free Church is in connection, so far as regards cases 
 of orderly translation from charges in the said 
 Churches to charges in the Free Church.' As the 
 result and consequence of these exemptions in 
 favour of the Churches above named, the Free 
 Church has recognised ever since 1850 the eligi- 
 bility of the ministers of the said Churches in the 
 sense and to the effect of sanctioning the orderly 
 calling, and translating of ministers of charges 
 in any of these Churches to charges in the Free 
 Church, on the footing of their signing the Free 
 Church formula." They then proceed to recommend 
 their proposal. 
 
 To make the proposal of the Mutual Eligibility 
 of Free Church and United Presbyterians more 
 clear, the following illustration may be submitted 
 for Counsel's consideration : — 
 
 Would it be competent in any fully organised 
 and constituted Insurance Company or Railway 
 Company to declare that certain individuals, who 
 had not in the usual way qualified themselves for 
 holding office in these companies by becoming 
 shareholders to the required extent or amount, 
 were eligible to hold office in these companies ? 
 It must be noticed that the mere election of a man 
 as chairman of a Hallway or Insurance Company, 
 and his accepting office and declaring his willing- 
 
MEMORIAL TO COUNSEL. 115 
 
 ness to discharge the duties of the chairman, would 
 not make him a member of the company, unless 
 he had a share of sufficient amount. 
 
 Resolutions thereanent. — When the report from 
 which the above extracts have been taken was 
 considered and discussed by the General Assembly 
 of 1872, a motion approving generally of it, and 
 in particular, of the recommendation as to the 
 mutual eligibility of ministers of the United 
 Presbyterian and Keformed Presbyterian Churches 
 - to be called to charges in the Free Church, was 
 submitted and carried by a majority of 197. 
 From this motion the following extract, which is 
 all that bears on the question submitted to the 
 Counsel, is taken : — " The General Assembly hav- 
 ing received the Report of the Union Committee, 
 together with the relative overtures and memorials, 
 approve generally of the report, and resolve as 
 follows : — 1. That the proposal with reference to 
 the mutual eligibility of ministers in settled 
 charges is a measure specially calculated to 
 promote the ends for which the Committee was 
 appointed last year, and being in harmony with 
 the relations which this Church already sustains 
 towards sister Presbyterian Churches, both at 
 home and in the Colonies, is one that ought to be 
 adopted, and they accordingly direct an overture 
 to be prepared and sent down to Presbyteries, 
 under the Barrier Act, adding the United Presby- 
 
116 MEMORIAL TO COUNSEL. 
 
 terian and Eeformed Presbyterian Churclies to 
 those specified in the Act 1850 as holding this 
 relation." 
 
 Before this motion was taken np, the following 
 protest was laid on the table : — " We the under- 
 signed members of this General Assembly of the 
 Free Church of Scotland, commissioned to consult 
 and determine in all matters that come before us 
 to the glory of God and the good of His Church, 
 according to the Word of God and Confession of 
 Faith, and agreeably to the constitution of this 
 Church, hereby protest — That whereas the eligi- 
 bility to the ministry of this Church of all ministers 
 of other Churches who have been examined, and 
 given satisfactory evidence of having adopted Free 
 Church principles, is provided for in the Act of 
 Assembly 1850, c. 8; whereas the ministers of 
 certain Churches are excepted from the operation 
 of this Act on the ground of the identity of prin- 
 ciple of their Church with ours ; and whereas the 
 proposal announced in the motion to approve of 
 the Report of the Union Committee is to the effect 
 of . admitting ministers into our Church who 
 neither belong to the excepted Churches, nor are 
 required to give any evidence, as at present, of 
 their holding the principles of this Church ; and 
 whereas this involves the subversion of the 
 constitution of the Free Church of Scotland, — we, 
 the undersigned, do therefore protest that we shall 
 
MEMORIAL TO COUNSEL. 117 
 
 be considered as taking part in the discussion of 
 this proposal only on the understanding that we 
 do not admit that it is competent to this Assembly 
 thus to alter the constitution of the Church, or to 
 send down to Presbyteries an overture designed to 
 accomplish this object." 
 
 Three amendments to the motion as tabled were 
 submitted to the House, the terms of the first of 
 which were, in so far as relates to the question 
 submitted to Counsel — " That as regards the ad- 
 mission of ministers from other Churches, which 
 have not been previously found by this Church 
 to hold her distinctive principles, the General 
 Assembly adhere to the rule already provided for 
 this purpose by the existing law of the Church 
 (Act 1850, c. 8), in requiring an ascertained 
 and consistent avowal of her principles by all 
 ministers before their entrance into office." 
 
 From the decision arrived at in favour of the 
 motion by the General Assembly, the following 
 dissent was tabled: — 
 
 '' The undersigned dissent from this judgment 
 for the following amongst other reasons : — 
 
 *' 1. Because this judgment, and the report on 
 which it is based, are inconsistent with the under- 
 standing upon which the Union Committee was 
 reappointed at last Assembly, viz., that it was re- 
 appointed solely to devise measures of co-operation, 
 whereas the proposal and judgment in question not 
 
118 MEMORIAL TO COUNSEL. 
 
 only imply incorporation, but in the most danger- 
 ous form, viz., piecemeal incorporation without a 
 basis. 
 
 " 2. Because this judgment implies that this 
 Church, so far as the Assembly is concerned, 
 sanctions the formulae of each of the other 
 negotiating Churches as equally sound and satis- 
 factory with our own, whereas the result of the 
 previous investigations has been to find that the 
 U.P. formula is loose and unsatisfactory, that 
 matters of doctrine require to be explained, and 
 that views are held in that Church on the subject 
 of national religion — most painfully illustrated of 
 late in connection with the discussions on national 
 education — diametrically opposed to any scriptural 
 view of the Headship of the Lord Jesus Christ over 
 nations, and to all the principles which have been 
 held by the Church of Scotland since the days of 
 Knox. 
 
 " 3. Because the course proposed, and so far 
 sanctioned, of admitting ministers upon subscrib- 
 ing a formula without previously giving any evid- 
 ence of their intelligent adherence to the principles 
 involved in that formula, is unprecedented and 
 perilous in the extreme. If individual ministers 
 from either of the other negotiating Churches wish 
 to join the Free Church of Scotland, a way is 
 amply provided at present for this purpose in the 
 existing legislation of the Church (Act 1850, c. 
 
MEMORIAL TO COUNSEL. 119 
 
 8). The finding of the Assembly, therefore, is 
 quite unnecessarj^, if all that is intended is merely 
 to admit men holding bond fide Free Church 
 principles into the ministry of our Church. If 
 anything else, or different from this, is implied, 
 the proposal is manifestly objectionable, and the 
 abolition of the existing legislation, which is 
 absolutely necessary to guard the principles of the 
 Church, can only have the effect of substituting a 
 deceptive and hollow form of outward conformity 
 for the intelligent and consistent avowal of ad- 
 herence to Free Church principles, which is at 
 present required. 
 
 " 4. Because the judgment proceeds on the most 
 latitudinarian principles, and seems to intimate 
 that Churches may at once sanction the most 
 inconsistent views as equally sound, and make 
 light of doctrines of the greatest importance, 
 however scriptural and long maintained as such 
 by the Church, for the sake of outward union. 
 
 " 5. Because the adoption of such a sweeping 
 change as this judgment involves, without con- 
 sulting the people of the Free Church, who are so 
 deeply interested, is utterly inconsistent with any 
 just view of Christian liberty, and is fitted to 
 bring the greatest discredit on disestablished 
 Churches, as bodies in connection with which and 
 with whose principles there is no stability or 
 security." 
 
120 MEMOKTAL TO COUNSEL. 
 
 There was also laid on the table of the Assembly 
 a protest against this judgment, in similar terms, 
 which was ordered to be kept in retentis^ sub- 
 scribed by a large number of ministers and 
 elders. 
 
 To the other amendments it is not needful that 
 reference be made. 
 
 In terms of the above motion the General 
 Assembly sent down, under the Barrier Act, the 
 following overture : — 
 
 Overture anent Mutual Eligibility. — ^'The Gene- 
 ral Assembly, with consent of a majority of Pres- 
 byteries, enact and ordain that clause 6 of Act 
 VIII. 1850, shall be amended and stand as fol- 
 lows, viz : The provisions of this Act shall not 
 apply to ministers belonging to the Presbyterian 
 Churches in England and Ireland, and in the 
 colonies, with which this Church is in connection, 
 nor to ministers belonging to the United Presby- 
 terian and Reformed Presbyterian Churches, so 
 far as regards cases of orderly translations from 
 charges in the said Churches to charges in this 
 Church ; and that the rest of the said clause shall 
 remain unaltered." 
 
 Act 1850, c. 8.— The Act of 1850 referred to is 
 as follows : — 
 
 " I. No minister or probationer of another 
 denomination or Church shall be received to the 
 standing of a minister or probationer of this 
 
MEMORIAL TO COUNSEL. 121 
 
 Churcli without an unqualified subscription of tlie 
 formula. 
 
 " II. No minister or probationer of another 
 denomination or Church shall be received to the 
 standing of a minister or probationer of this 
 Church without the authority of the General 
 Assembly. 
 
 " III. Every application to be received to the 
 standing of a minister or probationer of this 
 Church shall be made to the Presbytery within 
 whose bounds the applicant has his ordinary 
 residence. 
 
 '^ IV. Every Presbytery to which an applica- 
 tion to be received as aforesaid shall be made 
 shall transmit to the General Assembly their 
 answers to the following queries, or, if the appli- 
 cant is a probationer, their answers to such of the 
 queries as relate to a probationer's case." 
 
 The queries, so far as important to the ques- 
 tions submitted to Counsel in this Memorial, 
 are — 
 
 11. What reasons does the applicant assign for 
 his desire to be received into the Free Church of 
 Scotland ? 
 
 12. If there is a diversity of principle between 
 the Free Church of Scotland and the applicant's 
 former denomination or Church, what account 
 does the applicant give of the change in his 
 views ? 
 
122 MEMORIAL TO COUNSEL. 
 
 13. Is the applicant well acquainted witli the 
 events and controversies which led to the Disrup- 
 tion between this Church and the State in 1843, 
 and are the Presbytery satisfied of his adherence 
 to the principles maintained by the Church at 
 that period ? 
 
 '' V. The ministers and probationers who may 
 be received from other denominations or Churches 
 to the standing respectively of ministers and pro- 
 bationers of this Church, shall continue without 
 any fixed charge, and without being capable of 
 receiving a call, serving as preachers under the 
 direction of the Presbyteries of the Church, and 
 according to the regulations made from time to 
 time by the Home Mission Committee, for the 
 period of one year after the General Assembly 
 have given authority to receive them. 
 
 '^ VI. The provisions of this Act shall not 
 apply to ministers belonging to the Presbyterian 
 Churches in England and Ireland, and in the 
 colonies, with which this Church is in connection, 
 so far as reg'ards cases of orderly translation from 
 charges in the said Churches to charges in this 
 Church ; neither shall the provisions of this Act 
 apply to those ministers of the said Presby- 
 terian Churches who may have been licenced 
 to preach the gospel by Presbyteries of this 
 Church. 
 
 '^yil. Act YIII. Assembly 1846 anent the 
 
MEMORIAL TO COUNSEL. 123 
 
 admission of ministers from other Churclies, is 
 hereby repealed." 
 
 Counsel are here referred to Appendix C, page 
 233, for the law of the Church of Scotland (passed 
 in 1799) J against sustaining a call to any who 
 were not ministers or licentiates of the Church of 
 Scotland ; and their attention is directed to its 
 bearing on the above proposal. 
 
 Barrier Act. — It may be well here to explain 
 the meaning of the Barrier Act, under the pro- 
 visions of which the above overture was sent down 
 to the Presbyteries. 
 
 By an Act of Assembly (1697, c. 9), in order to 
 prevent all hasty and rash legislation, and to 
 legislate in accordance with the general mind of 
 the Church, as ascertained by the votes of the 
 Presbyteries, it was enacted that '^before any 
 General Assembly of this Church shall pass any 
 Acts, which are to be binding rules and constitu- 
 tions to the Church, the same Acts be first pro- 
 posed as overtures to the Assembly, and being by 
 them passed as such, be remitted to the conside- 
 ration of the several Presbyteries of this Church, 
 and their opinions and consent reported by their 
 Commissioners to the next General Assembly fol- 
 lowing, who may then pass the same in Acts if 
 the more general opinion of the Church thus had 
 agreed thereunto." 
 
 When a majority of the Presbyteries approve 
 
124 MEMORIAL TO COUNSEL. 
 
 simpliciter of the overture, it may be passed into 
 a standing law of the Church, but there is no 
 obligation on the Assembly to do so unless it 
 sees fit. 
 
 III. 
 
 Constitution of Free Church. — Having now 
 narrated shortly the history of the Union move- 
 ment, and indicated what the proposal regarding 
 the Mutual Eligibility of Free Church and United 
 Presbyterian ministers is, it will be necessary to 
 state what is and has been the teaching of the 
 two Churches on the subject of the first head of 
 the programme ; and to enable this to be done it 
 will be needful to indicate what the Subordinate 
 Standards of these two Churches are. 
 
 To determine exactly the Subordinate Standards 
 of the Free Church, the simplest way will be to 
 indicate briefly the circumstances which led to its 
 formation. 
 
 For a considerable number of years previous to 
 1842, many belonging to the Established Church 
 of Scotland believed that the Civil Courts of the 
 country were interfering with and encroaching on 
 the jurisdiction of the Church in matters spiritual; 
 and at the General Assembly of that year, a Claim, 
 Declaration, and Protest was adopted, setting forth 
 the interference and encroachment of which the 
 Church complained, and seeking redress from the 
 
MEMORIAL TO COUNSEL. 125 
 
 Queen and Parliament. — (A copy of this deed will 
 be found at page 1 of the Appendix to the volume 
 of " Free Church Standards," which accompanies 
 this Memorial.) 
 
 This deed began with a notice of the solemn 
 circumstances in which the Church was placed, 
 and showing that the " liberties, government, 
 jurisdiction, discipline, right, and privileges," 
 which it was thought were so well defined and 
 secured to her, as to be certain to be enforced by 
 the Civil Court, had been assailed by parties hold- 
 ing opposing views, and supported by the Civil 
 Court. Hence the General Assembly resolved on 
 making a Claim, Declaration, and Protest, of 
 what it considered its rights and privileges. The 
 Claim of Right then went on to state that it was 
 an essential doctrine of the Church of Scotland, 
 and a principle of the Confession of Faith, that 
 " there is no other Head of the Church but the 
 Lord Jesus Christ," and that, according to the 
 said Confession, and to the other standards of the 
 Church, and agreeably to the Word of God, this 
 government of the Church was appointed by the 
 Lord Jesus to be ^^ in the hand of Church officers, 
 distinct from the Civil Magistrate " or supreme 
 power of the State, and comprehended as the 
 objects of it, the preaching of the word, adminis- 
 tration of the sacraments, correction of manners, 
 the admission of the office-bearers of the Church 
 
126 MEMORIAL TO COUNSEL. 
 
 to their offices, their suspension and deprivation 
 therefrom, the infliction and removal of Church 
 censures, and generally the whole " power of the 
 keys." 
 
 Further, ^' this jurisdiction and government, 
 since it regards only spiritual conditions, rights, 
 and privileges, doth not interfere with the juris- 
 diction of secular tribunals, whose determinations 
 as to all temporalities conferred by the State upon 
 the Church, and as to all civil consequences at- 
 tached by law to the decisions of Church Courts 
 in matters spiritual, this Church hath ever ad- 
 mitted, and doth admit to be exclusive and 
 ultimate, as she hath ever given and inculcated 
 implicit obedience thereto." 
 
 The Claim of Right then proceeded to show that 
 the above were essential doctrines and fundamental 
 principles of the Constitution of the Church, and 
 were recognised by many Acts of Parliament, to 
 which reference is then made. It further set forth, 
 that by certain other Acts of Parliament it was 
 enacted that the Church was to be aided by the 
 magistrates, judges, and officers of the law, in 
 enforcing its jurisdiction, and the tenor of these 
 is also given. 
 
 The Claim of Right further declared that at the 
 Union it was expressly provided that the Consti- 
 tution and powers of the Established Church of 
 Scotland were to remain unaltered, and that Act 
 
MEMORIAL TO COUNSEL. 127 
 
 was therefore inserted in the Act of the Ensrlish 
 Parliament for the Union of the two kingdoms. 
 It then declared that although the Act of Queen 
 Anne restoring patronage was in violation of 
 the Treaty of the Union, yet it did not infringe 
 on the right of congregations to assent to, or 
 dissent from, ministers presented by patrons ; and 
 then narrated the opposition which the restora- 
 tion of patronage received from the Church, and 
 further asserted that it was a fundamental prin- 
 ciple in the Church's Constitution that no pastor 
 be intruded upon any congregation contrary to 
 the will of the people, and that this principle was 
 recognised by the 14th Act of the General Assem- 
 bly of 1736, and re-declared by the 9th Act of 
 the General Assembly of 1834. It then showed 
 how the decision in the House of Lords on the 
 Auchterarder Case (1839) was beyond the powers 
 of the Civil Court as far as regards the spiritual 
 jurisdiction of the Church, but that the Church 
 was willinsr to recoo:nise that decision as bin din «: 
 in matters civil^ and that this had been the course 
 followed by the Civil Court in a number of cases 
 then quoted. 
 
 Therefore the General Assembly claimed that, 
 while acknowledging the jurisdiction of the Court 
 of Session in civil matters, the Church '^ shall 
 freely possess and enjoy her liberties, government, 
 discipline, rights, and privileges according to law, 
 
128 MEMORIAL TO COUNSEL. 
 
 especially for tlie defence of the spiritual liberties 
 of her people, and that she shall be protected 
 therein from the foresaid unconstitutional and 
 illegal encroachments of the said Court of Session, 
 and her people secured in their Christian and 
 constitutional rights and liberties." 
 
 The General Assembly finally call the Christian 
 people of the kingdom, &c., to witness for what 
 they are called to suffer, and for what they are 
 willing and ready to resign connection with the 
 Established Church, and to " U7iite in supplication 
 to Almighty God that He would be pleased to turn 
 the hearts of the rulers of this kingdom to keep 
 unbroken the faith pledged to this Church informer 
 days by statutes and solemn treaty, and the obliga- 
 tions come under to God himself to preserve and 
 maintain the government and discipline of this 
 Church in accordance with His Word ; or other- 
 wise, that He would give strength to this Church 
 — office-bearers and people — to endure resignedly 
 the loss of the temporal benefits of an Establishment^ 
 and the personal sufferings and sacrifices to which 
 they may be called, and would also inspire them 
 with zeal and energy to promote the advancement 
 of His Son's kingdom in whatever condition it 
 may be His will to place them ; and that in His 
 good time He would eestore to them these 
 
 BENEFITS, THE FRUITS OF THE STRUGGLES AND 
 
 SUFFERINGS OF THEIR FATHERS in timcs past in 
 
MEMORIAL TO COUNSEL. 129 
 
 the same cause, and thereafter give them grace 
 to employ them more effectually than hitherto 
 they have done for the manifestation of His 
 glory." 
 
 This Claim, Declaration, and Protest was for- 
 warded to the Queen, and was also discussed in 
 Parliament, but without good result. It was re- 
 fused, and in consequence, when the Commissioners 
 to the General Assembly of 1843 met in St 
 Andrew's Church, Edinburgh, on the 18th May 
 1843, and were about to be constituted in the 
 usual way into a General Assembly, Dr Welsh, 
 Moderator of the General Assembly of 1842, said, 
 ^* Fathers and brethren, according to the usual 
 form of procedure, this is the time for making up 
 the roll. But in consequence of certain proceed- 
 ings affecting our rights and privileges — proceed- 
 ings which have been sanctioned by her Majesty's 
 Government, and by the Legislature of the country, 
 and more especially in respect that there has been 
 an infringement on the liberties of our Constitution, 
 so that we could not now constitute this Court 
 without a violation of the terms of the Union 
 between Church and State in this land as now 
 authoritatively declared, I must protest against 
 our proceeding further. The reasons that have 
 led me to come to this conclusion are fully set 
 forth in the document which I hold in my hand, 
 and which, with permission of the House, I shall 
 
130 MEMORIAL TO COUNSEL. 
 
 now proceed to read" — (This will be found at 
 page 19 of Free Church Standards — Appendix.) 
 Counsel are referred to this document as showing 
 specially the encroachments which the Assembly 
 believed to be made on the Church's spiiitual 
 rights. 
 
 These Commissioners therefore protested, that 
 after the rejection of their Claim of Bight, they 
 deemed the conditions declared by the State as 
 those on which they must remain in the Established 
 Church contrary to the Eevolution Settlement of 
 the Church, and inconsistent with the recognition 
 of Christ as Head of the Church ; that any 
 Assembly so constituted, and under the coercion 
 which had been brought to bear on the election 
 of Commissioners to it, " is not, and shall not be, 
 deemed a lawful and free Assembly of the Church 
 of Scotland, according to the original and funda- 
 mental principles thereof. And that the Claim, 
 Declaration, and Protest of the General Assembly, 
 which convened at Edinburgh in May 1842, as 
 the act of a free and lawful Assembly of the said 
 Church, shall he holden as setting forth the true 
 constitution of the said Church; and that the said 
 Claim, along with the laws of the Church now 
 subsisting, shall in nowise be affected by whatso- 
 ever acts and proceedings of any Assembly con- 
 stituted under the conditions now declared to be 
 
MEMORIAL TO COUNSEL. 131 
 
 the law, and in submission to the coercion now 
 imposed on the Establishment." 
 
 ^^ And finally," they protest that " while ^rw^^y 
 asserting the right and duty of the civil magistrate 
 to maintain and support an establishment of religion 
 in accordance with God's Word, and reserving to 
 ourselves and our successors to strive by all lawful 
 means J as opportunity shall in Gods good providence 
 be offered, to secure the performance of this duty, 
 agreeably to the Scriptures, and in implement of 
 the statutes of the kingdom of Scotland, and the 
 obligations of the Treaty of Union, as understood 
 by us and our ancestors ; but acknowledging that 
 we do not hold ourselves at liberty to retain the 
 benefits of the Establishment, while we cannot 
 comply with the conditions now to be deemed 
 thereto attached ; we protest that in the circum- 
 stances in which we are placed, it is and shall be 
 lawful for us, and such other Commissioners chosen 
 to the Assembly appointed to have been this day 
 holden as may concur with us, to withdraw to a 
 separate place of meeting, for the purpose of taking 
 steps for ourselves and all who adhere to us — 
 maintaining with us the Confession of Faith and 
 Standards of the Church of Scotland, as hereto- 
 fore UNDERSTOOD — for Separating in an orderly 
 way from the Establishment, and thereupon 
 adopting such measures as may be competent to 
 us, in humble dependence on God's grace, and 
 
132 MEMORIAL TO COUNSEL. 
 
 tlie aid of the Holy Spirit, for the advancement 
 of His glory, the extension of the gospel of our 
 Lord and Saviour, and the administration of the 
 affairs of Christ's house according to His Holy 
 Word; and we do now for the purpose foresaid 
 withdraw accordingly, humbly and solemnly ac- 
 knowledging the hand of the Lord in the things 
 which have come upon us, because of our manifold 
 sins, and the sins of this Church and nation, but 
 at the same time with an assured conviction that 
 Tce are not responsible for any consequences that 
 may follow from this our enforced separation from 
 an Establishment which we loved and prized, 
 through interference with conscience, the dis- 
 honour done to Christ's crown, and the rejection 
 of His sole and supreme authority as King in His 
 Church." 
 
 A brief resume of those circumstances out of 
 which the Free Church rose will be found in 
 the narrative of the Free Church Model Deed, for 
 which see p. 377 of the Acts of Assembly, 1851, 
 sent herewith. 
 
 The Commissioners to the General Assembly of 
 the Church of Scotland having met, as above seen 
 (in St Andrew's Church, Edinburgh), the ministers 
 and elders who adhered to and signed the said 
 Protest, after worship, and reading said Protest, 
 withdrew and convened in a large hall at Canon- 
 mills. There they constituted themselves, in the 
 
MEMORIAL TO COUNSEL. 133 
 
 name of the Great Head of the Church into a 
 General Assembly, and chose Dr Chalmers as 
 Moderator, who then delivered an address which, 
 inter alia, set forth the position which those who 
 had now formed themselves into the Free Church 
 of Scotland meant to take up. He said : — 
 
 " Beware of compromising another of your doc- 
 trines or articles of faith, and in the defence of 
 which the Church of Scotland did lately signalise 
 herself, even the authority of Christ over the kings 
 and governments of earth, and the counterpart 
 duty of these governments to uphold religion in 
 the world, — beware, we say, of making any com- 
 promise or surrender of this your other principle. 
 . . . This may be termed a less principle than the 
 
 other, i.e., spiritual independence But let 
 
 us not forget what the Bible says of those who 
 break even the least of the commandments, that 
 they shall be called the least in the kingdom of 
 heaven. The men who stand opposed to us on 
 this second question might ... be reposing on 
 the like precious foundation with ourselves. They 
 might be men with whom we differ, and yet with 
 whom we can agree to differ. They might be 
 coadjutors in the. great work of evangelising the 
 people of our land. 
 
 '' But we shall not, even for their friendship, 
 violate the entireness of our principles, or make 
 surrender of the very least of them. 
 
134 MEMORIAL TO COUNSEL. 
 
 '^ To be more plain, let me be more particular. 
 The Voluntaries mistake us, if they conceive us to 
 be Voluntaries. We hold by the duty of Govern- 
 ment to give of their resources and their means 
 for the maintenance of a gospel ministry in the 
 land ; and we pray that their eyes may be opened, 
 so that they may learn how to acquit themselves 
 as the protectors of the Church, and not as its 
 corrupters or its tyrants. "VYe pray that the sin 
 of Uzziah, into which they have fallen, may be 
 forgiven them, and that those days of light and 
 blessedness may speedily arrive, when ^ kings 
 shall be the nursing-fathers, and queens the 
 nursing-mothers ' of our Zion. In a word, we 
 hold that every part and every function of a 
 commonwealth should be leavened with Chris- 
 tianity ; and that every functionary, from the 
 highest to the lowest, should in their respective 
 spheres do all that in them lies to countenance 
 and uphold it. That is to say, though we quit 
 the Establishment, we go out on the Establish- 
 ment principle — we quit a vitiated Establishment, 
 but would rejoice in returning to a pure one. To 
 express it otherwise, we are the advocates for 
 
 A NATIONAL RECOGNITION AND NATIONAL SUPPORT 
 OF RELIGION, AND WE ARE NOT VOLUNTARIES." 
 
 After some formalities, the first Act which this 
 General Assembly passed, was one ordering the 
 said Protest to be recorded in their minutes, which 
 
MEMORIAL TO COUNSEL. 135 
 
 was accordingly done. (See p. 19 of Appendix 
 to " Free Cliurch Standards.") Their second Act 
 was in the following terms : — That '' the minis- 
 ters and elders now convened and constituted, 
 considering the momentous nature of the subjects 
 as to which they will be called upon to deliberate, 
 and that a large body of ministers and elders 
 from every quarter of the Church, who have 
 declared their adherence to the Protest this day 
 taken, are at present in Edinburgh, did and here- 
 by do assume as members, to consult, vote, and 
 determine in all matters to come before them, to 
 the glory of God and the good of this Church, 
 all ministers who have so declared their adherence, 
 and one adhering elder from each session, to be 
 selected where not nominated by their brethren, 
 under direction of the Committee to be appointed 
 for making up the roll." (Page 10 of Acts of 
 Assembly, 1843.) 
 
 Constitution of Free Church. — It was afterwards 
 unanimously agreed, that a Committee be appointed 
 to consider the proper course for effecting and 
 completing a separation from the Establishment 
 on the part of the .protesting ministers and elders, 
 and all who adhered to them, and demitting then* 
 status, rights, and emoluments held in virtue there- 
 of. This Committee reported on the form of '^ An 
 Act of Separation and Deed of Demission by 
 Ministers and Elders adhering to the Protest," the 
 
136 MEMORIAL TO COUNSEL. 
 
 substance of whicli was as follows : — That for the 
 reasons stated in the Protest, and in the Claim of 
 Right, those who signed the said Protest abdicated 
 and renounced their status and privileges as 
 ministers and elders of the Establishment, declaring 
 that they did not thereby abandon or impair their 
 right as ministers of Christ's gospel, and other- 
 wise ; and that they were and should be free to 
 exercise government and discipline in their several 
 judicatories separate from the Establishment, 
 " according to God's Word and the Constitution 
 AND Standards of the Church of Scotland as 
 HERETOFORE UNDERSTOOD. " And then they reserved 
 their rights under the Widows' Fund, and other- 
 wise. This deed was dated at Edinburgh, 23d May 
 1843, and is recorded in the Books of Council and 
 Session, June 8, 1843. (See page 23 of App. to 
 "Free Church Standards.") 
 
 Similar deeds were subscribed by those ministers 
 and elders not then in Edinburgh, and by proba- 
 tioners who separated from the Established Church. 
 (See p. 30 of App. to " Free Church Standards.") 
 
 By a section of the 19th Act of this same Free 
 Church Assembly, it is enacted, in terms of the 
 following recommendation made to the Assembly 
 by one of their Committees, that " the Assembly 
 should farther enjoin the several Presbyteries to re- 
 cord the Protest taken on the 18th of May, together 
 with the Act of Separation and Deed of Demission, 
 
MEMORIAL TO COUNSEL. 137 
 
 at the beginning of their Presbytery books, as the 
 gromid and warrant of their proceedings." [Act 
 XIX., 1843, Head III, sect. 3., p. 45.] 
 
 It is submitted that in these early ^^ actings 
 and proceedings " of the first General Assembly 
 of the Free Church of Scotland, the basis of the 
 Constitution must be sought. [A copy of the 
 Acts of Assembly for that year (1843) accompany- 
 ing this Memorial is referred to generally, as show- 
 ing what was done at that Assembly.] And if 
 this is so, it would appear that the said Protest of 
 1843 must be taken as the first of a series of deeds 
 forming the Constitution of the Free Church ; and 
 this, not only from the character of the deed itself, 
 but from the tenor of the above-quoted Section of 
 the Act XIX. of the first Free Church Assembly. 
 
 But that the Free Church has other deeds or 
 standards is found from the last paragraph of the 
 said Protest of 1843, where those who sign it claim 
 a right to '^ withdraw to a separate place of meeting 
 for the purpose of taking steps for ourselves, and 
 all who adhere to us — maintaining with us the 
 Confession of Faith and Standards of the 
 Church of Scotland as heretofore understood 
 
 for SEPARATING IN" AN ORDERLY WAY FROM THE 
 
 Establishment." This throws us back, of course, 
 on the Constitution of the Established Church, 
 and those who founded the Free Church held (as 
 stated in the said Protest, and in the Claim of 
 
138 MEMORIAL TO COUNSEL. 
 
 Right of 1842) that the Standards of the Established 
 Church were — 
 
 I. The Westminster Confession of Faith as 
 approved by the General Assembly of 1647. [A 
 copy of this will be found at page 7 of the " Free 
 Church Standards."] — II. The First and Second 
 Books of Discipline, [that these were so held 
 appears from the Claim of Right — though in the 
 Auchterarder Case (16 S. 666), it was held that 
 they were not part of the Church's Constitution.] 
 And, III. The whole Acts of the Church of Scot- 
 land before 1843 (as the Free Church claimed to 
 be the Church of Scotland Free), excepting so far 
 as these have been since altered, modified, or 
 repealed. The only modification your Memorialists 
 deem it needful to notice is that which was made 
 in the Act '' Anent Questions to be put, and the 
 Formula to be subscribed by Office-bearers on their 
 admission to office." These were prescribed by 
 1711, c. X. ; but of course certain of these questions 
 became, by the fact of the Free Church being a 
 non-established Church, irrelevant, and hence some 
 alteration had to be made thereon. This was done 
 in an interim way by certain Acts of the General 
 Assemblies of 1844 and 1845, by the last of which 
 Assemblies an overture was sent down to Presby- 
 teries under the Barrier Act, and it the General 
 Assembly of 1846 passed into a law, the preamble 
 of which, after setting forth the reason of the 
 
MEMORIAL TO COUNSEL. 139 
 
 change introduced, went on to declare as follows : — 
 *' And the General Assembly, in passing this Act, 
 think it right to declare that, while the Church 
 
 FIRMLY MAINTAINS THE SAME SCRIPTURAL PRINCIPLES 
 AS TO THE DUTIES OF NATIONS AND THEIR RULERS, 
 FOR WHICH IN REFERENCE TO TRUE RELIGION AND 
 
 THE Church of Christ, she has hitherto con- 
 tended, she disclaims intolerant or persecuting 
 principles, and does not regard her Confession of 
 Faith, or any portion thereof, when fairly inter- 
 preted, as favouring intolerance or persecution, or 
 consider that her office-bearers, by subscribing it, 
 profess any principles inconsistent with liberty of 
 conscience and the right of private judgment." — 
 [Acts of Free Assembly, 1846, c. xii.) 
 
 The part of the preamble here quoted never 
 passed the Barrier Act, and is merely declaratory. 
 (The questions and the formula were simply 
 altered so as to be in keeping with the Free 
 Church being non-established, but in no way else 
 were altered from the questions used in and by 
 the Church of Scotland before 1843.) 
 
 At a meeting of the Commission of the Assembly, 
 held in January 1860, specially called to consider 
 the Cardross Case, a carefully-prepared report 
 was submitted, from which the following is an 
 extract: — ^^Now it is important to observe that 
 there were produced in the Civil Court by the 
 defender (i.e., the Free Church) at the very out- 
 
140 MEMORIAL TO COUNSEL. 
 
 set of these actions tlie foresaid several docu- 
 ments — 
 
 ''1. The Claim of Eights. 
 
 " 2. The Protest. 
 
 " 3. The Deed of Demission. 
 
 " 4. The Formula or Vow signed by the pursuer. 
 
 ^^ These several documents form what has been 
 called by Mr M'Millan the Contract. In reality they 
 form^ in conjunction with the Confession of Faith 
 and other standards to which the foresaid docu- 
 ments refer ^ the Constitution of the Free Church of 
 Scotland^ to which its members and office-bearers 
 are held to have given their adherence by the simple 
 fact of becoming members of that Church." 
 
 Dr Candlish, in speaking of the Cardross Case 
 at the same meeting of Commission, said — 
 
 " The question reserved is, What is the con- 
 stitution or the contract between Mr McMillan 
 
 and us ? What more evidence can 
 
 be given as to what our constitution is ? We put 
 in our Claim of Rights — we put in our Deed of 
 Demission — we put in our Formula — we put in all 
 the documents that constitute really our profession 
 as the Free Church of Scotland, and in that same 
 way show what the terms of our constitution are, 
 and what Mr McMillan's obligation under that 
 constitution is. We have no more information to 
 give — we have no more evidence to lead — we have 
 nothing more to say whatever on that point." 
 
MEMORIAL TO COUNSEL. 141 
 
 Further, it may be noted that the said Union 
 Committee of the Free Church, in their report to 
 the General Assembly of 1864, state that a com- 
 mittee, consisting of members of the Free Church 
 and United Presbyterian Church Union Committees, 
 appointed to draw up a report on the documents 
 which are of authority in the two Churches, and 
 served to define their positions and principles, 
 specified the documents of authority in the Free 
 Church to be — 
 
 " I. Subordinate Standards binding upon the 
 consciences of ministers and other office-bearers, 
 viz. — 
 
 " 1. The Formula appointed to be subscribed by 
 probationers before receiving licence, and by all 
 office-bearers at the time of their admission, to- 
 gether with the questions appointed to be put to 
 the same parties, at ordination and admission. 
 
 '' 2. The Westminster Confession of Faith, as 
 explained by the Acts of Assembly 1647 and 
 1846 
 
 " 3. The Claim of Eights and Protest of 1843, 
 with respect to their general principles, &c., 
 according to the terms used in the Formula. 
 
 '' II. Documents adopted by the Church at 
 former times, and still more or less illustrative 
 generally of her position and principles, viz., 1. 
 The First Book of Discipline ; 2. The Second Book 
 of Discipline; 3. As Directories for Catechising — 
 
142 MEMORIAL TO COUKSEL. 
 
 ihe Larger and Shorter Catecliisms ; 4. Docu- 
 ments bearing on the Discipline of the Church, 
 viz., the Form of Process and the Acts of the 
 Free Church Assemblies 1853 and 1854 there- 
 anent." 
 
 It appears, then, that the deeds in which the 
 Constitution of the Free Church is to be sought 
 are — 
 
 I. The Westminster Confession, as explained by 
 the Acts of 1647 and 1846, c. 12.— [For the Act 
 of 1647, see page 13 " Free Church Standards." 
 The Act of 1846 is above given. See also page 37 
 of '^ Free Church Standards. App."] 
 
 II. First and Second Books of Discipline. 
 
 III. Claim of Rights of 1842. 
 lY. The Act of Separation. 
 Y. The Protest of 1843. 
 YI. Deed of Demission. 
 
 YII. The Questions and Formula above 
 noticed. 
 
 YIII. Acts of Assembly of Church of Scotland. 
 
 It may be noticed that in the case McMillan 
 V, the Free Church (commonly cited as the 
 Cardross Case, 22 D. 290, 23 D. 1314, and 24 D. 
 1282), the third, fourth, fifth, and seventh of these 
 deeds were founded on, and it has been shown that 
 the third refers to and endorses the first and 
 second. 
 
MEMORIAL TO COUNSEL. 143 
 
 IV. 
 
 Principle of Free Church anent the Civil Magis- 
 trate. — Having now stated what your Memorialists 
 submit to be the Constitution of the Free Church, 
 the attention of Counsel is directed to the principle 
 which she holds in regard to the power of the 
 civil magistrate, as appearing, Jirst, from her 
 Standards ; and, second, in her actings and 
 proceedings. 
 
 a. In her Standards — 
 1, In the Westminster Confession — 
 1. — C. 20, § 4. " And because the powers 
 which God hath ordained, and the liberty which 
 Christ hath purchased, are not intended by God to 
 destroy, but mutually to uphold and preserve one 
 another; they who, upon pretence of Christian 
 liberty, shall oppose any lawful power, or the 
 lawful exercise of it, whether it be civil or ecclesias- 
 tical, resist the ordinance of God. And for their 
 publishing of such opinions, or maintaining of 
 such practices, as are contrary to the light of 
 nature, or to the known principles of Christianity^, 
 whether concerning faith, worship, or conversa- 
 tion ; or to the power of godliness ; or such 
 erroneous opinions or practices, as either in their 
 own nature, or in the manner of publishing or 
 maintaining them, are destructive to the external 
 peace and order which Christ hath established in 
 
144 MEMORIAL TO COUKSEL. 
 
 the Churcli ; they may lawfully be called to account, 
 and proceeded against by the censures of the 
 Church, and by the power of the civil magis- 
 trate." 
 
 2. — 0. 23, § 3. "The civil magistrate may not 
 assume to himself the administration of the word 
 and sacraments, or the power of the keys of the 
 kingdom of heaven : yet he hath authority, and it 
 is his duty, to take order that unity and peace be 
 preserved in the Church, that the truth of God be 
 kept pure and entire, that all blasphemies and 
 heresies be suppressed, all corruptions and abuses 
 in worship and discipline prevented or reformed, 
 and all the ordinances of God duly settled, 
 administered, and observed. For the better effect- 
 ing whereof he hath power to call synods, to be 
 present at them, and to provide that whatsoever 
 is transacted in them be according to the mind of 
 God." 
 
 3.— C. 31, § 3. "It belongeth to synods and 
 councils ministerially to determine controversies of 
 faith and cases of conscience ; to set down rules 
 and directions for the better ordering of the 
 publick worship of God, and government of His 
 Church ; to receive complaints in cases, of mal- 
 administration, and authoritatively to determine 
 the same : which decrees and determinations, if 
 consonant to the Word of God, are to be received 
 with reverence and submission, not only for their 
 
MEMORIAL TO COUNSEL. 145 
 
 agreement with the Word, but also for the power 
 whereby they are made, as being an ordinance of 
 God, appointed thereunto in His Word." 
 
 Though these quotations are made, Counsel is 
 referred to the whole chapters particularly. 
 
 As it has been urged that the Establishment 
 principle — 'that the national recognition of religion 
 is not in the Confession of Faith — it may be well 
 here to refer to this. 
 
 (1.) The following statements are referred to in 
 support of its being in the Confession : — 
 
 Argument from word '^ Settled.'''' — The argu- 
 ment, deduced from the above extracts, and speci- 
 ally from the use of the word '' settled " in the 
 second of the above extracts from the Westminster 
 Confession, is submitted to the consideration of 
 Counsel, and any statements made in the said 
 argument apparently expressive of an opinion are 
 so submitted, and Counsel will judge of their 
 value : — 
 
 From these passages it appears that the magis- 
 trate, not intruding within the sacred circle that 
 pertains to the Church, is nevertheless not to look 
 on either unconcerned or inactive ; but is to take 
 measures for the preservation of unity and peace, 
 for the keeping pure and entire that truth of God 
 which the Church hath determined out of His 
 AVord, for suppressing all blasphemies and heresies 
 contrary to that truth, and reforming all corrup- 
 
146 MEMORIAL TO COUNSEL. 
 
 tions and abuses in worship and discipline, con- 
 trary to tlie rules which the Church has set down ; 
 and to take measures for all the ordinances of 
 God, which the Church has determined, being 
 duly settled^ administered, and observed; that is, 
 settled hy the State^ administered hy the Churchy 
 and observed hy the people. For these ends he 
 hath power to call Synods, that is, not merely the 
 general power of summoning all his subjects, but 
 power to call Synods for religious objects, to com- 
 plain to those Synods of heresies in doctrine which 
 have come under his notice, of corruptions in 
 worship or abuses in discipline, or of the ordin- 
 ances not being duly administered in the Church. 
 Those complaints the magistrate has authority to 
 present ; but it does not belong to him to suppress 
 the evil directly by taking the decision into his 
 own hands, for " it belongs to the Synod to receive 
 complaints of mal-administration and authorita- 
 tively to determine the same." For these ends the 
 supreme power in the State not only has authority, 
 but has a "duty," to summon the Supreme Synod 
 of the Church, as often as such evils come before 
 the State in such a form as to demand a public 
 remedy. 
 
 The power assigned to the magistrate in the 
 23d chapter has not any limitation put upon it by 
 the Act of the Scottish Assembly approving the 
 Confession of Faith. The limitation in that Act, 
 
MEMORIAL TO COUNSEL. , 147 
 
 referring to the 31st chapter, has no bearing even 
 inferentially on the calling of a regularly-consti- 
 tuted Synod by the magistrate as often as he 
 thinks fit; but refers exclusively to Synods meet- 
 ing without delegation from their churches, and 
 to nothing else whatever. If a Church is not yet 
 ecclesiastically constituted, ministers may meet in 
 Synod without delegation ; or, if it is either not 
 ecclesiastically constituted or not legally settled, 
 the magistrate may both call the Synod and may 
 name its members, as was done in the Westminster 
 Assembly. This, which the above Act calls the 
 power of the magistrate's '^ nomination," and this 
 alone, ceases as soon as a Church is settled or 
 established; but his power of calling a regular 
 Synod through its own channels, at any time and 
 for any cause, remains untouched. 
 
 1. Now it is urged that the whole article in the 
 23d chapter proceeds on the clear supposition of 
 an Established Church. Church Establishment 
 was never called in question amongst the West- 
 minster Divines. Each of them was admitted by 
 a solemn vow as member of an Assembly, w/nck 
 was summoned by Parliament for the declared pur ~ 
 pose of establishing a Scriptural Church, Except 
 on the basis of an Established Church, with an 
 established creed, established worship, established 
 government and discipline, the whole of the article 
 has no reasonably intelligible sense. 
 
148 MEMOKIAL TO COUNSEL. 
 
 2. The civil establisliment of religion is not an 
 inference from the third section of the 23d chapter 
 of our Confession of Faith. 
 
 Definition of word '''Settled — The opposite con- 
 clusion must rest only on the circumstance that the 
 word "established" is not employed in the sentence, 
 " the civil magistrate hath authority, and it is his 
 duty to take order that all the ordinances of God 
 be duly settled, administered, and observed;" for if 
 it had been, there could have been no controversy. 
 Establishment is said to be " outside the Confes- 
 sion," because its framers have not employed the 
 word "established," but the equivalent, interchange- 
 able, and slightly stronger word " settled." If the 
 denial of the doctrine of establishment is to be 
 founded on the mere absence of the word, the 
 doctrine of the Trinity may be denied because the 
 word " Trinity " is not found in the body of the 
 Confession. Settled is one of the commonest of 
 all ecclesiastical terms, and its meaning " estab- 
 lished by law," or " fixed by legal and ecclesiastical 
 sanctions," is everywhere recognised by our ecclesi- 
 astical writers without the occurrence of a doubt 
 in their mind. The most accurate of them all, Dr 
 M^Crie, habitually uses it, as he does three times 
 in the following paragraph : — 
 
 " In the Secession Testimony, this reforma- 
 tion is considered as public and national, and 
 carried on, advanced, and settled by the civil and 
 
MEMORIAL TO COUNSEL. 149 
 
 ecclesiastical powers, acting in their proper place. 
 They viewed the reformation and public settlement 
 of religion as a great national concern, in which 
 the commonwealth as well as the Church was 
 deeply interested. Accordingly, they approve and 
 commemorate the public measures and laws of the 
 State for advancing and settling the Presbyterian 
 religion, as well as those of the Church." A foot- 
 note is added with this quotation : ^ The doctrine, 
 worship, discipline, and government, received and 
 approved by the Assemblies of the Church ratified 
 and established by our Reforming Parliaments,'' 
 
 Whatever is approved by the Church and 
 ratified by the State is, in ecclesiastical language, 
 ' settled.' A full settlement includes both, but 
 nothing is ' settled ' that is not ratified by legal 
 sanction. 
 
 Although ^ settle ' is used in various senses now 
 where ' establish ' could not be used — in the 
 sixteenth century there were very few cases in which 
 the words might not be interchanged. In that 
 century, however, the term ' settle ' seldom or 
 never occurs in the documents of the Church, or 
 of the State concerning the Church, but always 
 the term ' establish.' For although both Calder- 
 wood and Row sometimes use ' settle ' in their 
 transcription of old documents, on referring to 
 the documents themselves it will be found that it 
 is ' establish ' in the original, these writers being 
 
150 MEMORIAL TO COUNSEL. 
 
 evidently unconscious of making any alteration in 
 substituting the one for the other. But in the 
 beginning of the seventeenth century the translators 
 of the Bible employed both words in one sentence, 
 and (probably referring to their origin) they 
 deliberately used * settle ' as the stronger of the 
 two, in the climax, ^ stablish, strengthen, settle 
 you;* for the word translated stablish is in the 
 Greek ' confirm,' while that translated settle is 
 ^ found,' or fix on a foundation. After this the 
 two words are employed indiscriminately in 
 ecclesiastical and legal acts, with a tendency to 
 prefer ' settle,' as if accounted the stronger and 
 more definite of the two ; while ' establish ' is 
 habitually used when reference is made to the 
 Parliamentary Acts of the previous century, as in 
 the National Confession of 1638. * Settled' is 
 also, in the seventeenth century, often inter- 
 changed with ' secured,' that is, made certain by 
 legal securities. 
 
 There is, indeed, a kindred meaning which 
 might be ascribed to ' settle ' here, namely, fixed 
 legally in the way of endowments, or endowed. But 
 this is inadmissible for three reasons : First, because 
 although ' settled ' occasionally" means ' endowed ' 
 in good authors, it never means simply ^endowed' 
 (whatever may be implied) in ecclesiastical docu- 
 ments, or in legal documents on things ecclesias- 
 tical ; second, it is often used in a manner which 
 
MEMORIAL TO COUNSEL. 151 
 
 excludes endowment, as wlien Cliurcli Government 
 is settled ; and third, in the present instance the 
 sense ' endowed ' would be quite unsuitable, for 
 among the ordinances of God are government and 
 discipline, which cannot be endowed. Endow- 
 ment is in the Confession by inference; because 
 the inference is neither immediately manifest, nor 
 is it certain by an absolute, but only by a condi- 
 tional necessity. Establishment is both woven 
 through the entire structure of the passage, and 
 is expressed in one definite word ; but endowment 
 is neither, and the whole makes a clear and 
 definite sense without it. But it is implied in 
 the two words ' settled ' and ^ administered,' 
 because these two together involve not only the 
 setting up but the keeping up of the ordinances, 
 and for this they must of necessity be supported. 
 Yet for this end a government endowment is not 
 an absolute but only a conditional necessity ; 
 being necessary only in those cases in which the 
 free-will offerings of the people are not sufficient 
 for the maintenance of the Gospel in every part 
 of the Government's dominion, which, however, is 
 apt to be the case universally. 
 
 Counsel will judge whether any meaning can be 
 assigned to the word ' settle,' that will support or 
 consist with the view that the established principle 
 is not in the above passage. It has been said 
 that it may mean ' arranged ; ' but ' settled ' never 
 
152 MEMOKIAL TO COUNSEL. 
 
 means arranged, but always fixed. If it is said 
 to mean fixed, but not fixed legally — tlien how 
 fixed, or by whom? To say that all the ordi- 
 nances of God shall be fixed has no meaning, 
 unless you say how or by whom. To say that 
 they are fixed legally is a definite sense; just as 
 * administered ' has the definite meaning: of beino: 
 dispensed by ministers, so ' settled ' has the 
 definite meaning of being fixed by law. If it is 
 said it may mean fixed by the Church, it is 
 answered settled does not mean fixed by the 
 Church ; that is never included in the received 
 meaning of the word, but is a mere inference, or 
 rather a mere arbitrary addition. It is also quite 
 untenable here^ because it is the magistrate that 
 is to take order that the ordinances be settled ; 
 and if any alteration is to come at all, it must be 
 made fixed by the magistrate, which is the same 
 as by legal sanction. 
 
 But, further, ' settled ' cannot mean fixed by 
 the Church, because the Church settles nothing; 
 according to the Westminster Confession and the 
 ecclesiastical language of the period, it is beyond 
 the power and province of the Church to settle 
 anything whatever. In making this, assertion, 
 the whole years from 1638 to 1650, beginning 
 with the year so memorable in Scotland, and 
 continuing till after the close of the Westminster 
 Assembly, are taken. Now, in the formal docu- 
 
MEMOEIAL TO COUNSEL. 153 
 
 ments of Clmrcli and State, the Clmrcli ^agrees, 
 admits, allows, approves, authorises, enacts, 
 ratifies, appoints, ordains, constitutes, judges, 
 decerns, decrees, declares,' but she never settles. 
 Twice in the title of Acts, the Church is said to 
 ^ establish ; ' the Assembly established the Direc- 
 tory for worship, and the Commission of Assembly 
 established the metrical Psalms. But the Church 
 is never said to ' settle ' anything, not even to 
 settle a ' difference,' far less all the ordinances of 
 God. Three things more she is said to do ; she 
 ' determines, concludes, fixes.' She hath authority 
 to ' determine controversies, cases of conscience, 
 differences,' and to determine the worship of God, 
 with discipline, government, and creed, but not to 
 settle them. She hath authority also ' to handle 
 and conclude matters ecclesiastical,' not to settle 
 them. Further, when she ordains ministers, she 
 fixes them in a charge 5 but she never settles them 
 except there be first a legal sanction given. A 
 ' fixed ' minister is an expression very often used 
 by the Westminster divines for the minister of 
 what they called a ' fixed congregation ' or regular 
 charofe, in distinction from a minister ordained 
 without a charge ; but he is never called a 
 ' settled ' minister except his ordination is legally 
 sanctioned. 
 
 This constant usage is not affected by a single 
 instance found, in an Act of the Assembly, ' anent 
 
154 MEMORIAL TO COUNSEL, 
 
 the planting of schools in landward parishes/ in 
 which the Assembly ' giveth direction for the 
 settling of schools in every landward parish, and 
 providing of men able for the teaching of the 
 youth,' because the Presbytery is there acting as 
 the Established Church of the land, and according 
 to the powers conferred on it by law ; or in the 
 Assembly's own words, ^ according to the laudable 
 Acts, both of Kirk and Parliament made before, 
 that every parish should have a reader and a 
 school.' The usage here exactly corresponds to 
 that in the English Act of the Lords and Commons 
 establishing Presbytery, in which congregational 
 elderships are said to be settled ; yet the Act only 
 gives order for the settling of Presbyteries, and 
 ordains that the Presbyteries ' when settled, shall 
 have power to constitute congregational elder- 
 ships ; ' but the Act of the Presbytery is then 
 sufficient also to settle these elderships, because 
 their Act has been legally authorised by the 
 State. 
 
 Evidence as to use of word ^^ settle.'''' — George 
 Gillespie, so accurate in his language, writes to 
 Scotland in 1646, ^ we are pressing that the 
 Parliament may settle the rule according to the 
 advice of the Assembly ; ' and the Act of the 
 Scottish Parliament abolishing patronage in 1649, 
 concludes by ^ seriously recommending unto the 
 next General Assembly clearly to determine the 
 
MEMORIAL TO COUNSEL. 155 
 
 same {i.e., the interests of congregations and 
 Presbyteries), and to condescend upon a certain 
 standing way for being a settled rule therein for 
 all times coming.' In 1648 the English Parlia- 
 ment passed an Act ' to settle the possession of 
 the parsonages, tithes, and profits on such ministers 
 as have been placed by authority of Parliament,^ 
 and giving directions for the disposal of the 
 parsonages and tithes in those parishes ' wherein 
 no ministers are settled to receive them.' In the 
 CXI. Propositions a settled Church means a legally 
 established Church in the following sentence : 
 ' Ordinarily, and by common or known law and 
 right in settled Churches, if a man have recourse 
 to the magistrate to complain.' It is the same in 
 the Act of the Assembly approving the Confession 
 of Faith, where ' Kirks constituted and settled ' 
 are Churches constituted ecclesiastically and settled 
 legally. In King Charles I.'s Message to the 
 Parliament he earnestly desires that ' the govern- 
 ment of the Church may be settled as it was in 
 the reigns of Queen Elizabeth and King James, 
 with full liberty for the ease of their consciences 
 who will not communicate in that service established 
 by law.'' The fifth of the Propositions to His 
 Majesty by the Lords and Commons assembled 
 in Parliament is, that ' Reformation of religion 
 according to the Covenant be settled by Act of 
 Parliament in such manner as both Houses have 
 
156 MEMORIAL TO COUKSEL. 
 
 agreed or sliall agree upon after consultation had 
 with the divines.' In Scotland two years later 
 (1648) Baillie says, ' Our meetings were long in 
 private for a state of a question ; we required 
 peremptorily to stand to our former principles 
 and Covenant. — To have religion settled first ; 
 and the King not to he restored till he had given 
 security hy his oath to consent to an Act of Parlia- 
 ment for enjoining the Covenant in all his domi- 
 nions, and settling religion according to the 
 Covenant.' Gillespie in his formal speech before 
 the Assembly, reporting the results of the West- 
 minster Assembly, said — * Ye know the Directory 
 for worship is settled long ago by the Parliaments 
 of both kingdoms.' Both the English and Scotch 
 Acts of Parliament establish the Directory without 
 any mention of settling; Gillespie informs the 
 Assembly that they both ' settled ' it ; and yet 
 because Gillespie and the others employed the 
 same word in our Confession, it is now said that 
 there is ^nothing like establishment in it.' 
 
 Attention must be directed particularly to some 
 of the documents immediately connected with the 
 Westminster Assembly and the Confession of 
 Faith. And first let it be remembered that the 
 Westminster divines were expressly summoned by 
 the English Parliament to assist them in doing 
 what they here declare the magistrate should see 
 that it be done — namelv, settlinsr the ordinances of 
 
MEMORIAL TO COUNSEL. 157 
 
 religion. The Act which summoned them to meet 
 is entitled, ^ An Ordinance of the Lords and 
 Commons assembled in Parliament for the callino^ 
 of an Assembly of learned and godly divines, and 
 others, to be consulted with by the Parliament for 
 the settling of the Government and the Liturgy of 
 the Church of England, and for vindicating and 
 clearing the doctrine of the said Church.' And 
 it states : ' Whereas it hath been declared and 
 resolved by the Lords and Commons assembled in 
 Parliament that the present Church-government 
 by Archbishops, &c., is evil, and therefore they are 
 resolved that the same shall be taken away, and 
 that such a government shall be settled in the 
 Church as may be most agreeable to God's holy 
 Word.' 
 
 The divines were summoned to assist and 
 advise the Parliament in ' settling ' the Liturgy, 
 and the Act of Parliament afterwards for securins: 
 that object runs in these terms — ' The Lords and 
 Commons assembled in Parliament have consulted 
 with the pious and learned divines called together 
 for that purpose, and do judge it necessary that the 
 Book of Common Prayer be abolished, and the 
 Directory for the Public Worship of God be 
 established. ' 
 
 Previously to this, and soon after the convoca- 
 tion of the Assembly, the Lords and Commons 
 had passed an ordinance, ' That the Assembly of 
 
158 MEMORIAL TO COUNSEL. 
 
 divines and others do forthwith confer and treat 
 among themselves of such a discipline and govern- 
 ment as may be most agreeable to God's holy 
 Word, to be settled in this Churchj instead and in 
 place of the present Church-government by Arch- 
 bishops,' &c. 
 
 The Church-government is both determined and 
 constituted exclusively by the Church, but in this 
 and all other Acts, both of Parliament and 
 Assembly, it is settled in the Church by the State. 
 About three years after the meeting of the 
 Assembly, the Commons passed a declaration 
 clearing themselves from rumours and aspersions 
 for want of the present settling of Church-govern- 
 ment, and stating — ^ We have so fully declared 
 for a Presbyterial government, spent so much 
 time, taken so much pains for the settling of it, 
 that it must seem very strange if any sober and 
 modest man shall entertain a thought that we 
 shall settle no government in the Church — (and 
 alleging causes why) the government hath not long 
 since been established.'' 
 
 This ordinance of the Lords and Commons was 
 passed in January 1647 ; in December the Con- 
 fession of Faith, finished, but without Scripture 
 proofs, had been presented to Parliament, and five 
 hundred copies had been printed. The Confession, 
 with the Scriptural proofs added, was laid before 
 Parliament in April, when six hundred copies 
 
MEMORIAL TO COUNSEL. 159 
 
 were ordered to be printed for the use of both 
 Houses, and of the Assembly. With the printed 
 Confession in their hands, containing this clause, 
 that ^ the civil magistrate hath authority, and it is 
 his duty to take order that all the ordinances of 
 God be settled,' the Lords and Commons passed 
 the ordinance which they entitled, ' Classical 
 Presbyteries and Congregational Elderships shall 
 be settled,' declaring their resolution ' speedily to 
 settle the Presbyterial Government,' and ordaining 
 measures for that end. The troubled state of the 
 times delayed the execution of this ordinance, but 
 in October the Lords and Commons had a con- 
 ference, in which they established Presbyterial 
 Government for a period. The votes of the Lords 
 were — ' That the King be desired to give his 
 sanction to such Acts as shall be presented to 
 him for settling the Presbyterian government for 
 three years.' And the vote of the Commons, 
 using the interchangeable word, was — 'That the 
 Presbyterian government be established till the end 
 of next Session of Parliament ' (which was to be a 
 year after that date). That is, the Lords and 
 Commons, with the Confession of Faith printed 
 and in their hands (which the Lords passed 
 unreservedly on the following March, and the 
 Commons passed without any stricture on the 
 23d Chapter), with this Confession and this word 
 * settled ' in their hands, they first resolved con- 
 
160 MEMORIAL TO COUNSEL. 
 
 jointly to ^ settle the Presbyterial Government ; ' 
 next in their separate Houses the Lords voted that 
 it should be ^settled/ and the Commons voted that 
 it should be ' established ; ' and then they con- 
 ferred and sanctioned these votes as an Act of 
 Parliament. Considering these facts, it is sub- 
 mitted that by ' settling the ordinances of God ' 
 the Westminster divines, the House of Lords, and 
 the House of Commons, did unanimously mean 
 establishing them by law, or by the united sanction 
 of Church and State. 
 
 The next proof is from the words of the West- 
 minster divines themselves, from their formal 
 deliverances in the Assembly. The term ' settle ' 
 is employed once in the Confession of Faith, 
 twice in the earlier form of Church Government, 
 and once in the later form. In the first form of 
 Government there is this article — ^ In extraordinary 
 cases something extraordinary may be done until 
 a settled order may be had, yet keeping as near as 
 possibly may be to the rule, 2 Chron. xxix. 34, 
 35, 36; 2 Chron. xxx. 2, 3, 4, 5. There is at 
 this time, as we humbly conceive, an extraordinary 
 occasion for a way of ordination for the present 
 supply of ministers.' That ' settled ' in this 
 passage means established is evident, because 
 there was at the time no Church Government 
 established. Episcopacy having been abolished 
 with nothing else as yet in its room; they were 
 
MEMORIAL TO COUNSEL. 161 
 
 waiting until a settled or established order * might 
 Le had ; ' and the intermediate rule to which 
 they refer makes the civil sanction very promi- 
 nent. The rule consists only of texts, but the 
 texts are not marginal, but are the substance of 
 the Assembly's determination. The following 
 words form part of it: — ^And the thing pleased 
 the King and all the congregation. So they 
 established a decree to make proclamation 
 throughout all Israel, from Beersheba even to 
 Dan, that they should come to keep the Passover 
 unto the Lord God of Israel at Jerusalem.' This- 
 first form of government was sent to Parliament 
 by the Assembly as their ^ Humble advice to 
 Parliament for the ordination of ministers, and 
 settling the Presbyterian government.' The en- 
 larged form of Church Government, prepared 
 later, contains these words — ' It belongeth unto 
 classical Presbyteries to admonish or to censure 
 ministers .... for depriving or speaking 
 reproachfully against the wholesome orders by 
 authority settled in the Church .... to 
 examine, ordain, and admit ministers according 
 to the advice formerly sent up to the Honourable 
 Houses of Parliament.' The wholesome orders are 
 said to have been ' settled,' not by the Church but 
 in the Church, and settled by authority. The 
 word ^ authority ' is often used, and when unquali- 
 fied never means Church authority, but Civil 
 
162 MEMORIAL TO COUNSEL. 
 
 autliority, or perhaps occasionally tlie Civil and 
 Ecclesiastical combined. A fourtli, and in so far 
 as ascertained, the only remaining instance in 
 which the Assembly employ the word ' settle/ 
 occurs in the following sentence of the Solemn 
 League and Covenant : ' The happiness of a blessed 
 peace between these kingdoms hath been lately 
 concluded and settled by both Parliaments/ that 
 is, legally established by the highest Civil 
 authorities in the two nations. The Westminster 
 divines, then, in both their forms of Government, 
 employ ' settle ' as their only word to express the 
 Civil establishment of religion ; and they were far 
 too careful in their use of terms to alter its sense 
 in their Confession of Faith. 
 
 Let us turn to the Revolution Settlement. In 
 the year 1689 the Scottish Estates resolved that 
 ' they will continue undissolved until they settle 
 and secure the Protestant religion.' King 
 William wrote to them, ' It lies on you to enter 
 on such consultations as are most probable to 
 settle you on sure and lasting foundations. . . . 
 We having nothing so much before our eyes as 
 the glory of God and the establishment of the 
 Reformed religion.' ^ And the King and Queen's 
 Majesties do declare that they with advice and 
 consent of the Estates of Parliament will settle by 
 law that Church Government which is most 
 agreeable to the inclination of the people.' The 
 
MEMORIAL TO COUNSEL. 163 
 
 Act of 1690 employs the word ^establish' eight 
 times over to ratify by law the Confession of 
 Faith, and the Government and Discipline of the 
 Presbyterian Church ; yet it is not ' establish/ 
 but ' settle/ both in its title and opening as 
 follows — ^Act ratifying the Confession of Faith 
 and settling Presbyterian Church Government ; 
 Our Sovereign Lord and Lady, the King and 
 Queen's Majesties and three Estates of Parliament 
 consider it to be their bounden duty after the great 
 deliverance that God hath lately wrought for this 
 Church and Kingdom, in the first j)lace to settle 
 and secure therein the true Protestant religion 
 according to the truth of God's Word as it hath 
 of a long time been professed within this land ; 
 as also the Government of Christ's Church within 
 this nation agreeable to the Word of God.' The 
 Confession of Faith was read before the King and 
 Queen and Parliament; and however they might 
 take for granted the correctness of its doctrinal 
 statements without special scrutiny, they were sure 
 to listen with the closest attention to every one of 
 the few words concerning the civil magistrate; 
 and hearing it read that it was the ^ magistrate's 
 duty to take order that all the ordinances of God 
 shall be settled,' they employ this word in the 
 title and in the opening of their Act, and declare 
 that they are determined to ' settle ' the Protest- 
 ant religion and the Presbyterian government. 
 
164 MEMOEIAL TO COUNSEL. 
 
 If they had not been assured that ' settle ' in the 
 Confession means ' established,' they never would 
 have used the word in that sense in estab- 
 lishing the Confession. In these and accom- 
 panying Acts the word ' settled ' is employed 
 fifteen times, always in the sense of fixing by 
 law, and frequently interchanged with ' establish ' 
 as a convertible term. 
 
 It matters not at all for this end whether the 
 texts in the Confession which are used to support 
 the doctrine are well or ill chosen, nor even 
 whether they are true portions of the ancient 
 Scriptures, which none will venture to question. 
 The single point of inquiry is if the meaning of 
 the texts is sufficiently plain to prove the meaning 
 of the controverted letter of the Confession. 
 
 Arguments from ScrijHure-proofs, — Now the 
 texts are numerous, and clear, anent the example 
 of kings establishing the worship of the true Grod 
 by all the authority and power that existed in the 
 nation. Take out of these texts all that is typical, 
 ceremonial. Mosaic, local, and incidental, and 
 there remains this one element in them all : 
 The worship of the true God set up by the whole 
 civil and ecclesiastical power of the nation. It is 
 not priests alone, or priests and people, but kings, 
 Artaxerxes, David, Josiah, with counsellors, 
 captains, and every leader, with the priests, and 
 with the whole collective power of the nation, 
 
MEMORIAL TO COUNSEL. 165 
 
 establisliing all the ordinances of God. The 
 framers, therefore, of the Confession beyond all 
 controversy designed to express civil sanction to 
 religious ordinances in this article ; they thought 
 they had expressed it, for they selected these texts 
 to prove what they had written ; and the word 
 they inserted in the letter of the article more 
 especially to express that meaning was the fittest, 
 strongest, best-authorised, and most received word 
 in the English language for that purpose. 
 
 More evidence as to the use of the word " Settle!^— 
 In 1649 the Scottish Estates of Parliament, in their 
 instructions to the Commission to Charles II., say, 
 'The sooner his Majesty begins to settle religion 
 and peace, and upon these grounds claims the right 
 of his government before Democracy or any new 
 model of government be settled or take root, it 
 will be more easy to maintain monarchical govern- 
 ment than to repeal and cast out any other form 
 of government after it is once established; and as 
 his Majesty's joining in the Covenant with God 
 and His people for settling religion is the surest 
 foundation of a well-grounded peace, so it will 
 certainly be the best and most effectual way to 
 establish his throne in righteousness.' The Com- 
 missioners repair to him at the Hague, and set 
 before him what they term ' the best means of 
 settling religion and establishing the throne.' 
 Charles replies, ' I will maintain, confirm, and 
 
 M 
 
166 MEMOEIAL TO COUNSEL. 
 
 defend the government ecclesiastic and civil of 
 Scotland as it is settled by law and the ancient 
 known laws of that kingdom ; ' and they in return 
 ^ bless God that your Majesty answers us you will 
 maintain, confirm, and defend the ecclesiastic 
 government of Scotland as it is settled by law.' 
 
 In the ecclesiastical and Parliamentary Acts of 
 those twelve years, including such documents as 
 the Scottish National Covenant, the Solemn League 
 and Covenant, and the Directories for Public Wor- 
 ship and Church Government, the word is never 
 employed in any other sense whatever than as fixed 
 by legal sanction ; not ecclesiastically ; but what 
 is more remarkable, considering the common and 
 various use of the word in those days, not in any 
 sense that does not include the legal element. 
 Sometimes, though rarely, the sense appears at 
 first to be general, as in the ^ settling of truth and 
 peace ; ' but that means truth and peace both 
 established by national sanctions, and the full 
 expression is ^ truth and peace settled on a firm 
 foundation for future generations.' Passing over 
 the Acts of Parliament which refer to matters 
 merely civil, as opening a sphere both too wide 
 and less relevant, such as the Acts ^ settling the 
 Admiralty, settling the Militia, settling the 
 Courts of Justice,' in which the legal sense con- 
 stantly occurs and no other, and limiting the 
 inquiry either to Acts of Assembly or Acts of 
 
MEMORIAL TO COUNSEL. 167 
 
 State connected with religion; in those twelve 
 years, the word ^settled, it is found, is used 117 
 times in the sense of fixed by law, necessarily in 
 that sense in nearly all these cases, and naturally 
 in them all ; and is not found once occurring in 
 any other meaning whatever. At the Revolution 
 period it is found 15 times in the same sense, 
 making 134 times in all. 
 
 h. The various actions and declarations of the 
 Free Church thereanent, pp. 173-177 hereof. 
 
 (2) In support of this principle not being re- 
 cognised. Counsel are referred to the following 
 cases : — 
 
 1. Craigdallie v, Davidson, No. 1 (see p. 217 
 hereof). 
 
 2. First and second Campbelton Cases, Nos. 
 2 & 3 (see p. 217 hereof). 
 
 3. To the assertion that although the Free 
 Church adopted all the principles of the Church 
 of Scotland, yet not this, as this never was a term 
 of communion in the Established Church. 
 
 If this principle, it is submitted, is in the Con- 
 fession, the Free Church holds it, as her ministers 
 have taken the '^ whole doctrine " thereof. For 
 the second of the questions put to ministers at 
 ordination asks — 
 
 ^^ Do you sincerely own and believe the whole 
 doctrine contained in the Confession of Faith ? " 
 and in signing the Formula he says — 
 
168 MEMORIAL TO COUNSEL. 
 
 "I do sincerely own and believe the whole 
 doctrine contained in the Confession of Faith" 
 (see pp. 39 and 40 of App. to Standards). 
 
 In whatever way this question is decided, it is 
 to be observed that the other constitutional docu- 
 ments of the Free Church expressly declare and 
 imply her adherence to the principle of an eccle- 
 siastical Establishment. 
 
 II. Claim of Rights^ 1842. — In the Claim of 
 Bights of 1842, as fully stated in the passages 
 above quoted from that deed (p. 125), and to which 
 reference is made (see also page 1 of App. to 
 Standards). 
 
 III. Protest, 1843.— In the Protest of 1843, 
 as fully shown in the passages above quoted 
 therefrom (p. 128), and to which reference is made 
 (see also page 19 of App. to Standards). 
 
 ly. Second Book of Discipline. — In the Second 
 Book of Discipline, chap. 1, entitled, ** Of the 
 Kirk and Policy thereof in general, and wherein 
 it is different from the Civil Policy " : — 
 
 '^ This power and policy ecclesiastical is different 
 and distinct in their own nature from that power 
 and policy which is called civil power, and apper- 
 taineth to the civil government* of the common- 
 wealth. Albeit they be both of God, and tend to 
 one end, if they be rightly used: viz., to advance 
 the glory of God, and to have godly and good 
 subjects. 
 
MEMORIAL TO COUNSEL. 169 
 
 *^ It is proper to kings, princes, and magistrates 
 to be called lords and dominators over their sub- 
 jects whom they govern civilly ; but it is proper to 
 Christ only to be called Lord and Master in the 
 spiritual government of the Kirk; and all others 
 that bear office therein ought not to usurp dominion 
 therein, nor be called lords, but only ministers, 
 disciples, and servants ; for it is Christ's proper 
 office to command and rule His Kirk universally, 
 and every particular Kirk, through His Spirit and 
 Word by the ministry of men. 
 
 " The civil power should command the spiritual 
 to exercise and to do their office according to the 
 Word of God : the spiritual rulers should require 
 the Christian magistrate to ^minister justice and 
 punish vice, and to maintain the liberty and quiet- 
 ness of the Kirk within their bounds. 
 
 '^ The magistrate neither ought to preach, mini- 
 ster the sacraments, nor execute the censures of 
 the Kirk, nor yet prescribe any rule how it should 
 be done; but command the ministers to observe 
 the rule commanded in the Word,, and punish the 
 transgressors by civil means. 
 
 '' The magistrate ought to assist, maintain, and 
 fortify the jurisdiction of the Kirk. The ministers 
 should assist their princes in all things agreeable 
 to the Word." 
 
 Chapter 10, ^' Of the Office of a Christian 
 Magistrate in the Kirk."— " Although all the 
 
170 MEMORIAL TO COUNSEL, 
 
 members of the Kirk be holden every one in their 
 vocation, and according thereto, to advance the 
 kingdom of Jesns Christ so far as lies in their 
 power, yet chiefly Christian princes and other 
 magistrates are holden to do the same. For they 
 are called in the Scripture nourishers of the Kirk, 
 forsomuch as by them it is, or at least ought to be, 
 maintained, fostered, upholden, and defended 
 against all that would procure the hurt thereof. 
 So it pertains to the office of a Christian magistrate 
 to assist and fortify the godly proceedings of the 
 Kirk in all behalfs, and, namely, to see that the 
 public estate and ministry thereof be maintained 
 and sustained as it appertains according to God's 
 Word. 
 
 " To see that the Kirk be not invaded nor hurt 
 by false teachers and hirelings. 
 
 " To assist and maintain the discipline of the 
 Kirk, and punish them civilly that will not obey 
 the censure of the same without confounding always 
 the one jurisdiction with the other. 
 
 " To see that sufficient provision be made for 
 the ministr3^ 
 
 '^ To make laws and constitutions asfreeable to 
 God's Word for advancement of the Kirk, and policy 
 thereof, without usurping anything that pertains 
 to the civil sword." 
 
 V. Larger Catechism. — In the Larger Catechism, 
 prepared by the same Assembly that made the 
 
MEMORIAL TO COUNSEL. 171 
 
 Confession, and therefore whicli may be safely held 
 to illustrate its principles (see p. 272 of " Free 
 Church Standards ") : — 
 
 Q. 191. ^' What do we pray for in the second 
 petition ? " 
 
 A. ^^ In the second petition (which is, Thy king- 
 dom come)^ acknowledging ourselves and all man- 
 kind to be by nature under the dominion of sin 
 and Satan, we pray that the kingdom of sin and 
 Satan may be destroyed, the gospel propagated 
 throughout the world, the Jews called, the fulness 
 of the Gentiles brought in; the Church furnished 
 with all gospel-officers and ordinances, purged from 
 corruption, countenanced and maintained by the civil 
 magistrate : that the ordinances of Christ may be 
 purely dispensed, and made effectual to the con- 
 verting of those that are yet in their sins, and the 
 confirming, comforting, and building up of those 
 that are already converted : that Christ would rule 
 in our hearts here, and hasten the time of His 
 second coming, and our reigning with Him for 
 ever : and that He would be pleased so to exercise 
 the kingdom of His power in all the world, as may 
 best conduce to these ends." 
 
 Gillespie^s CXI. Propositions. — In the CXI. 
 propositions of George Gillespie, a leading member 
 of the Westminster Assembly, which were prepared 
 for the purpose of illustrating the principles of the 
 
172 MEMORIAL TO COUNSEL. 
 
 Confession in regard to the duty of civil magis- 
 trates, the following statements are made : — 
 
 95. " Christian magistrates and princes embrac- 
 ing Christ, and sincerely giving their names to 
 Him, do not only serve Him as men, but also use 
 their office to His glory and the good of the 
 Church ; they defend, stand for, and take care to 
 propagate the true faith and godliness ; they afford 
 places of habitation to the Church, and furnish 
 necessary helps and supports, turn away injuries 
 done to it, restrain false religion, and cherish, 
 underprop, and defend the rights and liberties of 
 the Church ; so far they are from diminishing^ chang- 
 ing^ or restraining those rights, for so the condition 
 of the Church were in that respect worse, and the 
 liberty thereof more cut short, under the Christian 
 Magistrate than under the infidel or heathen,'''' 
 
 96. " Wherefore seeing these nursing fathers, 
 favourers and defenders, can do nothing against 
 the truth, but for the truth, nor have any right 
 against the gospel, but for the gospel ; and their 
 power in respect of the Church whereof they bear 
 the care, being not privative or destructive, but 
 cumulative and auxiliary, thereby it is sufficiently 
 clear that they ought to cherish, and, by their 
 authority, ought to establish the ecclesiastical dis- 
 cipline ; but yet not with implicit faith or blind 
 obedience, — for the Reformed Churches do not 
 deny to any of the faithful, much less to the 
 
MEMORIAL TO COUNSEL. 173 
 
 Magistrate, the judgment of Christian prudence 
 and discretion concerning those things which are 
 decreed or determined by the Church/' 
 
 V. 
 
 Actings and 'proceedings of the Free Church 
 thereanent. 
 
 In confirmation of this being an acknowledged 
 principle of the Free Church, the following actings 
 and proceedings may be adduced : — 
 
 (1.) From the time of the Reformation, no 
 theoretical difficulties existed on the subject of the 
 First Head of the Programme. At the end, how- 
 ever, of the last and in the commencement of this 
 century, theoretical objections to all Church 
 Establishments began to be maintained amongst 
 certain Seceders. These at first did not excite 
 much general attention ; but about forty years 
 ago the question was very seriously raised. Still 
 the doctrine of Church Establishments was una- 
 nimously maintained within the Establishment, 
 especially by leading men now in the Free Church. 
 In the year 1834, the subject came before the 
 General Assembly — that is, nine years before the 
 Disruption, — and was disposed of as follows : — 
 
 '' The General Assembly had transmitted to 
 them by their Committee on Bills a reference for 
 advice or decision from the Presbytery of Irvine, 
 concerning the conduct of Hugh Craig, Esq., an 
 
174 MEMORIAL TO COUNSEL. 
 
 elder of the High Kirk of Kilmarnock, and a 
 member of the Presbytery of Irvine, who had 
 officiated at a meeting in Kilmarnock on the 26th 
 March last, when a petition to Government was 
 agreed to, praying for the separation of Church 
 and State, and who afterwards avowed and defended 
 his conduct in the kirk session and Presbytery. 
 The General Assembly having heard the reference, 
 instruct the Presbytery of Irvine to call Mr Hugh 
 Craig before them at the meeting which shall 
 succeed their next ordinary meeting, and if they 
 find that he persists in the sentiments which he 
 has expressed in the kirk session of Kilmarnock 
 and Presbytery of Irvine, that they depose him 
 instanter from the office of a ruling elder of this 
 Church." — Proceedings of Assembly, 1834, p. 
 55. 
 
 This sentence was accordingly duly executed, as 
 the following minute will prove : — 
 
 '^ Irvine, ^tk August 1834. — Which day the 
 Presbytery of Irvine met and was constituted, Mr 
 Urquhart, moderator, — 
 
 ''Liter alia, Execution of Summons on Hugh 
 Craig, Esquire, was returned by the officer, duly 
 certified, and the report of the committee appointed 
 to converse with Mr Craig received and read, 
 &c. 
 
 " Mr Craig being present, was then asked by 
 the Presbytery whether he still adhered to the 
 
MEMORIAL TO COUNSEL. 175 
 
 sentiments expressed by liim in the kirk session, 
 in the Presbytery, and to the committee, when he 
 distinctly answered that he did. It was then 
 moved and unanimously agreed to that Mr Craig 
 be now denuded of his status as an elder of this 
 Church, in terms of the deliverance of the General 
 Assembly, and he was deposed accordingly. 
 Intimation of which deposition was ordered to be 
 given to the session of the High Church, Kilmar- 
 nock. Against which sentence Mr Craig pro- 
 tested, and appealed to the next meeting of the 
 Synod of Glasgow and Ayr, promised to lodge 
 reasons, took instruments, and craved extracts." — 
 Extracted from the Records of the Presbytery of 
 Irvine by John Bryce, Pres, Clerk, 
 
 The case was afterwards appealed to the Synod 
 of Glasgow and Ayr, but the Scottish Guardian 
 tells us that the judgment was " summarily 
 affirmed." 
 
 This case afterwards came before the Assembly 
 of 1835, which dismissed Mr Craig's appeal, and 
 subsequently before the House of Commons, which 
 disregarded his complaint. 
 
 This case surely determines that what is called 
 the Voluntary principle found no place in the 
 Church of Scotland, and that the maintenance of 
 the contrary principle, that is, of the Establishment 
 principle, was obligatory on all her office- 
 bearers. 
 
176 MEMORIAL TO COUNSEL. 
 
 (2.) Act anent Union with Seceders. — Again, in 
 tlie year 1839, — that is, still prior to tlie Disrup- 
 tion,— ^an Act of Assembly (which had previously 
 gone through the Barrier Act) was passed, entitled, 
 " Act anent the Union with Seceders," which 
 contains the following preamble: — "Whereas 
 proposals have been made by the Associate Synod 
 for a re-union with the Church of Scotland, and 
 a considerable number of overtures have been 
 sent at the same time to the General Assembly, 
 by Synods, and Presbyteries of the Church favour- 
 able to that object, and since it has been ascertained 
 by a Committee of the General Assembly that the 
 course of study required for a long time past of 
 students in Divinity in connection with the said 
 Synod is quite satisfactory, and that their ministers 
 and elders do firmly adhere to the Westminster 
 Confession of Faith, the Larger and Shorter 
 Catechisms, and other standards of our Church ; 
 and whereas the members of the Associate Synod 
 do heartily concur with us in holding the great 
 pri7iciple of an Ecclesiastical Establishment, and 
 the duty of acknowledging God in our national as 
 well as our individual capacity,'' &c. It is 
 submitted that this extract, taken in connection 
 with the test of the Barrier Act, not only shows 
 how universally the Establishment principle was 
 then held in the Church, but also that its recog- 
 nition was an absolute condition before any union 
 
MEMOEIAL TO COUNSEL. 177 
 
 with her could be formed. As the Free Church 
 claims to be the Church of Scotland Free, she 
 adopted all her acts, laws, and proceedings, and 
 this inter alia. 
 
 As very full reference has been made to those 
 Acts of the Church (all of which show that the 
 Church held this principle between 1839 and 
 1846), there is no necessity for noticing them here 
 again, except to quote the following extracts 
 from two Pastoral Letters. 
 
 (3.) Pastoral Address^ April 1843. — On the 
 25th of April 1843, being a month before the 
 Disruption, a Pastoral Address was issued " by 
 authority of the Special Commission of the 
 General Assembly," and subscribed by Dr Gordon 
 as Moderator, which contains a declaration of the 
 principles held by those who afterwards formed 
 the Disruption Church. The following is an 
 extract from this document : — ^' The authority 
 which Christ claims as King of Zion in His own 
 spiritual kingdom. He demands as Prince of the 
 kings of the earth that they shall sacredly respect 
 and recognise (Ps. ii. 10-12). In this character 
 He acknowledges them as kings, and confirms 
 their secular dominion. The very fact of His being 
 their Prince gives new stability and a new sanc- 
 tion to their thrones. Civil government, by 
 whomsoever wielded, is ratified by Him as the 
 ordinance of God, which the Son of God, as King, 
 
178 MEMORIAL TO COUNSEL. 
 
 controls and overrules, and which, in the very- 
 act of overruling it, He establishes anew (Prov. 
 viii. 15; Rom. xiii. 1-7; Titus iii. 1; 1 Pet. ii. 
 13-17). 
 
 " On the other hand, as Prince of the kings of 
 the earth. He requires them to acknowledge Him 
 and to own His spiritual supremacy. He lays the 
 civil magistrate under a solemn obligation, as 
 well in the regulation of the ordinary civil affairs 
 of His magistracy, as in His dealing with matters 
 spiritual and such as affect religion and the Church 
 of the living God. 
 
 " In his ordinary civil administration the civil 
 magistrate, owning Christ as the King of kings, 
 and Prince of the kings of the earth, is bound to 
 have respect to His laws and to aim at the 
 advancement of His glory. The spirit of Chris- 
 tianity ought to pervade all the political institu- 
 tions and all the public transactions of His king- 
 dom, and whatever is done should be sanctioned 
 by the Word of God and by prayer (Ps. Ixxxii. 
 3 ; Ixxxv. 2 ; 2 Sam. xxiii. 3). 
 
 " But in addition, the Christian magistrate, as 
 one of the kings of the earth of whom Christ is 
 Prince, is to interest himself directly in the affairs 
 of Christ's kingdom, and to act as the guardian of 
 religion in the land. In that capacity he has 
 many important functions to discharge in reference 
 to the Church, and he has authority as the minis- 
 
MEMORIAL TO COUNSEL. 179 
 
 ter of God for good to take measures for preserv- 
 ing peace and order in the Church, for reforming 
 abuses and remedying grievances, for guarding 
 purity of doctrine and discipline, and for supply- 
 ing the means of grace in efficiency and abundance 
 through the ministrations of the Church to the 
 people under his dominion (Isa. xlix. 23 ; 2 
 Kings xviii. 4 ; 2 Chron. xix. 8 ; John xviii. 37, 
 xix. 2)." 
 
 (4.) The following is from the Pastoral Letter 
 adopted on 30th May 1843 :— 
 
 Pastoral Letter, May 1843. — ^^ Long was it the 
 peculiar distinction and high glory of the Estab- 
 lished Church of Scotland to maintain the sole 
 Headship of the Lord Jesus Christ, His exclusive 
 sovereignty in the Church, which is His kingdom 
 and house. It was ever held by her, indeed, that 
 the Church and the State being equally ordinances 
 of God, and having certain common objects con- 
 nected with His glory and the social welfare, might 
 and ought to unite in a joint acknowledgment of 
 Christ, and in the employment of the means and 
 resources belonging to them respectively for the 
 advancement of His cause. But while the Church 
 in this manner might lend her services to the State, 
 and the State give its support to the Church, it 
 was ever held as a fundamental principle that each 
 still remained, and ought under all circumstances 
 to remain, supreme in its own sphere, and in- 
 
180 MEMORIAL TO COUNSEL. 
 
 dependent of the other. On. the one hand, the 
 Church having received her powers of internal 
 spiritual government directly from her Divine 
 Head, it was held that she must herself at all 
 times exercise the whole of it under a sacred and 
 inviolable responsibility to Him alone, so as to 
 have no power to fetter herself, by a connection 
 with the State or otherwise, in the exercise of her 
 spiritual functions ; and in like manner in regard 
 to the State, the same was held to be true on the 
 same grounds, and to the very same extent, in 
 reference to its secular sovereignty. It was main- 
 tained that as the spiritual liberties of the Church 
 bequeathed to her by her Divine Head were entirely 
 beyond the control of the State, so, upon the other 
 hand, the State held directly and exclusively from 
 God, and was entitled and bound to exercise under 
 its responsibility to Him alone its entire secular 
 sovereignty, including therein whatever it was 
 competent for or binding upon the State to do about 
 sacred things or in relation to the Church — as, for 
 example, endorcing and establishing the Church, and 
 fixing the terms and conditions of that Establish- 
 Tnenty — (P. 51, Acts of Free Church Assembly, 
 1843.) 
 
 (5.) Preamble to Act, 1846, c. 12.— In 1846, the 
 Free Church, in altering the Formula, as above 
 noticed, declared her unaltered attachment to her 
 old principles, as the preamble actually adopted 
 
MEMORIAL TO COUNSEL. 181 
 
 by the Assembly 1846 shows : — " And the General 
 Assembly, in passing this Act, think it right to 
 declare that, while the Church firmly maintains 
 
 THE SAME scriptural PRINCIPLES AS TO THE DUTIES 
 OF NATIONS AND THEIR RULERS IN REFERENCE TO 
 TRUE RELIGION AND THE ChURCH OF ChRIST, FOR 
 WHICH SHE HAS HITHERTO CONTENDED, sllC disclaims 
 
 intolerant or persecuting principles, and does not 
 regard her Confession of Faith, or any portion 
 thereof, when fairly interpreted, as favouring 
 intolerance or persecution, or consider that her 
 office-bearers, by subscribing it, profess any prin- 
 ciples inconsistent with liberty of conscience and 
 the right of private judgment." — Acts of Free 
 Assembly, 1846, c. xii. 
 
 This preamble confirms the position your memo- 
 rialists seek to maintain — that the Free Church 
 always held the Confession in its integrity — and 
 that it contained a recognition of and declaration 
 regarding the duty of nations and their rulers to 
 true religion and the Church of Christ. 
 
 (6.) Catechism, 1847. — In the year 1847, the 
 General Assembly of the Free Church approved of 
 what is called the " Constitutional Catechism of 
 the Free Church of Scotland," prepared by a 
 committee of which the Rev. Andrew Gray of 
 Perth was convener. The Act of Assembly to this 
 effect is as follows : — " The General Assembly 
 having resumed consideration of the overtures on 
 
 N 
 
182 MEMORIAL TO COUNSEL. 
 
 the principles of tlie Church, and of the report of 
 the Committee thereanent, and being deeply sen- 
 sible of the importance of instructing the people 
 of this Church, and especially the young, in the 
 great principles which she has been called to 
 maintain ; having also had their attention called 
 to the Catechism on the principles and con- 
 stitution of this Church, issued in December 
 1845 by authority of the Publication Committee, 
 and since that time circulated with large acceptance 
 in the land, and being satisfied with its soundness 
 as well as its suitableness to the purpose intended, 
 approved generally of the same as containing a 
 valuable summary of this ChurcKs history and 
 exhibition of her distinctive principles from the 
 beginning of the Reformation to the present time^ and 
 earnestly recommend its general use. And the 
 Assembly authorise the Publication Committee to 
 superintend the issue of any new edition of the 
 Catechism that may be prepared, and to report 
 upon it to the next General Assembly; and 
 waiving the further consideration of the other 
 matters referred to in the overtures and the 
 report as aforesaid, the Assembly appoint this 
 Act to be read from all the pulpits on such 
 early Sabbath as may be agreed upon, at one 
 or other of the ordinary diets of worship, on 
 which occasion ministers are enjoined to preach 
 to their p)eople on the doctrine of the Head- 
 
MEMORIAL TO COUNSEL. 183 
 
 sJiip of the Lord Jesus Christ as held by this 
 Church according to God's Word, as well as the 
 peculiar responsibility of the Church and of all her 
 faithful people in regard to it " (Act XIX. 1847). It 
 will be seen from this extract, that the Free Church 
 traced her descent at this time as previously to 
 the " beginning of the Eeformation." The follow- 
 ing are extracts from this Catechism : — 
 
 " Q. 22. What do you mean when you say that 
 Christ is Head over the nations ? 
 
 " A, That the nations are subjected to Him for 
 the benefit of His Church. 
 
 " Q. 23. What duty devolves upon nations in 
 consequence of this ? 
 
 '^ A, They are bound to own their subjection to 
 Christ, to recognise His voice speaking to them 
 and to the Church in the Scrij)tures, to take care 
 that their legislation be not opposed to His will, 
 to abstain from the support or encouragement of 
 religious error, to have respect to the i?iterests 
 thereof in the administration of their affairs^ and to 
 employ their power and resources in such a way as 
 shall best contribute to its successful progress within 
 their territory and throughout the world (Ps. ii. 
 7-12; Ex. V. 2; Isa. Ix. 9, 10, 12; Jonah iii. 
 5-10; Ps. Ixxii. 10, 11, 17; Ezra vi. 22, vii. 27; 
 Neh. xiii. 15-22; Isa. xlix. 23). 
 
 *^ Q. 27. Is not this a principle which held true 
 as regards the Jewish people alone ? 
 
184 MEMORIAL TO COUNSEL. 
 
 ^' A. ^N'ot so. It appears to be a principle which 
 applies to public bodies universally, be they ancient 
 or modern, civil or ecclesiastical (Gen. xv. 16 ; Ex. 
 xiii. 19, xvii. 8-16 ; Isa. xiv. 21 ; Jer. ii. 2-7, xxv. 
 12; Dan. viii. 23; Amos i. 11, 12; Eev. i. 4, 5 ; 
 xviii. 24; xix. 1, 2)." 
 
 (7.) Act 1851, c. ix. anent Union of Original 
 Seceders. — In 1851, a portion of the Synod of 
 Original Seceders joined the Free Church, but this 
 was done only upon a distinct avowal of their belief 
 in the principle of a Church Establishment; and 
 in connection with that event an Act and Declara- 
 tion of much importance was adopted by the 
 General Assembly, and put on record, from which 
 the following is an extract : — " Holding firmly to 
 the last, as she holds still, and through God'^s grace 
 rcill ever hold, that it is the duty of civil rulers to 
 recognise the truth of God according to His Word, 
 and to promote and support the kingdom of Christ, 
 without assuming any jurisdiction in it or any 
 power over it; and deeply sensible, moreover, of 
 the advantages resulting to the community at 
 large, and especially to its more destitute portions, 
 from the public endowment of pastoral charges 
 among them, this Church could not contemplate 
 without anxiety and alarm the prospect of losing 
 for herself important means of general usefulness," 
 &c. (For this Act, see preface to " Free Church 
 Standards," p. v.) [See here Appendix A.] 
 
MEMORIAL TO COUNSEL. 185 
 
 (8.) Resolutions, 1853. — In 1853, the General 
 Assembly passed the following series of resolu- 
 tions in regard to the principles of the Free 
 Church, viz. : — 
 
 ^'1. That this Church maintains unaltered and 
 uncomj^romised the principles set forth in the Claim, 
 Declaration, and Protest of 184:2, and the Protest 
 ^1843, relative to the lawfulness and obligation of 
 a scriptural alliance between the Church of Christ 
 and the State, and the conditions upon which such 
 an alliance ought to be regulated, as well as also 
 the position which, in the maintenance of these 
 principles, the Church was called upon to take in 
 1842 and 1843, as a Church protesting against 
 invasions of her just and constitutional rights, 
 and demanding redress for the wrongs thus 
 inflicted. 
 
 ''2, That while in pursuance of the righteous 
 protest and demand aforesaid, it is ' free to the 
 members of this Church, or their successors at any- 
 time,' as the Claim of Rights asserts, ^ when 
 there shall be a prospect of obtaining justice, to 
 claim restitution of all such civil rights and privi- 
 leges and temporal benefits as ' they ' were then 
 compelled to yield up', there is not any present 
 call to take any such step in that direction, as 
 would imply renewed negotiations with statesmeu, 
 or renewed application to the legislature. 
 
 " 3. That it is the duty of the Church, all 
 
186 MEMORIAL TO COUNSEL. 
 
 the more on this account^ to adopt measures for 
 keeping before the minds of the people, and 
 especially of the rising generation, the principles 
 which this Church holds, and the position which 
 she occupies as the Free Protesting Church of 
 Scotland. 
 
 '' 4. That a committee be appointed to draw up 
 a popular summary, in the narrative form, of the 
 principles and contendings of the Church of Scot- 
 land from the earliest times to the present, 
 adapted to the purpose indicated in the previous 
 resolution, and to report progress to next General 
 Assembly, with power to the same committee to 
 take such other steps as they may deem right, for 
 diffusing information and awaking an interest in 
 regard to this whole matter." 
 
 (9.) Act 1859, c. ix.— In 1859 the Assembly 
 adopted another means for keeping before the 
 minds of the people the principles of the Disrup- 
 tion, viz., to have an annual sermon in all the 
 churches on the subject. The following is the 
 Act of the Assembly 1859 (Act IX.) : — 
 
 " The General Assembly resolve that on the 
 Sabbath immediately before each meeting of the 
 General Assembly, or on such other Sabbath as 
 the General Assembly may appoint, every minister 
 shall direct the special attention of his people to the 
 facts and principles of the Disruption in 1843, and 
 that a collection shall be made on said Sabbath, 
 
MEMORIAL TO COUNSEL. 187 
 
 wliicli shall be devoted to the increase of the 
 stipends of the Ante-Disruption ministers whose 
 whole stipends, including supplements, do not 
 amount to £200 a-year, as a testimony to the great 
 2^rinciples they contended and suffered for,'''' 
 
 (10.) Declaratory Act, 1860, c. xi. — In 1860 
 the General Assembly passed a Declaratory Act 
 anent the trials of students, from which the fol- 
 lowing is an extract : — '^ No Presbytery shall 
 receive any student upon trial unless they are 
 satisfied that he is of good report, sound in his 
 principles, pious, sober, grave, and prudent in his 
 behaviour, of a peaceable disposition, a7id that he 
 holds the principles of this Church as to the inde- 
 pendence of the Church and the duties of nations 
 and their rulers in reference to true religion and 
 the Church of Christ;'''' and it is added, for the 
 purpose of securing better observance of this Act, 
 that amongst other things " a copy shall he trans- 
 mitted to each professor of divinity in the Colleges 
 of the Free Church, and that the said Professors 
 shall read the same in their respective halls once at 
 least during every session, and at such times as they 
 have reason to expect the attendance of the greatest 
 number of students for that session^ 
 
 Now these passages from the Standards of the 
 Free Church, and those actings and proceedings 
 which have been above quoted, indicate, it is 
 submitted, the teaching of the Free Church on 
 
188 MEMORIAL TO COUNSEL. 
 
 the subject of the first head of the programme; 
 especially that she held a DEFINITE belief 
 thereon. 
 
 VI. 
 
 Constitution of United Presbyterian Church. — 
 Such being the teaching of the Free Church in 
 her Standards on the first head of the programme, 
 and her actings in asserting it, your memorialists 
 would now turn Counsers attention to the teach- 
 ing of the United Presbyterian Church on the same 
 point, as contained in her Standards. What the 
 Standards (or Constitution) of the United Pres- 
 byterian Church are, will be found from the* 
 Report of the Joint Committees of the two Union 
 Committees, above referred to, viz., that the 
 Subordinate Standards of this Church are : — 1. 
 '' Basis of Union between the United Secession 
 and Eelief Churches, as adopted by these Churches 
 at the date of their Union, 1847. 2. The West- 
 minster Confession of Faith, and the Larger and 
 Shorter Catechisms, as referred to in the second 
 article of the Basis beforementioned, and subject 
 to the qualifications thereinstated, viz., that the 
 United Presbyterian Church does not approve ' of 
 anything in these documents which teaches, or 
 may be supposed to teach, compulsory or perse- 
 cuting and intolerant principles in religion.' 3. 
 Certain other documents which, though not 
 
MEMORIAL TO COUNSEL. 189 
 
 Subordinate Standards, are presented in the 
 Report as of authority in the United Presbyterian 
 Church, and as serving to define its position and 
 principles. These documents are : — 1. Rules and 
 Forms of Procedure in the Church Courts of the 
 United Presbyterian Church, comprising, among 
 other things. Formulas for the Ordination and 
 Admission of Office-bearers, and for the Licensing 
 of Probationers. 2. A Summary of Principles of 
 the United Presbyterian Church." 
 
 Now, having seen what are the Subordinate 
 Standards of the United Presbyterian Church, — 
 Counsel's attention is directed to her teachins: 
 on the first head of the programme, as this 
 appears, first, from her Standards ; and second, in 
 her actings. 
 
 I. In her Standards. 
 
 In the "Basis of Union," adopted 13th May 
 1847, the second article adopts the Westminster 
 Confession of Faith, and the Larger and Shorter 
 Catechisms, as " the Confession and Catechisms " 
 of this {i.e., the United Presbyterian) Church;" 
 and as containing " the authorised exhibition of 
 the sense in which we understand the Holy 
 Scriptures, it being always understood that we do 
 not approve of anything in these documents which 
 teaches, or may be supposed to teach, compulsory 
 or persecuting and intolerant principles in reli- 
 gion." 
 
190 MEMOEIAIi TO COUNSEL. 
 
 This is also tlie substance of the second question 
 put to ministers and elders at ordination, and 
 preachers at licence, in the United Presbyterian 
 Church. 
 
 The passages to which this reservation is under- 
 stood to apply mainly, are those passages quoted 
 above (pp. 145-6 and 176) to prove that in the 
 Westminster Confession of Faith, and the Larger 
 Catechism, as held by the Free Church, the 
 Establishment princi]3le is taught. 
 
 Thus the United Presbyterian Church disclaims 
 anything in these documents which ^ Reaches, or 
 may be supposed to teach, compulsory principles 
 in religion." Now, what does this reference to 
 ^^ compulsory " mean but this — that they deny the 
 Establishment principle? It is submitted that 
 '^ compulsory " means any legislative action, or 
 any national aid given to the Church of Christ. 
 This saving clause is, therefore, an express provision 
 and enactment by the United Presbyterian Church 
 in favour of Voluntaryism, and is quite opposed 
 to the teaching of the Free Church on the duty of 
 nations and their rulers to true religion and the 
 Church of Christ. 
 
 II. Actings of the United Presbyterian Church 
 in regard to this question of the Civil Magis- 
 trate. 
 
 It is well known that all along the United 
 Presbyterian Church has been understood to hold 
 
MEMORIAL TO COUNSEL. 191 
 
 Voluntary views, and hence that Church has always 
 opposed the national recognition of religion, and 
 of the Church of Christ. 
 
 In discussing, in October 1847, the question to 
 be put to probationers, &c., at ordination, &c., the 
 Synod was divided in opinion on the terms in 
 which the last clause of the question should 
 stand: one motion proposing that it should 
 be as it now stands ; another that it should 
 be in these words: — "It being understood that 
 you are not called on to recognise the power 
 of the Civil Magistrate in matters of religion." 
 — P. 64, United Presbyterian Synod Proceedings, 
 1847. 
 
 This was the form in which the Committee 
 charged with drawing up the questions proposed 
 it should stand. 
 
 On May 14, 1848, the Synod adopted four 
 resolutions on the subject of National Education ; 
 the first is as follows : — 
 
 " That it is not within the province of civil 
 government to provide for the religious instruction 
 of the subject ; and that this department of the 
 education of the young belongs exclusively to the 
 parent and the Church." P. 15. Same re-affirmed 
 May 1850, p. 263. 1851, p. 335. 1854, p. 511. 
 1865, p. 162. 1866, p. 289. 
 
 On May 25, 1865, the Synod called for Report 
 of Committee appointed at eleventh sederunt to 
 
192 MEMORIAL TO COUNSEL. 
 
 draft resolutions on tlie subject of the Edinburgh 
 
 Annuity Tax The resolutions, with 
 
 additional clause inserted, were adopted by the 
 Synod. The first is as follows : — 
 
 '' That a law which imposes a tax for the sup- 
 port of religion is not only impolitic and unjust, 
 but opposed to the law of Christ, which forbids the 
 employment of force for the propagation or support 
 of religion" (p. 156). 
 
 On May 19, 1868, Dr James Taylor, Convener 
 of the Committee appointed at their previous 
 sederunt on the question of National Education 
 and the Disestablishment of the Irish Church, 
 gave in their report. Id terms of its recommen- 
 dation, the Synod unanimously adopted certain 
 resolutions. The first is as follows : — 
 
 " That inasmuch as this Synod is of opinion 
 that all Civil Establishments of religion are 
 contrary to the Word of God, unjust and injurious 
 to the cause of Christianity, it regards with special 
 satisfaction the efi'orts now made to disestablish 
 and disendow the Established Church of Ireland." 
 —Proceedings 1868, p. 583. 
 
 Actings of United Presbyterian Church in regard 
 to Civil Magistrate. — Memorials to her Majesty's 
 Government from the Synod in 1867, and to the 
 House of Commons from their Education Com- 
 mittee in 1867, and to the Lord Advocate in 1868, 
 reaffirmed the resolution of 1847. 
 
MEMORIAL TO COUNSEL. 193 
 
 The United Presbyterian Synod objected at 
 various times to the appointment of a Fast-day 
 by the Government, and in a memorial thereon 
 we find them saying : — " But your memorialists 
 conscientiously strongly object to recog- 
 nise an authority on the part of the Crown to 
 order such acts of worship, as implying a supre- 
 macy over the Church, or a power of dictating to 
 her judicatories or members a universal observance 
 of such Acts, under the pain of violating a com- 
 mand of the Sovereign, or a menace of the displea- 
 sure of God." — Proceedings 1858, p. 187. 
 
 The statement by the United Presbyterian 
 Committee on Disestablishment sent herewith may 
 be referred to in confirmation of these being their 
 views. 
 
 Although quite unauthoritative, but as indicat- 
 ing the mind of the United Presbyterian Church, 
 a few statements by some of her ministers may be 
 given as showing that they hold Voluntaryism, 
 and proving what is the meaning of the passages 
 in the Confession of Faith on this question as 
 held by ministers in the United Presbyterian 
 Church. [See Aj)pendix B.] 
 
 Result of Examination of tJie Constitution of 
 these two Churches. — The result then of the detailed 
 consideration of the Constitutions of these two 
 Churches is this — that of the Standards which 
 they hold in common (the Westminster Con- 
 
194 MEMORIAL TO COUNSEL. 
 
 fession) — the Free Church accepts the whole, 
 and *•' declares that she does not regard her Con- 
 fession of Faith, or any portion thereof when fairly 
 interpreted, as favouring intolerance or persecu- 
 tion " — while the United Presbyterian Church 
 virtually declares that the Confession does teach 
 such doctrines, by the " allowance " granted to 
 all her ministers and elders — that in accepting 
 office, they do so on the understanding that they 
 '' are not required to approve of anything " in said 
 Confession, " which teaches, or may be supposed 
 to teach, compulsory or persecuting and intolerant 
 principles in religion." These two Churches are 
 thus, by their very Constitutions, opposed to each 
 other in what they both consider a most important 
 doctrine. If the Confession says nothing on the 
 question of the duty of nations and their rulers 
 towards true religion and to the Church of Christ 
 (as some Free Churchmen argue), why does the 
 United Presbyterian Church qualify her subscrip- 
 tion thereto? 
 
 Fact of separation from Voluntary Churches from 
 1843, onwards. — At the Disruption in 1843, it 
 will be noticed there was no attempt made to 
 provide for the admission of Voluntaries, or for 
 any lowering of the testimony of the Church on 
 the Establishment principle. And this was, it 
 has been seen, very emphatically stated by Dr 
 Chalmers at the constituting of the Assembly. 
 
MEMORIAL TO COUNSEL. 195 
 
 At the Disruption, also, there was no proposal to 
 unite with those Churches which now form the 
 United Presbyterian Church, just on the ground 
 of this difference in regard to the Civil Magistrate. 
 The non-admissibility of Voluntaries into the 
 Free Church, and the impossibility of union with 
 any Church holding or tolerating Voluntary 
 principles, are thus points which the Constitution 
 of the Free Church meant to decide, and to 
 declare in the same way and by the same docu- 
 ments as excluded Erastians and Erastian 
 Churches. 
 
 It may also here be noticed, that not only the 
 fact of the Free Church not at once joining with 
 the other Voluntary Churches in the land, but 
 her keeping separate for twenty years, without 
 entertaining any proposal to do so, is strong evid- 
 ence in favour of there being a radical difference 
 between the two Churches, especially when during 
 all these twenty years there scarcely was any official 
 interchange, even of courtesies, between the two 
 Churches. 
 
 In confirmation of this position, in Craigie v, 
 Marshall, January 25, 1850, 12 D. 523, Lord 
 Moncreiff says — " This entire separation as a 
 matter of fact of the Secession Church from the 
 Relief, which had subsisted from the very 
 foundation of the Relief, was surely sufficient to 
 presume that there was some essential difference 
 
196 MEMORIAL TO COUNSEL. 
 
 between them. It was not even like the case of 
 the Burghers and Anti-Burghers, who were both 
 branches of the same Original Secession. The 
 Relief was perfectly different — the founders of it 
 having left the Established Church (not admitting 
 themselves to be seceders from it) at a much later 
 period, and hitherto, during two-thirds of a 
 century, had not entered into any connection with 
 the Secession Church. Now, I ask this question 
 — There being such a marked separation between 
 the United Secession Church and the extensive 
 body of the Relief, were the members of the Kirk- 
 intilloch congregation, when a union between these 
 two bodies was proposed, bound even to inquire 
 what the religious tenets or ecclesiastical opinions 
 of the Relief Church were, so as to know how far 
 they agreed with their own, or how far they 
 differed from them ? I apprehend they were not ; 
 and that it was enough for enabling them to 
 determine whether to consent, or to refuse to 
 consent to the Union, that the Relief was an 
 entirely different and separate Church of Dissenters, 
 with whom the Secession Church had hitherto had 
 no connection. That there had been a difference 
 between them and the Secession, and that there 
 was still a difference which had hitherto been 
 sufficient to keep them distinct from one another, 
 under different Constitutions, was, in my opinion, 
 sufficient to regulate the judgment of a particular 
 
MEMORIAL TO COUNSEL. 197 
 
 congregation, and to entitle them to withhold 
 their consent to any such union." 
 
 YII. 
 
 Bearing of Proposed Overture, — Having thus 
 indicated at some length what the proposal for 
 the mutual eligibility of ministers of these two 
 Churches is, and what are their Subordinate 
 Standards, let us direct attention to three j)oints 
 which will bring out the whole bearing of the 
 proposed change : — 
 ' 1. In whose favour this change is to be made. 
 
 2. What is intended to be accomplished by it. 
 
 3. What it involves. 
 
 A question has been raised as to whether the 
 wording of the proposed Act is not defective. 
 This might possibly be best treated as a preli- 
 minary question ; but your memorialists postpone 
 stating it until afterwards, as it will then be 
 understood more easily. 
 
 I. In whose favour the change is to be made. — It 
 is a change in favour of the ministers of the United 
 Presbyterian and Reformed Presbyterian Churches, 
 who are in fixed charges. 
 
 II. What the change is to accomplish. — The change 
 intended to be accomplished is this : At present, 
 if a Free Church congregation should desire to 
 call a minister of these Churches, he could not be 
 translated directly^ but must comply with the pro- 
 
198 MEMORIAL TO COUNSEL. 
 
 visions of the above-recited Act of 1850. It 
 is proposed now to allow ministers of either of 
 these Churches, being in fixed charges, when 
 called to a charge in the Free Church, to be tran- 
 slated directly^ without complying with the 
 requirements of that Act ; and to effect this, it is 
 proposed to place the ministers of these two 
 Churches on the same footing as ministers of the 
 English and Irish and certain Colonial Presby- 
 terian Churches, who are eligible to be so called, 
 and when called, at once translated to any charge 
 in the Free Church without going through the 
 formalities prescribed by the Act 1850. 
 
 Reason of exceptions in Qfth provision of Act 
 1850, c, 8. — Now the reason of the exception in 
 favour of the English and Irish Presbyterian 
 Churches is apparent, when it is stated, that at 
 the time the Act 1850 was passed, these Churches 
 had the same standards and held the same 
 principles as the Free Church, and so the fact of 
 being a minister in any of them was guarantee 
 sufficient of his holding Free Church principles, 
 and his being therefore eligible for a charge in 
 the Free Church. 
 
 There is no Act, at present a law of the Free 
 Church, declaring this oneness of these Churches 
 with the Free Church, but it is submitted there 
 was such a law at one time; and your memorialists 
 would refer to certain Acts and proceedings of the 
 
MEMORIAL TO COUKSEL. 190 
 
 Free Church which show this. In the Assembly 
 of 1844, when the Free Church began to legislate 
 about the admission of ministers from other 
 Churches, an overture was adopted to be sent 
 down under the Barrier Act to Presbyteries, and 
 was passed as an " Interim Act," which declared 
 — " That ministers of those Churches, with 
 respect to whose Standards and course of edu- 
 cation the General Assembly shall have been 
 satisfied, and who are prepared to subscribe the 
 Formula, may not only officiate in the pulpits of 
 this Church, but shall be eligible to ministerial 
 charges on the call of these congregations under 
 provision of producing Presbyterial certificates." 
 And this Interim Act proceeded to set forth that 
 *^The General Assembly in transmitting this 
 overture, declare that they are already satisfied 
 that the provision of this Act may be applied to 
 the Presbyterian Churches of Ireland and Eng- 
 land, to the Synod of Original Seceders, and the 
 Synod of Eeformed Presbyterians in Scotland." 
 
 This overture was not passed into an ^^Act" 
 by the next Assembly (1845), as they adopted a 
 new overture on the subject, which difiered 
 slightly from the previous one and the Interim 
 Act. By the 3d provision of this Act it is declared, 
 " That ministers of the Presbyterian Church in 
 England and Ireland, and in the Colonies, with 
 which this Church is in connection, may not only 
 
200 MEMORIAL TO COUNSEL. 
 
 officiate in tlie pulpits of this Churcli, but shall 
 be eligible to ministerial charges on the call of 
 these congregations," on producing certificates. 
 
 The above Interim Act was passed into a law 
 by the Assembly of 1846, and was in force till 
 1850, when it was repealed by the Act above re- 
 cited. Pp. 143, 144—1, 2, 3 hereof 
 
 These Acts themselves might be held good 
 evidence of the Free Church being satisfied with 
 the Standards and doctrine of the English and 
 Irish Presbyterian Churches and Colonial Churches, 
 and also of there being " a connection " between 
 them. And of this there is further proof in these 
 Churches sending yearly deputations to the Supreme 
 Courts of the Free Church, and receiving deputa- 
 tions from her. But further, we find the Free 
 Church, in 1844, not only expressing her interest 
 in and sympathy for the English Presbyterian 
 Church, but declaring her " cordial willingness to 
 maintain the relations and discharge the duty of a 
 Sister Church to the Presbyterian Church in 
 England, and her readiness to afford them every 
 
 assistance " And in the Assembly of 1845 
 
 (at Edinburgh), in the resolution adopted by the 
 Assembly after hearing the English Presbyterian 
 deputation, your memorialists find that not only do 
 they express their interest in that Church, but 
 enjoin any of our ministers who may be asked to 
 aid the English Presbyterians by special service in 
 
MEMORIAL TO COUNSEL. 201 
 
 their Theological College for a few weeks, to comply 
 with the request ; and " in the event of a call to 
 the Theological Chair being given to any of the 
 ministers of this Church, authorise the Commission 
 to consider and finally dispose of the case." 
 
 We thus find that the Free Church in 1844, 
 1845, and 1846, did by authoritative Acts, now no 
 doubt repealed, declare a certain kind of " con- 
 nection" to subsist between her and the Eng- 
 lish and Irish Presbyterian Churches above 
 named ; and that this, and their oneness in prin- 
 ciple and doctrine and constitution, was the ground 
 and reason of her declaring ministers of these 
 Churches eligible to hold Free Church charges. It 
 is not needful to go into the relation of the Free 
 Church and the Colonial Churches, the connection 
 between which in 1850 was very intimate and 
 close. 
 
 But no such connection has ever been maintained 
 between the United Presbyterian Church and the 
 Free Church, no deputations having ever been ex- 
 changed by them. And yet although no connection 
 whatever has so existed, it is proposed to declare 
 the ministers of that Church eligible to charges in 
 the Free Church, and that without their being 
 asked any of those questions prescribed by the 1850 
 Act, above quoted. 
 
 III. What is involved iii the proposed change, — 
 
 AVhat does this change involve? 
 
202 MEMORIAL TO COUNSEL. 
 
 Does this proposed change not virtually effect 
 an alteration in the Constitution of the Free 
 Church ? 
 
 (1.) It has been shown that the Free Church 
 and United Presbyterian Churches hold different 
 views on the question of the Civil Magistrate and 
 his jurisdiction. Now does not the simple declara- 
 tion by the Free Church that United Presbyterian 
 ministers are eligible to be called to charges in 
 her Church, knowing that this difference in doctrine 
 exists between the two Churches, imply a change 
 in what the Free Chm'ch holds thereon ? Does it 
 not in effect say — the principles of both Churches 
 are identical ? 
 
 It was because the Free Church and the English 
 and Irish Presbyterian Churches were at one on all 
 questions of doctrine and belief that their ministers 
 were declared eligible to be called to charges in 
 the Free Church. But when ministers of a Church 
 which is not identical in doctrine, &c., with the 
 Free Church, are declared to be so eligible, is not 
 this an admission, to which by the proposed Act 
 legislative sanction is given, of the Free Church 
 having so far altered her standards as to make 
 them identical, or nearly so, with the stapdards of 
 the United Presbyterian Church : and hence make 
 her ministers eligible to Free Church pulpits ? 
 
 (2.) But this is not all. In the General Assembly 
 of 1867 a Resolution was adopted, declaring that. 
 
MEMORIAL TO COUNSEL. 203 
 
 SO far as then advised, there was " no bar " to union 
 between the Free Church and the United Presby- 
 terian Church. And the present overture is really- 
 based on the Resolution of that Assembly, and on 
 the findings of the Union Committee from 1867 
 and onwards, all of which were to the effect of 
 declaring that the Free Church and United Presby- 
 terian Churches, if not identical in doctrine, were 
 so on all essential points. For, although in spite 
 of the Resolution of 1867, the Assembly was 
 obliged to abandon the proposal for Union of the 
 negotiating Churches, on the basis of the West- 
 minster Standards, ^' as presently accepted by the 
 negotiating Churches," this overture must, it is 
 submitted, be viewed as the issue and expression 
 of these various motions carried annually under 
 protests of strong and important minorities. And 
 as these findings of the Union Committee and 
 those Resolutions of the G-eneral Assemblies of 
 1867, 1868, 1869, 1870, and 1871, all allowed, or 
 were intended to allow, or did in effect allow, or 
 may be held to have allowed, a new and more 
 relaxed interpretation of the Confession of Faith 
 and other standards of the Free Church, this new 
 scheme of the Mutual Eligibility of the Ministers 
 of these Churches must be regarded as assuming, or 
 giving liberty to assume, tke new and more relaxed 
 interpretation of the Free Church Standards above 
 noted; and that thus those who are called from the 
 
204 MEMORIAL TO COUNSEL. 
 
 United Presbyterian Cliurcli to the Free Clinrcli may- 
 interpret these standards in a way different from 
 that in which they were understood before the 
 Union discussions began, and in a way consonant 
 with the findings of the Union Committee and the 
 Eesolntions of the General Assemblies of late years. 
 
 This overture therefore gives, it is submitted, 
 legislative sanction (1) to the declaration that there 
 is ^^ no bar " to union between the United Presby- 
 terian and Free Churches, or that they are iden- 
 tical in doctrine, &c., and (2) to the relaxed 
 interpretation of the Free Church Standards above 
 referred to. 
 
 It is right here to state, that it is believed that 
 according to the laws of the Free Church, a United 
 Presbyterian minister translated in accordance with 
 this new Act would have, before his induction, to 
 answer the questions usually put to ministers at 
 the time of their induction, and which are to be 
 found at page 39 of the Appendix to the copy of the 
 Standards which accompanies this memorial. The 
 second question asks if he acknowledges the Con- 
 fession of Faith as the confession of his faith; 
 and the second clause of the fifth question, is as 
 follows: — "And do you approve of the general 
 principles embodied in the Claim, Declaration, 
 and Protest adopted by the General Assembly of 
 the Church of Scotland in 1842, and in the Protest 
 of Ministers and Elders, Commissioners from 
 
MEMORIAL TO COUNSEL. 205 
 
 Presbyteries to the G-eneral Assembly, read in 
 presence of the Royal Commissioner on 18th May 
 1843, as declaring the views which are sanctioned 
 by the Word of God and the Standards of this 
 Church, with respect to the spirituality and freedom 
 of the Church of Christ, and her subjection to Him 
 as her only Head, and to His Word as her only 
 Standard?" Ministers at induction are not asked 
 if they will subscribe to the Standards of the Free 
 Church in accordance with their answers to these 
 questions, as preachers at ordination are, as 
 Counsel will see from the ninth question, page 
 38 of the above Standards. And thus a question, 
 and a very important one, comes to be discussed. 
 If a United Presbyterian minister is called by any 
 Free Church congregation (supposing this over- 
 ture is passed), if the Free Church Presbytery 
 sustains the call, and goes and pleads before the 
 United Presbyterian Presbytery that the United 
 Presbyterian minister should be loosed from his 
 charge, and translated to the Free Church charge, 
 and if the Free Church Presbytery succeeds, and 
 then proceeds to ^^ induct " the United Presbyterian 
 minister to the Free Church charge, will the United 
 Presbyterian minister require to sign the Formula ? 
 He will have to answer the questions above re- 
 ferred to (page 39 of Standards) ; but he is not 
 asked if he is "willing to subscribe to those things" 
 as probationers are. (See question 9, page 38.) 
 
206 MEMOEIAL TO COUNSEL. 
 
 After merely asking the questions, the Presby- 
 tery will proceed to induct ; but ere this, the 
 United Presbyterian minister will not of necessity 
 have signed the Formula. Of course, in the case 
 of a Free Church minister being so translated, or 
 of the case of a minister belonging to one of these 
 Churches identified with her, there is no question 
 of this kind, for he has previously signed the 
 Formula. (A Student must subscribe the Formula 
 at the time he is licensed.) A United Presby- 
 terian minister, however, does not require to sign 
 any Formula; and never the Free Church one. 
 Would he have to subscribe the Free Church 
 Formula after induction ? 
 
 VIII. 
 
 Law of Subscription in the Free Church. — This 
 requires us to state the Law of Subscription in the 
 Free Church, which is based on the Law of the 
 Church of Scotland, 
 
 The Scottish Parliament ratified the Confession 
 of Faith in May and June 1690. The General 
 Assembly met in October, and '^ after mature 
 deliberation" approved of an overture which it 
 declared '' to have the force and strength of an 
 Act and ordinance of Assembly," to the following 
 effect : — 
 
 '^ For retaining soundness and unity of doctrine, 
 it is judged necessary that all probationers 
 
MEMORIAL TO COUNSEL. 207 
 
 licensed to preacli, all entrants into the ministry, 
 and all other ministers and elders received into 
 communion with us in Church Government, be 
 obliged to subscribe their approbation of the 
 Confession of Faith, appro ven by former General 
 Assemblies of this Church, and ratified in the 
 second session of the current Parliament ; and that 
 this be recommended to the diligence of the several 
 Presbyteries, and they appointed to record their 
 diligence thereanent in their respective registers." 
 
 Difficulties arose between the Church and the 
 State on the question of Subscription to the For- 
 mula, and at last these were ended by the Parlia- 
 ment passing an Act in 1693, requiring subscrip- 
 tion. And the General Assembly of 1694 carrying 
 out that Act, by their Act XI. prescribed a new 
 Formula, to be signed by those who might be 
 received into ministerial communion : ^^As also 
 the General Assembly require all Presbyteries and 
 Synods, in thus admitting or receiving any to 
 ministerial communion, that they oblige them to 
 take and subscribe the above acknowledgment," 
 and " by ordaining well qualified expectants, who 
 shall be bound at their entry to subscribe the said 
 Confession of Faith, with the acknowledgment 
 above expressed." 
 
 This was the law until 1711, when a consider- 
 able change was introduced. The Assembly that 
 year passed an Act which inter alia in the 
 
208 MEMORIAL TO COUNSEL. 
 
 'preamble sets forth — " And the General Assembly 
 judging it fit that the same method should be 
 followed in all Presbyteries as to the questions 
 put to and engagements taken of probationers 
 when licensed, and ministers when ordained or 
 admitted, and that probationers and ministers 
 should not only give sufficient proof of their 
 piety, literature, and other good qualifications 
 for the ministry, but also come under engage- 
 ments to adhere to the doctrine, worship, disci- 
 pline, and government of this Church : do there- 
 fore enact and appoint that the following questions 
 be put to all such as pass trials in order to be 
 licensed, as also to such as shall be ordained 
 ministers, or admitted to any ministerial charge 
 or parish, and that they shall subscribe 
 the Formula after set down, before they be 
 licensed, ordained, or admitted respectively ; and 
 the General Assembly hereby strictly prohibits and 
 discharges the licensing, ordaining, or admitting 
 of any who shall not give satisfying answers to 
 these questions, and subscribe the Formula hereto 
 subjoined." 
 
 There were urged against the legality of this Act 
 in after years two objections — (1), its variation 
 from the Formula of 1694, enacted in virtue of 
 the Act of Parliament 1693; and (2), the want of 
 power in the Assembly to make this innovation 
 without consent of a majority of Presbyteries. 
 
MEMORIAL TO COUNSEL. 209 
 
 The former objection may be good still, as re- 
 gards the Established Church ; but it could not, 
 possibly, be good as to the Free Church, for the 
 Free Church would not perhaps consider that the 
 General Assembly, 1711, exceeded its powers in so 
 acting. The latter objection has been partially 
 obviated, as " a more distinct and comprehensive 
 Act anent licensing probationers was first intro- 
 duced in the year 1740, and being transmitted for 
 many successive years, was, in consequence of the 
 approbation of a majority of Presbyteries, con- 
 verted into a standing law by the Assembly of 
 1782" (Hill, Comprehensive View, p. 68). 
 This Act merely prescribes to probationers the 
 questions and Formula of 1711, so that the 
 stipulation and subscription of that year, so far as 
 relates to probationers, have been fully sanctioned 
 by the Church acting through the Barrier Act. 
 And although it is doubtful if the questions and 
 Formula of 1711, applicable to ministers, ever 
 passed the Barrier Act, yet as we have seen, as 
 every minister had first to be a probationer, it 
 was of little importance, he having had at license 
 to give and subscribe an unqualified assent to the 
 Confession of Faith. 
 
 The Act of 1711 continued to be acted on alone 
 until May 1844 (except as regards probationers, 
 as above seen), when the Free Church General 
 Assembly adopted an overture to be sent down to 
 
210 MEMORIAL TO COUNSEL. 
 
 Presbyteries, altering it, on account of the changes 
 in the outward state of the Church, — at the same 
 time passing the overture into an '^ Interim Act." 
 The General Assembly of 1845 did not proceed, 
 however, to pass that overture into a standing Act, 
 but of new sent the overture down to Presbyteries, 
 again passing it as an Interim Act. When the 
 Assembly of 1846 took up the question, they 
 enacted a law in terms of the overture. But at the 
 same time they slightly altered the wording of 
 the preamble as sent down to Presbyteries, and 
 added one or two clauses thereto, and prescribed 
 also a Formula, none of which passed the Barrier 
 Act. There is subjoined the preamble to the 
 overture sent down in 1845, and the preamble to 
 the Act of 1846. Wherein the 1846 preamble 
 is the same as that of 1845, it is here printed 
 in capitals; wherein the 1846 preamble differs 
 from the 1845 preamble, in italics; wherein there 
 is new matter in the 1846 preamble, in ordinary 
 letters. 
 
 Whereas it has become Wheeeas it has become 
 
 necessary, in consequence of necessary, in consequence 
 
 what has lately taken place or the late change in the 
 
 in the outward condition of outward condition of the 
 
 the Church, to amend the Church, to amend the 
 
 Formula, which was in u^e. Questions and Formula to 
 
 to be signed by the office- he used at the licensing of 
 
 bearers of the Church, the Prohationers and the ordina- 
 
 General Assembly agree to tion of Deacons, Elders, and 
 
 transmit to Presbyteries the Ministers respectively, the 
 
MEMORIAL TO COUNSEL. 
 
 211 
 
 following questions, (these 
 will be found at p. 3 of Free 
 Church Standards), as an 
 overture for their opinion ; 
 and the Assembly further 
 pass the same as an Interim 
 Act. 
 
 General Assembly, with 
 consent of a majority of 
 Presbyteries, enact and ordain 
 that the following shall be 
 the questions so to be used ; 
 and considering that the 
 Formula to this Act sub- 
 joined embodies the sub- 
 stance of the answers to 
 the said Questions, the As- 
 sembly appoint the same to 
 be subscribed by all Proba- 
 tioners of the Church before 
 receiving licence to preach 
 the Gospel, and by all office- 
 bearers at the time of their 
 admission ; and the General 
 Assembly, in passing this 
 Act, think it right to declare 
 that while the Church firmly 
 maintains the same Scriptural 
 principles as to the duties of 
 nations and their rulers in 
 reference to true religion and 
 the Church of Christ, for 
 which she has hitherto con- 
 tended, she disclaims in- 
 tolerant or persecuting prin- 
 ciples, and does not regard 
 her Confession of Faith, or 
 any portion thereof when 
 fairly interpreted, as favour- 
 ing intolerance or persecution, 
 or consider that her office- 
 bearers by subscribing it, 
 profess any principles in- 
 consistent with liberty of 
 conscience and the right of 
 private judgment. 
 
212 MEMORIAL TO COUNSEL. 
 
 It thus appears that the Act 1711, whether the 
 Assembly had power to pass it or not, or whether 
 they did pass it in a formal manner, was from that 
 date until 1844 the recognised law of the Church 
 in the matter, and except as altered, amended, 
 or repealed by the Acts 1782 or 1846, is still, in 
 fact, recognised as in force. And the question of 
 course comes to be, whether or not its being 
 so recognised for one hundred and sixty years 
 does not make it of prescriptive authority, both to 
 give its own provisions force, and repeal former 
 Acts. These are all the laws of the Free Church 
 on the subject. 
 
 Holding that the Act of 1711 is the oldest law 
 on the subject in force, although that be only from 
 prescription, how far was it amended by the Act 
 of 1846? 
 
 A preliminary question arises. How much of 
 the preamble are we to hold as law? We have 
 seen how much actually passed through the Barrier 
 Act. Is that all that we must hold as law ? or are 
 we to hold the first clause, although it was slightly 
 altered from the preamble to the overture as law? 
 Much depends on this. The Act 1711 is not re- 
 pealed : only those clauses inconsistent with the 
 Act of 1846 are superseded. All else of the 1711 
 Act stands : and the question how much or how 
 little has been amended, depends on this prelimi- 
 nary question. 
 
MEMORIAL TO COUNSEL. 213 
 
 1. If we are to hold the words of the preamble, 
 which are really law, to end at ^^ amend," the 
 Act of 1846 does not say anything about the 
 occasions on which the Formula is to be subscribed ; 
 and therefore would the Act of 1711 still apply to 
 such cases ? 
 
 2. If we hold the preamble down to ^' used," as 
 law, then does not the preamble of the 1846 Act 
 '^ amend" the Act of 1711 in regard to the 
 occasions on which the Formula is to be sub- 
 scribed ? And does it not, from mentioning onhj 
 " licensing " and " ordination," and saying nothing 
 more, nothing about its being signed at '' induc- 
 tion,'^ at once "amend" the Act of 1711 in this 
 respect, and, while repealing it, only re-enact it 
 partially ? 
 
 3. No doubt, in the part of the preamble which 
 did not pass the Barrier Act, it is said that the 
 "Formula" is "appointed" to be subscribed by 
 all probationers of the Church before receiving 
 licence, and by all office-bearers at the time of 
 their admission. But does admission mean 
 " admission " on translation, or " admission " at 
 first to office ? 
 
 Apart from those alterations made on the 
 preamble of the Act 1711 by that of 1846, the 
 only other alteration is found in the new questions 
 appointed to be put to Ministers, Elders, Deacons, 
 
 p 
 
214 MEMORIAL TO COUNSEL. 
 
 and Probationers (see p. 37 of Standards). The 
 Formula did not pass the Barrier Act. 
 
 Now the question is — Does there appear to be, 
 in the Acts or regulations anent subscription of 
 the Formula, anything requiring a minister 
 already ordained by the United Presbyterian 
 Church to subscribe the Free Church Formula, if 
 he was under the proposed new law inducted into 
 a Free Church charge ? 
 
 If the Act 1711 is still in force as to subscrip- 
 tion, the United Presbyterian minister would 
 apparently require to sign at induction. But if the 
 Act 1846 ^^ amended" this portion of the 1711 
 Act, and the whole of the fii'st clause of the pre- 
 amble to it (the Act 1846) is to be held as law, 
 then apparently the United Presbyterian minister 
 would not require to sign. 
 
 The Manual of Free Church Procedure, although 
 an unauthoritative document, thus states the 
 practice at inductions. " Thereafter he signs the 
 Formula, if he has not done so at a previous stage" 
 (p. 49, Ch. 11. Part 11. Div. I. Sec. 33); previous 
 stage '^ being probably a previous stage of the 
 * induction' proceedings." 
 
 Wording of the Overture, — The technical or clerical 
 error to which reference was above made, is this : 
 Will the 6th provision of the Act 1850, c. 8, 
 as amended by the above overture (p. 120 hereof) 
 authorise the translation of ministers from the 
 
MEMORIAL TO COUNSEL. 215 
 
 United Presbyterian Church, or Reformed Pres- 
 byterian, even if passed into an Act by next 
 General Assembly ? 
 
 The new overture or Act seeks to put the United 
 Presbyterian Church under the operation of the 
 above Act. That Act assumes previous connection 
 or identity between the Churches whose ministers, 
 in cases of orderly translations, are declared 
 eligible to charges in the Free Church. And your 
 memorialists have shown that a certain connection 
 did exist (see pp. 198-201). Now this new over- 
 ture does not declare United Presbyterian ministers 
 admissible, but merely states that, if admitted at 
 all, the respective provisions of the Act of 1850 
 are not to apply to them. United Presbyterian 
 ministers, from the beginning of the Free Church, 
 were considered ineligible for a call, and no Act has 
 been passed for removing that non-admissibility. 
 This, it is submitted, cannot be removed by an 
 Act which merely declares that if called they are 
 not to be subject to certain inquiries, but which 
 does not declare them admissible, or recognise them 
 as such. Unless it be held that before the above 
 Act yill. of 1850, any minister of any denomina- 
 tion might claim admittance to the Free Church, 
 and that this Act excludes all such as did not 
 comply with its provisions, except those mentioned 
 in the 6th provision thereof, no Presbytery would 
 
216 MEMORIAL TO COUNSEL. 
 
 seem authorised to sustain a call to a United 
 Presbyterian minister. 
 
 It has been urged that the objection above 
 stated, in regard to the wording of the overture 
 now before Presbyteries, is also good as regards 
 the sixth provision of the Act of 1850, even as it 
 stands, and that therefore there is no law of the 
 Free Church authorising the translation of minis- 
 ters from the English, and Irish, and Colonial 
 Presbyterian Churches to charges in the Free 
 Church. This is based on the fact that there is 
 no Act now in force declaring ministers of these 
 Churches eligible. And since there is none, and 
 since the sixth provision of the 1850 Act does not 
 declare them so, but only declares that certain 
 provisions of that Act are not to apply to ministers 
 of those Churches, when translated, they are not 
 therefore declared eligible. It is submitted that 
 the fact that the Assembly did once, though only 
 by an Interim Act, recognise the admissibility of 
 ministers of these Churches, and declared their 
 satisfaction with the principles and education of 
 the ministers of these Churches, is sufficient proof 
 of there having been '^ a connection between them." 
 There is no doubt that the Act of 1846 acknow- 
 ledged their admissibility, although that was re- 
 pealed by the Act of 1850 (the Act of 1846 did not 
 apply to translations). 
 
 Your memorialists, and many others, are opposed 
 
MEMORIAL TO COUNSEL. 217 
 
 to this new scheme for the Mutual Eligibility of 
 ministers of the Free and United Presbyterian 
 Churches, and are anxious to obtain Counsers 
 opinion as to whether or not this scheme does not 
 involve a change of principle on the part of the 
 Free Church. Your memorialists would respect- 
 fully call the attention of Counsel to the follow- 
 ing cases (among others) bearing on the points 
 involved. 
 
 Cases.— 1. Davidson v. Aikman, 27 July 1805, 13 F. C. 
 
 481 ; M. 14, 584. 
 Remitted 16 June 1813, 1 Dow's Reports 1. 
 Affirmed 21 July 1820—2 Bligh 529. Reported 
 
 as Craigdallie v. Davidson, H. L. 16 June 1813 ; 
 
 5 Raton's App. 719, and 21 July 1820, 6 Raton's 
 
 App. 618. 
 
 2. Galbraith v. Smith, 10 March 1837, 15 S. 808, 12 F. 
 
 C. 735. (Campbeltown Case No. 1.) 
 
 3. Smith V. Galbraith, 6 June 1839, 14 F. C. 979, 5 D. 
 
 665. (Campbelton Case No. 2.) 
 
 4. Craigie v. Marshall, 25 Jan. 1850, 12 D. 523; 22 
 
 Jur. 154. (Kirkintilloch Case.) 
 
 5. Cairncross v. Meek, 28 May 1858, 20 D. 995; 30 Jur. 
 
 611. (Carnoustie Case.) 
 Affirmed 9 August 1860, 22 D. (H. L.) 15, 3 
 Macqueen 827; 32 Jur. 711. 
 
 6. Couper v. Burn, 2 Dec. 1850, 22 D. 120 ; 32 Jur. 
 
 46. (Thurso Case.) 
 
 7. M'Millanu Free Church, 23 Dec. 1859, 22 D. 290; 
 
 32 Jur. 117. (Cardross Case No. 1.) 
 
 8. M'Millant;. Free Church, 19 July 1861, 23 D. 1314; 
 
 33 Jur. 665. (Cardross Case No. 2.) 
 
218 . MEMORIAL TO COUNSEL. 
 
 9. M'Millan v. Free Church, 9 July 1862, 24 D. 1282; 
 
 34 Jur. 621. (Cardross Case No. 3.) 
 
 10. M'Millan v. Free Church, 20 July 1864, 2 Macph. 
 
 1444. (Cardross Case No. 4.) 
 
 11. Forbes v. Eden, 8 Dec. 1865, 4 Macph. 143; 38 
 
 Jur. 98. 
 Affirmed 11 April 1867, 5 Macph. (H. L.) 36; 
 39 Jur. 411. 
 
 12. Attorney General v. Pearson. (1.) Case: Merivale's 
 
 Chancery Reports III. 353, 1817. (2.) Case: 
 Simon's Chancery Reports VII. 290, 1835. 
 
 13. Broome v. Summers, 11 Simons 352, 1840. 
 
 14. Attorney General v. Shore, 9 Clark & Finnely, 355, 
 
 1842. (Lady Hewley's Charities.) 
 
 15. Attorney General v. Gould, 28 Beavans 485, 1860. 
 
 16. Attorney General v. Ethridge, 11 Weekly Reporter 
 
 199, 1862. 
 
 17. Ward v. HipweU, 3 Gifford 547, 1862. 
 
 18. Attorney General v. Oust, 13 Law Times, New 
 
 Series 235. 
 
 19. Dill V. Watson, Jones' Exchequer Reports, II. 48. 
 
 (Clough Case.) 
 
 20. Attorney General (Ireland) v. Miller. Chancery Court 
 
 of Ireland, 1855. 
 
 Notes on Cases. — It seems to have been settled 
 in varions cases — e.g., Cardross case and Forbes 
 V. Eden (1), that no Civil Court will look at 
 any case arising out of any action or deed of a 
 Church Court, whether that be spiritual or govern- 
 mental, nnless an actual loss of some civil right 
 has taken place, and can be instructed. (2.) 
 That the Civil Court, when satisfied that such has 
 
MEMORIAL TO COUNSEL. 219 
 
 taken place, will judge the Churcli as an Association 
 or Society, and require it to produce its Constitu- 
 tion or Articles of Agreement, and it will then 
 consider the question of patrimonial loss. (3.) 
 That they will award the property to those adher- 
 ing to the principles for which it was given, even 
 though a minority — See Davidson, No. 1 ; Kirkin- 
 tilloch Case, No. 4 ; Thurso Case, No. 6 ; Attorney- 
 General V. Pearson, No. 12 ; Hewley's Charities, 
 No. 14. 5. That the divergence must be in an 
 essential point, see 2 Campbelton, No. 3 ; Thurso 
 Case, No. 6; Forbes, No. 11; Attorney-General 
 V. Gould, No. 16; Attorney- General v. Oust, No. 
 18; Dill V, Watson, No. 19; Attorney- General of 
 Ireland v. Miller. 
 
 Your memorialists have an interest of great 
 value in the property held by the Free Church, 
 and hence they can instruct a case which the Civil 
 Court will look at. 
 
 Model Trust Deed. — The property in which they 
 are interested is of two kinds — 
 
 I. Those Churches and other heritable build- 
 ings held in trust by certain trustees under what 
 is called the ^^ Model Trust Deed of the Free 
 Church." 
 
 By this deed the Churches belonging to the 
 Free Church are vested in certain Trustees for 
 the following purposes inter alia. 
 
 (1.) p. 381. They hold the building for the 
 
220 MEMORIAL TO COUNSEL. 
 
 use of a congregation belonging to the Free Church 
 of Scotland, or any body associated therewith : 
 according to the usages of that body. 
 
 (2.) p. 382. That these Trustees shall permit 
 such and such only who are authorised so to do by 
 the said Free Church, acting through her con- 
 stituted Courts : but none such should have the 
 right to sue said Trustees for the purpose of 
 obtaining or maintaining his right to the use of 
 said Church, except with consent of the Assembly 
 or its Commission : and under declaration that if 
 it be so, he thereby lost his whole rights under the 
 said Trust Deed, and if deposed or suspended, he 
 was to be debarred the use thereof. 
 
 (3.) p. 382. The management of it was to be 
 under the Kirk Session and Deacons Courts for 
 the time being, who were to be subject to the 
 Church Judicatories. " Declaring always, as it is 
 hereby expressly provided and declared, that it 
 shall not be in the power of the said Deacons or 
 Elders, or any of them, or of any or all of the 
 individual members of the congregation in the use, 
 occupation, and enjoyment for the time being of 
 the said building or place of worship and appur- 
 tenances thereof, or of any or all of said -parties, 
 either to maintain themselves in any use, pos- 
 session, occupation, or enjoyment of the same, as 
 against the said Trustees or Trustee acting for the 
 time, or to institute against the Trustees or 
 
MEMORIAL TO COUNSEL. 221 
 
 Trustee as being for the time any action, suit, or 
 proceeding, before any Court of Law or Justice, for 
 the purpose either of obtaining or maintaining such 
 possession, use, occupation, or enjoyment, or of 
 controlling in any way the said Trustees or Trustee 
 in reference to the use, possession, occupation, or 
 enjoyment, or management, and disposal of such 
 building or place of worship, unless with the express 
 consent and concurrence of the General Assembly 
 of the said body or united body of Christians, or 
 Commission of such Assembly previously had. . . . 
 Declaring, as it is hereby expressly provided and 
 declared, that in the event of any Elders and 
 Deacons, or Elders or Deacons one or more, or 
 members or member of any congregation as afore- 
 said, or all or any of them, instituting against the 
 said Trustees or Trustee any action, suit, or pro- 
 ceeding as aforesaid for the purposes foresaid or 
 any of them, unless with such express consent and 
 concurrence as aforesaid previously had, as said is 
 evidenced as aforesaid, such party or parties 
 instituting said action, suit, or proceeding as 
 aforesaid, shall immediately on the same being 
 instituted ipso facto ^ forfeit and lose all and every 
 right, title, and interest, and claim, and demand 
 of whatever description under these presents, and 
 shall from thenceforward cease to have any concern 
 therewith or interest therein." 
 
 (4.) p. 383. '' Upon further trust, that the said 
 
222 . JIEMOEIAL TO COUNSEL. 
 
 Trustees or Trustee acting for the time shall at all 
 times be subject in the management and disposal 
 of the said building .... and in all matters 
 and thino^s connected therewith to the reo^ulation 
 and direction of the General Assembly .... and 
 shall be liable and bound to conform to, implement 
 and obey all and every the Act or Acts of the 
 General Assembly .... in reference there- 
 to ; and the Moderator and Clerk of the said 
 General Assembly .... shall at all times 
 have full power and sufficient status and right and 
 interest to pursue or defend any action or actions 
 in whatever Court or Courts of Law or Justice 
 for the enforcement, maintenance, or protection 
 of the rights, interests, or privileges of the said 
 body . . . . in, or in any connected with, 
 the subjects hereby disponed.' 
 
 (5.) p. 383. " That the said Trustees or Trustee 
 acting for the time shall always have full power 
 and liberty to raise, prosecute, and follow forth 
 whatever action, suit, or proceeding they may think 
 proper .... for the purpose, or with the 
 intent and object of excluding any party or parties 
 whatsoever from all or any use, possession, occupa- 
 tion, or enjoyment of the building . ... and 
 that no party or parties whatsoever shall have any 
 right or title whatsoever to defend such action, 
 suit, or proceeding, either in virtue of these pre- 
 sents, or otherwise, unless with the express consent 
 
MEMORIAL TO COUNSEL. 223 
 
 find concurrence as aforesaid of the General As- 
 sembly .... previously had to such de- 
 fence." 
 
 (9.) p. 384. ^^ It is hereby specially provided 
 and declared, that if at any time hereafter one- 
 third of the whole ordained ministers having the 
 charge of congregations of the said body or united 
 body of Christians, or any larger number of the 
 said ordained ministers having charges as afore- 
 said, shall simultaneously, or within a consecutive 
 period, not exceeding three calendar months, not 
 only publicly separate from the said body or united 
 body of Christians, but at the same time publicly 
 claim and profess to hold truly and in bond fide 
 the principles of the Protest of 18th May 1843, 
 hereinbefore recited ; and to be carrying out the 
 objects of the said Protest more faithfully than 
 the majority of the ministers of the said body or 
 united body of Christians; and shall unite in 
 forming one body of Christians, having Kirk 
 Sessions, Presbyteries, Provincial Synods, and a 
 General Assembly, then and in that case, and in 
 anything herein to the contrary notwithstanding, 
 it shall be competent to and in the power of a 
 majority of the congregation in the use .... 
 of said building .... for the time being, 
 to provide and declare by a deed of declaration and 
 appointment under their hands .... that 
 the ground hereby disponed and building .... 
 
224 MEMORIAL TO COUNSEL. 
 
 then upon tlie same sliall from henceforward be 
 held as in connection with the body of Christians 
 adhering to the ministers who shall have separated 
 as aforesaid, and for this purpose to require and 
 appoint the said Trustees or Trustee .... 
 to convey and dispone the ground hereby disponed, 
 and building place of w^orship then upon the same 
 . . . . to any three or more Trustees in the 
 said deed of declaration or appointment named to be 
 held by such new Trustees and their successors in 
 Trust as after-mentioned." (Here follows a declara- 
 tion as to the new terms of the new deed) .... 
 
 (A copy of the Model Trust-Deed will be found 
 at page 377 of the Acts of Assembly for 1851, 
 which accompanies this memorial.) 
 
 11. Funds. — Certain funds which were " be- 
 queathed " to the Free Church of Scotland, but by 
 direction of the General Assembly are vested in 
 trustees, who are " to hold any property which 
 may be bequeathed or conveyed to them for behoof 
 of the Free Church. " These bequests are generally 
 made in the following terms : — 
 
 " I leave and bequeath the sum of 
 pounds to ^ The Free Church Ministers' 
 
 Widows' and Orphans' Fund, and I appoint the 
 same to be paid at the first term of Whitsunday 
 or Martinmas after my death." 
 
MEMORIAL TO COUNSEL. 225 
 
 QUERIES. 
 
 I. Has the Free Chiircli of Scotland a Consti- 
 tution, which will be recognised by the Civil 
 Courts, in the determination of the rights of 
 property thereto belonging ? and what is that 
 Constitution ? 
 
 TI. Is the Establishment Principle — that is, the 
 national recognition and encouragement of religion 
 and the Church of Christ, by the State as such, 
 part of that Constitution ? 
 
 III. Has the Church power by a majority, 
 however large, to alter its Constitution (in the 
 present instance in the face of a large and pro- 
 testing minority in the Church Courts) ? 
 
 IV. Does Counsel consider the United Pres- 
 byterian Constitution — which makes the Estab- 
 lishment Principle an open question — to be at 
 variance with that of the Free Church? 
 
 V. Is the Overture referred to at page 120 of the 
 above Memorial inconsistent with the Constitu- 
 tion of the Free Church ? and particularly with the 
 maintenance of the Establishment principle ? 
 
 YI. Does Counsel consider that if the said 6th 
 provision of the Act of 1850, c. 8, is amended, as 
 it is proposed to be (see Overture p. 120 hereof), 
 it will not only declare that the provisions of the 
 said Act are not to apply to United Presbyterian 
 
226 MEMORIAL TO COUNSEL. 
 
 or Reformed Presbyterian Ministers, *4n cases 
 of orderly transactions," from cliarges in either of 
 these Churches to charges in the Free Church, but 
 also enact their eligibility and admissibility and 
 enact and authorise their translations ? 
 
 YII. If Counsel answer query Y. in the affir- 
 mative, what are the remedies open to those 
 who object to the said Overture being passed into 
 an Act ? 
 
 VIIL Counsel are requested to state anything 
 which may appear to them worthy of consideration 
 of their memorialists. 
 
APPENDIX. 
 
 A. (See p. 184.) 
 
 The precise present question, On what terms should United 
 Presbyterian ministers be admitted into the Free Church, 
 was raised in 1853 — seven years after the making of our 
 Free Church Formula — in the case of Dr Marshall of 
 Kirkintilloch, who applied to be admitted as a Free Church 
 minister. Although he was quite prepared at that time to 
 make admissions, both in regard to the lawfulness of 
 government recognition of religion, and even, in certain 
 circumstances, of government endowment of religion, which 
 the present United Presbyterians entirely repudiate, his 
 application was sternly refused on the ground that he 
 did not, with sufficient fulness, avow Free Church prin- 
 ciples. 
 
 De Smyth to Dr Marshall. 
 
 Glasgow, January 2oth, 1853. 
 My Dear Sir, — The Committee regret that at our recent 
 conference there must have been some misapprehension 
 on the part of the brethren present as to your supposed 
 agreement with them in reference to the duty of the 
 Civil Magistrate towards the Church. They understood 
 you to admit that, in certain circumstances, it might be 
 his duty to endoiu the Church. In your answer to Dr 
 Buchanan, you mean to limit this obligation to the endow- 
 
228 APPENDIX. 
 
 ment of regimental or other chaplains, and exceptional cases 
 not otherwise provided for. 
 
 Allow me, my dear sir, in the name of the Committee, 
 to observe, that if the brethren had supposed that such was 
 the whole extent of your concessions on the subject of 
 endowments, they would not have expressed, as they did, 
 their satisfaction with your views when met in confer- 
 ence. 
 
 Our belief is that the State is hound, where it is neces- 
 sary and practicable, to endow the Church of the living 
 God, withholding at the same time all pecuniary support 
 from bodies which teach doctrines opposed to the Word of 
 God. We greatly fear that in this part of our testimony you 
 do not see "eye to eye" with us ; but we shall be delighted 
 to find that we have misapprehended your meaning. It is 
 our earnest desire that there should be no misapprehension 
 on either side as to the principles we hold, and you will 
 readily perceive that the utmost explicitness is a sine qua 
 non towards arriving at a satisfactory conclusion. 
 
 Anything short of this full agreement in regard to our 
 distinctive principles as the Free Church of Scotland 
 would amount to a mere nominal union, hurtful to both 
 parties. — I am, &c., John Smyth, Convener. 
 
 P.S. — All the members of committee were present 
 yesterday, and were of one mind. 
 
 Dk Marshall to Dr Smyth. 
 
 Kirkintilloch, ^th February 1853. 
 
 My Dear Sir, — While holding that civil rulers are thus 
 
 bound to employ their influence for the advancement of 
 
 religion — protecting Christians in the exercise of all their 
 
 religious rights and privileges — and lending such aid and 
 
APPENDIX. 229 
 
 countenance to the truth as may seem best calculated to 
 ensure its speedy and general acceptance by the community, 
 she yet denies that they may prescribe a creed to their 
 subjects, or attempt to make them religious by dint of 
 coercive power; and in like manner, while holding that 
 they ought to endow the Church where it is necessary 
 and practicable, she yet does not hold it to be necessary, in 
 the present circumstances of this country, nor does she 
 hold it to be practicable in any case, when it would involve 
 the smallest interference with the rights of conscience, the 
 liberties of the Christian people, the spiritual functions of 
 ecclesiastical office-bearers, or the sovereign prerogatives of 
 the Lord Jesus Christ. 
 
 If I have read the Standards of the Free Church aright, 
 these four propositions contain her creed on the subject of 
 the relations between the Church and the State. To all 
 these propositions I find that I can assent, without asking 
 myself whether any change has taken place in my own 
 views, or in the views of those with whom I propose to be 
 united. As to the matter of endowments more particularly 
 referred to by you, I trust enough has been said on that 
 subject in the last proposition. The question, I presume, 
 either with the Free Church or with me, is, in present 
 circumstances, very much of an abstract nature. 
 
 I have only to add that I am, my dear sir, with much 
 esteem, yours sincerely, And. Marshall. 
 
 Rev. Dr Smyth. 
 
 Dr Smyth to Dr Marshall. 
 
 Glasgow, May 5, 1853. 
 My Dear Sir, — Your previous communication, which I 
 read to the brethren last night, foreclosed (as you no doubt 
 anticipated) the hope of our coming together a*" fellow- 
 
 Q 
 
230 APPENDIX. 
 
 labourers in the Free Church. You still hold decidedly 
 the Voluntary prmciple. We are as decidedly opposed to 
 it. 
 
 Whether our respective views ought to be so far subjects 
 of mutual forbearance as not to hinder ecclesiastical incor- 
 poration is a large and complex question deserving of very 
 minute and earnest consideration. In present circum- 
 stances, it is obvious that we are not at liberty to modify 
 our testimony as the Free Church, in order to extend our 
 fellowship with esteemed fathers and brethren who main, 
 tain what we believe to be not in accordance with our 
 Standards. 
 
 I am extremely sorry that our correspondence should 
 meanwhile terminate in this way, having indulged the hope 
 that your sentiments had undergone (even although you 
 might not be fully conscious of it) a very decided change 
 in regard to the union of the Church with the State. — I 
 am ever, my dear sir, most truly yours, John Smyth. 
 
 B. (See p. 193.) 
 
 Dr J. B, Johnston, in a discussion in the Glasgow 
 Presbytery in October 1868, says : — 
 
 "In the United Presbyterian Church there has been 
 great liberty enjoyed respecting the right and duty of the 
 magistrate. We have expressly declared in the Formula 
 that, in adhering to the Confession of Faith, we are not to 
 be held as approving of that which ' teaches, or is supposed 
 to teach, compulsory or persecuting and intolerant prin- 
 ciples in religion,' and there are some among us who think 
 that, in the 3d section of the 23d chapter, such principles 
 are taught, and that some other portions are not free of the 
 
APPENDIX. 231 
 
 taint. There are some of us who hold that persecution is 
 involved in the very idea of an Established Church, and 
 in the employment of force to any extent in maintaining 
 or propagating religion. 
 
 " But while our terms are such as to permit the most 
 out-and-out Voluntary to be a minister or member, there is 
 nothing in these terms which shuts out a person who holds 
 the theory of an Establishment — there is nothing to prevent 
 a man holding the 23d chapter in its entirety. Perhaps 
 it would be well if this chapter were expunged altogether, 
 instead of retaining it in its present degraded position 
 — (hear, hear) — some of us looking on it as so much waste 
 paper, and others regarding it with respect. But one 
 thing is obvious — viz., that stricter terms must not be 
 imposed, and there is greater danger of this than is per- 
 haps supposed. . . . The members of the Union 
 Committee are persons whom I most cordially esteem, and 
 among them are some of the most acute and conscientious 
 men of the Church ; but I cannot help thinking that, in 
 the preparing of these articles on the first head of the 
 programme, both the articles of agreement and the dis- 
 tinctive principles, they made a mistake. It is quite well 
 known, although the secrets of the committee have been 
 remarkably well kept, that on the second head — that refer- 
 ring to doctrine — a paper was prepared by the Free Church 
 Committee, and that it was suggested that either the 
 United Presbyterian Committee should accept that docu- 
 ment as the exponent of their views, or should themselves 
 prepare a document which might more accurately express 
 the views held by the denomination. Our Committee 
 resisted this proposal, and said that if there was to be a 
 Confession of Faith, they would rather take the old West- 
 minster Confession than a new Edinbursjh or GlasccoAv one 
 Now, why did they not act on the same principle in regard 
 
232 APPENDIX. 
 
 to the first head of the programme — that regarding the 
 power of the magistrate in religion 1 — why did they not 
 content themselves with quoting the 23d chapter of the 
 "Westminster Confession, and that part of the Formula, 
 by which the authority of every clause of it is annulled? 
 and by which the whole subject of the magistrate's power 
 circa sacra is set aside ? The 23d chapter is no more bind- ' 
 ing on my conscience than is Dr Gibson's pamphlet." 
 
 Dr Harper, the convener of the Union Committee, 
 says — 
 
 " We are not required to approve of anything in the 
 Westminster Confession, or in the Larger or Shorter 
 Catechism, that teaches, or is supposed to teach, com- 
 pulsory or intolerant principles in religion. This affords 
 us ample protection, and therefore, under the warrant of 
 this reservation clause, no man commits himself — no man 
 can be supposed to commit himself, as a member or minister 
 of this Church — to the intolerant or persecuting principles 
 which are held in some parts of the Confession. If any 
 person were to bring the Confession to me and say, ' Is 
 this your Confession of Faith?' I would open up the 23d 
 chapter and say, *No, that is not my or my Church's 
 Confession ; we are not called upon to receive anything 
 which teaches intolerant or persecuting principles of religion. 
 I believe and profess all the other chapters contained in 
 the Confession, unless there may be expressions bearing 
 the same import, although they do not stand out so pro- 
 minently as those in the 23d chapter.' It is with these 
 expressions so qualified or expunged that I hold the Con- 
 fession applies to my faith. I say expunged, not with era- 
 sion of the pen or excision by the scissors, but expunged 
 by being expressly exhibited in this way, that I am not 
 required to approve of anything in these Standards that 
 teaches intolerant principles. The shelter here in this 
 
APPENDIX. 233 
 
 respect is as broad as any man can desire. I have been a 
 minister for nearly half a century, and I never met a case 
 where a man who proposed entering into membership, or 
 eldership, or the ministry, had the slightest difficulty of 
 the kind to which the overture refers. Let any man put 
 his finger on an expression or statement in the Confession 
 and say, ' I do not approve of that ; it seems to me to give 
 to the magistrate a power he is not entitled to exercise,' 
 and you are not entitled to approve of it. Nay, more ; if 
 you say that it may be supposed to teach such principles, 
 you are not entitled to approve of it in that way." 
 
 C. (See p. 123.) 
 
 The attention of Counsel is directed to the following 
 extract from an Act of the General Assembly of the Church 
 of Scotland, and to its bearing on the questions submitted 
 for their opinion : — 
 
 Excerpt from Declaratory Act, 1799, chap. v. 
 
 " The Assembly enact and declare, that it is agreeable 
 to the constitution, the laws, and the decisions of this 
 Church, that no probationer, who has obtained a licence 
 without the bounds of this Church, or who has not ob- 
 tained a licence from some Presbytery of this Church ; and 
 no ordained person, who did not obtain his licence from a 
 Presbytery of this Church, or who, either by going without 
 the bounds of the Church to obtain ordination, although he 
 was not called to a particular congregation in another country, 
 or by any other part of his conduct, has forfeited the licence 
 which he had obtained, shall be held qualified to accept of a 
 presentation, or a call, to any parish in this Church, or to 
 any chapel-of-ease connected therewith ; and the General 
 
234 APPENDIX. 
 
 Assembly do hereby enjoin all the Presbyteries of this 
 Church, if a presentation or a call to any such probationer, 
 or ordained person as is described in this Act, shall at any 
 time be given in to them, instantly to pronounce a sentence, 
 refusing to sustain such presentation or call, and declaring 
 it null or void^ 
 
 The other part of the above Act (not here quoted) 
 forbade ministers of the Church of Scotland holding 
 ministerial communion with ministers of other Churches. 
 This portion of the Act (1799, c. v.) was rescinded by 
 the Act 1842, chap, ix., which is as follows: — "The 
 General Assembly, having considered the overture for 
 rescinding the fifth Act of the General Assembly, 1799, 
 did, and hereby do, rescind that part of the fifth Act of 
 the Assembly of 1799, which discharges and prohibits, 
 under pain of such censures as the judicatories of the 
 Church may see cause to inflict, all the ministers of the 
 Church, and the ministers of all chapels-of-ease connected 
 therewith, from employing to preach, upon any occasion, 
 or to dispense any of the other ordinances of the Gospel, 
 within any congregation under the jurisdiction of this 
 Church, persons who are not qualified, according to the 
 laws of the Church, to accept of a presentation, and from 
 holding ministerial communion in any other manner with 
 such persons; while, at the same time, the Assembly 
 enjoins upon all ministers of this Church to guard against 
 holding ministerial communion with men who are not 
 duly ordained and sound in the faith." 
 
 Counsel will notice that the Act of 1842, c. ix., did not 
 repeal the part of the Act 1799, c. v., above quoted; but 
 they will consider how far it has been superseded or modi- 
 fied by the Act 1850, c. viii., page 120 hereof. 
 
OPINION OF COUNSEL 
 
 No. I. 
 
 OPINION ON (PRINTED) MEMOPJAL FOR THE 
 DEFENCE ASSOCIATION OF THE FREE 
 CHURCH OF SCOTLAND. 
 
 By JOHN MILLAR, Esq. (now Lord Cbaighill). 
 
 1. The Free Church of Scotland has a constitution 
 which will be recognised by the Civil Court in the 
 determination of the rights of property thereto 
 belonging ; and that constitution is embodied in 
 the Standards of the Church, printed in the 
 volume issued by authority of the General 
 Assembly, as set forth in Act 9, 1851. The 
 principle upon which the answer to the present 
 query depends appears to me to have been fixed 
 by the earliest of the cases, and to be recognised 
 by the subsequent cases cited in the Memorial. 
 
 2. The Establishment principle, that is, the 
 national recognition and encouragement of religion 
 and the Cliurch of Christ by the State as such. 
 
236 OPINION OF COUNSEL. 
 
 is part of the constitution of the Free Church, of 
 Scotland. This view is supported by all the 
 Standards of the Church, and every one of these is 
 unambiguous in its testimony. 
 
 3. A majority of the Free Church, however 
 large, may not lawfully alter the constitution of 
 the Church in the face of a protesting minority 
 of its members. The constitution is a contract 
 or compact; and there being no provision that its 
 fundamental conditions may be changed by con- 
 sent of a specified proportion, these can be altered 
 or abrogated only by the agreement, express or 
 implied, of the whole Church. 
 
 4. Assuming that the constitution of the 
 United Presbyterian Church makes the Establish- 
 ment principle an open question, that constitution 
 is at variance with the constitution of the Free 
 Church of Scotland. 
 
 5. On the assumption upon which the immedi- 
 ately preceding query has been answered, the 
 Overture referred to at page 8 of the Memorial 
 must be considered inconsistent with the constitu- 
 tion of the Free Church, and particularly with the 
 Establishment principle which is part and parcel 
 of that constitution ; there not being any pro- 
 vision or even any expression in said Overture, 
 directly or by reasonable implication, limiting its 
 operation to cases of orderly translations from 
 charges in the United Presbyterian Church in which 
 
OPINION OF COUNSEL. 237 
 
 tlie ministers to be translated adhere to the 
 Establishment principle. 
 
 6. If the provision of the Act of 1850, c. 8, 
 shall be altered as proposed, it practically will 
 enact the eligibility and admissibility of United 
 Presbyterian or Reformed Presbyterian ministers 
 *^ in cases of orderly translations " from charges 
 in either of these Churches to charges in the Free 
 Church, and consequently will authorise such 
 translations. 
 
 7 and 8. Consideration of ulterior questions 
 is meantime postponed ; but once the course to be 
 pursued in the event of the Overture referred to 
 being adopted by a majority of the Assembly of 
 the Free Church, shall be resolved on, the measures 
 to be taken for the vindication and protection of 
 the rights of those represented by the Memorialists 
 ought to be determined and prepared with the 
 least possible delay. 
 
 The opinion of 
 
 John Millar. 
 
 3 AiNSLiE Place, 15 th April 1873. 
 
No. 11. 
 
 OPINION IN ANSWEE TO QUEEIES RELAT- 
 ING TO PEOCEEDINGS IN THE EEEE 
 CHUECH OF SCOTLAND. 
 
 By EDWARD S. GORDON, Esq. (now the Lord Advocate). 
 
 1 and 2. The Free Churcli of Scotland lias a con- 
 stitution which will be inquired into and recog- 
 nised by the Civil Courts, in so far as necessary, 
 for the determination of the rights of property 
 belonging to that Church. That constitution is 
 founded upon and includes within it, inter alia^ the 
 principles embodied in the Westminster Confession 
 of Faith, and in the other formal declarations and 
 deeds of the Church prior and subsequent to May 
 ]843; and in particular the principle of an 
 '' Ecclesiastical Establishment," or that it is 
 *'the right and duty of the Civil Magistrate to 
 maintain and support an Establishment of Eeligion 
 in accordance with God's Word." 
 
 3. The Free Church has not power by a niajority, 
 however large, to alter its constitution, and 
 especially in the face of a protesting minority of its 
 Representative Members in the General Assembly. 
 The constitution, which is the contract upon which 
 
OPINION OF COUNSEL. 239 
 
 tlie association of the adherents of that Church 
 was founded, in the absence of any provision that 
 alterations can be made on the constitution by a 
 specified or any majority, can be altered only with 
 the consent of all the Representative Members of 
 the Free Church in the General Assembly. 
 
 4. If it be held that the constitution of the 
 United Presbyterian Church is opposed to the 
 principles of the Free Church in reference to '^ the 
 right and duty of the Civil Magistrate to maintain 
 and support an Establishment of religion in 
 accordance with God's Word ; " or even if it be 
 held that the United Presbyterian Church regards 
 that principle as an open question — that is — that 
 it is immaterial whether it be held or be not held 
 by its office-bearers — the constitution of the 
 United Presbyterian Church is at variance with 
 that of the Free Church. 
 
 5. This question is specially important, and there- 
 fore requires to be answered at greater length. 
 
 The Act of the General Assembly of the Church 
 of Scotland 1799, which was passed unanimously, 
 and ordered to be engrossed in the Records of the 
 respective Presbyteries, is declaratory of the con- 
 stitution and law prior to its date, and called a 
 *' Declaratory Act." It sets forth *Uhat it is 
 agreeable to the constitution j the laws, and the 
 decisions of this Church," that ^^no ordained 
 person who did not obtain his licence from a 
 
240 OPINION OF COUNSEL. 
 
 Presbytery of this Church," '^ shall be held 
 qualified to accept of a presentation or a call to 
 any parish in this Church, or to any chapel-of- 
 ease connected therewith ; and the General As- 
 sembly do hereby enjoin all the Presbyteries of 
 this Church, if a presentation or a call to any 
 such probationer or ordained person, as is described 
 in this Act, shall at any time be given to them, 
 instantly to pronounce a sentence refusing to 
 sustain such presentation or call, and declaring it 
 null and void." This Declaratory Act, in so far 
 as not altered, is binding upon the Free Church. 
 In 1850, the General Assembly enacted some new 
 regulations relating to the application of the 
 principle of the Act of 1799. The Act 1850, 
 provides i?iter alia (l.) that no minister of another 
 denomination shall be received to the standing of 
 a minister of the Free Church " without an un- 
 qualified subscription of the Formula." (2.) That 
 he shall not be received to the standing of a 
 minister of the Free Church " without the 
 authority of the General Assembly." (3.) That 
 the original application for admission " be made 
 to the Presbytery within whose bounds the 
 applicant has his ordinary residence." (4.) That 
 the Presbytery shall transmit to the General 
 Assembly answers to certain queries as to the 
 reasons why the applicant desires to be received 
 into the Free Church ; and if there is a diversity 
 
OPINION OF COUNSEL. 241 
 
 of principle between the Free Church and the 
 applicant's former denomination or Chm-ch, what 
 account he gives of the change of his views ; and 
 whether the Presbytery are satisfied of his ad- 
 herence to the principles maintained by the Free 
 Church at the Disruption : and farther, it is 
 enacted that after the General Assembly have 
 given authority for the admission of the applicant 
 to the Free Church, he shall continue without any 
 fixed charge, and " without being capable of 
 receiving a call " for the period of a year. The 
 Act of 1850 repeals a prior Act of 1846 which 
 related to the same matter, but it does not repeal 
 the Act 1799. I therefore consider that the Act 
 of 1850 by its sixth section does not operate to 
 the efi'ect of preventing the declarations of the Act 
 of 1799, in regard to the "non-eligibility" of 
 ministers, even of any of the denominations or 
 Churches mentioned in that section ; although 
 there is probably little reason to doubt that it was 
 intended to do so. 
 
 But even assuming that the Act of 1850 does 
 operate to the efi'ect of rendering a minister of 
 any of the Churches mentioned in section six 
 eligible to a call to a charge in the Free Church, 
 it is to be kept in view (1.) that the Act of 1850 
 was passed in respect of the unanimous vote of 
 the General Assembly; and (2.) that it proceeds 
 upon the declaration that the Free Church was 
 
242 OPINION OF COUNSEL. 
 
 '^ in connection " with these Churches, that is, 
 the Churches mentioned in the sixth section. 
 The question then arises, has the Free Church 
 Assembly power to go beyond the principles of 
 the Act of 1799 and Act 1850, and by a majority 
 to repeal the provisions of the Declaratory Act of 
 1799, so as to extend the provisions of the Act of 
 1850 to ministers of a Church with which it is 
 not '^ in connection," and which is opposed to or 
 does not recognise one of the leading principles of 
 the Free Church constitution ? I think they had 
 not such power. 
 
 First, — ^If the non-eligibility of the ministers 
 of other Churches to receive a call to a parish, or 
 chapel of the Free Church, is part of the " con- 
 stitution " and ^' laws " of the Church as declared 
 by the Act of 1799, that part of the constitution 
 cannot legally be altered by a mere majority of 
 the General Assembly, and in the face of a pro- 
 testing minority of the Assembly ; and any such 
 attempted alteration is a violation of and departure 
 from the constitution of the Free Church, which 
 is binding upon and must be given effect to by 
 the members of the Church and by the Civil Court, 
 in all questions relating to the property- of the 
 Church. The alteration of that constitution in- 
 tended by the Act of 1850, even if effectually 
 carried out, cannot be founded upon by those 
 supporting the alteration proposed in 1872 ; be- 
 
OPINION OF COUNSEL. 243 
 
 cause, as already stated, the former was unani- 
 mously agreed to, and related to the ministers of 
 Churches stated to be '' in connection " with the 
 Free Church. 
 
 But apart from the question whether the non- 
 eligibility of ministers of other Churches as de- 
 clared in the Act 1799, can be considered as part 
 of the constitution of the Free Church, another 
 .question arises, whether the alteration of the Act 
 of 1799 proposed by the Overture of 1872 is not 
 also a violation of the constitution of the Church ? 
 This appears to depend upon whether, in the case 
 of a minister of another Church not in connection 
 with the Free Church, and especially of a Church 
 not holding the same principles as the Free Church, 
 who may receive a call from a Free Church con- 
 gregation, sufficient guarantees are provided by 
 the Overture, that the minister so called cannot be 
 admitted as a minister in any congregation of the 
 Free Church, until he has recognised and accepted 
 the principles and constitution of the Free Church, 
 including its declarations in favour of the right 
 and duty of the Civil Magistrate in matters of 
 religion, as declared by the Standards of the Free 
 Church. The Overture certainly has not made 
 direct provision to this effect, which might have 
 in the opinion of some the effect of removing their 
 objections to the Overture. It may, however, be 
 said that provision is made indirectly to this effect 
 
!244 ' OPINION OF COUNSEL. 
 
 by the terms of the Act of Assembly, 1 June 1846 ; 
 but I do not find that it applies to ordained 
 ministers from other Churches admitted to the 
 Free Church — indeed such ministers were not 
 admitted at the date of that Act except after 
 special examination by the Presbytery, and au- 
 thority granted by the General Assembly; while 
 the Act of 1850 declared, and the Overture of 1872 
 proposes to declare, that the provisions of the Act 
 of 1S50, including the^r^^ (viz., that " no minister 
 or probationer of another denomination or Church 
 shall be received to the standing of a minister or 
 probationer of this Church without an unqualified 
 subscription of the Formula "), shall not apply 
 to ministers belonging to the Presbyterian Churches 
 in England and Ireland and the Colonies, with 
 which this Church is in connection (nor to ministers 
 belonging to the United Presbyterian and Reformed 
 Presbyterian Churches), the last two Churches being 
 those proposed to be inserted by the Overture of 
 1872. The result therefore is, so far as I under- 
 stand the Act of 1850 and the proposed amend- 
 ment of 1872, that by the first provision of the 
 Act of 1850 and the proposed addition of 1872, 
 even the subscription of the Formula is not 
 required. This is apart from the difficulties raised 
 in the Memorial as to the legality and construction 
 of the Act of 1846. 
 
 I have thought it right to be minute in explain- 
 
 ) 
 
 y^ 
 
OPINION OF COUNSEL. 245 
 
 ing the views upon which I proceed, in case I may- 
 have made any mistake as to the facts of the case ; 
 and if I have done so, I shall be glad to reconsider 
 my opinion. But holding these views, the opinion 
 which I at present entertain is that the Overture 
 of 1872 is inconsistent with the constitution of 
 the Free Church ; and particularly with the main- 
 tenance of the Establishment principle. 
 
 6. 7. and 8. I understand that answers to these 
 questions are not at present required. 
 
 The opinion of 
 
 Edward S. Gordon. 
 
 ISth April 1873. 
 
 B 
 
No. III. 
 
 OPINION ON PEINTED MEMQPJAL FOK 
 MEMBERS OF THE FREE CHURCH 
 DEFENCE ASSOCIATION. 
 
 By ANDREW R. CLARK, Esq., (now Dean of Faculty), 
 AND J. B. BALFOUR, Esq. 
 
 1. We are of opinion thatthe Free Church of Scot- 
 land has a constitution which would be recognised 
 by the Civil Courts in determining disputed 
 questions of right to property belonging to that 
 Church. That constitution is, in our judgment, 
 contained in the Westminster Confession as 
 explained by the Acts of 1647 and 846, c. 2 — 
 the first and second Books of Discipline — the 
 Claim of Rights of 1842 — the Act of Separation — 
 the Protest of 1843 — the Deed of Demission — 
 the Questions and Formula referred to in the 
 Memorial, and the Acts of Assembly of the 
 Church of Scotland. In giving the opinion that 
 the Books of Discipline form part of the constitu- 
 tion, we are not leaving out of view the decision 
 in the Auchterarder Case. Even assuming that 
 
OPINION OF COUNSEL. 247 
 
 decision to settle finally that the Books of Disci- 
 pline do not form part of the constitution of the 
 Established Church, this does not conclude the 
 question whether they do or do not form part of 
 the constitution of the Free Church : and having 
 regard to the position taken up with reference to 
 the Auchterarder Case, by the persons who after- 
 wards associated themselves as members of the 
 Free Church, and to the terms of the documents 
 of 1842 and 1843 above mentioned, and especially 
 to the statement in the Claim, Declaration, and 
 Protest of 1842, that it is '^ a fundamental 
 principle of the Church, as set forth in her 
 Authorised Standards, and particularly in the 
 second Book of Discipline (Ch. III. Sec. 5)," 
 &c., — we think the Books of Discipline must be 
 held to form parts of the constitution of the Free 
 Church. 
 
 2. We answer this question in the affirmative. 
 
 3. We are of opinion that the Church has no 
 power by a majority, however large, to alter its 
 constitution in any essential or fundamental 
 point, which, as we have already stated, we con- 
 sider the Establishment principle to be. 
 
 4. We consider the constitution of the United 
 Presbyterian Church to be at variance with that 
 of the Free Church, whether the United Presby- 
 terian constitution be taken as negativing the 
 Establishment principle, or as leaving the accept- 
 
248 OPINION OF COUNSEL. 
 
 ance or rejection of that principle an open 
 question. Any one who does not hold the Estab- 
 lishment principle, rejects in our opinion an 
 essential part of the constitution of the Free 
 Church. 
 
 5. If the effect of an Act of Assembly in terms of 
 the Overture, would necessarily, or upon a sound 
 construction, be to admit persons not holding the 
 Establishment principle to the status of ministers of 
 the Free Church, we are of opinion that the pass- 
 ing of the Act would be a violation of the consti- 
 tution of the Free Church, as being destructive of 
 the maintenance of the Establishment principle. It 
 appears to us, however, that a Court of Law would 
 not hold this to be the effect of an Act in terms of 
 the Overture, but that such an Act would be con- 
 strued as only warranting the admission of United 
 Presbyterian ministers to the status of inducted 
 ministers of the Free Church conditionally, upon 
 their declaring their adherence to the principles of 
 the Free Church including the Establishment 
 principle, and if we be right in this view, the pass- 
 ing of the Act would not, in our opinion, be a 
 violation of the Free Church constitution. The 
 Act would not by its own force admit all ministers 
 of the United Presbyterian Church to the standing 
 of ministers of the Free Church, nor would it have 
 any application to the case of probationers. It 
 would simply place ministers having fixed charges 
 
OPINION OF COUNSEL. 249 
 
 in the United Presbyterian Churcli in the position 
 already occupied by ministers having fixed charges 
 in the Churches mentioned in sect. 6 of the Act of 
 1850, C.S., by which section it is declared that 
 *^ the provisions of this Act shall not apply to 
 ministers belonging to the Presbyterian Churches 
 in England and Ireland and in the Colonies, with 
 which this Church is in connection, so far as re- 
 gards cases of orderly translation from charges in 
 the said Churches to charges in this Church.^'' In 
 other words the section makes ministers of these 
 Churches capable of being transferred from charges 
 in their own Churches to charges in the Free 
 Church upon the same conditions, and subject to 
 the same regulations as apply to the translation of 
 a Free Church minister from one charge to another 
 charge within the Church. Now, such a minister 
 upon being so transferred would, as appears from 
 the Memorial, require to answer the questions 
 printed on page 39 of the Appendix to the Free 
 Church Standards, and also to sign the Formula 
 printed on page 40, unless the Act of 1711 is 
 altered by the Act of 1846, to the effect of render- 
 ing such signing of the Formula unnecessary, 
 which we do not think it is. And so we under- 
 stand that the following passage in the Report of 
 the Union Committee, in regard to ministers of 
 the Churches mentioned in section 6 of the Act of 
 1850, is correct: — "As the result and consequence 
 
250 OPINION OF COUNSEL. 
 
 of these exemptions in favour of the Churches 
 above named, the Free Church has recognised 
 ever since 1850 the eligibility of the ministers of 
 the said Churches in the sense, and to the effect, 
 of sanctioning the orderly calling or translating 
 of ministers of charges in any of these Churches, 
 to charges in the Free Church on the footing of 
 their signing the Free Church Formula." But if 
 this be so, ministers of the United Presbyterian 
 Church, made by an Act in terms of the Overture 
 eligible for translation to charges within the Free 
 Church, would, upon being inducted, require to 
 answer the Questions and sign the Formula, or at 
 least to answer the Questions without signing the 
 Formula, and they would by doing both or either 
 of these things, express their adherence to the 
 constitution and principles of the Free Church, 
 including the Establishment principle. It does 
 not appear to us that the Questions could honestly 
 be answered, or the Formula honestly be signed 
 by any person putting such a construction upon 
 them, or the documents to which they refer, as 
 would not involve an admission and acceptance of 
 the Establishment principle. 
 
 If these views be well founded, an Act, in terms 
 of the Overture would not lead to persons being 
 placed in pastoral charges in the Free Church who 
 did not accept the Establishment principle, but 
 only to a postponement of the stage of proceed- 
 
OPINION OF COUNSEL. 251 
 
 ings at wliicli the adherence to that principle 
 would be avowed, and this would not in our 
 judgment be a violation of the constitution of the 
 Church, but only an alteration of a regulation or 
 rule of procedure. Now, in regard to matters of 
 procedure, very large powers are vested in the 
 Church acting through its Supreme Court. 
 
 6. We think the objection suggested to the 
 terms of the Overture is too critical, and that an 
 Act in terms of the Overture would enact the 
 elegibility or admissibility of United Presbyterian 
 ministers to charges in the Free Church, and 
 authorise their translation to such charges, sub- 
 ject to the conditions explained in our last 
 answer. 
 
 7. If, contrary to the views above expressed, an 
 Act in terms of the Overture would involve a 
 violation of the constitution of the Free Church, 
 the proper remedy would, in our opinion, be to 
 take steps for reduciug the Act, or for preventing 
 it from being carried into execution. Assuming- 
 the Act to be a violation of the constitution of 
 the Church, and therefore illegal, we think that 
 any minister of the Church would be entitled to 
 reduce it; but having regard to the judicial 
 opinions in the case of Forbes ver. Edcn^ we con- 
 sider that the interest of a lay member would be 
 too slender and remote to give him a title to sue a 
 reduction. It is, however, to be kept in view that 
 
252 OPINION OF COUNSEL. 
 
 a minister of tlie Churcli instituting an action to 
 reduce the Act, would probably be deposed, and if 
 deposed his title to sue the action would fall, 
 unless be could establish to the satisfaction of the 
 Civil Court that his deposition was illegal. Now 
 it appears to us to be a very serious question, 
 whether he could succeed in establishing this. 
 In the ordinary case the Civil Courts would not 
 inquire into the validity of a deposition, the 
 power to depose being vested in the Supreme 
 Court of the Church, but it is not impossible that 
 they might do so in the case supposed, as in that 
 case the purpose of the deposition would be to pre- 
 vent the minister from vindicating a just right. 
 
 This question, however, would demand fuller 
 consideration upon more detailed information than 
 we now have before us. 
 
 With respect to the other remedy of stopping 
 the execution of the Act, we think that any 
 member of a congregation, to the pastoral charge 
 of which a United Presbyterian minister was pro- 
 posed to be inducted, would, assuming the Act to 
 be a violation of the constitution, be entitled by 
 interdict to prevent the induction. 
 
 And as regards the Sustentation Fund, we con- 
 sider that any minister having right to participate 
 in the Fund, would, subject to the risk of deposi- 
 tion above explained, be entitled to obtain an in- 
 terdict against the ex kypothesi illegally inducted 
 
OPINION OF COUNSEL. 253 
 
 United Presbyterian Minister participating in the 
 Fund, and that probably any subscriber to the 
 Fund would be entitled to use the like remedy. 
 It does not appear to us that it would be a suf- 
 ficient answer to such a subscriber, to offer him 
 back his subscription money with the view of 
 cutting down his title to sue. His money with 
 the rest of the Fund is held upon trust purposes, 
 the lawful execution of which he is, in our judg- 
 ment, entitled to enforce. 
 
 If the persons objecting to the Act separated 
 themselves from the existing Free Church, and 
 claimed to be the true representatives of the 
 Church as existing prior to the passing of the 
 Act, they would require to institute proceedings 
 for enforcing their claim to the property of the 
 Church, and then the Civil Courts would require 
 to determine (1) whether the passing of the Act 
 afforded a proper ground for the separation, and 
 (2) which of the two bodies was the one entitled 
 to the property. The leaning of our present 
 opinion is, that the Court would probably hold the 
 passing of the ex Jiypothesi illegal Act not to be 
 a sufficient ground of separation — the proper 
 remedy, in our judgment, being either to reduce 
 the Act or to stop its execution. As regards the 
 second question, the persons separating would 
 encounter great difficulties from the existing 
 Church being in possession of the property; but, 
 
254 OPINION OF COUNSEL. 
 
 assuming the Act to be illegal, and the separation 
 to be held justifiable, the Court might not impro- 
 bably hold that the persons who separated, as 
 being those who adhered to the true principles of 
 the Church, were entitled to the property. 
 8. We have no further observations to offer. 
 
 The opinion of 
 
 And. E. Clark. 
 J, B. Balfour. 
 
 Edinbuegh 1873. 
 
 PRINTED BY BALLANTYNE AND COMl'AKY 
 EDINBURGH AND LONDON 
 
BW5485.B41 
 
 Memorial, with the opinions of eminent 
 
 Princeton Theological Seminary-Speer Library 
 
 1 1012 00058 1894