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THE CARDROSS CASE AND THE FREE CHURCH OF SCOTLAND.
PUBLIC attention has been widely called to a late judgment of the Master of the Rolls on certain questions affect ing the Baptist Churches in England. During some months Scotland has been the field of a contest in some respects similar, but exciting much more interest. There have been published pamphlets, sermons, reviews of sermons, speeches, letters, and other forms of popular address; and, with about a score of these selected as materials, together with the pleadings and the authentic report of the Cause, it is proposed here to attempt a brief exposition of the questions and principles involved.
The interest in ecclesio-political questions in Scotland is both deeper and wider than in England. Two causes of this difference may be noticed : first, the broad basis of the Scottish reforma. tion, and the extent to which the common people took part in it; and, secondly, the mental habits of the Scotch. The struggles for freedom in Scotland have been chiefly in connexion with ecclesiastical institutions; and the republican form of these favoured the individual political education of the members, and, in the absence of free Parliamentary debate, afforded an open arena for the discussion of questions of national or local interest. Indeed, the republican spirit, in connexion with exist ing political confusions and threatened political dissolution, had at one time (if we may trust Sir Walter Scott's judgment on such a matter of history) all but subjugated the civil constitution of Scotland, and moulded it into corresponding forms. Connect with this the speculative and logical mental habits,
--the tendency to carry out a principle or idea to its remotest conclusions, unwillingly admitting the control of practical regulative influences,-add the sacred and patriotic memories and associations which have gathered round those ideas or institutions ; and some explanation is afforded of the strong hold which
questions of this nature have taken of the popular mind in Scotland.
About twenty years ago a conflict was begun in the Church of Scotland, ending in 1843 in a crisis which has been since generally known as “the Disruption "—the name with which it was baptized by Chalmers, who wholly identified himself with those forming, from that time forward, the Free Church of Scotland.
Now, till the event disclosed something obvious to the most careless onlooker-the spontaneous withdrawal of nearly 500 ministers, and large bodies of the people, from a national establishment, of which they formed, probably, in number fully one-third part, in value considerably more—it is perhaps not far from the truth to say, that what was convulsing Scotland from the Solway to the Pentland Firth was generally regarded in England rather with a sort of puzzled wonder than with any intelligent sympathy or appreciation. The question at issue seemed too abstract and metaphysical to take any hold of the general mind; and for every ten persons who looked with interest, whether in admiration of the sacrifice, or in censure of its rashness, on the visible results, probably scarcely one had a distinct conception of the processes of thought, out of which these results came.
The conflict between the Courts of Law and the Church Courts arose out of an attempt made by the Church-in all good faith, and with general consentto limit the rights of the patronage of parochial churches, by allowing a conclusive negative voice to the .congregation; but the final ground of separation was the refusal of the Church to submit to judgments of the Courts of Law reversing sentences of Suspension and Deposition, and otherwise directly interfering with ecclesiastical censures. The claim of the Church was one to absolute independence of all external control in matters of government and
discipline; practically, that at least no interference should be allowed to prevent the adoption of whatever measures were thought essential, or beneficial, and expedient. The theoretical view was in many quarters strongly presented, and gave birth to the idea which fired the people. But many felt a difficulty in adopting this view, at least without reserve, inasmuch as it appeared hardly to consist with the history of the Church. Such unqualified rights seemed, indeed, to have been claimed, but never conceded or possessed. The practical view, especially as it modified the exercise of patronage which had been much complained of, was highly popular.
Yet these questions were so closely intertwined with the very foundations and fabric of the Church, regarded as an institution fenced with special laws, and resting on historical traditions, that without some knowledge of these the nature and urgency of that crisis can hardly be understood. They cannot be here dwelt on, but the subject must not be touched without some acknowledgment of the energy, devotion, powers of organization, and practical efficiency which have made the Free Church eminent even in a country where these qualities unusually abound. The old traditions have proved themselves an invaluable inheritance; and it may have hardly lived long enough under the new conditions to have altogether tested its powers of independent existence, or to be entitled to claim a victory over the new dangers. It remains to be seen whether it will have patience and faith in the future, so as to resist the pressing temptation to choose rather an apparent present success, than strength, dignity, stability, and ultimate triumph. It has already shown an industry, earnestness, and ability which, if only regulated by a wise regard to the long life and late maturity of institutions, can hardly fail to confer blessings on Scotland.
The present question is only in part the same as that which was involved in the former struggles. Then the Church and its opponents equally pleaded the statutes of the Legislature, by which it
was at once protected and limited. In the present case there are no statutes to be appealed to, unless as fixing or interpreting the usages of the Church; and there is little difficulty in making the question intelligible even to readers who may not be well versed in this region of Scottish history. For the sake of such readers it may be well, in one or two sentences, to describe the organization of the Presbyterian Churches in Scotland, as this is seen in that Church to which these remarks specially relate.
The congregational court known as the “Kirk Session,” is composed of the minister and the elders, both elected by the members of the congregation. The elders may be assumed generally to range in number from five to twenty ; are, with few exceptions, married men, or “heads of families ;" are always, it may be said, of good character, varying in pecuniary circumstances and social status with the nature of the congregation. Its jurisdiction extends over the members of the congregation ; and by its authority children are baptized, or adults admitted to the communion; and it has power “to “suspend from the Lord's Table a person “not yet cast out of the Church.” Of old it wielded the terrors of the “cutty stool.” The minister is the chairman, or “moderator" (the preserver of order) a word which is applied to the president of each of the Church Courts.
The next court in order of rank is the Presbytery, consisting of the ministers of a group of neighbouring congregations, and one elder from each of them. Besides an appellate jurisdiction as regards the Kirk Sessions, its authority extends over the ministers as well as the members of the congregations within its bounds. Its meetings are usually monthly. There are seventy-one Presbyteries of the Free Church in Scotland.
Next comes the Synod, or provincial assembly, composed of the members of several adjoining Presbyteries. Its jurisdiction is not original, but appellate, or on reference only, from the judgment or on the application of one of these Presbyteries. There are seventeen Synods.
Lastly, the General Assembly consists of ministers and elders holding commissions (hence called commissioners) as representatives from the Presbyteries in a fixed proportion, according to the number of ministers they contain respectively. There are about four hundred members (the number of congregations in the Free Church being about eight hundred), half of them ministers, and half of them elders. It meets once a year in Edinburgh, in the month of May, holding its sittings during ten or twelve days. Its authority is legislative, judicial, and executive, and extends over the whole area of the Church, and over all the inferior courts.
In the General Assembly of the Established Church there have been, from very early times, members appointed not by any ecclesiastical court, but by the Royal Burghs; and a Commissioner (always in practice a peer of Scotland) appointed by the Queen, is enthroned as her representative, but takes no active part in the proceedings. . In the Free Church Assembly there is no representative of any of the Burghs, nor, of course, of the Queen. Another difference may be noticed here :--that persons accused are not permitted to appear by their counsel in any of its courts. This is a departure (whetherwisely adopted or not) from the settled practice of the Established Church. With these remarks, by way of introduction, the facts of the present case may be now narrated.
The Minister of Cardross, having been from the time of the Disruption a minister of the Free Church, was in February, 1858, served with a libel (or indictment) by the Presbytery of Dumbarton, to which he was subject. It contained three counts. The two first related to alleged instances of intoxication ; the third accused him of an immodest assault. The Presbytery found the first count not proven ; the second substantially proven (but with the exception of one of the alleged facts—indistinctness of speech); the third proven, but with exceptions which essentially altered its nature, so that the conviction under it
was only of rude and violent behaviour. Against this judgment, so far as unfavourable to himself, the accused protested and appealed to the Synod of Glasgow and Ayr. There was no complaint (which would have been quite in order) by any members of the Presbytery, who might deem the sentence too favourable. The judgment of the Synod was in these terms: “The Synod did and hereby “ do sustain the protest and appeal, dis“charge the first count of the libel, and “ find the second and third counts thereof “not proven.”
The Presbytery appealed against this judgment, so far as it was adverse to their own sentence, and several members of the Synod also dissented and complained to the General Assembly; whose decision was: “That on the first count “ of the minor proposition of the libel” (the indictment being syllogistic in form) “the Assembly allow the judgment “ of the Synod to stand ; on the second « count of the minor proposition of the “ libel, sustain the dissent and complaint “and appeal, reverse the judgment of “the Synod, and affirm the judgment of “the Presbytery, finding the charge in “the said count proven ; and on the "third count of the minor proposition “ of the libel, sustain the dissent and “complaint, reverse the judgment of “ the Synod, and find the whole of the “charge in said count, as framed ori“ginally in the libel, proven.” Thereafter the Assembly, on the motion of the Rev. Dr. Candlish, resolved that the Minister of Cardross should be suspended from his office sine die, and be loosed from his charge ; which sentence was accordingly pronounced, with the further declaration, that he “cannot be restored “to the office of the ministry, except by "the General Assembly.”
By the next step the first point of contact with the jurisdiction of the civil courts is reached. The Minister of Cardross, in order to prevent the sentence against him being carried into effect, applied to the Court of Session?
The Court of Session is the supreme civil court in Scotland, having as well an equitable as a legal jurisdiction. It consists of thirteen
for suspension of the sentence and interdict against the General Assembly, on the ground that the judgment of the Presbytery, so far as not appealed against, was final, and that the Assembly had no power to revive against him a charge thus conclusively negatived. The application was refused by the Lord Ordinary, as incompetent. The General Assembly, still in session, learning that such an application had been made, and finding that it purported to be an application to the Civil Court to suspend their sentence, resolved to summon the (quondam) Minister of Cardross to appear at their bar “to answer for his conduct thereanent." The citation was accordingly served on him, on the 28th of May (about twelve o'clock at night), to appear before the Assembly on the 1st of June. The following is his statement of what there took place, and its substantial accuracy seems, admitted. “ On the said 1st of June the pursuer “ accordingly appeared before the said “ General Assembly of the Free Church, “and he was there called upon by the “moderator to state whether or not he “had authorized the application referred “to to the Civil Court. In consequence " of and in compliance with this call, “ the pursuer was beginning to read the “ explanation and protest, a copy of “ which is produced, when he was in“terrupted by the defender, Dr. Cand “lish, who moved that he should not be " allowed to give any explanation what“ever, but that his answers should be “ restricted to a categorical 'yea' or “nay'; and, though the pursuer claimed “and insisted on his right to be heard, “he was, in consequence of the motion “ of the defender, Dr. Candlish, which “ was carried, peremptorily commanded “ by the moderator to restrict his an
"swer to 'yea' or 'nay,' as no explana“tion, or anything but a bare affirmative “or negative answer, would be taken or “heard from him.” Having answered in the affirmative he was then ordered to leave the bar, and retired from the Assembly. Whereupon, in his absence, the Assembly, on the motion of Dr. Candlish, seconded by Dr. Bannerman, resolved, that in respect of the reply so given he should “be deposed from the “ office of the holy ministry ; and this “was accordingly done. This is the “sentence, deposition, or proceeding “complained of, and such are the cir“cumstances in which it was passed or “agreed to.” “The pursuer" (it is added) “has also, in consequence of the “said deposition, been removed from his “office of clerk to the Free Synod of “ Glasgow and Ayr.”
The Minister of the Free Church of Cardross had thus been first suspended, and afterwards deposed from his office by sentences of the General Assembly. In the hope of setting these aside, or at least of getting pecuniary compensation, he instituted two actions (or suits) in the Court of Session. The first of these was directed against the General Assembly and its representative officers; and called for the production, with a view to its being declared illegal, of the sentence of suspension. The second action was directed against the same persons ; and also against certain individual defenders-namely, the moderator who pronounced it, and the Ministers who moved and seconded the resolution which led to its being pronounced. His statement is, that having been one of the ministers of the Church of Scotland at the time of the Disruption, he soon afterwards became Minister of the Free Church of Cardross, and, was appointed clerk to the Synod of Glasgow and Ayr in 1848; and that his emoluments, including the value of a manse (or parsonage-house), amounted to about 2141. per annum. “And in conse“quence of the decision, sentence, depo"sition or proceedings complained of, “the pursuer has been deprived, in his .“old age, and after a ministry without
judges; of whom four form the first, and four the second division, or “ Inner House," as each of these is called ; the other five sitting as single judges, or “ Lords Ordinary," and deciding causes in the first instance after having superintended them until ripe for final judg. ment. Their decision is subject to review by one or other division of the Court. The judges in rotation dispose of urgent and summary applications in chambers.
“reproach of above thirty years' dura- “while the Free Church cannot prevent “tion, of his only means of obtaining a “persons betaking themselves to the " livelihood, and he has been otherwise "civil courts, they can say, and have “greatly injured in his character, credit, “said, that, as a Church of Christ, tole“feelings, and prospects.” This action “rated by law, they have an indepenaimed at the reduction of the sentence “dent jurisdiction in spiritual matters, of deposition; and in both actions dam “and that, if a member does not choose ages were also claimed for the alleged “ to abide by their sentences, he cannot injuries suffered or anticipated.
“remain in their body. That is their For the pursuer, it was pleaded, that “fundamental principle.” And again : the sentences of the Assembly were “But there is another plea not less imillegal and invalid; inasmuch as, (1) “portant than these. It is, whether the The sentence of suspension proceeded “subject matter of these actions is such on charges which were not lawfully “ as the civil courts can regard ; or under the cognisance of the Assembly, “whether, in any circumstances, they no appeal or complaint having been “will undertake to reverse the merely brought against the sentence of ac- “spiritual sentences of a voluntary quittal by the Presbytery, which still “Church. The jurisdiction of the in fact stood unreversed. (2) Under “ Court of Session must be exercised the proceedings relating to the depo- “consistently with the toleration which sition, no libel was served on the “all religious societies enjoy. The goaccused, which the laws and practice of “vernment, discipline, and worship, the Church required. (3) No evidence “ distinctive of such religious societies, was adduced to prove the criminal acts, “are essential to them as such, and while on the other hand there had been “are therefore as much sanctioned by no admission of guilt; and (4) No op- “the law as the societies themselves." portunity was allowed to the accused of And Whately, Locke, and Lord Mansbeing heard in defence.
field are quoted in support of this geneIt was pleaded for the Church- ral view. “The action is incompetent, and cannot The position of the Free Church is "and ought not to be entertained in stated in the pleadings to be strongly forti" this Court, because, (1st) The sentence fied by the terms of certain documents "complained of having been pronounced connected with the “Disruption"-espe“in a matter of ecclesiastical discipline, cially the Formula, subscribed by all " by a judicatory of the Free Church of Free Church ministers as a condition of “Scotland, an association of Christians licence and of ordination, in which the “ tolerated and protected by law, any general principles asserted by the Free “ review of or complaint against that Church are professed, and an express “sentence in the civil courts is excluded: promise is made " to submit to the said "and (2d) the pursuer, as a minister of "discipline, government, and exclusive "the Free Church, contracted and “jurisdiction of this Church, and not "bound himself to submit to the disci- “endeavour directly or indirectly the "pline and government of that Church. "prejudice or subversion of the same.” "(3d) It is not a relevant ground for On the special questions thus raised "calling for production and reduction there has not yet been any judgment. * of the writs in question, that the de. But there has been a preliminary dis“fenders have deviated from the ordi- cussion regarding the power of the Court "nary forms of process in observance in to interfere, which took the technical “the Free Church, the same being a form of an argument as to the liability “matter exclusively within the cogni. of the defendants to “satisfy the pro“sance and regulation of the Freo duction"—that is, to produce judicially "Church and its judicatories.” And in before the Court the sentences comthe written argument for the defendants, plained of; and on this point only has the Free Church, it is pleaded, that a judgment been pronounced. There
No. 10.-VOL. II.