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THE CARDROSS CASE AND THE FREE CHURCH OF SCOTLAND.
PUBLIC attention has been widely questions of this nature have taken of called to a late judgment of the Master the popular mind in Scotland. of the Rolls on certain questions affect- About twenty years ago a conflict was ing the Baptist Churches in England. begun in the Church of Scotland, ending During some months Scotland has been in 1843 in a crisis which has been the field of a contest in some respects since generally known as “the Disrupsimilar, but exciting much more interest. tion "—the name with which it was There have been published pamphlets, baptized by Chalmers, who wholly idensermons, reviews of sermons, speeches, tified himself with those forming, from letters, and other forms of popular that time forward, the Free Church of address; and, with about a score of these Scotland. selected as materials, together with the Now, till the event disclosed somepleadings and the authentic report of thing obvious to the most careless onthe Cause, it is proposed here to attempt looker—the spontaneous withdrawal of a brief exposition of the questions and nearly 500 ministers, and large bodies of principles involved.
the people, from a national establishment, The interest in ecclesio-political ques- of which they formed, probably, in numtions in Scotland is both deeper and ber fully one-third part, in value consiwider than in England. Two causes of derably more—it is perhaps not far from this difference may be noticed : first, the truth to say, that what was convulsthe broad basis of the Scottish reforma- ing Scotland from the Solway to the tion, and the extent to which the common
Pentland Firth was generally regarded people took part in it; and, secondly, in England rather with a sort of puzzled the mental habits of the Scotch. The wonder than with any intelligent symstruggles for freedom in Scotland have pathy or appreciation. The question at been chiefly in connexion with eccle- issue seemed too abstract and metaphysiastical institutions; and the republican sical to take any hold of the general form of these favoured the individual mind ; and for every ten persons who political education of the members, and, looked with interest, whether in admiin the absence of free Parliamentary ration of the sacrifice, or in censure of debate, afforded an open arena for the its rashness, on the visible results, prodiscussion of questions of national or bably scarcely one had a distinct conceplocal interest. Indeed, the republi- tion of the processes of thought, out of can spirit, in connexion with existe which these results came. ing political confusions and threatened The conflict between the Courts of political dissolution, had at one time Law and the Church Courts arose out (if we may trust Sir Walter Scott's
of an attempt made by the Church in judgment on such a matter of history) all good faith, and with general consentall but subjugated the civil constitution to limit the rights of the patronage of of Scotland, and moulded it into cor- parochial churches, by allowing a conresponding forms. Connect with this clusive negative voice to the .congregathe speculative and logical mental habits, tion; but the final ground of separation -the tendency to carry out a principle was the refusal of the Church to submit or idea to its remotest conclusions, un- to judgments of the Courts of Law willingly admitting the control of prac- reversing sentences of Suspension and tical regulative influences,-add the Deposition, and otherwise directly intersacred and patriotic memories and asso- fering with ecclesiastical censures. The ciations which have gathered round those claim of the Church was one to absoideas or institutions; and some explana- lute independence of all external contion is afforded of the strong hold which trol in matters of government and
discipline; practically, that at least
was at once protected and limited. In no interference should be allowed to the present case there are no statutes to prevent the adoption of whatever mea- be appealed to, unless as fixing or in
were thought essential, or bene- terpreting the usages of the Church; ficial, and expedient. The theoretical and there is little difficulty in making view was in many quarters strongly the question intelligible even to readers presented, and gave birth to the idea who may not be well versed in this rewhich fired the people. But many felt a gion of Scottish history. For the sake difficulty in adopting this view, at least of such readers it may be well, in one without reserve, inasmuch as it appeared or two sentences, to describe the organihardly to consist with the history of the zation of the Presbyterian Churches in Church. Such unqualified rights seemed, Scotland, as this is seen in that Church indeed, to have been claimed, but never to which these remarks specially relate. conceded or possessed. The practical The congregational court known as view, especially as it modified the exer- the “Kirk Session,” is composed of the cise of patronage which had been much minister and the elders, both elected by complained of, was highly popular. the members of the congregation. The
Yet these questions were so closely elders may be assumed generally to range intertwined with the very foundations in number from five to twenty ; are, and fabric of the Church, regarded as an with few exceptions, married men, or institution fenced with special laws, and “heads of families ;" are always, it may resting on historical traditions, that be said, of good character, varying in without some knowledge of these the pecuniary circumstances and social status nature and urgency of that crisis can with the nature of the congregation. Its hardly be understood. They cannot be jurisdiction extends over the members of here dwelt on, but the subject must not the congregation ; and by its authority be touched without some acknowledg- children are baptized, or adults admitted ment of the energy, devotion, powers to the communion; and it has power“ to of organization, and practical efficiency “suspend from the Lord's Table a person which have made the Free Church “not yet cast out of the Church.” Of eminent even in a country where these old it wielded the terrors of the "cutty qualities unusually abound. The old tra- stool.” The minister is the chairman, ditions have proved themselves an invalu- or “moderator" (the preserver of order) able inheritance; and it may have hardly a word which is applied to the president lived long enough under the new condi- of each of the Church Courts. tions to have altogether tested its powers The next court in order of rank is the of independent existence, or to be en- Presbytery, consisting of the ministers titled to claim a victory over the new of a group of neighbouring congregations, dangers. It remains to be seen whether and one elder from each of them. Beit will have patience and faith in the sides an appellate jurisdiction as regards future, so as to resist the pressing tempta- the Kirk Sessions, its authority extends tion to choose rather an apparent pre- over the ministers as well as the memsent success, than strength, dignity, sta- bers of the congregations within its bility, and ultimate triumph. It has bounds. Its meetings are usually monthalready shown an industry, earnestness, ly. There are seventy-one Presbyteries and ability which, if only regulated by of the Free Church in Scotland. a wise regard to the long life and late Next comes the Synod, or provincial maturity of institutions, can hardly fail assembly, composed of the members of to confer blessings on Scotland.
several adjoining Presbyteries. Its jurisThe present question is only in part diction is not original, but appellate, or the same as that which was involved in on reference only, from the judgment the former struggles. Then the Church or on the application of one of these and its opponents equally pleaded the Presbyteries. There statutes of the Legislature, by which it Synods.
Lastly, the General Assembly consists was only of rude and violent behaviour. of ministers and elders holding commis- Against this judgment, so far as unfasions (hence called commissioners) as vourable to himself, the accused protested representatives from the Presbyteries in and appealed to the Synod of Glasgow a fixed proportion, according to the
no complaint number of ministers they contain re- (which would have been quite in order) spectively. There are about four hun- by any members of the Presbytery, who dred members (the number of congrega- might deem the sentence too favourable. tions in the Free Church being about The judgment of the Synod was in these eight hundred), half of them ministers, terms: "The Synod did and hereby and half of them elders. It meets once “ do sustain the protest and appeal, disa year in Edinburgh, in the month of charge the first count of the libel, and May, holding its sittings during ten or “ find the second and third counts thereof twelve days. Its authority is legislative,
“ not proven." judicial, and executive, and extends The Presbytery appealed against this over the whole area of the Church, and judgment, so far as it was adverse to over all the inferior courts.
their own sentence, and several members In the General Assembly of the Es- of the Synod also dissented and comtablished Church there have been, from plained to the General Assembly; whose very early times, members appointed not decision was: “That on the first count by any ecclesiastical court, but by the “ of the minor proposition of the libel Royal Burghs; and a Commissioner (the indictment being syllogistic in (always in practice a peer of Scotland) form)“the Assembly allow the judgment appointed by the Queen, is enthroned “ of the Synod to stand ; on the second as her representative, but takes no active “ count of the minor proposition of the part in the proceedings.
“ libel, sustain the dissent and complaint In the Free Church Assembly there " and appeal, reverse the judgment of is no representative of any of the Burghs, “ the Synod, and affirm the judgment of nor, of course, of the Queen. Another “ the Presbytery, finding the charge in difference may be noticed here :--that “ the said count proven ; and on the persons accused are not permitted to “ third count of the minor proposition appear by their counsel in any of its “ of the libel, sustain the dissent and courts. This isa departure(whether wisely complaint, reverse the judgment of adopted or not) from the settled practice “ the Synod, and find the whole of the of the Established Church. With these charge in said count, as framed oriremarks, by way of introduction, the “ginally in the libel, proven." Therefacts of the present case may be now after the Assembly, on the motion of the narrated.
Rev. Dr. Candlish, resolved that the The Minister of Cardross, having been Minister of Cardross should be suspended from the time of the Disruption a minis- from his office sine die, and be loosed ter of the Free Church, was in February, from his charge ; which sentence was ac1858, served with a libel (or indictment) cordingly pronounced, with the further by the Presbytery of Dumbarton, to declaration, that he "cannot be restored which he was subject. It contained “to the office of the ministry, except by three counts. The two first related to “the General Assembly." alleged instances of intoxication ; the By the next step the first point of third accused him of an immodest assault. contact with the jurisdiction of the The Presbytery found the first count civil courts is reached. The Minister of not proven; the second substantially Cardross, in order to prevent the senproven (but with the exception of tence against him being carried into one of the alleged facts-indistinctness effect, applied to the Court of Session 1 of speech); the third proven, but with
1 The Court of Session is the supreme civil exceptions which essentially altered its
court in Scotland, having as well an equitable nature, so that the conviction under it as a legal jurisdiction. It consists of thirteen
for suspension of the sentence and in- "swer to 'yea' or 'nay,' as no explanaterdict against the General Assembly, “tion, or anything but a bare affirmative on the ground that the judgment of the or negative answer, would be taken or Presbytery, so far as not appealed “heard from him.” Having answered against, was final, and that the Assem- in the affirmative he was then ordered bly had no power to revive against him to leave the bar, and retired from the a charge thus conclusively negatived. Assembly. Whereupon, in his absence, The application was refused by the Lord the Assembly, on the motion of Dr. Ordinary, as incompetent. The General Candlish, seconded by Dr. Bannerman, Assembly, still in session, learning that resolved, that in respect of the reply so such an application had been made, and given he should "be deposed from the finding that it purported to be an appli- “office of the holy ministry ; and this cation to the Civil Court to suspend “was accordingly done. This is the their sentence, resolved to summon the “sentence, deposition, or proceeding (quondam) Minister of Cardross to ap- complained of, and such are the cir. pear at their bar “to answer for his “cumstances in which it was passed or conduct thereanent." The citation was “agreed to.” “The pursuer" (it is accordingly served on him, on the 28th added) “has also, in consequence of the of May (about twelve o'clock at night), “said 'deposition, been removed from his to appear before the Assembly on the 1st “office of clerk to the Free Synod of of June. The following is his state- “Glasgow and Ayr." ment of what there took place, and its The Minister of the Free Church of substantial accuracy seems,
admitted. Cardross had thus been first suspended, “ On the said 1st of June the pursuer and afterwards deposed from his office “accordingly appeared before the said by sentences of the General Assembly. “General Assembly of the Free Church, In the hope of setting these aside, or at “ and he was there called upon by the least of getting pecuniary compensation, “moderator to state whether or not he he instituted two actions (or suits) in “had authorized the application referred the Court of Session. The first of these “ to to the Civil Court. In consequence was directed against the General Assem“of and in compliance with this call, bly and its representative officers; and “the pursuer was beginning to read the called for the production, with a view to "explanation and protest, a copy of its being declared illegal, of the sen“ which is produced, when he was in- tence of suspension. The second action “terrupted by the defender, Dr. Cand- was directed against the same persons ; “lish, who moved that he should not be and also against certain individual " allowed to give any explanation what- defenders-namely, the moderator who ever, but that his answers should be
pronounced it, and the Ministers who “ restricted to a categorical 'yea' or moved and seconded the resolution “nay'; and, though the pursuer claimed which led to its being pronounced. “ and insisted on his right to be heard, His statement is, that having been one "he was, in consequence of the motion of the ministers of the Church of Scot“of the defender, Dr. Candlish, which land at the time of the Disruption, he
was carried, peremptorily commanded soon afterwards became Minister of the “ by the moderator to restrict his an- Free Church of Cardross, and was ap
pointed clerk to the Synod of Glasgow judges; of whom four form the first, and four and Ayr in 1848 ; and that his emoluthe second division, or “ Inner House," as each
ments, including the value of a manse of these is called ; the other five sitting as single judges, or “Lords Ordinary," and decid
(or parsonage-house), amounted to about ing causes in the first instance after having 2141. per annum.
“And in consesuperintended them until ripe for final judg. "quence of the decision, sentence, depoment. Their decision is subject to review by “sition or proceedings complained of, one or other division of the Court. The judges in rotation dispose of urgent and summary
“the pursuer has been deprived, in his applications in chambers.
"old age, and after a ministry without "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 (20) 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 prosance 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.