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a remedy for the disease, but to administer a placebo to the patient.
The question is, whether in enacting the veto law, the church did not transgress the limits of her jurisdiction ?
Now nothing, we conceive, can be more obviously indisputable than that the church courts violate the patronage law, without so much as the ceremony of asking leave, when they refuse to take on trial the person whom the patron presents; and thus, whatever his qualifications may be, refuse to judge of them. Whether it is better to act on the new or on the old plan is not the present question ; it is simply what is the law which the state has enacted, and which the church is salaried to obey ?
A distinction to which some importance is attached, was maintained from the rise of the Scottish Establishment between presentation by the patron, and collation to the benefice. The former, as we have seen, the Kirk conceded to “laic patrons ;' the latter was all along held as one of the church's privileges. It consisted in the trial of the presentee's qualifications, and in his induction to the benefice. To an available extent, then, the church has in actual and legal possession a power of control-the act of 1592, ordaining all presentations to benefices to be directed to the particular presbyteries in all time coming, with 'full power to give collation thereupon. In this point the church of Scotland has an alleged advantage over our southern establishment; although, even on this point, it seems to us that the bishop's right of veto prior to institution is, if not an equivalent jurisdiction, at least one of a closely analogous nature. If the presentee to a parish in Scotland were found to be defective in the learning and acquirements prescribed for the ministerial office, or unsound in his principles, or blameable in his life, the act of presentation would be null and void. But the power of judgment and of rejection was confined to matters touching the personal fitness or unfitness of the candidate. The wishes of the people were never classed among the qualifications of the presentee. What he possessed, or what he wanted of attainments and of fitness, was considered a different thing from what people thought of his qualifications and capacity. To say that he must be duly qualified, and prove on examination that he is so, is clearly different from the opinion of him entertained by the people who are to be committed to his care. To confound these things is a palpable artifice. It was reserved for our own times and for the framers of the veto law, to attempt getting rid of the evil effects of patronage by this artful, pettifogging policy.
Soon after the passing of the veto act by the General Assembly, cases occurred in which the new law was brought into operation. In some instances patrons, in deference to popular feeling, presented to the people a list of candidates, and granted thus fara
liberty of choice. But all patrons were not like-minded. The Earl of Kinnoul, among others, denying the Assembly's right to interfere with the civil rights of patrons, granted to Mr. Robert Young a presentation in due form to the parish of Auchterarder. The presbytery of the bounds sustained the presentation conditionally-gave the parish an opportunity of acting on the new regulations of Assembly; this the parishioners did with great good will by vetoing the presentee, who was in consequence set aside without being taken upon trial. Collision between the civil and ecclesiastical authorities was the immediate result. The presbytery took charge of the cure—the patron retained the fruits of the benefice; and patron and presentee together prosecuted the presbytery before the supreme civil court in Scotland for an invasion of rights which the patron had hitherto exercised without challenge, and had secured to him by law.
This famous question, then, was one of jurisdiction between the litigant parties. That the act of Assembly trenched on the civil rights of patrons and presentee in such cases as that of Auchterarder, cannot be matter of debate. How little soever the act of Assembly gave to the people, there can be no doubt that it took from the patron the power of presentation, as he had hitherto exercised it. He might propose whom he would for the charge of the parish, and the people might be pleased in their turn to accept of the great man’s nomination; but as they had power to confirm, so had they power to nullify, and if they chose to say nay, the patron was forth with at a stand. And now the question came to be, have the church courts the right and the power thus to counteract and invalidate the civil claims of the patron.
No candid person, we apprehend, can read the report of the case as it was pleaded before the Court of Session in Scotland, without coming to a distinct conclusion that the church of Scotland, however galling she may feel her bondage, has in fact bartered her independence in the matter of parochial settlements; and that she is seeking to right herself in a way which it is impossible to justify on legal and constitutional grounds. The history and usages
of the church of Scotland make it as clear to our apprehension that such is the position of the Scottish establishment, as it is that such a position is one which no section of the Christian church should ever stoop to occupy.
There is in the very outset of the business an assumption and a fallacy which nothing but ignorance of the history of the Scottish church in her earlier periods, can give a chance of successfully imposing on the public mind. In the act of Assembly in 1834, it is declared to be a fundamental law of this church that * no pastor shall be intruded on any congregation contrary to the • will of the people. Now, it will not be difficult to show that this 'fundamental principle’ is no better than a fundamental mistake.
We have already adverted to the Magna Charta of 1592, as recognizing the right of lay patronage without any other reservation in favour of the people than that the presentee should be a
qualified person ;' but of this the people were not held competent to judge. At the revolution, lay patronage was abolished by an act passed in 1692, but it was neither popular election nor a full and bona fide principle of non-intrusion that came in its place. Kirk sessions and heritors (proprietors) stood in the room of the patron, and nominated a qualified person for the people's choice. ' Liberty of election was granted them, and consequently the power of refusal, but they had no right to reject the nominee except on grounds which they were able to substantiate to the presbytery, in whose hands at last, if the parochial charge for a given time remained vacant, was lodged the final power of nominating and inducting the minister. In 1711, the right of patrons was restored. It may serve, once for all, to exemplify the sorry shifts to which special pleaders for the church's independence have been driven, to state, that while by this act the law of 1692 is ‘repealed and made void,' and it is enacted that in all time coming the right of all and every patron or patrons to the presentation of ministers to churches and benefices, and the disposing of the vacant stipends for pious uses within the parish, be restored, settled, and
confirmed to them, the aforesaid acts or any other act, statute, or “custom, to the contrary, in any wise notwithstanding;'—because the act concludes with declaring that the presbytery of the respective bounds shall and is hereby obliged to admit qualified presentees ' as the persons presented before the making of this act ought to
have been admitted ;'- What then ?-Will it be credited, that the metaphysical acumen of our High Church Independents has detected, and that their advocates at the bar have laboured to demonstrate, the recognition of popular rights in the concluding words of the enactment; thus gravely arguing themselves into the belief that the right of election is abolished by the one clause, and the right of patronage by the other !
It is under this law that parochial settlements have been effected from that time to the present.
From all this it incontestably follows, that the church of Scotland had no right according to the law of the land and her own constitution, to set patronage aside ; or by the manæuvres of ecclesiastical policy to neutralize the rights of the patron. For it is manifest that from the beginning a compact on this subject has existed between the church and the state. The bargain may have been modified at various times by consent of parties; the church yielding more at one period than another; but whether for good or for evil, still a bargain was struck. In ratifying the terms of it, we own the state has sometimes treated her spiritual protégé with a somewhat supercilious freedom ; enacting conditions without formally asking consent
dictating terms, and unceremoniously demanding submission. But the church had her redress. If the terms proposed were at any time too hard, and if no remission of the compact was allowed her, it was still in her power to give up the alliance, thus asserting her native freedom, and taking a course which would have proved her spirit of independence, and vindicated her insulted dignity. But what was done! Why, for a long course of years after the law of patronage was re-imposed in the reign of Queen Anne, the General Assembly annually petitioned for a repeal of the act. This was certainly an expression of the church's dissatisfaction with the new state of things. But why petition? If the proper attitude of the church is that of a suppliant, how empty the boast of independence! Any slave, however abject his bondage, may fall on his knees and crave his lord to set him free. If entitled to assume a higher position, and to say yea or nay to the new stipulation proposed to her, and the church nevertheless abstained from such declaration of her will, then assuredly her forbearance was a virtual acquiescence in the terms offered; and, therefore, to petition for the rescinding of patronage could in this case be viewed as nothing but a tame and cowardly compromise between tenacity of her state bribe, and ostensible concern for her spiritual birthright. It was a fitting termination to this parade of zeal for her freedom, when many years ago, under the regime of Principal Robertson, the annual address to government on the subject of patronage was formally abandoned as a ceremony which it was doubtfully honest, and certainly idle, to preserve. Thus the church gave up the show of resistance, and by her own act sealed her bondage and degradation.
We hold it then to be clear as day, that in the compact subsisting between the Church and State in Scotland, submission to the yoke of patronage is one of the conditions on which the church has all along consented to receive and enjoy the advantages of her secular alliance; and that as in other bargains, so in this, the only fair and honest way for one party to get rid of an obnoxious stipulation is to procure the consent of the other party to its repeal; or if the nature of the transaction admit, as in this it clearly does, of a dissolution of the compact--to relinquish the federal alliance, and to take up an entirely separate, and therefore a truly independent position.
To neither of these sides of the alternative did the Church of Scotland incline. Throw up the bargain! Who but a leveller and an anti-christ could suggest an act so profanely suicidal ? Petition the Legislature! Why, this would be to acknowledge a subjection which it was the very object of the movement to disclaim. Abjuring with becoming indignancy all timid and prudential steps, the General Assembly fell upon a course which to many, we doubt not, must appear the most faulty a church
could possibly have chosen ; viz., an artful contrivance to nullify the patron's civil rights, while disclaiming any intention to invade' them. Under the sacred aegis of her spiritual authority, the church proceeded to assail with might and main, those strong holds of the civil power, which, with her own consent, were built around the “ National Sion;" and when the sin of fides fracta is charged upon her by those whom she attacks, and her tumultuary onset is denounced as rebellious, she lifts herself up with an air of offended majesty, and sums up her vindication in the ready watchword of-church independence and spiritual rights !
Already the fond vision is fled. Our readers, we presume, have learned from the public prints that the question of the church's internal jurisdiction has been decided by the supreme civil court in Scotland in favor of Earl Kinnoul and his presentee, and that this judgment has been affirmed by the House of Lords.
We are not ill pleased, we confess, to see the Scottish church in the dilemma in which her cunning policy has placed her. Not that we wish her evil, but because the evil she has brought upon herself may peradventure open the eyes of some to the real nature of their position, and prepare them for a larger and a happier change, which at present they would shudder to contemplate. Before the adjudication of the case, some rather high flights were adventured by Dr. Chalmers and others, in asserting the independence of the church, and in vaunting their readiness to lose all, and even, like their covenanting fathers, to take to the moors and mountains, rather than surrender their spiritual liberties. But these tropes meant nothing. By the final decision of the Lords the church is pronounced to be the creature of the State ; she is bound down in the very position which the veto party eschewed and reprobated as the prostration of their dearest privileges ; at this hour the mandate of the court of session is issued to the presbytery of Auchterarder to proceed with the usual steps towards the induction of the rejected presentee; one of the presbyteries of the church (Dunkeld) has stood as a culprit, and submitted to solemn censure at the bar of the court, for proceeding in the face of an inhibition to induct a presentee into the parish of Lethendy; these things are done, and the church, if not mute, is powerless ; the way to the moors is
open, but the talk of martyrdom is quashed, when opportunity and a loud call arise to make a sacrifice for consistency and principle. No, the present discussion, and the fruits of it, may lead in due time, as we hope they will, to views and principles really independent; but we see nothing as yet, save mighty airs that mock expectation.
The Lethendy case just referred to, involving the same principles with that of Auchterarder, appears to be in some respects still more extraordinary. A court of Christ, in the discharge of