# Observations on Church and State

published Edinburgh: William Blackwood and Sons (August 1848)
OBSERVATIONS
ON
CHURCH AND STATE
SUGGESTED BY
THE DUKE OF ARGYLL’S ESSAY ON THE
ECCLESIASTICAL HISTORY OF SCOTLAND
WILLIAM BLACKWOOD AND SONS
EDINBURGH AND LONDON
MDCCCXLVIII
PRINTED BY WILLIAM BLACKWOOD AND SONS, EDINBURGH
OBSERVATIONS
ON
CHURCH AND STATE
The name of Argyll is intimately associated with the rise and progress of the Reformation in Scotland. The fourth earl of that house was the first Scottish nobleman who embraced the principles of the Reformers, and several of his successors played a still more important part in the struggle against Popery and Prelacy. His son Archibald, the fifth earl, was one of the Lords of the "Congregation" who, on Cupar Muir in 1558, convinced the queen-regent, by a demonstration of their numbers, that it was no longer safe to trifle with their desires; and that they were prepared to carry forward their system, and free themselves from the oppression of the church of Rome, even by the extremity of a civil war. Yet violent measures were not in unison with this nobleman's disposition—were not his usual resource. His policy was of a vacillating, though not of an ignoble character. He was drawn in diverse directions by his loyalty to Queen Mary, and by his attachment to the doctrines which she vehemently opposed. Hence the present duke, the author of the interesting work which has suggested this disquisition, is not quite correct in his remark when he says — "We find the whole influence of the Reformed church engaging on the side of the Earl of Murray, when he became head of the confederacy which took ​arms against the reckless and disgraceful courses of the queen.” (P. 61.) He has forgotten the side which his own ancestor, one of the most influential Reformers of the day, espoused in that melancholy contest. It is true that Argyll at first joined the party which deposed Mary and crowned her infant son; but eventually he attached himself to the cause of the forsaken queen. He received her after her escape from Lochleven. He commanded her forces at the battle of Langside; and even when her fortunes were irretrievably ruined by the issue of that engagement, he ceased not to exert himself in her behalf. At length, when all hope was gone, he gave in his adhesion to the infant king, under the regency of Lennox; and died chancellor of Scotland in the year 1575.
Better known in history is the Argyll of a later period, the adversary of the great Montrose. This nobleman was raised to the marquisate in the year 1641. A subtle and sagacious politician, he was the leader of the wild men among the Covenanters— a powerful section, which was influential in determining the fate of King Charles I., by concussing the Scottish nation into the rejection of the treaty called the “Engagement,” which the more moderate Presbyterian party were willing to enter into with their unfortunate monarch. In 1661, in the reign of Charles II., the Marquis of Argyll perished on the scaffold by a most iniquitous sentence obtained by means of evidence produced against him by General Monk, under circumstances of unparalleled baseness. Except as an immolation to the manes of his heroic antagonist Montrose, who had perished by a similar doom (and certainly this will not in any degree justify it), his execution had nothing to recommend or palliate its atrocity.
The victim of a still more execrable perversion of justice, and an equally stanch defender of Presbyterianism, was his son Archibald, the ninth earl, who likewise died on the scaffold in the year 1681, during the reign of James II. He was executed for daring to explain the sense in which he accepted and subscribed the test-oath. This was a contradictory document, which bound all persons to uphold the Protestant religion, and yet to make no opposition to any attempt on the part of the crown to restore the Roman Catholic worship. This document the earl having presumed to “explain,” was brought to trial and convicted of high ​treason. He effected his escape and was outlawed. Subsequently he returned in arms as a rebel, was defeated, seized, and put to death, not, however, as a rebel, but upon the former most unjustifiable sentence. “Never,” says the historian Laing, “was a sentence productive of more execration and horror, never, perhaps, was a sentence more flagitiously obtained, than the attainder of Argyll.”
Considering, then, the exploits of his ancestors, —how much they have done and suffered in the cause of the Reformation generally, and of “Presbytery” in particular, it is not surprising that the ecclesiastical history of Scotland, independently of its own interest, should have exercised a powerful fascination upon the mind of the young nobleman who now stands at the head of the house of Argyll, and is the author of the work before us. Not that the Duke of Argyll alludes, except in the most incidental and unassuming manner, to the names of his forefathers. Still we cannot help thinking that he has been attracted to the subject by a hereditary predilection,—that he feels both warmed and warned by ancestral examples. For some years his mind has been evidently gravitating around the theme,—alternately allured and repelled by influences at once soothing and exasperating. When a mere boy, he took a turn or two in the Maelstrom of Free Church agitation—and was not swallowed up. The pamphlet he published at that time did him no discredit then—nor since. His present work is one of far higher merit. A good table of contents, exhibiting distinctly the march of his argumentative and historical positions, would have been of service to the general reader, and might have guided him to the appreciation of principles which, though implied in the essay, lie somewhat dormant, and are not brought out in sufficiently prominent relief. The Duke of Argyll anatomises his subject with considerable skill; but not with a perfectly unflinching hand. He appears sometimes to be groping in a dubious light. But whatever the defects of the book may be, they are, in our opinion, greatly counterbalanced by its merits.
Indeed, we do not pay the volume too high a compliment, when we say that it is an eminently original work—much more so than is apparent from a superficial perusal of its contents. It supplies good materials for thinking; but it requires to be fathomed with ​a long line. The transparency of its style dissembles the depth of its conclusions. The novelty of its historical and critical expositions is not immediately detected. The mind slides along the fluent paragraphs without perceiving at first sight that anything very remarkable lies hid beneath their surface. But let the book be studied carefully, and with a constant reference to the history of the period which it traverses, and its bold truth will by-and-by take consistency, and epitomise itself before the eye of the intelligent reader in some such proposition as this—“The General Assembly of the Church of Scotland is not an ecclesiastical, but is simply a national council.” That is the marrow of the Duke of Argyll's essay, –that is the thesis which in the following pages we propose to consider.
First of all, then, is this proposition true? We answer, that, at any rate, it contains so large an amount of truth—is so indisputably borne out by the recorded evidence of the early sittings of our Assembly—throws so much light on some of the darkest problems of Scottish history—and, above all, is so strongly supported by the genuine principles of the Reformation, as to entitle it to a very high place among the theories of our perplexing constitution. We now behold these bewildering abstractions “church and state,” “civil and spiritual jurisdiction,” illuminated by the light of an idea.
But, to prepare us for meddling with the details of this idea, there is another idea which we must set forth, and that is the idea of the Reformation. Wherever the Reformation was radical and complete, it did more than correct the abuses of the church of Rome—more than establish a purer mode of worship. It abolished for ever the sacerdotium as the badge of a peculiar order. It extinguished the distinction between clergyman and layman; and thus gave, as we shall see, a totally new aspect to the constitutional policy of all the nations which embraced it. This was more particularly the case in Scotland. Here there can be no mistake as to what the Reformation effected. Here we can exhibit demonstrably the steps by which the distinction between the clerical and the lay part of the population was brought to an end. The demonstration is as follows:
If we consider what titles in the church of Rome were essential to the clerical office, we shall find that there were two—a human ​and a divine. The human title every man had who was a believer. To become a clergyman, it was necessary that the aspirant should be a Christian. No process of ordination (effective as that ceremony was considered) could have made a Jew or a Mahommedan an office-bearer in the Roman Catholic church. This, then, was the preliminary title to the ministry. But it was merely a human qualification. It required to be supplemented by a divine commission—by ordination from God, received at the hands of the successors of the apostles,—and then the clergyman's title was complete. Now, it is obvious that this ordination separated the priests, as a caste, from the rest of the community. In so far as their human title was concerned, they still stood on a par with their fellow-men. But, in addition to this, they had something which these had not—a divine commission, by means of which a distinction was clearly established between them as clerical, and all others as laical.
But what titles did our Reformers regard as the essential qualification of a Christian minister? Precisely the same as those insisted on by the church of Rome—only they transposed the characters of the two titles. They regarded Christian belief as the divine part, and admission to office as the human part of the ministerial qualification. They held that every Christian man was a churchman, a priest by God's commission; but that a human appointment was necessary to complete his title to the ministry. This was not the ceremony of ordination. The first “Book of Discipline” thought that “not necessary.” It abjured the apostolical succession. His divine commission the applicant for orders had got already in common with all other Christians. That was not what he required, He wanted nothing but his human title; and this he obtained by the election of the people and the approbation of the learned. Is the man now a clergyman as contradistinguished from a layman? We may call him so for convenience' sake; but it is a distinction without a difference. In the Romish church the clergy were separated from the laymen by the whole diameter which lies between the human and the divine. In their ordination the priests received a divine commission which the laity did not possess. Hence they were invested (or were supposed to be so) with a spiritual attribute peculiar to themselves, and which stamped them as a class apart; but ​the Reformed clergy, in their election and admission to the ministry, obtained nothing but a human commission. The divine title (Christian belief) was also theirs; but this, being equally the property of the whole Christian commonwealth, of course conferred no peculiar distinction upon them. This human appointment merely distinguished the clergy from the laity as any one order of citizens is distinguished from any other order, by their respective professions—distinguished them from the laity just as the barrister is distinguished from all other persons who do not practise at the bar;—that is to say, did not distinguish them from the laity at all by any distinction which the constitution of the country recognises.
What, then, may we gather, from these observations, to be the theory of the Reformation in reference to the church? (We shall afterwards consider the Protestant theory of the state; meanwhile we confine ourselves to the church.) We may gather this: that the whole believing community is “the church”—a congregation of priests; that the whole Christian nation is a spiritual or ecclesiastical commonwealth. This it is by divine right—by the charter of the Bible. It is, moreover, the theory of the Reformation that this divine right must be controlled for the sake of good order—controlled by a jus humanum. Hence the origin of the ministry. They preach by human authority—that is, in virtue of election and admission—an authority which, not being extended to the rest of the community, checks the exercise of its spiritual privilege. Hence we perceive that the church, considered in its proper and more extended sense, as containing the whole body of Christian believers, is founded on a jus divinum; but that, considered in its more restricted sense, as confined to the ministers of religion, it rests, in so far as this limitation is concerned, purely on a jus humanum.
But it will be said, is there not a scriptural or divine warrant for the preaching of the word, and for the dispensation of the sacraments? Most assuredly there is. But no distinction between the clergy and the laity of a Reformed church can be founded on that circumstance. The question is, who are to officiate? The church of Rome answers this question by saying,—those are to officiate who are appointed by God's ordination through the apostolical succession. Thus, according to the ​Roman theory, the Deity himself makes a distinction between men ordained and men unordained; and, if that theory be sound, truly this is a distinction. But the Reformed church answers the question by saying—those are to officiate who are appointed to do so by men. But man's appointment can never make a substantial difference between man and man. Doubtless the minister's vocation differs from the lawyer's; but he does not differ from the lawyer by any constitutional peculiarity. The distinction between the ordained and the unordained members of a thoroughly Reformed community has no principle on which to ground itself—and therefore it is altogether null. If there be a principle, what is it?
We have hitherto been considering ecclesiastical persons as viewed by the theory of the Reformation, and our conclusion is, that that theory regards all Christians as ecclesiastical persons, and the ministry as not more so than others; the only difference between the ministers of religion and other ecclesiastics being, that there is added to their ecclesiastical status, by human authority, a highly honourable and responsible profession.
We now proceed to speak of ecclesiastical affairs as viewed by the same theory. Here it is that both people and their ministers become bewildered. Spiritual interests, the concerns of eternity as compared with those of time, are so momentous, that people naturally transfer the awe which is due to the things to the person of the man who administers them: and the man who administers them is naturally disposed (indeed he cannot help himself) to welcome the veneration which is forced upon his acceptance. Do we object to this? Far from it. We would have the ministers of the gospel loved and revered, and the ties between them and their people drawn as close as possible, over the whole length and breadth of the land. But there is one thing which we do most strenuously object to—and it is this; that any amount of reverence and esteem should be allowed to obliterate a sound constitutional truth—should overbear the profoundest maxim, the most vital principle of the Reformation. And this, we much fear, is what the veneration we are speaking of has done. Giving to persons a valuation which belongs to things, many professing Protestants have actually transposed the two titles of our ministry back into their old Popish order— ​holding that the minister's original title to officiate, which he and all Christians possess in their character of believers, is simply human; and that the other part of his commission, that which accrues to him through election and admission to office, that this is the divine element in his appointment. This great error—this portentous reversal of the prime canon of regenerated Christendom—has been the origin of all the ecclesiastical usurpation which has arisen since the days of the Reformation. It is certainly a prodigious confusion to suppose that ecclesiastical affairs have any sort of reaction upon the constitutional character of those to whose care their administration has been intrusted. But it is a natural confusion, and one which requires to be most sedulously guarded against, if we would retain the two titles of our ministry in their Protestant places, and preserve the blessings of the Reformation. That these affairs react, often with the most salutary effects, upon the personal character of the ministry—this is not to be disputed.
There are two points of view under which ecclesiastical affairs fall to be regarded in the theory of the Reformation—their administration and their legislation. Spiritual administration is the proper and peculiar province of the ministry: and its most important departments are preaching, and the dispensation of the sacraments. There can be no doubt that these, and analogous duties, are the special business of the clerical profession. It is precisely to perform these duties that ministers are appointed to their vocation. Here, then, no other class of persons can interfere. But a question arises, in regard to the legislation of ecclesiastical matters—Is this to be left exclusively in the hands of the office-bearers of religion? There can be no doubt as to the terms in which the Reformers of the church of Scotland answered that question. According to them, the legislation of the church is not to be left exclusively, or anything like exclusively, in the hands of the clergy. The clergy, indeed, are not to be excluded from the legislative council. That would have been preposterous. The ministers of a church have a particular interest in its legislation—are to be presumed to have an especial knowledge of the best way in which that should be conducted. But they are not to be presumed to have an exclusive interest in ecclesiastical legislation—an exclusive knowledge of what is best for the church. ​Many people have these things at heart, and are endowed with this knowledge, equally with the clergy. The Christian community at large must be allowed an extensive share in the legislature of the council which deals with ecclesiastical concerns. This, at least, is the doctrine of the Reformation; and it flowed at once from its leading maxim—which was, that all Christians are “the called of God,” and that all ministers, quà ministers, are merely “the called of man.”
Accordingly, we find that our first Scottish Reformers summoned all classes of people to take (they did not presume to give it them) a very extensive share in the legislation of spiritual affairs. The nobles, and a large proportion of inferior laymen, under the name of commissioners, deliberated and voted together with some clergy in our early General Assemblies. So far was this court from being an ecclesiastical council–meaning thereby a council composed of ministers—that at first the ministry were but a small fraction of its constituency. No doubt the General Assembly was designed, even in its earliest institution, to embody a considerable infusion of the clerical order. But we believe that any Reformed person of respectability and station in the kingdom might have taken his place, and given his vote there,—and been welcome. At any rate, we know that it was de facto an assembly consisting of persons drafted from all classes of the community. We know that its system, if not strictly representative, was laid down upon the most liberal scale. We know, in short, that it was a national and not an ecclesiastical board. We know, moreover, that it was the intention of our Reformers—the intention of the General Assembly itself—that it should continue to be a national, and that it should not be suffered to become an ecclesiastical institution.
As a proof of the unclerical character of the General Assembly in its original idea and constitution, and of the determination of its own members to keep it so, what can be more conclusive than the following extract from Calderwood's true history of the Church of Scotland?—
“This assembly,” (of 1574,) he writes, “appointed two ministers and two barons, and the commissioners of Edinburgh and St Johnston, (now Perth.) to present a supplication to the Regent and Lords of Privy Council and others of the estates convened ​with him, wherein they wish that his Grace and the Lords of Privy Council would authorise the present assembly, by their presence, or by others having commission in their names: and they give this reason,—For preservation of the holy Ministry and Kirk in purity, the Lord hath appointed Assemblies and Conventions, not only of the persons appointed to the ministry, but also of other members of the kirk; and the kirk of God hath continually used, and useth the same Assemblies, sanctioned by the word of God, and authorised by the presence of Christ. It was also known to his Grace that since the time God blessed this country with the light of his evangel, the kirk appointed, and by act of Parliament it was authorised that two godly Assemblies of the whole kirk of this realm should be holden every year, as well of other members of all estates as of the ministry—which assemblies have been, since the first ordinance, continually keeped in such sort that the most noble and highest Estate have joined themselves to these Assemblies as members of one body, voting, concurring, and authorising all things therein concluded.”
The Duke of Argyll has quoted portions of this important extract: we have quoted it entire. It may be true that the regent and the nobles still neglected to countenance the General Assembly by their presence to the extent which that body desired: but that is of no importance whatever. The document speaks for itself, and therefore we shall make no comments upon it: suffice it to say, that this quotation, from the writings of the man whom the church of Scotland acknowledges as its true historian, clearly indicates that the General Assembly was in itself, and in its own estimation, anything rather than a clerical council. The reader will not fail to note that the General Assembly is appointed to consist of “members of all estates,” in order that “the ministry” may be preserved “in purity.” We thus see that civilians were introduced in great abundance for the very purpose, inter alia, of watching and regulating the clergy. This does not look like putting power into the hands of the ministers.
The second “Book of Discipline” attempted indeed, in some respects, to alter the character of this assembly. It attempted ​to curtail, though not to destroy, its nationality by giving an undue ascendency to the clerical element. And, in so far, the second “Book of Discipline” stood in opposition to the intentions of our first Reformers, and in violation of the principles of the Reformation. In the marginal comments of the Privy Council on this document, as given in Spottiswood, we find it stipulated that, in the meetings of assembly, his Majesty's authority shall be “interponed.” The Privy Council agrees, moreover, that only fifteen noblemen, with his Majesty's commissioner, “shall have voice therein.” This change (if indeed it was ever carried into effect, of which there is no evidence) was certainly, to some extent, an innovation on the character of the assembly, and a departure from its principles, though not by any means to such a degree as to alter its constitution fundamentally. These fifteen nobles were to sit in the Assembly, not as elders, be it observed, but as the representatives of the highest estate in the realm. Thus the General Assembly remained essentially a lay or popular institution, in spite of the corruptions by which Andrew Melville sought to distort its fair proportions, and impair its liberal organisation. Dead John Knox kept his ground against living Andrew Melville.
Having made these remarks on the idea of the Reformation, and having touched upon the original constitution of our General Assembly, we are now prepared to probe the latter institution more profoundly, and to handle, with greater hardihood, the proposition that we laid down at the outset, and which forms, as we have said, the burden of the Duke of Argyll's Essay. Our statement was, that the General Assembly was a national, and not an ecclesiastical council. This conclusion is sufficiently established, we conceive, both by the principles of the Reformation, which we have endeavoured to expound, and more particularly by the extracts from Calderwood and Spottiswood, which we have adduced. But what was that national council? This is a new question where the Duke does not help us.
To get at the solution of this question, we must attend closely to the establishment of our General Assembly, viewed both by ​the light of theory and of history. At the commencement of the Scottish Reformation, when the question as to ecclesiastical legislation arose, two modes of settling it were open to the option of the public. We hold it to be a settled point that the church government was not to be placed in the hands of the clergy; but there were two other modes of disposing of it. One of these was to incorporate the clergy, or such proportion of them as might be thought expedient, together with certain representatives of the different congregations—to incorporate them with the already existing Parliament of the nation. Had this plan been adopted, then, when ecclesiastical affairs came under the consideration of the House, the House would have been an ecclesiastical assembly—just as the General Assembly may now, with propriety, be regarded as an ecclesiastical assembly, provided we give it that appellation on account of the matters treated of, and not on account of the persons who deliberate there. The Scottish Parliament would in these circumstances have been conveniently denominated a civil assembly when it deliberated on civil affairs, and an ecclesiastical assembly when it deliberated on ecclesiastical affairs. Its two denominations would have given rise to no confusion—the conflict of “civil and spiritual jurisdiction” could never have arisen. But this plan the clergy strenuously opposed. They resolutely refused to accept a place in Parliament, though the offer was repeatedly pressed upon them. And there were good grounds for their refusal. The affairs of commerce, and the affairs of agriculture, present no such striking points of discrepancy as to require separate boards of legislation. One and the same council may undertake both classes of affairs, and get through much other business besides. But Time and Eternity are grander categories than any other two under which human interests can be ranged. Here is the broadest and the deepest distinction which man's intellect can make—a distinction broader and deeper than he can comprehend. Here, if anywhere, is a distinction which may justify the setting up of two separate legislative councils; justify their setting up—not as a compliment to “ecclesiastical” men, vainly so called—but as a tribute to things in reference to which the word “ecclesiastical” is not an unmeaning sound. Out of respect, then, for the character of sacred things, well and wisely was it urged, that those men who ​legislated for the things of time had enough to do. Let not the same body, or at least let not exactly the same body, legislate for the things of eternity. Let some manifest difference be made between the national court when it takes in hand the concerns of man's temporal existence, and the national court when it takes in hand the concerns of his life everlasting.
This appeal was favourably responded to. It was decided that the ministers of religion should not be incorporated with Parliament, but that another plan should be adopted—that a new supreme national council should be established for deliberation on sacred affairs. And now, what happened? This happened. The one Scottish Parliament became, under the agitation of the Reformers, two Scottish Parliaments. And our General Assembly of the present day, however much it may have altered its character, is the second and junior of these Scottish Houses of Parliament. Surely our ministers will not complain that we have assigned to the body in which they rejoice an ignoble parentage!
This additional House of Parliament—which the General Assembly originally was, and which it still is in a constitutional point of view—was established on principles quite as liberal as those of its elder sister. The only difference was, that the clergy exercised a considerable influence on its proceedings, as was to be expected when we consider the special purpose for which it had been set on foot—namely, the separate treatment of ecclesiastical affairs. The administration of these affairs was already in the hands of the clergy; it would have been strange indeed had their opinions not been taken in regard to their legislation. Accordingly, the clerical order was largely represented in the General Assembly. But the various congregations were also largely represented. The nobles, too, had their place, and the sovereign was the visible head of the court, as he (or she) still is in the person of the Lord High Commissioner. In short, every historical circumstance connected with its early formation proves that the General Assembly of our church was nothing more and nothing less than what we have called it—an extra House of Parliament, a second supreme National Assembly, organised for the treatment of ecclesiastical topics. We shall see by-and-by that it would be more correct and philosophical to say that this ​second House of Parliament was only the first under a new face and somewhat different organisation.
A very little reflection may convince any one of the absurdity of assigning to our General Assembly any other origin than this. Was the General Assembly set on foot for the purpose of providing the Reformed ministry with a court exclusively their own, (or nearly so,) and of which they were to have the uncontrolled direction? The hypothesis is altogether untenable. This would have been to adopt and perpetuate the worst abuses of the church of Rome. The capital doctrine of the Reformation was, that the clergy were not the church. It is truly remarked by the Duke of Argyll, that it was from heresy as to what was the church, that, in the opinion of our early Reformers, “all other heresies had sprung.” This leading heresy, or mistake of the Romanists, consisted in their holding that the clergy were κατ̉ ἐξοχήν the church. To correct this heresy, the Reformers proclaimed that the church consisted of the whole body of Reformed Christian communicants. Is it reasonable, then, to suppose, that they would have adopted a line of conduct in direct contradiction to their own most emphatic declaration, as they would have done had they proposed to vest the legislature of the church in a quarter in which this whole body of believers was not most abundantly represented? To have committed the legislation of the church to the clergy, would have been tantamount to declaring that the clergy were properly and emphatically the church.
But consider further—on what title could the Reformed clergy have claimed or obtained a court exclusively their own, for the supreme legislation of the church? On the ground that they were the spiritual estate of the realm? They were not so. The only spiritual estate, the Catholic prelates—who possessed, indeed, a separate council, in subordination to the court of Rome; but which, at this time, we presume, was pretty nearly defunct,—this estate was fast dying out on the benches of the other parliament, and there has been no ecclesiastical estate in Scotland since its decease—just because the whole nation, at the time of the Reformation, became an ecclesiastical estate. Did, then, the Reformed clergy found their title upon the nature of the vocation to which they had been called? Alas! they held their office, as we have shown, by a merely human tenure. They wanted the ​prestige which might have attached to their name, had their introduction to the ministry been heralded forth as divine. Their constitutional status as the dischargers of a vocation which man alone had commissioned them to fulfil—this was far too narrow and insignificant a basis to have supported their extraordinary pretensions, had any such pretensions been set up. Most assuredly, the Reforming clergy never could have accomplished their end, had they put themselves forward, in an undue degree, as the representatives of the Christian commonwealth, in the assembly they were desirous of establishing. In point of fact, they never attempted to compass their end in that fashion. They meditated, and they achieved, a far grander aim. They took the whole believing community along with them, and, giving it a large representation in the legislature of ecclesiastical affairs, they actually succeeded in establishing the state in a capacity in which it had never before existed. Like an actor who plays two parts in the same piece, the state, under the management of the Reformers, and without ceasing to be the state, became the church—and its high court of Parliament, when it assumed this character, was the General Assembly.
No other theory than this will account for the extraordinary power which the General Assembly has wielded; for the extravagant pretensions which it has set up, (extravagant, we mean, upon any other hypothesis,) and for the toleration with which it was treated by Queen Mary, the regents, and James VI., not to speak of later times. Therefore it was that we applauded the Duke of Argyll's Essay as throwing light upon some of the darkest problems of our history. If the General Assembly had been merely a congregation of ministers met to deliberate for, and not with the nation, the historical anomalies we have adverted to would have been altogether incomprehensible. The national Parliament, had the General Assembly not been another national Parliament, would have swept them from the face of the earth in the twinkling of an eye. Just study the part they played in setting at defiance their national double in the days of Charles I. just consider how they bearded and overawed their elder brother. lion: just contemplate their efforts to force Presbyterianism on universal England, on the country of Laud then, and since of Dr Johnson just remember that they were within an ace of ​succeeding—had virtually succeeded—when grim Independency interposed. Oliver was their only match. Now, could these things have been, if this indomitable Assembly had been merely the organ of a faction—been merely the voice of the clerical order, and not the congregated thunders of the entire national will?
This theory entirely justifies (although by a reasoning very different from its own) the General Assembly in its late resolute opposition to the decrees of the Court of Session. No inferior tribunal, we hold, is in any degree competent to interfere with its proceedings, or to overrule its resolutions. It is amenable to no earthly power, any more than the other Parliament, which now-a-days holds its sittings in England, is amenable. It stands by birthright on a level with the highest court in the realm. Therefore we applaud most cordially the Free Church ministers for having stood out manfully in defence of their constitutional privileges. We are sorry that we cannot extend the same approbation to the grounds on which they defended their rights. These we must utterly condemn. The Free Church ministers set themselves up as the “church,” in opposition to the “state;” and, in taking this ground, they assumed the position of usurpers. If a king's son were to contend for his father's crown, in entire ignorance of his own birth, and resting his right upon other grounds, we should say that, notwithstanding his indubitable title, he was guilty of usurpation. This was precisely the romance of the Free Church ministers. They were themselves the state, and, as such, they had a right to supreme spiritual jurisdiction. But they did not know this,—and their ignorance led them to suppose that they held their authority in virtue of their clerical character. But to set up such a claim in a Reformed country is tantamount to a flagrant attempt at usurpation; and therefore we are of opinion that the Free Church ministers, resting their claims on the grounds they did, were very properly discomfited. They held out on the ground that they were an ecclesiastical court, superintending and representing ecclesiastical interests. They are nothing of the kind. The General Assembly is a civil court, founded on the national will, for the conduct of spiritual affairs. They are Parliament itself, discharging spiritual functions; and as such they are impregnable.
They are impregnable, at least, to all assaults, except those ​which may be directed against them from the other Parliament. This brings us to the question of conflict between civil and ecclesiastical jurisdiction, and our theory clears it. The difficulty in this case arises from the circumstance that the individuals who legislate in spiritual matters are not the same as those who legislate in temporal matters. This difficulty would have been obviated had the plan we formerly alluded to been adopted—that is to say, had the clergy been incorporated or represented in the one parliamentary council of the nation. But the advantages of the other system are so great that it is better to run the risk of a conflict between jurisdictions, which may not occur even once in a hundred years, than dispense with a separate legislature for spiritual affairs, consisting, in some degree at least, of different individuals, and conducted according to different forms. But when the jurisdictions do clash, what plan would we propose for their extrication? We have considered this subject very carefully, and under every possible aspect, and we are satisfied that there is only one mode of extrication. And it is this—that the two houses should meet on common ground, and there deliberate on the matter in dispute, and decide upon it by vote. We would revert, in short, to the plan by which all conflict of jurisdiction would have been originally prevented—we mean the incorporation of the members of Assembly with the members of Parliament. This, the only method by which all dispute about jurisdiction would have been prevented, is, in our opinion, the only method by which it can be constitutionally settled, when it does arise. The circumstance that different individuals sit in the two Houses is a mere accident of the constitution: the principle of the constitution is, that one and the same body sits in the General Assembly and in the House of Commons. But this accident is such as to prevent either House from enjoying a supreme ascendency when the question of jurisdiction occurs. Doubtless this accident is a slight deviation from the letter of the constitution. But the consequences of this deviation are not to be corrected by the House of Commons ignoring the General Assembly, or treating it as an inferior court: for the state must be presumed to have authorised the arrangement by which the supreme civil court for ecclesiastical affairs (i.e., itself, as the General Assembly) was permitted to consist of individuals different from those who ​constituted the supreme civil court for civil affairs (i.e. itself, as the House of Commons;) and therefore the state cannot, upon any constitutional principle, make either of these bodies bend down before the other. The only way of extricating the hitch is to depart from the accident, and revert, pro hác vice, to the principle of the constitution, and incorporate the two Houses for the decision of the question in dispute. We are as convinced as we are of our own existence, that this is the only constitutional procedure competent to the nation—provided our account of the origin of the General Assembly be correct. The probability, we believe the certainty, is, that the Free Church ministers would have been defeated, had the General Assembly met Parliament in a common council. But, as matters were actually conducted, we have no hesitation in declaring that these men (some of them, at least, we fear) now sit at chill firesides, because the state acted in an unconstitutional manner, when it decided their appeal upon other terms than those of a joint meeting. So that, if the General Assembly of 1842, and the preceding years, was wrong in setting itself up as the “church” in opposition to the “state,” Parliament was equally wrong in setting itself up as the superior tribunal.
The only serious or valid objection to the plan we have just proposed is the possible sinfulness, as it may be considered, of allowing a purely civil court to take any part in the decision of ecclesiastical questions; and we have little doubt, that many of the members of the General Assembly, who afterwards became Free Churchmen, would have resisted the incorporation of the two bodies upon that score. But this is an objection which is competent only to a Roman Catholic priesthood. In them it would be a sin to give effect to the plan which we have suggested. For their doctrine is, that, by the Divine enactment, a distinction has been made, not only between civil and spiritual affairs, but, moreover, between civil and spiritual men; and hence they must, consistently with their creed, regard the settlement of spiritual questions by civilians as an infraction of the Divine command. But the Protestant constitution recognises no such distinction, it finds no such distinction laid down in the Scriptures. It holds that each believer is at once both a civil and an ecclesiastical person, and that all Christians share these two capacities in equal ​proportions. Hence the House of Commons, being equally ecclesiastical with the General Assembly, and the General Assembly being equally civil with the House of Commons—the only distinction between them being in regard to the affairs which (for the despatch of business) they respectively take in hand and confine themselves to, hence, we say, it will follow that no objection on the score of sinfulness can be brought forward against the combination of the two bodies, should circumstances render such a union expedient.
But might not the check, which exists in the House of Lords, have had the effect of nullifying the proceedings of the General Assembly; and might not the conflict of jurisdiction have been thus constitutionally adjusted? Yes, provided that check had been applied in a constitutional manner. But this was not done. The enactments of the General Assembly came under the review of the House of Lords in its judicial capacity. But we hold that the House of Lords has no judicial function to discharge in reference to the proceedings of the General Assembly, any more than it has a judicial standing in reference to any proceedings competent to the House of Commons. The House of Lords possesses no judicial, but only a legislative check upon the House of Commons; but even this it does not possess in reference to the General Assembly, except in cases when the Acts of the Assembly come into conflict with the Acts of Parliament. We are of opinion that the House of Lords could then bring its legislative check to bear upon the Assembly; but not directly, not until the point at issue between the Lower House and the Assembly had been disposed of in a joint-council. For, suppose that the Veto Act had been brought directly from the Asemblys to the House of Lords to receive their sanction, and that the Lords had rejected it,—on what ground could they have done this? On the ground that it was at variance with a longstanding Act of Parliament, which had received the assent both of the Commons and the Lords? But that is purely a judicial ​ground; and this our argument does not allow them. But it will be said, that when the House of Lords refuses to legislate in the teeth of an Act of Parliament, surely it occupies not merely a judicial position. In ordinary circumstances this is true. For example, if the House of Peers were to refuse to legislate in the face of an enactment which had obtained the sanction of themselves and the Commons, but which the latter House now wished to have repealed, this, we conceive, would be parliamentary legislation; at least it would be the employment of the legislative check: it would not be parliamentary judgment in the proper sense of the word. But when the House of Peers pronounces a decision adverse to the claims of a body which is itself the state, (as we hold the General Assembly to be,) but which body was not consulted when the statute on which the Peers found their adverse decision was enacted; in this case, we hold that the decree of the House of Lords is purely a judicial, and is not in any respect a legislative measure. And, as such, we argue that it is not competent to them in reference to the claims of the General Assembly. If they are to deal with these claims at all, they must deal with them in their legislative capacity. But how are they to do this? Could they have argued that the Assembly's claims stood opposed to the wishes of the country generally, and on that account ought to be thrown out? But how could they know this before the opinion of the country had been taken, as expressed in the House of Commons and in the General Assembly—and not merely as expressed in these two bodies, but as expressed in a joint-meeting of these two bodies? The majority in Parliament refused even to entertain the question of the Veto Act: the majority in the Assembly carried it through. Which, then, of these two bodies could be taken as an index of the national feeling on this subject? Neither of them could be taken. The question required to be disposed of in a joint-council; and then there was some chance of a result being obtained on which the Peers might have relied as the expression of the popular sentiment. Had the Veto Act been thrown out in this joint-meeting, the Lords would not have been called upon to interfere. Had it been passed, they might then have rejected it by means of their legislative check. But we do not see how they could constitutionally reach it in any other way. If our ​theory of the General Assembly be correct, it unquestionably lay beyond their judicial grasp, and also beyond their legislative grasp, except under the condition of a union, for the decision of this particular dispute, between the Commons and the Assembly.
It will be obvious to all our readers that, in alluding to the Free Church controversy, our object is not to excite feelings but to extricate principles. The constitutional points of the case are all that we care about. The Veto Law may be regarded as an unjustifiable act, because it was an encroachment on the rights of property. Patronages were property—they could be bought and sold. The Veto Law depreciated their value. But the question we have to deal with is not the conduct of the Assembly, but solely its amenability. Had the conduct been a thousand times more unjustifiable than it was, so long as the Assembly was not amenable, it could not be constitutionally touched. But if there be any truth in the origin which we have assigned to this body; if it be true (and who can doubt it?) that it is our old Scottish Parliament existing under the phasis in which it transacted ecclesiastical business, it is obvious that it is responsible to no higher authority—that no authority higher than itself exists. Our Scottish Parliament is abolished quoad civilia; but it never was abolished quoad sacra. It still exists for the transaction of ecclesiastical business. Let the Parliament of England look to it.
When the General Assembly found that the British Parliament would not entertain their case, and that they had nothing to expect at the hands of government, the Free Church secession took place; the ministers gave up their livings without waiting to be turned out,—without waiting to see whether they could be turned out. We do regard this step as a most fatal blunder in a constitutional point of view. It was an admission that the state had a right to the temporalities of the Assembly, whenever that body passed and gave effect to enactments which the state ​disapproved of. But here the question of amenability recurs. If the General Assembly is not amenable—that is to say, if it is itself the state acting in a peculiar capacity—then it cannot forfeit, under any circumstances, its property to the state. It may be forcibly dispossessed, but it cannot forfeit, and therefore ought never to resign. In short, this step was an admission that the General Assembly was not the state. But if it be not the state, we at once abandon its defence.
Supposing the General Assembly, however, to be the state, what course would we have recommended it to pursue, when the Veto-voters had the ascendency? We are of opinion that they should have clung, at all hazards, to their temporalities, not from interested motives, but as the only course which could have given them a chance of ultimately obtaining for their great measure the sanction of the nation. No doubt refractory presbyteries, who continued to give effect to the Veto Act, would have been subjected to fines, imprisonments, and actions of damages. But, to say nothing of its being the duty of Christian teachers, to endure all kinds of persecution for conscience' sake, the General Assembly should have considered that these persecutions could not have been persisted in for any great length of time. The legislature, we are convinced, would ere long have afforded them relief, and the hands of the civil authority would have been stayed. When that happened, their triumph would have been complete; for we are of opinion that, however far the civil power might have carried its severity, it could not legally have gone the length of absolutely disendowing the ministers, so long as they refused pertinaciously, and under every aggravation, to part with their benefices. Had the General Assembly, and those over whom it exercised authority, acted in this way, it is more than probable that the ministers of the Free Church might at this day have been ministers of the Establishment, and the Veto Law in full operation.
In taking this view of the subject, and in chalking out this course of procedure, we have of course taken it for granted that the General Assembly was to be consistent with itself for a certain number of years, that it was to continue to uphold and give effect to the Veto Law with unrelaxing assiduity. But can this be taken for granted? No. The Free Church ministers could not ​count upon having a majority in favour of their great measure in the Assembly of 1843, or at least in the Assemblies of immediately subsequent years: and hence they abandoned the Establishment. This is the only ground on which common sense can defend, or even understand, their relinquishment of the temporalities. But it is a ground which convicts, even out of their own mouths, the Veto Law of being a precipitate and ill-advised measure; for what are we to think of an enactment which such a body as the General Assembly can carry in one year and be prepared to rescind in the next? So that the resignation of their livings was not only a fatal blunder, viewed constitutionally as an admission that they were not the state; it moreover communicated an ugly look to the intrinsic merits of their case.
Having alluded to the merits of the Free Church controversy, there is another important constitutional point connected with that subject which we shall take this opportunity of delivering our sentiments upon. The plea to which we allude is the argument advanced by the Free Church ministry, that the Patronage Act of Queen Anne was an infringement of the Act of Security passed at the Union—was in fact a violation of the British constitution as established by that treaty; and therefore, afforded no valid or legitimate ground of opposition to their own enactment of the Veto Law. Upon this plea, if we mistake not, the Free Churchmen rested nearly the whole strength of their case, and therefore we must conclude that it was effectually rebutted at the time by the opposite party. But as we can find no traces of this refutation in any of the pamphlets which, of late, we have had an opportunity of consulting, and as we do not remember to to have heard the true history of the Patronage Act narrated in any of the interminable pleadings which took place during the Free Church commotion, we shall now publish what appears to us to be the correct version of the story. But in the first place, let us give the Free Church version of the enormity perpetrated by the anti-constitutional (for so some people consider it) measure of Queen Anne.
In the year 1690, during the reign of William III., an act of the Scottish Parliament was passed, which took patronages out of the hands of the patrons who had hitherto possessed them, and bestowed them upon the heritors and elders of each particular ​parish. In the year 1707, the Act of Security was passed by the Scottish Parliament. This act, which was admitted to form an essential part of the Treaty of Union between the two kingdoms, enacted “that the true Protestant religion, as presently professed within this kingdom, with the worship, discipline, and government of this church, should be unalterably secured.” In the year 1711, a statute was passed by the British Parliament rescinding the act of 1690, and restoring the patronages to their original possessors! And this was done in the face of the Security Act and the Union Treaty of 1707! What an atrocious infraction of that treaty! What a perfidious violation of the established constitution of the two kingdoms! In 1690 the Scottish Parliament makes over patronages to the heritors and kirk-sessions. In 1707 it secures unalterably the government of the church of Scotland. By the Treaty of Union, England binds itself to preserve inviolate this arrangement. Patronages are to remain for ever in statu quo. But, lo! in 1711, the Parliament of the United Kingdom divests the heritors of their right of patronage, and restores it to its original holders. What can be more unconstitutional—more iniquitous than this? We must confess that when the story is told in this way, it does seem a very bad business. But, before we give in our adhesion to the Free Church party, let us consider whether the case does not admit of a somewhat different interpretation.
Three minutes investigation changes the aspect of the whole particulars of this story. It will naturally have occurred to the reader to inquire whether the patrons, who were deprived of their rights by the Act 1690, were to get no compensation. Yes; they were to get compensation. But they never got it. The heritors were ready enough to accept the property which the act bestowed upon them—but they “refused, or at least delayed,” to pay up the sum which the same Act took them bound to disburse as its equivalent. The heritors and liferenters were ordained “to pay the said patrons, betwixt this and Martinmas next, the sum of six hundred merks.” Be this compensation large or be it small, that is nothing to the purpose,—its smallness only aggravates the injustice of the heritors who neglected to pay it—for it was paid only in a very few instances, although the heritors were empowered by the statute to force the patron to accept it, and to ​give them a discharge in return. So that the patrons were not only deprived of their property by this Act of 1690, (that might have been quite proper and expedient,) but they never obtained the compensation which the same act provided as an atonement for the invasion of their rights. Through the dishonesty of the heritors, who refused to fulfil their part of the obligation, the patrons, who had been already deprived of their privileges, were still further defrauded of the sum which had been awarded to them by way of compensation. They lay out of their money from the year 1690 until the year 1711. In the latter year, the enactment was passed which restored to them the patronages. And on what grounds did this Act restore the patronages to those from whom they had been taken? Precisely on the ground which we have mentioned. Among other reasons, the Act specially declares that the patronages shall revert to their original owners, because they
“had not received payment or satisfaction for their right of patronage from the aforesaid heritors or liferenters of the respective parishes, nor have granted renunciation of their said right on that amount."
And in reference to those few cases in which the compensation had been paid, it deserves to be most particularly noticed, that this Act
"provides always that, in case any patron or patrons have accepted of and received any sum or sums of money from the heritors or liferenters of any parish, or from the magistrates or town-council of any borough in satisfaction of their right of presentation, and have discharged or renounced the same under their hand, that nothing herein (i. e. in this Act) shall be construed to restore such patron or patrons to their right of presentation.”
These circumstances being explained, will any one have the face to say that the Patronage Act of Queen Anne was an unjust measure,—that it was an infraction of the Treaty of Union, a violation of the British constitution? Was the Treaty of Union designed to confirm men in their dishonest practices? If it was not, then the Act of Queen Anne was a justifiable measure. Is the integrity of the British constitution compromised, so soon as it takes steps to improve the integrity of its citizens? If it is not, then the Act of Queen Anne was a constitutional and an equitable decree. Does the British constitution countenance bad faith between man and man, and encourage people to set at ​defiance the provisions of its own enactments? If it does not, then the Act of Queen Anne was not only a justifiable, a constitutional, and an equitable statute—it was an imperative duty upon the people of this country that it should be passed. Had it not been enacted, the injustice which it left uncorrected would have been a scandal to the nation.
In answer to these observations, it will perhaps be said that the courts of law were open to the patrons—that this was the quarter to which they should have appealed for address, and in which they should have pled for the compensation that had been awarded to them. It seems rather hard, however, that a man should be both stripped of his privileges by Act of parliament, and compelled to run the gauntlet of the Court of Session before he can obtain the compensation (such as it is) which the Act allows him as a partial indemnification for his losses. No; in the circumstances, the equitable, the suitable remedy—the remedy commensurate with the entire mischief—was that which was actually applied,—namely, a wholesale legislative enactment rescinding the previous statute, and not a retail system of judicial interlocutors.
We have dwelt on this subject at greater length than may perhaps seem necessary—because we suspect that some people, who might be supposed to know better, are rather in the dark as to the Acts of which we have been speaking. The Duke of Argyll himself, who has studied this question more than most people, is here quite out of his reckoning. He speaks of the Patronage Act of Queen Anne (for it is to this, we presume, that he refers in page 231 of his essay) as a statute “manifestly, undeniably, unconstitutional; because passed manifestly, undeniably, in violation of the Revolution Settlement.” We suspect that the Duke of Argyll has here referred inadvertently to the “Revolution Settlement,” instead of the Act of Security, or the Treaty of Union. But, be that as it may, we beg to ask his grace this simple question: Admitting that these statutes confirmed the heritors and kirk sessions in the perpetual right of presentation to church livings, are you of opinion that they were entitled for ever to enjoy this right, and yet for ever to resile from the fulfilment of the conditions under which they obtained it? We cannot think that an answer to our question will be returned in favour of the heritors' ​and kirk-sessions' perpetuity of right, in spite of their refusal to implement the obligation under which they were laid. And if such an answer cannot be returned to our question, the denunciation of the measure of Queen Anne, as an unconstitutional statute, must be held to pass away as idle as the autumnal wind.
One word more in reference to the Free Church Disruption, before we have done with it.
Do the Free Church ministers imagine that, when they abandoned their livings, they saved their independent spiritual jurisdiction, and carried it with them, like household gods from the sack of Troy? Alas, what trifling is here! The only question worth raising, worth fighting about, was whether supreme spiritual authority could be held by an Established church. There could be no doubt that it was compatible with the existence of a church not endowed by the state—compatible with it, that is, in so far as its own members were concerned. Yet this latter point was all that the Free Churchmen established by abandoning their livings. They established what no human being ever dreamt of calling in question—and this they call vindicating and preserving their supreme spiritual jurisdiction. Such a proceeding saved and vindicated absolutely nothing. The other point was worth trying; and if they had made out, as we think they might have done, that they were the state, they would undoubtedly have gained it. But they evaded it,—and how? By disfranchising themselves of their right of property—a proceeding which was just one step short of disfranchising themselves of their right of life. The clergyman who can admit that his property becomes forfeit when he obeys his conscience rather than the laws of the land, must be bound, by the same logic, to acknowledge that his life also would become forfeit, should the state demand it, and should he persist in obeying his conscience rather than the law. But what man would admit this? We would all admit that our lives might be taken; but certainly none of us would admit that they could be forfeited. Did our martyr Wishart—did English Cranmer, Ridley, and Latimer, acknowledge that they had forfeited their lives? No! Yet our Scottish martyrs of the Free Church admitted that they had forfeited their livings! Surely that was a blunder. But, in justice to these men, let us add, that whatever their errors may have been, ​constitutionally or otherwise, however little they may have established in regard to the real question of independent spiritual power, let us add this, that one thing they did establish—they established a fact which will secure to them for ever the respect of the Scottish nation; they proved that in giving, for conscience' sake, their temporal possessions to the winds, they were the genuine inheritors—bating much of its fanaticism—of the heroic virtues of the Covenant.
We are aware that there are statements in our Scottish Acts of Parliament, referring to the establishment and government of the Church, which appear to be irreconcilable with our theory of the General Assembly. We frequently find the Scottish Parliament ratifying and confirming the proceedings of the Assembly. It may be asked, what occasion was there for this, if the General Assembly was Parliament itself, sitting in a new capacity? Various reasons may be given why the younger sister should have courted the countenance and support of the elder; although, even in this respect, she cannot be accused of having ever been above measure obsequious. We must remember that the Parliament for civil affairs was the elder, the more deeply-rooted, and, consequently, the more authoritative establishment of the two. By priority of institution, though not by constitutional principle, the name of “state” appertained to it more particularly than to the other. The state, moreover, in its civil capacity, had held, time out of mind, the executive. This was a most important consideration. And, above all, we have to consider that neither of the two Parliaments understood even the alphabet of their own constitution. The General Assembly may have thought, and perhaps thinks still, that the state had given or could give it the privilege of supreme and independent legislation in spiritual affairs. But what a mistake! What an ignorance of the nature of constitutional power does such a supposition betray! In short, the philosophy of church and state was in those days very imperfectly understood; and therefore it is not wonderful that the General Assembly should sometimes have sought (even in the attitude of a somewhat inferior tribunal) the support of the more venerable institution—and that we should find in the Acts of our Parliament frequent notices of the encouragement (or disencouragement) which she received. To reach the true bearings of church and state, we ​must study them fully more in their theory than in their history: the former is the better light.
It may be thought that we have now nearly done; but in truth we are only beginning. We must start afresh, although only for a short run; for our theory of the General Assembly cannot be placed on an impregnable foundation, until the distinction between the Romanist and the Protestant theory of church and state be fully explained and understood. No intelligible views can be entertained in reference to the tenure by which that elusory abstraction, entitled “spiritual jurisdiction,” is held, so long as the nature of this distinction remains in doubt. Therefore we shall lay down, in the first place, the Romanist theory of church and state; and, in the second place, the Protestant theory of church and state: and then we shall see what will follow, in reference to the spiritual jurisdiction of the General Assembly.
Firstly. In the Romanist theory, church and state are two separate institutions, a distinct duality, not only in regard to the affairs which each administers, but also in regard to the persons who administer them. The principle which holds church and state everlastingly apart, is the doctrine of the apostolical succession. Admit this doctrine,—and the men who have received this succession, and the men who have not, fall asunder like a sea cloven by the breath of God. If the divine Head of the church were this day to lay his hand on a chosen child, and say “This is my apostle,” from that hour the man would be miraculously and spiritually select. He would bear a consecrated life: he would possess a title which no other living soul possesses. Now this is precisely the position in which the church of Rome maintains that her priests actually stand: for they contend (and with perfect logic, if there be an apostolical succession in their sense of the expression) that the mere length of the line can have no effect in weakening the validity, or in altering the character, of the original commission. In the theory of the Roman church, the Divine Founder of Christianity, and his priests of the present day, stand virtually in immediate contact with each other.
Hence the Romanists maintain that their ecclesiastical ​office-bearers, holding a divine commission, and acting by divine authority, may not be interfered with by the civil power in their management of the church. And if the state admits their doctrine of the apostolical succession, it must and will, upon principle, abstain from invading the supreme spiritual jurisdiction of the priesthood. The state cannot take away an authority which it never gave. It never gave the priests this authority. It admits that in admitting the doctrine of divine ordination. Therefore it cannot take it from them, unless, indeed, the authority be held to be mischievous; but here the state is stopped by its own admission—that it comes from God.
To plead against the Romanists the mere uncertainty of this transmission, is to plead what is very little to the purpose; although a distinguished writer in the Edinburgh Review, whose “contributions” have been lately published in a separate form, has argued, with great force and brilliancy, that there is no evidence that the line of the apostolical succession has come down to the present church of Rome (or England) unimpaired. Be it so: be the historical evidence as defective as it may, we submit that history is not the place in which that evidence must be looked for. It must be looked for in the Bible. If the believer in the Bible is satisfied that it was the clear intention of our Saviour to found an apostolical conveyance, he will also conclude that it has come down to us unbroken; for it is not to be supposed that the declared purposes of God can ever be contravened. This, then, is the question—Was it the Divine intention that an apostolical succession should exist? The unambiguous answer of the church of Rome is, that such was the Divine intention. And, upon the basis of this answer, church and state tower up two separate and independent citadels, ruled by separate and independent governors. The two jurisdictions, and the men who hold them, are parted by the Divine command.
Secondly. We proceed to consider the Protestant theory of church and state.
The equally plain and unambiguous answer of the Protestant church is, that it was not the Divine intention to found and continue an apostolical succession—except in this sense, that all Christian believers are truly the successors of the apostles. The abjuration of the apostolical succession, in the sense in which the ​Roman Catholics understood it—the declaration that it was not in this way that the Author of Christianity designed to continue the line of office-bearers in his church—the doctrine that the apostles, or their immediate followers, had not the power to impart the gifts or the authority which they had received—the doctrine, in short, that miracles had ceased—these, together with the doctrine we have just mentioned, that the whole believing community was to be regarded as the successors of the apostles—these positions left not to the Reformers a single peg whereon to hang a valid or intelligible distinction between church and state. The consequence was that these two instantly coalesced into one. From being a duality upon the Roman principle of a limited succession to the apostleship, they became a unit upon the Protestant principle of a universal succession to the apostleship. The Protestants gave a wide universality to this succession, a universality co-extensive with the population of the Christian world. And in doing so they broke down all and every distinction between church and state: they also put an end to all distinction between civil and spiritual jurisdiction, as appertaining to distinct orders of the community. That followed of course. If we are all equally successors of the apostles, and if we are all equally citizens of the state, how can any one class be set aside as having an especial ecclesiastical status, a peculiar title to legislate on sacred affairs, and another class be set aside as having an especial civil status, a peculiar title to legislate on profane affairs? These “invidious distinctions” Protestantism has thoroughly and for ever abolished.
But the office-bearers of religion? These men have no ecclesiastical standing in the Protestant constitution different from that of other citizens. They hold a human appointment, which other men do not hold. But that is inevitable. All men cannot be ministers any more than all men can be soldiers or advocates. To suppose that the affairs which these men are appointed to administer can give them any exclusive, or indeed any superior title to set themselves up as church-legislators—to suppose this is either to suppose that the duties they have to discharge can react constitutionally upon their position—a fallacy we have already pointed out ; or it is to suppose that they have received a peculiar ordination from God, and not merely a peculiar one from man—and that this gives them a paramount title to spiritual jurisdiction. ​But if this be believed, then we are living in a Roman Catholic, and not in a Protestant country, and are attending the ministrations of Roman Catholic, and not of Protestant preachers. This will scarcely be maintained. What confuses people here is, that their ministers have received a divine ordination—but then, so have we all, according to the Protestant theory; and therefore this title gives them no pre- eminence. What the minister holds, in addition to this, is a human appointment; and this, it is clear, can never give him a title superior to that of his fellow-men—to any species of legislation, either spiritual or temporal. The ministers of religion must be content with their share of spiritual legislation, and it may be proper and expedient that this share should be large; but they must always remember that it is accorded to them simply as Christian citizens, and not at all as office-bearers in the church—that is to say, it is accorded to them in virtue of their divine, and not of their human credentials.
It being understood, then, that the Romanist theory makes a distinction between church and state, and that the Protestant theory makes none, we are now in a position to return to the General Assembly, and to try its constitution by the conclusions we have reached. Has this body a supreme spiritual jurisdiction? Yes. We believe that even the Court of Session would admit that they possess this in all cases unmistakeably ecclesiastical. The question then arises: Whence did they obtain this supreme spiritual authority?
There are only three possible sources from whence this authority can have come to them: they may hold their supreme spiritual jurisdiction, either, 1st, from God—or, 2d, from the state—or, 3d, as the state. It may, perhaps, be not perfectly correct to call the latter alternative a source from which they may derive their power; but let that pass—our meaning is sufficiently obvious. Now, we undertake to prove that they cannot hold their authority either from God or from the state; whence it will follow that, if they hold it at all, they must hold it as the state.
I. In proof that the General Assembly cannot hold an exclusive spiritual supremacy from God.
If the Protestant theory of church and state be correct—that is to say, if there be no distinction at all between church and ​state—it is obviously impossible for a part of any Christian community to hold from God any authority which the rest of the Christian community does not equally possess. The Protestant theory is, that all believers are equally intrusted by God with powers of spiritual jurisdiction. How, then, can any portion of these believers lay claim to an exclusive or superior spiritual authority as theirs by divine right? Their own principles prevent them from advancing any such claim, except under cover of that masked battery which they call the “church.” It is the ambiguity of this single word which misleads people. Let us attend to it in its Romanist and in its Protestant acceptation. In the Roman Catholic acceptation, the word “church " means the clergy as distinguished from the laity—not that it excludes the laity; but it implies that the supreme rule in ecclesiastical affairs has been committed by God, not to them, but to the priests. And here the doctrine of the apostolical succession bears out the pretension. But in the Protestant acceptation, the word “church" means very nearly the reverse of this; it means the laity as distinguished from the clergy—not that it excludes the clergy—but it implies that the supreme rule in ecclesiastical affairs has been committed by God, not to them, but to the laity. As qualifying these explanations, however, it must be borne in mind that, whereas the Roman Catholic “church’” excludes the laity from any share in spiritual dominion—the Protestant “church’” admits the clergy to their own share of ecclesiastical power. This it does on the ground that the clergy are believing Christians, fully as much as their lay-brethren. They may be a great deal more so; but the constitution cannot recognise that pre-eminence. It will operate, however, in another way. It will give a tenfold weight to their personal influence on ecclesiastical proceedings; and thus it will attain its end in the only way in which it ought to attain it—in the only way in which it can attain it without being guilty of usurpation. It is worse than vain and contradictory—it is a flagrant act of usurpation—when a Reformed ministry pretend that they in particular hold a spiritual jurisdiction by Divine right, when the main principle of the great Reformation, to which they owe their position, is, that the whole believing community, to which they belong, holds a spiritual jurisdiction by Divine right.
​ The remarks which we have made in reference to the Protestant clergy in general, apply, of course, to our General Assembly, in so far as it rests its pretensions on its clerical character. As a clerical community, it has by Divine right no sphere of supreme spiritual jurisdiction: it does not hold from God any authority which the whole believing nation does not equally hold from God.
II. In proof that the General Assembly cannot hold an exclusive spiritual supremacy from the state.
Is it possible that the General Assembly can have derived its supreme ecclesiastical power from the state? Can the state have given this authority to the Assembly No; that is not possible. Why not? Is it that the state has not got this authority, and therefore cannot impart it? No—but for precisely the opposite reason. The state has got this authority, and therefore cannot impart it to the Assembly; for it has got this authority to keep, and not to give away. There are few things which the state cannot do. There is, indeed, only one thing which it cannot do, What is that? It cannot decline being the supreme legislative power. It cannot waive its own supremacy: it can do anything but that. It cannot make a complete surrender of any authority which it possesses. It cannot, however much it might wish it, set up, as separate from itself, any supreme and irresponsible court, either for civil or ecclesiastical legislation. It cannot in any respect cease to be absolute. In Roman Catholic countries the state never possessed supreme authority in spiritual matters; therefore, in such countries, a supreme ecclesiastical tribunal may exist, co-ordinate with the civil authority. Independent spiritual is there compatible with independent civil jurisdiction. But, in Protestant countries, the Reformation placed spiritual jurisdiction in the hands of the nation, i.e., state; and, therefore, it has been impossible for the state, since that time, to part with spiritual jurisdiction. The reason of this is, that the essential idea of the state is, that it shall be supreme in all things that belong to the state. If it ceases to be this, it ceases to be the state: the constitution is at an end. But if the state gives out of its own hands any one department of Supreme power that belongs to it, it ceases to be supreme in all things. Therefore, if the state consigns the supreme spiritual authority, which it ​obtained at the time of the Reformation, into any other keeping than its own—it abdicates—it is no longer the state. But the British state has not abdicated: it still exists; therefore it has not surrendered the supreme power in ecclesiastical affairs to anybody different from itself. But if it has not done this, the General Assembly has not, and cannot have, derived its supreme spiritual dominion from the state—supposing that it possesses any such dominion.
III.—Conclusion that the General Assembly may hold and does hold its exclusive spiritual supremacy (in Scotland) as the State.
But although the General Assembly cannot by any possibility derive its supreme spiritual authority from the state, it may nevertheless possess it as the state. Indeed, it is impossible for it to possess this authority upon any other footing. Every other basis for the authority in question gives way. There is a general impression that the Assembly's claim to this authority is not without foundation. Lawyers, we believe, admit that the claim is legitimate in some sense or another. But Protestant principles forbid that it should have accrued by Divine right to the Assembly as a clerical community. The philosophy of the constitution forbids that it should have been conferred on the Assembly by the state. In what other conceivable capacity, then, can the Assembly possess this spiritual supremacy except as being itself the state? But the whole of our argument, founded both on the theory and the history of its constitution, has been designed to prove that this actually is the capacity in which our General Assembly holds its supreme ecclesiastical dominion. However much it may have altered its character and complexion—however much the force of time and of circumstances may have perverted its original constitution—however much its pedigree may be defaced and obscured—this Assembly is the eidolon at least, if not the veritable body of our old Scottish Parliament, deliberating on the affairs of the church. That is our opinion. We have given our reasons for taking such a view of this important subject; and so we leave it, commending the Duke of Argyll's Essay to all who are interested in profound constitutional inquiries.
* ↑ Calderwood, p. 65
* ↑ Spottiswood. History of the Church of Scotland, p. 294.
* ↑ It will follow from our argument, as a necessary corollary, that the admission of Jews or Mahommedans to a place in Parliament is a violation of the principles of our Protestant constitution, as extreme as it is possible to conceive. This conclusion flows so obviously from the general tenor of our observations that it is unnecessary to enlarge upon it in detail.
* ↑ It might perhaps be argued that the General Assembly was exempt even from the legislative control of the House of Lords, and was, in fact, its own House of Lords, inasmuch as the Scottish nobles, by the terms of its original constitution, had a seat within its walls, and inasmuch as there was no separate chamber of Scottish peers when it was established. But to press this argument would, we think, be refining too far upon the existing British constitution.
This work was published before January 1, 1929, and is in the public domain worldwide because the author died at least 100 years ago.
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