The James Begg Society

The James Begg Society

Publishers of Protestant, Reformed Christian Literature

Memoirs of Rev James Begg, D.D., by Rev. Thomas Smith, D.D.

CHAPTER XIX.

CHURCH CONTROVERSIES.

T HE controversy within the Church itself, and that between the Church and the Government, were by this time being carried on with a determination which clearly indicated that they must be fought out "to the bitter end." It has been stated already that a declaratory Act against intrusion, and a legislative Act allowing a veto, without reasons assigned, to a majority of the communicants, or a veto to a minority of them on reasons which could be substantiated to the satisfaction of the Presbytery, were passed as an interim Act in 1834, and became a standing law of the Church in 1835. It is very noteworthy that the ecclesiastics who opposed the passing of this Act did not in their reasons of dissent impugn the power of the Assembly to pass it. They treated it not as an assumption of power which did not pertain to the Church, but as an injudicious use of the power of which they admitted the Church's possession, both de facto and de jure. A leading member of the Scottish bar, who afterwards was professionally employed in the lawsuits which arose out of the legislation, did indeed dissent, on the ground that the Act of Assembly might be held to be incompetent to the extent that a presentee rejected under it might still have a claim to the stipend. But no one denied the competence of the Assembly to prescribe the qualifications without which presentees might not be inducted, or its competence to prescribe that the assent of the people should be one of these indispensable qualifications.

But in the course of 1834, while the veto law was still only an interim Act, the "Auchterarder case" was instituted, a cause celebre which has strangely modified the history of our country. The Earl of Kinnoull presented Mr. Robert Young to the vacant church of Auchterarder. The call was signed by two persons entitled to sign it, and was objected to by substantially the whole of those entitled to object - the male heads of families in full communion with the Church. The Presbytery, of course, rejected the presentee. Appeals regarding some points of procedure were taken to the Synod of Perth and Stirling, and thence to the General Assembly. The Assembly dismissed the appeals, and ordered the Presbytery to proceed according to the laws of the Church. The Presbytery accordingly found that in accordance with these laws Mr. Young could not be inducted. This finding was also appealed to the Synod, but the appeal was fallen from, as before the meeting of the Synod the presentee had resolved to have recourse to the civil court.

Mr. Charles Hope, who, in his capacity of elder and member of Assembly, had dissented from the passing of the veto law, was retained as leading counsel for the presentee. 56 Mr. Hope at first framed his plea in accordance with his own reasons of dissent, claiming compensation for Mr. Young for the loss of the benefice, and solatium for the damage to his feelings and character by the action of the Presbytery. This was a perfectly legitimate plea, as the Church has always acknowledged the right of every man who conceives that he has been wronged, by whomsoever, to seek redress at the hand of the civil court. The Presbytery would, of course, have pleaded that Mr. Young had sustained no wrong, because he had no right to the benefice apart from his ordination, and that he had no right to claim ordination at their hands save on conditions which had not been fulfilled. If this plea had not been sustained by the civil courts the Church would certainly have been in an awkward position, as a precedent would have been constituted, in virtue of which any amount of the endowments of the Church might have been alienated from the support of the ministry. Still the spiritual independence of the Church would have been intact, and the cases would probably not have been numerous of rejected presentees braving public opinion by claiming the stipend of the ministry while they were prohibited from performing the functions of the ministry.

[Footnote 56: Nominally the patron and the presentee; but it was understood at the time that Lord Kinnoull merely lent his name, and that Mr. Young was really the only plaintiff. - T. S.]

But before the case actually came before the Court of Session Mr. Hope changed his ground, and claimed that the court should declare that the Presbytery were bound to proceed to the examination of the presentee, and to his induction, without reference to the call or the veto of the people, if he should be found otherwise qualified. The historian of the "Ten Years' Conflict" shows admirably how this shifting of the ground tended to complicate the case. At one point the pleading was relevant enough - whether sufficient or not - for the maintenance of the plea originally instituted, and it was carefully concealed that that plea was non-existent. The actual plea asked for a different conclusion altogether. The only relevant contentions betwixt the Dean of Faculty Hope for the patron and presentee, and the Solicitor-General Rutherford for the Presbytery, were these two - Had the Assembly, or had it not, the right to pass the veto law? and on the supposition that it had not that right, had the Court of Session the right to correct its error? Mr. Rutherford answered the former question affirmatively, and the latter negatively, and supported his answers with consummate ability. But the court, by a majority of eight judges to five, decided against the Presbytery, and in favour of Mr. Young. This decision was given on the 8th March 1838.

Having thus got judgment in his favour, Mr. Young presented himself to the Presbytery, demanding that they should proceed with the steps in order to his induction, in terms of the judgment of the Court of Session, and in opposition to the Act of Assembly, which that judgment virtually declared to be incompetent and illegal. The Presbytery very naturally shrank from a responsibility of unprecedented magnitude, and resolved to send up the whole case, by "reference," to the Synod. Thereupon Mr. Young tendered a notarial protest, intimating that he held the Presbytery and its individual members liable to him in damages for such loss as might accrue to him for their delaying to implement the judgment of the Court of Session. The Assembly of 1838 resolved to appeal to the House of Lords against this judgment, "first giving forth such a declaration of its own views and intentions in regard to the great cardinal principles which had been brought into dispute as would prevent any subsequent misconstruction of the Church's conduct. It had become altogether indispensable that there should be no pretence left at any after period for insinuating that she had put herself into the hands of the courts of law, and then refused to abide by their sentence when it was found to have gone against her." 57

[Footnote 57: "Ten Years' Conflict," vol. i. p. 470.]

In point of fact, such insinuations were made at after periods, and are occasionally made still. I must therefore, in a sentence or two, point out that in point of fact the Church never "put herself into the hands of the courts of law." She was not plaintiff, but defendant. The courts of law had laid violent hands upon her. The judgment of the Court of Session was not final unless it was confirmed by the House of Lords. It was essential that she must have a final judgment, in order to enable her to decide what her future course of action should be. The very fact that she did not mean to obtemper the judgment of the inferior court made it imperative on her to have that judgment either affirmed or reversed by the supreme court.

The judgment of the House of Lords was given by Lords Brougham and Cottenham on the 2nd of May 1839, confirming that of the Court of Session. This is not the place to criticise the speeches of the noble, and learned lords. This has been admirably done by the late Dr. Buchanan in the "Ten Years' Conflict." It is difficult to conceive how, even without that trenchant criticism, any one can read these speeches without perceiving that the principle on which they proceed is sufficient to justify every act of aggression and persecution that has ever been perpetrated, and to require that a Christian man living in a heathen state should renounce his Christianity at the bidding of the civil ruler. It is Caesarism of the most unmitigated kind.

In the Assembly which met three weeks after was one of the greatest debates ever conducted in any Church court. Three motions were made - by Dr. Chalmers, Dr. Cook, and Dr. Muir respectively. It was said at the time that Dr. Chalmers had never before made so magnificent a speech. Dr. Candlish appeared for the first time as an Assembly speaker, and at once was acknowledged as the destined leader of the Church in a future which could not be far distant, when Dr. Chalmers should cease from his noble labours. The motion of Dr. Chalmers was as follows: -

"The General Assembly, having heard the report of the Procurator on the Auchterarder case, and considered the judgment of the House of Lords affirming the decision of the Court of Session, and being satisfied that, by the said judgment, all questions of civil right, so far as the Presbytery of Auchterarder is concerned, are substantially decided, do now, in conformity with the uniform practice of this Church, and with the resolution of last General Assembly ever to give and inculcate implicit obedience to the decisions of civil courts in regard to the civil rights and emoluments secured by law to the Church, instruct the said Presbytery to offer no further resistance to the claims of Mr. Young or of the patron, to the emoluments of the benefice of Auchterarder, and to refrain from claiming the jus devolutum, or any other civil right or privilege connected with the said benefice.

"And whereas the principle of non-intrusion is one coeval with the Reformed Kirk of Scotland, and forms an integral part of its constitution, embodied in its standards and declared in various Acts of Assembly, the General Assembly resolve that this principle cannot be abandoned, and that no presentee shall be forced upon any parish contrary to the will of the congregation.

"And whereas, by the decision above referred to, it appears that where this principle is carried into effect in any parish, the legal provision for the sustentation of the ministry in that parish may be thereby suspended, the General Assembly being deeply impressed with the unhappy consequences which must arise from any collision between the civil and ecclesiastical authorities, and holding it to be their duty to use every means in their power, not involving any dereliction of the principles and fundamental laws of their constitution, to prevent such unfortunate results, do therefore appoint a committee for the purpose of considering in what way the privileges of the National Establishment and the harmony between Church and State may remain unimpaired with instructions to confer with the Government of the country if they see cause."

The motion of Dr. Chalmers was carried against that of Dr. Muir by a majority of 36 - (197 to 161), and against that of Dr. Cook by a majority of 49 - (204 to 155). It is not without interest to note that six more voted for Dr. Muir's motion than for Dr. Cook's, indicating that some who could not go fully with Dr. Chalmers, could as little stop short with Dr Cook.

While the Assembly, by adopting this resolution, consented to the severance of the stipend from the ministerial function in this particular case, it was manifest that the Establishment could not long subsist under the operation of a law which, as now interpreted by the highest legal authority, would gradually alienate the endowments from those whom the Church held to be entitled to them. But the judgment of the Court of Session, now confirmed by the House of Lords, went much further than even thus far. It had not, indeed, ordered the Presbytery of Auchterarder to proceed to the ordination of Mr. Young, but it had declared that they were bound to do so.

It is true that in all these proceedings Dr. Begg had no direct part, but it seemed necessary to give an account of the state of matters when he came to Liberton, professedly on the ground that there he would occupy a more favourable position than in Paisley for taking an active part in the conduct of ecclesiastical affairs. It is not necessary, however, to trace the course of these affairs further at present, or to make special reference to them, except in connection with Dr. Begg's action from time to time. It may be said generally that the subsequent legal proceedings - the second Auchterarder case, the Stewarton case, the Lethendy case, and the Marnoch case - were legitimate and necessary corollaries from the principles laid down as the basis of the judgment in the first Auchterarder case. When I include the Marnoch case in the list, I refer only to what I may call its civil side. In the other cases the dispute was between interested parties on the one side and the Church on the other. But in the Marnoch case the gauntlet was thrown down to the Church by her own sons. Her authority was defied, and her most sacred ordinances desecrated, by those who had in the most solemn manner vowed allegiance to her; and the action of these rebellious and unnatural children was probably prompted, certainly vindicated, by a minority indeed, but a numerous and influential minority, of the members of her supreme court. The scene at the so-called ordination of Mr. Edwards at Marnoch is one of the most interesting, and on its one side one of the grandest, ever enacted in our national history. I shall have occasion to notice this case further on.

The attempts to mend matters by legislation eventually failed. When the committee appointed by the Assembly of 1839 sent a deputation to the Government, they found them subsisting only by the forbearance of their political opponents. It was not to be expected that in these circumstances they should enter on so great and difficult a task. And there is no reason to believe that a Government whose Lord Chancellors were successively Lords Brougham and Cottenham would in any circumstances have promoted legislation which would have been satisfactory to the Church. Lord Melbourne had recourse to his usual tactics of doing nothing, or letting well alone. Lord John Russell was more energetic and more reasonable. "He admitted that the intervention of the Legislature had become indispensable - that things could not go on as they were, and he engaged to give, on the part of the Cabinet, a definite answer as to the intentions of Government by the middle of March. His lordship further expressed his hope that they would be able by that time to propose a satisfactory measure, and authorised this statement to be communicated to the Assembly's committee." 58 The middle of March came and went; and it was only after repeated applications that on the 26th of March Lord John made the following statement, verbally, to the deputation. "They thought," his lordship said, "that they could frame a measure fitted to serve the object the Church had in view, and which ought to be satisfactory; but he did not see any reasonable prospect of their being able to carry it through the Legislature. There was so much division on the subject in the Church itself in the country, and in Parliament, that they despaired of being able to obtain at present the necessary support for such a measure as they would be disposed to introduce. By and by, perhaps, there might come to exist a greater unanimity on the subject, and then it might be in their power to effect what could not be attempted now." 59

[Footnote 58: "Ten Years' Conflict," vol. ii. pp. 154, 155.]

[Footnote 59: Ibid. pp. 159, 160.]

The Government having thus declined to interfere, there ensued a great deal of negotiation, of misunderstandings, and explanations between the Earl of Aberdeen and the committee. It is evident that the earl, as a Scotchman, had a much clearer perception than Lord Melbourne or Lord John Russell had, of the gravity of the crisis, the substantial reasonableness of the claims of the Church, and their accordance with the laws of the country, rightly interpreted. His party also had a clear majority in the House of Lords, while parties were pretty equally balanced in the Commons. Thus it happened that he, although in opposition, might move in the matter with greater hope of success than the Government could have done. That he had a sincere and earnest desire to succeed seems to be beyond question. Yet there does seem to have been a great deal of vacillation in his proposals and actions, probably to be accounted for by the supposition that he himself was in favour of a measure such as the Church would have welcomed, but that he found from time to time that he could not carry along with him those without whose support he could not carry any measure. Lord Aberdeen's bill was introduced into the House of Lords on the 5th of May 1840. It may be described in brief as proposing to give legal sanction to a presbyterial veto, as distinguished from a congregational. The congregation were to dissent with reasons assigned, and the Presbytery were to decide upon the whole merits of the case, and the circumstances of the parish, these reasons being of course an important element for their consideration. Without entering into any detailed consideration of the merits and demerits of Lord Aberdeen's bill, I may say that it appears to me that the refusal of the General Assembly to accept it is highly creditable to the majority of that Assembly. In the first place, it gave promise of a settlement which would probably have wrought smoothly enough for a considerable length of time. Then it proposed to give to the Church all that the Church claimed, the right to subject to conditions the claims of presentees to ordination and induction. But then it proposed to misplace its gift, bestowing upon the Church courts what belonged of right to the people. Had the leaders of the Non-Intrusion party been the ambitious ecclesiastics that some have represented them as having been, it is scarcely conceivable that they should have received Lord Aberdeen's bill otherwise than jubilantly. It gave them a victory over those who had shown their disposition to harass them by ceaseless litigation; it put a power - into their hands, as ecclesiastics, which they had never claimed. But then the concession made to ecclesiastics was at the expense of the Christian people of the land - it was to their honour that they would have none of it.

The bill of Lord Aberdeen was considered by the General Assembly on the 27th and 28th of May 1840. The debate was one of the most notable that ever took place in the Assembly. It was not a mere battle of skirmishing. It was a critical action in the course of a great war. All the leading members of the Assembly appear to have taken part in the debate, which was opened by Dr. Chalmers in a three hours' speech. Dr. Begg was a member of this Assembly. The part which he took in this momentous debate is summarised as follows in Dr. Buchanan's "Ten Years' Conflict:" -

"The Rev. Mr. Begg of Liberton, in a singularly effective speech, reminded the Assembly of the consequences to which they must make up their minds in the event of their accepting this bill - they must be prepared to intrude ministers against reclaiming congregations, and that, if need were, at the point of the bayonet. Not, of course, that even their Moderate friends would do this wantonly and gratuitously. He read an extract from Dr. Cook's evidence before the Patronage Committee of the House of Commons, with reference to the parish of Shotts, in which he (Dr. Cook) stated that he would not have recourse to the assistance of the military if he could help it. Even Principal Robertson would have gone as far as that admission, for he probably was not an amateur of dragoons. But then the thing must be done if that bill was to be made law. It had been done before when there was no civil compulsion in the case; and it would become a matter, not of simple choice, but of stern necessity under the Act of Lord Aberdeen. 60 The rev. gentleman then referred, in illustration, to the case of Jedburgh, in which all the parishioners, except five, were in arms against Mr. Douglas, the presentee, in consequence of whose settlement 2000 left the church in one day; to the case of Biggar, in which it was objected, and admitted by the Presbytery, that the voice of the presentee could not be heard in the church, notwithstanding which he was settled; and to the case of Kirkcudbright, in which the presentee was stone blind. In this last ease it was very amusing to see the extent of clerical ingenuity; for it had been specifically stated by the court who sustained the presentation of the blind man, that the objection to his want of sight would have been all very well in Popish times, when there were so many hocus pocus ceremonies that it was impossible such a presentee could see how to perform them; but that now the objection was totally inapplicable and irrelevant where the Gospel was administered in all its simplicity. He had brought forward these instances for the sake of those on the other side of the house, and in the expectation that they would be brought to look upon and contemplate them in the same way as the wanderers referred to by the Rev. Dr. Macleod were brought to view the bones of the Macdonalds." 61

[Footnote 60: That is, if I understand it, that a ease might have occurred in which a Presbytery could not take the responsibility of declaring that the reasons assigned by the people were valid for the rejection of a presentee. In that ease they would have been not only entitled, but bound, to proceed with his admission, and so to have recourse to all the means at their disposal for accomplishing that admission, including even the employment of military force. It would have been said, of course, that that force was not used for effecting the settlement, but only for opposing unlawful resistance. But then, if non-intrusion were the right of the people, resistance to intrusion would not be wrong, and ought not to be unlawful. - T. S.]

[Footnote 61: The allusion is to the following passage in Dr. Macleod's speech:- "Suppose, for instance, if I, Norman Macleod, was presented to the parish of Eigg, inhabited by the clan Macdonald, an island in which, among its other curiosities, is shown a cave in which are still to be found the dry bones of the clan Macdonald, cruelly massacred long since by the Macleods; and that an objection was raised against my presentation simply on the ground that I was a Macleod, I would consider myself entitled to protection from a sentence on such causeless prejudice as this." The obvious answer to such an argument as this is that even such prejudices might very possibly have been an insuperable obstacle to the forming of a right pastoral relation between a Macleod and a congregation of Macdonalds. - T. S.]

From so brief a summary it is difficult to perceive precisely what was the point of the speech. I take it to have been this. In all these cases the Presbytery decided regarding reasons assigned by the people, and decided wrongly; in the first case settling a man whose settlement drove the parish into dissent; in the second case, one who could not preach so as to be heard in the church; and in the third case, one whose blindness must have lessened his usefulness. The conclusion, as I understand it, is, that the Presbytery is not a safe court to which to commit a practically discretionary power, as would have been done by Lord Aberdeen's measure. The bill was condemned by a majority of 87 - (221 to 134). The Earl still proceeded with his bill in the House of Lords.

On the 16th of June the second reading was carried by a majority of 47 - (74 to 27), against a motion for its rejection by the Marquis of Breadalbane. But on the 10th of July, Lord Aberdeen stated that "he had come to the conclusion, although very reluctantly, that it would not be expedient for him to press the third reading of the bill during the present session."

The Marnoch case, which had broadened into the Strathbogie case, also came up to this Assembly of 1840, and Dr. Begg took a somewhat prominent part in its discussion. For the sake of connection, I must give some account - but it shall be a brief one - of this case, in some respects the most important, at once from the nature of the issues involved, and from its bearing upon subsequent events, that have occurred in our times.

In 1837 a vacancy occurred in the parish of Marnoch, in the Presbytery of Strathbogie. Mr. John Edwards, who had at one time officiated as assistant to the former minister, and with so little acceptance that his employer, though a Moderate of the purest type, had removed him from that office, was now presented by the trustees of the Earl of Fife to the vacant charge. The presentation was of course sustained, and the day came for the moderation in the call. The call was signed by one parishioner, and three out of thirteen heritors, while 261 out of about 300 male heads of families in full communion dissented. The case came up to the Assembly of 1838, which ordered the Presbytery to reject the presentee, and he was rejected accordingly. He carried his case to the Court of Session, and obtained a judgment holding the Presbytery bound to proceed with the steps towards his admission. A majority of the Presbytery agreed to obtemper this judgment. The Commission of Assembly, at its ordinary meeting in November, enjoined them to desist from their purpose, and ordered them to appear, personally or by procurator, before a special meeting of the Commission, which was appointed to be held on the 11th December for further consideration of the whole case. This injunction was adopted unanimously. "The conduct of the Presbytery did not find in the Commission even one solitary defender." On the day appointed the parties appeared at the bar by advocates. After pleadings at the bar, and after an offer virtually made to the seven ministers that they should be most leniently dealt with if they would now express regret for their past acting - which offer they declined to accept - the judgment of the Commission was moved by Dr. Candlish in a speech equally remarkable for moderation and for power. The judgment, after a long preamble, concluded thus:- "The Commission therefore did, and hereby do, suspend the said seven ministers from the office and function of the holy ministry, aye and until they shall be reported by the General Assembly, or otherwise as after-mentioned; prohibiting and discharging them from the exercise of any of their functions till reported, as aforesaid; and declaring all acts, ministerial and judicial, performed or attempted to be performed by them, or any of them, from and after the date hereof, and until reported, to be void and null; reserving to the Commission at their stated meeting in March, and also to the unsuspended ministers of the said Presbytery, in Presbytery assembled, to repone any of the parties suspended as above who may appear personally and subscribe an assurance that they will submit themselves to the judicatories of the Church in this and in all other matters, but not otherwise."

A few days afterwards the seven suspended ministers met in what they still held to be a Presbytery, and resolved to disown the authority of the Commission, and to apply to the Court of Session to set aside its finding. Their application to the court was simply monstrous. Even that court was not prepared to accede to their demands. But it did grant an interdict, prohibiting the minority of the Presbytery, and all others, from using the church, churchyard, or school-house, in executing the sentence which the Commission had pronounced. This action of the Court of Session was not right, but the court had a right to take it. It was within their competency to consider and to declare who had, and who had not, right of entrance into the churches, schools, and churchyards of Scotland. That was a civil question which they were entitled to consider. In the consideration of it they were not infallible; but they were not only entitled, but bound, on application made to them, to consider it. Accordingly no violation of the interdict occurred. Those appointed to intimate the sentence of the Commission discharged the duty elsewhere than in the interdicted places, and preached the Gospel as it probably had never been preached in Strathbogie before.

This was very galling to the seven. They therefore applied afresh to the court, and obtained a much more extensive interdiction. The Commission which had suspended the seven ministers had of course taken measures, as they were bound to do, for the supply of ordinances in the parishes thus rendered practically vacant. This second interdict prohibited the entrance of the men appointed for this purpose into the parishes. This was absolute persecution. The interdict could not be obeyed. Public opinion pronounced that the court had gone too far. And so the interdict was served on several ministers each week. In every case it was treated with contempt, and no attempt was made to impose penalties for its breach. Dr. Begg was one of the interdicted ministers. It was to him and to all his brethren a matter of intense suffering to be obliged to occupy a position of antagonism to the supreme civil court of the country; but in his case the suffering was considerably mitigated by the power which, more than many others, he possessed of apprehending the ludicrous aspect of the matter. Many a time in after years it afforded him great amusement. Further on I shall give his own account of his visit on this occasion to the Strathbogie district.

I must not follow the details of this sad case, but only note the prominent facts of its progress, referring the reader to the clear and admirable account of it in the "Ten Years' Conflict." The General Assembly of 1840 approved of the action of the Commission in suspending the seven ministers, and after appointing a committee to confer with them and receiving its report, agreed "that the sentence of suspension be continued; that they be cited personally to appear before the Commission in August; and if they then continue contumacious, and refuse submission to the Church courts, that they be served with a libel for that contumacy, and that the Commission shall proceed until the case be ripe for the next General Assembly." Mr. Edwards next raised a friendly process against the Presbytery of Strathbogie, craving that the Court of Session should order the Presbytery to admit and receive him as minister of Marnoch, and claiming damages of £10,000 in the event of their refusing. This was, of course, a stroke of policy on the part of the suspended seven, being designed to furnish them with the plea that in defying the Church courts, to which they had vowed subjection, they were only obeying a positive order of the supreme civil court.

I cannot imagine that any Scotchman, be his ecclesiastical position what it may, can fail to regard the day on which the court lent itself to the furtherance of this ignoble design as one of the most humiliating in his country's history. On the 21st of January 1841 the pretended ordination of Mr. Edwards took place. The proceedings of the actors in the disgraceful proceedings were worthy of themselves. Those of the people of Marnoch were dignified and solemn. They asked the seven ministers in what capacity they were in the Marnoch church, refused to acknowledge them as a Presbytery, and, with tearful eyes and swelling hearts, and almost in solemn silence, walked in orderly procession from the church, with the stern determination never again to cross its threshold.

"A babe will weep a bramble's smart,
A maid to see her sparrow part,
A stripling for that maiden's heart;
But woe betides a nation when
It sees the tears of bearded men."