Art. XIII.-THE CASE OF THE SCOTTISH CHURCHES. The Free Church of Scotland Appeals, 1903-4. Edited by Robert Low Orr, Advocate. Authorised Report. Edinburgh: Macniven and Wallace. London: Hodder and Stoughton, 1904.

It is hardly possible to exaggerate the gravity of the issues involved in the recent decision upon the case of the Free Church. Another crisis has been reached in the old controversy between Church and State, a crisis of unusual moment both to the particular Churches implicated and to the interests of religious liberty in general. Whether regard be had to the amount of the property at stake and the numbers of the population affected, or to the gravity of the differences of opinion among the judges, or to the feeling aroused in the country, or to the religious and political questions involved, it may be safely asserted that few cases before the House of Lords have equalled this one in its singular combination of material and spiritual importance. A large and flourishing Church, comprising nearly a quarter of the population of Scotland, with a national influence even greater than her numbers represent, and prosecuting extensive missions in Europe, Asia, and Africa, has been suddenly decreed to have lost her identity, through her union with another Church and certain changes in her formulæ which this union required; and to have forfeited in consequence all her invested funds and the bulk of her real estate.

The Free Church of Scotland, which in 1900 combined with the United Presbyterians to form the United Free Church of Scotland, consisted at that time of over 1100 congregations, distributed throughout the country in pursuance of her claim to be a National Church. Her communicants were nearly 300,000; her Sunday classes contained over 200,000 scholars; and, if to these be added her children outside her Sunday schools and her adult adherents not in full communion, it will be seen that she included in her care about a million of the Scottish people. Abroad she had 200 missionaries, 1350 native agents, and nearly 12,000 communicants. But it is not only this multitude who are concerned. The property they brought into the union has for four years been combined with

that of their partners in a fashion which makes the loss of it scarcely less serious to the latter than it is to themselves. To ascertain the full numbers affected, we must take the membership of the United Free Church when the judgment was delivered. In a report to her General Assembly in May last this is given as 501,535, exclusive of adult adherents not in full communion.

The property involved is of two classes. There is, first, that formerly held by the General Trustees for the Free Church as a whole, consisting of invested funds to the amount of about 1,200,000l. and real estate in Scotland and abroad. The value of the latter is doubtful, for only part of it is specified in the case. But the Church's three theological colleges are insured for more than 70,000l.; her offices and assembly hall cannot be worth less than 50,000l.; and the other heritable subjects in Scotland alone must be worth at least 30,000l. more. Secondly, there is the congregational property of over 1100 churches, most of them with manses and halls. It is hardly possible to calculate the money value of the latter. But the most moderate estimates of the whole property, including that vested in the General Trustees, reach four or five millions sterling; and the real amount may be much more. The money value, however, is not everything. The property at stake represents the habitation, machinery, and equipment of an organisation whose work at home and abroad is to a great extent dependent on the right to use it, and whose energies, if not paralysed, are embarrassed beyond reckoning by its loss.

All this estate and means of beneficent labour have been taken, then, from a Church of some 300,000 communicants, with over 1100 ministers, besides general officials (to speak only of the Free Church's forces at home), and assigned to what was at the date of the judgment a mere fraction of the Free Church-some thirty ministers with 4000 or 5000 communicants, almost all of whom live in the Highlands and islands. It is, to use Burke's phrase, as 'terrible a revolution in property' as was ever effected by law; and the way in which it has roused public feeling is not surprising. In Scotland the controversy is even greater than that stirred by Mr Gladstone's Home Rule policy. The nation is bitterly divided. A leading journal, which two years ago, when

the Scottish Courts had decided in favour of the United Free Church, declared that a contrary decision would be little short of a national calamity,' now, when the Court of Appeal has given a contrary decision, applauds it with fervour; while other journals of equal standing describe it as an error,'' unjust' and 'monstrous.' The division among the judges and the probability that, but for the death of Lord Shand after the first hearing of the appeal, the decision would have gone the other way, have provoked debate, among not only laymen but lawyers, as to whether the judgment, if sound in law, is correct in fact. Other facts-that most of the property taken from the United Free Church was conferred by men who approved of the union or actually entered it, and that the remnant is apparently too small to administer the trust assigned to it-have raised the question of equity. Nor are lighter causes of excitement wanting. For years the leaders of the Free Church have aimed at the disestablishment of the Church of Scotland; and the irony of the situation, in which, partly because of that policy, they now find their own Church disendowed, is obvious. To multitudes who take no interest in religion, the large financial stakes at issue, as well as the oscillating fortunes of the case, have brought all the exhilaration of a colossal hazard.

There are, of course, problems involved of greater moment than so large a transference of property-the conflicting claims of Church and State, the dangers to religious liberty and theological growth in general. To these we shall return. But our first duty is to review the facts, as well as the processes of law by which such amazing results have been reached, in order to understand not only the points at issue, but the serious differences existing among the judges.

The Free Church of Scotland was formed in 1843 by disruption from the Established Church. For some years the majority of this Church-evangelical in doctrine but 'high' in their conception of the Church's authority-had been asserting her 'spiritual independence' of the courts of the realm. They admitted the jurisdiction of the latter

* The 'Scotsman,' July 5, 1902,

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over the civil rights of the Church and the emoluments conferred on her by the State. But they claimed for herself freedom to determine in spiritual and ecclesiastical matters, defined as 'the preaching of the Word, administration of sacraments, admission and suspension of officebearers, infliction of censures, and generally the whole power of the keys." The last phrase is wide, and might be held to include powers to legislate on doctrine; but this is not expressly claimed. The conflicts between the Church and the courts of law were confined to the appointment and discipline of her ministers. The Church claimed the right to veto any presentation to a parish by the patrons, if a majority of heads of families objected to it, and the right to admit to her courts, on an equal footing with the parish ministers, ministers of chapels of ease. Both these claims the courts declared contrary to law. To change the law the Church appealed to the great political parties, to the Crown, and to the House of Commons, all of which repulsed her. Sir Robert Peel said it could not be otherwise while she remained established, since only Roman Catholics and Dissenters were entitled to decide with reference to their own affairs." The majority took the Premier at his word. They withdrew from the Establishment and formed the Free Church.

While renouncing the status and emoluments of the Establishment, they did not feel they were founding a new Church. They adhered to the constitution and standards of the Church of Scotland.' They maintained the Presbyterian discipline, the Confession of Faith, and the Acts by which before 1843 the Church had regulated her constitution. It is this sense of their continuity as a Church which explains the omission of the Disruption fathers to draw up any definite form of constitution. Had such existed, there would not have been room for so serious a difference among the judicial opinions in the recent case. In its absence, the judges have had to infer the Church's rules of association from more or less formal documents, in which she protested her independence of the State, demitted the emoluments which the latter had conferred, invited pecuniary support, and defined what

* Speech in the House of Commons, March 8, 1843.

she required of her office-bearers. Among these documents were the following: two Protests before and after the Disruption; an address by Dr Chalmers as Moderator of the first Free Church Assembly in 1843; an Act of Assembly in 1846 fixing the formulæ for office-bearers; the Model Trust Deed of 1847 for the congregational properties; Acts of 1851 and 1853 upon the standards of the Church; the form of mandate by presbyteries to their representatives in the General Assembly; and speeches by the leaders of the Church in 1843 or soon after. On these documents the questions raised by the case were two. Do they, along with the Confession of Faith, imply that the doctrine of Church Establishment' is an essential part of the Free Church creed? And do they contain the assertion or implication of her power to alter that creed by the processes of her constitution?

As to the first question, there can be no doubt about the profession of the Establishment doctrine by the founders of the Free Church. They had quitted the Establishment only after long struggles to realise their ideals within it. In the Westminster Confession they had carried with them an extreme statement of the duties of the State towards religion; and, though they repudiated 'the intolerant and persecuting principles' which that statement enforces, they continued to assert, at least down to 1851, that their Church 'holds and through God's grace will ever hold that it is the duty of civil rulers to... promote and support the Kingdom of Christ.'* They declined to unite with those Voluntary Presbyterians with whom they agreed on every other point of doctrine; and nowhere more strongly than in Dr Chalmers' address as Moderator in 1843-which some of the judges have read as a kind of 'prospectus' of the Free Church in her appeal for funds-did they insist on the distinction between the Voluntaries and themselves. But it has been argued that the documents in question nowhere define the Establishment doctrine as fundamental to the Church. Her difference from the Establishment, her distinctive and essential note as a separate Church, lay not in such a doctrine, but in her assertion of spiritual independence. Dr Chalmers immediately modified the distinction he

* Authorised Report, 95.