The Free Church Law Case.
This case, appealed from its first decision by Lord Low, and pending for some months before the Second Division of the Court of Session was adjudged on 4th July, and a unanimous verdict found against the pursuers. The interlocutors of the three eminent jurists who sat on the case were published in the Free Church Record of last month. We hold the opinion of all plain dealing outsiders that the property of the Free Church of 1843 should go with the principles, or that, at least, a minority adhering to the original compact are entitled to a proportionate share of the assets of the corporation. No such reasonable decision has been given. The pursuers have been dismissed from this Court of Justice penniless, and have, besides, been condemned to liquidate the expense of their lawful plea against the red handed aggression of Principal Rainy and his fellow conspirators. The opinion of Lord Trayner is the most luminous and direct of the three findings, and we may criticise briefly some of his positions. Lord Trayner admits that the Free Church from its constitution in 1843 down to its union with the United Presbyterian Church professed the Establishment principle; also that by uniting with a Voluntary Church the Free Church party have abandoned that principle. His question then is, was the Establishment principle so fundamental or essential to the constitution of the Free Church that the abandonment of it involves the consequences attributed to it by the pursuers? He finds that the principle was not fundamental or essential, and his reasons are apparently these—(1st.) The statement of the doctrine of the Civil Magistrate in the 23rd chapter of the Confession is too vague in its terms to yield the specific inference that the public exchequer must find the expense of the upkeep of religious ordinances. (2nd.) The Establishment principle was never emphasised in any public manifesto of the Church since the Disruption. (3rd.) Latterly the Church was found devoting its time and energy in bringing about Disestablishment, and so it was practically treating the Establishment principle as an obsolete fallacy.
In opposition to these opinions of the learned judge, we may observe, 1st, that the dicta of the Westminster divines on this head are not so very vague as he suggests, and Chalmers and his associates, in the old Voluntary controversy before the Disruption, and Dr. Begg and his fellow protestors, in the more recent Anti-Union controversy, had no difficulty in conclusively proving that the ordinances of the Lord’s house have as valid a claim on the public revenues under the New Testament as they had under the Old. This is the historic position of the Church of Scotland, and was never disputed till the upstart theorists of the French Revolution broached the new Voluntary idea.
2nd. It is not logical or fair to conclude from the accidental non-insistance of an article that it has been abandoned. There are many Articles of the Confession of Faith which were similarly not advertised as part of the Church’s creed, but their validity was not anywise compromised thereby. The Common law of Britain has many provisions which, in like manner, are dormant or forgotten till the occasion calls for their application, and Lord Trayner would probably make short work with the pleader, whose parrot cry would be, “This statute has not been heard of for thirty years, therefore it has been rescinded.”
3rd. The Disestablishment movements that began to disfigure the public life of the Free Church in her last degenerate days were the mere uprisings of mutineers. Because the rebels are accidentally the overwhelming majority of the crew, and have altered the ship’s course from east to west, it does not therefore follow that the voyage is lawful. It is not a vote of the crew that the Court of Justice calls for in a case of mutiny, but the production of the ship’s papers and the evidence of the legitimate officers, be they never so small a band of survivors. We think the Free Church litigants have been unfortunate in falling into the hands of a very hard, untheological set of judges. They exhibit no symptoms of that knowledge of the past, that sympathy with the heroic side of our national history, which would have availed much in formulating a right judgment on this new phase of a very old controversy.
In this note we deal with the question on its broad general issues, without considering how far the Free Church party may have committed themselves by remaining in the Church after important changes took place, such as were involved, for example, in the passing of the Declaratory Act of 1893. But according to the tenor of the present decision it would seem as if the majority would carry the property at any time.
A Duchess, and Cycling on Sabbath.
A Church parade of cyclists was held at Alnwick recently, and it was proposed to give the proceeds of the collection—£14 15s. 6d.—to the Alnwick and District Nursing Association. The Duchess of Northumberland has, however, written to the representatives of the Association who attended the meeting of the parade organisers, to the effect that she cannot authorise them to accept the generous offer, as the Duke and herself much dislike this form of Sunday entertainment.