by Rev. Donald Beaton
The Barrier Act, of which so much has been heard in recent controversy, was an Act passed by the General Assembly of the Church of Scotland in 1697. Previous to this, from the year 1560 until a few years after the Revolution Settlement, the General Assembly, on its sole authority, passed Acts that had reference to laws that were binding on the members and judicatories of the Church. That this state of matters was
considered unsatisfactory seems to be indicated by the action of the Assembly in 1639, for it ordained “That no innovation which may disturb the peace of the Church and make division, be suddenly proposed and enacted, but so as the motion be first communicated to the several synods, presbyteries, and kirk-sessions, that the matter may be approved by all at home, and commissioners may come well prepared, unanimously to conclude a solid deliberation upon these points in the General Assembly.” This was the forerunner of the famous Barrier Act, and paved the way for the Act anent Innovations, which the Assembly of 1695-96 passed into law. It declares that “the Assembly having heard an overture brought in from the Committee for overtures, that no new Acts relating to the doctrine, worship, or government of this Church be made until they be first transmitted to the several presbyteries of this national Church; which being considered, the General Assembly recommends it to the members of this Assembly to discourse upon the said overture with their respective presbyteries, that the next General Assembly may be more ripe to determine anent the conveniency thereof.” The result of this “discourse” recommended by the Assembly, was the passing of the Barrier Act on the 8th January, 1697. This Act, which has played such an important part in the legislation of the Church, may well be described as the Magna Charta of Presbyterian ecclesiastical law. Its text is as follows:—
“The General Assembly, taking into their consideration the overture and Act made in the last Assembly concerning innovations, and having heard the report of the several commissioners from presbyteries, to whom the consideration of the same was recommended, in order to its being more ripely advised and determined in this Assembly; and considering the frequent practice of former Assemblies of this Church, and that it will mightily conduce to the exact obedience of the Acts of Assemblies, that General Assemblies be very deliberate in making of the same, and that the whole Church have a previous knowledge thereof, and their opinion be had therein, and for preventing any sudden alteration or innovation or other prejudice to the Church in either doctrine, or worship, or discipline, or government thereof; do therefore, appoint, enact, and declare that, before any General Assembly of this Church shall pass any Acts which are to be binding rules and constitutions to the Church, the same Acts be first proposed as overtures to the Assembly, and being by them passed as such, be remitted to the consideration of the several presbyteries of this Church, and their opinions and consent reported by their commissioners to the next General Assembly following, who may
then pass the same into Acts, if the more general opinion of the Church, thus had, agree thereunto.”
The great end the Barrier Act had in view was to guard against “any sudden alteration or innovation or other prejudice to the Church in either doctrine, or worship, or discipline, or government,” but it had only reference to legislation of a certain kind. Not every act passed by the Assembly was to undergo the process laid down in the Barrier Act. It was only legislation that was to be of the nature of “binding rules and constitutions.” And to say that any act passed through the Barrier Act is not binding on the members and judicatories of the Church is to ignore the express terms of the Act itself and read a meaning into language that it will by no means bear. That this is the true meaning of the Act is a fact confirmed by such authorities as Principal Hill, Taylor Innes, and Dr Roberts of America.
Principal Hill, in his Constitution of the Church of Scotland, says — “Every judicatory is occasionally called upon to enforce the laws of the Church by making such special enactments, in conformity to those general laws as are suggested by the circumstances of the district under its jurisdiction; and the Church courts, like all others, have a right within certain limits to regulate the form of its own proceedings. It is not to such partial enactments or regulations we refer when we speak of the legislative power of the Church. We apply that term to the power of making standing laws concerning matters of general importance which are binding upon all the members and judicatories of the Church. From the establishment of Presbyterian government in 1560 until 1697 such laws proceeded from the sole authority of the General Assembly, but an Act of the Church passed in the latter year, which we are accustomed to call the Barrier Act, prescribes the mode of enacting permanent and standing constitutions.” Dr Hill here draws the distinction between “partial enactments” and “standing laws which are binding on all the members and judicatories of the Church.” The Church, like any other body of people gathered together into a society, has the right within certain limits of regulating its own proceedings, but in regard to the standing laws which are binding on all the members and judicatories and of the Church, these must come through the Barrier Act and thereby become “permanent and standing constitutions.”
Taylor Innes, in his well known work, the Law of Creeds in Scotland, indirectly confirms the above contention. Speaking of the Act of 1711 dealing with subscription to the Confession of Faith, he points out that great objection was raised to it in the 18th century, when it was
denounced as illegal. It was objected that it had not received the consent of the majority of presbyteries. To obviate this objection an Act was brought in in 1740, and after transmission to presbyteries for many successive years, at last received the approbation of a majority of presbyteries and thereby became a standing law of the Church. “So that,” says Taylor Innes, “the stipulation and subscription so far as regards probationers have received the sanctions contemplated by the Barrier Act, and are Church law, in so far as the Church has the power of making law.” The main point of interest to us at this time in regard to this Subscription controversy, is that the Barrier Act placed the Acts of 1711 and 1782 on a different footing, and “that they became the law of the Church in so far as the Church has power of making law.” In fact, they became binding rules and constitutions.
Dr Roberts, in an article in the second volume of the Presbyterian and Reformed Review, bears similar testimony. “The history of the Scotch Barrier Act,” he says, “is unquestionably the key to the interpretation of the American Barrier Act and proves that the latter, like the former, was intended to deal with matters ecclesiastical which the American Church has seen proper to gather formally within her constitution.” All which goes to prove conclusively that legislation passed through the Barrier Act is Church law in a higher sense than Acts which may not have undergone this ordeal. Again, these Acts are not simply “binding rules and constitutions” for certain parties in the Church, but by their very nature they become binding upon all who in any way are connected with the Church. Principal Hill makes this clear enough when he says that the Barrier Act deals with the “making of standing laws concerning matters of general importance which are binding upon all the members and judicatories of the Church.” Now, if this be so, what course is left open to those who, on conscientious grounds, may object to such legislation? The raising of this point directs our attention to what seems a serious defect in the Barrier Act, inasmuch as it makes no provision for the rights of minorities. It is true that according to ecclesiastical procedure, minorities have the right of entering a dissent against any legislation to which they have conscientious objections. But, after all, a dissent is of the very mildest form of opposition and it “simply keeps the conscience clear,” says Sir Henry Moncrieff, “from the responsibility of what one does not approve of.” It, however, by no means nullifies the binding effect of what are termed “binding rules and constitutions.” In other words, a dissent relieves the dissentient from all responsibility in the steps leading up to and in passing the Act, but it does not relieve him from obligation to obey
the Act once it becomes law provided that Act is of the nature of a binding rule and constitution. That this is the real force of a dissent is pertinently confirmed by Rev. Dr Mair of Earlston, one of the leading authorities on Church law in the Established Church. “Dissent,” he says, “against the passing of an Act does not exempt the dissentient from obedience to it, but relieves him from responsibility for the consequences of the passing of it.”
It is necessary, at this stage of our discussion, to point out that this is the only course open to minorities in the case of objectionable legislation, and that they have no power to protest against the finding of a Supreme Court unless they are willing to take the step which persistence in such a course involves, viz., separation from the Church that has passed the law. The greatest confusion exists in the minds of many as to the force of a protest and a dissent. By the bulk they are regarded as implying the same thing. Nothing could be more erroneous and misleading. A dissent may be and is accepted by a Supreme Court against its decisions but never a protest. Such an action would be suicidal. The only time a protest is recognised in Church procedure is before the overture becomes law; and it is worthy of note that Dr Begg, who was such an authority in these matters, always protested before and not after the overture became law. But to make the matter doubly sure, let us again appeal to authorities. Dr Cook, in his “Styles of Writs, etc., in the Church of Scotland,” says — “A dissent can be given in only by those who were present when the judgment dissented from was pronounced, and no protest can be taken against a decision of the Assembly.” Again, Sir Henry Moncrieff, in his “Practice of the Free Church,” says — “The General Assembly being the Supreme Court there is no room for any other procedure against its decisions except that of dissent with reasons. There is no room for complaint or appeal.”
As we have now laid down the general principles in connection with the Barrier Act, and established our main contentions by appealing to recognised authorities, it only remains for us to take a particular instance wherein these general principles are made manifest. Take the Declaratory Act of 1892, which has caused so much controversy, and has done more than anything else since the Disruption to wreck the ecclesiastical peace of the Highlands. Since that Act passed as an overture through the Barrier Act, and thereafter became law, it stands to reason that, by the very terms of the Barrier Act, it became a “binding rule and constitution” — “binding on all the members and judicatories of the Church,” to quote Principal Hill’s words. It is a fact that will be admitted on all hands that the Constitutional party considered the doctrines of the Declaratory Act to be of such a nature that nothing short of a protest was sufficient to express
their opposition to the same. But what came of these laudable resolutions? In 1893 Rev. Mr Macfarlane tabled his protest, and notwithstanding the efforts made to make him withdraw it he manfully refused to do so. With the result that in a short time he found himself without church or manse. When the Synod of Glenelg felt it its duty to protest against the Act its protest was rejected like Mr Macfarlane’s with this notable difference, that the members of Synod refused to act on their protest and were content with a dissent. It is therefore only charitable to suppose that those who are declaring throughout the Highlands that they remained in the Free Church under protest, are quite unconscious that there is a world of difference between a protest and a dissent. And to quote Dr Mair’s words again, a dissent after all does not exempt the dissentient from obedience to the Act once it becomes law.
(From F. P. Mag. Vol 6, page 260)