THE purpose of this paper is to set down some things about the relation between Churches and the law which could not fail to be of use if they were more generally known than they are. I seek the good not of any one Church only but of all.

In the forefront we are face to face with the fact that the law courts cannot make any distinction between a Church and associations generally, unless the distinction has been made by State law, the obvious reason being that what is not in law cannot be acted on as law by the courts. If, therefore, no such distinction is made by law, the affairs of that Church are judged as if it were an ordinary association. But, if law has made a distinction in regard to any Church, its affairs are judged by the terms of law specially applicable to itself so far as they go. The Church of Scotland and the Church of England are the only two in Britain that are in this position. To the latter we shall have no occasion to allude again.

What is meant by "spiritual independence" as applied to Churches? It is that Christ the heavenly King has given His Church power of government in things spiritual which

the

can

earthly sovereign neither give nor take away. Thus far all see clearly enough and are agreed. It is when we come to the exercise of this power by a Church that we get into the region of confused ideas and troubles. The independence meant is independence of the State (sovereign). If we were in a spiritual world where there were only spiritual things and interests, there might possibly be no troubles; but in this present world the exercise of spiritual power may seriously affect non-spiritual interests, and at that moment we enter

the domain of the earthly sovereign. Thus it comes to pass that a Church exercising spiritual power, given to it from on high, may be haled before the judgment-seat of Cæsar.

For the exercise of its power a Church finds it necessary (for "God is not the author of confusion, but of peace") to make constitutions and lay down rules, that its members may know their rights and duties and be protected from wrong. If any one thinks that to his injury in non-spiritual things a Church in the exercise of its power has transgressed some of its rules, he may bring the Church to the civil tribunal, not on account of the exercise, or even the mistaken exercise,

That this jurisdiction may be effective as well as independent, Act 1693, C. 22 ('Digest,' p. 12), ordains all judges and officers to "give all due assistance for making the sentences and censures of the Church . . . to be obeyed"; so that, for example, if a deposed minister should refuse to remove, the law courts only require to see the sentence of the Church. The law courts are held bound also by this provision to compel the attendance of witnesses before the Church courts.

In the relation of the Church of Scotland to the Confession of Faith we have an obvious illustration of the want of spiritual independence. This document was the work of the Church itself, and is occupied wholly with that which is spiritual; yet the Church cannot touch it. It forms, like every other Church's creed, an essential part of its constitution, and the Church cannot touch its constitution. It is embodied verbatim in statute law repeatedly ratified (1690, c. 5; 'Digest,' p. 9), and the Church cannot touch statute law. Ministers and preachers are required by statute law to subscribe it in prescribed terms, declaring it to be the confession of their faith (1693, c. 22; 'Digest,' p. 12), and the Church cannot touch that statute, or those terms of subscription. It cannot give the slightest relief from the plain meaning of that unconditionally prescribed subscription. It was the Church itself, in the exercise of its freedom, that VOL. CLXXVI.—NO. MLXX.

obtained these Acts of Parliament, holding doubtless that in giving them the civil magistrate was but doing his duty to the Church in terms of the Confession of Faith, chap. xxiii. I shall return to its position under this legislation.

The Free Church differed only in that while it had no law specially applicable to itself, it was held bound by the law of trusts and contracts; and the large section of it against which judgment was given hold that it was thereby adjudged not to have spiritual independence. Eight years ago, in a published lecture on jurisdiction, speaking of the reproach that the Church of Scotland is helplessly bound to its constitution, I said of other Churches: "They may change their constitution only on one condition, that they are so unanimous that their procedure will not be challenged. If they are not so, the desire for change can only be gratified in the same way as in 1843, by disrupting, and leaving the property to those who adhere to the constitution."

In the election and settlement of ministers there are two particulars in which the Church is not independent, viz., (1) the election and appointment must be by the congregation; and (2) if they make no appointment within six months, the right devolves on the presbytery. The Church and Parliament agreed that it should be so, though no doubt it might have been left to the Church, and, if it were 3 K

to promote the ecclesiastical good of Scotland, might be so still.

In regard to the membership of its courts the Church is not wholly independent. Only ministers of parishes and elders of kirk-sessions in Scotland can sit in them. Powers that are wielded by them might be felt a difficulty in the way of change here; and indeed it is unlikely that the Church would think the courts could be more fitly constituted than they are. But if the good of Scotland were to require that this should be wholly in the hands of the Church, difficulties could be

overcome.

In the erection of parishes the Church is not independent. A certain minimum endowment must be provided, and the decision rests with the Court of Teinds. The consideration always given to the judgment of the Church courts is entirely satisfactory. If there are to be parishes, I do not know that there could be any better way; but, if it was to be for good, something might be done here also. The Church determines the bounds of presbyteries and synods, and might well determine those of a quoad sacra parish, and the need for it.

Of that which has been said this is the sum: the Church of Scotland is free in judicial affairs, but not free to change its Confession, directly or indirectly, or the terms or meaning of subscription to it. In certain other matters also it is in part not free. In other

Churches there does not appear to be anything in which they may not have to submit to a decision of the law courts (unless there be anything that their members have bound themselves not to carry to those courts, as to which I do not know).

I promised to return to the Confession of Faith in the Church of Scotland. I am told that the Church has complete power to interpret the Confession, and that this is enough. This of course refers to the power of interpretation in a judicial case. Every court in the kingdom has this power and duty. It has to find out the meaning of what the Act says, but cannot change it. Now, if the Church cannot interpret the Act so as to change it, nothing is gained for the present perplexity. The well-known and well-proved fact has also to be remembered, that in the interpretation of Acts of Parliament the last word is with the law courts. If I could not convince the Church, I would implore it to presume nothing on this supposed power of interpretation. If the recent decision in the House of Lords does not, as is said by a few, affect the Church of Scotland, that Church may at least read a lesson on the strictness with which law is interpreted and applied regardless of consequences, as well as take warning against the temptation to interpret with looseness or with subtlety, with a preconception