for the law. 1834. stood no more in need of a precedent to authorize her to CHAP. VI. determine that the dissent of the majority of the congregation should disqualify the presentee, than she stood in need of a precedent to determine that every presentee should be held as disqualified, who had not passed through a certain curriculum of study in literature and philosophy, and at the divinity hall. But the church had a precedent for the vetolaw. She had not only what might be called a constructive Precedents precedent, in those numberless decisions of former times in which presentees had been set aside in consequence of the opposition of the congregations to which they had been nominated, but she had a direct and formal precedent, first in the very terms of her ancient non-intrusion principle, and next in the directory of 1649. It will be remembered that in attempting to explain away the precedent furnished by that directory, the lord justice clerk (Boyle) in the assembly of 1833 had recourse to a somewhat singular, and as was shown, totally inadmissible interpretation. According to his lordship's theory, the distinction made by the directory between the privilege of the major part, and the privilege of the lesser part, of the congregation, amounted to no more than this; that while the lesser, if they tendered their dissent, must "there and then" verify their objections, the major part were entitled, when they dissented, "to say to the presbytery, Sist procedure for the present, and we will prove to you at your next meeting, or after sufficient time for getting evidence, that we have good and substantial reasons for our objection." This distinction of the learned lord, as is known to every one acquainted with the subject, is a pure fancy. As his lordship spoke last in that debate, there was no opportunity of exposing his error. In the debate of 1834, not only did his lordship not repeat it, but as if conscious. of its being utterly untenable, Dr. Cook endeavoured to substitute for it another of his own, and one which, though The construc the Act 1649 JusticeClerk tion put on by the Lord (Boyle), in the Assem bly of 1833, not repeated in 1834. Dr. Cook's construction 1010. CHAP. VI. quite new, was no better than the lord justice clerk's. "If 1834. it so happen," says the directory of 1649, "that the major of the Act part of the congregation dissent from the person agreed upon by the session (the session standing then in room of the patron), in that case the matter shall be brought into the presbytery, who shall judge of the same; and if they do not find their dissent to be grounded on causeless prejudices, they are to appoint a new election in manner above specified. But," and here lay the point of that distinction which so embarrassed the opponents of the veto-law, "if a lesser part of the session or congregation show their dissent from the election without exceptions relevant and verified, notwithstanding thereof the presbytery shall go on to the trials and ordination of the person elected, yet all possible diligence and tenderness must be used to bring all persons to an harmonious agreement." Those who insist that the dissent of the majority is not enough of itself, according to these provisions of the directory 1649, to bar the settlement, unless it be supported by reasons satisfactory to the presbytery, are bound to meet and answer this question: Why were reasons required to be given in support of their dissent by the lesser part of the congregation, while no mention is made of such reasons as being required to support the dissent of the majority? No doubt the presbytery were to judge in both cases, but the point submitted to their judgment in the one case, was altogether different from the point submitted to them in the other. In the case of a dissent by a majority, it was simply the bona fides of that dissent with which they had to deal. In the case of the dissent by a minority, it was the bona ratio of that dissent of which they were entitled to be satisfied. But no, said Dr. Cook in the debate of 1834, that is not the way of it. When the minority dissented under the directory of 1649, "there is no doubt the parties in that case were required to verify their charges. 1834. But the inference has been drawn from the distinction that CHAP. VL in the first case (when the majority dissented) there were no reasons required, because if there had, there was no need for that distinction. He (Dr. Cook) said he could not see the slightest foundation for this inference, or that there was not the greatest propriety in giving a facility to the majority which was denied to the minority, in so far that the presbytery in the one instance investigated for themselves the proof, in the other they required this to be done by the dissenters !" No wonder that after offering this notable solution of the difficulty, Dr. Cook should have followed it up with the somewhat significant expression, "But be this as it may." He had evidently no confidence in it himself, and it was not to be expected the assembly could have any. The supposi- Dr. Cook evidently tion which it makes is not only wholly gratuitous, but altogether absurd. Instead of a facility or a privilege being offered to the major part of the congregation, Dr. Cook's theory would make the directory of 1649 put them in a worse position than that in which it put a dissenting minority. The only effect of taking the investigation out of the hands of the dissentient majority, would have been to put a facility and a privilege into the hands of the presbytery, a facility, viz. for quashing the dissent, and a privilege, as at least moderate presbyteries were wont to account it, of intruding the minister against the will of the people! This important debate, which began at eleven o'clock in the forenoon, was at length concluded at eleven at night, when Lord Moncrieff's motion was carried by a majority of 184 to 138. Of the clerical members of the house, 95 voted for the motion, and 86 against it; of the presbytery elders, 42 for, and 38 against it; of the burgh elders, 43 for, and only 7 against it. From this analysis, it is evident that the success of the motion was not due to the preponderating influence or numbers of any one class; but resulted from had no con fidence in the correct ness of his own inter pretation. The division: Lord Mon crieff's motion car ried by 18 to 188. CHAP. VI. convictions which predominated in all the classes of which 1834. the assembly is composed. If that predominance was by much the greatest in the case of the burgh elders, the fact serves only to show how popular this reforming movement was throughout the body of the church at large. Of all the members returned to the general assembly, the burgh elders were undoubtedly those upon whom, what might be called the public mind of the church, and even of the general community, most directly told. And the circumstance that their votes were given in the proportion of 43 to 7 in favour of the veto-law, is conclusive evidence that what was done in the assembly was in harmony with the views and feelings of the people. Lord Moncrieff brings up the report of the The Barrier Act: its object and provisions. At a subsequent diet of the assembly, Saturday, 31st May, Lord Moncrieff brought up the report of the committee Committee appointed, under his motion, to prepare regulations to be observed for the future in the calling of ministers throughout the bounds of the church. On this occasion the house was called to determine whether the resolution of the assembly upon the subject of calls and non-intrusion must be subjected to the provisions of the barrier act. The act in question, as its name implies, is designed to protect the church from rash and sudden alterations and innovations upon its constitution: and for this purpose it requires that no new law shall be established without the express consent and concurrence of a majority of the presbyteries. As an interim act, a new law may be enforced for a year by a vote of the assembly, but it must at the same time be transmitted to presbyteries for their opinion, and only when a Discussion of majority of these have decided in its favour does it take its whether the place among the standing laws of the church. But the the question Veto-law required to difficulty in agreeing to apply the barrier act to the case in be subjected to the provi- hand lay here, that to do so might seem at least to imply sions of the Barrier Act. that it was a new law which the assembly was about to Lord Monmends that should be crieff recom the point yielded on 1834. introduce, instead of being, as its supporters held it to be, CHAP. VL. an old and fundamental law of the church. The precedent of the act prohibiting the non-residence of ministers was urged in favour of sending down the veto-law to presbyteries: non-residence was held to be contrary to the constitution of the church, and yet the act upon that subject adopted by the assembly in 1814 was afterwards, in 1816, subjected to the judgment of the presbyteries. "Had it not been," said Lord Moncrieff, "for the procedure of the assembly in 1816, and the respect he entertained for the memory of the person who took a prominent share on that day, he would have been more clearly of opinion than he now was, that in point of constitutional principle there was nothing to prevent the house from passing this act without transmitting it to presbyteries." Upon the whole his lordship thought it best "to recommend to those who had supported the resolution of Tuesday last, to agree in transmitting the resolution to presbyteries. He proposed this in deference to the doubts of many, and in order that that act might not be exposed at each successive year to be challenged by overtures, but might be established, ratified, and confirmed, by the full consent of the presbyteries of the church." The motion. which he accordingly proposed was in the following terms: "That the assembly firmly adhering to the principle laid down in the report, that it is a fundamental law of the church that no pastor shall be intruded into any parish contrary to the will of the people, do yet, in deference to doubts expressed upon the subject, resolve that the said resolution of the assembly be converted into an overture, and transmitted to presbyteries for their approval, and that the same be enacted as an interim statute.' This concession to the opponents of the measure, made for the sake of peace, would not have been yielded unless the motion had been framed in the guarded terms which Lord Moncrieff employed. "Had grounds of expediency. |