Dundee. FRANK T. II uDIE.
[TO THE EDITOR OF TR& SPROTATOR,"]
you allow me as an Anglican, but also a Scotsman, and one who has had some occasion to study the law and con-
stitution of the Christian Church, to make some observations on the letter of Sir Edward Fry on the case of the Free Church of Scotland to which you refer in your last issue? The respect in which Sir Edward Fry is held, both for his legal eminence and for his high character, is so great that there is some risk lest his letter should to some extent lead the English public astray in a matter on which no doubt public action will have
to be taken. No one can fail to recognise and appreciate the sympathetic spirit which Sir Edward Fry brings to the situa- tion produced by the decision of the House of Lords, or the good sense of much which he suggests with regard to a prac- tical solution ; but when he appeals to us to refrain from criticism of the judgment, I think that he misunderstands the situation and the attitude of most Scotsmen. (It is perhaps worth while to point out that the personalities of the Scotsman only bring into clearer relief the unanimity of the Scottish Press and people.) The judgment of the House of Lords is a legal judgment, with legal effects, and must be taken as such, but that does not compel us to think that the judgment is right, and the fact that only one Scots lawyer, of all those before whom the case has been argued, agreed with the Lord Chancellor and the majority of the House of Lords, may be at least taken as fairly justifying the criticism which is passed upon it. For this criticism is, to put it bluntly, that the Lord Chancellor and those who agreed with him were, with the exception of Lord Robertson, not only unfamiliar with the constitutional traditions of Scotland and the Scottish Church, but were under the influence of a tradition which made it difficult for them to appreciate fully the considerations which were brought before them. That the Court did its best to under- stand the case is not doubted, but a man of Sir Edward Fry's attainments will be the first to recognise the difference between a judgment based upon a hasty study of an intricate subject and one based upon the knowledge and tradition of a lifetime. May I venture to suggest to Sir Edward Fry that a complete im- partiality is not attained by ignorance, but by complete know- ledge?
There is really no doubt that the divergence between the judgment of the Scottish Courts and that of the House of Lords is due to a difference upon two fundamental but related points: first, the nature of a Church, and its relation to its doctrinal formularies ; and second, the constitutional tradition of the Church of Scotland, Established or Free. The Lord Chancellor conceives of the identity of a Church as consisting in the unity of its doctrine, and seems to identify the doctrine of the Church with that which it may have held at a particular moment; and the majority of the House of Lords seem all to agree in this view. The Judges of the Court of Session all held that the Church of Scotland, whether Established or Free, is the source, and not the creature, of its doctrine.
Here is just exactly a case where the influence of tradition comes in. The English lawyers are unfamiliar with such a con- ception, and refuse to consider it seriously, although it was the main point of the case which was put before them, both in the judgments of the Court of Session and in the arguments of counsel. To a Scotsman, on the other hand, the notion that the Church of Scotland, whether Established or Free, is incapable of dealing with, and modifying, its statements of doctrine and dis- cipline, seems simply ludicrous. The possession of such power is of the very essence of its position, of its repudiation of the infalli- bility of Church Councils, and of the history of its relation to its formularies.
But if the majority of the House of Lords thus showed itself incapable of appreciating the tradition of Scottish ecclesiastical organisation, it did also, secondly, refuse to recognise the force and significance of the constitutional documents of the Church of Scotland. The Judges of the Court of Session had already pointed out that the Barrier Act of 1697 does clearly and without doubt imply that the Church of Scotland conceived itself to be at liberty to deal with questions of doctrine as well as discipline. The Barrier Act makes careful provision for a certain procedure, a procedure intended to check inconsiderate and hasty action, in
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the ease of "alterations and innovations in either doctrine or worship or discipline or government." Upon this provision of the Barrier Act great stress was laid by three out of the four Judges of the Court of Session. It is, indeed, difficult to understand how the Lord Chancellor and the majority of the House of Lords could treat so great a question of constitu- tional law in so slight and cursory a fashion as they did. Sir, the truth is that the judgment of the House of Lords is not merely in direct contradiction to the constitution and principles of the Free Church, but it is an attack upon the fundamental principles of the Church of Scotland in all its branches, Estab- lished or Free.
I would venture to add that this judgment is one full of danger even for our conditions in England. I do not think that either the Church of England or the Free Churches can assent to a judgment which would seem to confuse the identity of the Church with a stereotyped and immovable system of doctrinal formularies or trusts. The Church of England, no doubt, at present cannot act without reference to Parliament, but the present condition of things is not necessarily the condition of all future time. Whatever may be done to remedy the disastrous results of the judgment, it is above all important that its most dangerous perversion of the principles of the Scottish Churches should be repudiated, and the judgment itself by some means rendered inoperative and void.
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