The focus is clearly on constitutional matters. The article was not written in order to heighten controversy or out of partisan bitterness. It concludes by observing 'it would benefit us to remember Dr Owen's wise words that the closer two bodies are to one another in confession and in principle, often the more contentious they are against one another – a thing that does not arise from love or envy for the truth but from the corruption that remaineth in them'.
The article makes some important points, however. It begins by describing the situation immediately before 1900 when the Free Church united with the United Presbyterian Church. 'Before the Union took place last year, we noticed if our memory serves us right, a section within the Free Church that at one time claimed to be of the same opinion as ourselves concerning the standing/principle of the Church. When we refused to depart a hair's breadth from that standing/principle, they accused us and said that that was not the time for bearing a distinct witness but that we ought to have kept the peace until the matter came to making a union with another body, and until a change would be made to the questions put to office bearers. At the time we noticed that of that body, very little was to be heard among them concerning the taking of a stand when the Union would come about. We are now pleased that when the Union did take place that many stood against it and refused to go in with it. They therefore proved what they meant before then that that was the time to stand separate from the majority who were determined on permanently backsliding. But there were some of them who went in with the union and who therefore ate their own words'.
Macleod then draws a comparison with the Ten Years Conflict before the time of the Disruption in 1843. 'Before the time of the Disruption when Patronage was in the Church of Scotland, the Church made a law in the year 1834 which gave great freedom to those whom the landlord was trying to impose a minister over them against their will. This law was called the Veto Act. The civil courts came to the conclusion that the church went outside its remit when it took this step and there was therefore no substance in the Act. The Moderates were against this act but when they got their own way after the Disruption, they did not repeal it. What did they mean by this step? They esteemed it as a dead letter because that was the mind of the law courts after it had been found, according to their opinion, as not being in harmony with the founding principles of the Church. They never as much as gave it a reverend burial. With that, they were in effect admitting that the Church was not an independent/voluntary/self-ruling organisation that had the ability to make laws that its members must obey'. The Veto Act was a measure which was introduced enacting that if a majority of the male heads of families, being communicants, in a congregation entered a positive dissent against a call that it should have the effect of nullifying a presentation by a patron. When presbyteries acted according to this it was overturned in the civil courts. The Moderates were accepting that any civil law has precedence over Church law and that the Church has no power to enact anything contrary to civil law. Anything that the Church legislates in conflict with civil law is beyond its powers and therefore a dead letter. This is how the Moderates regarded the Veto Act of 1834, there was no need to repeal it, it could just be ignored as inoperative because the Assembly had exceeded its powers in passing it.
It goes without saying that this view is Erastian and not at all correct in its understanding of Church authority. Macleod goes on to comment. 'Such was not the opinion of the Free Church of Scotland. That was not in the mind of the worthies who opposed the Union thirty years ago and that is not the principle on which we stood as a church when we refused to submit to the Declaratory Act in 1893. As far as we can see, the Free Church of Scotland, since the time of the Reformation, has always had such authority over its members that they are expected to be submissive to every law and statute she has made. Since we cannot be submissive to the courts of a Church that has in a perverse manner released her office bearers from the oaths to which they are bound, we had no alternative but to stand aside'. To speak of an act as a dead letter is to dismiss the true authority of the Church and its courts. This is a significant question when compared with the Disruption of 1843 because the issue at stake there, as Macleod indicates, was the relation of judicial and constitutional law. As James Bannerman put it 'The Church, as the visible society of professing Christians in the world, with its outward provision of authority and order and government, owes its origin to Christ as Mediator' not to the State, 'the Church must be free to judge and act for herself according to the law of Scripture, without responsibility to or interference from the State'.
Macleod points out that those who were professed constitutionalists but did not take the Free Presbyterian position in 1893 did so largely on the advice of lawyers who they consulted as to whether they would retain the property if they separated at that time. The Constitutionalists consulted eminent legal opinion about property in winter 1892-3 in Scotland and England but it was not favourable to their retaining property unless Union came about. Hence the tone changed decided to fight from within. According to Free Church Counsel Mr Johnson in the 1904 case, it was a case of waiting till the best legal grounds for contesting the property came up - 'we have certainly resisted, and when it comes to touch property, then is our opportunity'. Therefore they hung on even though they were unable to protest and certainly seemed to change very easily from their dissent in 1892 where they stated that 'the Church is left without any definite, fixed or authoritative standard of doctrine'. Macleod comments on this: 'We can give the benefit of the doubt to those who always confessed to be opposed to the change that was made at that time that they stayed in (as the terminology goes) on the advice of lawyers. This was the issue, and, if our memory serves us right, some of them were denying it at the time, that they didn't as a body admit to it at all that they had consulted lawyers. But if it is that it was on the advice of lawyers that they took the step that they did take, we think that they were of the same opinion concerning the power of the Church as were the Church of Scotland people after the Disruption when they would take nothing to do with the Veto Act [when they didn't touch the Veto Act]. After they thought that the Church had gone past her right [taken liberty of her position] in the presence of the Most High, they came to the conclusion that she exceeded her power among [the] people and that the Declaratory Act was not worth the paper it was written on'.
Macleod then brings in the fact that the Declaratory Act had been made the law of the Church under the Barrier Act. This is an act that required the consent of the majority of presbyteries before legislation could be made a binding law and constitution. The Barrier Act was necessary because only a third of the presbyteries was represented at any General Assembly. In order for the whole Church to express their mind on something – the Barrier Act allowed for all members of presbyteries to be consulted. 'If it was not that office-bearers had been asked to be obedient to the Church courts, they'd have had some foundation to support this opinion but we cannot see as things are at present that they had a foundation to stand on. The Barrier Act was made law in the Church of Scotland over two hundred years ago so that the whole Church could not be put under a law by one General Assembly alone. Each year there was only a third of the presbytery members at the Assembly and if every conclusion that the Assembly came to was binding on the whole Church, a third of the presbytery members – and indeed a fifth – could bind the whole Church'.
'When a new statute like this is being drawn up, often the office-bearers are not of the same mind. Those who are against it may either submit a dissent or a protest – that is, though they are against it, if they can cooperate with the body which made the new statute, they may [so do], in order to display such dissent or to publicize that it was against their wish that the thing was made. But if they are unable to cooperate with the new thing then it is a protest they will lodge or a "protection clause" stating that they are unable to be submissive in the courts regarding the matter. If they do get the opportunity to make a "protection clause" like this and to get it in writing in the Church books, then they are protected and a restriction is placed on the new statute. But if they fail to obtain this, they can be no longer obedient to the courts of the Church. We have no recollection of there having been such a "protection clause" allowed after the Church introduced a statute under the Barrier Act'.
This is because any legislation passed under the Barrier Act is 'a binding law and constitution' and if it is binding then disobedience to it is not possible. This was clearly the understanding of the Free Church General Assembly of 1893 when it instructed all inferior courts to disallow and delete (physically expunge) all protests against the Declaratory Act. (e.g. Synod of Glenelg, Synod of Caithness and Sutherland cf. Also case in Synod of Ross - Minutes of FC General Assembly Sat 20 May 1893 and Thurs 25 May 1893). At Dores and Dornoch where men had sought to subscribe the Formula expressly repudiating the Declaratory Act, this was disallowed. This showed that individuals were bound by the Act even in their consciences since it was impossible to protest against it in order to clear the conscience. Dr Rainy confirmed this in 1893 at the General Assembly where he states: 'A protest [against legislation under the Barrier Act] really meant a denial in the meantime, a denial of the validity of the action that was protested against, that it is null and void in an inferior court. They protested and appealed, they protested and complained, and their protest suspended the operation of the Act that had been passed until it was renewed. That was why there was no such thing as a protest against the decision of the General Assembly'. Elsewhere John MacLeod points out that, 'Defiant protests against the law of the Church are plain breaches of ordination vows. At ordination, every office-bearer vows submission to the lawful courts of the Church. Refusing to acknowledge a law of the Church is not obedience, it is contumacy'.
Macleod shows that Dr John Kennedy of Dingwall was clear on the principle that if anything is passed under the Barrier Act one would have to separate – because it would become constitutional. Sometimes questions have been raised as to what John Kennedy would have done if he had been alive in 1893, but it is quite clear from his own words that follow and elsewhere. 'Twenty years ago, when Dr Kennedy was protesting against the Disestablishment of the Established Church, he published a book to explain the matter to the people of the Highlands; in that Booklet, he clearly demonstrated the mind of which he himself was concerning the effect of this Barrier Act. He set his case as follows: "If the Assembly of 1880 had put to the presbyteries through the Barrier Act what the majority had agreed on, there would be no Free Church today. And what right do the Leaders have to be entangling the Church in things that they themselves wouldn't dare to commit themselves to? If they had given such support to that matter in 1880, I, as one, could no longer be connected with a Church that, by such, was forsaking its distinctive stance….and the connection would only have been broken by myself remaining faithful to the Free Church." Now, this was the mind of the minority in the Free Church until 1892 and it was on the basis of this principle that we took the stance that we took'.
Macleod makes it clear that the constitutionalists shared this understanding of the effect of the Barrier Act. We know that the leader of the Constitutionalists, Rev. Murdo Macaskill, Dingwall took the following view of protest :"To protest, for instance against the decision of the General Assembly as the final Court of Review, in a case at the bar is useless, and on the face of it, absurd. Again, to table an absolute protest against the validity of a General Assembly in any of its public Acts is plainly inadmissable, because it would be calling in question the supreme and rightful authority of the Court, itself, calling in question, in short, its right to exist, and disowning its authority. The immediate consequence of such action would necessarily be the disowning of an separation from the jurisdiction of such a Court by the protesters. Such was the nature of the action which resulted in the Disruption". (Ross-shire Journal Sept. 30, 1892).
Macleod applies these considerations to the situation in 1901. 'It's on the other principle [i.e. the Moderate principle as to Church authority] that the Free Church is today claiming its right for the name and place of the Free Church – that is that they were claiming that the Declaratory Act was a dead letter after it had been made law by the authority of the Church. But at the same time they clearly make public their mind as soon as they are vindicated by the courts of law that they would wish to repeal the Acts of Declension...We are of the opinion that they took the wrong step nine years ago and their feet are now "bogged down" in more ways than one. If they had taken a brave stand at that time, they'd have had an excellent opportunity and out of all probability, the Highlands at any rate would have been kept pretty well sound to the present day...Now when they attempt to repeal the "acts of Declension", it won't be easy to reconcile that with their opinion that the Act of 1892 was a dead letter. It was in 1892 that they changed their minds and it was the bad step that they took at that time that mostly stands against them today'.
The subsequent effects of that position are that, while the Declaratory Act was repealed when the property was secured through the law courts, the spirit of the Declaratory Act lived on in those individuals who made it public that they did not believe parts of the Westminster Confession (and therefore not the whole doctrine) but no discipline was applied. This was the case in the 1930s with Professors Mackay and Alexander who denied that God had so preserved his Word that it was 'by his singular care and providence kept pure in all ages'. This was what was being taught to students for the ministry. Later people could express public disagreement with the Confessional position on six day creation, the papal Antichrist and other matters with impunity. No Declaratory Act had been passed but the spirit had lived on and so had the spirit of inaction in the face of it.
Kenneth MacRae wrote "The Resurgence of Arminianism" in the 1950s to protest against the laxity of views within the Free Church at the time as to Free Church principles and as to doctrine. Free Church men were looking favourably upon the Arminianism of Billy Graham, Keswick and the Faith Mission. They now viewed the issues of 1900 and before as related solely to Higher Criticism when, as MacRae well pointed out, the real issue was Arminianism. What was said to be a 'dead letter' proved to have a rather long life and influence.
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