The Claim of Right

The Assembly of 1842

M’Crie writes that the Assembly of 1842, “at which Dr. Welsh was moderator and the Marquis of Bute commissioner, the last held in the Establishment under the reign of the reforming party, was signalized by two things deserving special notice.” The first was Dr Cunningham’s motion against patronage, which carried by 216 votes to 147, with the support of Dr Chalmers.¹

The second was the Claim of Right. On 24 May the Assembly took up an “Overture for a Declaration against the unconstitutional encroachments of the Civil Courts”. The first motion was to “approve of the tenor of the Declaration and Claim proposed in the said Overture”, and to remit it to a committee for “any verbal emendations or alterations that may appear necessary to render it fit to be given forth as the declaration of this House.” M’Crie, Hanna and Buchanan all name Dr Chalmers as its mover.²

The other motion, Dr Cook’s, would have had the Assembly declare that “as the Act on Calls, commonly denominated the Veto Act, infringes on civil and patrimonial [property] rights, with which, as the Church has often declared, it is not competent for its judicatories to intermeddle, the said Act is hereby declared to be null and void”, and that differences over the application of the Church’s principles should afford “no ground for those who may so differ separating from each other”.³

Hanna gives Dr Chalmers’s words in the debate: if the Church must lose her endowments, “let the act of our deprivation appear in its true character, not as the spontaneous doing of so many simpletons among ourselves, but as a great national act of injustice, a flagrant breach of all national honour and good faith.”⁴

The vote

Buchanan writes that it was “Nearly three hours after midnight, when the early dawn of a summer’s day was already dimming the lights in St. Andrew’s church, where the assembly was convened,” that the debate closed. The record says that the vote “carried first motion by a majority of 241 to 111. Whereupon the Assembly found in terms of the first motion. From which finding Dr Cook dissented in his own name, and in name of all who might adhere to him; to which dissent adhered Dr Haldane and several others. The Assembly appointed a committee to revise the Declaration and Claim.” (Some sources list 241 to 110.)⁵

The revised document was recorded as Act XIX of the Assembly, in its seventeenth sitting, on 30 May 1842. M’Crie writes that it “had been intrusted [entrusted] to Mr. Alexander Dunlop, the jurist of the Free Church”; Buchanan, that its drawing up “had been entrusted to Mr. Dunlop”. M’Crie quotes Buchanan’s judgment of it: “Its style, grave and perspicuous,—its tone, calm and solemn,—its facts, well chosen, accurately stated, and lucidly arranged,—its argument, direct and powerful,—its conclusion, clear and resolute”.⁶

What the Claim says

The Assembly, “taking into consideration the solemn circumstances in which, in the inscrutable providence of God, this Church is now placed”, found that the securities for its government and liberties “provided by the statutes of the realm, by the constitution of this country, as unalterably settled by the Treaty of Union, and by the oath ‘inviolably to maintain and preserve’ the same, required to be taken by each Sovereign at accession”, had “of late been assailed by the very Court to which the Church was authorised to look for assistance and protection”.⁷

It begins from the Confession of Faith: “there is no other Head of the Church but the Lord Jesus Christ”, and “the Lord Jesus, as King and Head of his Church, hath therein appointed a government in the hand of Church officers distinct from the civil magistrate”. That government, the Claim adds, is “ministerial, not lordly, and to be exercised in consonance with the laws of Christ, and with the liberties of his people”. It covers “the preaching of the Word, administration of the sacraments, correction of manners, the admission of the office-bearers of the Church to their offices … and, generally, the whole ‘power of the keys’ [the Church’s authority of discipline]”.⁸

It does not claim civil power. The Church’s jurisdiction “doth not interfere with the jurisdiction of secular tribunals, whose determinations as to all temporalities [church property and income] conferred by the State upon the Church, and as to all civil consequences attached by law to the decisions of Church Courts in matters spiritual, this Church hath ever admitted, and doth admit, to be exclusive and ultimate”.⁹

It then sets out the statutes that recognised this, from the Acts of King James VI’s first Parliament and the Act of 1592 to the Act of 1690 “ratifying the Confession of Faith, and settling Presbyterian Church government”, and lists the ways in which the Court of Session had “stepped beyond the province allotted to them by the Constitution”: by interdicting [forbidding by court order] presbyteries from admitting ministers, by ordering a presbytery to take on trial and admit a probationer [licensed preacher, not yet ordained] “contrary to the will of the people”, by interdicting the preaching of the Gospel in a district, by suspending Church censures, and by judging who might sit in the General Assembly. The margin names the cases: Lethendy, Stewarton, Marnoch, Daviot, Strathbogie and others.¹⁰

The Claim: the Assembly “do, in name and on behalf of this Church, and of the nation and people of Scotland, and under the sanction of the several statutes, and the Treaty of Union herein before recited, claim, as of right, that she shall freely possess and enjoy her liberties, government, discipline, rights, and privileges, according to law, especially for the defence of the spiritual liberties of her people, and that she shall be protected therein from the foresaid unconstitutional and illegal encroachments of the said Court of Session”.¹¹

The Declaration: “they cannot, in accordance with the Word of God, the authorised and ratified Standards of this Church, and the dictates of their consciences, intrude ministers on reclaiming [objecting] congregations, or carry on the government of Christ’s Church, subject to the coercion attempted by the Court of Session as above set forth; and that, at the risk and hazard of suffering the loss of the secular benefits conferred by the State, and the public advantages of an establishment, they must, as by God’s grace they will, refuse so to do”.¹²

The Protest: “all and whatsoever acts of the Parliament of Great Britain, passed without the consent of this Church and nation, in alteration of, or derogation to the aforesaid government, discipline, right, and privileges of this Church … as also, all and whatsoever sentences of courts in contravention of the same government, discipline, right, and privileges, are and shall be, in themselves, void and null, and of no legal force or effect”. The Church would yield its civil rights under protest, and “it shall be free to the members of this Church, or their successors, at any time hereafter, when there shall be a prospect of obtaining justice, to claim the restitution of all such civil rights and privileges, and temporal benefits and endowments”.¹³

Finally the Assembly called “the Christian people of this kingdom, and all the Churches of the Reformation throughout the world, who hold the great doctrine of the sole Headship of the Lord Jesus over his Church, to witness, that it is for their adherence to that doctrine … that this Church is subjected to hardship”, and invited all who were willing “to suffer for their allegiance to their adorable King and Head, to stand by the Church, and by each other”.¹⁴

The same day the Assembly sent the Claim to the Queen with an Address, signed by Dr David Welsh as Moderator, saying that the Assembly could not “submit to the coercion attempted over us in the exercise of our spiritual functions by the said Court, and must refuse to do so, even at the hazard of the loss of the temporal advantages we at present enjoy”.¹⁵

The Convocation and the Government’s answer

Buchanan and M’Crie write that a Convocation of ministers met at Edinburgh on Thursday 17 November 1842. M’Crie writes that it opened with a sermon by Dr Chalmers in St George’s Church on the text “Unto the upright there ariseth light in the darkness”, and then adjourned to Roxburgh Church, with Dr Chalmers in the chair. Buchanan counts 465 ministers who took their seats, and 354 who concurred in its resolutions on Tuesday 22 November. M’Crie writes that “Nearly 500 came together”.¹⁶

Dr James Hamilton of London, who was present, wrote of Dr Patrick M’Farlan of Greenock, “who, holding the richest benefice [paid parish living] in Scotland, most appropriately moved the resolution, that rather than sacrifice their principles they should surrender their possessions.”¹⁷

The Free Church’s Acts print the correspondence that followed. The Commission of the General Assembly sent a Memorial to the Government, dated 17 November 1842. Sir James Graham, the Home Secretary, answered from Whitehall on 4 January 1843. He had laid the Assembly’s addresses before the Queen, but had declared “that this act was not to be regarded as any admission whatever either of the Claim of Right or of the grievances set forth in these two documents.” The Commission petitioned Parliament on 31 January 1843.¹⁸

The same volume records that on 8 March 1843 Mr Fox Maule moved in the House of Commons “That this House will immediately resolve itself into a Committee, to take into consideration the Petition of the Commission of the General Assembly of the Church of Scotland”. The House divided: ayes 76, noes 211. M’Crie writes that the motion was “negatived by a large majority”.¹⁹