The Veto Act

Patronage and the call

Since the Act of 1712 a patron presented the minister to a vacant parish, and the presbytery took the presentee [the man presented] on trial. Lord Moncreiff, a judge of the Court of Session, set out the law as he saw it in the Assembly of 1834. The Act of 1690, he said, ordained “that the heritors [landowners of the parish] and elders are to propose the person to the congregation, and if they disapprove of him, the reasons are to be given in to the presbytery, by whose determination the collation [admission] of the minister is to be completed.” And: “The Act of Queen Anne in 1712 repeals the Act only so far as relates to the presentation of the minister by the elders and heritors; it alters nothing as to the manner in which the individual is to be presented to the congregation”.¹

In the Assembly of 1833, M’Crie writes, “in a brilliant speech, it was moved by Dr. Chalmers and seconded by Lord Moncrieff [Moncreiff] that it should be declared as the constitutional principle of the Scottish Church that ‘no pastor should be intruded on any congregation contrary to the will of the people.’” The motion, as the editors of the 1843 printing of the Acts record it, declared it “a fixed principle in the law of this Church, that no minister shall be intruded into any pastoral charge contrary to the will of the congregation”, and that “the dissent of a majority of the male heads of families resident within the parish, being members of the congregation, and in communion with the Church at least two years previous to the day of moderation, whether such dissent shall be expressed with or without the assignment of reasons, ought to be of conclusive effect in setting aside the presentee”.²

The roll was called, and the other motion carried “by a majority of 149 to 137”. Buchanan names the movers: “For the motion of Dr. Chalmers there voted 137—for the amendment of Dr. Cook 149. By this narrow majority of twelve, the triumph of non-intrusion was postponed for another year.”³

The Assembly of 1834

The General Assembly convened at Edinburgh on 22 May 1834, with Dr Patrick M’Farlan as Moderator. Cunningham records that it met in the Tron Church, and that “It was Tuesday, the 27th of May, when the resolution embodying the veto was again introduced. Dr Chalmers was not this year a member of the House, and the measure was intrusted [entrusted] to Lord Moncreiff.”⁴

Overtures on the calling of ministers had come up from the Synod of Lothian and Tweeddale, the Synod of Aberdeen and the Presbytery of Inverness. Against Lord Moncreiff’s motion it was moved “That the General Assembly adhere to the Declaratory Law of last Assembly, approve of the report of the committee of last Assembly for preparing regulations, and direct Presbyteries to proceed in terms thereof.” Cunningham names Dr Mearns, Professor of Divinity in King’s College, Aberdeen, as the first to answer Lord Moncreiff, and Dr Cook as the next. Dr Mearns argued, Cunningham writes, that the right of collation belonged to the presbytery, and that the veto was “a virtual transfer of that right from the presbytery to the people”.⁵

The debate, Cunningham and Buchanan agree, went on from eleven in the morning until eleven at night. The record gives the result: “the roll being called, and votes marked, it carried First Motion, by 184 to 139. And, therefore, the General Assembly declare in terms of the First Motion. Against this resolution Dr Mearns dissented, and to his dissent 105 other members gave in their adherence, subscribed by their names.” Buchanan gives the vote as 184 to 138.⁶

What the Act said

The Act, recorded under the sitting of 31 May 1834, reads: “The General Assembly declare, that it is a fundamental law of this Church, that no pastor shall be intruded on any congregation contrary to the will of the people”. To carry this into effect, it was to be “an instruction to Presbyteries, that if, at the moderating in a call [the meeting at which the congregation calls a minister] to a vacant pastoral charge, the major part of the male heads of families, members of the vacant congregation, and in full communion with the Church, shall disapprove of the person … such disapproval shall be deemed sufficient ground for the Presbytery rejecting such person”.⁷

The people’s veto had a condition: “no person shall be held to be entitled to disapprove as aforesaid, who shall refuse, if required, solemnly to declare, in presence of the Presbytery, that he is actuated by no factious or malicious motive, but solely by a conscientious regard to the spiritual interests of himself or the congregation.” The Assembly sent the Overture down to the presbyteries “for their opinion, and, without a vote, convert the same into an Interim Act” [a law in force for the meantime].⁸

Regulations followed, dated 2 June 1834. Every kirk-session was to make up, within two months, “a list or roll of the male heads of families, who are, at the date thereof, members of the congregation, and also regular communicants”. Dissents were to be “personally delivered in writing by the person dissenting, or taken down from his oral statement by the moderator or clerk of the Presbytery”. Objections of any other kind could still be stated and tried. The last regulation charged presbyteries to “use their utmost endeavours to bring about harmony and unanimity in congregations, and be at pains to avoid every thing which may excite or encourage unreasonable exceptions in people against a worthy person that may be proposed to be their minister.”⁹

The Assembly of 1835, as the Abridgment records, found “that a majority of Presbyteries have given their consent to the ‘Overture on Calls,’ transmitted by the last Assembly”, and enacted “that the said Overture shall be held and acted upon in all time coming as a Standing Law of this Church”. The Regulations, it found, had “not received the consent of a majority of Presbyteries”. They were remitted to a committee, and the revised Regulations were sent down to the presbyteries again and made an Interim Act for the meantime.¹⁰

The chapels of ease

At the same sitting the Assembly passed a “Declaratory Enactment as to Chapels of Ease”, declaring the ministers of chapels of ease [extra churches in crowded parishes] to be “constituent members of the Presbyteries and Synods within whose bounds the said chapels are, or shall be respectively situated, and eligible to sit in the General Assembly”, and directing presbyteries to give each chapel a district as a parish quoad sacra [for church purposes only]. M’Crie writes that “it was not till the Assembly of 1834 that the chapel of ease ministers were allowed to exercise the function of ruling as well as teaching”.¹¹

How the Act was received

M’Crie writes that “For some time the veto wrought delightfully. Out of 200 ministers presented, only ten were vetoed.” Not all its friends approved of it. He records that Dr M’Crie, who in 1833 had published anonymously a pamphlet entitled What ought the General Assembly to do in the Present Crisis?, and who died in August 1835, thought the veto “likely to be found illegal by the civil courts”, and wanted the Assembly to petition instead for the abolition of patronage: “They say,” he observed, “that they have muzzled the monster; it is a mistake, they have only muffled it, and they have muzzled the people.”¹²

Cunningham records that the law officers of the Crown had been consulted and saw nothing to prevent the Church passing the Act, but that “Both the heads of the Court of Session—Lord President Hope and Lord Justice-Clerk Boyle—voted against the veto”.¹³

The Auchterarder case

Cunningham writes that the parish of Auchterarder fell vacant in August 1834, and that “on the 14th of October following, a presentation by the Earl of Kinnoul [Kinnoull], in favour of Mr Robert Young, was laid upon the presbytery’s table.” When the call was moderated, M’Crie writes, it was signed by only two people, Michael Tod and Peter Clarke; Cunningham counts three, two parishioners and the patron’s factor [estate manager].¹⁴

Both histories agree that 287 heads of families came forward to dissent. M’Crie puts the number entitled at 300, Cunningham at 330. Cunningham writes that the Assembly of 1835 told the presbytery to go on under the veto, and that “on the 7th of July following, the presbytery rejected Mr Young.”¹⁵

The patron and presentee raised an action of declarator [a suit asking the court to declare a right] in the Court of Session. M’Crie writes that the case “was carried against the Church by a majority of eight to five of the judges”, Lords Moncreiff, Glenlee, Fullerton, Cockburn and Jeffrey being the minority. The majority, he writes, found that the Presbytery of Auchterarder “had acted to the hurt and prejudice of the patron and presentee illegally and in violation of their duty, contrary to the provisions of the statute of 10th Anne and other statutes.” Cunningham dates the judges’ opinions from 27 February 1838.¹⁶

The Church appealed to the House of Lords, “and there,” M’Crie writes, “after hearing counsel, the judgment of the Court of Session was confirmed.” Cunningham writes that the appeal came before the Lords on 18 March 1839, and that on 2 May Lord Brougham and the Lord Chancellor, Lord Cottenham, began to deliver their opinions.¹⁷

In 1843 Dr Chalmers named this as the first breach in the Church’s privileges: an interpretation of “the Act of Queen Anne, passed in the year 1712, anent [concerning] the restoration of patronage”, given in “their last adverse decision by the House of Peers in the case of Auchterarder”.¹⁸