The text of the Act of Parliament for securing the Church of Scotland from being interfered with by the British Parliament, which we give below, has a peculiar significance at this time, when a cry for disestablishment receives a noisy support from a portion of our people. It will be seen that while the English were at liberty to frame such regulations as would safeguard their own Church, the Scotch, being the weaker party, made a strong bargain for themselves.
When the English and Scotch Parliaments were abolished in 1707, and a new Parliament called the British was created, it was established upon certain sound political principles. The men who surrendered the Scottish Parliament were neither wise nor good, but basely corrupt; but they were not lunatics, and bad as they were they would have scorned to surrender the whole national life of Scotland to the English. This would have been the certain result if in a Parliament where Scotland had only 45 votes to England’s 513, if terms had not been made which preserved the institutions of Scotland. The articles of the Treaty of Union clearly defined the powers of the British Parliament, and the preservation of the national life of Scotland was secured by reserving the College of Justice representing the criminal and civil law, and the Church of Scotland, it is certain that the destruction of the Church would be speedily followed by the destruction of the College of Justice. We know that it is a common opinion among English lawyers that the separate laws of Scotland should form a part of the Northern Circuit of England. Those who wish the Church to remain as it is and those who desire that she should be disestablished and disendowed, can only touch the Church by an act of violence. As a strong man can bind a weak, and despoil him of his goods, so the British Parliament can set aside the constitutional rights of Scotland. This is not alone our opinion; we have pleasure in adding the testimony of a high legal authority, Lord Justice-Clerk Hope.
Opinion of Lord Justice Clerk Hope in the case of the Minister of Prestonkirk against the Heritors, 1808.
‘At the Union much was to be done. The existence of the Presbyterian Church was to be provided for so that it should remain unalterable and perpetual, and that in Union with a country in which a different Church, at least a Church under a very different hierarchy was established. In settling the Union this most important matter was not to be left to a Parliament in which the Church of Scotland was not represented. The Church of England was held by our ancestors as not only a different but an absolutely hostile Church. Of that Church, at the Union, they were more jealous than of the Church of Rome itself. We now view this matter in a very different light. So extremely slight are the differences, if any truly exist, between the doctrines of the two Churches, that though a rooted Presbyterian I hold myself at liberty to communicate with the Church of England while I happen to reside in that country. Our ancestors, however, were of a very different opinion. Accordingly, actuated by that jealousy, our ancestors at the Union provided that the regulations applicable to our National Church should be absolutely irrevocable, and that the Parliament of Great Britain should have no power to alter or repeal those provisions. An attempt to do so (such were the precautions then observed) would amount to a dissolution of the Union, and the consequences might be dreadful. Resistance on the part of Scotland could hardly be termed rebellion.’
Follows the tenor of the foresaid Act for securing the Protestant Religion and Presbyterian Church Government.
Our Sovereign Lady and the Estates of Parliament, considering that, by the late Act of Parliament, for a Treaty with England for an Union of both kingdoms, it is provided, That the Commissioners for that Treaty should not treat of or concerning any alteration of the worship, discipline, and government of the Church of this kingdom, as now by law established; which Treaty being now reported to the Parliament, and it being reasonable and necessary that the true Protestant religion, as presently professed within this kingdom, with the worship, discipline, and government of this Church, should be effectually and unalterably secured; therefore Her Majesty, with advice and consent of the said Estates of Parliament, doth hereby establish and confirm the said true Protestant religion, and the worship, discipline, and government of this Church, to continue without any alteration to the people of this land in all succeeding generations; and more especially, Her Majesty, with advice and consent foresaid, ratifies, approves, and for ever confirms the fifth Act off the first Parliament of King William and Queen Mary, entituled ‘Act for Ratifying the Confession of Faith, and Settling Presbyterian Church Government,’ with the whole other Acts of Parliament relating thereto, in prosecution of the Declaration of the estates of this kingdom, containing the Claim of Right, bearing date the 11th of April 1689; and Her Majesty, with the advice and consent foresaid, expressly provides and declares, that the foresaid true Protestant religion contained in the above-mentioned Confession of Faith, with the form and purity of worship presently in use within this Church, and its Presbyterian Church government and discipline, that is to say, the government of the Church by kirk-sessions, presbyteries, provincial synods, and general assemblies, all established by the foresaid Acts of Parliament, pursuant to the Claim of Right, shall remain and continue unalterable; and that the said Presbyterian government shall be the only government of the Church within the kingdom of Scotland. And further, for the greater security of the foresaid Protestant religion, and of the worship, discipline, and government of this Church, as above established, Her Majesty, with advice and consent foresaid, statutes and ordains, That the Universities and Colleges of St Andrews, Glasgow, Aberdeen, and Edinburgh, as now established by law, shall continue within this kingdom for ever. And that, in all time coming, no professors, principals, regents, masters, or others bearing office in any university, college, or school, within this kingdom, be capable, or be admitted or allowed to continue in the exercise of their said functions, but such as shall own and acknowledge the civil government in manner prescribed, or to be prescribed by the Acts of Parliament. As also, that before or at their admissions, they do and shall acknowledge and profess, and shall subscribe to the foresaid Confession of Faith, as the confession of their faith; and that they will practise and conform themselves to the worship presently in use in this Church, and submit themselves to the government and discipline thereof, and never endeavour, directly or indirectly, the prejudice and subversion of the same; and that before the respective Presbyteries of their bounds, by whatsoever gift, presentation, or provision, they may be thereto provided. And further, Her Majesty, with advice foresaid, expressly declares and statutes, that none of the subjects of this kingdom shall be liable to, but all and every one of them for ever free of any oath, test, or subscription, within this kingdom, contrary to, or inconsistent with the foresaid true Protestant religion and Presbyterian Church government, worship, and discipline, as above established; and that the same, within the bounds of this Church and kingdom, shall never be imposed upon, or required of them in any sort. And lastly, that after the decease of Her present Majesty (whom God long preserve), the sovereign succeeding to her in the Royal Government of the kingdom of Great Britain, shall, in all time coming, at his or here accession to the Crown, swear and subscribe that they shall inviolably maintain and preserve the foresaid settlement of the true Protestant religion, with the government, worship, discipline, right, and privileges of this Church, as above established by the laws of this kingdom, in prosecution of the Claim of Right. And it is hereby statute and ordained, that this Act of Parliament, with the establishment therein contained, shall be held and observed, in all time coming as a fundamental and essential condition of any Treaty of Union to be concluded betwixt the two kingdoms, without any alteration thereof, or derogation thereto, in any sort for ever. As also, that this Act of Parliament, and settlement therein contained, shall be insert and repeated in any Act of Parliament that shall pass, for agreeing and concluding the foresaid Treaty of Union betwixt the two kingdoms; and that the same shall be therein expressly declared, to be a fundamental and essential condition of the said Treaty of Union, in all time coming. Which articles of Union, and Act immediately above written, Her Majesty, with advice and consent foresaid, statutes, enacts, and ordains to be, and continue, in all time coming, the sure and perpetual foundation of a complete and entire Union of the two kingdoms of Scotland and England, under this express condition and provision, that the approbation and ratification of the foresaid articles and Act shall be no ways binding on this kingdom, until the said articles and Act be ratified, approven, and confirmed by Her Majesty, with and by the authority of the Parliament of England, as they are now agreed to, approven, and confirmed by Her Majesty, with and by the authority of the Parliament of Scotland. Declaring, nevertheless, that the Parliament of England may provide for the security of the Church of England as they think expedient, to take place within the bounds of the said kingdom of England, and not derogating from the security above provided for establishing of the Church of Scotland within the bounds of this kingdom. As also the said Parliament of England may extend the additions of Union, as above insert in favour of the subjects of England, which shall not suspend or derogate from the force and effect of this present ratification, but shall be understood as herein included, without the necessity of any new ratification in the Parliament of Scotland. And lastly, Her Majesty enacts and declares, that all laws and statutes in this kingdom, so far as they are contrary to, or inconsistent with the terms of these articles as above mentioned, shall, from and after the Union, cease and become void.