A View of the Constitution of the Church of Scotland, abridged from the second part of Dr. Hill's Theological Institutes.

III. IN

N delineating any Constitution, it is necessary to explain the manner in which the three powers known by the name of the Judicial, the Legislative, and the Executive, are distributed and exercised.

1. Judicial Power. The Judicial power of the Church appears in the infliction or removal of those censures which belong to a spiritual society. This power is not intrusted by the constitution of this Church to the minister of a parish; for, while he per, forms various offices in his personal capacity, it is only when he sits in the Kirk-session as Moderator, or acts by their authority, that he exercises the judicial power of rebuking, or suspending, or excluding from the privileges of the Church, and of absolving from censure. While those inhabitants of a parish who are of the communion of the Established Church, are thus secured from suffering by the caprice of an in, dividual, they are also guarded against the intrusion VOL. IV.-No. VI. 20

of a neighbouring jurisdiction. They are placed by the constitution under the inspection of the Kirksession of their own parish. There the judical power, when it is exercised with regard to laymen, must originate; and no other Ecclesiastical Court is entitled to interfere in the first instance: although every judicial discussion before a Kirk-session may ascend through the gradation of judicatories, so as to be finally decided by the General Assembly.

The office of a minister being superior to that of an elder, and the minister of a parish being officially the Moderator of his own Kirk-session, he is not amenable to their jurisdiction. His immediate superiors are the Presbytery from whom he received the charge of his parish, who have a right, at any time, to inquire in what manner he performs his official duty; who exercise a censorial inspection over his whole conduct, and who are the only Court before whom it is competent for those who wish to appear as his accusers in an ecclesiastical process, to lodge any complaint against his doctrine, or moral character. Ministers, besides being liable to the same censures as other Christians, may be suspended from the exercise of their ministry, or deposed; and, in consequence of the connexion between the Church and the state, a sentence of deposition, regularly pronounced by the Church-courts, deprives a minister of that right to the stipend and other emoluments which he acquired by his admission, and renders his parish vacant in the eye of law.

It is a matter of essential justice, that every man who is to be tried should know the shape which his accusation must assume, and the form in which he is required to make his defence. The strict observance of a known established mode of trial is peculiarly necessary in the judicial proceedings of the Church, where sentences that affect the character and comfort of the parties, and that deprive a minister of his use

fulness and his freehold, are pronounced by large popular assemblies, the members of which, not being conversant in legal discussion, are in danger of deciding from some strong present impression. The

state of her judicial proceedings was one of the first objects to which the Church of Scotland directed her attention after the revolution: and what is called the form of process, a code of laws which regulates the manner of commencing, of conducting, and of terminating processes for censure, was enacted by the Church in the year 1707. This form of process, with the help of those explications which some parts of it have already received from practice, and a due attention to the rules of Christian prudence and charity, may be executed in such a manner as to attain the great purposes of a judicial code.

2. Legislative Power. Every judicatory is occasionally called to enforce the laws of the Church, by. making such special enactments, in conformity to those general laws, as are suggested by the circumstances of the district under its jurisdiction; and Church-courts, like all others, have a right, within certain limits, to regulate the forms of their own proceedings. It is not to such partial enactments or regulations that we refer, when we speak of the legislative power of the Church. We apply that term to the power of making standing laws concerning matters of general importance, which are binding upon all the members and judicatories of the Church. From the first establishmeut of the Presbyterian government in 1560, till some years after the Revolution, such laws proceeded from the sole authority of the General Assembly. But an act of the Church in the year 1697, which is called the Barrier act, prescribes the following mode of enacting permanent and standing constitutions. The proposal of making a new general law, or of repealing an old one, which is called an overture, originates with some indi

The

vidual, who generally lays it before his Presbytery or Synod, that, if they approve, it may be sent to the General Assembly as their overture. General Assembly may dismiss the overture, if they judge it unnecessary, or improper; may adopt it as it was sent, or may introduce any alteration which the matter or the form seems to require. If it is not dismissed, it is transmitted by the General Assembly, in its original or its amended form, to the several Presbyteries of the Church for their conside ration, with an injunction to send up their opinion to the next General Assembly, who may pass it into a standing law, if the more general opinion of the Church agree thereunto, that is, if not less than forty Presbyteries approve.

The Barrier-act, according to its own preamble, was intended " for preventing any sudden alteration, or innovation, or other prejudice to the Church, "in either doctrine, worship, discipline, or govern“ment, now happily established therein;" and any person who considers the momentary impressions incident to all large bodies of men in the heat of debate, or in their zeal for a particular object, will not think it advisable that a court so numerous as the General Assembly, which sits once a-year for ten days, should have the uncontrolled power of making standing laws upon the spur of the occasion. At the same time, it must be acknowledged, that the operation of the Barrier-act produces great tardiness in the legislation of the Church. For some Presbyteries neglect to send any opinion; others disapprove; others propose alterations; so that many years some. times elapse before the consent of forty Presbyteries can be obtained to the whole complex proposition that was transmitted to them. The remedy for this tardiness is found in that legislative authority which the barrier act seems to reserve to the General Assembly. On the very day in which that act received the

authority of law, ministers and Presbyteries are ordained to obey untransmitted appointments of the Assembly. Ever since that period, when the immediate enactment of the new law proposed in an overture appeared essential for the good of the Church, the General Assembly has exercised the power of converting the overture into what is called an interim act; and it is acknowledged by all who understand the constitution, that, till the meeting of the next Assembly, such temporary enactments are binding upon all the members of the Church. If Presbyteries disapprove of them, they will express their disapprobation in the opinion which they transmit; and the voice of their representatives in the next Assembly will prevent the re-enactment of the overture. The power, therefore, of passing interim acts cannot produce permanent evil. It generally has the effect of rousing Presbyteries to consider the overtures transmitted to them; and, in many instances, the temporary regulations by which this power of the General Assembly had applied an immediate remedy to evils under which the Church was suffering, have acquired the authority of standing laws, either by the tacit acquiescence of the Church during a long course of years; or by the explicit approbation at length obtained from a majority of Presbyteries.

3. Executive Power. The General Assembly, from its first meeting under the Authority of Parliament, in the year 1560, assumed the direction of the ecclesiastical business of the nation, which it managed, first by superintendants, and afterwards by the Presbyteries which it erected in the different districts of the kingdom. In the Second Book of Discipline, which was agreed upon in the Assembly 1578, and inserted in the registers of Assembly 1581, it specified minutely the powers of Presbyteries and Synods; and nearly the same powers described in that book