Church Patronage (Scotland) Act 1711

The Church Patronage (Scotland) Act 1711 or Patronage Act is an Act of the Parliament of Great Britain (10 Ann. C A P. XII). The long title of the act is An Act to restore the Patrons to their ancient Rights of presenting Ministers to the Churches vacant in that Part of Great Britain called Scotland.^[1] Its purpose was to allow the noble and other Patrons in Scotland to gain control over the Church of Scotland parish churches again, having lost that custom in the so-called Glorious Revolution.

Pre-Reformation

The Roman Catholic Church in Scotland received large endowments of land, from the Monarch or landowners, to support Parishes, Abbeys, etc, often with the condition that the donor and his heirs had the right to nominate a suitable cleric or clerics to the enjoy the proceeds of the endowment. In the absence of a specific Patron, the Pope was regarded as the universal Patron. His patronage was exercised through local bishops.^[2]

Reformation

The Church in Scotland was Reformed under the guidance of John Knox and other Reformers. The King took over the lands of Abbeys and Bishoprics, turning many into Lordships for his supporters, or giving some of them to Universities or Town Councils. The lands associated with supporting Parish clergy - or Ministers, as they were now called – were generally undisturbed. The King took over the role of default Patron, in the absence of any specific Patron. The First Book of Discipline (1560) and the Second Book of Discipline (1578) laid down the rules for the reformed Church of Scotland . Both stipulated that Ministers should be chosen by congregations. The First Book never became civil law, and neither did the part of the Second Book relating to Patronage, as the right of the heirs of original donors to nominate suitable clerics to a Parish was called.

However, by an Act of the Parliament of Scotland (1567) presentation by laick (lay) patronages was expressly preserved, the Patron being bound to present a ‘qualified’ person within six months of vacancy occurring. By the same act, an appeal against the presented candidate by the congregation could only be on the basis of the qualifications of the presentee.

By the "Golden Act" of 1592, which established Presbyterianism as the only legal form of Church government in Scotland, Presbyteries were “bound and astricted to receive and admit whatsoever qualified minister is presented be (sic) his Majesty or laic patron”. If a congregation refused to accept a suitable nominee, the Patron was entitled to enjoy the fruits of the original bequest - stipend, lands, house, etc.^[3]

By the beginning of the 17th Century, Patronage was well established in custom and law. A Patron could be the King, one of the Universities, a Town or Burgh Council or a landowner, such as the Duke of Argyle (who had nine patronages).^[4]

17th Century

Turmoil

The Golden Act was repealed as regards Church government by Charles I, but lay Patronage was not repealed. In 1649, just before the execution of Charles I, the Parliament of Scotland passed an Act abolishing Patronage,^[5] but it never received Royal Assent and Scotland was soon over-run by the English. Despite further changes to Church government, (even despite Scotland having been conquered by, and incorporated into, the Puritan Commonwealth of England), Patronage was not formally repealed. Nor was it during the Restoration and the reigns of Charles II and James VII.

1690 Revolution

Following the Dutch invasion of England by the Presbyterian William of Orange, the so-called Glorious Revolution definitively restored Presbyterianism as the only legal form of Church government in Scotland. A 1690 Act (again, by the Parliament of Scotland) did not abolish Patronage, but vested this power instead in the heritors (normally male) and Elders (exclusively male) of each Parish, who could propose a candidate to the whole congregation, to be either approved or disapproved by them. If they disapproved, they needed to give their reasons. Disputes were to be resolved by the Presbytery.^[6] Prebyteries were to pay compensation, typically a year's stipend, to the owner of the abolished Patronage, who was to provide a formal, written renunciation in return.

1707 – Union of Great Britain

The Treaty of Union, signed between Scotland and England in 1706, preserved and guaranteed the separate legal system in Scotland. By separate Acts of Union in the Parliament of Scotland and the Parliament of England, they abolished themselves and set up a single Parliament of Great Britain. A further Act guaranteed the Presbyterian status of the Church of Scotland. It was to be important to future disputes on Patronage that the Church of Scotland as a legal corporation had been established by Act of Parliament. Disputes hung upon the differences between the civil benefices (depending upon civil law) and the spiritual benefices (determined by Church law) of the appointment of a Minister.

The Treaty and the Acts came into force in 1707.

Patronage Act 1711

Patronage was a much less disputed issue in the Anglican Church, and the dispossessed Scottish lay Patrons were able to persuade the united, and mainly Anglican, Parliament of Great Britain that they had unjustly lost a purely civil right. Their case may have been strengthened by the fact that Article 20 of the Treaty of Union had preserved all heritable rights and jurisdictions of pre-Union Scotland. It also helped that the British Government distrusted popular participation in matters of importance, as the selection of Parish Ministers certainly was. Consequently, the Church Patronage (Scotland) Act 1711 was passed, restoring to their original owners the right to present suitably qualified candidates to Presbyteries in the event of a vacancy. Only those Patron's who had renounced their claim in writing in return for compensation were excluded from this, of which there were only three in 1711, Cadder, Old and New Monklands^[7] The effect was the restoration of the situation as it was in 1592. Patrons had to swear oaths of allegiance to the Hanoverian Kings, and “abjure” the claims of the Stuart Pretenders. If they could not do this, they could appoint Commissioners who could to exercise their Patronage in their name.^[8] Patrons did not need to be members of the Church of Scotland.

The Act came into force on 1 May 1712.

Disputes

Reluctant Acquiescence by Moderates

The Church of Scotland mainly acquiesced in this restoration, though it felt aggrieved and the General Assembly protested to Parliament almost every year that it was contrary to the Treaty of Union.^[9] The congregation of a Parish could only legally object to a presentee on the grounds of his suitability, so the General Assembly of the Church of Scotland laid down increasingly stringent educational, moral and practical qualifications for candidates for the Ministry. Moreover, few Patrons dared to suggest scandalously unqualified candidates.

Appointments were, however, regularly contested through the Church courts - Kirk Session, Presbytery and Synod finally to be decided at the General Assembly of the Church of Scotland. As most objections were on the acceptability of the candidate, rather than his suitability, the Assembly usually decided in favour of the Paton, particularly as he could seek civil damages in the Court of Session othewise.

The civil courts were involved because disputes related to the stipends and property of Parishes, to ownership of the property of the right to Patronage, who had the right to exercise it and whether time limits had been breached.

Eventually, as most Ministers owed their appointment to a Patron, they were unwilling to challenge the system. Many were also wary of more democratic involvement in Church governance. The status of the Church itself had been guaranteed by Act of Parliament, so it tended towards supporting legal procedures, though it protested against them. Many Patrons were wary of provoking disputes, so tried to work with the Heritors and Elders of their Parishes to present candidates who met with General Assembly criteria in terms of education, character and practical ability. This group of Ministers, Heritors, Elders and Patrons – called Moderates - formed the dominant group in the Church of Scotland during the 18th Century.

Principled Opposition by Evangelicals

Other Ministers, Heritors and Elders objected to Patronage on principle, as compromising the independence of the Church and the right of congregations freely to call their own Ministers. They viewed the whole of the 17th Century as a struggle to achieve this, most notably during the Covenanter disturbances, culminating in the victory of the Glorious Revolution. Later, this Party of principled opposition was called the Evangelicals. It became dominant in the 19th Century. Moreover, the buying and selling of church offices - Simony - was against Church law. When a Patron tried to sell his right (or, more normally, when this was advertised as part of the sale of an estate), the cry of Simony was raised. As no money passed to Ministers or from Ministers to Patrons, this charge had moral force, but no legal effect, either in Church or civil courts. Discontented Parishioners had many options open to them at every level of Church and Civil courts to question the suitability of a candidate, on educational, moral, or practical grounds, but more normally on the firmness of his attachment to the Westminster Confession of Faith. They could also query the right of a particular Patron, or his Commissioner, or the timing, or formal wording of a particular presentation, or whether formal Church processes had been properly carried out.

In addition to formal, legal opposition, many disputed appointments were occasions for popular demonstrations of discontent, sometimes linked to political demands for more democracy. Presbyteries were empowered to call in the army to impose a disputed appointment.

Outcome

The Act was highly opposed by the Church of Scotland because of its intrusion into church elections and was considered lay investiture. The General Assembly of 1712, inserted a clause in the instructions to its Commissioners to protest to Parliament and this instruction was repeated annually until 1784.^[10] However, due to the strength of the aristocracy, the Act remained in force for a considerable length of time. It was finally repealed by section 3 of the Church Patronage (Scotland) Act 1874 (c.82).

1719 Patronage Act

In 1719 Parliament passed an Act requiring any presentee to declare his willingness to take up a Patron's offer. This was to prevent a Patron presenting a candidate he knew would not, or could not, take up a post, so he could meanwhile make use of the stipend, etc. Many optimistically thought this was the end of Patronage, as no right-thinking Presbyterian would declare willingness to accept a Patron's offer, but after an uncertain few years, Patronage continued as the norm.^[11]

1730 General Assembly

An Act by the General Assembly of 1730, by which objectors to decisions of Church courts could no longer have these officially recorded, was regarded by Evangelicals as a move to silence their opposition to Patronage.

1732 General Assembly

When a Patron failed to nominate a candidate for a vacancy within six months, his right of Patronage fell to the Presbytery. Each Presbytery proceeded as it saw fit, but the General Assembly of 1732 passed an Act which regulated this, by establishing the 1690 rules, granting the Patronage right to the Heritors and Elders, with procedures to be followed if a congregation objected to a candidate. Some members, including Ebenezer Erskine wanted to see the regulations of 1649 applied, by which all (male) "Heads of families" in a congregation called a Minister. The fact that they could no longer have their objections recorded led to the first schism in the Church of Scotland - the Original Secession.

1834 General Assembly Veto Act

An Act of this Assembly was passed, stating that if a simple majority of the male Heads of households objected to a candidate presented by a Patron, and were prepared to give their reasons to the Presbytery, the candidate could not be admitted.^[12] This event marked the end of the dominance of the Moderates and the strength of the Evangelicals.

Great Disruption 1841

A series of civil actions 1838 - 1841 in the Court of Session, and confirmed in the House of Lords declared the above Veto Act ultra vires, so unenforceable by law. They also indicated that the Church of Scotland, having been set up by statute, was subject to the law of the land in all civil matters. Its Prebyteries were liable to severe financial penalties if they resisted Patron's nominees using the Veto Act. Court orders were made forbidding the Ordaining (a spiritual function) of other Ministers who might harm the interests of a Patron's nominee.^[13] This led to the Great Disruption in 1841 - a walk-out of Ministers led by Thomas Chalmers - and the setting up of the Free Church of Scotland.This Church has not doctrinal difference with the majority of other Ministers, who remained within the Church of Scotland, determined to remain within the law, but also determined to have it changed.

End of Lay Patronage

By the Church Patronage (Scotland) Act 1874, 163 years after the 1711 Act, lay patronage was abolished for the Church of Scotland.

It was up to the General Assembly to lay down the rules as to how the view of the congregation was to be decided. Initially, this was by a meeting of all the male Heads of Households and Elders, but a sophisticated process of trials was developed, which by the second half of the twentieth Century, also allowed females a voice in the selection of Ministers. (Women became Deaconesses in 1898, and Elders in 1966, and so eligible to be elected to the General Assembly. They became eligible to be Ministers in 1968.)

External links

• Text of the 1711 Patronage Act^[14]
• Texts of various Acts of the Parliament of Scotland, the Parliament of Great Britain, the Treaty of Union and Acts, Declarations and Instructions of the General Assembly, along with extracts from the First and Second Books of Discipline.^[15]

Sources

• Heatherington, W M History of the Church of Scotland ... to 1841 Johnstone, Edinburgh, 1842^[16]
• The select antipatronage library consisting chiefly of reprints of scarce pramphlets connected with lay-patronage in the Church of Scotland John Johnstone, Edinburgh, 1842^[17]
• Stevens, A J The Statutes Relating to the Ecclesiastical and Eleemosynary Institutions of England, ... etc' Vol I, Parker, London, 1843^[18]
• The Gentleman's Magazine, Vol V, J Murray, Edinburgh 1735^[19]
• Gillan, Robert An abridgment of the acts of the General Assemblies of the Church of Scotland: from the year 1638 to 1820 inclusive, to which is subjoined an Appendix containing an abridged view of the civil law relating to the Church General Assembly, Edinburgh, 1821^[20]
• Dunbar, W H et al, The Scottish Jurist: containing reports of cases decided in the House of Lords, Courts of Session, Teinds, and Exchequer, and the Jury and Justiciary Courts Vol X Michael Anderson, Edinburgh, 1838^[21]
• Bell, William (revised by Ross, G) A Dictionary and Digest of the Law of Scotland, with short explanations of the most ordinary English law terms ' Bell & Bradfute, Edinburgh, 1861^[22]
• Innes, A T The law of creeds in Scotland: a treatise on the legal relation of churches in Scotland established and not established, to their doctrinal confessions Blackwood, Edinburgh, 1867^[23]
• Argyle, Duke of, Speeches of His Grace the Duke of Argyll on the Church Patronage (Scotland) Bill, 2d and 10th June 1874. Blackwood, Edinburgh, 1874^[24]
• Coffey, John Politics, religion and the British revolutions: the mind of Samuel Rutherford Cambridge University Press 1997^[25]
• UK Statute Law Database, 1874^[26]

Notes

1. ^ Stevens, page 702
2. ^ Gillan, page 41
3. ^ Dunbar, pages 380 - 81
4. ^ Argyle
5. ^ Coffey, page 55
6. ^ Dunbar pages 380 - 81
7. ^ Bell, page 621
8. ^ Gillan, pages 41-47
9. ^ Gentleman's Magazine pages 749 - 50
10. ^ Heatherington page 688
11. ^ Heatherington, page 627
12. ^ Heatherington, page 730
13. ^ Heatherington page 738 et seq
14. ^ http://books.google.co.uk/books?id=APw9AAAAcAAJ&pg=PA702&dq=An+Act+to+restore+the+Patrons+to+their+ancient+Rights+of+presenting+Ministers+to+the+Churches+vacant+in+that+Part+of+Great+Britain+called+Scotland&ei=QgsqTbzwO5quzQSZ7OH-DA&cd=2#v=onepage&q=An%20Act%20to%20restore%20the%20Patrons%20to%20their%20ancient%20Rights%20of%20presenting%20Ministers%20to%20the%20Churches%20vacant%20in%20that%20Part%20of%20Great%20Britain%20called%20Scotland&f=false
15. ^ http://books.google.co.uk/books?id=aRRAAAAAcAAJ&printsec=frontcover#v=onepage&q=acts&f=false
16. ^ http://books.google.co.uk/books?id=WgUd42Jgqz8C&printsec=frontcover#v=onepage&q&f=false
17. ^ http://books.google.co.uk/books?id=aRRAAAAAcAAJ&source=gbs_navlinks_s
18. ^ http://books.google.co.uk/books?id=APw9AAAAcAAJ&printsec=frontcover#v=onepage&q&f=false
19. ^ http://books.google.co.uk/books?id=p1U3AAAAYAAJ&pg=PA750&lpg=PA750&dq=An+Act+to+restore+the+Patrons+to+their+ancient+Rights+of+presenting+Ministers+to+the+Churches+vacant+in+that+Part+of+Great+Britain+called+Scotland.&source=bl&ots=EY2OxTYPhv&sig=nQNfgv3tcB9MKeeKQdOz9CPZcA&hl=en&ei=FAQqTdGEFsHQhAfh2IWNDA&sa=X&oi=book_result&ct=result&resnum=10&ved=0CFUQ6AEwCQ#v=onepage&q=An%20Act%20to%20restore%20the%20Patrons%20to%20their%20ancient%20Rights%20of%20presenting%20Ministers%20to%20the%20Churches%20vacant%20in%20that%20Part%20of%20Great%20Britain%20called%20Scotland.&f=false
20. ^ http://books.google.co.uk/books?id=PE83AAAAMAAJ&dq=a+new+abridgement+of+the+law:+...,+teind&source=gbs_navlinks_s
21. ^ http://books.google.co.uk/books?id=J6oDAAAAQAAJ&printsec=frontcover#v=onepage&q&f=false
22. ^ http://books.google.co.uk/books?id=FfEZAAAAYAAJ&printsec=frontcover#v=onepage&q&f=false
23. ^ http://books.google.co.uk/books?id=fcs2AAAAIAAJ&pg=PA132&dq=Scottish+Jurist+Patronage&ei=wEInTeXNLMzvUJLRqbII&cd=5#v=onepage&q=Patronage%20Act&f=false
24. ^ http://www.archive.org/stream/speechesofhisgra00argy#page/4/mode/1up
25. ^ http://books.google.co.uk/books?id=BY4r62Zw5nMC&pg=PA190&dq=Golden+Act+James+VI+1592&lr=&ei=UewpTZrxOMPhUMSIvZoH&cd=11#v=onepage&q=Golden%20Act%20James%20VI%201592&f=false
26. ^ http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&title=Church+Patronage+(Scotland)&Year=1874&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&TYPE=QS&PageNumber=1&NavFrom=0&parentActiveTextDocId=1052857&ActiveTextDocId=1052857&filesize=13610