201 



FREE CHURCH OF SCOTLAND. 



FREE WILL. 



202 



the Court of Session by the patron and the presentee, and on the 5th 

 of March, 1838, the court, by a majority of eight to five, found that 

 the presbytery, in rejecting the presentee on the sole ground that the 

 male heads of families in communion with the church had dissentec 

 without assigning reasons, had acted to the hurt and prejudice of the 

 pursuers, illegally, in violation of their duty, and contrary to statute 

 On the 3rd of May, 1839, this decision was affirmed on appeal in the 

 House of Lords. Mr. Young afterwards raised an action of damages 

 against the presbytery, on the ground of his having been a sufferer by 

 their illegal conduct, and obtained a verdict in his favour. This was 

 called " the Auchterarder case." The presbytery had refused to retrace 

 their steps, and had inducted another person before preventive lega 

 measures could be taken in the matter. But the Lethendy case took a 

 different shape. In 1835 Mr. Clark received a presentation to that 

 parish from ths crown, in which the patronage was vested. A majority 

 having dissented, he was rejected by the presbytery. In the mean 

 time the crown, yielding to these proceedings as legal, issued a pre- 

 sentation to another person ; and thus the two presentees were able to 

 fight the battle of the legality as a question of patrimonial right. Mr 

 Clark not only brought an action into court, as had been done in the 

 Auchterarder case, but he likewise applied for an interdict, the 

 ( "iuiterpart of what is in England called an injunction, and the Court 

 of Session accordingly interdicted the second presentee from presenting 

 himself, and the presbytery from inducting him. The presbytery 

 applied to the General Assembly for instructions, and the Assembly 

 directed them to disregard the interdict of the Court of Session, and 

 to put in force the Veto Act. They therefore proceeded with the 

 induction of the second presentee. On this the majority of the 

 presbytery were cited to appear before the Court of Session, to answer 

 to a complaint for breach of interdict ; and on the 14 June, 1839, they 

 were reprimanded at the bar of the court, and informed that a 

 repetition of the offence would be followed by imprisonment. 



The celebrated Strathbogie case assumed an aspect considerably 

 different. In June, 1837, Mr. Edwards received a presentation to the 

 parish of Marnocb, which he laid before the presbytery of Strathbogie, 

 the majority of whom were opponents of the Veto Act. A majority 

 of the communicant* having vetoed Mr. Edwards, the presbytery, by 

 the direction of the superior church courts, rejected him. A second 

 presentation to a different person was granted by the patron, but Mr. 

 Edwards, as in the case of Lethendy, obtained an interdict against the 

 presbytery taking any steps in favour of the second presentee, and 

 raised an action to have it declared that his own rejection was illegal. 

 In these circumstances the presbytery resolved to postpone their pro- 

 ceedings until the courts of law had given final judgment. Mr. Ed- 

 wards obtained a decree to the effect that the refusal of the presbytery 

 to take him on trial and induct him was to his hurt and prejudice, 

 illegal, in violation of duty, &<:., and enjoining them to take him on 

 trial, and act as if no law of the church'such as the Veto Act existed. 

 The presbytery applied to the superior church courts, which directed 

 them still to put the Veto Act in force. Thus, being directed by the 

 courts of law to take a particular step, and by the superior ecclesiastical 

 judicatories to take one in the reverse direction, the presbytery would 

 of course act aa then- own views of a proper jurisdiction in the matter 

 might direct. The majority being of the moderate party, they de- 

 cided by a majority that they would obey the courts of law, and they 

 consequently took Mr. Edwards on trial, and inducted him. Then 

 occurred an event from which every one saw that the Church of Scot- 

 land must inevitably be split in two. On the 13th December, 1839, 

 the commission of the General Assembly suspended the majority of 

 the presbytery of Strathbogie from their ecclesiastical functions, di- 

 rected other clergymen to perform their duties, and declared the 

 minority of the presbytery to be entitled to perform the corporate 

 functions of the presbytery. On the 27th May, 1841, this suspension 

 was made perpetual by the General Assembly deposing the members 

 of the majority of the presbytery, and recalling Mr. Edwards's licence 

 as a preacher. In the meantime the court of session interdicted the 

 practical application of these proceedings of the ecclesiastical courts, 

 directing the interdicts against any clergymen of the established church 

 usurping the functions of the majority of the presbytery of Strath- 

 bogie, whether individually or collectively. The execution of the 

 sentence of deposition by the General Assembly was also interdicted. 

 Thus the presbytery of Strathbogie was divided into two bodies the 

 one supported by the superior ecclesiastical courts, the other by the 

 court of session. Both returned representatives to the ensuing General 

 Assembly of 1842, but it was of course only the former who were 

 declared by the Assembly to be duly elected, while the civil court 

 interdicted them from sitting as members of the Assembly. 

 It At the same meeting of the Assembly, in 1842, a vote was carried 

 by 216^ to 147, to the effect that patronage ought to be abolished. At 

 the same time the Assembly issued a document called a " claim of 

 right," against the " encroachment of the civil courts," which was 

 transmitted to the government, and answered by the secretary of state 

 for the home department, who left no hope in the minds of the non- 

 intrusion party that their demands would be complied with. Some 

 attempts were made in parliament to carry a measure for legalising 

 ' t, but they may be said scarcely to have had the support 

 of any party, for those who held that the ecclesiastical courts were 

 tent to pass such a measure into a law were not inclined practi- 



cally to admit their incompetency by soliciting the intervention of 

 parliament. A further step was in progress in the civil courts. They 

 had already protected individuals from the effects of the acts of the 

 church courts by prohibiting these acts from being put in execution. 

 Proceedings were commenced for having these acts of the ecclesiastical 

 courts annulled by the civil tribunals as courts of last resort, to which 

 those who felt themselves injured by the proceedings of any of the 

 constituted judicatories might apply. The court indicated that it 

 would give redress, but these proceedings were suddenly stopped by 

 the event called the " Disruption." 



It is the practice for the General Assembly to meet on the third 

 Thursday of May. On its so meeting, on the 18th of May, 1843, before 

 the roll of members was made up, the late Dr. Welsh, professor of 

 church history in the university of Edinburgh, who had been mode- 

 rator or chairman of the preceding Assembly, read a protest against 

 the constitution of the Assembly, signed by 120 ministers and 73 lay 

 elders. A copy of this protest being left with the clerk of the As- 

 sembly, those who had signed it, and their adherents, left the Assembly 

 in a body, and constituted in another place " the General Assembly of 

 the Free Church of Scotland," choosing Dr. Chalmers as their moderator. 

 This step is presumed to have been taken in consequence of the tactics 

 laid down in the deliberations of a considerable body of the non-intru- 

 sion party who had met at Edinburgh on the 17th of the previous 

 November, and conducted its proceedings with closed doors, being 

 called a " convention of ministers and elders of the Church of Scot- 

 land." On the 23rd of May an " act of separation and deed of de- 

 mission " was adopted by the General Assembly of the free church, 

 and signed not only by those clergymen who were members of the 

 Assembly, but by others who participated in their views. Thus no 

 difficulties were put in the way of a complete separation of these per- 

 sons from the benefits and burdens of the establishment. Whatever 

 previous differences of opinion existed, and whatever objections there 

 were to a body such as the General Assembly of the Church of Scot- 

 land, entitled to legislate and adjudicate for its own interests and 

 according to its own feelings, being exempt from the control of the 

 courts of law, the sacrifice of emolument and station thus made elicited 

 general respect and sympathy, and was creditable to the sincerity of 

 those who made it. The free church are now in possession of large 

 sums supplied by voluntary contributions, they have established 

 ministers in nearly every parish in Scotland, have founded a college, 

 and are widely extending their operations. 



But a fresh cause of dispute has arisen. The General Assembly of 

 the Free Church claims the right of deciding on the fitness and ortho- 

 doxy of the ministers of the churches in connection with it. The 

 minister of Cardross having been suspended from the duties of his 

 office for a definite period, and for assigned causes, by the Presbytery of 

 his district, appealed from it to the General Assembly, which increased 

 the penalty by ordering his total removal. From this sentence the 

 minister appealed to the Scottish law-courts. The General Assembly 

 demurred to the civil jurisdiction, on the ground that the minister 

 had subscribed to a declaration that he would conform to the regu- 

 lations of the General Assembly. The coirt, however, held that this 

 could only apply to the ecclesiastical duties, and not to his civil rights, 

 which had been injured by the General Assembly going beyond the 

 question which had been submitted to them, namely, whether his sus- 

 pension should be removed or not. No ultimate decision has yet been 

 arrived at (January, 1860). 



FREEHOLD. An estate of freehold is denned by Britton to be 

 " the possession of the soil by a freeman ; " and by Sir William 

 Blackstone, as " such an estate in lands as is conveyed by livery of 

 seisin, or in tenements of an incorporeal nature by what is equivalent 

 thereto." Neither of these definitions is sufficiently precise ; both are 

 the consequence of the tenure, not the tenure itself. 



A freehold, " liberum tenementum," was simply an estate for life in 

 tail or in fee, held by a freeman independently of the will of the 

 feudal lord, and the term was used iu contradistinction to the interest 

 of terms for years, and lands hi villenage or copyhold which might be 

 determined by the lord at pleasure. The older law writers distinguished 

 freeholds as of two kinds, in deed and in law ; the first being the 

 actual possession of lands for an estate of freehold ; and the other, the 

 right to such lands before actual possession taken. Blackstone divides 

 them also into freehold estates of inheritance, and freehold estates not 

 of inheritance. Neither of these divisions is of any real importance. 

 In the absence of a better definition, a freehold may be described to 

 be an estate in lands or tenements in fee simple, in tail, for the life of 

 the holder, or for the life of another person, in dower or by the 

 courtesy. Some offices also, held for life or in fee, are said to be of 

 freehold tenure. 

 FREE-SCHOOL. [SCHOOL.] 

 FREE-TRADE. [TRADE.] 



FREE WILL. The perplexity in which this question has been 

 involved is perhaps mainly owing to carelessness in the use of terms ; 

 and yet, however carefully we may select and use our terms in dis- 

 :ussing this question, it has always been found very difficult to state 

 atclearly. Hartley puts the question thus : He " embraces the opinion 

 of the mechanism or necessity of human actions, in opposition to what 

 a generally termed free-will ; " and he says, " by the mechanism of 

 luman actions, I mean that each action results from the previous 



