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The Political Theory of the Disruption1

Published online by Cambridge University Press:  02 September 2013

Harold J. Laski
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Extract

“Of political principles,” says a distinguished authority, “whether they be those of order or of freedom, we must seek in religious and quasi-theological writings for the highest and most notable expressions.” No one, in truth, will deny the accuracy of this claim for those ages before the Reformation transferred the centre of political authority from church to state. What is too rarely realised is the modernism of those writings in all save form. Just as the medieval state had to fight hard for relief from ecclesiastical trammels, so does its modern exclusiveness throw the burden of a kindred struggle upon its erstwhile rival. The church, intelligibly enough, is compelled to seek the protection of its liberties lest it become no more than the religious department of an otherwise secular society. The main problem, in fact, for the political theorist is still that which lies at the root of medieval conflict. What is the definition of sovereignty? Shall the nature and personality of those groups of which the state is so formidably one be regarded as in its gift to define? Can the state tolerate alongside itself churches which avow themselves societates perfectae, claiming exemption from its jurisdiction even when, as often enough, they traverse the field over which it ploughs? Is the state but one of many, or are those many but parts of itself, the one?

Type
Research Article
Information
American Political Science Review , Volume 10 , Issue 3 , August 1916 , pp. 437 - 464
Copyright
Copyright © American Political Science Association 1916

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References

2 Figgis, J. N.: From Gerson to Grotius, p. 6.Google Scholar

3 Buchanan, II, 594.

4 Buchanan, II, 607.

5 Calderwood, II, 388–389. Innes: Law of Creeds in Scotland. I cannot too fully acknowledge my debt to this admirable book.

6 Innes, op. cit., p. 20.

7 As is apparent in Melville's famous sermon before James I. Cf. Innes, p. 21.

8 Acts of Parliament of Scotland, III, 24.

9 Knox, : History of Reformation, p. 257Google Scholar, and cf. McCrie, : History of the Scottish Church, p. 44.Google Scholar

10 1584, c. 129. The so-called Black Acts, Calderwood, IV, 62–73.

11 1592, c. 116, Acts of Parliament of Scotland, III, 541, Calderwood, V, 162.

12 1593, c. 164.

13 Acts of Parliament of Scotland, VII, 554.

14 1690, c. I.

15 1690, c. 5.

16 McCrie, op. cit. p. 418.

17 See his judgment in the Auchterarder case, Robertson's Report, II, 13.

18 This is well brought out by Mr. Innes, op. cit., p. 45.

19 Innes, op. cit., p. 46.

20 Buchanan, I, 136, cf. Hetherington, : History of Church of Scotland, p. 555Google Scholar; and for some strenuous criticism of Williams' attitude cf McCormick's, Life of Carstares, pp. 43–4.Google Scholar

21 McCrie, op. cit., p. 440.

22 Mathieson, , Scotland and the Union, p. 183Google Scholar; Innes, op. cit., p. 58.

23 See SirMoncrieff, H. W.: Churches and Creeds, p. 19.Google Scholar

24 10, Anne, c. 12.

25 Woodrow's, Correspondence, I, 77, 84.Google ScholarCarstares', State Papers, p. 82Google Scholar; Burnet, VI, 106–107.

26 Innes, op. cit., p. 60.

27 Speeches, II, 180.

28 Buchanan, I, 280 ff.

29 Id., I, 282.

30 Id., I, 293. The motion was carried by 184 votes to 138, Id., I, p. 307.

31 Id., I, p. 325.

32 Buchanan, I, 399.

33 Id., I, 408.

34 The reader will find full details in Buchanan and the cases noted below.

35 The Auchterarder case, No. I, Robertson's report.

36 Buchanan, II, 479.

37 Id., II, 284.

38 1840, 2, Dunlop, 585.

39 1840, 3, Dunlop, 282.

40 1841, 3, Dunlop, 778. This is the second Auchterarder case.

41 1843, 5, Dunlop, 1010. This is the third Auchterarder case. I have not discussed the judgments of Brougham and Cottenham, L. C., in the House of Lords, as they add nothing to the Scottish opinions.

42 1840, 3, D., 283.

43 Cf. what Mr.Figgis, has to say of this in his Divine Right of Kings (2d ed.) p. 193.Google Scholar I do not think he goes too far.

44 Buchanan, II, 194.

45 Hansard, 3d Series, Vol. 67, p. 442, March 8, 1843.

46 Hansard, 3d Series, Vol. 67, pp. 382, 502. See also below.

47 Buchanan, II, 663.

48 Innes, op. cit., Appendix K.

49 Hanna, : Life of Chalmers, Vol. IV, p. 199.Google Scholar

50 Life of Chalmers, loc. cit.

51 Cf. Figgis, : Divine Right of Kings, Ed. 2, p. 267.Google Scholar

52 Jus Divinum, p. 42. Quoted in Figgis op. cit., p. 275.

53 Life of Chalmers, Vol. IV, p. 54. Mr. Gladstone was present at and deeply impressed by these lectures. Morley (Pop. Ed.), I, 127.

54 Quoted in Moncrieff, : The Free Church Principle (1883), p. 35.Google Scholar

55 See Moncrieff, : The Free Church, p. 37.Google Scholar

56 Buchanan, I, 367.

57 Life, III, 270.

58 16 March, 1843. Moncrieff, op. cit., p. iii. The remark is all the more significant since it was made on the eve of the Disruption.

59 Moncrieff, op. cit., p. 102.

60 Hansard, 5th Series, Vol. 13, 12th Feb., 1913, p. 119.

61 Innes, op. cit., p. 73.

62 Buchanan, II, 633.

63 Buchanan, II, 634. ‘The above-mentioned doctrine and fundamental principle. ‥‥ have been by diverse and repeated Acts of Parliament, recognized, ratified, and confirmed.’

64 Buchanan, II, 647.

65 Buchanan, II, 649.

66 Buchanan, II, 650.

67 Robertson's Report, I, 356.

68 Quoted in Figgis, : Divine Bight of Kings, p. 278.Google Scholar

69 Robertson, I, 382.

70 Op. Cit., I, 383.

71 Op. Cit., I, 124.

72 Hansard, 3d Series, Vol. 35, pp. 575–81.

73 Buchanan, II, 25.

74 Buchanan, II, 572.

75 Hansard, 3d Series, Vol. 67, p. 356, March 7, 1843.

76 Ibid., p. 367.

77 Yet a doubt must be permitted whether the Free Church party would have accepted a hostile decision even of Parliament. Chalmers, certainly, had no such doubts of his position as to think of mediation.

78 Buchanan, II, 634.

79 Divine Right of Kings, p. 186. But in the preface to his second edition Mr. Figgis considerably modifies his conclusion.

80 Cf. Works, IV, 539.

81 Cf. Leslie: The New Association, and Bramhall: A Warning to the Church of England.

82 As Mr.Figgis, notes, Divine Right, p. 286.Google Scholar

83 See his Caesarism and Ultramontanism (1874).

84 See his article in the Contemporary Review for April, 1874.

85 See his article “Ultramontanism and the Free Kirk” in the Contemporary Review for June, 1874.

86 Though the Encyclical: Immortale Dei of 1885 in Denziger's, Enchiridion, pp. 501–508Google Scholar, and Newman's Letter to the Duke of Norfolk are, as I hope to show in a later paper, very akin to the Presbyterian theory; and the Jesuits of the seventeenth century worked out a similar claim.

87 I say outside, because the General Assembly claims a control over doctrine and discipline which is very like that of an Austinian sovereign.

88 Contemporary Review, Vol. 24, p. 267.

89 Quoted in Fraser's Magazine for July, 1843.

90 North British Review, 1849, p. 447.

91 Trevelyan's Life (Nelson's, Edition), II, 57.Google Scholar

92 That of Lord Medwyn. See below.

93 Middleton v. Anderson, 4 D., 1010.

94 Robertson, I, 185.

95 See my paper on the “Personality of Associations” in the Harvard L. Review, for February, 1916.

96 Robertson II, 32.

97 Robertson II, 359.

98 Robertson II, pp. 2, 4, 5, 10.

99 Cuninghame v. Lainshawe, Clarke's Report of the Stewarton case, 1843, p. 53.

100 Robertson, II, 23.

101 Loc. cit.

102 Robertson, II, 88.

103 Robertson, II, 121.

104 This is of course the simple doctrine of Parliamentary sovereignty discussed by Professor Dicey in the first chapter of his Law of the Constitution. It is very effectively criticised in the last chapter of Professor Mcllwain's High Court of Parliament.

105 I have tried to work out the implications of this doctrine in a paper in the Journal of Philosophy on the ‘Sovereignty of the State’ for February, 1916.

106 Robertson, II, 37, Per Lord Gillies.

107 Buchanan, I, 465.

108 Buchanan, I, 472.

109 Buchanan, I, 478.

110 The reader of Buchanan's work should be warned that the writer's prejudices lead him consistently to misrepresent Dr. Cook's attitude.

111 Buchanan, I, 481, II, 24.

112 Buchanan, II, 24.

113 Buchanan, II, 261.

114 Buchanan, II, 516. Compare with this Manning's view that the right to fix the limits of its own power was essentially the possession of the Church, Vatican Decrees, 1875, p. 54.Google Scholar

115 Hansard, 3d Ser., Vol. 67, p. 502.

116 Ib., March 7, 1843, pp. 382 ff.

117 Hansard, March 7, 1843, pp. 382 ff.

118 See above, the references to notes 60 and 61.

119 Cf. Innes, p. 74 and the interesting note on that page.

120 Cf. Combes, : Une Campagne Laique, p. 20Google Scholar—, the citation from the Duc de Broglie.

121 And Article 29 of the Code Penale forbids associations of more than twenty persons even for social purposes. Seilhac, : Syndicats Ouvriers, p. 64.Google Scholar

122 See my paper on “The strict interpretation of Ecclesiastical trusts” in the Canadian Law Times for March, 1916.

123 Sir F. Pollock has protested (10 L. Q. R. 99) that English lawyers do not now accept this view; it is certainly that of the courts.

124 Robertson, II, 121.

125 Kinnoull v. Ferguson (1843), 5, D. 1010, Innes, p. 52.

126 Robertson, II, 380 ff.

127 But this has now been done in the Church of England. See Bannister v. Thompson (1908), p. 362, and on the rule for prohibition R. v. Dibdin (1012), A. C. 533.

128 Robertson, II, 372.

129 Robertson, II, 362.

130 27 Harv. L. Rev., 735.

131 Cf. Figgis, : From Gerson to Grotius, p. 63.Google Scholar

132 Figgis, op. cit., p. 184. See Tarquini: Institutiones, passim.

133 It is a matter of great interest that the Presbyterians, like the Jesuits, should have had two quite distinct theories of the State, according to their political circumstances. One has to distinguish sharply in the seventeenth century between men like Cartwright with a definite theory of the two kingdoms, and that of the Presbyterians in the Parliaments of Charles I. The latter was definitely Erastian and it was against that theory that Milton intelligibly inveighed. Cf. generally, Figgis: Divine Right of Kings, Chapter IX.

134 Works (Jena Ed.), II., 339.

135 Cf. Maitland, : Gierke, p. 102.Google Scholar

136 Strype, : Life of Whitgift, II, 22 ff.Google Scholar

137 Mr. Figgis, both in his From Gerson to Grotius and his Churches in the Modern State, attacks very bitterly the Austinianism of M. Combes in his Une Campagne Laique; but I do not feel that he understands either the provocation to which the republic was subjected, or the trespasses of French Ultramontanism.

138 Innes, p. 113.

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