1860.]

toleration is, in brief, neither more nor less than the divorce of this illomened union. So long as a State affirms that certain dogmas are true and certain dogmas false, that certain spiritual things are clean and certain others not clean; and so long as it continues, as it logically ought, to punish those who do not agree with it, and to reward those who do, that State is guilty of intolerance, and remains amenable to the charge until it withdraws entirely from the arena of polemical debate, and confines the expression of its opinions to the Church.

a

But if the common law will not serve, perhaps the standards of the Church may. The Confession of Faith of the Westminster divines was ratified by Scottish Assemblies and Parliaments, and is therefore undoubtedly in some sense a part of the law of the land. If anywhere, on the Confession of Faith the Free Church must take its stand. A critical discussion of the historical position of the Westminster Confession would be curious and instructive. One or two cursory observations will serve our present purpose; and the first that occurs is, that the Confession is singular witness to call in behalf of toleration. Toleration, in our sense of the word, is a doctrine that has no place in that document. On the contrary, the leading principle of toleration-the complete freedom of the conscience from civil restraint—is expressly denied. "The civil magistrate,' the twentythird chapter affirms, hath authority, and it is his duty, to take care that the truth of God be kept pure and entire, and that all blasphemies and heresies be suppressed.' That was the idea of religious liberty which the framers of the Confession entertained. The Scottish State was a Civitas Dei, the National Church was the expression of the truth of God, and the civil magistrate was a servant of that church, and bound to punish those who did not recognise that truth. The men who made the Confession had no conception of dissent, except as an antagonistic element that had to be

669

rooted out. So far from extending toleration to sectaries, they held that it was an imperative duty to destroy 'the synagogues of Satan,' and, like Samuel, to hew Agag in pieces before the Lord.' Instead of allowing Dissenters to exercise any 'independent' jurisdiction or discipline, they hanged and burned and imprisoned them. It is clear, therefore, if we consider it in its historical connexion, that the Confession of Faith was intended as a formulary only for the Kirk established by law, that as such it was ratified by the Parliaments, and that the only religious body which is entitled by law to found on its provisions is the National Church. Dissenters may indeed make it their text-book if they please; but it acquires authority as a dissenting manual, not by force of law, but by force of consent. This consent or agreement may be formal or tacit, for there may be common law as well as statute law in a church; but however constituted, it requires to be proved. Except over the members of the Established Church, the Confession has no inherent authority whatever, and no other body of Christians is in any way bound by it.

But granting, for the sake of argument, that the Confession is part of the law of the land and binding upon every citizen, would that even enable the Free Church to maintain its argument? We think not. For though it is stated in the Confession that the Lord Jesus as King and Head of his Church hath therein appointed a government in the hand of church officers distinct from the civil magistrate,' yet this provision must be taken in connexion with those others which confer an apparently unlimited authority over church courts or the magistrate. If a litigant found upon a document, he must either take it in its integrity or not at all. He is not entitled to break it into pieces, and select those only which serve his purpose. And the Confession, while giving the magistrate the power to call together and to be present at church courts, expressly declares that it is his duty

'to provide that whatsoever is transacted in them be according to the mind of God.' The magistrate therefore is the judge of what is true or false in religious doctrine, and his power of review is absolute. It is somewhat dangerous surely for a doctor of a church which affirms the absolute independence in all spiritual matters of church courts to found upon a document which contains such remarkable provisions. Two conclusions, therefore, seem incontrovertible-first, that the definition of jurisdiction' in the Confession has reference exclusively to the courts of the Established Church; second, that (if this be not so) it is difficult to see how any dissenting body can adopt a document which gives the magistrate authority to provide that nothing is transacted in their courts inconsistent with the mind of God.

Nowhere, therefore, do we find any ledge of law on which the Free Church can rest its claim. Neither expressly nor tacitly does the law recognise the distinction which is insisted on. Is the law, then, intolerant? By no means. All that the law requires is, that the obligation be introduced into the contract. Let the Free Church show that there is such a clause in its Act of Constitution, or let it now introduce one, and the law will forthwith give effect to it in any question that may arise between the parties. There are, no doubt, certain assumed maxims at the basis of all copartneries which do not require to be expressly set forth in the bond. One partner, for instance, is not entitled to commit a fraud upon another, though there be no mention of fraud in the contract of copartnery. Fraud is struck at by the common law. But the principle for which the Free Church contends has not been cast into any provision or maxim of our law, and the courts will not in any case assume that there is such a maxim. In so doing-in requiring an express stipulation-the State is acting truly in the interests of toleration. It will not give effect to any obligation unless it be convinced that both the parties are fully ac

quainted with its terms, and it will require the obligation which deprives a citizen of one of the rights of citizenship to be set forth with special distinctness.

One question even then remains, Whether such a contract be not pactum illicitum—an agreement so repugnant to sound policy and morals that the law will not allow it to be entered upon? On this point it is only necessary to say that the court will probably hold— if it be driven to decide the question-that such a contract is not contra bonos mores; or should the law hesitate to sanction it, the legislature will not. It is one of the maxims on which toleration rests that it is better to allow all doctrines, however preposterous, that are not directly subversive of the public tranquillity, the most unfettered expression. The persuasive authority of common sense redresses the balance in the long run, while the speedier and sharper remedy that persecution offers is not lasting-nay, in general adds virulence to the malady. Some of the more violent Free Churchmen indeed, including the pugnacious Dr. Begg, repudiate the notion of a contract altogether. The Christian Church is not an insurance office, and cannot be compared with any secular copartnery. We have seen, however, that a dissenting church in this country stands precisely in the same position as any other voluntary association. This being the case, it is to be hoped that moderate counsels may prevail, and that an important and zealous communion of Christians will not make of themselves martyrs by mistake. They may rest assured that the Legislature, while taking anxious precautions that they suffer no tangible grievance, will not tolerate vague and arbitrary ecclesiastical pretensions, which have always proved, when admitted, most hurtful to liberty.

Another curious and difficult case, involving a different aspect of the question, occurred at the last Durham Assize. A Roman Catholic priest received from a member of his communion certain stolen

should the law respect the obligation undertaken by a few Popish ecclesiastics, the tranquillity of the country would be endangered. The confessional is a characteristic and notorious feature of Romanism; and it may be plausibly urged that when we repealed the penal laws affecting Romanists, we implicitly affirmed that they were at liberty to put in motion the whole ecclesiastical machinery of their church. Are we to allow the Roman Catholic to resort to the confessional, or are we not? If we are (and there seems no sufficient reason why we should not), then we must not insist on imposing conditions which are inconsistent with its exercise. It is to be recollected, besides, that the information which the priest receives would not be obtained by him if the confessional did not exist. Abolish the confessional, and the priest, having nothing to communicate, would not be available as a witness. The secresy, therefore, which the church law requires, does not diminish the area from which evidence may be derived. The evidence in question is of an exceptional kind, created, so to speak, by the machinery of the Church itself, and ceasing to exist when that machinery is abolished. The law, therefore, cannot be said to suffer any injury-as it would do were it, for instance, an article of Romanism that no Romanist could, under any circumstances, tender evidence in a court of justice. Such a provision would actually exclude evidence that would otherwise be attainable, and that would exist although the entire Church organization were dissolved.

Admitting the difficulty of the question, it is at least pretty clear that the distinction which Mr. Justice Hall attempted to draw is not tenable. If we construe his observations aright, he appears to have intimated that the law would not require a priest to disclose statements made to him by a penitent in the confessional. Had the penitent only confessed that he was guilty of theft, the law would have protected the communication; when

he not merely confesses his guilt but delivers up the stolen property for restitution, the law takes away the privilege. It is needless to argue against legal subtleties; but Mr. Kelly's objection, that to declare from whom he received the stolen articles would be as truly a breach of the confidence of the confessional, would supply as strong a link of evidence against the accused, as though he were to repeat the exact words of the penitent's communication, undoubtedly commends itself to common sense and common fairness. If the secresy of the confessional be protected by law, then it is a mere quibble to argue that the protection is limited in the way Mr. Justice Hall attempts to define. Moreover, the dictates of obvious policy are against the limitation. A man acknowledges during confession that he has been guilty of theft: the priest makes it a condition of absolution that the property should be forthwith restored to its owner; but when the thief places it in his hands that it may be returned, he is obliged to decline, on the ground that the law will force him to disclose from whom he received it, or punish him if he does not.

In all such cases as we have been now discussing, there is, after all, only one simple rule. Absolute liberty is best and safest. There are not many opinions which are really dangerous to the public safety. The experiment of holding that all opinions which are heretical or unsound, or absurd, are fraught with peril to the commonwealth, has been tried and has failed. At one time a man needed to be an accomplished moralist and a first-rate theologian to escape the penalties which the State attached to any unsoundness in wind or limb,' in doctrine or profession. It has been discovered that all this was a mistake. A more careful scrutiny has demonstrated that there are very few opinions which absolutely require to be forbidden. It is possible that it may be found hereafter that the category of opinions which the State cannot tolerate, is

1860.]

6

even more limited than we now suppose. At all events very strong and conclusive evidence must be produced before we determine to increase the list. The English monarchy is a child of a lusty growth. It will take a great deal to hurt its health, or impair its constitution. So when men come to us, and say, "We have promised never to appeal from the spiritual to the civil tribunals; We confess every Monday to the priest, who is bound not to disclose what we tell him;' do not let us too hastily assume that these or similar conditions are contra bonos mores, conditions which the law should prohibit. Prohibited doctrines have a wonderful tendency to gather strength and seriousness. Any restraint evokes the powerful elements of resistance implanted in our nature, and enlists them in the service of the obnoxious opinion; which, had it been left to fatten on its inherent absurdity alone, would very quickly have died a natural death. opinion is the surest bulwark of a commonwealth; and sound opinion is only possible when that obliquity of vision which intolerance produces, alike among those whom it protects, and those whom it punishes, has been removed.

*

*

*

Sound

*

Here let us close the debate. I had meant to have added a word or two on that aspect of toleration to which, in our foreign affairs, we give the name of 'non-intervention'-not meaning thereby that intelligent national restraint for which Mr. Mill has so ably argued in the pages of Fraser-but the doctrine gloried in by Mr. Bright, and which asserts that whatever amount of devil's work be transacted on this earth, it is our duty to fold our hands, and go about our own business. But my own views on that subject are so exactly expressed in an epistle I have received to-day from a clerical friend, that I cannot do better than let him speak in his own words. He is an intrepid trooper in the ranks of the church militant; and would have been a fighting Bishop, would have worn the mitre over his hel

673

'Again these Easter bells are ringing through the land. "Christ is risen.' The Prince of Peace has come and yet the reign of wrongdoing and violence endures, and armed men gather over Europe like a thunder-cloud. How beautiful upon the mountains are the feet of Him that bringeth good tidings, that publisheth peace,--but ah! how wearily they delay. Do not these bells mock us? Has not the testimony of eighteen hundred years demonstrated that what they tell us is not true? No wonder that feeble hearts should grow faint; that the tired eyes, weary with watching, should close in doubt and despair; that weak minds should try with impatient eagerness, through peace societies and other empirical inventions, to wrench the wronged world to rights. Who of us can blame them, however convinced we may feel that their extemporized experiments will not work? The processes of nature are slow; the august machinery of life moves noiselessly along. The veiled forms who unroll the scroll of the years are not moved by our uneasy twitchings and grimaces, by our most passionate prayers. Let us rather do our work quietly and in soberness; as nature does hers. That violent and wicked men should still be permitted to work their will, that the good faith of nations should be discredited, that the honour of Europe should be sullied, are evils, grievous and inscrutable, over which it becomes us to mourn. But our own faith, at least, need not be broken; our own honour we can keep untarnished. We all feel, disguise it as we may, that a grave peril menaces society; that before these Easter bells are again heard, the arms of Christendom may be clashing on the battle-field. A feeling of intense insecurity has come upon us. We used to fancy that the notorious commonplaces of morals were at last recognised; that the nations had become ordinarily honest and decent, that

Ꮓ Ꮓ 2