The effect of the Continental Reformation in Scotland[1] was more thoroughgoing than in England. While precise constitutional arrangements were at times hotly disputed, there was consistent widespread resistance to the monarch’s being designated Supreme Head or Supreme Governor of the church. The leading Scottish reformer John Knox emphasised instead the Calvinistic version of Luther’s ‘two kingdoms’ model, with its much sharper distinction between church and state power, and its avowal of Presbyterian rather than Episcopal church government within a society infused more generally by Presbyterian morality and values.
Knox’s successor, Andrew Melville, refined the position articulated by Calvin and Knox. His stance was exemplified in a famous encounter with King James VI of Scotland.[2] Melville is said to have grasped James’ sleeve, called him ‘God’s sillie vassal’ and told him that there were two kings and two kingdoms in Scotland, in one of which (Christ’s kingdom) James was ‘not a king, nor a Lord, nor a head but a member’![3] Melville’s attitude to the monarch, and his views on church and state, led to much conflict, and he was finally imprisoned in the Tower of London for five years. It nevertheless emerged as the recognised legal position in Scotland, being known as the ‘establishment principle’.
When the General Assembly of the Church of Scotland adopted the Westminster Confession of Faith in 1647, it made specific mention, in the Adopting Act, of the second article of chapter xxxi (on Synods and Councils), which gave magistrates the right to call synods. The Assembly argued that ‘the Assembly understandeth some parts of the second article of the thirty-one chapter only of kirks not settled, or constituted in point of government’.[4] That is to say, while it could understand why countries which did not have an established Reformed church might require such an article, it was not necessary in Scotland!
It was not until the re-establishment of Presbyterianism in Scotland in 1690, after years of resistance to the imposition of episcopacy, that an Act of Parliament was passed affirming the decision to adopt the Westminster Confession of Faith. This was the Act Ratifying the Confession of Faith, and Settling the Presbyterian Church Government. Interestingly, although that Act guaranteed the continuing establishment of the Church of Scotland, some have interpreted it as being ‘Erastian’, namely, that the Church’s right to independence and spiritual freedom from the State was granted by the State, rather than being an inherent right.[5]
During the political, theological and ecclesiastical debates surrounding the Disruption in the 19th century, the whole question of establishment became a crucial issue.[6] On the one hand, the Free Church of Scotland which was formed in 1843 out of the Disruption continued to hold to the establishment principle, even while leaving the establishment for reasons of spiritual freedom. On the other hand, when the Free Church wanted to join with the United Presbyterians at the turn of the century, this principle became something of a stumbling block. Later still, during the first thirty years of the 20th century, a time of unprecedented reunion of the various churches, this debate over the establishment principle was crucial to the successful completion of the negotiations for union.[7] Finally, however, the 1921 settlement of the Church of Scotland’s constitution made possible the negotiation of the 1929 union with the United Free Church. The settlement was expressed in the Articles Declaratory prepared by the Established Church between 1914 and 1919 in a number of drafts and it was effected by the very brief Church of Scotland Act 1921 to which the Articles were appended.[8] As Marjorie MacLean has demonstrated, this placed the Church of Scotland ‘in a new constitutional situation, by recovering the Melvillian version of the theory of separate kingdoms, expressing it in the modern state-like language of spheres and realms, and leaving the legal implications of it to unfold in due course. The chief of those implications was the recognition that the Act represented the first breach in the sovereignty of the United Kingdom parliament.’
One aspect of this ‘two kingdoms’ arrangement is that there is no appeal to the civil courts from the General Assembly of the Church of Scotland, which is regarded as the supreme court of the Church. Several years ago, there was a striking example of the effect of this in the notable case of a Church of Scotland minister who was removed from his position. Believing that the Church had acted wrongly, the minister sought a judicial review of the decision in the civil courts.[9] This was turned down on the grounds of the Church of Scotland’s status in relation to the State. As MacLean notes, ‘since the 1921 Act recognised the pre-existing powers of the Church as inherent and uncreated by Parliament or any human authority, the Court of Session disclaimed jurisdiction.’[10]
This leaves the Church of Scotland in a unique position in terms of modern church/state relations. It has a more independent identity than the Church of England. Yet it does not itself now seek to control the state, nor to have any constitutional authority beyond the sphere of its own life and ministry, as the Roman Catholic Church has sometimes attempted. At the same time, is not separated from the state, as are Presbyterians in the USA and elsewhere. In short, the Church of Scotland’s constitutional position affords it autonomy over its own doctrine, worship, government and discipline, together with the protection of the state, yet without potential or actual state interference. As predicated on the ‘two kingdoms’ doctrine, this means that both church and state are understood to have been established by God, to be answerable to God, and to owe duties and responsibilities to each other. Today, the Scottish establishment principle is maintained by a careful balance of measures, such as the appointment of a ‘Lord High Commissioner’ by the Queen to the General Assembly who addresses the Assembly on behalf of the Sovereign. The General Assembly welcomes the Lord High Commissioner and his guests (usually including several cabinet ministers and Scottish Executive ministers). It also instructs a committee to write a ‘loyal letter’ to the monarch, conveying the greetings and best wishes of the Assembly. Yet at the same time, it affirms its independence from monarchical or state intervention.[11]
[1] This section draws substantially on Andrew McGowan’s paper ‘Church and State: The Contribution of Church History to Evangelical Models for Public Theology’, delivered at the conference of the Fellowship of European Evangelical Theologians, Woelmersen, Germany, August 2004. See also Frank Lyall, Of Presbyters and Kings: Church and State in the Law of Scotland (Edinburgh: Mercat Press, 1980).
[2] J.H.S. Burleigh A Church History of Scotland (London: Oxford University Press, 1960) 204-205.
[3] Ibid, 204.
[4] J. Ligon Duncan III ‘Owning The Confession: Subscription in the Scottish Presbyterian Tradition’ in David W. Hall (ed.), The Practice of Confessional Subscription (Lanham, ML: University Press of America, 1995) 81.
[5] Marjorie MacLean, The Crown Rights of the Redeemer: A Reformed Approach to Sovereignty for the National Church in the 21st Century (PhD Thesis, University of Edinburgh, 2004) 107.
[6] Ibid, chapter 3.
[7] Ibid, chapters 3 and 4. See also D.M. Murray Freedom to Reform: The ‘Articles Declaratory’ of the Church of Scotland 1921 (Edinburgh: T & T Clark, 1993); D.M. Murray Rebuilding the Kirk: Presbyterian Reunion in Scotland 1909-1929 (Edinburgh: Scottish Academic Press, 2000).
[8] Ibid, 104.
[9] Logan v. Presbytery of Dumbarton (1995 SLT 1228).
[10] MacLean, 123.
[11] The Lord High Commissioner sits in a gallery overlooking the Assembly Hall, but this has no access from the Hall. In a sense, he ‘listens in’ through an open window.
