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Petition from the Rev Graeme Craig This petition and accompanying speech was presented to the January Commission of Assembly by the Rev Graeme Craig. In it he highlights a number of illegalities in the procedures adopted by the majority Free Church in the libelling of the 31 ministers. No-one at the Commission rebutted the points Mr Craig made. Indeed the Principal Clerk of Assembly had to agree with the weight of some of these points and expressed unease in proceeding immediately with the libels. Sadly, it was all to no avail. The young hawks were in control and they were determined to stop the libelled ministers from continuing to preach the gospel.
The Petition Whereas your Petitioner has been required to appear before the Commission of Assembly on 19 January 2000 to answer a charge contained in a Libel dated 23 December 1999; Whereas the powers of the Commission to take up causes are limited to those matters specifically referred to it by the General Assembly; Whereas the Act of Assembly appointing the present Commission did not refer to the Commission the matter of the aforesaid Libel nor authorise the Commission to institute the disciplinary proceedings referred to therein; Whereas the Commission is strictly prohibited and discharged from taking to do with any other matters than what are committed and referred to it in the Act of Assembly appointing the Commission; Whereas the general power of a Commission “to advert to the interests of the Church on every occasion” has previously been regarded as insufficient to enable it to act in matters not specifically referred to it by the General Assembly without additional instructions empowering it to act as the General Assembly would; Whereas no such power was conferred on the present Commission; Whereas processing of the Libel by the Commission, rather than by a lower court, will deprive the Petitioner of a right of appeal against the substance of the judgement reached; Whereas the interests of those named in the Libels have been seriously compromised and the case prejudiced by the public release in the name of the Church, while the matter is still sub-judice, of a statement intimating that the Church has "begun a process of discipline against these ministers.... If...they ...refuse to move from their position the Commission will have no option but to suspend them for their continuing contumacy"; Whereas the Commission is accountable for all its actings to the ensuing General Assembly; Wherefore the Petitioner requests the Commission to take these premises into consideration and decline to proceed further in the matter of the aforesaid Libel; or do whatsoever to their wisdom may seem best.
Mr Craig’s speech Moderator, Fathers and Brethren, the purpose of this petition is to call upon the Commission to acknowledge that, amongst other things, it has no power or authority to deal with the libels that have been served on myself and others and which have been placed on the agenda of this diet of the Commission. On the basis of this, the crave asks that "The Commission proceed no further in the matter of the aforesaid libel". Now before I enter into the substance of the argument, I wish to make it abundantly clear that this is not, I repeat, not an attempt to run away from discipline on the basis of a mere technicality. I utterly reject any suggestion that I am in any way liable to discipline, especially in regard to the terms of the libel sent to me, and trust that either I myself, or others will make this very clear not only to the Commission itself, but also the watching world. As I said, this is not a mere technicality. It is a fundamental question. What authority have you to take up the matter of this libel? I believe you have none, and that if you do so you would, under normal conditions, be censured for doing so by the next Assembly. I wish firstly to consider the powers of the Commission, and then secondly ask the question, Should the Commission be judging the libels?
The powers of the Commission The Libel begins: "You,............, are therefore tried before the Commission of the General Assembly...and...you will be subject to such censure...as may to the said Commission seem appropriate". The libel clearly assumes here that the Commission is a Court of the Church, since it is only by a Court that a man can be tried. But the Commission is not a Church Court, and the only circumstances in which it can function as a Court are when it is given specific powers to do so by the previous General Assembly. To quote the late Rev William Macleod, Dornoch, Principal Clerk of Assembly for many years, and an authority on such matters: "There is no indication that the Commission of Assembly - ordinary or special - is anything other than ‘A Commission to certain ministers and elders for discussing affairs referred to them’ [here Mr Macleod is quoting from Act I, 1844 which set up the first post-Disruption Commission] and to invest it with the status of a Church Court is unconstitutional and a dangerous intrusion upon the Presbyterian order". (Monthly Record, August 1950, pp 162-3). The Commission can only deal with cases to the extent that these are specifically referred to it by the Assembly (Practice, pp 86-7) and cannot do so at its own hand. Its powers are derived solely from the Act appointing it, which is passed each year by the General Assembly, and it can exercise judicial functions only to the extent that these are specifically remitted to it. Now the appointing Act can vary in its terms, depending on whether there are any specific matters being referred to the Commission, but its general provisions do not change from one year to the next. This year, for example, the Rev Maurice Roberts' case and the Report of the Special Peace Commission were specifically remitted to the Commission, and it may be argued by some that it was thus within its powers in determining these. But it is very difficult to see any justification for the Commission taking upon itself to libel ministers whose cases have not been remitted by the Assembly and to institute proceedings against them. No doubt it will be argued that the Commission has a general power, under the Act of Assembly appointing it, "to advert to the interests of the Church on every occasion, that the Church do not suffer or sustain any prejudice which they can prevent". But to try to stretch this clause to give the Commission virtually unlimited power in raising libels and ordering suspensions seems totally unjustified, and could well be described in the late Principal Clerk's words as "unconstitutional and a dangerous intrusion upon the Presbyterian order". Indeed, these general powers were not considered adequate in 1996 when the Assembly inserted a special clause in the Act appointing the Commission, enabling it (in the specific context of its power to advert to the interests of the Church) "to deal with and dispose of finally as the General Assembly would any reports, references, overtures, complaints or appeals which may be brought before them in accordance with the law and practice of the Church". Such sweeping powers are not available to the present Commission. It is clear that, were the Commission to be able to try even one minister (let alone 30) it would according to all the precedents have had to be given specific power to do so by the Assembly. Even in 1733, during the anti-evangelical Moderate ascendancy, the Commission did not proceed to discipline that godly and faithful minister, Ebenezer Erskine and his adherents without having being specifically empowered to do so by the preceding Assembly. And as recently as December 1995, the Commission accepted that it was of such limited power that it was unable even to instruct a Professor to cease temporarily from the discharge of his duties despite the situation the said Professor found himself in. It was said it could not do even that, something most, both inside and outside the Church, would have expected the Church to do. Are we now to accept that suddenly and inexplicably, the Commission is so powerful that it can libel some 30 ministers at will and potentially remove them from the ministry, without any authority from the General Assembly? Surely that cannot be!
Should the Commission be judging these libels? Moderator, I believe there is a very simple reason why these Libels should be dropped and a formal, public apology given to those who have been defamed by this action. It is this, that the interests of those named in the Libels have been seriously compromised and the case prejudiced by the Official Press Release issued after the December Commission in the name of the Free Church by the Commission's Press Officer, the Rev Angus MacRae. The statement appeared in the January Monthly Record, the Official Publication of the Church. The statement read as follows: "...the Commission began a process of discipline against these Ministers, requiring each to appear before the Commission of Assembly on 19th January 2000. If at that meeting they confirm they are still in agreement with the FCDA letter and they refuse to move from their position the Commission will have no option but to suspend them for their continuing contumacy...". In the same issue of the Monthly Record, the Rev Iver Martin made a similar claim. These statements should not have been made, and certainly not published in the Official Magazine of the Church as the matter is sub-judice. The impression has thus been given in pronouncements which appear to carry the authority of the Commission and the Free Church of Scotland, that the matter has been prejudged, a verdict decided and a sentence determined. In such a situation how can any of those named in the libels have any confidence that they will receive a fair trial? Indeed at the October meeting of the Commission of Assembly, the Rev Alex MacDonald spoke in a similar way when he argued that the Skye Presbytery should not sit in judgement against the Rev William Macleod. He said, and I quote, "Here is a body that would be asked to sit in judgement on a case and they have already expressed their mind on it. That cannot be right, cannot be in good order". Moreover, both Mr MacRae and Mr Martin are members of the Court which is to adjudicate in this matter, and they knew full well that the libels were sub-judice. Therefore, they were acting in contempt of the Commission by declaring beforehand that there was "no option but to suspend". Publication of such a statement would in normal circumstances render the entire disciplinary process regarding these Libels null and void and the process should therefore be abandoned. At the very least, both these men should apologise to the Commission and play no further part in the process. Passing on from that, it should be remembered that in cases of discipline the General Assembly is not normally a court of first instance, but a court of review. A trial usually takes place at Kirk Session or Presbytery level and only comes to the Assembly by way of reference or dissent and appeal. The only exceptions to this are when a matter (including contumacy) is forced on the attention of the Assembly before it has reached any inferior court having jurisdiction over the party (Practice, pp 113-4). In such cases the Assembly may either remit the matter to the inferior court or deal with it summarily by the direct exercise of its own authority. Given however that "all processes against any minister are to begin before the Presbytery to which he belongeth" (Form of Process, VII.1) Assemblies have generally been careful to guard the rights of Presbyteries in such circumstances. One authority on Church law, Mair, gives the example of a minister from the North who was attending the Assembly of 1838 and was found to be in a drunken condition at the Assembly Hall and in the street. The Assembly appointed a committee to inquire into the matter and summoned the minister to its Bar, then this having been done, the Assembly refrained from libelling him themselves but sent their precognitions to the minister's Presbytery with instructions to libel him and to report the outcome to the Commission (Mair, Digest of Church Laws, 3rd edn., p 382). This certainly seems more in line with the spirit of the Form of Process than that the Assembly should pass judgement themselves, as was done (by specific remit to the Commission) in the Rev Maurice Roberts' case. The December Commission agreed that since the alleged offences by Messrs Macleod and Murray had not been committed in the face of the Commission it was unfair that the Commission should try them and that the processes should be initiated by a lower Court (thus giving them a right of appeal). However, it was also decided that the 30 or so men who signed the FCDA statement should be libelled by the Commission and not by a lower court. Two reasons were advanced for this - first, that the alleged offence had been committed in facie ecclesiae - that is "in the face of the court" - and second, that since all the charges were identical it would be reasonable that they be tried by the one court, rather than have different courts possibly reaching different conclusions. These arguments seem very tenuous and slender indeed. Let me ask a basic question. What essentially is there to distinguish between the action of the 30 men in sending an allegedly contumacious statement to the Principal Clerk and the actions of Messrs Macleod and Murray in publishing a allegedly contumacious magazine? Neither offence was committed in the actual presence of the Commission. Is there really sufficient distinction between them to grant one group of defenders a right of appeal and to deny it to the rest? The Commission’s finding noted that there were precedents in the history of the Church for regarding a contumacious statement put in writing as on a par with a contumacious statement made in the face of the court. It is undeniable that there are precedents, but of what sort? Are these precedents not the sort of things which until recent days all good Free Churchmen would have viewed with horror as a subversion of the practice and procedures of the Church? In the Church of the 18th century when the anti-evangelical Moderates held the ascendancy they certainly adopted these sorts of tactics in dealing with Evangelicals such as Ebenezer Erskine and his supporters (who eventually formed the Secession). For example, when Erskine tabled a protest against a rebuke administered to him in the Assembly of 1733 the protest was found contumacious and the Assembly took direct action against him and his three supporters, ordering them to appear before the subsequent Commission and, if refusing to withdraw the protest, to be suspended from the ministry. But are these the precedents we want to look back to? Are the tactics of these anti-evangelical Moderates who put out godly, faithful ministers, the pattern and pretext of the Commission for its present course of action. In his History of the Secession Church, Thomson comments as follows:- "The very forms of justice were disregarded, in the present instance, by those haughty ecclesiastics. For respect even to the shadow and letter of justice, should evidently dispose those who sit in judgement to allow the utmost latitude of defence to those who are cited before them, and whose interests are deeply involved in the decision. This is one of those forms which no circumstance should be allowed to violate, and which having their foundation in natural justice, have often proved the invaluable safeguards of human rights. What shall we think then of such a decision summarily passed against these four brethren, while all inquiry is foreclosed and defence interdicted? Hasty decisions are a sure indication that faction or fear is sitting as judge. How true is the remark of Milton that, from the foundation of the world, error has never dared an open encounter with truth, or tyranny with an honest cause". Moderator, the only way of this Commission avoiding the justifiable allegation of acting like the anti-evangelical Moderates of the 18th Century is to receive this Petition and decline to proceed further with these libels. The Free Church came into being after a long struggle against the spiritually darkening and anti-Evangelical attitudes and ways of the Moderates. It would surely be sinful folly and a forsaking of the heritage of our Fathers for those who claim to be the children of the Disruption to return to the ways our forefathers rightly rejected long ago.
Any
comments or questions please E-Mail
me or Rev William Macleod
the Editor.
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