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SCOTTISH_Court_of_Session_Shaw

Page: 661

016SS0661

Kinnoull

v.

Presbytery of Auchterarder

No. 150

Court of Session

1st Division

February. 27 Mar. 5 1838

Ld. Fullerton, Whole Court.

Earl of Kinnoull, and Rev. Robert Young,     Pursuers.— Counsel:
D. F. Hope— Whigham.
Presbytery of Auchterader,     Defenders.— Counsel:
Sol.-Gen. Rutherfurd— R. Bell— Dunlop.

Subject_Church—Jurisdiction—Patronage—Acquiescence.— Headnote:

A Patron granted a presentation to a vacant church and parish, in favour of a Presentee who accepted of it; the Presbytery of the bounds, found that they must proceed to fill up the vacancy in terms of the Act of Assembly, May 31, 1834, entitled “Overture and Interim Act on Calls,” and the relative Act of Assembly, June 2, 1834, entitled “Overture, with Regulations, for carrying the above Act into effect,” in which sentencet he patron acquiesced; the Presbytery, farther, “did, in pursuance of the first regulation of the Act of Assembly anent Calls, in so far sustain the presentation, as to find themselves prepared to appoint a day for moderating in a Call to the Presentee;” the Call was signed by three individuals; no special objections were stated against the Presentee, but a dissent, or disapproval of him, was lodged by a large majority of the male heads of families, members of the congregation, and in full communion with the church; the Patron and Presentee took appeals to the superior Church Courts against the admission of these dissents, but on the ground exclusively that the provisions of the Acts of Assembly had not been adhered to; these appeals were dismissed; the Presbytery, thereafter, without taking the Presentee on trials as to his life, doctrine, or literature, &c. did, in respect of that dissent or disapproval, and in conformity with the above Acts of Assembly, “reject the Presentee, so far as regarded the particular presentation on their table, and the occasion of that vacancy in the parish;” the Patron and Presentee then raised a declarator against the Presbytery, concluding, inter alia, that the Presentee had been validly and effectually presented to the church and parish; that the Presbytery were, and are, bound to make trial of his qualifications, and, if they found him qualified, were bound to receive and admit him as Minister of the church and parish; and that their rejection of the Presentee was illegal and contrary to the laws and statutes libelled;—the Presbytery admitted the validity of the presentation, but, as to the other conclusions above recited, they declined the jurisdiction of the Civil Court, as incompetent, to determine as against them, their duty as a Church Court in a matter ecclesiastical, but, under reservation of that objection, they pleaded in defence that their whole proceedings were, on the merits, unchallengeable:—Held, by a majority of the Whole Judges, that the objection to the jurisdiction of the Court should be repelled; that the pursuer, the Presentee, was validly and effectually presented to the church and parish; that the Presbytery did and do refuse to take trial of his qualifications, and had rejected him, as Presentee, on the sole ground that a majority of the male heads of families, communicants in the said parish, had dissented, without any reason assigned, from his admission as Minister; that the Presbytery, in so doing, acted to the hurt and prejudice of the pursuers, illegally, and in violation of their duty, and contrary to the provisions of the statutes libelled, particularly 10 Anne, c. 12, entituled “An Act to restore Patrons to their ancient rights of presenting Ministers to the churches vacant in that part of Great Britain, called Scotland;” and that the defences of the Presbytery should be, in so far, repelled.


Facts:

The first Parliament of James VI., then a minor, was held at Edinburgh, 15th December, 1567, by James, Earl of Murray, Regent of Scotland. By statute 2, of that Parliament, it was enacted, in ratification of an act passed in 1560, abolishing Popery, that “the Bischope of Rome, called the Pape, haif na jurisdiction nor authoritie within this realme in ony time cumming.” By statute 3, another act of the year 1560 was ratified, by which previous statutes were rescinded as “not agreeing with God his word,” and were declared to be “abolished and extinguished for ever, in so far as any of the foresaids acts are repugnant, and contrarie to the Confession of Faith and Word of God foresaid, ratified and approved by the Estates in this present Parliament.” To this statute was subjoined at length, and in distinct articles, the “Confession of Faith and Doctrine, believed and professed by the Protestantes of Scotland, exhibited to the Estatis of the same in Parliament, and by their publick votis authorized as a doctrine grounded upon the infallible Word of God.” In art. 25, entitled “of the civil magistrate,” there was inserted an acknowledgment of the deference due to persons in authority, and this declaration:—“Mairover to Kings, Princes, Rulers, and Magistrates, we affirm that chiefly and most principally the conservation and purgation of the Religioun appertaines, that not only they are appointed for civil policy, but also for maintenance of the true Religion, and for suppressing of Idolatry and Superstition whatsoever. As in David, Josaphat, Ezechias, Josias, and others, highly commended for their zeal in that caice, may be espyed. And therefore we confess and avow, that sik as resist the supreme power, doing that quhilk appertaines to his charge, do resist God his ordinance: and therefore cannot be guiltless.”

The acts of the Estates in 1560, were passed in the reign of Mary, and the ratification of them in 1567 was considered necessary, in consequence of the Queen having declined to adhibit her consent to them. A discussion had taken place, in the interim, between those acting for the Reformed Church, on the one hand, and Queen Mary's advisers on the other, in the course of which a message was sent from the General Assembly of the Church to the Queen, in 1565, containing this passage: “Our mind is not that her Majesty, or any other patron, should be deprived of their just patronages, but we mean, whensoever her Majesty, or any other patron, do present any person into a benefice, that the person presented should be tried and examined by the judgment of learned men of the Church, such as are the present superintendents, and as the presentation unto the benefice appertains unto the patron, so the collation by law and reason belongs unto the Church; and the Church should not be defrauded of the collation no more than the patrons of their presentation; for otherwise, if it be lawful to the patrons to present whom they please, without trial or examination, what can abide in the Church of God but mere ignorance?”

By 1567, c. 5, mass was abolished. By 1567, c. 6, an act was passed declaring “the ministers of the blessed Evangel of Jesus Christ, quhome God in his mercie hes now raised up amangs us, or heirafter sall raise, agreeing with them that now lives, in doctrine and administration of the Sacraments, and the peopil of the realme that professis Christ, as he is now offered in his Evangel, and dois communicate with the halie Sacraments (as in the reformed Kirkes of this Realme ar publicklie administrat), according to the Confession of the Faith, to be the trew and halie Kirk of Jesus Christ, within this Realme, and decernis and declaris, that all and sindrie, quha outher gainsayis the word of the Evangel, received and appreved, as the heads of the Confession of the Faith, professed in Parliament of befoir, in the zeir of God, 1560 zeires, As alswa specified and Registrat in the actes of Parliament, maid in the first zeir of his Heinesses Reigne, mair particularlie dois expresse, ratified alswa and appreved in this present Parliament; Or that refusis the participation of the halie Sacraments, as they ar now ministrat; to be na members of the said Kirk, within this realme, and trew Religion, now presently professed, Sa lang as they keep themselves sa divided, from the societie of Christ's body.”

By 1567, c. 7, an act was passed, entituled “Admission of Ministers: of Laick Patronages.” It was thereby enacted “That the examination and admission of ministers, within this realme, be only in the power of the Kirk, now openlie and publicly professed within the samin: The presentation of laic patronages alwaies reserved to the just and auncient patrones. And that the patroun present ane qualified persoun within sex monethes (after it may cum to his knawledge, of the decease of him quha bruiked the benefice of before), to the superintendent of thay parties quhair the benefice lyes, or uthers havand commission of the kirk to that effect; utherwaies the Kirk to have power to dispone the samin to ane qualifyed person for that time. Providing, that in caice the patron present ane person qualified to his understanding, and failzeing of ane, ane uther within the said six moneths, and the said superintendent, or commissioner of the Kirk, refusis to receive and admit the person presented be the patron, as said is; It sall be lesum to the patron to appeale to the superintendent and ministers of that province quhair the benefice lyis, and desire the person presented to be admitted, quhilk gif they refuse, to appeale to the General Assemblie of the haill realme, be quhome the cause beand decyded, sall take end, as they decerne and declair.”

In 1560, the First “Book of Discipline, or the Policie and Discipline of the Church,” was prepared by a committee of ministers, of whom John Knox was one. It described “vocation” as consisting in “election, examination, and admission;” and it declared that “it appertaineth to the people and to every several congregation, to elect their minister.” This First Book of Discipline was never finally ratified and approved by the State, as well as by the Church. The Second Book of Discipline, “or heidis and conclusions of the Policie of the Kirke,” was framed in 1578, and was agreed upon in the General Assembly of that year, and engrossed in the records of the Assembly in 1581. Andrew Melville was one of the persons who took a leading part in preparing it. The first chapter of that book sets forth (§ 1.) the various senses in which the words “The Kirk of God” may be used, including those “that exercise spiritual function amongis the congregation of them that profess the truth.” (§ 2.) “The kirke in this last sense hes a certain power grantit by God, according to the quhilke it uses a proper jurisdiction and government, exerciseit to the comfort of the hole kirk. This power ecclesiasticall is an authoritie grantit be God the Father, throw the Mediator Jesus Christ, unto his kirk gatherit, and having the ground in the word of God; to be put in execution be them, unto quhom the spirituall government of the kirk be lawful calling is committit.” (§ 3.) “The policie of the kirk flowing from this power is an order or forme of spirituall government, quhilk is exercisit be the members appoyntit thereto be the word of God; and therefore is gevin immediately to the office-beararis, be quhom it is exercisit to the weile of the hole bodie,” &c. (§ 4.) “This power and policie ecclesiasticall is different and distinct in the awin nature from that power and policie, quhilk is callit the civill power, and appertenis to the civill government of the commonwealth,” &c. (§ 5.) “For this power ecclesiasticall flowes immediatlie from God, and the Mediator Jesus Christ, and is spirituall, not having a temporall heid on earth, but onlie Christ the onlie spirituall King and Governor of his kirk.” (§ 7.) “Therefore this power and policie of the Kirk sould leane upon the word immediatlie, as the onlie ground thereof, and sould be taine from the pure fountaines of the Scriptures, the Kirk hearing the voyce of Christ, the onlie spirituall king, and being rewlit be his lawes.” (§ 8.) That Kings, princes, &c., ought not to usurp dominion in the spiritual government of the Kirk, but should be called servants, &c. “For it is Christis proper office to command and rewll his Kirk universall, and every particular Kirk, threw his spirit and word, be the ministrie of men.” (§ 9.) “Notwithstanding, as the ministeris and uthers of the ecclesiasticall estait are subject to the magistrat civill, so aucht the person of the magistrat be subject to the Kirk spiritually, and in ecclesiasticall government. And the exercise of both these jurisdictiones cannot stand in one person ordinerlie. The civill power is callit the power of the sword, and the uther the power of the keyes.” (§ 14.) “The ministers exerce not the civil jurisdictioun, bot teich the magistrat how it sould be exercit according to the word.”

The third chapter of this Book is entituled “How the persones that beir ecclesiasticall functiones are admitted to thair office.” It contains the following articles:—(§ 1.) “Vocation or calling is common to all that sould beir office within the Kirk, quhilk is a lawfull way, be the quhilk qualifiet persones are promotit to any spirituall office within the Kirk of God; without this lawfull calling it was never leisum to any person to medle with any function ecclesiasticall. (§ 4.) This ordinair and outward calling, hes twa parts election and ordination. Election is the chusing out of a person or persons maist abile to the office that vaikes, be the judgment of the eldership, and consent of the congregation, to whom the person, or persons beis appointed. The qualities in generall requisite in all them wha sould beir charge in the Kirk, consist in soundness of religion, and godliness of lyfe, according as they are sufficiently set furth in the word. (§ 5.) In this ordinar election it is to be eschewit, that na person be intrusit in ony of the offices of the Kirk, contrar to the will of the congregation to whom they are appointed, or without the voice of the eldorschip. Nane aucht to be intrusit, or placeit in the places alreadie pluntit, or in any roume that vaikes not, for any wardlie respect: and that quhilk is callit the benefice aucht to be nothing else but the stipend of the ministers that are lawfully callit. (§ 6.) Ordinatione is the separatione and sanctifying of the persone appoyntit to God and his Kirk, eftir he be weill tryit and fund qualifiet. The ceremonies of ordinatione are fasting, earnest prayer, and imposition of hands of the eldersehip. (§ 8.) All these office-beararis sould have their awin particular flockis amongst whom they exercise thir charge, and sould make residence with them, and tak the inspection and oversicht of them, every ane in his vocation,” &c.

It is provided in chapter 4, relative to pastors or ministers, that (§ 3.) “na man aucht to ingyre himself, or usurp this office, without lawful calling;” and, (§ 4.) that “they that ar anis callit by God, and dewlie electit by man,” after accepting the ministry, may not leave their functions. In chapter 7, which is entitled “Of the elderships, and assemblies, and discipline,” it is declared that (§ 2.) “Assemblies are of four sortis. For aither ar they of particular kirks and congregations ane or ma, or of a province, or of ane haill nation, or of all and divers nations professing one Jesus Christ. (§ 3.) All the ecclesiasticall Assemblies have power to convene lawfully togidder for treating of things concerning the kirk, and pertaining to thair charge. They have power to appoynt tymes and places to that effect; and at ane meeting to appoynt the dyet, time and place for anuther. (§ 4.) In all assemblies ane moderator sould be chosen, by common consent of the haill brethren convenit, who sould propone matters, gather the votes, and cause gude ordor to be keipit in the assemblies. Diligence sould be taken, chiefly by the moderator, that onlie ecclesiasticall things be handlit in the Assemblies, and that there be na meddling with onything perteining to the civill jurisdiction. (§ 6.) The finall end of all assemblies is, first, to keip the religion and doctrine in puritie, without error and corruption. Next, to keip cumliness and gude ordor in the kirk. (§ 7.) For this order's cause, they may make certane rewls and constitutions apperteining to the gude behaviour of all the members of the kirk in thair vocation. (§ 8.) They have power also to abrogate and abolish all statutes and ordinances concerning ecclesiasticall matters that are found noysome and unprofitable, and agrie not with the tyme, or ar abusit be the people. (§ 9.) They have power to execute ecclesiasticall discipline and punishment upon all transgressors, and proud contemners of the gude order and policie of the kirk, and swa the haill discipline is in thair hands.” After adverting (§ 10.) to “the first kynde and sort of assemblies,” as being composed of a “common eldership,” or Presbytery, with which word that of eldership was then synonymous, containing “3 or 4, mae or fewar, particular kirks,” it was declared (§ 11.) that “The power of thir particular elderschips, is to use diligent labours in the boundis committed to thair charge, that the kirks be kepit in gude order, to inquire diligently of nauchtie and unruly persons, and to travell to bring them in the way again, aither be admonition, or threatening of God's judgements, or be correction. (§ 12.) It pertaines to the elderschip to take heid that the word of God be purely preichit within their bounds, the sacraments rightly ministrat, the discipline rightly mantenit, and the ecclesiasticall gudes uncorruptlie distributit. (§ 13.) It belonges to this kynde of Assembly, to cause the ordinances made be the Assemblie's provinciall, nationall, and generall to be keepit, and put in execution. To mak constitutions quhilk concerne Tò πρ&eacgr;πον in the kirk, for the decent order of these particular kirks where they governe; provyding they alter no rewls made by the generall or provinciall assemblies, and that they mak the provinciall assemblies foresein of these rewls that they sal mak, and abolish them that tend to the hurt of the same. (§ 14.) It hes power to excommunicat the obstinat. (§ 15.) The power of election of them who beir ecclesiasticall charges, perteinis to this kynde of assemblie, within their awin bounds, being well erectit, and constitute of many pastors and elders of sufficient abilitie. (§ 16.) By the like reason their deposition also perteins to this kynde of assemblie, as of them that teich erronious and corrupt doctrines; that be of sclanderous lyfe,” &c. (§ 18.) “Provinciall assemblies we call lawful conventions of the pastors, doctors, and uther eldaris of a province, gatherit for the common affaires of the kirkes thereof, quhilk also may be callit the conference of the kirk and brethren. (§ 19.) Thir assemblies are institute for weighty matters, to be intreatit be mutuall consent and assistance of the brethren within that province, as neid requyres. (§ 20.) This assemblie has power to handle, order, and redresse all things ommittit or done amisse in the particular assemblies. It hes power to depose the office-beirirs of that province for gude and just causes deserving deprivation. And generallie thir assemblies have the haill power of the particular eldersehips, whairof they are collectit. (§ 21.) The nationall assemblie, quhilk is generall to us, is a lawful convention of the haill kirks of the realm or nation, where it is usit and gatherit for the common affaires of the kirk; and may be callit the generall elderschip of the haill kirk within the realme. Nane ar subject to repaire to this assemblie to vote bot ecclesiasticall persons, to sic a number as shall be thocht gude be the same assemblie; not excluding uther persons that will repaire to the said assemblie to propone, heir, and reason. (§ 22.) This assemblie is institute, that all things aither omittit or done amisse in the provinciall assemblies, may be redressit and handlit; and things generally serving for the weill of the haill bodie of the kirk within the realme may be foirsein, intreatit, and set furth to Godis glorie. (§ 23.) It sould take cair, that kirks be plantit in places quhair they are not plantit. It sould prescryve the rewll how the uther twa kinds of assemblies sould proceid in all things, (§ 24.) This assemblie sould tak heid, that the spirituall jurisdiction and civill be not confoundit to the hurt of the kirk;—That the patrimonie of the kirk be not consumit nor abusit; and generallie concerning all weighty affaires that concerne the weill and gude order of the haill kirks of the realm, it aucht to interpone authority thairto.” In cap. 10, entitled “Of the office of a Christian magistrat in the kirk,” it is declared (§ 3.) to pertain to his office “To see that the kirk be not invadit nor hurt, by false teichers and hyrelings, nor the rowmes thereof be occupyit by dumb dogs, or idle bellies. (§ 7.) To mak lawis and constitutions, agreeable to God's word, for advancement of the kirk, and policie thereof, without usurping ony thing that perteins not to the civil sword, bot belangs to the offices that ar meirlie ecclesiasticall, as is the ministrie of the word and sacraments, using of ecclesiastical discipline and the spiritual execution thereof, or ony part of the power of the spirituall keys, quhilkis our Master gave to the Apostles, and their trew successours.” In cap. 11, treating of the abuses which required reformation, it was declared unlawful (§ 6.) that any person “should have 5, 6, 10, or 20 kirks, or mae, all having the charge of saules, and bruik the patrimony thereof, either be admission of the prince, or of the kirk,” &c. It was declared, (§ 8.) as to a certain order which had been made that certain persons might “be admittit, being found qualifiet,” that this order was either an abuse, or must mean, not “qualifiet in worldly affaires, or to serve in court; bot of sic as are qualifiet to teich Godis word, having their lawful admission of the kirk.” Cap. 12 treated of “certain speciall heads of reformation quhilk we crave.” It declared (§ 3.) that, it seemed advisable in some places to unite, (in others, to divide,) parishes, “by the advice of sic, as commission may be gien to, by the kirk and prince,” and that there should be “qualifiet ministers placed thereat.” It was declared, (§ 8.) as to the General Assemblies, “all men, als weill magistrats as inferiours, to be subject to the judgment of the same in ecclesiasticall causes, without any reclamation, or appellation, to ony judge civil or ecclesiastical within the realm.” (§ 9.) “The libertie of the election of persons callit to the ecclesiasticall functions, and observit without interruption swa lang as the Kirk was not corruptit be antichrist, we desyre to be restorit and retenit within this realme. Swa that nane be intrusit upon ony congregation, eithir be the prince or ony inferior person, without lawful election and the assent of the people owir quham the person is placit; as the practise of the apostolical and primitive Kirk, and gude order craves. (§ 10.) And because this order, quhilk God's word craves, cannot stand with patronages and presentation to benefices usit in the Paipe's Kirk; we desyre all them that trewlie feir God earnestlie to consider, that for swa meikle as the names of patronages and benefices, together with the effect thairof, have flowit fra the Paip and corruption of the canon law only, in so far as thereby ony person was intrusit or placit owir kirks having curam animarum; And for swa meikle as that manner of proceeding hes na ground in the word of God, but is contrar to the same, and to the said libertie of election, they aucht not now to have place in this licht of reformation. And, therefore, quhasumever will embrace God's word, and desyre the kingdome of his Son Christ Jesus to be advancit, they will also embrace and receive that policie and order quhilk the Word of God and upright estait of his Kirk craves, otherwise it is in vaine that they have profest the same. (§ 11.) Notwithstanding as concerning uther patronages or benefices that have not curam animarum, as they speak; such as ar chaplanries, prebendaries, foundit upon temporall lauds, annualls, and sick lyke, may be reservit unto the ancient patrones, to dispone thairupon, quhair they vaike, to schulis and bursars, as they are requyrit be Act of Parliament.” It was farther declared § 12, that “the haill rent and patrimonie of the kirke, exceptand the small patronages before mentionat,” should suffer a four-fold division; one-fourth to the pastor; one-fourth, to the elders, deacons, and other officers of the kirk, including “the doctors of schules;” one-fourth to “puir members of the faithful,” and to hospitals; and one-fourth to the repair of churches, &c., “and also for the common weill, if need requyre.” The last chapter (13) pointed out the benefits which were expected to flow to all estates, from an adoption of this Book of Discipline.

In 1579, a statute was passed (c. 68) which was the first Act of the Parliament commencing on 20th October, 1579; this statute ratified the act 1567, c. 6, and re-ingrossed the tenor of it, “because of sum defection, and informalitie of words in default of the prenter.” And another statute of that year, c. 69, “declared and granted jurisdiction to the kirk, quhilk consists and stands in the preaching of the trew worde of Jesus Christ, correction of manners, and administration of the holie sacraments;” and declared that there was no other kirk or religion established in the realm than that then subsisting, and “that there be na uther jurisdiction ecclesiastical acknowledged within this Realme, uther then that quhilk is, and sall be, within the samin Kirk, or that quhilk flows theirfra, concerning the premises.” The act 1581, c. 99, ratified the previous acts in favour of the reformed religion; and the act 1581, c. 102, provided, “that all benefices of cure under prelacies sall be presented be our soveraine lord, and the laick patrones, in the favor of abill and qualified ministers, apt and willing” to discharge the duties of the office.

The Court, desirous of establishing bishops, were hostile to the policy of the Second Book of Discipline, and, in 1584, various statutes were passed, infringing on the rights and privileges claimed by the Church.

The statute 129 of that year, “ratifies and apprevis, and perpetually confirmis the royal power, and authoritie over all Estaites, alsweil Spiritual, as Temporal, within this Realme, in the person of the Kingis Majestie, our Soveraine Lord, his aires and successours: And als statutis and ordanis, that his Hienes, his saidis aires and successours, be themselves, and their councelles, ar, and in time to cum sall be, judges competent to all persones his Hienes subjectes, of quhatsumever estaite, degree, function, or condition that ever they be of, Spiritual or Temporal, in all matters, quhairin they, or ony of them sall be apprehended, summound, or charged to answer to sik thinges as sall be inquired of them, be our said Soveraine Lord and his Councel.” The statute c. 131, of the same year, after “discharging all judgments and jurisdictions, spiritual or temporal, accustomed to be used and execute, upon ony of his Hieness's subjectis, quhilkis ar not approved by his Hieness,” and Parliament, enacted “That nane of his Hienes subjectes, of whatsumever qualitie, estaite, or function they be of, Spiritual or Temporal, presume or tak upon hand, to convocate, convene, or assemble themselves togidder, for halding of councelles, conventions, or assemblies, to treat, consult and determinat in ony matter of Estaite, Civile or Ecclesiastical (except in the ordinar Judgement), without his Majesties special commandement, or expresse license, had and obtained to that effect, under the paines ordained be the lawes and actes of Parliament, against sik as unlawfully convocatis the Kingis lieges.” And the next statute, c. 132, enacted that all “Persones, Ministers, or Readers, or utheris provided to benefices, sen his Hienes Coronation,” if accused of heresy, papistrie, false doctrine, simony, &c., being lawfully called, tried, and found guilty “by the ordinar Bishope of the diocese, or utheris the Kinges Majesties Commissioners to be constitute in ecclesiastical causes, sall be deprived alsweil fra their function in the Ministrie, as from their benefices, quhilkis sall be thereby declared to be vacand; to be presented and conferred of new, as gif the persones possessors thereof were naturally dead.”

The Reformers of Scotland reclaimed against these enactments, and, ultimately succeeded in obtaining the passing of the act 1592, c. 116, which has since been frequently called the Charter of Presbytery. Prior to this act various proceedings had taken place, resulting in a final conference between the King on the one part, and certain leading ministers on the other. 1 This act was intituled “Ratification of the liberty of the trew Kirk: Of Generall and Synodal Assemblies: Of Presbyteries: Of Discipline. All Laws of Idolatrie ar abrogate: Of presentation to benefices.”

_________________ Footnote _________________

1 For an account of these proceeding and this conference see Spottiswoode, p. 289, et seq. and p. 388; and Calderwood, p. 208, et seq. and p. 267, et seq.

“Our Soveraine Lord and Estaites of this present Parliament, following the lovabil and gude exemple of their Predecessours, Hes ratified and appreeved, and be the tenour of this present act, ratifies and apprevis all liberties, priviledges, immunities, and freedoms quhatsumever, given and granted be his Hieness, his Regentes in his name, or onie of his Predecessours, to the trew and halie Kirk, presently established within this Realm; and declared in the first Act of his Hienesse Parliament, the 20th day of October, 1579: and all and whatsumever Acts of Parliament, and statutes maid of before, be his Hienesse, and his Regentes, anent the libertie and freedom of the said Kirk; And specially, the first Act of the Parliament, halden at Edinburgh, the 24th daie of October, 1581, with the haill particular Acts there mentioned: Quhilk sall be als sufficient as gif the samin were here expressed. And all other Acts of Parliament made sen-sine, in favour of the true Kirk; and siklike, ratifies and appreivis, the General Assemblies appointed be the said Kirk: And declares, that it sall be lauchfull to the Kirk and Ministers every zeir at the least, and oftener pro re nata as occasion and necessity sall require, to hald and keepe General Assemblies: Providing that the King's Majesty, or his Commissioners with them to be appoynted be his Hieness, be present at ilk General Assemblie, before the dissolving thereof, nominate and appoynt time and place, quhen and quhair the nixt General Assemblie sall be halden: and in case naither his Majesty, nor his said Commissioners beis present for the time in that Toun, quhair the said General Assemblie beis halden: Then and in that case, it sall be lesum to the said General Assemblie, be themselves, to nominate and appoynt time and place, quhair the next General Assemblie of the Kirk sall be keiped and halden, as they have been in use to do thir times by past. And als ratifies and apprevis the Synodicall and Provinciall Assemblies, to be halden be the said Kirk and Ministers, twise ilk zeir, as they have bene, and ar presently in use to do, within every Province of this Realme; and ratifies and apprevis the Presbyteries, and particular Sessiones, appoynted be the said Kirk, with the haill jurisdiction and discipline of the same Kirk, aggried upon by his Majesty in conference had be his Hieness, with certain of the Ministers, conveened to that effect: of the quhilkes articles the tenour follows. Matters to be entreated in Provincial Assemblies: Thir Assemblies ar constitute for weichtie maters, necessar to be entreated be mutual consent, and assistance of brethren, within the Province, as neede requiris. This Assemblie hes power to handle, ordour, and redresse, all things omitted or done amisse in the particular Assemblies. It hes power to depose the office-bearers of that Province, for gude and just cause, deserving deprivation: And generally, thir Assemblies hes the haill power of the particular Eldershippes, quhairof they are collected. Maters to be intreated in the Presbyteries. The power of the Presbyteries is to give diligent laboures in the boundes committed to their charge: That the Kirks be keeped in gude ordour; To enquire diligently of naughty and ungodly persons: And to travel to bring them in the way againe be admonition, or threatning of God's judgements, or be correction. It appertaines to the Elderschippe, to take heede, that the Word of God be purely preached within their boundes; The Sacraments richtly ministred; the Discipline enterteined; And Ecclesiastical guddes uncorruptly distributed. It belangis to this kinde of Assemblies, to cause the ordinances maid be the Assemblies, Provincialles, nationals and generals, to bee keeped and put in execution; to make constitutions, quhilk concernis Tò πρ&eacgr;πον in the Kirk, for decent ordour, in the particular Kirk, quhair they governe: Providing that they alter na rules maid be the Provincial, or General Assemblies: And that they make the Provincial Assemblies foresaids, privy of the rules that they sall make: And to abolish constitutiones tending to the hurt of the same. It hes power to excommunicate the obstinate, formal Process being led, and dew interval of times observed. ANENT particular Kirks, gif they be lauchfully ruled, be sufficient Ministry and Session. They have power and jurisdiction in their awin Congregations, in matters Ecclesiastical. And decernis and declairis the saids Assemblies, Presbyteries, and Sessiones, Jurisdiction and Discipline thereof foresaid, to be in all times cumming maist just, gude, and godly in theselfe, Notwithstanding of quhatsumever Statutes, Actes, Canone, Civill, or Municipal Lawes, made in the contrare. To the quhilkis and every ane of them, thir presentes sail make expresse derogation: And because there ar divers Acts of Parliament, maid in favour of the Papistical Kirke, tending to the prejudice of the liberty of the trew Kirk of God, presently professed within this Realme, jurisdiction and discipline thereof, Quhilk stands zit in the buikes of the Actes of Parliament, nocht abrogated nor annulled: Therefore his Hienesse, and Estaites foresaid, hes abrogated, cassed, and annulled, and be the tenour hereof, abrogatis, cassis and annullis all Acts of Parliament made be ony of his Hienesse Predecessoires, for maintenance of superstition and idolatry, with all and quhatsumever Acts, Laws and Statutes, maid at ony time, before the day and dait hereof, against the liberty of the trew Kirk, Jurisdiction and discipline thereof, as the samin is used and exercised within the Realme.

“And in speciall, that part of the Act of Parliament halden at Striviling, the 4th day of November, 1443, commaunding obedience to be given to Eugenius the Paipe for the time: the Acte made be King James the Thrid, in his Parliament halden at Edinburgh the 24th day of Februar, 1480, and all utheris actes quhairby the Paipis authority is established. The Act of King James the Thrid, in his Parliament halden at Edinburgh, the 20th day of November, 1469, anent the Satterday, and uther vigiles to be halie-dayes, from Evensang to Evensang.

Item, that part of the Act, maid by the Queene Regent, in the Parliament halden at Edinburgh, the 1st day of Februar, 1551, giving special licence for holding of Pasche and Zule. Item the Kingis Majesty, and Estaites, foresaidis, declaris, that the 129 Acte of the Parliament, halden at Edinburgh, the 22d day of Maij, 1584, sall naways be prejudiciall, nor derogate ony thing to the privilege that God has given to the spirituall office-bearers in the Kirk, concerning heads of Religion, matters of Heresie, Excommunication, collation or deprivation of Ministers, or ony sick like essential censours, especiallie grounded, and havand warrand of the Word of God. Item, Our Soveraine Lord, and Estaitis of Parliament foresaids, abrogatis, cassis, and annullis, the Act of the same Parliament, halden at Edinburgh, the said zeir, 1584, granting commission to Bischoppes, and utheris Judges, constitute in Ecclesiasticall causes, to receive his Hienesse presentations to benefices, to give collation thereupon: and to put ordour in all causes Ecclesiasticall: quhilk his Majesty and Estates foresaidis, declaris to be expired in the selfe, and to be null in time cumming, and of nane availl, force nor effect. And therefore ordainis all presentations to Benefices, to be direct to the particular Presbyteries, in all time cumming: with full power to give collation thereupon: And to put ordour to all maters and causes Ecclesiasticall, within their boundes, according to the discipline of the Kirk: Providing the foresaids Presbyteries be bound and astricted, to receive and admitt quhatsumever qualified Minister, presented be his Majesty, or laick patrones.”

The next statute, 1592, c. 117, provided, that a sentence of deprivation, pronounced by any Presbytery, Synodal, or General Assembly, against persons provided to ecclesiastical functions as there specified, should not only occasion the loss of the cure, but also of the fruits of their benefice: “And that the said sentence of deprivation, sail be ane sufficient cause to make the said Benefice to vaike thereby. And the said sentence being extracted, and presented to the Patron, the said Patrone sall be bound to present ane qualified person of new to the Kirk, within the space of sex moneths thereafter: And gif he failzie to do the same, the said Patrone sall tine the right of presentation, for that time allanerly: And the right of presentation to be devolved in the handes of the Presbytery, within the quhilk the benefice lies; to the effect that they may dispone the same, and give collation thereof, to sik an qualified person as they sall think expedient. Providing allwayes, in case the Presbytery refuses to admit ony qualified Minister, presented to them be the Patrone; It sall be lauchfull to the Patrone to retain the haill fruites of the said Benefice in his awn handes.”

Prior to 1581 that class of Church Courts termed Presbyteries, or “particular elderships,” had not been instituted. The Presbyterian form of worship and government, however, had subsisted from the era of the Reformation. The term “Presbyter,” which is synonymous with “elder,” is that from which the Presbyterian Church has derived its appellation, and the Church of Scotland was Presbyterian from the first, inasmuch as it was “reformed from Popery by Presbyters,” and professed, as the essential characteristic of its Church polity, that there should be no superiority of any office in the Church above Presbyters. From the commencement, the Church was governed by General Assemblies, all the members of which had an equal voice. As early as 1562 an Act of the Fifth General Assembly appointed “Synodal Conventions” to be held twice in each year, in April and October. Another Act of Assembly, of the same year, ordained, “that none be admitted to kirks without the nomination of the people, and due examination and admission by the superintendent.” And an Act of Assembly in 1575, referred to in a subsequent Act of Assembly, 1736, c. 14, affirmed the principle, that no minister should be intruded into any parish, contrary to the will of the congregation.

With the exception of a few years after what was termed the Convention of Leith, in 1572, and the temporary introduction of bishops in 1584, the Presbyterian Church, that is, a Church which disowned the existence of any office superior to that of Presbyters, and was governed by Assemblies or Courts, composed of the different classes of “elders,” having all an equal voice in matters of rule or government, was the form of Church existing in Scotland, and was that Church to which the various statutes above quoted referred.

By an Act of Assembly in 1596, regulations were imposed as to the “more diligent inquisition and trial” to be used, of all persons entering into the ministry. These regulations were again engrossed in an Act of Assembly, 1638, and they contained, inter alia, this clause:—“That the tryall of persons to be admitted to the ministrie hereafter, consist not only in their learning and abilitie to preach, but also in conscience, and feeling, and spiritual wisedome, and namely, in the knowledge of the bounds of their calling, in doctrine, discipline, and wisedome, to behave himselfe accordingly with the diverse ranks of persons within his flock, as namely, with atheists, rebellious, weak consciences, and such other, wherein the pastorall charge is most kythed; and that he be meet to stop the mouthes of the adversaries; and such as are not qualified in these points to be delayed to further tryall, and while they be found qualified.”

Episcopacy was established in 1612; the supremacy of the King in matters ecclesiastical being again declared, and bishops being made subject to legal diligence to compel their induction of qualified presentees already in orders. In 1638 Episcopacy was overthrown, the King's supremacy disclaimed, and the Assembly, among other general declarations, agreed to the following:— “20, Anent the presenting either of pastors or readers, and schoolmasters to particular congregations, that there be a respect had to the congregation, and that no person be intruded in any office of the Kirk contrair to the will of the congregation to which they are appointed.”

In 1644, a Form of Church Government was drawn up by the Assembly of Divines at Westminster, in which, in treating of the “ordination of ministers,” it was provided, that “no man ought to take upon him the office of a minister of the word without a lawful calling.” It was also provided, that “he that is to be ordained minister, must be duly qualified, both for life and ministerial abilities, according to the rules of the Apostle:” and that “no man is to be ordained a minister for a particular congregation, if they of that congregation can show just cause of exception against him,” In 1645, this Form of Government was approved, subject to a reservation for further discussion of two points, the one as to the right of “teaching-elders” to administer the sacraments, allowed in the Form, but which is not acknowledged by the Church of Scotland; and the other, as to “the distinct rights of Presbyteries and people in the calling of ministers.”

In 1649, an act was passed by the Convention of Estates, declaring “that patronages and presentations of kirks is an evill and bondage under which the Lord's people and ministers of this land have long groaned, and that it hath no warrant in God's word, but is founded onely on the canon law, and is a custome Popish, and brought into the Kirk in time of ignorance and superstition, and that the same is contrary to the Second Book of Discipline, in which, upon solid and good ground, it is reckoned among abuses that are desired to be reformed, and unto severall acts of Generall Assembly, and that it is prejudicial to the liberty of the people, and planting of kirks, and unto the free calling and entrie of ministers unto their charge;” and therefore the Estates did “discharge for ever hereafter all patronages and presentations of kirks, whether belonging to the King or to any laick patrone, presbyteries, or others within this kingdome, as being unlawfull and unwarrantable by God's word, and contrary to the doctrine and liberties of this Kirk; and doe repeal, rescind, make voyd, and annull all gifts and rights granted thereanent, and all former acts made in Parliament,” &c. The act declared, that if any presentation was thereafter given, “it is lawfull for Presbyteries to reject the same, and to refuse to admit any to trialls thereupon, and, notwithstanding thereof, to proceed to the planting of the kirk upon the sute and calling, or with the consent of the congregation, on whom none is to be obtruded against their will. And it is decerned statute and ordained, that whosoever hereafter shall, upon the suit and calling of the congregation, after due examination of their literature and conversation, be admitted by the Presbytery unto the exercise and function of the ministry in any paroch within this kingdom, that the said person or persons, without a presentation, by virtue of their admission, hath sufficient right and title to possesse and enjoy the manse and gleib, and the whole rents, profits, and stipends,” &c. “And because it is needful that the just and proper interest of congregations and presbyteries, in providing of kirks with ministers, be clearly determined by the Generall Assembly, and what is to be accompted the congregation having that interest: Therefore it is hereby seriously recommended unto the next Generall Assembly clearly to determine the same, and to condescend upon a certain standing way for being a settled rule therein for all time coming,” &c.

In the same year an Act of Assembly was passed, entituled “Directorie for election of Ministers.” It directed, § 1, that, when a vacancy occurred, the Presbytery should send to the congregation “preachers whom they may hear, and, if they desire to hear any other,” should endeavour to procure this. § 2. “Within some competent time thereafter, the Presbyterie is again to send one or more of their number to the said vacant congregation, on a certain day appoynted before for that effect, who are to conveen and hear sermon the foresaid day, which being ended, and intimation being made by the minister, that they are to goe about the election of a pastor for that congregation, the session of the congregation shall meet and proceed to the election, the action being moderated by him that preached: And if the people shall, upon the intimation of the person agreed upon by the session, acquiesce and consent to the said person, then, the matter being reported to the Presbyterie by commissioners sent from the session, they are to proceed to the triall of the person thus elected, and, finding him qualified, to admit him to the ministry in the said congregation. 3. But if it happen that the major part of the congregation dissent from the person agreed upon by the session, in that case the matter shall be brought unto the Presbyterie, who shall judge of the same; and if they doe not find their dissent to be grounded on causeless prejudices, they are to appoynt a new election in manner above specified. 4. But if a lesser part of the session or congregation show their dissent from the election, without exceptions relevant and verefied to the Presbyterie, notwithstanding thereof the Presbyterie shall go on to the trials and ordination of the person elected; yet all possible diligence and tendernesse must be used to bring all parties to an harmonious agreement. 5. It is to be understood that no person under the censure of the Kirk because of any scandalous offence, is to be admitted to have hand in the election of a minister. 6. Where the congregation is disaffected and malignant, in that case the Presbyterie is to provide them with a minister.”

At the Restoration, the Act 1649, abolishing patronage, was rescinded; and by 1662, c. 1, Episcopacy, with the King's supremacy in matters ecclesiastical, was restored. This statute set forth that “the ordering and disposal of the external government and policy of the Church, doth properly belong unto his Majesty, as an inherent right of the Crown, by virtue of his royal prerogative and supremacy in causes ecclesiastical.” It declared Episcopacy to be the Church government “most agreeable to the word of God,” &c. and “revived, ratified, and renewed all acts of any former Parliaments, made for the establishment, and in favour of this ancient government.” It also cassed and annulled “all Acts of Parliament by which the sole and only power and jurisdiction within this Church, doth stand in the Church, and in the General, Provincial, and Presbyterial Assemblies, and Kirk-Sessions; and all Acts of Parliament or Council which may be interpreted to have given any Church-power, jurisdiction, or government, to the office-bearers of the Church, their respective meetings, other than that which acknowledgeth a dependence upon, and subordination to, the sovereign power of the King, as supreme, and which is to be regulated and authorized, in the exercise thereof, by the Archbishops and Bishops, who are to put order to all ecclesiastical matters and causes, and to be accountable to his Majesty for their administrations.” By 1669, c. 1, it was farther enacted and declared, “That his Majesty hath the supreme authority and supremacy over all persons and in all causes ecclesiastical, within this, his kingdom;” that “the ordering and disposal of the external government and policy of the Church, doth properly belong to his Majesty,” &c.; and that the King might enact and emit such constitutions, acts, and orders concerning the administration of the external government of the Church, and concerning all ecclesiastical meetings, and matters to be proposed therein, as to his royal wisdom seemed meet.

A long period of cruel persecution and oppression, resorted to by Charles II, and James II. for the purpose of destroying all opposition to Episcopacy, and to the Royal supremacy in matters ecclesiastical, was only brought to a close by the Revolution which placed William III. and Mary on the throne. It was then inserted by the meeting of the Scottish Estates as an article in the declaration of their Claim of Right, which accompanied the tender of the Scottish Crown to William and Mary, “That Prelacy, and the superiority of any office in the Church above Presbyters, is, and hath been, a great and insupportable grievance and trouble to this nation, and contrary to the inclinations of the generality of the people, ever since the Reformation (they having reformed from Popery by Presbyters), and therefore ought to be abolished.” And among the “articles of grievances” then framed, the second was, “That the first Act of Parliament, 1669, is inconsistent with the Church government now desired, and ought to be abrogated.”

After King William, at the request of the Estates, had turned their Convention into a Parliament, the Act 1689, c. 3, was passed, by which Prelacy was abolished, “and all superiority of any office in the Church of this kingdom above Presbyters:” the statutes passed during the Restoration were rescinded so far as inconsistent with that abolition; and the King and Queen declared “that they, with advice and consent of the Estates of this Parliament, will settle by law that Church government within this kingdom, which is most agreeable to the inclinations of the people.”

By 1690, c. 1, the statute 1669, c. 1, was declared to be “inconsistent with the establishment of the Church government now desired,” and was specially rescinded. The Act 1690, c. 5, was then passed, entituled, “Act ratifying the Confession of Faith, and settling Presbyterian Church Government,” and was of the following tenor:—“Our Sovereign Lord and Lady, the King and Queen's Majesties, and three estates of Parliament, conceiving it to be their bound duty, after the great deliverance that God hath lately wrought for this Church and Kingdom, in the first place to settle and secure therein, the true Protestant religion according to the truth of God's Word, as it hath of a long time been professed within tins land: As also the government of Christ's Church within this nation, agreeable to the Word of God, and most conducive to the advancement of true piety and godliness, and the establishing of peace and tranquillity within this realm; And that by an article of the Claim of Right, it is declared, That prelacy, and the superiority of any office in the Church above presbyters, is, and hath been, a great and unsupportable grievance and trouble to this nation, and contrary to the inclinations of the generality of the people ever since the Reformation, they having reformed from popery by presbyters, and therefore ought to be abolished: Likeas, by an act of the last Session of this Parliament, prelacy is abolished; Therefore their Majesties, with advice and consent of the said three estates, do hereby revive, ratifie, and perpetually confirm, all laws, statutes and acts of Parliament, made against popery arid papists, and for the maintenance and preservation of the true reformed Protestant religion, and for the true Church of Christ within this kingdom, in so far as they confirm the same, or are made in favours thereof. Likeas, they, by these presents, ratifie and establish the Confession of Faith, now read in their presence; and voted and approven by them, as the publick and avowed confession of this Church, containing the sum and substance of the doctrine of the Reformed Churches: (which Confession of Faith is subjoyned to this present act.) As also they do establish, ratifie, and confirm the Presbyterian Church government and discipline; that is to say, the government of the Church by kirk sessions, presbyteries, provincial synods, and general assemblies, ratified and established by the 116th act, Ja. 6. Parl. 12, anno 1592, intituled, Ratification of the Liberty of the True Kirk, &c., and thereafter received by the general consent of this nation, to be the only government of Christ's Church within this kingdom; reviving, renewing, and confirming the foresaid act of Parliament, in the whole heads thereof, except that part of it relating to patronages, which is hereafter to be taken into consideration: And rescinding, annulling, and making void the acts of Parliament following.” A series of statutes was then enumerated as annulled—“With all other acts, laws, statutes, ordinances, and proclamations, and that in so far allanerly as the said acts, and others generally and particularly above-mentioned, are contrary or prejudicial to, inconsistent with, or derogatory from the Protestant religion and Presbyterian government now established; and allowing and declaring that the Church Government be established in the hands of, and exercised by, these Presbyterian ministers who were outed since the first of January, 1661, for non-conformity to prelacy, or not complying with the courses of the times; and are now restored by the late Act of Parliament, and such ministers and elders only as they have admitted or received, or shall hereafter admit or receive: And also that all the said Presbyterian ministers have, and shall have, right to the maintenance, rights, and other privileges by law provided, to the ministers of Christ's Church within this kingdom, as they are, or shall be, legally admitted to particular churches. Likeas, in pursuance of the premises, their Majesties do hereby appoint the first meeting of the General Assembly of this Church, as above established, to be at Edinburgh, the third Thursday of October next to come, in this instant year 1690.” The Confession of Faith was subjoined to this statute.

In cap. 23, of this Confession, which treats “of the civil magistrate,” it was declared, § 3, that the civil magistrate might not assume to himself the administration of the sacraments, or the “power of the keys,” but that he “hath authority, and it is his duty to take order that unity and peace be preserved in the Church; that the truth of God be kept pure and entire; that all blasphemies and heresies be suppressed; all corruptions and abuses in worship and discipline prevented or reformed; and all the ordinances of God duly settled, administered, and observed; for the better effecting whereof, he hath power to call Synods, to be present at them, and to provide that whatsoever is transacted in them be according to the mind of God.” By § 4, the duty of obedience to magistrates, in their lawful commands, was declared as extending to ecclesiastical persons, along with the people in general. In cap. 25, after treating of the Catholic or Universal Church, both that which is invisible and that which is visible, of which “particular churches” are members, it was declared that “there is no other Head of the Church but the Lord Jesus Christ.” And in cap. 31 “of Synods and Councils,” it was declared, § 1, that “for the better government and farther edification of the Church, there ought to be such assemblies, as are commonly called Synods or Councils.”—§ 3, “It belongeth to Synods and Councils ministerially to determine controversies of faith, and cases of conscience, to set down rules and directions for the better ordering of the public worship of God, and government of his Church; to receive complaints in cases of maladministration, and authoritatively to determine the same: Which decrees and determinations, if consonant to the Word of God, are to be received with reverence and submission; not only for their agreement with the Word, but also for the power whereby they are made, as being an ordinance of God, appointed thereunto, in his Word.”—§ 5, “Synods and Councils are to handle, or conclude, nothing but that which is ecclesiastical, and are not to intermeddle with civil affairs, which concern the commonwealth, unless by way of humble petition, in cases extraordinary, or by way of advice, for satisfaction of conscience, if they be thereunto required by the civil magistrate.”

The statute 1690, c. 5, had reserved that part of 1592, c. 116, which related to patronages, for after-consideration, and by 1690, c. 23, entituled “Act concerning patronages,” it was enacted as follows:—“Our sovereign Lord and Lady, the King and Queen's Majesties, considering. That the power of presenting ministers to vacant churches, of late exercised by patrons, hath been greatly abused, and is inconvenient to be continued in this realm, do therefore, with the advice and consent of the Estates of Parliament, hereby discharge, cass, annull, and make void the foresaid power heretofore exercised by any patron of presenting ministers to any kirk now vacant, or that shall hereafter happen to vaik within this kingdom, with all exercise of the said power: And also all rights, gifts, and infeftments, acts, statutes, and customs, in so far as they may be extended, or understood, to establish the said right of presentation; but prejudice always, of such ministers as are duly entered by the foresaid presentations (while in use), their right to the manse, glebe, benefice, stipend, and other profits of their respective churches, as accords: And but prejudice to the patrons of their right to employ the vacant stipends on pious uses, within the respective paroches, except where the patron is Popish, in which case he is to employ the same on pious uses, by the advice and appointment of the Presbytery; and in case the patron shall fail in applying the vacant stipend for the uses foresaid, that he shall lose his right of administration of the vacant stipend for that and the next vacancy, and the same shall be disposed on by the Presbytery to the uses foresaid; excepting always the vacant stipends within the bounds of the Synod of Argyle: And to the effect, the calling and entering ministers, in all time coming, may be orderly and regularly performed, their Majesties, with consent of the Estates of Parliament, do statute and declare, That, in case of the vacancy of any particular church, and for supplying the same with a minister, the heritors of the said parish (being Protestants), and the elders, are to name and propose the person to the whole congregation, to be either approven or disapproven by them; and if they disapprove, that the disapprovers give in their reasons to the effect the affair may be cognosced upon by the Presbytery of the bounds, at whose judgment, and by whose determination, the calling and entry of a particular minister is to be ordered and concluded: And it is hereby enacted, That if application be not made by the eldership, and heritors of the paroch, to the Presbytery, for the call and choice of a minister within the space of six months after the vacancy, that then the Presbytery may proceed to provide the said parish, and plant a minister in the church, tanquam jure devoluto. It is always hereby declared, that this act shall be but prejudice of the calling of ministers to royal burghs by the magistrates, town-council, and kirk-session of the burgh, where there is no landward parish, as they have been in use before the year 1660. And where there is a considerable part of the paroch in landward, that the call shall be by magistrates, town-council, kirk-session, and the heritors of the landward paroch. And in lieu and reeompence of the said right of presentation, hereby taken away, their Majesties, with advice and consent foresaid, statute and ordain,” that a sum of 600 merks should be paid to the patron by the heritors according to their valued rents in the parish, on getting a formal renunciation of the right of presentation. If the patron refused to accept the sum, it was to be consigned at his risk, “allowing in the mean-time the heritors and kirk-session to call the minister, conform to this act.”

In a work of authority on Church law, which was published by Steuart of Pardovan, during the period while the act 1690, c. 23, remained in force, the right of patronage was described as “the patron's pretended privilege of a negative interest in the call and maintenance of ministers.” The Church worship, government, and discipline, stood on the footing of these statutes at the date of the Union of Scotland and England in 1707.

By 1705, c, 4, it was provided that commissioners should be appointed for entering into a treaty of union with commissioners named on the part of England, “providing that the said commissioners shall not treat of, or concerning, any alteration of the worship, discipline, and government of the Church of this kingdom, as now by law established.” Articles of union were agreed on by the commissioners of Scotland and England on July 22, 1706, and the result of the treaty was reported by them to their respective Parliaments, for ratification, after which the Scottish statute, 1707, c. 7, was passed, ratifying the treaty of union, and engrossing as a fundamental, essential, and perpetual condition thereof, the Scottish statute 1707, c. 6, which was entitled “Act for securing the Protestant Religion, and Presbyterian Church Government.” That statute provided that the Protestant religion, “with the worship, discipline, and government of this Church, should be effectually and unalterably secured,” and it established and confirmed “the worship, discipline, and government of this Church to continue without any alteration to the people of this land in all succeeding generations.” The statute then “more especially ratified, approved, and for ever confirmed,” the statute 1690, c. 5, “entituled, Act ratifying the Confession of Faith, and settling Presbyterian Church government, with the haill other Acts of Parliament relating thereto, in prosecution of the declaration of the estates of this kingdom, containing the Claim of Right, bearing date April 11, 1689.” It was farther enacted, that the true Protestant religion, as in the Confession of Faith, the form and purity of worship presently in use in the Church, “and its Presbyterian Church government and discipline, that is to say, the government of the Church by Kirk-Sessions, Presbyteries, Provincial Synods, and General Assemblies, all established by the foresaid Acts of Parliament, pursuant to the Claim of Right, shall remain and continue unalterable; and that the said Presbyterian government shall be the only government of the Church within the kingdom of Scotland.” It was farther provided, that every succeeding sovereign “shall, in all time coming, at his or her accession to the Crown, swear and subscribe, That they shall inviolably maintain and preserve the foresaid settlement of the true Protestant religion, with the government, worship, discipline, rights, and privileges of this Church, as above established by the laws of this kingdom, in prosecution of the Claim of Right.”

Only a few patronages had been purchased from, and renounced by patrons, under the statute 1690, c. 23, when the statute was repealed by 10 Anne, c. 12, passed in 1711, and entituled “An Act to restore the Patrons to their ancient rights of presenting Ministers to the Churches vacant in that part of Great Britain called Scotland.” The leading provision of that act was of this tenor:

§ 1. “Whereas by the antient laws and constitutions of that part of Great Britain called Scotland, the presenting of ministers to vacant churches did of right belong to the patrons, until by the twenty-third act of the second Session of the first Parliament of the late King William and Queen Mary, held in the year one thousand six hundred and ninety, intituled, Act concerning Patronages, the presentation was taken from the patrons, and given to the heritors and elders of the respective parishes; and in place of the right of presentation, the heritors and life-renters of every parish were to pay to the respective patrons a small and inconsiderable sum of money, for which the patrons were to renounce their right of presentation in all times thereafter: And whereas, by the fifteenth act of the fifth Session, and by the thirteenth act of the sixth Session of the first Parliament of the said King William, the one intituled, An act for encouraging of preachers at vacant churches be-north Forth, and the other intituled, Act in favour of preachers be-north Forth; there are several burthens imposed upon vacant stipends, to the prejudice of the patron's right of disposing thereof: And whereas that way of calling ministers has proved inconvenient, and has not only occasioned great heats and divisions among those who by the aforesaid act were entitled and authorized to call ministers, but likewise has been a great hardship upon the patrons, whose predecessors had founded and endowed those churches, and who have not received payment or satisfaction for their right of patronage from the aforesaid heritors or liferenters of the respective parishes, nor have granted renunciations of their said rights on that account; be it therefore enacted, by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, that the aforesaid act made in the year one thousand six hundred and ninety, intituled Act concerning patronages, in so far as the same relates to the presentation of ministers by heritors and others therein mentioned, be and is hereby repealed and made void; and that the aforesaid fifteenth act of the fifth Session, and thirteenth act of the sixth Session of the first Parliament of King William, be and are hereby likewise repealed and made void; and that in all time coming, the right of all and every patron or patrons to the presentation of ministers to churches and benefices, and the disposing of the vacant stipends for pious uses within the parish, be restored, settled, and confirmed to them, the aforesaid acts, or any other act, statute, or custom to the contrary in any wise notwithstanding; and that from and after the first day of May, one thousand seven hundred and twelve, it shall and may be lawful for her Majesty, her heirs and successors, and for every other person or persons who have right to any patronage or patronages of any church or churches whatsoever, in that part of Great Britain called Scotland (and who have not made and subscribed a formal renunciation thereof under their hands), to present a qualified minister or ministers to any church or churches whereof they are patrons, which shall, after the said first day of May, happen to be vacant; and the Presbytery of the respective bounds shall, and is hereby obliged to receive and admit in the same manner such qualified person or persons, minister or ministers, as shall be presented by the respective patrons, as the persons or ministers presented, before the making of this act, ought to have been admitted.”

It was provided by § 3 of this statute, “That in case the patron of any church aforesaid shall neglect or refuse to present any qualified minister to such church that shall be vacant the said first day of May, or shall happen to be vacant at any time thereafter, for the space of six months, after the said first day of May, or after such vacancy shall happen, that the right of presentation shall accrue and belong for that time to the Presbytery of the bounds where such church is, who are to present a qualified person for that vacancy tanquam jure devoluto.”

It was subsequently enacted by 5 Geo. I., c. 29, § 8, as follows:—“And whereas great obstructions have been made to the planting, supplying, or filling up of vacant churches in Scotland, with ministers qualified according to law, patrons presenting persons to churches who are not qualified by taking the oaths appointed by law, or who, being settled in other churches, cannot or will not accept of such presentations. To the end that such inconveniences may be prevented for the future, be it enacted by the authority aforesaid, That if any patron shall present any person to a vacant church, from and after the said first day of June, one thousand seven hundred and nineteen, who shall not be qualified by taking and subscribing the said oath in manner aforesaid, or shall present a person to any vacancy who is then or shall be pastor or minister of any other church or parish, or any person who shall not accept or declare his willingness to accept of the presentation and charge to which he is presented, within the said time, such presentation shall not be accounted any interruption of the course of time allowed to the patron for presenting; but the jus devolutum shall take place, as if no presentation had been offered; any law or custom to the contrary notwithstanding.

“§ 9. And be it also further declared and enacted, That nothing herein contained shall prejudice or diminish the right of the church, as the same now stands by law established, as to the trying of the qualities of any person presented to any church or benefice.”

The statute 10 Anne, c. 12, was extremely unpopular in Scotland, and for a considerable number of years after it was passed, patrons almost, or altogether without exception, refrained from the exercise of the right of presentation, the settlement almost uniformly proceeding solely on the Call by the parish. Many cases occurred in which the Church courts were required to decide on the merits and sufficiency of competing Calls. In some of these instances one of the competing parties held a presentation from the patron, besides having received a Call from part of the congregation; but generally the parish was settled by a Call at large, without any presentation to either person. In discussing these cases, inquiry was made by the Church courts whether undue methods had been taken to occasion parties to dissent from the Call, on the one hand, or to subscribe it, on the other; and the number of dissentients was founded on as a main element in determining the question. After the exercise of the right of presentation again became general, which it did between 1720 and 1730, similar questions as to the sufficiency of Calls continued to be of frequent and constant recurrence in the Church courts through the whole of the eighteenth century, and down to the most recent period; but in no instance was it ever pleaded that the presentee of a patron was independent of a Call, or that the inquiry into the sufficiency of the Call was irrelevant; and various Acts of Assembly were passed, declaring or assuming the Call to be an important and essential step in the ordination of a minister.

By act of Assembly, 1715, c. 9, the principle of non-intrusion of ministers was anew declared, and this was repeated by another act of Assembly, 1736, c. 14, soon after the extensive secession of Ebenezer Erskine and his adherents. That act was entituled “Act against the intrusion of ministers into vacant congregations, and recommendation to Presbyteries concerning settlements.” The act was in these terms:—“The General Assembly, considering from Act of Assembly, August 6, 1575, Second Book of Discipline, chap. 3, Par. 4, 6, and 8, registrate in the Assembly books, and appointed to be subscribed by all ministers, and ratified by Acts of Parliament, and likeways the Act of Assembly 1638, December 17th and 18th, and Assembly 1715, Act 9th, That it is, and has been since the Reformation, the principle of this Church, that no minister shall be intruded into any parish contrary to the will of the congregation, do therefore seriously recommend to all judicatories of the Church to have a due regard to the said principle in planting vacant congregations; and that all Presbyteries be at pains to bring about harmony and unanimity in congregations, and to avoid every thing that may excite or encourage unreasonable exceptions in people against a worthy person that may be proposed to be their minister, in the present situation and circumstances of the Church, so as none be intruded into such parishes, as they regard the glory of God, and edification of the body of Christ.”

By act of Assembly 1753, c. 5, it was declared, that if any minister or probationer obliged himself, before his settlement, or in order to promote the same, that he should not, during his incumbency, pursue an augmentation of stipend, &c., or should become bound in any payment or prestation “to the patron, or persons connected with the patron, in order to procure the presentation, or to the heritors or others concerned, in order to obtain a concurrence with the said presentation, or otherwise to procure a call to a vacant parish, or has entered into any simoniacal paction or practice for that effect; that such Presbytery lay a representation of the said matter before the General Assembly,” in order to have steps taken that such agreements be reduced, and the minister or licentiate deprived of his office or license respectively. A similar act of Assembly was passed in 1759, directing proceedings to be instituted against any minister or probationer who entered into any “simoniacal paction or practice,” either with the patron, “in order to procure the presentation,” or with “the heritors or others concerned, in order to obtain a concurrence with the said presentation, or otherwise to procure a Call to a vacant parish,” &c. In 1782 a declaratory act of Assembly was passed, concerning the moderation of Calls, by which it was declared in these terms:—“Upon a motion that the resolution of the Assembly respecting the moderation of Calls should, for the satisfaction of all concerned, be converted into a declaratory act, and printed amongst the Acts of Assembly, the General Assembly agreed thereto without a vote; and, in terms of said resolution, did, and hereby do, declare, that the moderation of a Call, in the settlement of ministers, is agreeable to the immemorial and constitutional practice of this Church, and ought to be continued.”

In 1790 one instance occurred in which a Presbytery proceeded to settle a minister without a Call, and committed other irregularities. They were called to the bar of the General Assembly, and the following unanimous deliverance was given by the Assembly:—“That the proceedings of the Presbytery of Arbroath in the settlement and ordination of Mr George Gleig, were highly irregular and incompetent, in respect that they proceeded to take the steps towards the said settlement without having any Call before them, and while their minutes bear that there was no Call; that they afterwards proceeded to the settlement of Mr Gleig in the face of an appeal regularly taken in the cause against a sentence of the Synod of Angus and Mearns to the last General Assembly; and that it does not appear from their record that, at the time of the first ordination, they required Mr Gleig to subscribe the Confession of Faith and Formula, as the laws and practice of this Church require.” And the Assembly passed a censure on the Presbytery accordingly.

In the ordination and settlement of a minister, it is part of the constant and established practice, that the minister who moderates on that occasion puts, among others, the following questions to the presentee in the face of the congregation:—“Have you used any undue method, either by yourself or others, in procuring this Call? Do you accept of, and close with, the Call, to be pastor of this parish; and promise, through grace, to perform all the duties of a faithful minister of the Gospel among this people?” No instance is known to have occurred in which a person to whom these questions were put, was ordained and inducted, unless he answered the first question in the negative, and the second in the affirmative.

In the case where a minister is translated from one parish to another, the Call to the new parish is alone laid on the table of the Presbytery, within whose bounds the parish lies from which the minister is to be removed, as being their sole warrant for loosing the pastoral relation between the minister and his first flock; and unless the Church loose this spiritual relation the translation cannot be effected, notwithstanding that a presentation to the other parish has been given and accepted.

According to the forms commonly in use prior to 1834, the ordinary procedure through which a vacancy was filled up in the Church of Scotland, was the following:—The patron of the vacant living executed a presentation in favour of a person who was either a licentiate, or an ordained minister of the Church. The presentee executed a written acceptance of the presentation. The presentation and acceptance were then laid on the table of the Presbytery within whose bounds the vacancy had occurred. Along with this, an extract of the presentee's license was also produced, unless he was an ordained minister, and in possession of another cure; and certificates were also produced, instructing that both patron and presentee had taken the requisite oaths to Government. These documents were then ordered by the Presbytery to lie on the table till next meeting, on which occasion, if there was no objection stated to the legal validity of the above documents, the Presbytery gave a deliverance sustaining the presentation, appointing the presentee to preach, on one or two Sundays, in the vacant church, and fixing a day for the purpose of moderating in the Call. Due intimation was also given of this deliverance to the congregation of the vacant church, by announcement from the pulpit of that church, on Sabbath, when the congregation were assembled. At the meeting for moderating in the Call, a sermon was preached by some member of the Presbytery who had been appointed by the Presbytery to moderate, or preside, in the meeting; and, at the conclusion of public worship, the congregation were invited to subscribe a Call to the presentee. This having been done, the Call was laid by some of the parties who subscribed it on the table of the Presbytery at the next Presbytery meeting. They then took the Call into consideration, and if no valid objection existed against it, pronounced a deliverance concurring with or sustaining the Call, which was then put into the hand of the presentee, and he, by accepting it, had the duty devolved on him by the Presbytery of thereafter supplying the vacant parish with public worship. The Presbytery then appointed the trials of the qualifications of the presentee, as to education, literature, doctrine, life, and manners, to proceed according to the forms prescribed by the Church. If the Presbytery approved of the trials, the presentee subscribed the formula of adherence to the Confession of Faith and submission to the government and discipline of the Church; and the Presbytery fixed a day for serving the edict, or publicly proclaiming to the congregation, after sermon, that the presentee was to be ordained on a certain day, and requiring any person who knew cause against his admission, to notify the same. On the day appointed, the report of the minister who served the edict was received. Proclamation was then directed to be made, that if any person had objections to the life or doctrine of the presentee, the Presbytery were ready to hear them. Unless valid objections were stated and instantly proved, public worship was celebrated, and the Presbytery proceeded to ordain the presentee by prayer and imposition of hands, and to give him the right hand of fellowship in the ministry, and to induct him into the parish.

During the latter half of the 18th century, the General Assembly, in deciding as the supreme judicature of the Church, in questions as to the sufficiency of Calls, pronounced a series of judgments which progressively sustained a smaller and smaller amount of signatures attached to a Call, as rendering it a sufficient Call, until it came to be held that, provided a Call was not wholly unsigned, it should be sustained. And, in one instance, a Call was sustained, although the common written Call had no signature whatever adhibited to it, but one of the heritors of the parish had addressed a letter to the presentee stating his concurrence.

In reference to this subject, the Reverend Dr George Hill, in his Theological Institutes, has stated, in respect to the nature or object of the Call, that the congregation are asked, at the stage already noticed, “to subscribe a paper named a Call, inviting the candidate to be their minister, and promising him subjection in the Lord. It has been the immemorial practice in the Church of Scotland, by appointing the moderation of a Call, to give the people an opportunity of encouraging the labours of their future minister, by addressing to him this invitation; and in consequence of this practice, one of the legal steps in the settlement of a minister, is a sentence of the Presbytery sustaining the Call. But whatever was the state of matters at the time when the practice began, it is now understood that a Call may be sustained, however small the number of subscribers. For, although the matter was long vehemently contested, and is still occasionally the subject of discussion, the Church Courts have shown, by the train of their decisions during the greater part of the last century, that they do not consider themselves as warranted by law to refuse admission to a presentee, upon account of any deficiency in the subscriptions to his Call.”

The decisions of the Assembly on the subject of Calls were frequently reversals of the judgments of the inferior Church judicatures; and there was always a portion of the Church which regarded these decisions as inimical to the liberty and constitution of the Church, by turning into a mere empty form, that which they regarded as a vital and essential element in forming the pastoral relation between a minister and his people. This portion of the Church, having become predominant in the Assembly which was held in May and June, 1834, resolved to apply what they considered a competent and adequate remedy, for which purpose the following Act was passed, on May 31, entituled, “Overture and Interim Act on Calls.”

“The General Assembly declare, That it is a fundamental law of this Church, that no pastor shall be intruded on any congregation contrary to the will of the people; and, in order that this principle may be carried into full effect, the General Assembly, with the consent of a majority of the Presbyteries of this Church, do declare, enact, and ordain, that it shall be an instruction to Presbyteries, that if, at the moderating in a Call to a vacant pastoral charge, the major part of the male heads of families, members of the vacant congregation, and in full communion with the Church, shall disapprove of the person in whose favour the Call is proposed to be moderated in, such disapproval shall be deemed sufficient ground for the Presbytery rejecting such person, and that he shall be rejected accordingly, and due notice thereof forthwith given to all concerned; but that, if the major part of the said heads of families shall not disapprove of such person to be their pastor, the Presbytery shall proceed with the settlement according to the rules of the Church: And farther declare, that no person shall be held to be entitled to disapprove as aforesaid, who shall refuse, if required, solemnly to declare, in presence of the Presbytery, that he is actuated by no factious or malicious motive, but solely by a conscientious regard to the spiritual interests of himself or the congregation.”

The General Assembly at the same time agreed to transmit the above Overture to Presbyteries for their opinion, and, without a vote, converted the same into an Interim-Act.

The first part of this act, announcing the fundamental law of the Church, was viewed as simply declaratory; but as the provisions for carrying it into effect were by some considered to be new enactments, the overture was directed to be transmitted to Presbyteries for their sanction, in terms of the Barrier Act of 1696, which requires the consent of a majority of Presbyteries to any new law.

Thereafter, on June 2d, the following Regulations were framed by the Assembly, and converted into an Interim-Act, for the purpose of carrying the above Interim-Act into effect, and they were transmitted, along with that Interim-Act, to Presbyteries for their approval.

“Overture, with Regulations, for carrying the above Act into effect.”

“Edinburgh, June 2, 1834.—Whereas the General Assembly have declared, enacted, and ordained, in terms of their Act, passed in the sederunt of 31st May ult., on the subject of the moderating in of Calls; and whereas it is necessary, for the better regulating the forms of proceedings under that Act, that some precise and definite rules should be laid down, the General Assembly do, therefore, with the consent of a majority of the Presbyteries of this Church, declare, enact, and ordain, that the following directions and regulations shall be observed:—

“1. That when any Presbytery shall have so far sustained a presentation to a parish, as to be prepared to appoint a day for moderating in a Call to the person presented, they shall appoint one of their own number to preach in the Church of the parish on a day not later than the second Sunday thereafter; that he shall, on that day, intimate from the pulpit that the person presented will preach in that Church on the first convenient Sunday, so as it be not later than the third Sunday after such intimation; and that he shall, at the same time, intimate, that on another day, to be fixed, not less than eight, nor more than ten days after that appointed for the presentee to preach, the Presbytery will proceed, within the said Church, to moderate in a Call to such person to be minister of the said parish in the usual way; but that the Presbytery, if they deem it expedient, may appoint the presentee to preach oftener than once, provided that the day for moderating in the Call be not more than six weeks after that on which the presentation has been sustained.

“2. That, on the day appointed for moderating in the Call, the Presbytery shall, in the first instance, proceed in the same manner in which they are in use at present to proceed.

“3. That if no special objections, and no dissents, by a major part of the male heads of families, being members of the congregation, and in full communion with the Church, according to a list or roll to be made up and regulated in manner herein-after directed, shall be given in, the Presbytery shall proceed to the trials and settlement of the presentee, according to the rules of the Church.

“4. That it shall be competent to any one or more of the heads of families in the parish, in full communion with the Church, by themselves, or by an agent duly authorized, to state any special objections to the settlement of the person presented, of whatever nature such objections may be; and that, if the objections appear to be deserving of deliberate consideration or investigation, the Presbytery shall delay the further proceedings in the settlement till another meeting, to be then appointed, and give notice to all parties concerned, then to attend, that they may be heard.

“5. That, if the special objections so stated affect the moral character or the doctrine of the presentee, so that, if they were established, he would be deprived of his license, or of his situation in the Church, the objectors shall proceed by libel, and the Presbytery shall take the steps usual in such cases.

“6. That if the special objections relate to the insufficiency or unfitness of the presentee for the particular charge to which he has been appointed, the objectors shall not be required to become libellers, but shall simply deliver, in writing, their specific grounds for objecting to the settlement, and shall have full liberty to substantiate the same; upon all which the presentee shall have an opportunity to be fully heard, and shall have all competent means of defence: That the Presbytery shall then consider these special objections, and, if it shall appear that they are not sufficient, or not well founded, they shall proceed to the settlement of the presentee, according to the rules of the Church; but if the Presbytery shall be satisfied that the objector or objectors have established that the presentee is not fitted usefully and sufficiently to discharge the pastoral duties in that parish, then they shall find that he is not qualified, and shall intimate the same to the patron, that he may forthwith present another person; it being always in the power of the different parties to appeal from the sentence pronounced by the Presbytery, if they shall see cause.

“7. That if it shall happen that, at the meeting for moderating in the Call, dissents are tendered by any of the male heads of families, being members of the congregation, and in full communion with the Church, their names standing on the roll above referred to, without the assignment of any special objections, such dissents shall either be personally delivered in writing by the person dissenting, or taken down from his oral statement by the moderator or clerk of the Presbytery.

“8. That if the dissents so lodged do not amount in number to the major part of the persons standing on the roll, and if there be no special objections remaining to be considered, the Presbytery shall proceed to the trials and settlement, according to the rules of the Church.

“9. That if it shall appear that dissents have been lodged by an apparent majority of the persons on the said roll, the Presbytery shall adjourn the proceedings to another meeting, to be held not less than ten days, nor more than fourteen days thereafter.

“10. That if the Presbytery deem it expedient, and the person presented be willing, or if he shall desire so to do, the Presbytery shall appoint him to preach to the congregation in the interval.

“11. That it shall not be competent to receive any dissents without cause assigned, except such as shall be duly given in at the meeting for moderating in the Call, as above provided; but it shall be competent to any person, who may have lodged a dissent at that meeting, to withdraw such dissent at any time before the Presbytery shall have given judgment on the effect of the dissents.

“12. That, in case the Presbytery shall, at the second meeting appointed, find that the major part of the persons entitled to dissent do not adhere to their dissents, or that there is not truly a majority of such persons on the roll dissenting, they shall sustain the Call, and proceed to the trials and settlement.

“13. That, in case the Presbytery shall at that meeting find that there is a majority of the persons on the roll still dissenting, it shall be competent to the patron or the presentee, or to any member of the Presbytery, to require all or any of the persons so dissenting to appear before the Presbytery, or a committee of their number, at a meeting to be appointed, to take place within ten days at furthest, at some place within the parish, and there and then to declare in terms of the resolution of the General Assembly; and if any such person shall fail to appear, after notice shall have been duly given to him, or shall refuse to declare in the terms required, the name of such person shall be struck off the list of persons dissenting, and the Presbytery shall determine whether there is still a major part dissenting or not, and proceed accordingly.

“14. That, if the Presbytery shall find that there is at last a major part of the persons on the roll dissenting, they shall reject the person presented, so far as regards the particular presentation, and the occasion of that vacancy in the parish; and shall forthwith direct notice of this their determination to be given to the patron, the presentee, and the elders of the parish.

“15, That if the patron shall give a presentation to another person within the time limited by law, the proceedings shall again take place in the same manner as above laid down; and so on in regard to successive presentations within the time.

“16. That if no presentation shall be given within the limited time, to a person from whose settlement a majority on the roll do not dissent, the Presbytery shall then present jure devoluto.

“17. That cases of presentation by the Presbytery jure devoluto, shall not fall under the operation of the regulations in this and the relative Act of Assembly, but shall be proceeded in according to the general laws of the Church applicable to such cases. But every person who shall have been previously rejected, shall be considered as disqualified to be presented to that parish on the occasion of that vacancy.

“18. That in order to ascertain definitely the persons entitled, at any particular time, to give in dissents, every kirk-session of the Church shall be required, within two months after the rising of the present Assembly, to make out a list or roll of the male heads of families, who are, at the date thereof, members of the congregation, and also regular communicants, either in that parish, or some other parish of the Church; of which, in the latter case, proper evidence shall be produced to the kirk-session.

“19. That the roll so made up shall be inserted in the kirk-session record, and shall be transmitted to the Presbytery; and after being inspected by the Presbytery, and countersigned on each page by the moderator, shall be returned to the kirk-session, and form part of its records for the foresaid purposes.

“20. That the said roll shall be revised and re-adjusted immediately after the occasion of dispensing the Sacrament in the parish which shall have last preceded the 22d of November in each year, and shall be retransmitted to the Presbytery within the first week in December.

“21. That the said list or roll, as last revised, immediately before the vacancy in the parish, shall be the only roll for determining the persons entitled to be reckoned in any dissents to be offered in the manner above set forth, against the admission of any presentee to be minister, in the moderating in a Call, provided that it shall not be made to appear that they, or any of them, have ceased to be members of the congregation.

“22. That the Presbyteries of the Church shall use their utmost endeavours to bring about harmony and unanimity in congregations, and be at pains to avoid every thing which may excite or encourage unreasonable exceptions in people against a worthy person that may be proposed to be their minister.”

The General Assembly also agreed to transmit the above overture and regulations to Presbyteries for their opinion; and, in the mean-time, without a vote, they converted the same into an interim-act. And they declared, as to vacancies before the rising of the Assembly, that the foresaid Acts should not apply to these, which should “be proceeded in, according to the general laws of the Church.”

The church and parish of Auchterarder in Perthshire, became vacant by the death of the Rev, Charles Stewart, on August 31, 1834, and on September 14th, the Earl of Kinnoull, as patron, executed a presentation in favour of the Rev. Robert Young, a licentiate of the Church of Scotland. By this deed the patron set forth, in the ordinary style, that “I, being sufficiently informed of the literature, loyalty, qualifications, good life and conversation of Mr Robert Young, preacher of the gospel, residing at Seafield Cottage, Dundee, do therefore, by these presents, Nominate and Present the said Robert Young to be minister of the said parish and church of Auchterarder, during all the days of his lifetime, giving, granting, and disponing to him the constant localled and modified stipend, with the manse and glebe, and other profits and emoluments belonging to the said church, for the crop and year 1835, and during his lifetime, and his serving the cure at the said church. Requiring hereby the Reverend Moderator and Presbytery of Auchterarder to take trial of the qualifications, literature, good life and conversation of the said Robert Young; and having found him fit and qualified for the function of the ministry at the said church of Auchterarder, to admit and receive him thereto, and give him his act of ordination and admission in due and competent form; Recommending hereby to the Lords of Council and Session, upon sight of this presentation, and the said Presbytery's act of ordination and admission, to grant letters of horning on a simple charge of ten days only, and other executorials necessary, at the instance of the said Robert Young against all and sundry the heritors,” &c.

On October 14th, Robert Hope Moncreiff, the agent of Lord Kinnoull, laid the presentation on the table of the Presbytery, together with a certificate that Lord Kinnoull had qualified, by taking the oaths to Government; a letter of acceptance by the presentee, and a certificate of his having qualified to Government; a certificate by the ministers of Dundee that the presentee was a licentiate of that Presbytery, and an engagement to produce an extract of his license so soon as a meeting of the Presbytery of Dundee could be held; and the usual “parochial certificate,” by one of the ministers of Dundee, in favour of the presentee, which bore that he was a person of education, good morals, zeal, and religious principles. These documents were considered by the Presbytery, and directed to lie on their table till next meeting. At that meeting, on October 27, Robert Hope Moncreiff produced an extract of the presentee's license, with a testimonial in his favour by the Presbytery of Dundee. The minutes of Presbytery, after setting forth that these were read, proceeded thus: “The Presbytery taking into consideration that the late Rev. Charles Stewart, minister of Auchtcrarder, died on the 31st of August last, and that the twenty-third regulation of the interim-act of the late General Assembly anent Calls, intimates, that all cases in which the vacancies have taken place after the rising of said Assembly, shall fall under the operation of the regulations and relative Act of Assembly anent Calls; find, therefore, that they must proceed to fill up the vacancy of Auchterarder according to said act and relative regulations. The Presbytery also considering that all the documents usually given in cases of this kind have already been laid on the table, along with the presentation by the Earl of Kinnoull to Mr Robert Young, preacher of the gospel, to be minister of the church and parish of Auchterarder, did, in pursuance of the first regulation of the Act of Assembly anent Calls, in so far sustain the presentation as to find themselves prepared to appoint a day for moderating in a Call to Mr Young.” The Presbytery farther appointed one of their number to preach in the church of Auchterarder next Sabbath, and to intimate that the presentee would preach there on Sunday November 16th, and Sunday November 23d; and that the Presbytery would meet “in the church of Auchterarder on the first Tuesday of December next, being the second day of that month, to moderate in a Call in the usual way to Mr Young, to be minister of that parish, the Moderator to preach and preside. In all which sentence of the Presbytery Mr Moncrieff acquiesced, and took instruments in the clerk's hands. From which sentence of the Presbytery, in so far as it at all sustained the presentation, Messrs Mackenzie and Walker dissented, on the ground that by so doing, the Presbytery did seem to homologate and approve of patronage.”

On December 2d, the Presbytery met at the church of Auchterarder, pursuant to appointment, and their minutes bore, that “There was produced and read, a Call to Mr Robert Young to be minister of the church and parish of Auchterarder; and an opportunity was given to the heritors, elders, heads of families, and other parishioners, to sign it. Mr Lorimer then signed for the Earl of Kinnoull, as patron, being his factor; and the Call was further signed by Michael Tod and Peter Clerk, heads of families. The Presbytery then proceeded, in terms of the third regulation of the interim-act of last Assembly anent Calls, to give an opportunity to the male heads of families, being members of the congregation, and in full communion with the church, whose names stand in the roll which has been inspected by the Presbytery, to give in special objections or dissents, when no special objections were given in. A mandate from Mr Robert Young, presentee to the parish of Auchterarder, to Archibald Reid, Esq., writer in Perth, was given in, authorizing him to appear as his agent in this case; which mandate having been read, was sustained. Compeared William Thomson, session-clerk of Auchterarder, and, being asked, produced a roll of male heads of families in the parish of Auchterarder, in terms of the regulations of the act of the last Assembly anent Calls. At this stage, Mr Reid was heard, and objected to the Presbytery either receiving or acting upon said roll, inasmuch as the same was not made up either within the time, or in the manner prescribed by Act of Assembly. The Presbytery feel themselves obliged to repel said objection, they having already sanctioned the roll as given in by the kirk-session, and as containing a correct list of male heads of families, in communion with the church, within the two months of the rising of the Assembly, and after the last dispensation of the Lord's Supper in the parish. Against which sentence Mr Reid protested, and appealed to the next meeting of the Synod of Perth and Stirling, for reasons to be given in due time, took instruments in the clerk's hands, and craved extracts, not only of the proceedings of this day, but of all former proceedings of the Presbytery, in reference to the vacancy and settlement of this parish, &c. and also certified copies of the said roll, and of all other documents produced to the Presbytery, either on this day or at former meetings, in reference to the case, in so far as the same are not engrossed in the minutes.

“The Presbytery agree to give the proper extracts and papers relating to their procedure in this case to Mr Reid; but enjoin their clerk to give none till their next meeting, the minutes of this day's proceedings not being yet extended. It was then moved and seconded that the Presbytery do now proceed in this case, in terms of the regulations of the interim act of last Assembly anent Calls. It was also moved and seconded that an appeal having been taken against the decision of the Presbytery overruling the objection taken respecting the roll, the Presbytery sist procedure till that appeal be disposed of. After some discussion, the mover and seconder of the second motion, with the leave of the Court, withdrew it upon the understanding that they are not to be held as approving of the first motion. The Presbytery then, in accordance with the first motion, agreed to proceed in this case in terms of the regulations of the act of Assembly; against which sentence Mr Reid protested and appealed to the next meeting of the Synod of Perth and Stirling,” &c.

“In conformity with the regulations of the Act of Assembly, the Presbytery then proceeded to afford an opportunity to the male heads of families whose names stand upon the roll, to give in dissents from the Call and settlement of Mr Robert Young as minister of the parish. The following heads of families whose names stand on the roll, did then appear before the Presbytery, and did personally deliver their dissent or disapproval of the presentee, and their names were taken down by the clerk of Presbytery. [Here followed the names of 287 heads of families, out of 330, the number on the roll.]

“The Presbytery found, in terms of the ninth regulation, that dissents have been lodged by an apparent majority of the persons on the roll inspected by the Presbytery. The Presbytery did then, in terms of the ninth regulation, adjourn the proceedings in this case to the next meeting, to be held at Auchterarder on Tuesday the 16th current. Against which sentence of the Presbytery, Mr Reid, on the part of Mr Young, without prejudice to his former appeals, protested and appealed to the ensuing meeting of the Synod of Perth and Stirling,” &c.

The Call referred to in these minutes was of the following tenor:—“We, the heritors, elders, heads of families, and parishioners of the parish of Auchterarder, within the bounds of the Presbytery of Auchterarder, and county of Perth, taking into our consideration the present destitute state of the said parish, through the want of a gospel ministry among us, occasioned by the death of our late pastor, the Rev. Charles Stewart, and being satisfied with the learning, abilities, and other good qualifications of you, Mr Robert Young, preacher of the gospel, and having heard you preach to our satisfaction and edification, do hereby invite and call you, the said Mr Robert Young, to take the charge and oversight of this parish, and to come and labour among us in the work of the gospel ministry, hereby promising to you all due respect and encouragement in the Lord. We likewise entreat the Reverend Presbytery of Auchterarder to approve and concur with this our most cordial Call, and to use all proper means for making the same effectual, by your ordination and settlement among us, as soon as the steps necessary thereto will admit. In witness whereof, we subscribe these presents at the church of Auchterarder, on this the second day of December, eighteen hundred and thirty-four years.

“Heritors and Elders.

Heads of Families—Parishioners.

For the Earl of Kinnoull, Patron.

Michael Tod.

Ja. Lorimer.

Peter Clerk.”

At the meeting of Presbytery on December 16th, their minutes bore, that they proceeded, “in terms of the twelfth regulation of the Act of Assembly anent Calls, to ascertain whether or not the major part of the persons on the roll of male heads of families in the parish of Auchterarder, inspected by the Presbytery, entitled to dissent, who dissented against the settlement of Mr Young, do still adhere to their dissents; when, on the question being asked by their moderator, none appeared to withdraw their dissents. The Presbytery at the same time found, in terms of said regulation, that there is a majority of the persons on the roll still dissenting.

“The Presbytery then proceeded, in terms of the thirteenth regulation, to give an opportunity to the patron, presentee, or any member of Presbytery, to require all, or any of the persons dissenting, to appear before the Presbytery, at a meeting to be held in terms of said regulation, to declare, in terms of the resolution of the General Assembly; when, on the question being asked by their moderator, no such requirement was made; the Presbytery therefore adhere to the above finding, that a majority of the persons on the roll still dissent.

“At this stage, Mr M'Kenzie moved, that the Presbytery do take into consideration the Call to Mr Young, presentee to Auchterarder, and do find, that it being signed only by three individuals, and of these only two members of the congregation; that said Call is not a good or sufficient Call; and do declare, that no settlement can take place thereupon; which motion was duly seconded. It was also moved and seconded, that the Presbytery refuse to act in terms of this motion, as being incompetent at this stage of the business. The state of the vote was fixed, first or second motion; when the roll being called and votes marked, it was carried, second motion.”

Part of the complaint of the presentee to the Synod was, that a certain extract of the procedure of the Presbytery had not been duly furnished to him. It was produced to the Synod, laid on the table, and considered. In his appeals on the merits the ground maintained by him was that the provisions of the regulations had not been adhered to in making up the roll of heads of families entitled to dissent. The Synod affirmed the sentences of the Presbytery, and the presentee appealed to the General Assembly. The minutes of Assembly bore that “it was moved and seconded ‘that the General Assembly sustain the appeal, reverse the sentence of the Presbytery of Auchterarder, in so far as the Presbytery refused to proceed with the trials and settlement of the appellant, as presentee of the parish of Auchterarder, there being no special objection against him, or dissents by a majority of the male heads of families, according to a roll made up in the manner prescribed by the regulations enacted by the General Assembly; and remit to the Presbytery of Auchterarder to proceed with the trials and settlement of the appellant, according to the rules of the Church., motion was made and seconded, ‘that the General Assembly find that the Synod were wrong in finding that the appellant had not a right to any of the extracts referred to, and so far sustain the appeal, and reverse the sentence in that matter; but in respect that the Presbytery, while they referred the questions as to the right of the appellant to require such extracts, did authorize the clerk to give the extract, which was afterwards produced to the Synod, and that the said extract was upon the table of the Synod, and was read, as the minutes bear, and that a copy of that extract has been laid before the Assembly by the appellant: find that the said sentence forms no bar to the Assembly now giving judgment on the merits of the cause; and on the merits dismiss the appeal: and find that the proceedings of the Presbytery are not liable to any valid objections, and remit to the Presbytery to proceed farther in the matter, in terms of the interim Act of last Assembly.’ The vote having been called for, it was agreed that the state of the vote should be first or second motion, and the roll being called, and votes marked, it carried second motion by 131 to 95.” The case then returned to the Presbytery of Auchterarder, who, at their meeting on July 7, 1835, pronounced a deliverance, by which they “rejected Mr Young, the presentee to Auchterarder, so far as regards the particular presentation on their table, and the occasion of this vacancy in the parish of Auchterarder, and do forthwith direct their clerk to give notice of this their determination to the patron, the presentee, and the elders of the parish of Auchterarder.”

At this Assembly, 1835, assents to the Interim Act on Calls were received from a large majority of the Presbyteries, whereby it became a standing law of the Church in terms of the Barrier Act. The relative Overture with Regulations for carrying the Act into effect, did not, however, receive the assents of a majority of the Presbyteries, and was again transmitted, being at the same time renewed as an Interim Act, by the authority of the General Assembly itself.

No appeal was taken against the above sentence of the Presbytery to any of the superior Ecclesiastical Courts, but a summons was raised before the Court of Session, by Lord Kinnoull and Mr Young, the patron and presentee. That summons, as ultimately amended, was of the following tenor. It libelled on the statutes 1567, c. 7; 1592, c. 116; 1592, c. 117; and 10 Anne, c. 12: it set forth that, on the occurrence of the vacancy, the pursuer, Lord Kinnoull, heritable proprietor of the right of patronage, had executed and issued a deed of presentation in favour of the other pursuer, the Rev. Robert Young, preacher of the gospel, and licentiate of the Church; that the several proceedings before the Presbytery, already narrated, took place; and, inter alia, those of December 2, 1834, allowing dissents by male heads of families to be given in, and finding that an apparent majority of persons on the roll had dissented; and of July 7, 1835, rejecting the pursuer, Mr Young, so far as regarded that presentation, and the occasion of that vacancy. The summons then proceeded, “That the foresaid judgments or deliverances of the said Presbytery, of date 2d December, 1834, and 7th July, 1835, were ultra vires, illegal, and unwarrantable, in so far as that, though, by the laws and statutes before libelled, the Presbytery were bound and astricted to make trial of the qualifications of the pursuer, Robert Young, as presentee to the church and parish of Auchterarder, and were not entitled to delegate to, or devolve that duty on, third parties, or to denude and abandon their right and duty as a church court, to judge of and decide upon the qualifications and fitness of the presentee for the pastoral office and charge; and after examination by said Presbytery, if the pursuer, the said Robert Young, as presentee foresaid, was found to be duly qualified, the said Presbytery were bound and astricted as aforesaid, to have admitted and inducted him into the office of minister of the church and parish of Auchterarder: Nevertheless, though the pursuer, the said Robert Young, is duly qualified as a licentiate of the Church of Scotland, and presentee foresaid, as well as in all other respects, to be received and admitted minister of the church and parish of Auchterarder, and though no objections have been stated against his qualifications, the Presbytery not only refused, and continued to refuse, to take the pursuer upon trials, and to pronounce judgment on his qualifications as presentee, or to admit and receive him as minister of the church and parish of Auchterarder, but have, by their sentence, rejected him as presentee to the said church and parish, without trial, without taking cognizance of his qualifications as presentee, and expressly on the ground that they cannot, and ought not to do so, in respect of a veto of the parishioners: In all which respects the said Presbytery, and the individual members thereof, have exceeded the powers conferred on them by law, and acted illegally, in violation of their duty, and of the laws and statutes libelled, and that to the serious prejudice of the patrimonial rights of the pursuers: And although the pursuers, as patron and presentee foresaid, have often desired and required the said Presbytery, and Mr John Ferguson, minister of Monivaird, &c. the present individual members thereof, to discharge their duty in terms of law and the statutes libelled, by proceeding with the trials, admission, and final settlement of the pursuer, the said Robert Young, as minister of the church and parish of Auchterarder: Yet they illegally, contumaciously, and in violation of their duty, and to the serious injury and prejudice of the patrimonial rights of the pursuers, refused, and continue to refuse, so to do: Therefore, it ought and should be found and declared, by decree of the Lords of our Council and Session, that the pursuer, the said Robert Young, has been legally, validly, and effectually, presented to the church and parish of Auchterarder: That the Presbytery of Auchterarder, and the individual members thereof, as the only legal and competent Court to that effect, by law constituted, were bound and astricted to make trial of the qualifications of the pursuer, and are still bound so to do; and if, in their judgment, after due trial and examination, the pursuer is found qualified, the said Presbytery are bound and astricted to receive and admit the pursuer, as minister of the church and parish of Auchterarder, according to law: That the rejection of the pursuer by the said Presbytery, as presentee foresaid, without making trial of his qualifications in competent and legal form, and without any objections having been stated to his qualifications, or against his admission as minister of the church and parish of Auchterarder, and expressly on the ground that the said Presbytery cannot and ought not to do so, in respect of a veto of the parishioners, was illegal and injurious to the patrimonial rights of the pursuer, and contrary to the provisions of the statutes and laws libelled.”

The summons proceeded thereafter to insert other conclusions, the first of which was directed against the Presbytery, and the collector of the Ministers ‘Widows’ Fund, for decree ordaining them not to molest the said Robert Young in the enjoynfent of the stipend, manse, and glebe, and other emoluments pertaining to the church and parish, during his life. The next conclusion was directed against the heritors of the parish, for decree against them to pay their respective shares of stipend to the said Robert Young during his life, and to perform all the other obligations incumbent on them as heritors, to him, as legally, validly, and effectually presented to the church and parish; or otherwise, to declare that the pursuer, Lord Kinnoull, had effectually exercised his right as patron, that the Presbytery had illegally refused to take the presentee on trial, and had illegally rejected him, and therefore that Lord Kinnoull had right to receive and retain the whole stipend and emolument pertaining to the said church and parish from the date of citation in the action, and during the life of the said Robert Young; and it being so found and declared, the Presbytery and the collector of the Widows' Fund should be ordained to desist from molesting his Lordship in the possession and use of the stipend, manse, glebe, and other emoluments pertaining to the church and parish, during the life of the said Robert Young; and the heritors of the parish should be accordingly decerned to pay their respective shares of stipend to Lord Kinnoull, during the life of the said Robert Young.

Defences were lodged by the Presbytery of Auchterarder, who admitted that Lord Kinnoull was the lawful patron, and that Mr Young had received a valid presentation, but objected to the jurisdiction of the civil court; and also pleaded, under reservation of that objection, that their whole proceedings had been warrantable and regular, according to the laws of the Church, The ulterior conclusions of the summons, whether directed against the Presbytery (who, inter alia, pleaded that they were not the proper contradictors as to these), or against the other defenders, were in the mean-time superseded, and the discussion was, by agreement of parties, confined, in the first instance, to the conclusions above quoted, which it was agreed should be discussed as if these were the only conclusions in the summons.

After a record was made up, and parties were heard, the Lord Ordinary reported the cause on cases. Their Lordships of the First Division then directed a hearing to take place in presence of the whole Court. 1

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1 The pleadings at the bar occupied ten several days; and the delivery of the Opinions of the Court occupied seven successive days. Two minor questions regarding the form in which the summons and record were prepared, and a plea of alleged acquiescence by the pursuers, arc not here reported at length, as they were altogether of a special nature.

Pleaded by the Pursuers

If a civil or patrimonial right and interest of any sort was violated by any party, it was competent for the person thereby injured to seek redress in the civil court; and it was equally competent to do so, whether the violator of civil right was an individual or a public body, and whether such public body was civil, military, or ecclesiastical. It was enough that such body must necessarily be but an aggregate of the lieges, each of whom was separately bound to obey the laws of the land, and all of whom, taken in the aggregate, were equally obnoxious to this paramount obligation.

It was true that a certain definite jurisdiction, in proper ecclesiastical matters, had been bestowed by the State upon the Church established by the State; and, in regard to the jurisdiction of the Church, within her proper province, it was not subject to the review of the civil court. But the procedure of the Church, even in proper ecclesiastical matters, was nevertheless subject to the examination of the civil court, wherever such examination became incidentally necessary for the explication of a question of civil jurisdiction pending before it. This resulted from the general and acknowledged principle, that a court, while engaged in deciding a question competently before it, was entitled to decide all points incidental to the explication of its jurisdiction in that question, even although the incidental points, considered by themselves, were not properly within its jurisdiction. Thus, if a party claimed restitution of a horse, in the civil court, and the defender alleged that the pursuer had stolen it from him, it was competent for the civil court to examine into the proof of theft, and also to give judgment thereon, to the effect of disposing of the civil action for restitution; although a substantive allegation of theft, considered by itself, was proper to the criminal court alone, whose jurisdiction was supreme and independent of the civil court, in every question of criminal law, which was raised and prosecuted as such. In the same manner, if a minister raised an action, or gave a charge, for stipend, and payment was resisted on the ground either that the minister had never received a lawful presentation, or had never been duly inducted, or had been regularly deposed from his office, it would become both necessary and competent for the civil court to examine into the truth of these allegations. In doing so, it might be necessary to investigate procedure by Church courts, in matters purely ecclesiastical, and the Judges of the civil court might require to form an opinion as to the regularity and competency of procedure, some of which was strictly ecclesiastical. But the civil court was entitled to do all this, to the special effect of disposing of the question of civil right pending before it. Upon a just application of these well established principles of jurisdiction, it would be found that the whole subject matter of the present action was unquestionably fitted for the adjudication of the Civil Court.

In regard to the special tenor of the conclusions directed against the Presbytery of Auchterarder, they were, each and all, competent to the jurisdiction of the Civil Court. In particular, although part of these conclusions went to declare the obligation incumbent on the Presbytery to perform certain functions competent to them only as a Presbytery and as an Ecclesiastical Court, the pursuers would instruct, that, one of the conditions on which the Presbyterian Church was established, was its undertaking to perform, through its Presbyteries, the precise obligation which the pursuers desired to have now declared against the defenders. And if this were proved, it was quite immaterial whether the Presbytery, defenders, were an ecclesiastical body or not; or whether the obligation incumbent on them was to perform an ecclesiastical function or not; if the State established and endowed the Church on the footing that the Presbytery was bound to perform the ecclesiastical functions in question, and this appeared from the statutes or public law of the land, the Presbytery were civilly bound to perform these ecclesiastical functions, and the Civil Courts were competent to declare the obligation as against the obligee, the Presbytery; and any party who was in right of the obligation was entitled to ask for every civil compulsitor as against the obligee, which was granted in any case when a party failed to fulfil an obligation ad factum prestandum.

Thus, for example, if any party granted a heritable estate in favour of a Presbytery on condition that they should apply a certain small portion of the rents in support of a school, or a charity, or, on condition that one of their number should preach an annual sermon, in a particular church,—and if the Presbytery chose to take the estate,—there could be no doubt that they, though an ecclesiastical body, became civilly liable to perform these respective obligations equally, though the former was a civil, and the latter (preaching) an ecclesiastical function. And so long as they kept that estate, their title to which created against them the obligation to pay or to perform, they were both morally and legally bound to fulfil it. And any party who could show that he was properly the creditor in the obligation, would be entitled by civil action to declare the obligation against the Presbytery, and by all civil compulsitors to enforce performance. If they entertained scruples of conscience which prevented them from fulfilling the obligation, they had only one way to liberate themselves from it, and that was by relinquishing the estate, the tenure of which imposed it.

The following facts and pleas would sufficiently show the application of these principles to the present case.

The heritable right of patronage, was a right of property. It might be sold, gifted, or adjudged, and had frequently been feudalised. The patron, or proprietor of that right, was entitled to the full and free exercise of it, subject to no other limitations than those which were imposed by the law of the land. And if any party attempted to make unwarrantable restrictions, and encroachments on it, the patron was entitled to have his true right vindicated and declared in the Civil Court, and to have the unwarrantable proceedings restrained.

Patronage imported the right of naming and presenting a person, duly qualified, who was, by the Church, to be admitted to a vacant benefice and office therein. The presentation by the patron was the title to the presentee, equally as to the benefice, or living, and as to the office of pastor. And accordingly the tenor of the presentation to Mr Young, bore, in common form, to “nominate and present him to be minister of the said parish and church.” And thus the patron's exercise of the right of presentation, would, of itself, have filled the benefice and office, were it not that the State, for the welfare of the Church, and consequently of the people, had granted to the Church the power of subjecting the presentee to trials, for the purpose of ascertaining whether he was duly qualified. This power was granted to the Church, in order to protect it against the selection of improper presentees by patrons: and it amply sufficed for that purpose. But there was no other limitation on the choice of the patron. He was entitled to select any licentiate or minister of the Church; on being so selected, the Presbytery were bound to sustain the presentation, which could only practically be done by taking the presentee on his trials; and if, upon undergoing these, he was found qualified, the Presbytery were then bound first to ordain him, if merely a licentiate, and thereafter to settle and induct him. It was true that these were ecclesiastical functions, and that was the reason why the obligation of performing them was imposed on a Presbytery: but they were so imposed, as a condition of the Establishment of the Church, by the State, and while it remained an Establishment, Presbyteries were both morally and legally bound to perform them. This would appear, on examination, to be the existing state of the law of the country, which, while it thus rendered the right of patronage, to a great extent, a qualified right, had sufficiently defined the qualifications to which alone it was subject.

Throughout this discussion it was to be kept in view that the defenders belonged to a church which was not simply a spiritual body, but which was a National Church, endowed and established by the State, and, as such, was one of the institutions supported by the civil policy of the country. It possessed neither power nor jurisdiction farther than the State had chosen to bestow on it, or to recognise as belonging to it. And it was liable at all times to be controlled by the legislature, and to have its jurisdiction abridged, or enlarged, at the pleasure of the State. Of this a marked instance was recently given by the statute which in 1803, cut off the jurisdiction of the Superior Church Courts, in reviewing the proceedings of a Presbytery in the settlement of a parish schoolmaster, which had been decided by the House of Lords to be a branch of ecclesiastical jurisdiction; 1 and subsequently, in the case of Ramsay, 2 where a Presbytery, going out of their functions under that statute, dismissed as incompetent a complaint preferred by the heritors against a schoolmaster, and the opinions of the Court clearly declared the right of the civil court to compel the Presbytery to act, and to dispose regularly of the trial of the schoolmaster, though that was just the performance of a function appropriated to them as an ecclesiastical body. And on examining the statutes

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1 M'Culloch, 1800 (7471).

2 March 10, 1812 (F. C.)

it would be found that the duty and obligation imposed thereby on Presbyteries, in favour of patrons and their presentees, were clearly defined in plain and imperative words. The Legislature had deliberately and solicitously resolved to preserve patronage as a valid and substantial right, and the power and duty of the Established Church respecting that civil right, were clearly fixed by Acts of Parliament, which the Church could neither repeal nor alter, directly or indirectly.

At an early period of the Reformation, and before the Presbyterian Church was established by the State, claims had been made on the part of the Church for the abolition of patronage, and for granting a right either to the Church itself, to appoint all persons holding ecclesiastical charges, or to each congregation to elect their own pastor, which right was necessarily incompatible with patronage, and emphatically declared to be so in the Second Book of Discipline, cap. 12, § 10. But it was part of the same public state policy which established the Church, to provide that patronage should remain the law of the land, and to deny the right of election to the people. And throughout the whole history of the country, since the Reformation, with the exception of the period of the Commonwealth, and the period between 1690, c. 23, and 1711 (10 Anne), c. 12, during which two periods patronage was abolished, it would be found that the right of election by the people (of which the alleged right of Call was only a spurious modification) was contrary to the law of the land, and the right of patronage was wholly unfettered by it.

Thus although the First Book of Discipline claimed the right of election for the people, and the Second, for the Presbytery, yet when a conference had been held between the King and the leaders of the Church, for the purpose of determining how much of the various claims of the Church should be conceded to it, and how much should be denied, in the statute then about to be passed for the purpose of establishing a National Church and defining its powers, the result was that the State resolved to refuse the right of election, and to retain the right of patronage. This appeared from comparing the statute, 1592, c. 116, commonly termed the Charter of Presbytery, with the terms of the Second Book of Discipline, especially cap. 7. That statute contained a ratification by the State, of the powers of General Assemblies, Synods, and Presbyteries, as there specified. But these powers were carefully defined, and in particular, in regard to Synods and Presbyteries, the jurisdiction and discipline bestowed on them was stated to be as “agreed upon by his Majesty in conference, &c., of the quhilkes articles the tenor follows.” From that part of the statute which dealt with “Matters to be intreated in the Presbyteries,” downwards, it precisely corresponded with the articles in the 7th chapter of the Second Book of Discipline from art. 11th to art. 14th inclusive. And these articles commenced, and continued to set forth the powers of the “particular elderships,” which words were synonymous with “Presbyteries.” But art. 15 of the chapter proceeded to assert that the right of election of those who bear ecclesiastical charges pertained to the Presbyteries; whereas the statute, at that precise point, departed from the tenor of the chapter in the Book of Discipline by bringing to a close its enumeration of the powers conferred on Presbyteries, and proceeding to treat of the case of individual parishes and kirk sessions. And as no part of the statute afforded the least countenance to the concession of any right of election either to the Presbytery or to the congregation, it was most clearly evinced that the whole claim of the Church, in the matter of election, was deliberately rejected by the State, in the very statute which laid the foundation of the Presbyterian Church of Scotland.

But farther, the statute, on the one hand, declared that the act 1584, c. 129, should not “derogate ony thing to the privilege that God has given to the spirituall office-bearers in the Kirk, concerning heads of Religion, matters of Heresie, Excommunication, collation or deprivation of ministers, or ony siklike essential censours, speciallie grounded, and havand warrand of the Word of God;” and, on the other hand, repealed and annulled, 1584, c. 132, which granted commission to “Bishops and other Judges, constitute in ecclesiastical causes, to receive his Highness' presentations to benefices, to give collation thereupon, and to put order in all causes ecclesiastical.” And immediately thereafter, and “therefore,” the statute ordained “all presentations to benefices, to be direct to the particular Presbyteries, in all time cumming; with full power to give collation thereupon; and to put ordour to all maters and causes ecclesiasticall, within their boundes, according to the discipline of the Kirk: Providing the foresaids Presbyteries be bound and astricted, to receive and admitt quhatsumever qualified minister, presented be his Majesty, or laick patrones.”

Until the date of this statute there was no Established Presbyterian Church in existence. And on examining this, her charter of erection as a National Church, it appeared that along with the grant of the power of collation to Presbyteries, and the injunction that presentations should be directed not to Bishops or others, but to Presbyteries, there was inserted the inherent provision that “the foresaids Presbyteries be bound to receive and admit whatsomever qualified minister, presented by his Majesty or laic patrons.”

This, then, was an obligation imposed, by an Act of the Legislature, on every Presbytery of the Establishment, and it was imposed in favour of the patron and his presentee. By accepting the protection and endowment of the Legislature, and the status of a National Church, all which were granted under the condition, inter alia, of fulfilling this important obligation towards the State, the members of the Church, through all her Presbyteries, became both morally and legally bound to fulfil that obligation. And if from conscientious scruples or otherwise they found it necessary to refuse to fulfil the obligation, the only alternative was for the Church to renounce its character as an Establishment, and to relinquish those endowments, the title to which it had forfeited.

The obligation was couched in strong and emphatic terms, “to receive and admit quhatsumever qualified minister,” duly presented. And on reviewing the statutes, this same obligation would be found to be still in force as much as at the date of the statute 1592, c, 116.

For farther declaring and enforcing this obligation, it was provided by the next Act in the statute-book, 1592, c. 117 (which gave the jus devolutum to the Presbytery, if the patron failed to present, within six months after a vacancy occasioned by a sentence of deprivation), that “in case the Presbytery refuses to admit ony qualified Minister, presented to them be the Patrone, it sall be lauchfull to the Patrone, to reteine the haill fruites of the said Benefice in his awin handes.” But although this specific remedy was provided, it was not intended as a substitute for the obligation, but only as an aid towards more readily compelling implement of it.

Passing over the alternations of the 17th century, between Episcopacy and Presbytery, to the period of the Revolution, when the Presbyterian Church was finally established, it was provided by 1690, c. 5, that the Act 1592, c. 116, should be revived and renewed in its whole heads, “except that part of it relating to patronages which is hereafter to be taken into consideration.” By 1690, c. 23, the right of patronage was abolished. But by 10 Anne, c. 12, that last statute was rescinded; and farther, it was declared, that “the right of all and every patron or patrons to the presentation of ministers to churches and benefices, and the disposing of the vacant stipends for pious uses within the parish, be restored, settled, and confirmed to them, the aforesaid acts, or any other act, statute, or custom to the contrary in any wise notwithstanding.” These words of themselves implied that the Presbytery should be bound to receive any qualified minister presented to them, otherwise the right of patronage was not truly restored as before, though it was both the true purpose of the Act, and also the genuine import and effect of its words, so to restore it. But besides this, the statute, at the close of § 1, declared that “the Presbytery of the respective bounds, shall, and is hereby obliged to receive and admit in the same manner such qualified person or persons, minister or ministers, as shall be presented by the respective patrons, as the persons or ministers presented before the making of this act ought to have been admitted.” These words substantially renewed the whole obligation imposed by 1592, c. 116, and therefore, if a qualified person, or qualified minister was presented, the Presbytery were bound to take him on trial, and receive and admit him.

There being thus a clear and imperative obligation imposed on Presbyteries by statutes (the last of which was a British statute and not subject to desuetude), to receive and admit any “qualified person or minister” duly presented, it was next to be considered what was the import of the words “qualified person” or “qualified minister.” Because, as soon as these were correctly ascertained, it must follow that every person coming within that description, and receiving a lawful presentation, was a person whom the Presbytery were legally bound to receive and, on trial, to admit.

According to the obvious and natural meaning of these words, they referred to the personal qualities or attainments of the presentee, such as his sound doctrine, good life and morals, and sufficient education and literature. This was consistent with the avowed object of the Legislature, because it at the same time preserved the right of patronage, and also prevented its exercise from being hurtful to the Church, as the Presbytery were not bound to admit any unqualified presentee. And thus the patron would have himself alone to blame if lie did not, within six months after a vacancy, select and present a person duly qualified: and the presentee would have himself alone to blame, if, after receiving a presentation, he was rejected on trials by the Presbytery, in consequence of defect in his personal qualifications.

Accordingly, it was evident, from the context of various passages both of statutes and Acts of Assembly, that the words were used in this sense; although, as their meaning was plain and unambiguous, it was unnecessary to resort to the context for their construction. Thus, in the Second Book of Discipline, cap. 3, § 4, it was stated that “the qualities, in general, requisite in all them wha sould beir charge in the Kirk, consist in soundness of religion, and godliness of life, according as they are sufficiently set forth in the word.” And again, in § 6, it was said that “Ordinatione is the separatione and sanctifying of the persone appointit to God and his Kirk, after he be weill tryit and fund qualified” This description of the “qualities” requisite in a minister, which were clearly personal qualifications, taken in connexion with the declaration as to his being “well tried and found qualified,” were the more important in these passages, in consequence of so much of this Book of Discipline having been imported into the statute 1592, c. 116, that there was no room to doubt that the words, “quhatsomever qualified minister,” in the statute, were used in precisely the same sense, and so related only to personal qualifications. And the message which, in 1565, was sent by the General Assembly to Queen Mary, for the purpose of drawing the boundary between the right of the patron to present and the right of the Church to collate, declared that “the person presented should be tried and examined by the judgment of learned men of the Church,” and that patronage would be most hurtful to the Church, “if it be lawful to the patrons to present whom they please without trial or examination.” It was important to keep that declaration in view, as throwing light on the species of check, and the sole check on the exercise of patronage, which was either contemplated or actually imposed, by compelling Presbyteries only to receive and admit “qualified” persons in the statute 1592, c. 116. And, in like manner, the Directory for Worship, prepared in 1645, when treating “Of Ordination of Ministers,” declared that “he that is to be ordained minister, must be duly qualified both for life and ministerial abilities, according to the rules of the Apostle.” And again the Act of Assembly 1649, in its “Directorie for the election of Ministers,” provided, § 2, that if the consent of the people was obtained (patronage being then abolished), the Presbytery “are to proceed to the trial of the person thus elected, and finding him qualified, to admit him to the ministry,” &c. It was true that in this and other instances, it was stated that a minister should not only be tried and found qualified, but, farther, that he should have his election from the congregation. But this circumstance did not affect the distinct question as to the sense in which the words “qualified minister,” or “tried and found qualified,” were used. Farther, the words “qualities” and “qualified” were used in the sense now contended for, both in the statute 10 Anne, c. 12, which declared that Presbyteries should be obliged to receive and admit “such qualified person, &c. or minister, &c.” and in the statute 5 G. I. c. 29, § 9, which declared that it was not to prejudice the existing right of the Church “as to the trying of the qualities of any person presented to any church or benefice.” Thus it clearly appeared throughout, that these terms were used in their natural sense, which was that accordant with equity, and with the plain intent of the Legislature, as referring to personal qualifications. If, therefore, a minister, or licentiate of the Church, who was duly “qualified” in point of all personal qualifications, such as doctrine, literature, and morals, received a presentation, he was one of those persons as to whom the express statutory obligation was laid on the Presbytery to receive and admit him.

Independently of this, the defence in the present action was rested on the fact, that the arbitrary dissent of a majority of male heads of families was enough to warrant the rejection of the presentee, without any trial of his personal qualifications being made by the Presbytery. It was enough then for the present argument if it was clear and certain that the assent of the congregation was not one of the “qualities” which the Legislature contemplated as essential to a presentee, in order to make him a “qualified person,” or “qualified minister.” This was evident on various grounds, in addition to those already stated. Although a person possessed the highest personal qualifications of every description, for the office of a Christian pastor, and the most eminent ministers of the Church were satisfied of this, he might still be liable to exclusion, if the arbitrary dissent of third parties sufficed to put him beyond the pale of the statutory obligation in favour of “qualified” presentees. That, however, was just saying, in other words, that although he was consummately “qualified” in himself, yet, he was to be held as not within the statutory description of “qualified person;” which proposition amounted to nearly a contradiction in terms. But it was as unjust as unfounded. For it would have the effect of subjecting persons to rejection, however meritorious and qualified they might be; and sometimes, perhaps, to rejection precisely on account of the eminence of their qualifications, and the successful canvass of some more pliant candidate or his friends.

But, in addition to this, it would have the effect of stultifying the Legislature, if it were possible to read the words “qualified person” as referring to the arbitrary assent of any third parties, as an element in determining whether a presentee was “qualified” or not. The Legislature were anxious, avowedly, to preserve the right of patronage, as a substantial right. But it would have been actually annihilated, if every presentee might successively be rejected at the arbitrary pleasure of third parties, however worthy and meritorious the presentee might personally be. This then was a construction of the statute which could not be sanctioned by any thing short of the plainest and most express words. Whereas there were no words used which could, according to any legitimate signification, be made to bear such a meaning. And, especially as the Church had separately claimed both a right of election or consent by the people, and also a right to have the presentee tried and found “qualified,” the statutory words, binding the Presbytery to receive and admit every “qualified person,” necessarily applied to the latter alone, exclusively altogether of acceptableness to the people as entering into the composition of a “qualified person.”

In regard to the Call which was addressed by the people to their proposed minister, it was not an essential step in the process of ordination and admission. It was not recognised, or even alluded to, in any of the statutes, while they preserved the right of patronage. The origin of this practice did not very clearly appear; but, as the law of patronage was practically in abeyance throughout Scotland for a considerable number of years after 10 Anne, c. 12, it was probable that the form of a Call was then continued, being deduced from the immediately preceding period, while patronage was abolished. And when patrons began gradually to resume and enforce their rights, the form of a Call was still continued as at least soothing to the people, and not injurious to the patron, having been reduced by a long series of decisions of the Assembly, to be a mere form without substance, and Calls having been repeatedly sustained, however small the number of signatures appended to them. Although these decisions, like almost all others, were carried by a majority of the Assembly, and not unanimously, they must nevertheless be regarded as the act of the Church; and if any objection could be stated against them as the act merely of a dominant party, the same objection might be stated against the Act of Assembly, 1834, which was the main ground of defence.

It thus appeared that there was an obligation imposed on Presbyteries by a series of statutes, ending in a British statute, to receive and admit every qualified presentee, and that acceptableness to the people was not an element for consideration in the question whether a presentee was a “qualified person” in the sense of the statute. That reduced the present question to a short compass. The pursuer, Mr Young, was the lawful presentee of the patron, and this was acknowledged by the defenders, the Presbytery of Auchterarder. They were bound, by statute, to receive and admit him if a “qualified person.” But they had refused to make trial of his qualifications, and had rejected him without regard to his qualifications, merely because such objection would gratify certain third parties. By so acting they violated the express statutory obligation which was laid on them, to receive and admit the presentee, if qualified, and of course to try his qualifications before either admitting or rejecting him. And even granting that the Act of Assembly was the warrant of the proceedings of the Presbytery, and farther, that that Act was not disconform to the laws of the Church, it could not legalize their proceedings; because the enactment of a statute by the British Legislature could only be repealed by the same Legislature. It could not be repealed by any act of the Church; and so long as the statute 10 Anne, c. 12, stood unrepealed, an Act of Assembly which enjoined a Presbytery to reject a presentee without regard to his being a “qualified person,” was just as illegal as any Act of the Legislature could make it, because it was in express contradiction to the statute.

As, however, both the patron and the presentee had a direct, civil, and patrimonial interest that the presentation to the vacant church and parish, granted by the one and accepted by the other, should not be defeated by an illegal act, they were entitled to appear in the civil court and state the wrong, both done and impending, and to seek there the vindication and protection of their lawful rights. If a civil and patrimonial injury was inflicted on them, especially by violating a statutory obligation in their favour, the wrong-doer was liable to answer in the civil court, whether such wrong-doer was an ecclesiastical body, or any other body. The subject-matter of complaint was, therefore, fit for the cognizance of the civil court; and it would be afterwards considered whether the precise conclusions of the action were well-founded, and directed against the proper parties.

But although it was not necessary for the success of the action, it was competent for the pursuers to show that the act of Assembly, May 31, 1834, and the relative Act of Regulations, were unwarrantable even by the laws of the Church; and this inquiry could competently be made by the civil courts as incidental to the explication of their jurisdiction in the civil question before them, which was, whether the Presbytery had fulfilled the obligation imposed on them by statute, in favour of patrons and presentees.

These two acts should be viewed in connexion, as the last was avowedly passed for the purpose of working out the principles and enactments of the first. And they were liable to various fatal objections, even according to the laws of the Church.—(1.) The first act was based on the declaration, that “it was a fundamental law of this Church, that no pastor shall be intruded on any congregation contrary to the will of the people.” But the seventeenth regulation of the second act, for carrying this principle into effect, declared that “cases of presentation by the Presbytery jure devoluto, shall not fall under the operation of the regulations in this and the relative act of Assembly, but shall be proceeded in according to the general laws of the Church applicable to such cases.” Thus it appeared, that, so soon as the presentation fell into the hands of the Presbytery, the right of the people to veto the presentee was at an end, and the “general laws of the Church” were to regulate. This was not only in direct contradiction to the assertion of the “fundamental law” of non-intrusion, on which the first act was founded, but the contradiction was couched in the very remarkable terms, that, that law being set aside, “the general laws of the Church” were to come into operation. Whatever authority the act, therefore, possessed to assert the law, it possessed and used the same authority as expressly to negative it, and had done so.

(2.) On all previous occasions, at every era of the Church, when the consent or election of the people was claimed or exercised, it was the voice of the whole congregation, or at least the whole communicants, which was considered by the Church. But the first act of Assembly, in a novel and unwarrantable manner, set aside the voice of the communicants in general, and, instead thereof, set up that of the “male heads of families, members of the congregation, and in full communion with the Church.” A majority of this arbitrary section of the congregation had power to reject a presentee, even though an actual majority of the whole communicants, male and female, might have signed a Call to him. No law or usage of the Church gave any sanction to such a rule; and indeed the rule itself might operate actually against the voice of the congregation, while professing to give effect to it.

(3.) At all periods of the Church, and especially of the Reformed Church of Scotland, when regard was had to the will of the people, it was not to a mere arbitrary and despotic will, but to a will which was governed at least by rational and justifiable motives or causes. No stronger instance of this could be given than the fact that, even in 1649, when patronage was abolished, the act of Assembly which was passed for regulating the election of ministers, provided that “if the major part of the congregation dissent from the person agreed upon by the session, in that case the matter shall be brought unto the Presbytery, who shall judge of the same; and if they do not find their dissent to be grounded on causeless prejudices, they are to appoint a new election.” Thus, even where a dissent existed, not merely on the part of a majority of a section of the congregation, but of a majority of the whole congregation, however great, it was to remain for the Presbytery to decide, as a Church court, whether that dissent was founded on causeless prejudices, and if so, to disregard it; so that mere arbitrary dissent was altogether repudiated by the Church. And in like manner, by 1690, c. 23, when patronage was again abolished, it was expressly provided, that when the heritors and elders presented the proposed minister to the whole congregation, and there were disapproves, that “the disapprovers give in their reasons, to the effect the affair may be cognosced upon by the Presbytery of the bounds.” So that, here again, at the period when the voice of the people was most fully considered and allowed, the right of arbitrary dissent was once more repudiated by the Church, and the power of the Presbytery to cognosce upon the reasons of dissent, was specially reserved. Whereas, by the act 1834, however arbitrary the dissent, or causeless the prejudice, against a qualified minister, the judicial power of the Presbytery as a Church Court to determine regarding the weight due to it, was surrendered, and the new power on the part of the specified section of the congregation was made absolute and despotic, contrary to the well considered principles, and well-known laws, of the Church.

(4.) Whatever might be said as to the right of a Call by the people having been claimed by the Church, the Act of Assembly did not truly regulate the right of Call, but created a totally new and distinct matter, the right of Veto. It left a Call to be moderated in as formerly; and accordingly in this case it was only after a Call had been moderated in, and signed by all who wished to sign it, and thus the whole matter of the Call exhausted;—and farther, after it appeared that no special objections were to be stated against the presentee, that the Presbytery began to enter on the new and separate matter of the Veto. And accordingly, so distinct was the Veto held to be from the Call, that, after the Veto had been taken, when a member of the Presbytery moved that the Call be rejected as not being sufficiently signed, it was opposed on the express ground that it was incompetent to take up the Call “at this stage of the business.” But as the Veto was thus a new and distinct matter, separate from the Call, the principal ground upon which any attempt was made to defend the Veto Act, as within the powers of the Assembly, was at an end.

(5.) Though the Legislature had given to Presbyteries the power of examination, admission, and collation of ministers, that was given to them as a Church Court, competent to exercise judicial functions, and from whose judgment, if erroneous, an appeal lay to the superior Church Courts. It was very doubtful if the act 1567, c, 7, was still in force, as the defenders alleged, as it applied to a different order of things, anterior to the establishment of the Presbyterian Church in 1592, while yet there were Superintendents in existence, and no Presbyteries in the Church; but assuming that statute to be still in force, it expressly declared that examination and admission should be “only in the power of the kirk;” and, in the case of a refusal to receive and admit a presentee, a right of “appeal” was allowed in favour of the patron, to the higher Church courts, the Synod, and General Assembly, “by whom, the cause, being decided, shall take end as they decern and declare.” It therefore followed that if the right of veto was any part of the process in question (as the defenders alleged) it was ultra vires of the Church to delegate to the people, or to any third party, any portion of what was intrusted by the State to the Church alone and exclusively; and it was the more evidently so, because the species of devolution of trust attempted by the Veto Act was to make a surrender of judicial functions by giving a power to the people, at their absolute pleasure, to forbid the Presbytery to act in the matter at all, except for the ministerial purpose of simply recording in their minutes that they had been so forbidden to discharge the important functions imposed on them by statute, and confided to them only, for the well-being of the Church. By this procedure the judicial functions of the Presbytery were brought at once to an end, and all right of appeal to the superior Church Courts became abortive; because the refusal to receive and admit the presentee, however well qualified, did not depend on any judgment by a Church Court in an ecclesiastical cause, but on the arbitrary dictation of a third party, to whom they had subjected themselves; and, provided that the Presbytery had correctly counted the votes of the dissentients (which might as well be done by the Sheriff, or any other Teller), no appeal could be of any avail. This, however, was directly contrary to the statutory rights of the patron, and the statutory obligations of the Presbytery, and was in truth, nothing less than an attempt by the Church to confer on the people of each parish, at pleasure, a power of repealing an Act of Parliament, and suspending the Presbytery from performing an important part of those judicial functions, which were inherent in them as a Presbytery, and which were expressly required at their hands by the State.

(6.) It was directed by Regulations 14, 15, 16, and 17, that the vetoed presentee should be rejected; that if the patron should give another presentation within the time limited by law, the test of the veto should be applied as before; and that, if no presentation should be given to a presentee who was not vetoed, the Presbytery should present jure devoluto, and their presentee should not be subject to the veto. These regulations directly trenched on the civil right of patronage, and amounted to a gross act of usurpation by the Church. The right of patronage was confessedly a civil right. It was devolved, by statute, on the Church, if the patron failed to present a qualified person within six months after the vacancy occurred, but along with this was coupled the necessary condition that the Presbytery were bound to receive any presentee if a qualified person. When the right did devolve on the Presbytery, it was still the mere civil right of patronage, though falling into their hands for a time, by force of statute. Before the Veto Act, the patron was secure against the forfeiture of this important civil right, if he presented a qualified person within the limited time. But under the Veto Act, though he might select and present a person of the most eminent qualifications, yet if the Veto was applied to him, he was liable to be rejected, and the presentation was liable to be defeated. And this might be repeated, until the time limited by law expired, after which the Presbytery, though acquiring merely the same civil right of patronage, by virtue of its devolution, hac vice, were nevertheless to have the right of presenting a person to whom no veto could apply. The effect of this was not only to invade the civil right of the patron, by forfeiting it, even though he had presented a qualified person; but practically to forfeit patronages, to an indefinite amount, in favour of the Church. Because the Veto Act, if in active operation, would make the limited time expire in frequent instances before the Presbytery could once take the presentee on his trials, and, in all these instances, the Veto Act, whether so intended or not, would practically be just a process for the usurpation of the rights of patrons by the Church, on the ground of non-intruding any minister; coupled with the fact that, under the rights of presentation so usurped, the voice of the people was declared to be of no avail whatever against the person presented by the Church. There was nothing in the laws of the Church in past times, any more than in the law of the land, to countenance this. But it plainly thus appeared that important civil interests were not only affected, but forfeited by these regulations. And as there was a whole series of decisions in the Civil Courts on the question whether the jus devolutum had fallen, in individual cases, to a Presbytery; and as that was a proper civil question, and was necessarily involved in the Veto Act and Regulations, and indeed lay at the root of the whole, that ground alone sufficed, not only to show the illegality of the Veto Act itself, but also to establish the jurisdiction of the Civil Court in judging of it.

(7.) As the patron's right to select a presentee was confessedly a civil right, the right of Veto, which was just the counter-part of that, and consisted in annulling his selection, was only a civil right also. And thus the act which bestowed the Veto, was truly legislating on a civil right, and was farther contrary to the laws and principles of the Church as well as the law of the land.

(8.) The Veto Act and Regulations afforded internal evidence that they were at variance with the previous laws both of Church and State. Thus, although it was admitted that patronage was a civil right, and that the Presbytery were bound to sustain a lawful presentation, yet Regulation 1st contemplated its being only partially sustained until the effect of the Veto should be seen. It directed that when the Presbytery “shall have so far sustained a presentation” as to be prepared to appoint a day for moderating in a Call, &c. And accordingly in express accordance with this, the Presbytery of Auchterarder, though a confessedly lawful presentation was before them, did, for the first time in the history of the Church (except when patronage was abolished), avoid sustaining it simply, as they were bound to do, but gave a deliverance which only “in so far sustained” it, as to appoint a day for moderating in the Call. Again at the meeting for moderating in the Call, the second Regulation directed the Presbytery, only “in the first instance” to proceed according to “the manner in which they are in use at present to proceed.” And again in one of the two clauses appended to the Act of Regulations it was declared, as to vacancies already existing, that they “shall not fall under the operation of the Regulations in this and the relative Acts of Assembly, but shall be proceeded in according to the general laws of the Church.” Thus pointing out the general laws of the Church, as something which was in marked contradistinction to them.

If, therefore, it had been necessary for the pursuers to establish that the Veto Act was unwarranted by the laws of the Church as well as of the State, they had done so. And although the General Assembly and the Church possessed a limited power of making laws and regulations for the government of its own members, in matters proper to them as a public body, which was analogous to the power of any corporation to make by-laws, these only could be good and valid, in so far as they were not adverse to the law of the land. It appeared, however, that the Veto Act was a direct invasion of civil and patrimonial rights, in the face of public statutes, and unwarranted by any laws of the Church itself.

It remained to be considered whether the pursuers had brought an action with competent conclusions before the Court.

The defenders were to plead that, by virtue of 1567, c. 7, there was a right of appeal granted to the patron, to the superior Church Courts, in such a case as this, and that this should have been at least exhausted, as the appropriate statutory remedy, before resorting to the Civil Courts. But it was doubtful, as already stated, whether that statute was still in force; and even if it were so, it did not affect a case like the present. It provided that if a patron presented a person “qualified, to his understanding” to the Superintendent, who refused to receive and admit the presentee, the patron might appeal, &c. and that “the cause, being decided, shall take end as they decern and declare.” The whole of these words, as well as the true import of the act, necessarily referred to the case of a person taken on trials by the Superintendent or Church Commissioner, and rejected by a judicial deliverance finding him not qualified. It was expressly referred to as a “cause” liable to “appeal,” and to be “decided;” referring therefore to the Church Courts as having a process or ecclesiastical cause before them, for their judicial decision. But that was altogether different from the present case, which consisted in an absolute refusal by the Presbytery to act as a Church Court and take the presentee on trial; in respect of a Veto by a third party whom the General Assembly had authorized to supersede all Church Courts in this matter, at pleasure. In the present case, therefore, no statutory Court of resort was left unexhausted before coming to the Court of Session.

Assuming then that there was a civil and patrimonial wrong to be redressed, the only question now remaining was, whether the conclusions were competent in themselves, and directed against the proper parties.

The first branch of the first conclusion was for declarator that the pursuer, Mr Young, was effectually presented to the parish and church of Auchterarder, which was strictly a civil conclusion, 1 and which was unquestionably well founded. The second branch of that conclusion was for declarator that the Presbytery were and are bound to make trial of the qualifications of Mr Young, and, if found qualified, to receive and admit him as minister of the church and parish of Auchterarder. This was also a strictly civil conclusion. It was merely declaring the genuine construction of those Acts of Parliament which, in establishing the Presbyterian Church, had imposed various legal obligations on its Church Courts, all of which it was the province of the civil court to declare, and one of which was the subject of this conclusion. Whether or not the Presbytery were, de facto, liable to this obligation, was a question on the merits of the case. But if they were so, it strictly belonged to the civil court both to declare the obligation against them, and, by all civil compulsitors, to decern them to fulfil it. In the common case of a money debt, in which a minister was the obligant, it did not raise any thing but a civil question, to declare the amount of the debt, and to decern for payment. And as little would it do so, though the debt had been contracted by a Presbytery, in place of an individual minister. But, in point of principle, there was no difference between enforcing that obligation against a Presbytery, and any other obligation which, by Act of Parliament, they were bound to fulfil, whether it were to pay, or to perform, and whether it were to perform the civil duty of granting a certificate to a pauper, or the ecclesiastical function of taking a lawful presentee on trial. The conclusion, therefore, for declarator of the obligation incumbent on the Presbytery to make

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1 In regard to the extent of jurisdiction which the Court had already exercised in previous cased, the subjoined decisions were referred 10, hinc inde, and largely entered upon. But it would require a distinct and separate discussion to go fully into them. Moncreiff, Feb. 15, 1735 (9909), and Elch. voce Patronage, No. 1; Hay, Feb. 25, 1749 (9911), and 5 Brown's Supp. 768; Cochran, Nov. 19, 1748 (9909), and Kilk. voce Patronage, No. 2; Cochran, Jan. 21, 1749 (9909), and Kilk. voce Patronage, No. 3; Cochran, June 26, 1751 (9951); Falc. Hep. p. 250, and Elch. voce Patronage, No. 4; Dick, July 29, 1652 (9954), Sel. Decis. p. 22; and March 2, 1753 (F.C.); and Elchies voce Patronage, No. 6; Lady Forbes, Feb. 1762 (9931); Lord Dumbs awl Nicoison, May 15, 1795 (9972), and Bell's Cases, p. 169; Baillie and Others, Feb. 28, 1822 (ante, I. 363; or 340 new ed.); Presbytery of Inverness, June 10,1823 (ante, II. 384; or 341 new ed.) References, on the point, that a claim by Presbyteries to the right of presentation was a civil question exclusively for Civil Court.—Presbytery of Falkirk, Dec 8, 1696 (9961); Procurator of the Church, and Others, March 2, 1762(9961); Presbytery of Paisley, August 10, 1770 (9966); Presbytery of Strathbogie, Aug. 2, 1776 (9972), and Appxvoce Patronage, No. 2.

N.B.—The Session Papers, in many of these cases, were very fully quoted.

trial of the qualifications of the presentee, and to receive and admit him, if qualified, was strictly within the competency of the civil court: and, on the merits, was well founded. The next conclusion was, that the rejection of Mr Young, without trial of his qualifications, and without objections to them, and on the ground of a Veto by the parishioners, “was illegal and injurious to the patrimonial rights of the pursuers, and contrary to the provisions of the statutes and laws libeled.” This was also strictly a conclusion, in civilibus, as it was merely a declaration that the Presbytery had injured patrimonial rights by violating obligations imposed on them by statute.

These were the whole conclusions now insisted in. The right and interest of both pursuers to insist in them was clear, because, although they did not now ask for decree ordaining the Presbytery to take Mr Young on trials, and to admit him if found qualified, they laid a foundation upon which that conclusion could certainly and necessarily be based. But independently of that, the patron, to whose presentation due effect had been denied, had an interest to have it declared that the denial was illegal and unwarrantable; and the more so, because a decree of declarator, in the terms concluded for, would prevent the jus devolutum from accruing to the Presbytery. And the presentee, holding a grant to the whole emoluments of the benefice, as well as to the honourable office and status of minister, in virtue of that presentation which had been frustrated by the rejection of himself as presentee, had an interest to have it declared that the rejection was illegal. The pursuers might, indeed, have farther interests which they could competently have introduced into the summons, and other conclusions which they could have pressed against the defenders. But as the pursuers had a direct civil and patrimonial interest, of a valuable kind, in maintaining those conclusions in which they did insist, it was impossible to allege that they had no title to insist in these, merely because, if they had chosen, they might have insisted not only in these but also in others.

On the whole, it was submitted that the declaratory conclusions, so far as now insisted in against the Presbytery, were well founded, and that decree should be pronounced accordingly.

Pleaded by the Defenders,

It was undoubtedly true that the Church of Scotland was, in one sense, dependent on the State; not, indeed, the Church of Scotland, when viewed as part of the Catholic and universal Church, which consisted of all the elect of every age; but the Church of Scotland, viewed as a National Establishment, possessed of privileges and immunities, endowed with property, and having a gradation of courts and judicatures recognised by the Legislature. But the privileges thus granted to, or recognised in, the Church, were of a very large and general character, including within them both supreme legislative and judicial powers, in all ecclesiastical matters, at least in so far as such matters were not made the subject of express statutory enactment to the exclusion of the jurisdiction of the Church. And these powers were so granted or recognised, when claimed by the Church, as being entitled to perfect spiritual liberty and independence, and as having no other Head but the Lord Jesus Christ.

It would appear, on inquiry, that the proceedings complained of by the pursuers, and the Act of Assembly on which they were founded, were within the proper province of the Church; and as soon as that was established by the defenders, they would respectfully decline the jurisdiction of the civil courts to review these proceedings. Even supposing, for the sake of argument, that these proceedings were erroneous, still the remedy for an excess of power by a Court possessing supreme and independent jurisdiction (and still more if it were a body possessing legislative authority and fortifying its proceedings thereby), was not to be sought within any other Court whatever, civil or criminal, however supreme such Court might be in its own separate sphere, but was to be obtained from Parliament alone.

But the defenders were farther prepared to show, that, even if it were competent to review their proceedings, they were warranted by the laws of the church itself, and could not effectually be challenged even in the Church Courts, if such challenge were attempted.

The right of patronage, though a right of property, was not an absolute but a qualified right, and it was one from the exercise of which, in selecting a presentee, the patron could not lawfully derive the slightest patrimonial gain. It was a right which partook very largely of the nature of a trust, and was only enjoyed subject to various limitations, which were imposed on it for the protection of the Church and the people against its improper exercise; and it was as much beyond the power of the patron or presentee to object to the limitations on the right which thus qualified it, as it was beyond the power of the Church to deny effect to a presentation subject to these limitations. On examining the present question, it would be found to involve an attempt by a patron and his presentee to usurp upon the Church, and not an attempt by the Church to usurp upon them.

It was implied in the erection of an Established Church, if such Church owned only a Spiritual Head, that each of its ministers should combine in his person a double right and a double title, as regarded, respectively, the spiritualities and the temporalities of his office and benefice. The right to the temporalities of the benefice flowed from the State alone, and, in accepting them, if the State imposed conditions on the Church, these conditions the Church was bound to fulfil. But, on the other hand, the right and title to the pastoral office was purely ecclesiastical in its whole source, progress, and completion. The entire process of investing with that office, from the first step towards forming the pastoral relation, which was the Call by the people, to the last step of ordination and induction, was entirely ecclesiastical, and the control of it had been left by the State in the exclusive jurisdiction of the Church. This was advisedly done, as the Church could not, and would not, for the temporal advantages of an establishment, have surrendered her jurisdiction in this ecclesiastical process, or subjected herself to the control of any temporal authority whatever.

It was admitted that the Earl of Kinnoull was the lawful patron, and that Mr Young was validly presented by him. This had never been disputed, and the conclusion for having this declared was therefore supererogatory. Accordingly, the Presbytery “so far sustained the presentation” as to appoint a day for moderating in the Call; and in giving this deliverance, the words “so far” were not intended or calculated to restrict the legal effect of the presentation. When it was sustained to the effect of appointing a day to moderate in the Call, it had received the whole effect of which it was, by any lawful deliverance, susceptible. The defenders, at the same time, caused intimation to be made to the congregation of the vacant church that the presentee was appointed to preach on two successive Sundays in the church of Auchterarder, and that thereafter the Presbytery were to meet in the vacant church and moderate in a Call. The presentee accordingly preached twice; the Presbyterial meeting was subsequently held for moderating in a Call; and it was at this meeting, after the Call had been signed by only three individuals, that the dissents were lodged by a majority of the male heads of families as disapproves. An opportunity was then given to either of the pursuers to require the disapproves to emit a solemn declaration that they were prompted by no malicious or factious motive, but solely by a conscientious regard to spiritual interests. This, however, was not required, and in respect of these dissents, the Presbytery, after certain intervening procedure, rejected the presentee for that vacancy and parish. Up to the date of the reception of these dissents, nothing was done by the Presbytery of which the pursuers could complain; and, before arriving at that stage, the procedure had passed the line which divided the ecclesiastical from the civil jurisdiction, and was no longer cognisable by the civil courts. Had the Presbytery refused to sustain the presentation, the civil courts might have taken cognisance of it, as that was a civil right. But so soon as the Presbytery sustained it, as they did, and proceeded to the next step of putting the presentee on his initiatory trials, by causing him to preach before the congregation, and following that up, with moderating in a Call, their whole procedure was strictly ecclesiastical, and the civil courts had no power to review it.

In support of this proposition it was only necessary to attend to the extent of the legislative and judicial powers of the Church; and to the nature of the procedure objected to.

The Church had not only claimed full power over the examination and admission, and collation of ministers, but the State had expressly recognized such power as belonging to it. Thus by 1567, c. 7, it was declared “that the examination and admission of ministers, within this realm, be only in the power of the kirk.” And in case of the rejection of a presentee, the right of appeal was specially limited to the Church Courts, it being provided that the cause being decided by the General Assembly, “shall take end as they decern and declare.” That statute was specially ratified by 1581, c. 99, along with “all and quhatsomever actes of Parliament, statutes, and constitutions, past and made of before, agreeable to God his word,” for maintenance of the “libertie of the trew kirk of God and religion presently professed, &c.” Then the statute 1592, c. 116, expressly ratified and approved “all liberties, priviledges, immunities and freedoms quhatsumever, given and granted be his Hienesse, his Regentes in his name, or onie of his Predecessours, to the trew and halie Kirk, presently established within this Realm; and declared in the first Act of his Hienesse Parliament, the 20th day of October, the zeir of God 1579: and all and whatsumnever Acts of Parliament, and statutes maid of before, be his Hienesse, and his Regentes; anent the libertie and freedom of the said Kirk:” especially ratifying 1581, c. 99, “and all uther Acts of Parliament maid sensine, in favour of the trew Kirk; And siklike, ratifies and appreivis, the general Assemblies appointed be the said Kirk.” It also ratified “the Synodical and Provincial Assemblies,” meeting twice a-year, “as they have been, and are presently in use to do within every province of this realm.” And it ratified “the Presbyteries, and particular Sessiones, appoynted be the said Kirk, with the haill jurisdiction and discipline of the same Kirk, aggried upon be his Majesty in conference had be his Hienesse, with certain of the Ministers, conveened to that effect: of the quhilkes articles the tenour followes.” Then followed an enumeration of powers of the most general nature, and such as implied the recognition of other extensive powers as already existing, though not enumerated. Synods, or “Provincial Assemblies,” were declared to be constituted “for weighty matters,” with power to redress all errors committed by Presbyteries, and to depose office-bearers; which brief notice was followed with this clause, “and, generally, thir Assemblies hes the haill power of the particular Elderships (or Presbyteries) whereof they are collected.” Among the powers of Presbyteries were specified such as that of keeping the kirks “in gude ordour;” causing “the ordinances made by the Assemblies, provincial, national, and general, to be kept and put in execution; to make constitutions quhilk concernis Tò πρ&eacgr;πον in the particular Kirk quhair they governe; Providing they alter na rules maid by the General or Provincial Assemblies, &e.”—”and to abolish constitutions tending to the hurt of the same. “The tenor of this act was, therefore, such as partly to grant, and partly to recognise as already in the existing Church, large and general powers, and in particular those of making “ordinances” and “constitutions” for the government of the Church, which powers were not defined in the statute, but were advisedly left large and general. Thus, although the statute specified no grant of power directly to General Assemblies, yet, in treating of the powers of Presbyteries, it incidentally made repeated references to the power of the General Assembly to make “ordinances” and “rules” for the government of the Church; so that, in taking the measure of the powers possessed by the Church, it was absolutely necessary to take into view the usage and practice of the Church, as a National Church, along with those general and indefinite expressions of the statute which frequently referred rather to existing powers, as already in the Church, than purported either to grant or recognise them for the first time.

This statute farther declared, as to an intermediate act, 1584, c. 129, that it should not “derogate ony thing to the privilege that God has given to the spirituall office-bearers in the Kirk, concerning heads of Religion, matters of Heresie, Excommunication, collation or deprivation of ministers, or ony siklike essential censours, speciallie grounded, and havand warrand of the Word of God.” It also enjoined “presentations to benefices to be direct to the particular Presbyteries in all time coming; with full power to give collation thereupon; and to put order to all matters and causes ecclesiastical, within their bounds, according to the discipline of the Kirk.” This statute was ratified by 1690, c. 5, in all its parts, except as to patronages, which were specially reserved for after consideration, and therefore the whole of what was above quoted was so ratified, as well as the Act 1567, c. 7, the provisions of which, however, were necessarily in so far modified, that the Presbytery had come into the place of the Superintendent, there specified as the party to whom the presentation was to be directed. And the Act 1690, c, 5, farther ratified the Confession of Faith, containing, in cap. 31, § 3, a declaration that “it belongeth to synods and councils, ministerially to determine controversies of faith, and cases of conscience, to set down rules and directions for the better ordering of the public worship of God, and government of his Church; to receive complaints in cases of mal-administration: and authoritatively to determine the same: which decrees and determination, if consonant to the word of God, are to be received with reverence and submission; not only for their agreement with the word, but also for the power whereby they are made, as being an ordinance of God, appointed thereunto in his word.” The Confession also set forth, cap. 25, § 6, that “there is no other Head of the Church but the Lord Jesus Christ:” and, in cap. 30, “The Lord Jesus Christ as King and Head of his Church hath therein appointed a government, in the hand of church officers, distinct from the civil magistrate.”

This statute was followed by the relative statute 1690, c. 23, which abolished patronage, and empowered the elders and Protestant heritors of a vacant parish, “to name and propose the person to the whole congregation, to be either approven or disapproven by them,” the reasons of the disapproves being subject to be cognosced upon by the Presbytery.

The government and discipline of the Church stood upon this footing, the people having a certain right to approve or disapprove of a proposed minister even though selected by the elders and heritors, and therefore most likely to be agreeable to their inclinations, when the Treaty of Union took place. At entering on this national compact, the Scottish Commissioners were expressly debarred from even treating of “any alteration of the worship, discipline, and government of the Church;” and, by an Act of the Scottish Parliament, engrossed in the Treaty of Union as a fundamental condition thereof, it was declared that the “worship, discipline, and government of this Church should be effectually and unalterably secured;” and “therefore” the Act 1690, c. 5, was specially ratified “with the haill other Acts of Parliament relating thereto, in prosecution of the declaration of the Estates of this kingdom, containing the Claim of Right.” And, in addition to this, and with still more anxious amplification of expression in favour of the Church, it was provided that each succeeding Sovereign should, at his or her accession to the throne, “swear and subscribe, that they shall inviolably maintain and preserve the aforesaid settlement of the true Protestant religion, with the government, worship, discipline, rights, and privileges of this Church, as above established by the laws of this kingdom, in prosecution of the Claim of Right.”

Considering the anxiety and solemnity with which the entire worship, government, and discipline, with the whole rights and privileges of the Church, as existing at the Union, were to be for ever preserved, it seemed clearly to follow that if any statute were subsequently passed, which had even an apparent tendency to innovate on these, it must at least be construed so as not to violate them, if its words admitted of such construction.

By 10 Anne, c. 12, the Act 1690, c. 23, abolishing patronage, was repealed; patronage was restored; and it was declared that “the Presbytery of the respective bounds, shall, and is hereby obliged to receive and admit in the same manner such qualified person or persons, minister or ministers, as shall be presented by the respective patrons, as the persons or ministers presented before the making of this act ought to have been admitted.” As the Act 1690, c. 23, had been truly referred to, prospectively, in 1690, c. 5, and they were both part and parcel of one set of legislative provisions for settling the worship, discipline, and government of the Church, in prosecution of the Claim of Right, on the footing “most agreeable to the inclinations of the people,” there might have been room to contend, at least de recenti, that the repeal of 1690, c. 23, was an actual infringement on the Treaty of Union. But at all events, the Act 10 Anne, c. 12, must be construed in the manner which tended least to innovate on the condition of the Church as at the date of the Union. And, in particular, as the people had a recognised voice, in approving or disapproving, the person named and proposed to be their minister; and as the Act of Anne declared that the Presbytery were bound to receive and admit the patron's presentee “in the same manner,” “as the persons presented before the making of this act ought to have been admitted” the plain import of these words was, that such person should be presented to the whole congregation to be approved or disapproved by them, and that, in disposing of his settlement, the Presbytery were bound to take into view the voice of the people thus expressed. This was the just and natural import of the words; and it was greatly strengthened by the consideration, that, to have totally stifled the voice of the people in the election and admission of a minister, would have been a very marked infringement on the “rights and privileges of this Church,” as existing at the Union, and which all Sovereigns, succeeding Queen Anne, were to swear to preserve as they then existed. And reading the term “Church” as it should be read, in its genuine sense, as embracing not merely the office-bearers of the Church, or ministers, but the whole Christian people who were members of it, it would be difficult to doubt that the privilege of having a voice in the settlement of their minister, was not part of their rights and privileges. And accordingly the practice of the country for many years after the passing of the Act of Anne corresponded with this construction, as the utmost regard was confessedly had, in all settlements, to the will of the people. 1

But without dwelling longer on views which were adverted to as they arose, incidentally, on passing over the statutes, the result of perusing them established at least this point, that every thing which was comprehended in the “examination and admission of ministers,” or in the “collation” of ministers, was expressly allowed to the Church, along with extensive and general powers, including among others, express power to Presbyteries “to put order to all matters and causes ecclesiastical within their bounds.”

And although this special grant was alone sufficient to instruct that the proceedings complained of were truly within the jurisdiction which the State expressly recognised as being in the Church, yet it had already appeared that it would be a very defective view which would be taken of the powers and privileges of the Church if those alone were held to belong to it, for which an express statutory grant could be produced. So far was this from being the case, that the expressions used in the statutes on this subject, were of a large and general nature, and were advisedly so conceived.

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1 See, in Church Records, the cases of Spynie, 1720; Lochmaben, 1723; Aberdeen, 1725–6; Old Machar, 1729; Hutton, 1730; Kinnaird, 1736; Currie, 1740; Cairnbee, 1741; Maner, 1742; Kincardine O'Neil, 1743; Kirk-Owen, 1744; Kilpatrick Fleming, 1746; Govan, 1747; Cromarty, 1752; Kilconquhar, 1760; Comrie, 1768; Clackmannan, 1778; Biggar, 1780; Carsphairu, 1781; Arrochar, 1782; Cathcart, 1784; Langholm, 1785; and Church Records, passim.

All those statutes which were above quoted, and especially 1592, c. 116, were passed at a date when the Presbyterian Church was already the established National Church, in the exercise of large powers, which, being matter of public notoriety, were not made the subject of special grant and enumeration. For it was a mistake to suppose that the Presbyterian Church was created or founded by 1592, c. 116. It was true that the class of Church Courts, termed Presbyteries, did not exist before that statute, but Presbyters, which was synonymous with elders, did. And the peculiar characteristic of the Presbyterian Church, which was the principle that there was no superiority of any office above that of Presbyters, had belonged to the Church from the date of the Reformation, which accordingly was truly described as “having reformed from Popery, by Presbyters.” The Presbyterian Church had therefore been in existence since 1560, and had possessed Synods and General Assemblies, exercising large and extensive powers long before the date of 1592, c. 116. And in reading the very general powers which were granted or acknowledged by that statute in favour of the Presbyterian Church, if the actual nature and extent of these was to be defined, it was impossible to maintain, as the pursuers had attempted to do, that every thing must be rejected for which an express warrant was not in that statute; on the contrary, it was necessary to look to the written and unwritten law of the Church, to her practice and usage, to the decisions of her judicatures, and the enactments of her statute book, for an exposition of the nature of her powers as acknowledged by the State. And whatever the Church enacted in virtue of powers recognised by the State to belong to her, not only became the law of the Established Church, but, by being so, became part of the law of the land.

Thus, for example, in addition to the instances already incidentally noticed, no power of deposition of ministers was expressed as given to Presbyteries by the statute 1502, c. 116, but only to the higher Church Courts; and as every sentence of deposition affected most important civil interests, it might be declared that every sentence of deposition by a Presbytery was invalid, if the pursuers' arguments were well founded that no powers belonged to the Church for which an express statutory grant could not be produced. Yet it was, undoubtedly, part of the law of the Church, and therefore of the law of the land, that Presbyteries did possess the power of passing sentence of deposition. Again ruling elders had not been recognised by the statute as forming any part of the constituency of the General Assembly of the Church. Yet it was perfectly fixed that ruling elders had a right to sit there; a right which was of very great importance, as it affected the composition of the Supreme Court and Legislative Assembly of the Church. And, from the date of the Reformation downwards, the General Assembly had exercised, from year to year, high legislative powers, of which no stronger example could be given than that of varying the number of its own constituent members, from time to time, which it did not only by 1694, c. 5, and 1712, c. 6, in fixing the proportions which, should subsist between the extent of a Presbytery, and the number of representatives, both lay and clerical, which it should send to the General Assembly; but also in admitting a new representative from the Scottish Church at Campvere in 1641 and 1704; another from Darien in 1699; and another from India in 1821. Again, in 1725, the General Assembly had separated Shetland from Orkney, as to ecclesiastical matters, and had subsequently divided Orkney into three separate Presbyteries. And in general, on looking through the Books of the Church, it was evident that it had all along exercised high legislative powers, and that these had been recognised as belonging to it, by the State.

In particular, on turning to that department which more closely related to the present subject, it would be found that the Church had especially exercised her authority there, to the effect of imposing numerous limitations on the choice of presentees previously competent to patrons, but none of which could be challenged, because the State, in reserving patronage, did, at the same time, recognise those powers, as in the Church, by virtue of which the limitations were imposed, and subject to the exercise of which, and not otherwise, was the right of patronage reserved at all.

For a very considerable period after the Reformation, and after the statute 1592, c. 116, a license to preach, was not required as essential to a presentee. The precise period when the license was introduced did not appear, but it was now confessedly essential, and it was rendered necessary by the authority of the Church alone. The effect of imposing such a rule was to limit the patron in the range of selection previously possessed by him. Yet if he were to attempt to disregard it, and to insist on the alleged statutory right of compelling a Presbytery to try the presentee, and to admit him if they found him a “qualified person,” the Presbytery would undoubtedly reject him, without trial, because he had no license; and they would be well warranted in so doing, though the warrant was the authority of the Church alone, which, in this instance, acting within its own province, had effectually imposed that limitation on the patron's selection; to which limitation therefore he was bound to submit, as he held his right of patronage only on condition of doing so.

Again the Church had, at various periods, passed acts imposing a certain course of studies, which was made more severe, from time to time, upon students of divinity, and it refused to take on trial any presentee who had not complied with the rules prescribed by the authority of the Church. Whatever might be the personal qualifications and accomplishments of the presentee, he was rejected without a trial, unless he had complied with these rules. This narrowed still farther the range of selection previously open to patrons; yet they had no right to complain, because their right of patronage was only enjoyed, subject to liability to limitations so imposed. And again in the Act of Assembly 1817, c. 6, which was intended to prevent pluralities in the Church, the range of selection was subjected to still farther limitation, and that by the sole power of the Church.

And in another class of cases relating to this matter, the power of the Church was unquestionable, though no specification of it could be found in any statute. Where a patron gave a presentation to a person who was already an ordained minister, holding a cure, the presentation was wholly unavailing, however great might be the qualifications of the presentee, unless the Presbytery, of which he was a member, loosed the spiritual bond subsisting between the presentee and the flock in that parish of which he held the cure. It was absolutely in the power of the Church to loose this bond or not, according as seemed most for the good of the Church. And yet this marked limitation on the exercise of the right of patronage was imposed by the authority of the Church alone.

On looking therefore to the terms of the statutes which recognised the entire right of trial, examination, admission, and ordination of ministers to be only in the Church; coupled with the ratification of the Confession of Faith which declared that Christ was the sole Head of the Church; and viewed in connexion with the legislative powers exercised by the Church, as evinced by its statute-book, on all subjects connected with admission and ordination, it appeared to be clearly established that the Church had full power to make enactments for regulating every thing ecclesiastical relating to that subject.

If it appeared, therefore, that the Act of Assembly, of May 31, 1834, entitled “Overture and Interim-Act on Calls,” which had subsequently become a standing law of the Church; and the relative Act of Regulations, were both on the subject of the Call or Concurrence of the people, in the invitation to a person to be their pastor, and if the Call was a necessary step in the process of admitting a minister, it must follow that the proceedings of the defenders were not only unimpeachable, in the Civil Court, as belonging to ecclesiastical cognisance alone, but also as being in conformity with the laws of the Established Church, and therefore with the laws of the land.

From the earliest period of the Reformed Church of Scotland, the voice of the people had always received regard as affecting the admission and ordination of a minister. The precise effect which was claimed for the voice of the people was not always the same, as an absolute right of election, and the abolition of patronage, had repeatedly been desired and temporarily obtained: but at all periods of the Presbyterian Church, without exception, the assent of the people to their proposed pastor, in the shape of what was termed a call or Concurrence, was invariably held to be the first step, and an essential step, in the formation of the pastoral relation between a minister and his flock. In ascertaining the state of assent on the part of the congregation, it, of course, entered as an element into the inquiry, what was the state of dissent against him. The one was just the counterpart of the other, and in judging of the accept ableness of a proposed minister to a parish, both were entitled to be and always had been regarded.

The Second Book of Discipline had been adopted by the General Assembly in 1578, and engrossed in its records in 1581, and had become the standard law of the Church, excepting where any statutes of the legislature were opposed to it. In that book, cap. 3, § 5, it was declared “that no person be intruded in any of the offices of the kirk, contrary to the will of the congregation to whom they are appointed.” And though the legislature had not allowed the right of election, claimed in this book, it did not farther derogate from the authority of the book on this subject.

Again by an Act of Assembly in 1596, which was ratified and renewed by another Act of Assembly in 1638, session 23 and 24, art. 20, it was declared “that no person be intruded in any office of the kirke contrare to the will of the congregation to which they are appointed.”

Again, in 1049, at which period patronage was so far modified that the session of the congregation had the power of presenting a person to the congregation, as their proposed minister, thereby rendering it in the highest degree improbable that the person so proposed should not be acceptable to the congregation, it was still provided that if the major part “dissented,” the person was to be rejected, unless the Presbytery actually found such dissent to be grounded on causeless prejudices. In the whole circumstances of such a presentation, a rule like this proved that great regard was had to the mere will of the people, considered as a body distinct from the party then in the right of presenting a minister to fill the vacancy.

But there was irrefragable evidence on this subject to be found in several acts of Assembly, expressly declaring the necessity of a Call, and regulating respecting it. Thus, by act of Assembly 1736, c. 14, which was passed soon after the great secession of Ebenezer Erskine and his followers, it was declared, on considering previous acts of Assembly from 1575 to 1715, “That it is, and has been since the Reformation, the principle of this Church, that no minister shall be intruded into any parish contrary to the will of the congregation.” This act also ratified the Second Book of Discipline, as above quoted. And by act of Assembly 1782, c. 7, it was declared “that the moderation of a Call, in the settlement of ministers, is agreeable to the immemorial and constitutional practice of this Church, and ought to be continued.”

But besides all this evidence that the Call or Concurrence was invariably requisite by the laws of the Church before proceeding to admit and settle a minister, there was the evidence afforded by the records of the Church courts, from those of the Presbyteries up to those of the General Assembly, in which, for above a century, questions had incessantly occurred in regard to the settlement of a minister, depending precisely on the point whether or not he had received a sufficient Call from the people. The judgments of the Church courts, in the earlier part of the eighteenth century, afforded numerous and striking instances in which the utmost consideration was given to the voice of the people, and a Call required to be a substantial expression of their concurrence, before a settlement was allowed to be proceeded in. And although, from about the middle of the century downwards, a majority of the General Assembly annually pronounced a series of decisions, the whole tendency of which was to sustain Calls with fewer, and fewer, signatures attached to them, until at last a Call came to be sustained, provided it had the signatures of almost any of the parishioners at all, still it was never once mooted in any quarter that the Call could be actually dispensed with, and was an absolutely unnecessary form. On the contrary, in every question which occurred as to the sufficiency of the Call, the number of assents and of dissents was canvassed, and the motives prompting these respectively were examined, without its having been ever once hinted at that such inquiry was irrelevant, as it clearly must have been if no Call whatever had been required.

And in the records of the Church there was but one instance, that of Arbroath in 1790, in which it appeared that a Presbytery had proceeded to settle a minister without a Call; and, in that one instance, the General Assembly unanimously censured the Presbytery, and declared their procedure in this respect to be both irregular and incompetent.

There was thus an amount of evidence altogether overwhelming, that the Call was immemorially held to be an indispensable step in the settlement of a minister. And there were two acts of Assembly, those of 1753, c. 5, and 1759, c 8, which, in a remarkable manner, pointed out this, and demonstrated that the Call was viewed as a purely ecclesiastical step, and as falling completely under the jurisdiction of the General Assembly. Both of these acts declared, that it should be a simoniacal practice, equally to become bound in any sum, &c. “to the patron, &c. in order to procure the presentation, or to the heritors or others concerned, in order to obtain a concurrence with the said presentation, or otherwise to procure a Call to a vacant parish.” These acts were still the law of the Church, and they evinced, in the strongest manner, the power and practice of the Church to regulate, by legislation, every thing connected with the Call, in respect that it was an ecclesiastical matter, and essential to the process of admission and ordination of a minister.

And when it was considered that every minister, at his ordination, was required to answer, in the face of the congregation, the following questions:—“Have you used any undue method, either by yourself or others, in procuring this Call? Do you accept of, and close with, the Call, to be pastor of this parish, and promise, through grace, to perform all the duties of a faithful minister of the Gospel among this people?” it was impossible to doubt that the Call was an indispensable, initiatory step in the trials, ordination, and settlement of a minister.

That the Call was wholly an ecclesiastical matter, appeared farther from its own tenor, which was simply an invitation to the presentee to become the pastor of the parish, in respect of its present spiritual destitution, and his possessing the requisite qualifications for their edification; and promising him respect and obedience in the Lord. This was wholly an ecclesiastical proceeding, and no cognisance of it had ever been taken except by the Church, which alone, as a judicature and as a legislature, had made it the subject of frequent decisions and enactments. And there was another striking instance of Church practice, evincing that the Call was a purely spiritual and ecclesiastical matter, in the circumstance that when a placed minister received a presentation to another parish, the only document which he laid before the Presbytery who were to loose the spiritual bond subsisting between him and the flock of his first parish, was the Call to the other parish to which he had received a presentation. That Call was the warrant, and a necessary warrant, to authorize the Presbytery to loose the existing spiritual bond, without which the presentation to the other parish would be altogether unavailing. And if any thing could be added to the proof of the spiritual nature of the Call, it would be found in the circumstance, that, according to the practice of the Church, the duty of supplying the vacant parish with public worship devolved on the presentee from the moment of his receiving and accepting the Call, and not sooner. Until that date, the supply was furnished by the Presbytery of the bounds; but after that date, though a considerable time was still to elapse before the presentee's remaining trials and ordination and admission could be completed, the supply of worship to the vacant parish was held to be devolved on him in virtue of the Call. It was, therefore, clear beyond question that the Call was, in its nature, properly spiritual and ecclesiastical.

Upon looking into the act of Assembly, May 31, 1834, which was now a standing law of the Church, and which had been erroneously nicknamed the Veto Act, it would be found to be an act regulating the matter of the Call, or Concurrence, and therefore strictly within the well-known province of the Church.

Its title indicated this, as it was styled “Overture and Interim Act on Calls.” This showed what the Church intended and understood to be the subject of the act. And the body of the act corresponded with the title of it. It commenced by declaring it to be the fundamental law, “that no pastor shall be intruded on any congregation, contrary to the will of the people.” This, as matter of fact, was a truth which was proved by an overwhelming weight of evidence. But it was, at present, enough to observe, that this was a legislative declaration on the subject of the Call or Concurrence of the people, the principle of non-intrusion being only a different form of words for asserting that there must be an efficient Call or Concurrence. The rest of the act was on the same subject, being expressly passed “in order that this principle may be carried into full effect.” The act proceeded to provide that if, “at the moderating in a Call, the major part of the male heads of families, members of the vacant congregation, and in full communion with the Church, shall disapprove of the person, &c.” he should be rejected, provided that none should be allowed to disapprove who refused, if required, solemnly to declare that he was “actuated by no factious or malicious motive, but solely by a conscientious regard to the spiritual interests of himself or the congregation.” This whole enactment was, therefore, strictly on the subject of the Call or Concurrence, as of course the assents on the one hand, and the dissents on the other, were just the elements to be considered in ascertaining the state of the Concurrence. The use of the terms “approver” and “disapprover” made no difference on the sense, and were the same as had been used in 1690, c. 23, in regulating as to the Call or Concurrence. And although in the case of Auchterarder the Presbytery had first collected the assents, in the shape of the three signatures to the Call, and then the dissents by the male heads of families, as being the most natural course, it was quite immaterial whether the dissents or the assents were first collected, the whole was equally part of the same process of ascertaining the state of concurrence by the congregation. The only actual peculiarity in this act of Assembly was, that it adopted a more favourable rule for patrons and presentees, on this subject, than had ever been adopted before, as it proceeded on the assumption that every man who was not prepared to dissent, and to adhere to his dissent on the most solemn declaration of conscientious motives, was to be counted practically as a consenter, by being struck out of the list of dissents. And although it was only mule heads of families who could dissent, the persons who might sign the Call were not limited to that class, but were left on the same footing as before. It was certainly a possible case, in point of mere imagination, that a majority of male heads of families might solemnly dissent, while an actual numerical majority of the congregation had conscientiously signed the Call, but it was a practical impossibility that such a thing should happen; and that was enough for practical legislation. But, independently of this, the subject-matter of the legislation being the Call, and being properly ecclesiastical, the Church was entitled to fix what should be its own test of the sufficiency of the Concurrence, and it had accordingly done so. In the General Assembly, as a supreme judicature, when questions us to the sufficiency of Calls came before them, the same thing might have been effected, by pronouncing a series of decisions, counter to that series rerum judicatarum by which the sufficiency of Calls had been practically undermined. And there were abundant precedents in the history of other Supreme Courts, for a judicature thus retracing its steps, and going back from preceding judgments when satisfied that they had been erroneously pronounced. And considering the popular constitution of the Assembly, the decisions pronounced by it as a Court, had less binding force as precedents, than the decisions of other Supreme Courts. But it had been deemed better, in place of adopting the course now pointed out, for arriving at the end in view, by which it might certainly have been attained, to exercise the legislative powers of the Church, and thereby to prescribe a fixed test or standard for determining the sufficiency of the concurrence by the people in all cases whatsoever. This was all that was done by the “overture and act on Calls;” and it was as clearly within the competency of the Church as any other act or matter ecclesiastical which it had ever passed.

This act alone was enough for the defence of the Presbytery, so that it was quite supererogatory to enquire into the relative Act of Regulations, of June 2, 1834, which was passed for the practical working of the first act. But on examining the Act of Regulations, especially so far as regarded the present case, the objections of the pursuers would be found quite groundless.

(1.) The first act was certainly based on a declaration of the fundamental law of the non-intrusion of any pastor upon a congregation; and if any of the regulations were truly at variance with this law, that would only show that such regulations were not fit for the sole purpose for which they were made, which was to carry the first act into effect, and accordingly that they ought to be still altered by the Church. But there was no relevancy in going into such enquiry in the civil Court. If, however, it was gone into, it would be found that these Regulations were not inconsistent with the fundamental law. In particular, the Regulations 14–17, which prevented the dissent of the people from causing the rejection of a person presented by the Presbytery, were justified by the law and practice of the Church, according to which there always necessarily was an ultimate remedy in the hands of the Church to prevent the scandal of any parish remaining permanently vacant. And it was favourable to the patron, that such right should exist on the part of the Church, because the people would be the more unwilling to act so as to cause the presentation to fall into the hands of the Presbytery, from knowing that their power of absolute disapproval was then at an end, and therefore the people would not exert such power against the patron's presentee, unless in extreme cases. But whether this objection of the pursuers to the Regulations 14–17 were good or bad, it could not touch the merits of the present case.

(2.) The objection that the Regulations limited the right of solemn disapproval to the male heads of families, was already answered. 1

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1 Ante, p, 728.

(3.) The objection that the will of the people was only allowed by the Church itself, on cause shown, was altogether unfounded. The words of the Second Book of Discipline, for example, cap. 3, § 5, “that na person be intrusit in ony of the offices of the kirk, contrar to the will of the congregation,” were conclusive; as “the will” of the congregation, in its natural sense, was different, and contradistinguished, from objections on cause shown. And as it was, at all times of the Church, competent to any one individual, on cause shown, to object to a presentee, it was evident that the regard paid to the will, or Concurrence, of the majority, had reference solely to their inclinations. And this was a rule of much practical utility, when guarded by taking the solemn declaration as to disapproval that it was solely grounded on a conscientious regard to spiritual interests. Because there might be many instances in which the majority of the parish might be perfectly conscious that the presentee was not qualified to minister, to their edification, while yet it might be impossible for them to adduce legal proof of the existence of any one tangible objection. The non-acceptableness to the parish was therefore properly held to be probatio probata that the presentee was not fitted for the cure; and unless it was to be held that the flock existed for the pastor, and not the pastor for the flock, the fact of non-acceptableness was actual unfitness and unmeetness for the parish.

(4.) The objection that the Acts of Assembly did not truly regulate the Call, but reared up a veto, as a distinct and separate matter, novel and unwarrantable, was already answered. 1

(5.) The Church Courts did not delegate any portion of their judicial authority, or surrender any of their proper functions. At all times of the Church, a sufficient assent, or Concurrence by the people, was an essential preliminary before the Church Courts took the presentee farther on trial. The first part of the presentee's trials truly was his preaching before the vacant congregation, and undergoing their judgment, in the shape of Call, or disapproval, as to his fitness for the charge. And although the Church, by the acts in question, had laid down a general rule or test for ascertaining the state of the Concurrence by the parish, and determining whether it was sufficient to warrant them in taking the presentee on trials before them, that was not delegating any one of their proper functions, but merely directing them to be exercised according to a fixed rule. Their functions as Church Courts, taking the presentee on trial as to his doctrine, &c. only began after they had pronounced a deliverance sustaining the Call; and they were still to commence as soon as that stage in the ecclesiastical proceedings was reached.

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1 Ante, p. 727, 728.

(6.) In regard to the allegation that the Act of Assembly interfered with the civil right of the patron so far as it affected the operation of the jus devolutum, and would tend to throw patronage into the hands of the Church, it was not competently raised under the present summons. But if it had been so raised, it would have been quite irrelevant to the present question, as the defenders had not claimed the jus devolutum; and farther, the plea would have been found groundless. The Regulations 15 and 16, affecting the jus devolutum, merely provided in general terms, that it should take place where no presentation was “given within the time limited by law,” to a person from whose settlement the majority did not dissent. If, therefore, the right of dissent was other-: wise illegal, it could not be made illegal by any effect which it produced on the jus devolutum; as it was left open to the patron to make successive presentations “within the time limited by law,” and he did not previously enjoy a longer right than this. In truth, it was only by forgetting the cardinal principle that the right of patronage merely consisted in naming a presentee, to be dealt with according to the laws of the Church, that any apparent plausibility was given to this argument.

(7.) Though the patron's right of presentation was a civil right, the concurrence by the people was not so, but had already been shown to be purely ecclesiastical. It was a mere nick-name to say that this right of the people was, in its nature, that of a veto, or power of rejection, though it might, in a popular sense, be so understood. The Call or Concurrence by the people was the title to the spiritual office of a Christian pastor, as much as the presentation by the patron, was a title to the civil fruits and emoluments of the benefice. The former was as exclusively ecclesiastical as the latter was civil. And it would be at least as correct to describe the patron's right of presentation as a veto on the Call by the people, as it was to describe the right of the people as a veto on the right of presentation by the patron: and, in truth, it had been described in analogous terms by Pardovan as “the patron's pretended privilege of a negative interest in the Call and maintenance of ministers.” The result was that both people and patron possessed an original inherent right, the one ecclesiastical, and the other civil, which must unite in favour of one presentee before he became a fit subject for trial and admission by the Established Church.

(8.) The objection that the Acts of Assembly only authorized the Presbytery “so far” to sustain the presentation, at the stage when they did so, was already considered. 1 The other objections to the phraseology of these acts, merely resulted in this, that there was an innovation on the existing form and practice; a thing which, as matter of fact, was never disputed.

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1 Ante, p. 717.

There was a separate and distinct ground of defence, which alone would suffice for this cause, if it appeared that acceptableness to the congregation was truly one of the “qualities” or “qualifications,” which fairly entered into the question whether a presentee was a “qualified person;” because, then, even on the pursuer's own showing the defenders were acting consistently with their alleged statutory obligation, in rejecting a person who was not acceptable. And when it was considered how frequently the Church had avowed the principle that, in considering the fitness of any individual, regard should be had not merely to his general qualifications for the pastoral office, but his particular meetness and fitness for the particular parish, it was difficult to deny that his acceptableness to the congregation was a material element in deciding as to his fitness to minister successfully among them, for their edification; in attempting which he must greatly fail of success where there was no cordial co-operation between pastor and flock, mutually supporting and encouraging each other. And accordingly, in many instances, a presentee had been rejected as disqualified for one parish, though not generally disqualified; as, for instance, when he did not possess physical strength enough for the parochial duties of an extensive parish; or did not, in the case of a Highland parish, sufficiently know the language of the majority of the congregation; and similar instances. Yet not one of these, or other qualifications, for an individual parish, was more truly important to make a man a “qualified minister” to the effect of usefully performing the office of a Christian Pastor, in such parish, than the qualification of acceptableness to the congregation. And therefore the defence in this case, might, if necessary, have been rested on the single ground that a minister who was declared by the people to be unacceptable to them, was not a “qualified minister or person,” in the sense of the acts founded on by the pursuers.

It only remained 1 to examine the actual conclusions of the summons. The first branch of the first conclusion was to declare the right of the patron, and the validity of the presentation, which had never been disputed. The other conclusions were for declarator that the defenders, as a Presbytery, were bound to take the pursuer Mr Young on trials, and, if found qualified, to receive and admit him as a minister of the Church and Parish; and that the rejection of him, without trial, and because of the dissent by the parishioners, was illegal.

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1 For (the cases referred to, see note, ante, p. 714.

Against these conclusions the first objection was that by the statute 1567, c. 7, which had been already shown to be still in full force, it was provided that where a Superintendent, whose office was now in the Presbytery, “refused to receive and admit the person presented by the patron,” it should be lawful to the patron to appeal to the Synod and General Assembly “by whom the cause being decided shall take end as they decern and declare.” Thus there was a statutory remedy provided for this precise case, and, before it was competent, in any view, to recur to the Supreme Civil Court, on the ground of alleged excess of power or otherwise, committed by an inferior tribunal, it was necessary first to exhaust the remedy of appeal against the judgments of that tribunal, which was provided by the statute. And the statute in question was one, which, if still in force, the pursuers themselves admitted to bestow “the examination and admission of ministers” on the defenders. This principle had been recognised in many analogous cases, such, for example, as where complaints were allowed from Justices of the Peace, in the execution of statutory functions, to the Quarter Sessions, whose judgment was to be final, and even where a bill of suspension of the decree by the Justices, was presented on the ground of excess of power, the Court refused to entertain it, unless the statutory remedy of appeal to the Quarter Sessions was first exhausted. 1

But, separatim, the whole proceedings complained of, were held by the defenders, in matter ecclesiastical, and in the discharge of their ecclesiastical functions as a church court. It was therefore incompetent to subject them to the review of the civil court, because the church courts were not subordinate to the civil, but were equally supreme, within their own province. And as the defenders had shown that their proceedings were warranted by express Acts of Assembly, the principal of which was now a standing law of the church, it was equally clear that the defenders, as a subordinate church court, were bound to obey these, and that, if any just cause of complaint existed against these acts, redress could be found in the legislature alone. A conflict between Supreme Courts was one of the greatest evils to a country; but when it did occur, the legislature alone could arbitrate between them.

The chief ground of defence therefore which was pleaded in this case was an absolute, but respectful, declinature of the jurisdiction of the civil court; though the defenders had also gone on to establish that the recent enactments complained of were clearly within the powers of the Church, at least in all their cardinal provisions, and were truly in accordance with the old established and fundamental principles of the Church.

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1 Mair, June 7, 1822 (ante, I. 473, or, 447, new ed.; Cook, May 17, 1823 (ante, II. 317, or II. 280, new ed.); Campbell, June 28, 1833 (ante, II. 440, or 392, new ed.); Craigie, Feb. 11, 1826 (ante, IV. 447, or 453, new ed.), and June 85, 1827 (II. W. and S. 642.); Alexander, Dec. 2, 18S7 (ante, VII. 117).

But besides these more general grounds of objection, it should be observed that the particular conclusions of this summons exposed them to special objections of an unanswerable sort. These conclusions were not confined, as in previous cases, to matters civil, such as the retention of the stipend, the accruing of the jus devolutum, &c.; they did not even embrace any of these civil conclusions, nor did they ask for a decerniture against the defenders, either to do, or to desist from doing, any thing. The whole conclusions (except the first which had never been disputed) were, to have the ecclesiastical duty, obligations, and functions of the Presbytery, declared by the civil court. To the competency of these conclusions there existed a two-fold objection. First, the pursuers merely sought to have the alleged obligations of the Presbytery declared, in the abstract, without craving decerniture against the Presbytery to implement them. But the pursuers had no interest, and consequently no title to declare these obligations apart from enforcing them; because such abstract declarator did not advance the civil or patrimonial interests of the pursuers, but, at best, could merely serve to gratify their curiosity as to a point of alleged legal difficulty; which was never recognised as an interest sufficient to support an action. But, second, even if decree for implement of the obligations, had been craved against the Presbytery, the civil court could neither pronounce nor enforce such decree. It was as incompetent for the civil court to pronounce an order against any Presbytery, to ordain and admit a minister, upon any terms or under any circumstances whatever, as it would be to decern an ordained minister to administer baptism, or the sacrament of the supper, to a party to whom the minister had refused it; or to any individual, whether it had been refused to him or not. Even assuming that the Church was in error, it was utterly incompetent for the civil court to decern the Church, or her ministers to perform her ecclesiastical functions. In regard to her own internal government and discipline, she acknowledged no temporal Head; and without an absolute surrender of her spiritual independence, such as the Church could not make without a sacrifice of her duty and principles, she could not acknowledge subjection to the orders of the civil court in these respects. And on looking back to past decisions it would be found that the strongest testimonywas thereby given to the incompetency of such conclusions. For, if it was competent to decern a Presbytery, to admit and ordain a minister if found qualified, it must be equally competent to decern them to set aside a settlement where they had inducted one who was not the lawful presentee, and to admit the lawful presentee if found qualified. Yet, even in those cases where it was found that the stipend might be retained, in respect that the Presbytery had inducted a person who was not the lawful presentee, and where, therefore, there was the most urgent reason for setting aside the irregular settlement, and ordaining and inducting the lawful presentee, so as to put an end to the public scandal of there being a parish whose minister was wholly unprovided, and whose stipend was diverted from its appropriate use, no attempt was ever made, or countenanced, for pronouncing any order on the Presbytery whatever. Its distinct jurisdiction in matters ecclesiastical was acknowledged, and it was held to be as incompetent to decern them to perform any of their functions, as it would be to decern the court of a foreign realm to obey a decree pronounced by the Supreme Civil Court of Scotland. Accordingly, in the case of Hay, as collected by Monboddo, the report bore “That there were other two conclusions of the declarator which the Lords would not meddle with. The one was, &c. The other was, that the Presbytery ought to be discharged to moderate in a Call at large, or settle any other man, because that was interfering with the power of ordination, or the internal policy of the Church, with which the Lords thought they had nothing to do.” To the line of demarcation between the civil and ecclesiastical jurisdiction, thus plainly and strongly pointed out, both by precedent, and on authority and principle, the civil court ought now, rigidly to adhere, as it had done in all former times.

It was therefore submitted, on these grounds, first, that the proceedings complained of did not fall within the jurisdiction of the civil court, whose jurisdiction was therefore declined as incompetent; and second, that the whole proceedings were, on their own merits unchallengeable, even if reviewed by a competent tribunal.

The Lord President observed * that the Act of Assembly 1834 was ultra vires of the Church, illegal, and contrary both to the statute law of the land, and to the law of the Church itself. At all times, whether of Popery, Episcopacy, or Presbytery, the Legislature had, by numerous statutes, vindicated its authority over the Church; as in Popish times by 1424, c. 1; 1481, c. 84; 1481, c, 85, &c; and subsequently, by the statute 1567, c. 6, abolishing Popery and establishing the Protestant religion; the statutes 1581, c. 102; 1584, c. 82; 1597, c. 235; 1612, c. 1, and others, besides the various statutes after mentioned.—In every civilized country, there roust be some supereminent Court or Judicature, to control all other courts or judicatures, and prevent the confusion which might otherwise arise from conflicting jurisdictions; such as the Court of Cassation in France, or the Court of King's Bench in England. In various cases where a palpable excess of power was committed, the Court of King's Bench in England had asserted the supremacy of the law even against resolutions or orders of theespective Houses of Lords or Commons.—In Scotland, the Court of Session possessed this supereminent power of control, and had already repeatedly exercised it over Presbyteries when committing any excess of power, or encroaching on civil and patrimonial interests.—In regard to the Acts of Parliament which bore on the connexion between Church and State, it appeared that, by 1567, c. 7, which conferred on the Church the right of examination and admission of ministers, “The presentation of laic patronages” was “always reserved to the just and antient patrons.”—No right of Call, or of dissent of any sort, was recognised as in the people. And the examination, confided to the “Kirk,” was as to qualification in doctrine, and literature, &c. This act was prior to the establishment of Presbytery; and apparently a species of modified Episcopacy, by Superintendents, was then contemplated. The presentation was to be laid before the Superintendent, and if he rejected the presentee, a right of appeal was given to the patron, ending with the General Assembly, who were finally to “decide the cause.” The nature of the constitution of the General Assembly then existing did not clearly appear. But the terms regulating the right of appeal implied that it was only as to the qualification of the presentee, on his examination by the kirk, that the cause was to arise, and that it did not relate to any matter of Call, or dissent, by the congregation, or

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* In consequence of the unprecedented length of the Opinions delivered in this case, the Reporters regret that they are unable to present more than an abridgement of them. The Opinions, as well as the speeches of all the Counsel, are given at full length in the separate Report of this Case published by Charles Robertson, Esq. advocate.

any part of it. And when the jus devolutum accrued under the statute, the presentee of the kirk was required to be a “qualified person,” in the same manner, and on the same footing in all respects, as the presentee of the patron,—This statute was confirmed by 1581, c. 99, but even this last statute was before the establishment of Presbyterian Church government.—The act 1592, v.. 110, ratified the liberties of the Churcb, not, however, as inherent in it by any divine right, but as given and granted by the King and his predecessors, and declared by Acts of Parliament in 1570, c. 08, and since. For it was an error to hold that the Church of Scotland, as a National Church, was without a temporal Head, which Head was Parliament; although, in the proper sense of the word, our Saviour was the Head of the Church of Scotland, as He was also the Head, properly speaking, of every Christian Church—Whatever powers and jurisdiction were claimed for the Church, by the Second Book of Discipline, none were ratified by Parliament except those specially set forth in the act. The act ordained all presentations to be direct to Presbyteries, expressly “providing the foresaid Presbyteries be bound and astricted to receive and admit whatsomever qualified minister, presented by his Majesty, or laic patrons.” Presbyteries were, therefore, bound by this statute, so all-important to the Church, to make examination of a presentee, and to admit him if they found him qualified; and no right of any sort was given to the congregation to interpose between the patron and the Presbytery.—By 1592, c. 117, the patron was empowered “to retain the haill fruits of the benefice in his ain hands,” if the Presbytery refused to admit a qualified presentee. Here again no reference was made to the existence of any right of assent, or dissent, by the people. And as any patron, in asserting his right to the fruits of the benefice, must come to the Civil Court, who could only decide the question by reviewing the proceedings of the Presbytery in rejecting the presentee, the jurisdiction of the Civil Court, in the very matter of the admission of ministers, was rendered both lawful and necessary by the very acts establishing Presbyterian Church government—Passing over the vacillations of the National Church between Presbytery and Episcopacy during the chief part of the 17th century, Presbytery was finally established by 1690, c. 5, The Confession of Faith was then ratified by Parliament; for the Church, as a National Church, could not establish even this, of her own authority. And that Confession acknowledged the obedience of the people to the just and legal authority of the civil magistrate, “from which ecclesiastical persona are not exempted.” From which words themselves, it was manifest that the King, in his courts of justice, had authority to review the proceedings of ecclesiastical courts when exceeding the bounds of ecclesiastical law, and encroaching on civil rights.—By 1690, c. 23, compensation was directed to be paid to patrons, for the rights of patronage thereby abolished. And even then, when the heritors and elders proposed their nominee, it was to the “whole congregation,” and not a mere section of it, that he was proposed; and if there were disapproves, however numerous, among the congregation, they were “to give in their reasons to the effect the affair may be cognosced upon by the Presbytery,” Thus the duty was confided to the Church Courts, of deciding on the objection so stated, and no absolute or arbitrary Veto was allowed to the people. And in regard to royal burghs, it seemed doubtful if any right of disapproval was granted to the people at all.—By 10 Anne, c. IS, passed in 1711, the right of patronage was “restored, settled, and confirmed,” the statute narrating that this was according to the ancient laws and constitution of Scotland, and that great heats and divisions had been occasioned by the act 1690, c. 23, among those who were thereby “authorised to call ministers.” The statute 10 Anne, c. 12, authorised patrons, as formerly, to present a qualified person, and bound Presbyteries, as formerly, to receive and admit the presentee. And this statute gave no more countenance to any right of Call, or of dissent, by the people, than had been done by previous statutes, passed before the abolition of patronage.—The General Assembly had no power to repeal that Act of Parliament; yet the Act of Assembly 1834, if allowed to take effect, would deprive the right of patronage of its efficacy, and entirely take away its patrimonial and commercial value, as a right of property, which was previously very considerable.—Before the Act of Parliament 1649, and relative Directory of the Assembly, there did not appear to be any evidence as to the existence of the Call by the people. The Act of Parliament was rescinded at the Restoration, and the validity of the relative Directory seemed, therefore, to be more than doubtful; but even according to it, when patronage was abolished, the dissentients, though amounting to a majority of the whole congregation, were to state their reasons, and the Presbytery were to judge of these reasons, and disallow them, if founded on causeless prejudice. That was very different from an arbitrary Veto, either by the whole congregation, or by any mere section of it, such as the male heads of families.—In regard to the practice of the Church, proceeding under the statutory law of patronage on the one hand, and the unauthorised and assumed right by the Church, of engrafting on patronage the form of a Call, on the other—it had, for nearly a century, substantially resolved into this, that, as they could not repeal the law of patronage, they necessarily relaxed their own usage as to Calls, and, unless in some very extreme cases, sustained any Call as sufficient, where no relevant objection was stated against the presentee. The practice as to the Call was, therefore, rendered quite nugatory by the authority of the Church itself; and though the Act of Assembly 1834 was of equal authority, so far as the Church was concerned, there was this material difference, that the practice was consistent with the statutory law of the land, and the civil and patrimonial rights of patrons, while the Act of Assembly directly attacked these rights, and flew in the face of the law of the land.—There were numerous decisions, in which, as already noticed, the Court bad held the patron entitled to retain the stipend as in a vacancy; and, before deciding these questions, the Court of Session must have reviewed the procedure of the Church Courts in settling a minister, and decided that the Church Courts had done wrong; vindicating thereby the control of the Civil Court, even in cases purely ecclesiastical, where the Presbytery, in the administration of ecclesiastical law, bad exceeded their powers and trenched on civil rights. The Court of Session had, therefore, the right to enquire and decide whether the Presbytery, in rejecting the presentee, avowedly on the single ground of the Veto, without examination of his qualifications, acted in the proper discharge of their ecclesiastical functions, and did not injure his, or his patron's, civil and patrimonial rights.—In the present instance, no person had been inducted by the Presbytery into the living; but even if there had been, it appeared that such induction ought not to present so great a difficulty in the way of giving redress to the injured presentee, as the Judges of the Court of Session, in former times, would seem to have held. For, although no decree of this Court could revoke or annul the ordination of the minister wrongfully inducted, it did not follow that he must retain the benefice into which he had been illegally admitted. After the Court found that a minister had been wrongfully admitted, they should have ejected him from the benefice, just as they would eject a tenant or any man who, on an illegal title, had got possession of a house or a farm.—While every thing remained open, the Court should interdict the Presbytery from proceeding to admit any other person into this living, so as to prevent farther wrong. And the Court should also find in terms of the declaratory conclusions of the libel.

The Lord President then enumerated these conclusions seriatim, and observed, that the presentation was unquestionably valid; that the Presbytery were bound to take trial of the qualification of the presentee, and, if found qualified, to receive and admit him according to law; and that their rejection of the presentee, without examination, and on the ground of the Veto alone, was most clearly illegal, injurious to the patrimonial rights of the pursuers, and contrary to the provisions of the statutes and laws libelled. His Lordship also observed—“In judging of this question, the expediency or inexpediency of the act must not be allowed to influence our judgment. It has not influenced mine. But it is not possible to shut our eyes to that question. To me, a member and elder of the Church, and for about fifty years a member of the General Assembly, it cannot fail to be most interesting. And, in my decided opinion, the Act of Assembly 1834 was quite uncalled for, in the circumstances of the Church and country, and most inexpedient. If I wanted any confirmation of this my opinion, I find it in the concluding paragraph of the short pamphlet put into our hands, of Sir Henry Moncreiff's History of the Church of Scotland. Would to God we could have that great and good man back again. He was zealous no doubt. But his was not a zeal without knowledge. It was the zeal of a sober mind, and regulated by the soundest discretion. In modern language, he has avowed himself, in the passage I am now to read, to be a conservative in Church legislature.

“His pamphlet concludes thus—‘Amidst all the diversities of opinion, and the division of parties on particular subjects, which appear in the preceding pages, it cannot be denied, by those who are competent to judge on the subject, that the practical effect of the Church Establishment in Scotland, on the general information of the people, on their private morals, and on their religious character, equals, if it does not surpass, whatever can be imputed in the same points, to any other church in the world. This is the most important fact which can he stated, and in comparison with this fact, every other feature in the laws or practice of any ecclesiastical body is equally unimportant and uninteresting.’ ” 1

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1 Sir Henry Moncreiff's “Brief Account of the Constitution of the Established Church of Scotland;” edited by the Hon. Lord Moncreiff, 1833; pp. 99 and 100.

Lord Gillies stated that he entirely concurred in the opinion of the Lord President. Patronage was a well-known, ancient patrimonial right, of great value, protected and secured by statute. It partook, indeed, of the nature of a trust, but the law had adjected to its exercise, certain specific conditions, such as that of requiring that a presentee should be a “qualified person,” and empowering the Church to try and to judge of his qualifications, which conditions, duly enforced, enabled the Church effectually to protect itself against any abuse of the right. But if the Act of Assembly 1834 was valid, the right of patronage became a mere mockery, as the rights of the patron and presentee were liable to he always defeated at the arbitrary will of a third party.—As to the alleged right of Call by the people, its nature, and its history were both obscure; but, at best, it was only the creature of practice, and by the practice of the Church itself, for more than half a century, the Call had been reduced to a mere piece of empty form.

Lord Gillies then observed that the deliverance of the Presbytery, of October 27,1834, as to sustaining the presentation, seemed to be novel and illegal, in being qualified with the words, “in so far” sustain it, &c; and that the rejection of the presentee was defended solely on the ground of the Act 1834, or Veto Act; after which his Lordship stated that there seemed to be “four questions for consideration.

“1. Was this Act ultra vires of the Assembly?

“2. Is the power of the Assembly to make such an act, sanctioned or fortified by pre-existing laws, or general principles of Church law?—I mean principles recognised by statute, or by judgments of Civil Courts. Or, on the contrary, is it not inconsistent with, and a violation of, those laws established by Church and State.

“3. Is the jurisdiction of this Court excluded in such a case? Is there any rule or principle by which the party, against whom (ex concessis) injury is done or threatened, is precluded from obtaining redress, or protection against such injury, from this Court?

“4. Is this summons properly laid for obtaining such protection or redress ?”

In regard to the first question, it should be observed that powers had been claimed for the Church, higher than truly belonged to it. The Church did possess the power or privilege of regulating its doctrine and discipline by its acts and resolutions, to which, in all cases, great respect was due; but the powers of the General Assembly seemed to be correctly defined by Bankton, 1 as being constitutive and not legislative; powers of making by-laws, which were analogous to the powers or privileges of other corporations to make by-laws, and which by-laws were perfectly good, if consistent with the law of the land, and not interfering with civil rights, but otherwise invalid.—The claim of the Church to legislative powers should be the more carefully scrutinized, because, if well founded, the anomalous result would be that the same body possessed both legislative, and supreme judicial power. And that was a body which could pass its laws without the consent and concurrence of the Sovereign, who was nevertheless bound, at his accession, to swear that he would defend the “government, worship, discipline, rights, and privileges of this Church, as established by the laws of this kingdom.” Such an oath the Sovereign might safely take, so far as regarded all laws passed by Parliament, because these could not pass without the express consent of the Sovereign; but it was very different as regarded the Church, if the General Assembly could make laws to which the oath of the Sovereign could be held to refer, though the Sovereign had no voice in consenting to them.—Even if the Veto Act related to matters purely ecclesiastical, still if it injured or annihilated the civil and patrimonial rights of an individual, he surely could not be cut off from redress and protection in the Supreme Civil Court, merely because

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1 4 Bankt. 22, 20 (Vol. II, p. 592).

the act related to matters ecclesiastical, and bore to be only a regulation of Church discipline. Suppose the Assembly were to declare, that if the majority of heads of families lodged dissents against their parish minister, however long he had been settled among them, the Presbytery were instantly to depose or deprive him—the Civil Court would not hesitate to give redress and protection to the person thus attempted to be ejected from his living. And the injury complained of in the present case was almost, or altogether, as great as in the case supposed.—At the date of the Act 1834, the law had become settled by a series rerum judicatarum, pronounced by the Church Courts, that settlements should be sustained without a Call, or at least with only a pro forma Call. 1 It was a principle of great importance, that law became firmly established and acknowledged, when based on a long course of decisions; 2 and in this instance the decisions were the more weighty, because they were agreeable to the civil law. The Assembly had, in truth, dispensed with Calls, of necessity, because the law of the land was in favour of presentations.—It was said that these decisions were of less value, as being pronounced by a majority only, or ruling party, in the Church. If that remark were of any avail, it would equally strike at the Veto Act also, which was passed by the dominant party for the time.—In judging whether the Veto Act was ultra vires of the Church, it was necessary to look at its provisions. It introduced a new element of government into the law of the country, by giving an arbitrary Veto to the majority of heads of families, in matters directly affecting the rights and interests of others. And this Veto was given to parties who had been expressly found to have no title to object to the presentation or settlement. 3 Nothing similar to this power of Veto appeared to be known in history, since the Tribunitian power at Rome. And it was an arbitrary and tyrannical power, which it did not seem beneficial to the moral tone of the country to confer on the people. But farther, the act purported to be passed for carrying into effect the great principle or fundamental law, that no one should be intruded on a congregation contrary to the will of the people. Notwithstanding this, and in direct contradiction to that law, it was provided by the 17th regulation, that so soon as the presentation devolved on the Presbytery, the people should have no Veto against their presentee, and, on the contrary, “the general laws of the Church,” respecting such cases, should apply. Thus the act contained a provision subversive of its alleged fundamental principle, by enabling a Presbytery to make a presentation which was not to be affected by the Veto; and, in doing so, it characterised this proceeding of the Presbytery by the remarkable words, that it was according to “the general laws of the Church.”—The second question above noticed, 4 regarded the effect of former laws in sanctioning or destroying the authority of the Veto Act. The great principle asserted in that act was the non-intrusion of ministers contrary to the will of the people. And it was true that the General Assembly repeatedly made a law, as the defenders would say, or passed a resolution, as should more correctly be said, asserting this principle. But these resolutions wore never

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1 Moncreiff's “Brief Account, &c.” pp. 81 and 84.

2 Blackst. Comm. Introd. § 3, vol. I. pp. 68, 69 (ed. 1787).

3 Kiltarlity. See Baillie and others, Feb. 28, 1822, ante, I. 363; or 340, new ed.

4 Ante, p. 739.

obeyed, and they were known at the time of passing them to be nugatory. 1 Apparently the great principle was first announced in the Second Book of Discipline, c. 12, § 9. And in the passage asserting that principle (§ 10), it was expressly declared that it “cannot stand with patronages and presentations to benefices usit in the Paipe's Kirk.” On resorting to Parliament for its sanction in 1592, the right of patronage was expressly maintained by Parliament, and thereby the great principle was of necessity negatived by Parliament; because a right was recognised and maintained, which the Church had declared to be incompatible with that principle, and destructive of it.

Lord Gillies then adverted to the provision in the Directory 1649, which, even when patronage was actually abolished, recognised no arbitrary Veto as belonging to the people, but, on the contrary, reserved to the Presbytery the power of disregarding dissentients, though composing the majority of the congregation, if their dissent was rested on groundless prejudices. And, again, when patronage was abolished by 1690, c. 23, the disapprovers among the congregation, however numerous, were required “to give in their reasons,” that the Presbytery might judge of them, “by whose determination the calling and entry of a particular minister is to be ordered and concluded.”—The next statute was that of 10 Anne, c. 12, restoring patronage. And thus it appeared that, while nothing occurred in support of the alleged great principle, except the claims in the Second Book of Discipline, and various resolutions of the General Assembly, it was negatived and disallowed by the statute 1592, c. 116, the Directory in 1649, the statute 1690, c. 23, and finally the statute 10 Anne, c. 12.

Lord Gillies then referred to the case of Ashby v. White and others, 2 where a party claimed damages in consequence of his vote at a Parliamentary election, having been illegally rejected, and obtained a verdict for damages, which he carried into full execution, notwithstanding of resolutions by the House of Commons, that the action itself was a contempt of its jurisdiction, and a high breach of privilege, as bringing the right of a voter under another jurisdiction than that of the House of Commons. His Lordship then observed—”The two cases which I have mentioned are apparently questions of privilege. But their application is obvious; for what is this but a question of privilege, as affecting the General Assembly instead of the House of Commons?

“The privilege of the House of Commons, as claimed in those cases, is just analogous to the right or privilege here asserted and claimed by the Assembly in matters ecclesiastical.

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1 Moncreiff's “Brief Account, &c.,” pp. 59, 60.

2 Another illustration was given, the case of Stockdale v. Hansard, involving a question as to publishing by the orders of the House of Commons, what contained libellous matter.

“The return of members, and hence the franchise, or right of voting asserted by Ashby, were called matters of privilege to be judged of by the House exclusively. So the publishing by orders of the House was termed matter of privilege. “This is just analogous to the right or privilege of the Church, as asserted by the defenders, to legislate and adjudicate exclusively, in matters ecclesiastical touching the discipline and government of the Church,—forgetting that such exclusive right may be incompatible with the inherent rights of the subject, to have his civil rights tried, and judged of, by the civil law, and the civil courts, of the country.

“As to the legislative power of the Assembly, its acts are bounded and limited, as are the resolutions of the House of Commons, by the extent to which they go. If confined exclusively to matters purely ecclesiastical, touching the doctrine or discipline of the Church, and that only, they may be good. But if they trench on civil rights, they are ultra vires, and good for nothing; at any rate, they cannot deprive the subject of his right to vindicate his patrimonial interests in the Civil Courts of the country, and to obtain from those Courts that redress and protection which the law of the land affords him.

“The Assembly is entitled to pass resolutions or acts,—for they are substantially the same,—and to such acts or resolutions great respect is due, and all due respect will be paid to them in this Court, so far as they relate to matters purely ecclesiastical. But if they go beyond those legitimate bounds, and trench on civil rights, this Court is not entitled to regard them.

“We cannot reduce such acts or resolutions, but we are entitled, nay, we are bound to disregard them, so far as they are inconsistent with civil law, or interfere with rights protected by that law, which it is our paramount duty to administer.

“The reasoning of the defenders seems this. The General Assembly can legislate in matters ecclesiastical. But any thing which has been the subject of a resolution in the General Assembly is, or becomes, a matter ecclesiastical—and, therefore, the General Assembly can legislate in that matter. Thus it depends entirely on the Assembly itself. It may convert, by a resolution, any affair of State, any question of civil government at home, or even of foreign policy, into a matter ecclesiastical, and legislate accordingly. The fallacy of such reasoning needs not to he exposed.

“True, the defenders do not avow, that their resolutions can convert a civil matter into an ecclesiastical one. But they do say, which comes to the same thing, that a fundamental law, or great principle, may be established by the resolutions of Assembly, and that this being done, the Assembly, thence and therefore, acquires or possesses a power to make any law necessary for carrying into effect such great principle. Their resolutions establish, for there is nothing else to establish it, the great principle, and in virtue of this great principle, their power to make the Veto Act is asserted. Thus it ultimately rests on the resolutions of Assembly.

“On the whole, then, I humbly think, that the alleged fundamental law must be set aside. It is a nonentity, or exists only in words, which were not expected, or truly intended, to produce any practical effect.”

In regard to the Call, Lord Gillies observed that it was the creature of practice, and had by practice been reduced to an empty form for more than half a century $ that the Act of Assembly was, in truth, an abolition of Calls, and a substitution of something else in their place; and that it never appeared to have been requisite for a majority of the parishioners at any period to sign a Call.—The proposition was altogether untenable, that the assent or dissent by the congregation, entered into the question whether the candidate was “qualified” or not, and so fell under the power of the Church, as judging of a candidate's “qualifications.” According to the ordinary meaning of the words “qualified person,” as well as according to the dictates of justice, and the object and intent of the statutes, the qualifications referred to were personal to the candidate, such as his doctrine, literature, &c. And the words wore plainly used in that sense, in 1567, c. 7; 1593, c. 116; 1592, c. 117; 1711, c. 12; 5 G. I. c. 29; the Second Book of Discipline, c. 3, § 4; c. 12, § 3, &c.; and the Directory 1649.—On the whole, therefore, the principles and laws of the Church, both ancient and modern, as sanctioned both by the Church and by the State, were inconsistent with and subversive of the Act of Assembly, 1834.

Lord Gillies farther observed, that, in regard to the third question above noticed, 1 which related to jurisdiction, it was most important; and as the pursuers complained of an injury directly affecting their patrimonial rights, there appeared to be no principle by which the party, so injured, could be debarred from seeking redress or protection from the Civil Court. What was the injury of which the pursuers complained? The presentee had been rejected: the right of the patron to present Young, denied and defeated. The trial and admission of ministers was committed to the Church. It was their right and their duty. That rejection might have happened if the Presbytery had examined or tried Mr Young, and found him not qualified, as they were empowered to do by the law of Church and State:—That would have been a legitimate exercise of their constitutional power. But that they did not do: They rejected Mr Young because the heads of families dissented. They did not do this, in the exercise of their constitutional power to try the qualities of the presentee: On the contrary, they refused to exercise that power committed to them by law. When such power was committed to, or vested by law in any body, it was implied that they must bona fide exercise it. That implication was clear. But it was not left to implication. By the act 1592, the Presbytery was “bound and astricted to receive and admit whatsomever qualified minister” presented by the patron. An obligation of the same nature was imposed on Presbyteries by 1711, c. 12, the existing law; and was the obligation thus imposed upon the Presbytery a civil obligation, or an ecclesiastical one? to be enforced by those on whom it was imposed? Was it conceivable that the Court of Session should not be able to enforce any civil obligation enacted by Act of Parliament? There was no ratio dubitandi as to that. It was in truth absurd to say that Parliament restored patronage, without restoring the means necessary for making it effectual. The Presbytery was bound to receive and admit a qualified minister.—The provision in 1567, c. 7, giving a right of appeal to the patron to the higher Church Courts, when a presentee was rejected, and declaring that the cause should finally end there, did not apply to the present case, where the Church had abdicated their functions, and refused to take the presentee on trial at all. But that statute plainly declared that the examination and admission of ministers was “only in the power of the kirk,” and therefore established a separate ground of illegality against the act 1834, which had delegated to others a power entrusted to the Church alone.

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1 Ante, p. 739.

In regard to the form of the summons, and its conclusions, Lord Gillies observed that the pursuers had a valuable patrimonial interest at stake, and were entitled to insist in them; and that, so far as now insisted in, these conclusions were well founded. After examining the decisions founded on, his Lordship proceeded:—“The decisions establish every point, 1. That the proper parties are here called; 2. That in questions relating to matters ecclesiastical, this Court has jurisdiction to assert and protect civil rights; 3. That those very rights which the pursuers are here vindicating, which rights have already been invaded, and are threatened with further invasion, are just those rights for the assertion and protection of which, your Lordships have in all the cases mentioned, exercised your jurisdiction.

“I am therefore for repelling the defences. Judges, in administering law, have no discretion. In the discharge of this sacred duty we are not to be intimidated or influenced by Acts of Assembly, or by resolutions of either House of Parliament. The first duty to which our oaths hind us, is to administer the law of the land; and from this duty nothing can hinder or deter us, but an Act of Parliament,—an act by which the law itself is changed.

“I am bound to come to this conclusion, but I should come to it with much regret, if I thought that it could be hurtful to the Church of Scotland. I had the honour, for a considerable period, of a seat in the General Assembly, though for several years, I have ceased to be a member of it; and I am still a sincere friend to the Church, and nearly connected with it. My grandfather was a minister of the Church of Scotland; one of his sons after him was also a clergyman, distinguished by his piety, his learning, and his usefulness:—I am proud of such connexions,—they serve to attach me, in every way, and by every tie, to the National Church, of which I have always been a member. As a sincere well-wisher of the Church, I repeat, that I should deeply regret any judgment that might be hurtful to it; but I console myself, by taking an opposite view of the effects which will be produced, if our judgment should be in favour of the pursuers.

“Here I intended to read, but in this I have been anticipated by your Lordship, the concluding passage of Sir Henry Moncreiff's excellent pamphlet, where he states, that the practical effect of the Church Establishment in Scotland, on the information, the morals, and religious character of the people, equals, if it does not surpass, whatever can be imputed, on the same points, to any other Church in the world.

“This was well, and truly said:—It was true at the time;—it is true still;—and, long may it continue to be so. The Church of Scotland is a beautiful and solid fabric:—It rests on durable—on eternal foundations: It has nobly fulfilled, and continues to fulfil, the important purposes for which it was intended; and I, for one, am unwilling to tamper with so fair, and useful an edifice.”

The Lord Justice-Clerk * stated that the defence of the Presbytery was rested on the validity of the Act of Assembly 1834, and it was material to observe, as Lord Gillies had done, that by the emphatic words of 1567, c. 7, which reserved laick patronages, the “examination and admission of ministers” was confided to the Church alone, without the slightest indication of any right of interference from any other quarter.—In regard to the power of election of a minister, claimed in the Second Book of Discipline, cap. 3, § 4 and 5, it was strikingly apparent, on contrasting the terms of that passage, with the terms employed in 1592, c. 116, that the

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* His Lordship was prevented by indisposition from delivering his opinion immediately after the Lord President, on the first day, on which the Lord President and Lord Gillies alone spoke.

power of election was, ex proposito, withheld by Parliament from the Church, when granting the other specified powers contained in that statute, which established the Presbyterian form of Church government. And this view was strengthened by the circumstance that the Church, in 1565, in a message to the Queen, 1 had stated a claim as to the right of collation by the Church, taken in connexion with the right of presentation by the patron, which, in substance, corresponded with what was granted by the two statutes now referred to. And accordingly an obligation was expressly imposed by 1592, c. 116, on Presbyteries “to receive and admit whatsomever qualified minister presented by his Majesty or laick patrons.” And by 1592, c. 117, it was provided, that if a qualified minister was refused admission by the Presbytery, the patron might retain the whole fruits of the benefice in his own hands.

The Lord Justice-Clerk then recapitulated the terms of the Directory of the Assembly, 1645, which allowed the congregation to “show just cause of exception” against a presentee; the Act of Assembly 1649, which was framed at a period when patronage was abolished, and which nevertheless gave power to the Presbytery to disregard the dissent even of a majority, if “grounded upon causeless prejudices;” the terms of 1690, c. 23, which again took away the rights of patrons, and yet directed the “disapprovers,” however numerous, to “give in their reasons,” for the determination of the Presbytery; the act 10 Anne, c. 12, restoring patronage, and re-imposing on Presbyteries the obligation of 1592, c. 116, to admit and receive every qualified presentee; and the statute 5 G. I. c. 29, maintaining and recognising the right of the Church alone to try “the qualities” of any presentee. From all these it appeared to be clear that Presbyteries were bound by statute to admit and receive every “qualified” presentee—that the power of trial of the “qualifications” of the presentee, and the power of admission and examination, were confided to the Church itself alone, by the State; that at no period, even while patronage was abolished, was an arbitrary or absolute Veto allowed to the people; and that such continued to be the state of the law, till the Act of Assembly 1834.

His Lordship then adverted to the Act of Assembly 1736, as having been passed by a predominant party in the Church, with the view of allaying existing heats and animosities, but without any expectation or intention of its being acted upon, and without its having been acted on, in point of fact. 2 It rather appeared that it was from following out the practice in the exercise of its lawful right of collation, that the Church had adopted, for a long period, the use of the written Call, as a necessary proceeding in the Act of Collation, and which was recognised in the Act of Assembly 1782, as an established part of the procedure. But in all questions which had arisen as to the sufficiency of the Call, these were dealt with according to the laws of the Church; and when they were connected with the qualifications and fitness of the presentee for the particular charge to which he was presented, Presbyteries, in the first instance, and afterwards the other Church judicatures, judged of and determined these questions themselves.—The Act of Assembly 1834, and relative Act of Regulations, should be viewed as one whole,

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1 Quoted ante, p. 662.

2 Moncreiff's “Brief Account, &c.” pp. 59, 60,

and any illegality appearing on the face of them was available in the present argument. Prior to the act, it was the duty of the Presbytery to take a presentee on trials, and admit him if found qualified. But that act materially affected the right of both patron and presentee by interposing the Veto of the people as a bar against the Presbytery performing the duty previously incumbent on it, towards both patron and presentee. And it was not by means of establishing any new item of “qualification,” that this was done. The power of Veto had as little to do with mere matter of qualification, as if the enactment had directly been that a presentation should be unavailing, though signed by the patron, unless also countersigned by a majority of male heads of families. And the practical working of the act would be to wrest patronage from the patron, and throw it into the hands of the Church, by the 16th Regulation, which declared that the Presbytery should present, jure devoluto, where no presentation was given within the limited time to a person who passed the ordeal of the Veto. The right of patronage, as under 10 Anne, c. 12, was therefore most materially trenched upon, and in a great measure rendered nugatory by the Act and Regulations 1834; and the enactments as to the devolution of patronage on the Presbytery were of themselves sufficient to show the illegality of the Act and Regulations.—But, farther, these were a violation of the constitution of the Church itself, and were ultra vires of the Church. The right of collation, and the right and duty of examining and admitting ministers after taking trial of their qualifications, had always belonged to the Church alone. But the Act of 1834 amounted to a surrender, by the Church, of the control of these functions into the hands of others, enabling them by an arbitrary Veto to paralyse the Church Courts altogether, and disable them from taking a presentee on trial; which was altogether unwarranted. And it was evidently felt to be a new enactment by which this was done, as the sanction of Presbyteries was required for its validity in terms of the Barrier Act. It was even declared by the new act, as to cases of presentation by the Presbytery jure devoluto, that the act was not to apply, but such cases were to be determined “according to the general laws of the Church applicable to such cases.” These last words actually placed the operation, of the new act in contradistinction with that of the general laws of the Church.—No case had been pointed out in which any Church Court, supreme or inferior, had ever rejected a presentee on account of the arbitrary dissent of a majority of male heads of families. And no authority was referred to as implying the existence of any such law, while the very reverse appeared to have been always the case, and the statement of objections, to be judged of by the Presbytery, was held to have been necessary, in the opinions of men the most eminent for their faithful attachment to the liberties of the Church. 1

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1 Moncreiff's “Brief Account, &c.,” pp. 68, 60, 57, &c.

In regard to the jurisdiction of the Court, the Lord Justice-Clerk observed,—“I have now only to advert in a few words, to the competency of the declaratory conclusion of the present action, and of the right of this Court to give the redress that is there demanded, in reference to the decisions that have been referred to, but into the details of which I have no intention to enter. It has been maintained upon the part of the defenders, that even supposing the Act of the General Assembly 1834 was in reality ultra vires, and had encroached to a certain extent on the right of patronage, it is not for this Court, but the Legislature alone, to apply the remedy. It is obvious, however, that this position would be equally applicable to any legislative act of the Church, however flagrantly destructive it might be of any civil right whatever; and indeed the same view might just as well be taken, with regard to an act of the Church which directly pronounced against the legality of the whole system of lay patronage, and at once declared, that all future vacancies in benefices should be supplied, either by the election of the people themselves, or by the Church itself, as in the exercise of its own right. It cannot surely, however, be maintained, after the series rerum judicatarum that has taken place, that it would be any defence in an action for declaring the utter illegality of such an act, and every thing flowing from it, to state, that what was objected to was a legislative enactment of the Church, and could be altered only by an Act of Parliament. No such doctrine could be listened to for one moment,—all that is necessary to warrant the interference of this Court in any question of this nature, being to show, that a civil right has been affected by that which is in itself, in fact, contrary to law, and still more, if it is likewise contrary to the clear law of the Church itself.

“The exercise of the jurisdiction of this Court in such cases, is far from being any interference with ecclesiastical functions, regulating merely in regard to ecclesiastical rights or privileges, which unquestionably remain under the sole control of the Church itself, in its several judicatories. No right can ever be assumed by this Court of interfering in any way with the Church in the exercise of its proper ecclesiastical functions,—in deciding ecclesiastical causes,—or in legislating in matters purely clerical. But however indisputable the truth of this may be, the jurisdiction of this Court cannot be excluded, in regard to any act or proceeding, which, under the semblance of the performance of an ecclesiastical function, makes a direct encroachment on a civil right that is protected and secured by positive statute. Neither will the right of this Court to give redress he excluded, if, in the performance of a duty in the exercise of which the power of the Church is even exclusive and final, its Courts have deviated from the injunctions of a statute. This was fully exemplified in the case of Corstorphine, 1 and others that have occurred, in regard to the execution of the schoolmasters' act, when this Court decided in the most explicit terms, that Presbyteries could be compelled to perform the duties imposed upon them by the Legislature.”—The Court had repeatedly exercised the power of giving redress, after an induction had been wrongfully given to a party who was not in right of the presentation; and it was a better alternative, to prevent wrong, than to remedy it. In the present instance this was the more important, as it would prevent the evil of a separation between the benefice and the cure, which would follow from any wrongful induction. His Lordship then said, “Upon the whole, it humbly appears to me, for the reasons which I have stated, that the pursuers have established,—1st, That the right of presentation of qualified persons to vacant benefices in the Church of Scotland, whether exercised by the crown, by other lay patrons, or by Presbyteries under the jus devolutum, is, by law, free from all fetter or restriction whatever, except what arises from the Church itself, in the due exercise of its own lawful and undoubted function, of giving collation

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1 Ramsay, March 10, 1812 (F.C).

after examination, as to the qualifications of the persons presented; while the act of the General Assembly and its accompanying regulations of 1834, have operated a manifest encroachment on that right of presentation, by their conferring, before any trial or examination whatever, on a majority of male heads of families of a congregation in communion with the church, an absolute right of Veto and rejection of the presentee, without assigning any reasons. 2d. That that act was an innovation, and contrary to the constitution of the Church itself, and that as being altogether ultra vires of the Church, and against the law of the land, its operation in the rejection of Mr Young, the pursuer, ought to be declared illegal, under the first declaratory conclusion of this summons.

Lord Meadowbank observed that, besides other evils which the Act of Assembly would produce, it would occasion all those attendant on a popular election of the clergy, and would degrade the charactor of the Church. It appeared calculated to produce effects similar to those which Burke had ascribed to a measure adopted in 1790 by the Constituent Assembly of France respecting the Gallican Church, and as to which he had predicted that it would drive out of the clerical profession “all young men of quiet and sober manners, all who could pretend to independence in their function, or their conduct; and that it would throw the whole direction of the public mind upon such matters, into the hands of a licentious, bold, crafty, factious, flattering set of persons, of such conditions and such habits of life as would condescend to make the livings an object of low and illiberal intrigue.”—And the operation of the act 1834 would tend to this result, (to use the words of Stuart in his life of Robertson,) that “if the probationers of the Church were taught to consider their success in obtaining a settlement, as depending on popular assent or rejection, they would be tempted to adopt a manner of preaching more calculated to please the people, than to promote their edification.” Lord Meadowbank added, that considerations of the expediency or inexpediency of the act, were, however, foreign to the judicial determination of the question before the Court, and had been carefully excluded from his mind.

His Lordship then concisely stated the facts, and proceeded to consider the question of jurisdiction. In entering upon this, a short review of the history of the Church, and of the statutes under which it was established was given, the greater part of which is already stated in an earlier portion of this report. In regard to the act 1567, c. 7, his Lordship observed that the “Superintendent,” to whom a presentation was to be directed, might be either a layman or a clergyman, and consequently that it was not then essential in the ceremony of admission, that there should be any thing of a character necessarily spiritual connected with it. But so soon as Presbytery was established, the whole statute fell, except that part of it which declared, 1st, That the examination and admission of ministers should be only in the power of the Kirk; and 2d, That the presentation of lay patronages should always be preserved to the laick patrons.—Until 1592 the Reformed Church had no connexion with the state. The Church courts were of statutory creation. They had special powers conferred upon them, and if they exceeded these, and interfered with temporal rights and temporal concerns, the civil magistrate must have authority to check such usurpation on the part of the ecclesiastical power. Courts of law had vindicated their right so to interfere to repress excess or usurpation on the part of any branch of the Estates of Parliament, as in the cases of Ashby, Burdett, and Stockdale. Similar excesses by Church courts had already been repressed by the Civil court in Scotland. And the excess, or usurpation, in the present case must equally be so. And indeed, the mere admission, that, if the Church courts had committed an excess of power, it could be repressed by the Legislature, was enough to sustain the jurisdiction of the Civil Court in the present question. Because, in the case supposed, if a plain law existed declaring the Act of Assembly illegal, it would be competent for the Civil Court to declare the proceedings of the Church courts, based on that Act of Assembly, to be illegal also. And, although the law was to be gathered from an examination of various statutes, in place of that supposed one, yet if the law, so ascertained, truly was that the Act of Assembly was illegal, the Court had the same jurisdiction to try this and declare it in the actual case before them, as in the supposed case of a statute having been passed on purpose to put down the Act of Assembly, and that statute having been shown by the pursuers to apply to the case in question. It was therefore clearly competent, especially with regard to the Established Church of Scotland, which was the more creature of statute, to restrain the ecclesiastical courts within the true boundaries and limits of the jurisdiction, which, at their establishment, the Legislature had conferred on them. It remained to inquire whether the measure complained of, fell within powers and jurisdictions of the Church or not.—The Second Book of Discipline was never recognised as, of itself, the law of the Church, and, on contrasting it with the statute 1592, c. 116, it clearly appeared that the whole of its clauses, not sanctioned by the Legislature, were rejected by it, and did not form part of the true rights and privileges of the Church.

Lord Meadowbank took a similar view, with that of the preceding Judges, as to 1592, c. 116, and farther observed, in regard to the power of collation thereby conferred upon Presbyteries, that, on examining into the history of collation it appeared to have had then but one meaning, that of serving an edict, notifying to all persons to state objections to a presentee, and if no special and well-grounded objection was made, admitting the presentee. And the ratification of 1567, c. 7, which was contained in that statute (by its ratifying 1581, c. 99), should be read as specially applicable to that portion of 1567, c. 7, which gave the power of examination and admission of ministers to the Church; because the rest of the statute 1567, c. 7, had reference to a pre-existing order of things which was abolished by 1592, c. 116, and accordingly the relative portions of 1567, c. 7, fell also. As the Presbytery had a right to examine into the qualifications of the presentee, it was their duty to take cognizance of any objection stated against the presentee, on serving the edict. But the power of judging of objections was in the Presbyteries alone, who had no right of delegating any part of that duty to any third party whatever. And the exclusion of the congregation from any voice in the choice of a minister, was also confirmed by the terms of the Act of Assembly 1596, directing most careful inquisition and trial to be made by the Church, but not countenancing any interference by the people.—But farther, when the Legislature gave to the Church the power of admitting into benefices, it did not recognise the rite of ordination as an essential part of the process of admission. Collation was exclusively a civil right, equivalent to giving an infeftment in a heritable estate; 1

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1 2 Bankt. 8, 52 (vol. II. p. 20).

and admission into the benefice was contemplated as being given, independently of ordination; leaving, however, to the Church, which possessed the power of ordination, to regulate spiritually as to that right, as it might see cause. And if this view were well founded, it must necessarily follow that the Veto, conferred on the people by the Act of Assembly, was just a power to them to annul an obligation of reception of a presentee, which was civilly and not spiritually imposed on Presbyteries. It was perhaps doubtful whether a qualified presentee, whom the Church refused to ordain, could not perform the clerical functions; but, at any rate, it was impossible to suppose that the Church should absolutely refuse ordination to a qualified person, as that would be a failure to perform a sacred duty required of the Church by its Spiritual Head.—The rights of patronage, prior to the Reformation, were not affectable by the consent, or dissent, of the people; and these were preserved by statute in all their integrity. No Veto for the people could have been claimed recently after the act 1592, c. 116; and nothing had since occurred to authorise its introduction.

Lord Meadowbank considered that little aid was to be derived from examining any subsequent enactments or Acts of Assembly prior to the Revolution; and in commenting on 1690, c. 23, abolishing patronage, his Lordship observed that it was the first statute which could be legitimately referred to as recognising any right of interference on the part of the congregation, a right which the Legislature alone, and not the Church, had a power to confer.—It was also worthy of observation that the very complaints of patronage as a “bondage” under which the land had long “groaned,” such as were made by the rebellious convention in 1649, afforded evidence of the non-existence of any right in the people to interfere with the effect of a presentation, and also of the duty of the Church simply to admit and receive a qualified presentee. Had such right existed in the people, patronage could not have been so described as an abuse or a grievance.

After examining the provisions of 10 Anne, c. 12, Lord Meadowbank observed, “Under all these considerations, I submit it to your Lordships as clear, that the right of patronage, as restored by the statute of the 10th of Queen Anne, was one subject to no control whatsoever, except such control as it was subjected to in Popish and Episcopal times, or under Presbytery as established by the act 1592, c. 116, with the power of examination conferred upon the Church by that part of the statute 1567, c. 7, which did not fall under the virtual repeal by the statute 1592, or the non-renewal of the act 1690, c. 5, as a portion of the said statute 1592, relating to patronage. It seems to me to be as clear as any proposition can possibly be, that the act 1711, having annulled and repealed every thing in the act 1690, c. 23, with respect to the ‘calling of ministers,' which had ‘created heats, and proved inconvenient,' put an end to all power on the part of the Church to confer (had such previously existed), or of any part of congregations to require, the privilege either to consent to, or to negative the right of the presentee.”—In regard to the extreme dissatisfaction which was felt by the country at the statute 10 Anne, c. 12, and the many struggles made for its repeal, these afforded the clearest evidence that there did not exist any legal right on the part of the people to cause a presentation to be rejected, merely because they dissented from it; otherwise there never could have been any occasion for their supposing the operation of the act to be a grievance. And the whole of the more modern practice of the Church, for 80 years prior to 1834, was consistent with the view, that, practically, the people had no right to come between the patron and the Presbytery, unless on cause shown.—It was true that the Church possessed some legislative powers, especially for regulating its own affairs, as specified in the Confession of Faith 1690, yet, being a mere creature of the law, it followed that if these powers were exceeded, the Church, like every other body of temporal creation, must be subject to the control of the civil magistrate.—It appeared that the Act of Assentbly had no sanction from any of the statutes by which the Church was created a branch of the establishment of the realm; nor any support from the customs, usages, and recognised discipline of the Church itself.—In regard to the right of Call, so far as it was ever recognised by the Legislature, or had any authoritative existence, it was abolished by the statute 10 Anne, c. 12, repealing 1690, c. 23.

His Lordship was therefore of opinion that the defences against the declaratory conclusions ought to be repelled.

Lord Mackenzie shortly recapitulated the facts of the case, and observed that he should consider, 1 st, Whether there appeared to have been a wrong done by the Presbytery; and 2d, if so, Whether it could be remedied by the jurisdiction and form of action to which the pursuers had had recourse.

1. Lay patronage was a patrimonial right of naming a person who was by the Church to be admitted to a vacant benefice and office therein. The right of naming or calling an individual, was subject only to this limitation, that the presentation should be made within a certain time, and that the presentee should be a person qualified to hold the office, the choice among the number of qualified persons being entirely in the patron. Such was clearly the nature of patronage before the Reformation;1 and if it ever was such, there was no legal authority for making it otherwise, and mixing the choice, either express or implied, of any other persons, with that of the patron, as necessary to form the title of the particular qualified person having right to claim, from the Church, admission to the office and benefice. The Reformed Church was hostile to lay-patronage altogether; but the Legislature, while conceding the power of examination and admission to the Church by 1567, c. 7, reserved laick patronages to the patrons; and would have stultified itself, if, knowing the aversion of the Church to patronage, it had authorised the Church to reject presentations at its own pleasure, or, which was the same thing, to reject them unless the nomination of the patron was concurred in, expressly or by implication, by the Church itself, or by some body of persons authorised by it for the purpose. And as to the rejection of the presentee by the Superintendent and other ecclesiastical bodies, under that statute, it clearly referred to such rejection proceeding on their exercise of their own function of examination, and deciding, on trial, that the presentee was not qualified. And this view was confirmed by the tenor of 1581, c. 102, which was never repealed.—The right of choosing a presentee, out of the number of qualified persons, being thus left as entire as it had ever been, was equally preserved by 1592, c. 116, which bound Presbyteries “to receive and admit whatsomever qualified minister presented by his Majesty or laick patrons;” and 1592, c. 117, which empowered the patron to retain the whole fruits of the benefice in his own hands, “in case the Presbytery refuse to admit any qualified minister.”—

Balf. p. 501.

Passing to the period of the Revolution, the act 1690, c. 5, restored 1592, c. 116, except that part relating to patronage; and the act 1690, c. 23, abolished patronage, so far as related to the presentation of ministers, and provided that the Protestant heritors and elders of the parish should “name and propose a person to the whole congregation, to he either approven or disapproven by them; and if they disapprove, that the disapproves give in their reasons, to the effect the affair may be cognosced upon by the Presbytery, at whoso judgment, and by whose determination, the calling and entry of a particular minister is to be ordered and concluded.” That statute was repealed by 10 Anne, c. 12, which declared it to be void, so far as related to the presentation of ministers by heritors and others therein mentioned, and fully restored, settled, and confirmed to patrons the right of presentation of ministers to churches, and benefices, and of disposing of vacant stipends for pious uses within the parish. It farther declared, as to a qualified presentee, that “the Presbytery of the respective bounds shall be, and is hereby obliged to receive and admit in the same manner, such qualified person or persons, minister or ministers, as shall be presented by the respective patrons, as the persons or ministers presented before the making of this act, ought to have been admitted.”

Lord Mackenzie then proceeded.—“It has been argued, that these words imply that the presentees of the restored patrons were to come in place of the persons named or proposed by the heritors and elders under the act 1690, c. 23, i.e. that they were, before being admitted to trial, to be subject to the approbation or disapprobation of the congregation, and the conclusive discretion of the Presbytery. But that is agreeable neither to the spirit nor the words of this statute of Queen Anne. The spirit of that statute is to restore the ancient rights of patrons, which certainly would not be done by giving them only a share in the election of ministers, instead of the entire right of choosing them, which they had anciently. Then so far as relates to the presentation of ministers, this statute repeals the act 1690 wholly, which is not consistent with keeping part of it in force. Farther, it orders the presentation to be to the Presbytery, who are bound to receive and admit; whereas, the nomination or proposal by the heritors and elders in 1690, was to the congregation, who had a right of objecting, for reasons assigned, after which the Presbytery were bound to nothing, but were to dispose of the case at their discretion, I think it impossible, therefore, to hold that the act of Queen Anne, intended to place the presentees of the ancient and restored patrons to the Presbytery, merely in the situation of those proposed to the congregation by the heritors and elders. The words of the act, I think, imply that the ‘ministers presented before the making of this act,' who were here in view, were ministers presented by lay patrons to Presbyteries before the passing of this act, which carries matters back to the act 1592. It is therefore hardly necessary to observe, that, even if this statute of Queen Anne had referred to the time immediately before its own date, it must have looked to presentations to Presbyteries under the act 1690, upon which it was the duty of Presbyteries to admit, such as ought to have been admitted, i.e. presentations completed by the approval of the congregation. In short, some interpretation must be received, not inconsistent with an effective obligation on the Presbytery, the main object of the statute. But further, even if the act of Queen Anne had only given to the presentees of the restored patrons a right equal to that of the persons proposed by the heritors and elders, this could never have left them exposed to an absolute Veto on the part of the heads of families, though it might have exposed them to the objections of the congregation, and the judgment of the Presbytery. Indeed I cannot understand how the defenders can possibly plead this construction of the act of Queen Anne; for, under that construction, the mode of admission of ministers was all to stand as regulated by act 1690, c. 23, except that the minister was to be named or proposed by a lay patron, instead of the heritors or elders. What then was this mode as laid down in the act 1690, c. 23? Tim minister is to be proposed to the congregation—they may disapprove, for reasons to be assigned—the Presbytery to judge of those reasons, and conclude the business. Is that the mode followed by the defenders, or ordered by the Act of Assembly? On the contrary, under that act, the presentation is to the Presbytery, not the congregation; the Presbytery do not even refer it to the congregation, but to the male heads of families; and they are called on to disapprove, not on reasons, but without any reasons; nor are the Presbytery to pass judgment on their disapproval, but to hold that disapproval as of itself conclusive. Nothing can be more contrary to the method of the act 1690. If then it he true, that ministers ought still to be admitted as under the act 1690, the defenders have no case whatever. But the idea is inadmissible altogether. I have said what I conceive to be the true meaning of the statute of Queen Anne. Tins statute stands unchanged, and in force at the present day.

“From this deduction of the statutes then, it seems to me, that the duty of the Presbyteries is to sustain presentations by a true lay patron, simply; and if the presentee be qualified, to admit him to the church—i.e. immediately to put him on trial, and admit him, if found qualified, or reject him as unqualified, if he shall on trial be found so. It must follow, that, the Presbytery could not, without violation of the statutory law of Scotland, sustain a presentation only to the effect of enquiring, whether it had the concurrence or dissent of a majority of the male heads of families; and finding it was dissented from by such majority, reject it without any trial of qualification at all.”

Lord Mackenzie farther observed, that, if the proceedings of the defenders were contrary to the law of the land, and, therefore, illegal, they remained illegal, even though warranted by an express Act of Assembly, Such act could neither repeal nor alter the law of the land; and, on the contrary, from the very fact of being opposed to that law, it was as illegal as the law of the land could make it.—There was no sufficient authority for maintaining, as a fundamental principle, that a Call by the people, was legally necessary to the admission of a minister; or that the dissent under the Act of Assembly was equivalent to the refusal of a Call. No statute, no decision, and even no dictum of a writer on law even hinted at any such fundamental principle. Even the First Book of Discipline was far from countenancing the right asserted by the Act of Assembly 1834; though that Book never was sanctioned by the Legislature. And the claims in the Second Book of Discipline, as to a popular or Presbyterial election or calling of ministers, were disallowed by the Legislature, winch, on the contrary, by 1592, c. 116, established patronage, though declared in the Second Book of Discipline to be incompatible with its claims; and, while the statute gave to the Presbytery the full power of collation, it expressly imposed on the Presbytery the duty of receiving any qualified presentee, and said not one word as to popular Call or Veto.—As to the practice of the Church in regard to Calls, its history was not precisely traced. It apparently originated in a retention, under patronage, of a form applicable only to popular election. But the Call, being just the choice of a minister, was, of necessity, in contradiction to patronage, and could not be a practice possessing legal validity, unless it was strong enough to have abrogated, by desuetude, the statutes establishing patronage. That plea, however, was entirely out of the question; and accordingly the practice as to Calls had been such as scarcely to deserve the term of illegality, just because the Call was rendered a shadowy and unsubstantial form, which was reduced by the decisions of the General Assembly, for a long course of years, as nearly as possible to nothing—But besides this, the pursuers had shown that there was a wide difference between the Call, in any view of it that could be taken, and the assent or dissent of the Act of Assembly 1834.—The plea of the defenders, that the Church might state non-disagreeableness to the people as one of the “qualifications” of a minister, was wholly inadmissible. Such a feeling on the part of a congregation might occur, from various causes, although the minister was the most distinguished man in the whole Church. And the Church were barred from adopting such a matter, as part of qualification, by the statutory obligation to admit a qualified person. If the Church declared that the nomination, or concurrence, of somebody else than the patron, was to be held part of the qualifications of the presentee, it was a direct resistance of the law of the country. But the plain truth was, that the Church, by the Act of Assembly 1834, in which they prevented the Veto of the people from affecting the nominee of the Presbytery when presenting jure devoluto, were not fixing qualification, but dividing patronage; and though willing enough that the people should have a share of patronage along with the patron, they allowed the people no such right as to patronage in the hands of the Church.

In regard to the questions of jurisdiction and competency, his Lordship held that Patronage and presentation were patrimonial rights, and, therefore, the declaration of them, as against encroachment, belonged to the Civil Court. In substance, the Presbytery, defenders, claimed the patronage for themselves, because under the Act of Assembly and Regulations the patronage must have now devolved on them, if the presentee was lawfully rejected. And even if they had themselves tendered a renunciation of all claim to the presentation, still the fact would remain that it was claimed by them for a body of men, arbitrarily selected by them, and who had no pretence of right except from them. If, therefore, patronage were a civil and patrimonial right, it must be capable of being vindicated in the Civil Court against parties who, directly for themselves, or indirectly through others, set up by them, claimed the whole, or part of that right. And the same would be the case if the Presbytery were simply repudiating all patronage, or presentation, as unscriptural, and were renouncing all right or claim to fill up the vacant office and benefice; because the question of their right to reject a presentation at pleasure, was Btill a mere civil question of patronage and presentation, and not at all a question of examination or ordination. The Presbytery were the proper party to try this question. The General Assembly need not, and could not, be made a party. But the obligation of sustaining the presentation, and trying, and admitting the presentee if qualified, was laid on the Presbytery; and the jus devolutum would accrue to them if the patron failed duly to present. They were, therefore, the proper defenders, in this question, which was just a question of patronage, and nothing else. There was nothing in the statute 1567, c. 7, which was opposed to this. That statute enacted that the “examination and admission of ministers” should be only in the power of the Church; but it immediately added, “the presentation of laick patronages alwaies reserved to the just and ancient patrones;” plainly showing that the civil right of patronage was to stand good against the Church, and to form the ground of the examination and admission of ministers. And it was in regard to the matter of examination and admission, * their proper and legal function, that the judgment of rejection of a presentee (referred to in the statute) was made subject to appeal to the ecclesiastical superiors of the Superintendent, the person to whom presentations were then addressed. But even if the statute could be otherwise construed as to the jurisdiction conferred on the Church, and if it could be held that the Scottish Parliament, though aware of the hostility of the Church to lay-patronage, had, nevertheless, put it into the power of the Church to abolish patronage at pleasure, or assert conditions which defeated it, still it was very doubtful whether that jurisdiction was revived and extended to Presbyteries by 1592, c. 116, or 10 Anne, c. 12. For, no such provision was mentioned in either of these statutes, while, in both, an express obligation was imposed on Presbyteries to admit and receive the presentee of a lawful patron. Again, although the statute 1592, c, 117, authorised the patron to retain the fruits of the benefice in his own hand, when his presentee was unduly rejected, that remedy was not exclusive of all others. It was an expedient provision, in aid of other remedies; but it was not meant to supersede others. Lord Mackenzie then added—“Accordingly, it is utterly impossible to reconcile any of these views; 1st, of the absolute right or absolute power of the kirk to reject presentations; or, 2d, of the strictest limitation of all redress against any wrong done by the kirk in this respect, to retention of the stipend in pios usus, by the patron; or, 3d, of the incompetency of making the Presbytery parties;—it is, I say, impossible to reconcile any of these, to our practice. For I can see no case where the question truly was one of patronage and presentation, not of examination and qualification, in which the jurisdiction of this Court was not sustained, without any limit. I see a variety of cases in which the Presbytery were parties, defenders or pursuers, in which this Court pronounced judgments not limited to the question of retention of the stipend, and in which these judgments proceeded in circumstances which must have barred all discussion in this Court, if the kirk had possessed the exclusive power or jurisdiction contended for.” After examining the Cases, his Lordship observed—“It seems to me impossible to read these cases, without being satisfied, that in cases, not of examination or ordination, but where the validity of patronage and presentation are in question, it has never been held that there is any absolute right or exclusive jurisdiction in the Church; nor that the proceedings in this Court must be limited precisely to the question of retention of vacant stipends by the patron. And it seems, if possible, still clearer, that no difficulty has ever been held as to admitting the Presbytery, either as pursuers or defenders, in such cases where it was the party by whom

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* His Lordship also remarked, that “in the First Book of Discipline there was no imposition of hands; nor is the word ordination used. There can be no doubt then, what the examination and admission mean which were appropriated to the Superintendents by 1567, c. 7.”

the patron's right, or that of his presentee, was defeated or resisted. It has been said that many of these were competitions for the patronage or presentation. But there could be no such competitions in this Court, if the Presbytery could reject presentations, or admit them by their own uncontrolled authority. I think, therefore, that the present action, as libelled, and in so far as the conclusions are at present insisted on before us, i.e. the first declaratory conclusions, is competent in this Court, and against the Presbytery, as well as in itself well founded.

“A difficulty has been raised respecting the effectiveness of any decree of declarator pronounced by this Court. It has been asked, what is to be done if the Presbytery disregarded it, and adhered to the Act of Assembly in spite of it? I do not think we are bound or entitled to refuse declarator till that question has been precisely answered. It is a question which might equally have been asked in, every case where the Court pronounced a judgment on the matter of patronage or presentation against a Presbytery. It might always have been said, the Court may declare the right of the patron and of course (for the one is the counterpart of the other) may declare the duty of the Presbytery; but what if the Presbytery resist the judgment—can you declare them rebels, and fill the jail with ministers and elders? or will you grant an adjudication in implement, to serve for ordination ? The statutes have not expressly declared this; and I am not prepared to say, that we should sanction it at present, or how, precisely, the duty of the Presbytery, under our decree, is to be enforced. But that creates no difficulty in pronouncing decree of declarator in this case, more than in other cases of patronage, where the Presbytery were parties—no difficulty either in the form of declaring the right of the patron, or, what is in substance identical, though differing in form, in declaring the duty of the Presbytery, corresponding to that right. The one form of judgment, I think, is just as competent as the other. The matter of both forms is identical. If the difficulty of execution bars one, it must equally bar the other, and then there is an end of jurisdiction in this Court in reference to patronage altogether,

“But I cannot conclude without saying, that if nothing could follow on our judgment but the disposal of the stipend, as vacant, I think it quite clear that would support the right of the pursuers to obtain the judgment. It is not certain that the pursuers would not have a direct patrimonial and pecuniary interest in the stipend under it. They desire at least to he heard on that question, and have not been yet heard. But assuming that the stipend must go to the Ministers' Widows' Fund, in that view, I think that the patron, having given to him, by express statute, in support of his right of patronage, the provision that the stipend shall be held as vacant, and go to pious uses, that provision he has right to resist upon, whatever be the pious use. What that shall be, may be matter for the Court to consider. But if he pleads that, this disposal,of the stipend to any pious use, may avail him to obtain execution of the law, I am quite clear he is entitled to have the benefit of it, and so to a declarator forming the ground of it. And after all, why is even this alone to be held an insufficient sanction? It is a suspension of the legal establishment, for a minister of that parish, till the Presbytery shall obey the Law. Is this to have no effect, as a compulsitor on the Church? Will the Church say so? It would be a dangerous plea. It would be a declaration, that the Church, in part at least, discarded establishment, and could do better without it. But the Church will not say so, I am confident; neither will it attempt to contend with the Legislature in this case, more than it has done in other cases, where the judgments of this Court have been fully effectual.”

Lord Medwyn observed, that it was not necessary, in a legal point of view, to go back to an earlier period than the final establishment of the Presbyterian Church at the Revolution. In reference to 1690, c. 23, it was plain that “calling” meant nothing else than what was equivalent to, and substituted for, the presentation by the patron. This was illustrated by the terms of 1693, c. 6, which required the oath of allegiance, and the assurance to be taken, “by all the heritors, voting in the calling of ministers.” It seemed to be of much importance to attend to the form of calling and admitting a minister under this act. 1 On application by the heritors and elders, the Presbytery fixed a day for the election, on which day the minister, who had been appointed to moderate in the election, after sermon and dismissing the congregation, except the electors, opened the meeting of electors with prayer, and thereafter they voted for the person to ho minister. The vote being taken, a Call to the person named was signed, in presence of the Moderator, and that Call was equivalent to a presentation, adapted to the circumstance that the electors were part of the congregation. These proceedings were attested to the Presbytery by the Moderator, and the Presbytery thereon granted their concurrence, if they saw no ground to delay or refuse it. Throughout the procedure, thus far, nothing was said by Pardovan, as to any approval or disapproval by the people. The person called was then taken on trial by the Presbytery, and, if found qualified, his edict was served, after which, if no objections were stated, against the admission of the person called, to the Presbytery when assembled pursuant to the edict, the Presbytery named a day for ordination of the party. As these were the steps of procedure, given by Pardovan, it was probable that they were the best exposition of the enactments of 1690, c. 23. The practice stated was farther illustrated by the recorded proceedings which had taken place in supplying a vacancy in the parishes of Falkirk, Eccles-macben, and Linlithgow, between the years 1694 and 1700. 2 Although, in one of these cases, the parties who presented the Call to the Presbytery for their concurrence, also lodged along with it “a paper called adherence of the heads of families of the said parish to the Call;” yet it rather appeared that the general practice was, that the people were not invited to state any objections until after the Call, which was equivalent to the presentation, had been sustained, and the person called had, on trial, been approved, and his edict had been served. The Presbytery did not appoint one of their number to see the choice of the minister intimated to the congregation, or to moderate in that act, or to collect assents and dissents and report them to the Presbytery. The kirk-session intimated the choice to the congregation. And if any objections were taken, they required to be special, and proved before the Presbytery. A power of arbitrary dissent was neither allowed then, nor at any previous period of the Church. 3 This continued to be the practice of the Church until 10 Anne, c. 12. And it should be observed that the Act of Assembly, 22d May, 1711, prescribing among other

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1 1 Pardovan, 1, 3, et seq.

2 Connell on parishes, Appx. No. 33.

3 Moncreiff's “Brief Account,” &c. p. 35.

questions put to ministers before ordination the following; 1—“Have you used any undue methods, either by yourself or others, in procuring this Call,” had reference to no popular Call, as co-existing with patronage, but solely to the Call by the heritors and elders, and was introduced during the time that patronage was abolished. The statute 10 Anne, c. 12, repealed 1690, c. 23, and restored, settled, and confirmed patronage, obliging Presbyteries “to receive and admit in the same manner, such qualified person, or minister, as shall be presented by the respective patrons, as the persons or ministers presented before the making of this act ought to have been admitted.” According to the just interpretation of these words, the antecedent period referred to, was that in which patronage, and presentation, had formerly existed; that was, a period prior to 1690. This was apparent from the circumstance that the period was described as that in which ministers were “presented,” which term was used in contradistinction to the period in which they were “called;” the former period being prior to 1690, the latter subsequent thereto. And it was farther apparent, because the object of the statute was to restore patrons to their ancient rights which had been taken away by 1690, c. 23, and such restoration could not be effectually made unless by replacing them, and their presentations, as they stood before that act. And so the statute 10 Anne, c. 12, used to be understood even by men of the anti-patronage party. 2 But during the previous periods while patronage subsisted, such a thing as a Call by the people was unheard of. Even if the statute 10 Anne, c. 12, could be construed as merely placing the presentation by the patron, on the same footing with the Call by the heritors and elders under 1690, c. 23, it would afford no warrnt for the Act of Assembly and Regulations 1834, which placed the presentation on a footing essentially different, as had been already pointed out, in previous opinions. In regard to the history of the Call by the congregation, it rather appeared, that, after the statute 1690, c. 23 was repealed, and whilst patrons in general were still unwilling to do what was so unpopular as to give a presentation, the congregations had been allowed, or encouraged, by the Church, to give a Call; * and that practice, though

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1 2 Peterkin's Compend. of Church Laws, p. 176.

2 Crosbie's Thoughts of a Layman, concerning Patronage and Presentations, 1769.

* Note by Lord Medwyn.—“Since this opinion was delivered, ‘The Life of the Rev. Ebenezer Erskine, by D. Eraser, 1831,' has been put into my hands, from which it would appear that I am correct in holding, that a Call in concurrence with a presentation cannot date further back than the act 1712, but that I was perhaps too charitable in supposing that it originated in patrons not using their restored privilege, leaving it to the congregation to elect their pastor. For it appears that from the very first a Call was insisted in by some members of the Church along with a presentation, contrary to the plain meaning of that act, which they chose to consider as illegal; and that, not content with the efforts and petitions of the General Assembly to get it repealed, they chose to resist it and impede its operation as far as they could, by insisting on a proof of the concurrence of the people, which was to be ascertained by a Call. This is too clearly shown in the above work. For, a presentation by the Crown having, on 12th December, 1712, been given in to the Presbytery of Kirkaldy, of which Erskine was a leading member, their views and intentions as to such, were thus expressed at a subsequent meeting:—

“‘ At Dysart, Aug. 13, 1713.

“‘The Presbytery of Kirkaldy taking under serious consideration, that, by the late Act of Parliament restoring patronages, occasion is given to a grievous encroachment upon that comely gospel order of ministerial calls or elections; and lest any countenance we give to presentations in that case he construed as receding from the avowed principles of this church, handed down by our worthy ancestors ever since the Reformation, we do then most cheerfully and with one consent declare, that the relation of pastor and people is plainly founded upon the election, choice, or free consent of a parish thus calling. Next, that the whole extent of patronage power reacheth only the benefice, or legal stipend, without regard to that sacred office. Accordingly, presentations bear no other part in the settlement of a gospel minister, than the private consent of the patron, as heritor or the like, together with his transferring a right to the legal maintenance. And consequential hereto, we do resolve, whatever presentations may offer, to go into no settlement but where the people's freedom of electing their minister is maintained, and made legally and sufficiently evident to us.' (P. 352.) This is a very instructive document, and indicates pretty distinctly the grounds of the resistance to this act, on the strange pretence that patronage did not embrace the right of presentation, except to transfer right to the stipend, and points out the mode adopted for defeating the patron's right by means of a Call by the people, which at no previous period in the history of the Church they had ever enjoyed.”

illegal, or at least wholly superfluous, wherever a presentation was given by a patron, had been allowed afterwards to continue, especially as the Call was rendered, by the decisions of the Assembly, practically inoperative and harmless. And accordingly none of the institutional writers held a Call to be a legal or necessary step in the induction of a person presented by a patron. 1 And in the Dunse case 2 it was observed on the bench that “the moderation of a Call was not prescribed by the law.”—The conduct of the Church in giving annual directions from 1712 till about 1784 to apply to Parliament for a repeal of the law restoring patronage, 3 afforded the strongest evidence that the Church did not possess any power of crippling patronage by means of either a Call or a Veto. In the hope of a change being obtained from Parliament, and of patronage being repealed, the form of a Call was kept up, and, however unsuitable, remained common in practice. And as the rule was clearly avowed, that, in all cases a presentation was “to be made effectual, independent of the merits of the Call or Concurrence,” 4 it would be a gross libel on the Church to interpret its conduct in any other way than that it was satisfied that the law of patronage must receive full effect till altered by the Legislature.—The Church possessed certain legislative powers, and in that respect resembled a corporation or society which could make by-laws for its internal government and regulation. If considered merely as an independent spiritual body, its power was indeed derived from no lower source than that “which gave Christ to be Head over all things to the Church, which is his body.” But the power so possessed was only spiritual, and could not affect civil rights; and when the Church asked establishment and protection from the State, the Legislature was entitled to grant these under such conditions as it saw meet, and the Church, by acceptance of the legislative Establishment, became bound to perform the conditions of it. The question remained whether the Act of Assembly, 1834, was ultra vires of the Church, There were some matters so purely ecclesiastical, that it might not he competent

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1 1 Ersk. 5, 50, Bankt. 8, 68.

2 Feb. 25, 1749 (9913).

3 2 Peterkin's Compend. p. 109 and 121.

4 Moncreiff's “Brief Account,” &c. p. 83. Memoir of Wodrow by Bums, p. 5.

for the Civil Court, but only for the Legislature, to check an excess of power therein; such, for example, as, if the Trinitarian articles should be struck out of the Confession of Faith, and Socinianism substituted. But even in that case, if a professor, elected to a University, scrupled to sign this now Confession, but offered to subscribe the Confession 1690, there was no doubt that the Civil Court would authorize his reception by the University, on signing the Confession 1690; and would do so in a declarator against the Senatus Academicus, by finding that the General Assembly had exceeded their powers, in making an alteration on the Confession of Faith, without the sanction of the State. And so, also, if a presentee received a presentation from a patron, on the express condition of adhering to the Confession 1690, and a Presbytery should require him, in virtue of an Act of Assembly, to sign a new and different Confession, and rejected him for refusing; it would appear that redress might be obtained in the Civil Court, against such invasion of the right of patron and presentee. In both cases, the jurisdiction of the Civil Court to give redress, would necessarily arise, because civil rights had been injured by an excess of power on the part of the Church. But the interposition of a Veto by the people, between the presentation of the patron, and the trials by the Presbytery, was equally ultra vires, and contrary to law, being in the face of the express injunctions of 10 Anne, c. 12, to which the Church was bound to give obedience so long as it was connected with the State. If the Church could pass the act in question, it could equally declare that the arbitrary dissent of a single parishioner, should frustrate a presentation. And the act being thus ultra vires, it was competent to give redress in the Civil Court against injury thereby done to civil rights.—The Church had undoubtedly, at different times, prescribed various qualifications as required by a presentee. Some of these, such as the license, the regulations referring to sufficiency of literature, &c., were plainly useful to the patron, in aiding his choice; and the propriety of others secured them from objection. But if any extravagant and absurd requisite was imposed by the Church, under this head of “qualification,” it would then become competent for the Civil Court to interfere and protect the just and ancient rights of patrons by declaring the illegality of any such encroachment on the right of choice competent to them. 1 The right and the duty of trying the qualifications of a presentee were specially committed to the Church alone, and it was not entitled to devolve on others a power of performing part of these functions, or of forbidding the Church to perform them, and try the presentee. Presbyteries, were the proper judges of the qualifications of a presentee, and not the people, who, when most in need of a pastor, were probably least able to choose one. And, independently of this, the acceptableness of a presentee formed no part of his qualifications. The remarkable fact that the Veto was not to be admissible against the presentee of the Presbytery, acting jure devoluto, was in itself a proof that such Veto did not form any essential step in constituting the pastoral relation. And accordingly the Veto, was entirely a novelty in the law and practice of the Church. The declaration by Act of Assembly, 1782, that moderation in a Call was agreeable to the immemorial and constitutional practice of the Church, appeared to be without sufficient warrant, and to have proceeded from a popular assembly, acting under the influence of temporary excitement. And even if usage had, to any

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1 Ramsay, July 28, 1736. Elchies voce Jurisdiction, No. 2.

extent, sanctioned the Call, usage must also be the measure of its efficacy and operation. And according to the usage of more than half a century prior to 1834, a Call was practically inoperative.

Lord Medwyn then stated, that the various Reformed Churches, while they differed in so many points, all concurred at the era of their Reformation, in retain-ing patronage, and also in giving to the congregation no right to object to a presentee except on cause shown, after the presentation had been sustained by the Church, and the qualifications of the presentee, approved by the Church on trial. Thus patronage was retained, and popular Call or Veto were excluded, in Sweden; 1 in Denmark; 2 in England; in the Protestant States and Cities of Germany; 3 in Geneva; 4 in Zurich; 5 in Berne; in the Protestant portions of Basle, 6 and of Soleure, 6 and of Strasburg; 7 and in the Dutch Calvinistic Church. 8 Even in the Reformed Church of France, as tolerated by the edict of Nantes, which was not an Established Church, and in which patronage did not exist, the nomination of the presentee proceeded from the Church, and the people were called on to state special objections, if any existed, to be disposed of by the consistory. It was, however, a rule in that non-established Church, that although the minister-elect cleared himself of all impeachments, he should not be given as a pastor to the people against their will, nor to the discontentment of the greatest part of them. 9

In Hungary, where the Reformed Church became flourishing and subdivided itself into two classes, neither of which, however, was established, election and ordination proceeded from the Church. In one district, the custom was established in 1576 of inquiring of the people, at the end of the first year, whether they objected to their Minister continuing with them, and, if within a week thereafter the congregation did not enter into an engagement with him, he was to obtain leave from his ecclesiastical superior to remove to another place. But even then the people had not the election of his successor. 10 And although, in a national synod of one of these two Reformed Churches, in 1646, a greater privilege in this respect was allowed to the people, provided their choice was approved by the Church, 11 that did not affect the proposition, that, at the era of their Reformation, all the several Reformed Churches in Christendom retained patronage, and gave no election or Call to the people. If any exception to this existed, it was only to a very limited extent, and under very special circumstances in certain counties of

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1 Gerdes. Hist. Ref. v. III. p. 312, 319; and App. p. 195.

2 Gerdes. v. III. p. 411.

3 Seckendorf de Lutheramismo, Lib. II. § 36, p. 101; and Lib, III. § 75, p. 240; and § 108, p. 447; and § 109, p. 449; and § 119, pp. 533 and 538; and § 120, p. 541; Gerdes. v. II. pp. 187 and 198.

4 Calvini Epist. p. 142. Gaspar. Olev.

5 Sleidani Hist. Ref. p. 57.

6 Coxe's tour in Switzerland, vol. I. pp. 195 and 216.

7 Sleid. Hist. Ref. pp. 116, 241, and 485.

8 Brandt's Hist. of Ref. vol I. pp. 318, 322, and 323; and vol III. p. 12.

9 Bingham, Eccles. Ant. vol. II. p. 801.

10 Lampe, Hist. Eccles, Hung. pp. 123, 295, 299, 564, and 722; Lehmanni Hist. Rel. Evang. in Hung, pp. 24, 25; Townsh. Travels, p. 181; Walsh's Journey from Constantinople, p. 369.

11 Lampe Hist. Eccles, Hung. p. 123.

East Friesland. 1 And so, at the Reformation, the external polity of the Church of Scotland corresponded with that of the other Reformed Churches, in possessing Superintendents, in retaining patronage, and in allowing to the people to object only if any impediment existed to the admission of the minister appointed for them.

On examining the early history of the Reformed Church of Scotland it was plain that a dissent by the people, without showing reasonable cause, was never heard of; * and that, except in matters purely spiritual, no legislative powers, or jurisdiction, independent of the State, were ever claimed for the Church. “And the result of a review of the history of the Church of Scotland (his Lordship observed) is, that during eleven years the election of ministers was by the elders of each congregation,—during twenty-two years by the heritors and elders,—and during all the other of the 274 years by the patron; never by the people, not even the control of a Veto. During the first of these periods, the election is to he intimated to the people for their acquiescence and consent, and if the major part of the congregation dissent, the Presbytery is to judge if the same be on causeless prejudices or not; during the second of these periods, the person named is to be proposed to the whole congregation to be approven or disapproven and if they disapprove they ore to give in their reasons to be cognosced by the Presbytery. But this intimation of the election to the people, or proposal of the person called, for their approbation or disapprobation, was not introduced by the authority of the Church, but of the State; the one by the act 1649, and the other by the act 1690. They rested on these statutes, and derived authority alone from them. Because these regulations could not stand with patronage, and patronage must first be abolished; which could only be by the State, When patrons were restored to their rights, these incompatible interests ceased. The first statute was rescinded, and the other repealed. They were inconsistent with the rights of patrons, and accordingly subsisted only during the abolition of patronage. And it would be singular if the Church, which never attempted of its own authority, even when most paramount, and when patronage existed not, to call for the interference of the people till invited by the service of the edict, should now have the power, and should have had it all along, to legalise not properly a Call by the people, but a power of dissent without assigning any reason, virtually nullifying patronage, although patronage be re-established by law.

“During the time that patronage has existed in the Church of Scotland, and more especially of late years, owing to the increasing liberality of the times, it has been directly checked by civil and ecclesiastical regulations, and indirectly yet powerfully controlled by public opinion; these may not make the system either speculatively or practically perfect (and it is surely difficult to say what should be substituted in its room less liable to abuse), but at least they prevent abuses upon all essential points, and go far to insure a judicious and acceptable appointment.

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1 Brandt's Hist. of Ref. vol. IV. p. 386; Gerdes. Hist. Ref. vol. HI. p. 140.

* Lord Medwyn, remarking that even the earlier history of the Church afforded no countenance to the pleas of the defenders, here entered on a minute examination of the proceedings and practice of the Church from the date of the Reformation, downwards, in regard to the choice and admission of ministers; but this was so full of details as scarcely to be susceptible of abridgement.

During all this long period the rights of the people have been uniform, none could be proposed to them as their minister till he had been pronounced qualified for the work of an Evangelist by the Church to which they belong; and even then they may obtain his rejection, if they shall discover either in his preaching any thing contrary to the doctrines they, as members of the Church, revere; or in his character, any thing contrary to the essential purity with which these doctrines should be adorned, 1 During all this time the people have had the benefit of this fundamental law, as proposed in the Second Book of Discipline, except that the choice of their minister has not been in the Presbytery, but in the patron; the full effect intended for them by the reformers of that day they have always had; but if the declaration implied, that the people were to have any farther interference, and the power, without assigning relevant objections, to forbid the presentee being admitted to his trials by the Presbytery, it cannot be competent for the Church of their own authority to make such a regulation now, since the patronage is not in their own hands, as they proposed should be the case at the time the declaration was made, but has been secured to lay patrons by so many enactments of the Legislature.

“Satisfied that I should be anticipated, with regard to the legal effect of the statutes and the import of the decisions bearing upon this question, by those of the Court who were to precede me in giving their opinions, I willingly left that branch of the discussion in their hands, and have confined myself to a historical inquiry into the practice of the Church as illustrating the subject of patronage and calls. I adopt the reasoning of my Brethren who have preceded me on the legal points of the case, and conclude with stating, that, as to the declaratory conclusions against the Presbytery, I am for repelling the defences, and decerning and declaring in favour of the pursuers.”

Lord Corehouse began by observing that it was necessary to lay aside all considerations as to the expediency or inexpediency of the law of patronage, and the practical advantages or disadvantages which the Act of Assembly, 1834, was calculated to produce. These were considerations for Parliament, and not for Courts of Law. The only effect which could be produced on the mind of any Judge, by the contemplation of the momentous interests involved in a question pending before him, would be to increase his solicitude to decide according to law, which was his whole duty. His Lordship added, “There are two material questions in the cause.

“I. Have the patron of the parish of Auchterarder and his presentee, or has either of them, sustained a civil injury, in consequence of the proceedings of the Presbytery under the Act of Assembly 1834?

“II. If that question be answered in the affirmative, is it competent for this Court to afford them, or either of them, redress?

“With regard to some subordinate points, as to the shape of the summons, and the parties called as defenders, I shall have little to say.

“In considering the first question, there are two postulates which I assume without argument. 1. That patronage is a civil right. By patronage I mean the right of presenting a person, who, if he be qualified in the judgment of the Church, is entitled to be admitted to the benefice, and that, independent of all the accessories of patronage, as a right to free teinds, vacant stipend, a seat in the church, and a burial-place there. The right of presenting alone, which affords honour and

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1 Observations on Patronage and Calls, 1833, p. 16 and 42.

influence, and the privilege of performing an important duty, is prized on that account, and is the subject of commerce, I believe, in every Protestant country. It passes, or may pass, with us by infeftment; it may be disponed gratuitously, or for a price; it may be impignorated, adjudged, evicted, or escheated.

“2. I assume that, by the Act 10th of Anne, cap. 12, patronage is the law of the land, and the law of the Established Church of Scotland, and it cannot be abrogated, altered, or in any shape impaired by any authority, ecclesiastical or civil, the British Legislature excepted.”

Lord Corehouse then proceeded:—The effect of the Act of Assembly 1834, upon the right of presentation, was to reduce it to a mere right by sufferance. An absolute power of defeating the presentation was bestowed on a third party, by whose sufferance alone the right could be effectually exercised. This was in reality no right at all, being virtually the same thing with the right which any man possessed to walk over his neighbour's grounds, or fish in his ponds, so long as his neighbour chose to give him leave, but no longer. But by 10 Anne, c. 12, the right of the patron, so far from being subject to this limitation, was subject to one condition only, that the presentee should be a “qualified person,” which was a matter for the judgment of the Church Courts alone. In the case of a qualified presentee, the statute expressly declared that “the Presbytery shall, and is hereby obliged to receive and admit” him. The principal ground set forward by the defenders, as warranting the General Assembly to pass the act 1834, was the fundamental principle in the polity of the Presbyterian Church, that no person should be admitted to the office of the ministry contrary to the will of the congregation: and that there should be no violent intrusion. That principle was, indeed, stated in the Books which have been called the Standards of the Church; but it was not to be understood or applied as the defenders sought to do. The same principle was fundamental in the Christian Church for above a thousand years before Luther was born. It appeared from numerous authorities, beginning as early as the fifth century, that the election then belonged to the priesthood, and the consent of the people was to be adhibited to it. Plebis 1 non est eligere, sed electioni consentire. And the right of the people to object, was to receive effect, provided always that their objections were well founded. Otherwise the people were to be admonished, and their objections overruled by the Church. Docendus est populas, non sequendus. 2 That Will of the people which was to be respected and considered, as affecting the election of a minister, was their just and rational Will; not a nuda voluntas, or morum arbitrium, but that species of Will which had been well defined by Cicero, after the Stoics, in these terms—”Voluntas est, quæ quid cum ratione desiderat; quæ autem, adversus rationem incitata est vehementius, ea libido est, vol cupiditas effrenata, quæ in omnibus stultis invenitur.” 3 And according to the doctrine which is, or at least was, unquestionably that of the Canon Law, to which Law great weight was due, 4 the objections of the people only received effect when duly substantiated.

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1 Rubric of a Canon in 428; and see again, Rubric of a Canon in 493.—Van Espen, II. t. 9, c, 9.

2 1 Dec. Dist. 63.

3 Tusculan; Question: Lib. IV. De reliquis animi perturbationibus.

4 1 St. l, 14,

The maxim as to non-intrusion was received, in the same just and limited sense, in the Protestant Churches, as appeared from the instances referred to by Lord, Medwyn, and also from the authority of Boehmer, who, in his Jus Parochiale, under the rubric Plebi, competit votum negativum, says, “in omni jure 1 patro-natus, non quidem excluditur consensus populi, sed ita, ut patrono votum deci-sivum in electione; tribuatur, populo negativum ut possint dissentire; non tamen aliter quam si justas dissensus causas allegare queant.” On inquiring in what sense the maxim of non-intrusion was used in the Church of Scotland, it appeared to be employed in the most general and unqualified terms in the First Book of Discipline, cap. 4. But there it was intended that the people should not simply have a negative voice, but the actual right of election in themselves; and so soon as, by their delay, the right of presentation passed into the hands of a third party, the Church, it was laid down in the same Book of Discipline, that if the presentee's doctrine “is wholesome, and if there is nothing reprehensible in his life, doctrine, or utterance, then we judge the Church (congregation), which before was destitute, unreasonable if they refuse him whom the Church did offer; and that they should be compelled, by the censure of the Council and Church, to receive the person appointed and approved by the judgment of the godly and learned.” And this was explicitly declared, in the same chapter, not to be “violent intrusion.” In the Second Book of Discipline, framed in 1587, which also claimed a right of election for the people, the general maxim was again laid down in an unqualified manner, and did not appear to be qualified in any part of the Book. But as to the sense in which it should be understood, authentic evidence was left in the answer, made by the Church in 1596, to King James, who put the express question—“Is nocht the consent of the maist pairt of the flock, and also of the patron, necessar in the election of the pastors?” The answer was—”The electioun of pastors sould be maid be tham wha are pastors and doctors lawfullie called, and wha can try the giftes necessarilie belanging to pastors be the Word of God, and to sic as ar chosine the flok and patron sould giff their consent and protectioun,” And if farther explanation had been required, there seemed no room to doubt that Andrew Melville, who had a large share in composing the Second Book of Discipline, would have answered in the same terms as John Knox, that if the people objected without cause to the presentee so chosen, they should be compelled to acquiesce by the censures of the Church. In 1592, c. 116, called the great Charter of Presbytery, there was nothing to countenance the doctrine that the dissent of the people, though without reasonable cause, should suffice to defeat the patron's presentation. On the contrary, the terms of that statute, already so often referred to, preserving patronage, and obliging Presbyteries to admit and receive a qualified presentee, were directly adverse to such doctrine. In the General Assembly of Divines at Westminster in 1644, the express point was raised, and it was as expressly waived as “it is not fit now to debate such point.” But had it been all along a fundamental law of the Reformed Church, there could have been no room for question or debate. And in 1649, the Scottish General Assembly, after the law of patronage was annulled, gave the initiative election not to the people, but to the Kirk-Session, the lowest Ecclesiastical Court.

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1 Jus Paroch. III. J, 18; and Jus Eccles. Prot. III. 28, § 77 and 78.

Even if a majority of the congregation disapproved of the person so chosen, that disapproval was not of itself fatal. The grounds of it were to be stated and judged of by the Presbytery, and if they held it to be founded on causeless prejudices, they were to disregard it. Where a minority only disapproved, their objections were disregarded unless instantly verified; where the majority disapproved, the course of procedure was suspended until the matter was brought before the Presbytery for consideration. But even at that crisis in the history of the country, the mere arbitrary dissent of a majority, however great, of the whole congregation, did not of itself cause the rejection of the person chosen, but merely raised a question for the Presbytery, as a Church Court, to determine on its merits. By 1690, c. 23, which gave the right of presentation to the heritors and elders, and abolished patronage as it previously stood, it was enacted that those of the congregation who disapproved the person chosen, should “give in their reasons to the effect the affair may be cognosced upon by the Presbytery of the bounds.”

Lord Corehouse then added—“After a careful review of the standards of the Church, the Acts of Parliament, and the Acts of Assembly, I see no evidence that the maxim with regard to violent intrusion, or the necessity of the people's consent, was ever understood in a different sense in Scotland, from that in which it was employed in the canon law, and in the ecclesiastical law of other Protestant countries. The congregation is always to be consulted, and no one is to be intruded in the face of their dissent, provided it be founded on good reasons. But, before the act 1834, this was uniformly the practice of the Church, which gives the people a right of objecting to the presentee; 1st, when the Call is moderated; 2d, by allowing them to present a libel at any time during the course of his trials, charging him with immorality of conduct or unsoundness of doctrine; and, 3dly, after his trials are finished, when, by the service of the edict, all who have any objections are invited to state them without the formality of a libel, though a libel should be incompetent. The voice of the people, therefore, was always heard; and their reasons of dissent, if they had any reasons of dissent, were judged of by the Presbytery.”

Lord Corehouse then proceeded:—The defenders, however, relied on the nature of the Call as being sufficient to warrant the Act of Assembly on which their defence was rested; and it was therefore necessary to examine its nature. The term Call had two significations. According to one sense it was equivalent to a nomination of a presentee, and was avowedly incompatible with the law of patronage. But according to another and a very different sense, it denoted the literæ vocationis of the Continental Protestants, which were sent to the presentee by the people, merely as an invitation, after he had received a presentation from the patron. And in this last sense it was manifestly used in the First Book of Discipline, and in 1592, c, 116. It should be construed in the same sense in 1690, c. 23, and it must be so construed in 10 Anne, c. 12. For a long period after that last statute, the country was in a state of so great excitement, that the law of patronage introduced by it was practically in abeyance. But after the ferment subsided, a series of adjudged cases on the subject of the Call was pronounced by the General Assembly, the Supreme Ecclesiastical Court, which, for a period of 70 years before 1834, decided that the Call was, in substance, only an invitation, which it was desirable that the people should give for the encouragement of their pastor, and which, by usage, they were always asked to give, but which was not part of ordinary vocation, as defined in the First Book of Discipline, or in anywise essential to induction. In numberless cases, Calls were sustained, such as were given to the presentee of the parish of Auchterarder, which Call was signed by three persons; and it was only in that limited sense, that a Call could be reconciled with the existence of a real and efficient right of patronage.—The defenders pleaded, however, that even if the Act of Assembly were not justifiable as a declaratory law, it fell within the legislative powers of the Church, and was therefore valid, though a new enactment. They pleaded that the Church may legislate in spiritual matters without control; that collation was a spiritual matter; and therefore the Church, in requiring acceptableness to the people as the condition of a presentee's induction, were legislating as to the spiritual matter of collation. But although collation was a spiritual matter, so far as concerned the qualifications of the presentee, of which the Church alone could judge, it was a civil matter so far as concerned the patron's right, and the Church had no power to impair that right. And as to the plea that acceptableness formed part of the “qualifications” of a presentee, it was no quality or qualification of his, either absolutely, as connected with the general duties of a pastor, or relatively, as regarded a particular parish. The person possessed of the most eminent qualifications for any given parish, might, either causelessly or from improper causes, be unacceptable to a majority of the congregation. And although the General Assembly had frequently made regulations as to the qualifications of presentees, many of these were borrowed from the Canon Law; and others could not fail to be assented to by patrons from their evident propriety and utility. But it did not follow, that, because some limitations on the right of patronage, generally very proper and useful in themselves, had been assented to by patrons, they were, therefore, bound to submit to a limitation which would, in effect, annihilate their right altogether.—In regard to the clause of 10 Anne, c. 12, already referred 1 to, it was merely a saving of the Church's right of collation, in regard to the manner of admission; and admission was to be made, not according to the practice under 1690, c. 23, but while patronage, such as restored by that act, had been in force as the law of the land.—On all these grounds the act 1834 was ultra vires of the Church. And, indeed, the act itself purported, that the dissent of the people was to vanish before any presentation made by the Presbytery. This was perhaps necessary, to prevent the possibility of a parish remaining vacant for ever; but it very plainly subverted every ground on which the legality of the act had been defended, and showed that a right of presentation by one party was, from the very nature of the thing, incompatible with a right of arbitrary rejection at the pleasure of another. The Legislature had established the one, and it was ultra vires of the Church to destroy it by establishing the other.—As both the pursuers had sustained a civil wrong, by the operation of an illegal act, they were entitled to seek redress in the Court of Session, unless their remedy was cut off by statute or custom. It was not cut off by 1567, 2 c. 7, because the jurisdiction of the Church Courts, which was there declared final, related to questions respecting the qualifications of the presentee, and not, as in the present case, to the effectual exercise of a right of presentation as a civil right. And were it otherwise, the statute would be in desuetude,

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1 Quoted ante, p. 682.

2 Quoted ante, p. 663.

in respect of the long tract of decisions from that of Auchtermuchty in 1735, to that of Unst in 1795, in which the Court of Session tried the legality of presentations when rejected by Presbyteries, declared that the jus devolutum had not accrued, because the Presbytery had illegally failed to induct the lawful presentee; and deprived of the temporalities of the benefice, the person unwarrantably inducted.—The independence of the Church was secured by various statutes, but it was within its own province only that this was recognised. It had no right of “meddling with any thing pertaining to the civil jurisdiction.” It was the duty of the Church to render unto God the things that were God's; it was the duty of the Court to render unto Cæsar the things that were Cæsar's.—It was not difficult to draw the distinction between the ecclesiastical and the civil jurisdiction. Vocation, in the language of John Knox, consisted of election, examination, and admission. Examination and admission belonged to the Church; but as to election, for which presentation should now be read, it belonged to the Civil Court to judge, for example, who had the right of patronage; in what form, and within what time, a presentation was to be given; how it was to be carried into effect; and in what manner unwarrantable attempts to frustrate it were to be counteracted. And so whenever there was a valid presentation before the Presbytery, and they, in prejudice thereof, inducted another than the presentee, it was competent to the Civil Court to suspend a charge for stipend at the instance of the party wrongfully inducted, to declare the right as to the vacant stipend, and to sequestrate the manse and glebe, or find the heritors entitled to dispose of their rents and profits to pious uses until the right presentee was inducted. All this the Civil Court might do, though they could neither reduce the procedure of induction which had taken place, nor suspend the spiritual relation which had been formed, between the person inducted and his flock. And where a Presbytery should refuse to proceed under a lawful presentation, the Civil Court, after declaring the wrong so done, might find that the jus devolutum had not accrued, and might apply all the civil remedies above noticed. In such action (apart from the question with the Collector of the Ministers' Widows' Fund, which was not, hoc statu, before the Court for judgment) the Presbytery were the proper party to be called as defenders. Farther, even supposing that the Civil Court could not rescind the act 1834, because the Church was independent both as a legislative and judicial body, and supposing also, what was more doubtful, that the Court could not even decern the Presbytery to proceed to trial, still it was clear that the Presbytery could be made responsible for all the civil and patrimonial consequences arising from their illegal conduct in the exercise of their ministerial function, and giving obedience to the unwarrantable act which prohibited them to take on trial a Vetoed Presentee. Let it be supposed, for example, that the General Assembly should pass an act declaring patronage to be unscriptural, subversive of the liberties of the Church, and offensive to the people, for all which there might be authorities quoted more direct and explicit than those in regard to non-intrusion. 1 “Now, although this Court would not rescind that act (his Lordship observed) if it were to be passed, I think it impossible to maintain that you would be bound to allow a public statute, the law of the land, and the law of the Established Church, to be violated with impunity,

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1 Pardovan, Book I. t. 1, § 11.

and a man to be deprived of bread, or the prospect of bread, whose only offence was that he had acted under the express sanction of an Act of Parliament, I conceive that your Lordships, in the case supposed, would be entitled and bound to give redress both to the patron and presentee, by holding the Presbytery who acted upon it liable to both, ad id quod interest. I do not think the act which I suppose, would be a greater violation of the 10th of Anne (c. 12), than the existing act 1834. The one does indirectly and per ambages, what the other would do directly and avowedly. There is this difference, however, between them, that the sole reason of rejection in the latter case would be specified and made known to all the world, namely, that the party had been guilty of homologating the law of patronage; whereas under this act it is left to the conjectures of the ignorant, and surmises of the malicious, to say why the Veto has been interposed. A stigma is affixed to an individual, it may be for some mysterious offence, or some extraordinary defect, which is not explained, and which must for ever remain unexplained, and in consequence the character and prospects of an able and worthy man may be blasted while he lives. The rejected of Auchterarder, may be the rejected of every parish in Scotland to whom he is offered.

“But, perhaps, I am now overstepping the limits which I prescribed to myself, in considering how the Act 1834 may work in other cases, instead of how it has worked in the case of the patron of Auchterarder and his presentee. I will therefore add only a few remarks on the shape and conclusion of the summons. I conceive that an action of declarator is the competent and proper form to try the question which has been raised. On this point the case of Unst and other cases quoted at the bar are conclusive, in which this Court sustained its jurisdiction, and decerned in terms of the declaratory conclusions of the libel.

“In some of them also the Presbytery was held to be the proper party, in declaring the wrong which that Court was alleged to have committed, and also, I conceive, as entrusted with the care of the benefice during the vacancy; in others the Presbytery themselves were pursuers.

“With regard to the present summons, I think it is competent for your Lordships to declare, and that you ought to declare, that the Earl of Kinnoull is the undoubted patron of the parish; that the pursuer, Robert Young, was legally presented to the parish; that the Presbytery of Auchterarder was bound to take trial of his qualifications; and that he was illegally rejected on pretence of giving obedience to the act 1834, which it was ultra vires of the General Assembly to pass. With these findings, I am of opinion that the case should be remitted to the Lord Ordinary, to consider the petitory conclusions, and to do as he shall see just. Some of those petitory conclusions are, I think, clearly competent; in particular those which relate to the temporalities of the benefice, in so far as the patron is concerned. On the other hand, I think the conclusion that the presentee should be found entitled to the stipend, manse, and glebe, during the vacancy, is incompetent. He can have no right to the fruits of the benefice until he shall be inducted. If he had inserted a conclusion for damages it might perhaps have been sustained. A conclusion for damages at the instance of the patron might also have been competent. But upon that point, as it is not here, I give no opinion. One of the conclusions is, that the Presbytery should be decerned to take Mr Young on trials. That deserves further consideration. We have interdicted Presbyteries once and again from proceeding to trials, and it seems to follow, a converso, that we can ordain them to proceed. It seems also to follow as a corollary, from the act 10th Anne (c. 12), which establishes a civil right in the patron and presentee, and imposes a civil as well as religious duty on the Presbyteries to make them effectual.

“With regard to the execution competent to enforce our decrees, that point has been exhausted by Lord Mackenzie, and I will add nothing to what he has so admirably stated.”

Lord Fullerton observed, that an objection had been taken before him, as Lord Ordinary in the Outer House, by the defenders, that the pursuers had not the proper title to insist in the pecuniary conclusions of the summons as to stipend, &c.; and that if they had such title, the Presbytery were not the proper party to be called. The pursuers then agreed, apparently in order to relieve the case of these difficulties, to waive, for the time, the pecuniary conclusions; and the case must now be dealt with as if the summons contained the declaratory conclusions, 1 already referred to, and no other. The action, thus limited, was simply declaratory, and did not call on the Court to decern the Presbytery either to do, or to abstain from doing, any thing. Laying aside the right of presentation, which was nut disputed, the action simply went to declare a right, not to stipend, or to any patrimonial or civil benefit, but a right on the part of the presentee to be admitted minister of the gospel in the church of Auchterarder, with the additional conclusions that the Presbytery acted wrong in rejecting him, and were bound to take him on trial, and, if qualified, to admit him. It was therefore not a civil, but an ecclesiastical right which was sought to be declared, as against the party who was alleged to have withheld it. But it did not appear that such an action could he entertained by the Civil Court, It was indeed common in practice, to sustain declarators of civil or secular right, against parties lying, under civil or secular obligation; but this was a declarator of ecclesiastical right, directed solely and substantively against a body of public functionaries, as to a matter properly within their own resort; and as to all matters so within their own resort, they were absolutely independent of the Civil Court.

It was true that patronage was a civil right: but “if it was meant to be inferred (Lord Fullerton added) that, because patronage is a civil right, the various rights created by its exercise are civil rights, the proposition is erroneous, as may be easily seen by considering of what those rights consist. They comprehend, in the first place, a claim to the emoluments of the living—which clearly is a matter of civil right; but further, they give a claim to the important and sacred trust of the cura animarum of the parish; and besides, in this case, as in most cases in Scotland, where the ministerium vagum is not permitted, they include the claim to be ordained minister of the gospel. Now those two latter rights, though arising from the exercise of the civil right of patronage, are unquestionably and exclusively spiritual or ecclesiastical; and the corresponding obligations lying on the functionaries from whom they are sought, are of the same character. But it is these last rights, and these last obligations alone, which are sought to be enforced by the summons as now limited,—the sole object being to declare, that the Presbytery acted illegally in withholding them, and that they are now bound to grant them. The question then is, can these rights be declared against the Presbytery in a civil action? For it will be observed that at present these rights are not stated by way of narrative or subsumption, as forming a link in the chain of reasoning, in support of any pecuniary conclusion. They are directed substantively and exclusively against the Presbytery; and this, in my opinion, can be viewed only as an attempt to review the proceedings of the ecclesiastical body, in a matter strictly within their province, and beyond that of this or any other Civil Court.”

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1 Quoted supra, p. 697.

His Lordship then stated that this did not imply that the Church, however superior, in a spiritual sense, to earthly jurisdiction, was, as an Established Church, independent of the State, or was any thing more than an institution which was the creature of the law of the land. It merely implied, that, according to the policy of the kingdom, a plurality of Supreme Courts was recognised, each independent of the other. Each of the Courts of Session, Justiciary, and Exchequer, was confessedly supreme and independent in its own province; and the Ecclesiastical Judicature was equally supreme and independent in its proper sphere also. If error in judgment was committed by a supreme and independent Court, or if a jarring took place between two such Courts, the remedy lay with the Legislature, and it did not consist in subjecting one of such Courts to the review or control of the other. Ecclesiastical jurisdiction must be kept distinct from civil or secular; and while that distinction existed, it must not be assumed that the control of the one by the other, was demanded by the necessity of the case, and thus, reversing the ancient error, to provide against the possible fallibility of the Church, by the supposed infallibility of the Court of Session, or any other Civil Court.—There was nothing in 1592, c. 116, which affected this question. Suppose that an Act of Parliament Lad passed to regulate the Court of Justiciary, binding and astricting it to do, or to abstain from doing, certain things. It might be that important civil rights depended on obedience to that enactment. But it never could be enforced against the Court of Justiciary, by a declarator in the Court of Session: and as little could the obligation in 1572, c. 116, subject the Church Courts, acting in their own sphere, to the review of the Court of Session. And there was no risk that civil rights could be placed at the discretion of an ecclesiastical jurisdiction. For, whenever a question of civil or patrimonial right arose, the case was necessarily brought within the province of the Civil Courts, who could judge of the legality of the whole proceedings which led to the result complained of, to the effect of giving or withholding the civil redress which was craved. Thus, if the pecuniary conclusions of the present summons had been before the Court, the declaratory conclusions might competently have been gone into, to the effect of explicating the jurisdiction of the Court over the pecuniary conclusions. The legality of the resolutions of a branch of the Legislature,—points of peerage,—questions of ecclesiastical law,—might in this way be all competently brought within the cognizance of the Court. But it would be lather a startling proposition to maintain as an inference, that, in such cases, the Courts of law could entertain actions directly against the public bodies or functionaries, from whose actings the questions had taken their rise, for the purpose of obliging them to do what they had refused to do, or to undo that which they had already done.—As to the possibility that a decree in the declarator for the pursuers, would entitle them to raise other actions against the Presbytery, it was enough to say that until these were before the Court, they could not be made the subject of any judicial opinion. Looking, then, to the naked declaratory conclusions as they stood, they did not appeal * competent in the Civil Court; and none of the cases quoted sufficed to support them, because, in all these cases, the jurisdiction of the Court was necessarily let in, by the existence of a competition of civil or pecuniary rights.

Lord Fullerton then went over the cases, and observed, that, one of them, Dunse, 1 according to the report of Lord Monboddo, was directly against the jurisdiction of the Civil Court; that the leading case, Auchtermuchty, 1 was carefully put on the express principle that it involved a right to stipend, and, therefore, the Court might decide as to the legality of the admission, ad hunc effectum, to determine as to the right of stipend. And, in general, the negative inferences to be drawn from the decisions, very clearly showed the opinion of the Bench and of the Bar to have all along been that no such jurisdiction existed in the Civil Court as the pursuers now maintained, otherwise a remedy must have been sought from it. Nothing could well be conceived more inexpedient and more injurious to the just interests of all parties, than the situation in which matters were left, by the decision of such cases as those of Auchtermuchty, 1 Culross, Lanark, and others:—The patron, left to draw the stipend, to be applied to pious uses,—the incumbent, serving the cure, left unendowed,—and the presentee, whose legal rights were recognised by the judgments, left deprived of the situation and the emoluments to which he was entitled. Such a state of matters could not have been allowed to remain, if it had been supposed that any remedy was possible. But the remedy was easily attainable, according to the principles maintained in the present action. For although a Presbytery might not, perhaps, have thought themselves authorized to recall the ordination of the incumbents who were settled in the different parishes, they unquestionably had the right to recall their settlements as the ministers of those parishes. The commission did so in the case of Auchtermuchty, in regard to the presentee, though that judgment was afterwards reversed by the General Assembly. Now if the Church Courts had the power, as they unquestionably had, to reverse the settlements; and if there had been the slightest notion that, in the exercise of those powers, they could be controlled or dictated to by the Civil Courts, there cannot be a doubt that the attempt would have been made. Every circumstance upon which the jurisdiction could be maintained in the present case, concurred there. There was the violation of the rights of the patron,—the illegality of the settlement of the incumbent,—and the manifest in the patrimonial right of the legal presentee; while the conclusion, nanely, the divestiture of the ncumbent illegally settled, was just as much within the powers of the Church Court, although not more specially limited to their jurisdiction, than their refusal to admit, being the point in dispute in the present proceedings. Upon considering the import, then, of these various cases, while that of Dunse was a case strictly in point, the whole inferences fairly deducible from the others were directly adverse to the competency of the declaratory conclusions, as now insisted in.—The cases of schoolmasters under 43 G. III. c. 54, afforded no countenance to the existence of the jurisdiction of the Court in this case. The appointment or

_________________ Footnote _________________

1 See ante, p. 714, note.

deprivation of a schoolmaster was not properly or intrinsically a matter of ecclesiastical discipline or order; but, from considerations of expediency, a certain jurisdiction, without appeal, was conferred by statute on Presbyteries. The right of appeal was taken away, on certain conditions, express or implied, and there was no incompetency in the Supreme Civil Court setting aside judgments of the Presbytery which had been pronounced in breach of these conditions.—If it were enough to found jurisdiction in the present action, that the procedure complained of was injus ous to the patrimonial rights of property, so equally might the Court be required to review, substantively, and without reference to ulterior conclusions, a sentence of deposition of a clergyman; or a refusal to loose a clergyman from one parish who had received a presentation and Call to another. And it was a case of great hardship, as against the defenders, to require them to defend a law of the Church to which they were bound to yield obedience, under pain of ecclesiastical censure and penalties. They, the members of an independent Court, were called on to defend the legality of their procedure, a course for which there appeared to be no authority in practice. And in this view, the petitory conclusions for the present waived, only served to render the incompetency and uselessness of the declaratory conclusion against the Presbytery more glaring. When the proposition, that the proceedings of the Presbytery were illegal, was put as an element of the argument leading to the proper petitory or pecuniary conclusions against the heritors and the trustees of the Widows' Fund, it was consistent enough. But when the summons was split into two distinct parts, the declaratory conclusions against the Presbytery, and the petitory conclusions against the others, the one part of it was absolutely contradictory to the other. The first declaratory conclusion was, that the rejection by the Presbytery was injurious to the pursuer's patrimonial interests. That being found, what was the result,—that, if the Presbytery continued to refuse to induct the pursuer, he should still have a right to the stipend and whole other emoluments of the living. Now, if this were so, where was the sense of any declaratory conclusion as to illegality against the Presbytery? That point evidently ought to be tried, not in an action against the Presbytery, but between the presentee, the heritors, and the Widows' Fund. The legality of the proceedings might, ad hunc effectum, as in the case of Auchtermuchty, be questioned in that discussion; but that afforded no ground for a special declaratory conclusion against the Presbytery as parties. Nay, it was absolutely fatal to any such conclusion. For, that conclusion was bottomed on the subsumption, that the rejection was prejudicial to the patrimonial interests of the pursuer; while the pecuniary conclusion was, that his patrimonial interests were no way affected by the judgments of the Presbytery, as he claimed right independently together, or rather in defiance of that judgment, to the full emoluments of the benefice.—According to these views, the declaratory conclusions against the Presbytery ought to be dismissed, reserving to the pursuers the right to question the legality of the procedure, ad hunc effectum, that was, in discussing the pecuniary conclusions of this or any other summons by the pursuers. But as the majority of the Court were of a different opinion on this point, it was necessary to go into the merits of the cause.—It was clear that the proceedings of the Presbytery were legal, according to the law of the Church. They were agreeable to enactments passed by the General Assembly in its legislative capacity, and they were warranted by the order of the General Assembly, given in its judicial character, disposing of an appeal, on 30th May, 1835, and “remitting to the Presbytery to proceed farther in the matter, in terms of the interimacts of the last Assembly.” But the question remained, whether the proceedings were illegal, as being an infringement of the civil rights of the patron and presentee. In disposing of this question, it was not necessary to enter into the general merits of the Act of Assembly, and relative Regulations; it was the special procedure of the Presbytery with reference to this case, and this summons, which alone required to be considered.

Lord Fullerton then recapitulated the proceedings, observing that the Presbytery had sustained the presentation, to the effect of appointing the Call to be moderated in, which was as far as any presentation was ever sustained. On looking to the terms of the Regulations of the Assembly, along with the judgment pronounced by the Presbytery, that judgment appeared to be merely a rejection of the presentee in respect that he had not a Call, of the kind declared to be indispensable by the law of the Church. By the 12th Regulation, the Presbytery were to sustain the; Call, unless a majority, there specified, dissented; and by the 14th Regulation, if a majority dissented, the Presbytery were to reject the presentee, evidently in respect that the Call was insufficient. And there was nothing in this, inconsistent with the nature of a Call, at least, as importing a limitation of the rights of the patron. The effect of the regulations in this case was, that the Call, signed by only three parties out of 330 heads of families, was not in itself held bad, but required an express dissent of a majority of those parties to make it so. These enactments, then, seemed, if any thing, rather favourable than otherwise to the patron and presentee, inasmuch as they assumed, that, in the matter of a Call, silence should import consent, and enacted that the presumption of such tacit consent could be excluded only by the expression of dissent.—The nature of the illegality, charged against the Presbytery, was not that they had required a Call of a higher sort than the law and practice of the Church warranted, and that they ought to have sustained, as sufficient, the Call which the presentee received; but, that they had required a Call at all, or had paid any regard to the consent or concurrence of the people, as affecting, or entitled to affect, their proceedings in trying and admitting the presentee. For, if any Call whatever was allowed to be indispensable, the absence of it would be neither more nor less than a silent Veto on the presentee; and accordingly, in reference to the summons, and pleas in law, it was clearly set forth by the pursuers, that no Call whatever was necessary; that the demand of any Call or Concurrence was illegal; and that the presentee should be taken on trial without any Call or Concurrence, even of the smallest portion of the parishioners. And, indeed, if the pursuers did not go that length, they Would be just maintaining that a Call had been rejected which ought to have been sustained, which was a question exclusively for the ecclesiastical courts,—In disposing of the question raised in this action, it should be kept in view that patronage was not an absolute but a qualified right; a right to nominate certainly not for the benefit of the patron, nor for the benefit, exclusively, of the presentee;—A third party, the parish, having evidently the deepest interest of the whole three. In so far as the patron is concerned, it was more of the nature of a right to execute a trust, than the exercise of a discretionary power for his own advantage; and in the execution of that trust, it was undeniable that, to a certain extent, the Church Courts, as the guardian of the other interests were associated with the patron.—It was difficult to draw the line so as to discriminate exactly between the rights of the patron, and of the Church, both associated together in the process of filling the vacant Church. On the one hand, the statute 1567, c. 7, was not conclusive for the defenders, as it seemed to refer to questions as to the qualifications, properly so called, of the presentee, in giving finality of jurisdiction to the ecclesiastical courts; and various decisions had been pronounced which were incompatible with the finality of its jurisdiction to any greater extent. On the other hand, the statute 1592, c. 116, was not conclusive for the pursuers, on several accounts, which, however, required less attention, as the obligation thereby imposed on Presbyteries to admit qualified ministers was now superseded by the provision on that subject, already quoted, 1 of 10 Anne, c. 12. By that provision, Presbyteries were directed to admit, and receive qualified presentees “in the same manner,”—“as the persons or ministers presented before the maiking of this act ought to have been admitted.” The same statuie described the nomination by heritors and elders under 1690, c. 23, as a right of presentation. The persons presented “before the making of the act” 10 Anne, c. 12, were, therefore, the persons nominated by the heritors and elders, who were subject to approval or disapproval by the people, in terms already quoted. 2 And as the act 1690, c. 23, was only repealed so far as related to presentations by heritors and elders, it seemed that, under 10 Anne, c. 12, the presentee of a patron required to be admitted only as a presentee before the making of the act, that is, a presentee under 1690, c. 23, would have been admitted, and, therefore, subject to approval or disapproval by the people as there specified. But it was perhaps less necessary to dwell on this construction, as it did not seem to have been generally received by the country at the time, nor was it pressed by either party in the pleadings, who seemed to consider that presentations prior to 1690, c. 23, were referred to. Even according to this last construction, however, the statute made a reference to usage, and if it could be shown that, from 1592, downwards, there was required, in addition to the presentation, a Call or Concurrence of the people, always judged of by the ecclesiastical courts, there would be an end of the question. But there was little evdence on the subject prior to the act 10 Anne, c. 12; and there were but few antecedent periods at which the practice could be referred to, as it was only from 1532 to 1612, and from 1637 to 1649, that lay-patronage and Presbytery had co-existed. It was true that the Church of Scotland, from its earliest establishment, refused to sanction the intrusion of ministers against the will of the congregation, and there seemed little room to doubt that, in the periods above mentioned, full effect was given to these pretensions of the Church; but still there was no sufficient evidence as to what was the practical adjustment which took place between the right of presentation, and the maxim of non-intrusion.—But in construing the 10 Anne, c. 12, matters were it now on the same footing as when it was newly passed. The usage of upwards of century had since followed on it; and every form adopted by the ecclesiastical courts, and invariably acted on and recognised by patrons since, must now, whether abridging the right of patrons or not, be considered s binding and effectual, as if it expressly formed part of the statute itself. Now it was ascnrained by the constant practice of the Church ever since 10 Anne, c. 12, that a Call, or scme kind of Concurrence by

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1 See ante, p. 682.

2 Ante, pp. 678,679.

the parish, was of indispensable necessity, and that the Church had exclusive power to judge without appeal, of such Call or Concurrence. And this usage consisted of a series of acts of the ecclesiastical courts, exercised in the face of the public, and recognised and yielded to by every patron; so much so, that, according to the uniform practice, a Call in this very case was signed by one of the pursuers, and was accepted by the other.—It appeared that, at first, Presbyteries had sometimes moderated in a Call at large, and settled the party whose Call appeared to them to be preferable, without regard to the presentation by the patron. And this practice was illegal, being a breach of 10 Anne, c, IS. But this practice was afterwards checked, and between 1730 and 1749, the General Assembly, in various appeals, enjoined the moderation of a Call to the presentee alone, and directed no other person to be “on the leet.” And so the matter had stood ever since; there being invariably a Call, though limited to the presentee. And whether the Call had originally a signification equivalent to the election of a Minister, or only to an invitation and encouragement, was of little moment, because it was equally true, in either case, that the Call or invitation, concurred in to the extent which the Church considered requisite, was, in practice, indispensable to the settlement. The abridgement or index of the procedure of the General Assembly abounded, throughout, with evidence that the Call was always so held and dealt with. 1 And as all the Churches of Scotland were patronate, and many instances occurred in which Calls were rejected as insufficient, the presumption was, that such rejections were pronounced against parties holding presentations, and no sufficient evidence bad been adduced to rebut that presumption. In the case of St Ninians, the patron of the parish was an appellant, supporting his presentee, when the sentence of the Presbytery was affirmed, which found that thesettlement could not be proceeded with, in respect “there was no sufficient Call before them.” Ultimately a more sufficient Call, or Concurrence, was obtained in this case, and, on that ground, in 1770, the settlement of the presentee was ordered by the Assembly—These cases were conclusive as to the practice of the Church in the admission of ministers, forming, by force of usage to which patrons and presentees were parties, part of the law of the land. And although some of them showed that mutual dealings and compromises took place between the patron and the congregation, that arose in consequence of the existence of legal rights on both sides, which required to be accommodated by some mutual concession. But though a patron could always have retained the stipend where a Presbytery bad illegally refused to admit, no such attempt was ever made in respect of any rejection of a presentee on account of an insufficient Call.—It was true that, since 1770, or perhaps an earlier date, the practice of the General Assembly bad gradually become more lax in regard to what should be held a sufficient Call; but on carefully considering this practice, it did not seem sufficient to take off the effect of the previously established practice, and the rights implied therein. It was not lightly to be presumed that any tribunal, even less ambulatory than the General Assembly, had, by a series rerum judicatarum, fixed the law so as to surrender a right, previously appearing to exist in that tribunal. And this was particularly true in this question. Each particular case as to the

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1 In addition to the cases already quoted, his Lordship adverted to Biggar, 1751, 1752, and 1754; Glendovan, 1768; and St Ninians, 1768.

Call was judged of on its own circumstances. Although a Call, with a very small number of signatures, was sustained, in any given instance, it did not follow, that that was a declaration that every Call was necessarily good, if it contained as many signatures. The opponents of the presentee, in the supposed instance, might have been found to be actuated by unworthy motives; the few who signed might be of great weight in point of character; or various circumstances might affect any particular case. So that, though a judgment sustaining a Call by a few parishioners was a judgment finding that a Call was not necessarily bad, if it had so few subscribers, it did not import that every Call was necessarily good which contained the same number. And it should not be laid out of view, that, in many instances, the sentences of the General Assembly, sustaining Calls, were reversals of sentences of the inferior courts, and were pronounced by the Assembly when under the leadership of men, who, however eminent, were disposed to exercise the discretionary power of the Church in relaxing strictness as to Calls, because they thereby acquired a facility in augmenting the numbers of those who were attached to their own party in the Church. Besides this, in every such case, the Call was dealt with by all parties, not as a mere form which could be dispensed with, but as an indispensable form which must be complied with; and the whole question raised was, whether it had been duly complied with or not. In addition to this, the express declaration of the Assembly 1782, 1 and the solemn questions addressed to every minister at his ordination, 2 conclusively showed that the Call was not only uniformly required by the Church Courts as an indispensable part of the procedure in the admission of a minister, but was embodied in the most solemn part of the ceremony by which the admission was completed. It, therefore, appeared that the requisite of some Concurrence on the part of the parish, the sufficiency of which was to be judged exclusively by the Church Courts, was, by law, part of that form of the admission of ministers, according to which alone, Presbyteries were bound to admit the presentees of patrons.—If the Church Courts, and the General Assembly, had power to determine judicially, in each case, what Concurrence should constitute a sufficient Call, as seemed to be indisputable, it appeared clearly competent for the General Assembly, which possessed legislative powers in matters properly ecclesiastical, like the Call, to lay down, prospectively, a rule for all cases, as to the Concurrence requisite for a sufficient Call. With the mere expediency of the rule, the Civil Courts had nothing to do. It was enough that it did not appear to be ultra vires; and looking at the nature of the Regulations enacted by the General Assembly, as enforced in this particular case, they appeared to be clearly within the powers which the Church Courts might have judicially exercised, and of which the General Assembly, therefore, might, in their legislative capacity, prospectively regulate the exercise. If so, no difficulty could arise from the circumstance that the Presbytery simply obeyed the Act of Assembly without exercising any farther judicial discretion on the Call held by the presentee.—This did not ascribe to the General Assembly any higher legislative powers than they were generally and justly understood to possess in ecclesiastical matters. They were entitled to lay down regulations as to the Call, provided these were made bona fide, and were consistent with that form, and with

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1 Quoted ante, p. 684.

2 Quoted ante, p. 684.

the object which it was intended to answer. If that power was abused, and a covert attempt was made to defeat per ambages the just rights of patrons under the disguise of regulating the Call, by requiring conditions palpably inconsistent with the object for which their powers as to the Call were vested in them, a case might indeed arise justifying the Civil Court in disregarding these enactments. But no such case was now before the Court. It had been said that this was a question not of the legality of the Call, but of the Veto; but the Veto, or dissent, was just one element to be computed in estimating the Call or Concurrence; and the grounds on which the Veto had been challenged, would equally apply to every rejection on account of the insufficiency of the Call. And indeed the summons, in any view, appeared, if sustained, necessarily to lead to this result, that, the presentee was entitled to be taken on trial, and admitted as minister, without any Call whatever; a result which was not well founded in law.

His Lordship added—“Before concluding, I may be permitted shortly to notice a matter, which, though not entering strictly speaking into the law of the case, has been employed as a kind of argumentum ad absurdum, against the view which I am inclined to take of this case. It has been said that, if the Call, as regulated by the Acts of the General Assembly, stands good, patronage must in future be a mockery and must substantially be extinguished. I think this is no more true, than the counter proposition asserted by those opposed to patronage, that such a right in the hands of a private party is necessarily destructive of all beneficial influence on the part of the parish, in the appointment of their pastor. I do not see the absolute incompatibility of the one existing in combination with the other. With great submission, it appears to me, that both of the parties who maintain those extreme views, assume that fallacious principle, which is sometimes laid down by certain speculators, in reasoning against the possibility of mixed or balanced governments, that, in the case of co-ordinate powers, the substantial exercise of the one is, necessarily, fatal to that of the other. it would be much nearer the truth to say, that there is no power which is not, one way or other, modified, and controlled by opposition; and that the whole system of government—of political administration—and of private business, is composed of a balancing of opposing influences, and a constant adjustment of seemingly adverse pretensions;—the practical effect of which, in general, is not felt as an impediment, but, on the contrary, is highly beneficial in the conduct of affairs. The result is, not absolute opposition, but compromise; and, like that arising from the composition of different forces, the course is, in general, one not in the exact direction, indeed, of either, but partaking of the tendency of both, and terminating in a point more happily placed, than that to which either acting separately would have led. Even considering the objectionable regulation here as a Veto, we surely can be at no loss, in this country, for instances to show, that a Veto does not, necessarily, lead to the extinction of those powers against which it may possibly be exercised. On the contrary, the conviction of the existence of such a check, only serves to guide the exercise of the powers, against which it may operate, in such a way as to render the actual exercise of it unnecessary. I see no improbability in the supposition, that it might have so acted in the present case. I do not know any class of persons to whose prudence, discretion, and conscientiousness, such a check could have been more safely intrusted than the heads of families in full communion with the Church. I should have hoped that this check would not, in such hands, have been perverted into an instrument for defeating the right of selection legally vested in patrons. It might indeed have narrowed their range of selection; but it would have done so on the most honourable principle, and to the most beneficial effect—by raising the standard according to which they tried the merits of the candidates for their favour; and might thus, without destroying the right of patronage, have only tended to enlighten and purify the spirit in which that important right was to be exercised. And these are not merely empty speculations, for I understand from authority, on which I can place the most perfect reliance, that, though in some cases, and those of course attracting the greatest share of public attention, heats and differences have arisen in the settlementof presentees, the vast and overwhelming majority of settlements have been perfectly quiet and highly satisfactory. Patronage has not been extinguished; it has been exercised, and the mode of its exercise has been such as to place the right on the best of all possible grounds, the conviction of its utility on the part of those mainly interested—a ground much more likely to secure its efficacy and permanence than the most authoritative announcement of the legal rights of patrons.

“I am certainly far from imputing any blame to the pursuers of this action, for the assertion of those claims which, I have no doubt, they conscientiously believe to be just,—a belief in which they are sanctioned by the opinion of a majority of the Court. But, holding the opinion which I do of the probable consequences of the regulations of the Assembly, contrasted with those which are now likely to follow, I cannot help expressing my deep regret that objects so highly desirable as the peaceable settlement of ministers, and the harmony between the Civil and the Ecclesiastical Courts, should have been disturbed, or even endangered, by the thorny, the hazardous, and the most inflammatory questions, which have been inevitably raised in this action.”

Lord Moncreiff observed that this was a very uncommon case, and might be said to be absolutely without precedent in the records of this Court. It raised in every view questions of the greatest importance: but, in the way it had been pleaded, those questions of jurisdiction, competency, and relevancy, which were necessarily raised by the summons and defences, had been rendered of tenfold more vital and momentous interest. For it did appear that the various and contradictory theories to which the counsel of the pursuers had found it necessary to resort, in order to sustain so singular an action, would, if they bad really any solid foundation, go far to annihilate all the substance of the fabric of the Church of Scotland, and all that had hitherto endeared it to the affections, and drawn to it the grateful respect and veneration, of the people of this land.—It was admitted that the Civil Court was not the place for discussing the policy or expediency of the Act of Assembly 1834. But, besides that, if a constitutional question was raised, which was strictly in ecclesiastical law, it was quite foreign to the jurisdiction of the Civil Court. If the Church Courts were acting within their own competency, no argument against the Constitutional accuracy of the measure adopted by them, could be raised in the Civil Court.—It should be carefully kept in view, that though patronage might be the subject of gift, or sale, yet the patron had no property in the fruits of the benefice, and could not legally derive the smallest fragment of personal benefit from any exercise of the right of presentation. And as it would not be for the interest of the Church or the country, that patronage should be abolished, it was always to be regretted when it was spoken of as a mere subject of patrimonial value. It was but a trust in the person of the patron—a trust the most sacred and solemn with which a human being could he invested—a trust for the benefit of the people—a trust for maintaining the religious interests of the community, on which their present happiness and their eternal welfare depended. And it was certain that the right was subject to many restraints for securing its faithful and beneficial use for the great end in view. It was restrained by the powers of admission and ordination exclusively vested in the Church Courts—by the power given to them of judging of the qualifications and fitness of the person presented—by all the laws against simony—by the acts which limited the time of presenting—by the qualifications attached to the patron, and the oath she must have taken—and by other qualities—all directed to the object, that the trust for the people should be duly executed.—At the meeting of the General Assembly in 1834, their table was covered with Overtures from very numerous Presbyteries, and from several entire Synods, pressing earnestly for some regulation as to the moderation of the Call, which was part of the regular, constant, and legal process of the admission of ministers. For, an impression, which had never ceased in Scotland, * had then become vivid and

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* In reference to the use which had been made of various extracts from Sir H. Moncreiff's “Brief Account,” &c. in support of the views of the pursuers, Lord Moncreiff stated, “That work was originally published as an appendix to the Life of Dr Erskine, for the simple purpose of enabling persons, who might be strangers to our ecclesiastical institutions, to understand some passages in the Life. The author states that it was a mere sketch, written amidst many avocations, and that he was sensible that there must be many defects in it, both in the substance and in the composition. It was republished by me in a separate form in 1833, with that explanation in the preface. In doing so, I had two objects. I thought it might have some tendency to lessen the agitation which, from obvious causes, had then begun, on the subject of the abolition of the law of patronage itself; and I hoped also, that it might be useful in enabling the members of the House of Commons, on whom the numerous petitions presented were forcing the consideration of the subject, to understand something of the constitution and history of that Church, on which they were required to legislate. I believe it in some measure answered both these ends. But it never would have occurred to me, that it could be relied on in point of accuracy, either in the details of all the facts, or in the precision of language to be desired in every thing which may be safely appealed to in a legal inquiry: Several mistakes in facts were pointed out by the Dean of Faculty: I could mention others: And I am firmly persuaded, that, in the most important of the passages which have been quoted, there is a manifest looseness of expression, which makes them convey ideas, which the author could not have entertained or expressed, if he had been considering, with the care necessary, the precise state of the facts, and the full import of the words used by him. But still less could I have imagined, that the gentle and honourable candour, with which the author has expressed himself, in regard to a controversy, in which he had himself been engaged, but which he believed to have been for a long period sopited by the circumstances explained by him, could be mistaken for a surrender of the opinions which he had held all his life, or construed into an approval of the proceedings of the eminent men to whom he had been almost uniformly opposed, or into an acknowledgment that no evil consequences had arisen from them. If any such inferences are drawn, they are not correct, as the pamphlet itself shows. Allow me to say,—in which he also joined,—that the men who took the lead in that struggle, concerning the necessity of a real Call by the people, Dr Dick, Dr Macqueen, Dr Erskine, Mr Freebairn, Mr Stevenson, Mr Andrew Crosbie, and others, were no mean men, no weak and ignorant bigots. But, since so much has been said of the pamphlet from the bar, and by some of your Lordships, I hope that even I may be permitted to read (since no one else has done so) the following sentences, both in vindication of the author's consistency, than whom no man ever lived who was more opposed, in the knowledge of all Scotland, to the settlement of any man in a parish who was not reasonably expected to be acceptable to the people; and because they have a most important bearing on the point which has led me into these observations.” His Lordship then quoted several passages (pp. 86, 87, 89, and 90), intimating that the result of these decisions of the Assembly, which had sustained Calls, though very few signatures were attached, had indeed produced apparent acquiescence in the Church Courts, but at the expense of a large and increasing secession of members from the Church, thereby weakening and contracting the influence of the Establishment on the general population.

prevailing, that many evils had been brought upon the Church in consequence of that part of the process of admission having been practically reduced merely to a dead letter, although it was one of the constitutional and essential safeguards against the abuse of patronage. At the same period, in consequence of numerous petitions to Parliament, a Committee of the House of Commons Was sitting on the subject of patronage.—The principle of the Act of Assembly and Regulations in 1834 was to declare what was understood to be a fundamental law or principle of the Church in the admission of ministers, and to give such instructions for the government of Presbyteries as would secure that effect should be given to that principle. And as the Act of Assembly had been approved of by a great majority of the Presbyteries of the Church in 1835, and passed into a standing law of the Church in terms of the Barrier Act, it was a very serious matter, indeed, that the Civil Court should be called on to interpose and declare such a law, which was in itself in matter ecclesiastical, and the act of a Presbytery in obeying such law, to be illegal. *

On the merits, the questions appeared to be, 1st, Whether the Civil Court had jurisdiction, with reference to the conclusions of the summons. 2d, Whether if the summons, in the declaratory conclusion, presented a case in which the Court might have jurisdiction, the facts of the case itself were such as to bring it within such jurisdiction. And, 3d, Whether the Act of Assembly was so ultra vires of the Church Courts, as to render the sentence of the Presbytery illegal: although this last question might, perhaps, be viewed as falling under the first question as to jurisdiction.—The summons libelled on 1592, c. 116 and c. 117, and on 10 Anne, c. 12; then the presentation and documents produced to the Presbytery, and the procedure before the Presbytery already stated. 1 And it concluded, inter alia, for declarator that the Presbytery were, and are, “bound and astricted to make trial of the qualifications” of the presentee. But by which of the statutes libelled were they so bound and astricted? If the Presbytery were bound to go into any trials or examination, it was solely by the ecclesiastical laws. The sole power of

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* His Lordship here entered into an examination of pleas of a special nature, 1st, Whether the pursuers had, by their conduct, acquiesced in the legality of the Presbytery proceeding on the Act of Assembly 1834, and were barred from objecting to their proceeding on it; and, 2d, Whether any plea on the illegality of the Act of Assembly was brought competently before the Court under the summons and record, as framed.

1 Ante, p. 691. Et seq.

examination and admission was given to the Church by the statutes, and the pursuers said that they were obliged to receive and admit any qualified person presented. But there was no law which obliged them to any particular mode of forming their judgment of his qualifications, except the laws and directions of the Church given from time to time. Could there be a doubt, then, that this first demand in the summons, for a decree, finding the Presbytery bound to take the pursuer on trials, was in matter purely ecclesiastical? The summons did not once mention the Act of Assembly 1834, nor even the judgment of the Assembly in this case in 1835. Laying these things aside, then, for a moment, let it be taken as in a common case before the act. Could any patron come to the Civil Court to ask decree to ordain the Presbytery to take his presentee on trials? Or if a Presbytery proposed to admit a man without taking him on trials, and had refused to do so, could the heritors or parishioners come to the Civil Court for a judgment to compel them? Quite plainly, in both cases, the appeal must have been to the superior Church Courts, the whole matter of qualification and admission being confessedly ecclesiastical. But that was precisely the case stated in the present summons; for it bore no relation at all to the Act of Assembly; and thus the first and leading demand in the conclusion was, as plainly, a demand against the Presbytery in matter ecclesiastical, to which no civil statute obliged them, as any one thing which it would have been possible for the pursuers to conclude for.—But there was another even more vital difficulty in this part of the case, which, would bring out still more clearly the utter incompetency of the whole summons. The pursuers did not, by the summons, complain of the appointment of a day for moderating in the Call. In making it, the Presbytery, assuredly, acted strictly within their ecclesiastical functions: But, as surely, something was to follow on that appointment, before they could be in a situation to take the presentee on trials. He had, in the first place, to preach on two Sundays in the church. The pursuers did not complain of this order, or pretend that the Court could take any cognizance of it? It was the common practice that he should preach at least once, before the act anent Calls existed. Then, for what purpose was he so to preach? It must have had some meaning; and there could be no other meaning in it, but that his gifts as a preacher should be known to the people before the meeting for moderating in the Call. Well then, he preached, and the Call was presented for signature. It was signed by the patron's factor, that was, by the pursuer, Lord Kinnoull—and by two heads of families, the designation of persons which the pursuers' counsel would exclude from all concern in it. But the pursuers actually made it part of their argument, that the Presbytery gave no deliverance on the Call. It appeared, however, that they did so in due time. But why was there nothing in this summons on that point? It was not stated, that the pursuer had any Call, or that the Call was moderated, or that the Presbytery refused to give judgment on it. But was it not manifest, that, supposing the Presbytery to have been wrong in all that they did, after so satisfactory a subscription of the Call, and that it could belong to the Civil Court to put them right, the process of induction must still begin where it stopt, viz. in the meeting for moderating in the Call; and that the first thing to be done would be to sustain the Call, or give some judgment upon it. Beyond any possibility of doubt, according to all ecclesiastical practice, ancient or modern, until the Call was sustained, the Presbytery could not take the presentee on trials. But the summons slurred this all over. If there were any competency in it, it ought to have concluded that the Presbytery were bound and astricted to sustain the Call, and then to take the presentee on trials. If the pursuers were to prevail in their action, without a summons adapted to the case, that was what must still take place. If they had prevailed in their appeal to the General Assembly, that would have been the inevitable result, unless the Assembly, as the superior Church Court, had taken that matter into their own hands. But the Civil Court, it was to be presumed, would not take upon it the duty of sustaining the Call, or disposing of it in any manner. There were two reasons why there was not a word of this in the summons. One was, that, in the difficulties of the case of the pursuers, they were exceedingly desirous of convincing the Court that, in the process of induction, there was no such thing as a Call, and would very willingly have it discarded from all consideration. That this would not do, if any regard was to be paid to the established order of proceeding before the act 1834 was heard of, was manifest. But the other reason for avoiding all mention of the Call in the summons was, that it would have presented too manifestly the absolute incompetency of the judgment demanded of this Court—betraying too palpably the truth, that they required the Court to deal with things which all men must hitherto have acknowledged to be purely ecclesiastical. Was it not, then, a matter ecclesiastical, to say that the Presbytery were bound to take the pursuer on trials, while yet the summons disclosed that no judgment sustaining the Call had been pronounced, but contained no conclusion regarding it? The pursuers would scarcely maintain, and should not be listened to if they did, that it would be within the competency of the Court to determine, that no moderation of a Call was necessary or legal in the process of admission or induction. That would be rather too plain an encroachment on the province of the Church. But the pursuers had not attempted it. At all events, they acquiesced in that; and they raised no case against it in the summons. There was no such question before the Court. It was but too plain, therefore, that the whole scope—the marrow and substance—of the summons was and must be in matter ecclesiastical, because it could only land in a thing not concluded for, but which was clearly ecclesiastical—judgment upon the Call, or for moderating in the Call, according to the appointment made, and the fixed law and invariable practice of the Church. But assuming that it could be declared that the Presbytery were bound, without any previous proceeding, to take the presentee on trials, the summons farther concluded that the rejection of him without any objections stated to his qualifications, and on the ground of a Veto by the parishioners, was illegal. No legal consequence, which might follow on this, was before the Court. And nothing was said, in the summons, as to the Act of Assembly 1834. Now it was plain enough that the actual objection against the presentee was, that, with a majority of dissents, there was no sufficient Call, and the presentee therefore was not fitted to be a useful minister of the parish. Supposing that the same thing had occurred before May, 1834, the Presbytery, in rejecting the presentee on such grounds, would just have been engaged in an ecclesiastical proceeding, and performing an ecclesiastical function. Against their proceedings no complaint could have lain except to the superior Church Courts. And yet this was the whole case, as appearing on the summons, which did not allude to the Act of Assembly 1834, as in existence. But in the pleading of the pursuers, they had gone out of the summons and record, and rested the case mainly on the illegality of the Act of Assembly 1834. On looking strictly to the frame of the summons, however, it appeared that nothing but an issue of the most common and clear ecclesiastical character, could be raised under it, and that there was no case whatever on which it was competent for the Civil Court to pronounce any judgment.—Supposing, however, that the objections to the jurisdiction, arising on the summons by itself, could be got over, the question remained whether the facts of the case, as in any way disclosed, gave such jurisdiction.

Lord Moncreiff then pointed out, from the shape of the summons and record, objections against the pursuers being allowed to insist in the mode of pleading which they had adopted; and observed, inter alia, that according to the utmost latitude of pleading which could be allowed them, they could not found upon any part of the Act of Regulations, 1834, except so much as had actually come into operation, in the case before the Court. In particular, in regard to the pursuer's plea that the regulation about the jus devolutum lay at the root of the whole matter, as a means of grasping patronage for the Church, it should be observed (1.) that there was nothing on the record, on the subject of the jus devolutum; (2.) that the Presbytery had done nothing in it; (3.) that the jus devolutum had not fallen at the date of the sentence of rejection; (4.) that when it did fall, it had always belonged to the Church courts to regulate it; (5.) that if the Presbytery assumed it, when it had not fallen, the patron had his remedy in the Civil Court to certain effects; (6.) that the regulation made no change on this, but left it to the time limited by law; (7.) that the Act of Regulations, so far from being the root of the whole matter, was not even conceived until after the act anent Calls had been passed; (8.) that the object of preventing the act from applying to a presentation made by the Presbytery, jure devoluto, was, in the first place to bring about an-agreement between the patron and the people, who would rarely desire the appointment to be in the Presbytery; and in the second place, to provide a sure way of ending the process by the Church courts, after the matter had become ecclesiastical by the accruing of the jus devolutum; (9.) the Act of Regulations was still a mere interimact, renewed annually, but objected to by many Presbyteries, especially those who were most hostile to patronage; and (10.) not one case of jus devoultnm had occurred during the whole four years since the act was passed.

In entering on the question of the power of the Church to pass the act 1834, it should be remembered that that was not merely the act of a Supreme Judicature, but of a Legislative Assembly, ratified by the whole Church. And it did appear to be quite incompetent to consider the constitutional correctness, or incorrectness of that act. But if it was to be considered, the following three points were put by the pursuers: (1.) “Was the statement of the fundamental law true? (2.) Was a Call, Concurrence, or Consent, of the people, an essential part of the constitution of the Church in the admission of ministers? (3.) Was the provision made in the Act of Assembly 1834, a legal mode of regulating what shall be deemed sufficient consent.”—But there was also a fourth point to be considered, (4.) “Whether it was not the exclusive province of the Church, to declare what was the law of the Church, and to regulate what otherwise was within their proper province.” In discussing these points, it was to be observed that the pursuers were wrong in maintaining that the Reformed Church took nothing from the ancient Church. The statutes, especially 1690, c. 5, 1592, c. 116, 1567, c. 7, &c., proved the reverse. The Reformed Church was just the ancient Church “reformed from Popery by Presbyters.”—In regard to the First Book of Discipline, it was not of authority, having never been regularly acknowledged in the Church; but if it were, it could not avail the pursuers, as it was in truth the single ground of authority for any right of election by the people. And though it devolved upon the Church the right of appointing a Minister, if the people neglected this for forty days, it also provided that if, after all, the people did appoint, though after another had been presented, the people's nominee should be preferred; which was an instance of a Veto, incomparably stronger than any thing which could ever arise under the act 1834. So far as that Book of Discipline could be justly referred to, it supported the fundamental principle laid down in the Act 1834.—The act 1567, c. 6, 1 established the Presbyterian Church, though the local courts were not then arranged, and the Superintendents held the place which was afterwards given to the Presbytery. But the General Assembly held then the same general character which it afterwards held under all the statutes; and it should be particularly noticed, that no civil statute ver defined the constitution of that body, or laid down any specific rules regarding it. These always rested on the laws and ordinances of the Church itself, recognised even in 1567, c. 6, as already formed and subsisting. And this statute ratified the Confession of Faith, 1560, which bore (c. 17,) that the Lord Jesus Christ “is the only Head of the same Kirk, &c.”—The Presbyterian Church being thus established, the statute 1567, c. 7, regulated the admission of ministers, 2 declaring, by a broad provision, that “the examination and admission of ministers be only in the power of the Kirk, now openly and publicly professed.” And the whole matter of admission being exclusively in the Church Courts, an appeal seemed to be made equally competent from the judgment of the Superintendent, admitting improperly, as in the case where it was expressly given, of his rejecting improperly. The act provided, as to an appeal by a patron, against such rejection, that the appeal lay to the ecclesiastical courts, and that “the cause being decided,” by the General Assembly, “shall take end as they decern and declare.” This statute clearly implied that the General Assembly already had a constitution settled. And it seemed to give to the Church a power, at admission, of judging not only of the moral and literary qualifications of the individual, but in general of his fitness for a particular charge, as well as all other circumstances that might be brought before them.—The statute 1567, c. 7, was ratified by 1581, c. 99, which last was ratified by 1592, c. 116. And although Presbyteries took the place of Superintendents, as the inferior local jurisdiction which was to receive presentations, it appeared clear, under the unqualified ratification of 1567, c. 7, that in the case where a Presbytery rejected a presentee, the appeal to the Synod and Assembly, and the finality of the judgment by the Assembly, took place as much as it originally did in the case of an appeal from the judgment of the Superintendent. Indeed it seemed indisputable even now, that, where a rejection by a Presbytery went on the ground of what was confessedly matter of “qualification,” no appeal could lie except to the Church courts.—In regard to the Second Book of Discipline, which Andrew Melville had a considerable share in composing, it was approved of by the Assembly in 1578, and presented to the King who appointed Commissioners to confer with the clergy on the work. The result of the conference was recorded by Archbishop Spottiswoode, 3 who stated that he had the original minutes of the conference by him, at the time.

_________________ Footnote _________________

1 Quoted, ante, pp. 662, 663.

2 Quoted, ante, p. 663.

3 Hist. p. 289, et seq.

This record of his was most important, and not the less so, that he was no friend to the Presbyterian Church. In stating the articles claimed by the Church, art. 9, as to the election of a minister, was in these terms:—“In this ordinary election it is to be eschewed, that no person be intruded in any of the offices of the Church, contrary to the will of the congregation to whom they are appointed, or without the voice of the eldership.” And, opposite to this 9th article the Archbishop marked the resolution of the Commissioners, “Agreed.” And on examining the whole of the report by the Archbishop it appeared, that, at two distinct places, the principle was expressly agreed to by the Commissioners for the King, that no man should be intruded without the consent of the people. It was true that the Commissioners never sanctioned the surrender of patronage. But it did not follow, as a necessary alternative, that they disallowed the voice of the people: it was only the claim for a right of election in favour of the Presbytery or eldership, which was negatived as necessarily inconsistent with patronage.—It was also important to observe the article as to the powers of General Assemblies, and the answer by the Commissioners. The article (c. 7, § 11) was—“They have power also to abrogate all statutes and ordinances concerning ecclesiastical matters that are found noisome and unprofitable, and agree not with the time, or are abused by the people.” The relative minute as to the important answer by the Commissioners was, “Agreed; that as they make acts in spiritual things, so they may alter the same as the necessity of the time requires.” It appeared that all the articles as to the powers of inferior Church judicatures were at that time delayed, the Commissioners not being prepared to grant them: though many of them seemed to have been subsequently agreed on, which were not specified in the subsequent statute. And it would rather appear that some intermediate conference had been held before the statute was passed.

After briefly noticing the intervening Acts of Parliament, Lord Moncreiff then analyzed 1592, c. 116, 1 and observed that the pursuers were wholly unfounded “in pleading that there was no Presbyterian Church till that act was passed—an act which contained only these few particulars as to the inferior judicatures, but which manifestly and expressly proceeded on the very fact thus denied, the prior existence and constitution of the Church. That act recognised the true Church presently established. It ratified previous acts which said the same thing; and it said nothing of the jurisdiction and powers of the General Assembly, except in the broad terms, ‘as the samen were used in times bye past.’ It was a most alarming notion for the Church of Scotland, that an attempt should be made to limit the powers of the General Assembly and the Ecclesiastical Courts, in the manner which the pursuers had attempted. Was this the only statute which might not be explained by two centuries and a half of practice? It was now far on in the nineteenth century, and ever since the date of that statute, acts and laws had been constantly passed by the General Assemblies of the Church, proceeding on no more precise authority than that act, in its broad ratification of the government and discipline of the Church as before constituted. The laws so enacted had been directed to the regulation of every thing within the jurisdiction of the Assembly and the inferior Courts, and had been gradually accumulated in their voluminous

_________________ Footnote _________________

1 Quoted, ante p. 669, et seq.

records. Were there not innumerable instances of laws of the very same description as those which were now said to be contrary to their powers? No such idea as that here maintained seemed to have been ever suggested in any Court, civil or ecclesiastical, till the necessities of the present case drove the pursuers to this course. The act 1592 was neither a compact nor an institution. It was an authoritative recognition of the existing Presbyterian Reformed Church as having existed at least previous to the year 1567, and a confirmation of the Second Book of Discipline, in plain words, as to the order of the Assemblies, viz. Kirk sessions, Presbyteries, Synods, and General Assemblies, as they had been since still further ratified and secured by the act of 1690, and the Act of Union of the kingdoms. But the powers of legislation, and of judicial trial, vested in the Assembly, and many other things belonging to the clergy and the Church Courts generally, amongst which might be mentioned the celebration of marriage and other similar functions, were not laid down specifically in any Act of Parliament, but rested on the Second Book of Discipline and the general laws of the Church, as recognised by the previous statutes.

“But at last came this broad clause, introduced with a special relation to the power of the Presbytery to give collation. ‘And to put order to all matters and causes ecclesiastical within their bounds, according to the discipline of the Kirk.’ This important provision seemed to have been too much left out of view in the discussions on this act 1592. It appeared to be nothing less than a direct committal of all ecclesiastical uffairs, and among them every thing connected with the admission and collation of ministers, into the exclusive jurisdiction of the Church Courts, and at the same time a distinct recognition of the Book of Discipline as their guide in all such matters; for there could be no doubt that the clause, in conformity to the whole scope of the act, gave the most ample powers of review to the General Assembly, in all matters competent to the Presbytery, But it farther appeared too clear for argument, that throughout the act, it always supposed many powers, and many principles, to exist in the constitution of the Church, which were not embodied in any civil statute; and among these should be held the fundamental principle against the intrusion of ministers contrary to the will of the people, as laid down in the Second Book of Discipline, and implied in the exclusive powers of admission, an:l the finality of the judgment of the Assembly in every such matter, conferred and declared by the act 1567, c. 7.

“The statute 1592, c. 116, had been called the Charter of the Church of Scotland. It was so, in combination with the Claim of Right, and the conditions on which the Crown of Scotland was tendered to King William III., the acts of 1690, the act of the treaty of Uman, the act of security, and the oath of all the monarchs of the united kingdom. But what kind of charter was it? Was it a charter which carried nothing but the few particulars which aro specially expressed in it? Very far from it. The character which the pursuers would put on it was, that they would make the King and the Parliament say to the Church, ‘There is your charter. But you must take it by its strictest letter. We give you the dead inert matter of a Church Establishment, but not one drop of the life's blood of a free and active constitution. If you pass but an hairbreadth, or a scrapie's weight, beyond what is written in the very letter, you violate the compact, you transgress the institution. You may take your General Assemblies; but mark well, we give you no powers to those Assemblies—for none are written in the charter; we give no constitution for forming them, no jurisdiction to make them efficient, no power to make laws for the Church at large—for no such things are to be found in the letter of the charter. And as to your provincial Synods, Presbyteries, and Kirk-sessions, we institute them, with a few particular powers and capacities agreed upon in conference—but beyond these they can exercise no power whatever.' Would King James and his Parliament have dared to make such a proposal to such a nation as the people of Scotland, or to the intrepid spirits who then guided them in their spiritual and ecclesiastical interests? It was a moral impossibility; and, however disingenuous James might be, there was no trace of such a thing either in the act itself, or in the history connected with it. It was, with the utmost submission, a very surprising thing, that this statute, with such broad words of jurisdiction, clearly referring to the Presbyterian Church as already existing and recognised and established by many statutes of the realm, should for a moment be so regarded. It meant distinctly to recognise the whole discipline and jurisdiction as previously in practice under the Second Book of Discipline, in all points which had been agreed upon in the conference, as recorded by Spottiswoode, while, by positive enactment, it rejected the article against patronage, and in establishing the inferior judicatories which had been at first referred for consideration, set down some of the leading duties and powers for which they were intended, and particularly the duty of the Presbytery as now come in place of the superintendent, both in other things, and specially in the matter of collation of ministers.”

Lord Moncreiff proceeded to observe, that, there was no ground for doubting that, in the statutes, the term collation always implied ordination, when the person was not already ordained.—In regard to the clause of the statute, obliging Presbyteries to admit and receive a qualified presentee, there was no doubt that the right of patronage was effectually saved, but only according to its true nature, and subject to all the powers and exclusive jurisdiction of the Church Courts, in the admission of presentees. That clause appeared, on examining the successive statutes, down to 10 Anne, c. 12, to be now repealed; but this was immaterial, as it was in substance re-enacted by that last statute, subject, however, to the qualifications afterwards noticed.—Considering * the large powers, both legislative and judicial, which were

_________________ Footnote _________________

* His Lordship, after observing that the specific remedy of retention of the fruits of the benefice, given to a patron, by 1592, c. 117, if his qualified presentee was rejected, seemed strongly to imply that if the Church Courts finally refused to admit, there were no means of compelling them to do so—added that, taking together the three acts 1567, c. 7; 1592, c. 116; and 1592, c. 117, the meaning appeared to be, “That the patron should have right to retain the stipend till the appeal should be finally disposed of by the General Assembly; for, 1st, The whole arrangement, and the particular remedy given, suppose that the patron cannot force the admission; 2d, They suppose, that he cannot prevent the ordination and admission of another person than his presentee; and 3d, The act 1592, cap. 117, cannot mean, that the patron is to have right to retain for ever on his own understanding of his presentee's qualifications, or that that is to be matter for the consideration of any civil court. If any patron so proceeded, would this Court take cognizance of the qualifications, in the face of all the statutes committing the trial of the qualifications absolutely to the Church? No such case has yet been heard of; and as this is manifestly impossible, I cannot see how the matter can be otherwise extricated than on the principle so suggested. And it is not easy to make any difference in the question, between one sort of qualification and another, or between one cause on which the Presbytery may reject and another. But it must always be kept in view, that the question may be altogether different, and may become purely civil, where there is a dispute as to the right of patronage, a competition of presentations, or a question as to the due exercise of the right within the time limited by law. At any rate, every question as to the admission and ordination of a minister must stand on the act 1567. The right to the stipend, at least in the case of a disputed patronage, may possibly stand otherwise, however great the mischief may be; though I do not myself think that this consequence ought to follow.'

sanctioned and recognised by 1592, c. 116, as belonging to the General Assembly, according to the existing state of the Church before; and that, from that time downwards, except during intervals of Episcopacy, the powers of the Church had been in constant and vigorous operation in both departments, it appeared that the Church, in the matter of admission, possessed a power to require the consent of the people, and to resist intrusion against their will, which stood firm on its own laws, as acknowledged by acts of the State. And the Church was entitled to refuse, as unfitted for any particular parish, any person who, after due trial before the congregation, did not obtain evidence of a reasonable consent of the congregation, a circumstance which indicated that he probably would not be a useful minister in that parish.—In examining how the statute had been acted upon, the Act of Assembly 1596, 1 was certainly important: it seemed to establish, 1. The early and undisputed practice of the Assembly in passing acts as to the admission of ministers; 2. That it was assumed to be beyond all doubt, that the Church Courts had a right to judge of the fitness of the man for the particular parish,—apart from his own literary and moral qualifications, 0as rendering him admissible into other parishes; and 3. That the right of the Church even to prescribe specific grounds, on which a presentee may be rejected in regard to a particular parish, though not objectionable in respect of any defect in literary or moral qualities, was held to be equally clear.—Passing to 1638, when Presbytery was restored after the interregnum of Episcopacy from 1612, an Act of Assembly was then passed which ratified the Act of Assembly 1596, and farther, expressly recognised the principle “that no person be intruded in any office of the kirk, contrare to the will of the congregation.” Though that Assembly met under peculiar circumstances, and in troublous times, it was afterwards declared to be a lawful Assembly, and its acts legal, by Act of Parliament; and they had ever since been held of good authority in the Church. It had been supposed that the system of licensing probationers took its rise under the Act of Assembly 1596, or 1638; perhaps it was later than either. But however that might he, it was a system, rested entirely on the power of the Church to regulate as to the admission of ministers, and illustrating strongly its right to impose lawful and effectual limitations on the range of a patron's choice, provided that such limitations were within the province assigned to the Church. Because, however well qualified a presentee might be, the Church would certainly refuse even to take him on trial, unless he both held a license, and had fulfilled the course of study, all of which was prescribed by the Church itself, and none of which could stand against the patron's right to compel the Church to admit any qualified presentee, if that right were as absolute as the pursuers had maintained,—In regard to the Directory 1645, it was not an act of the Scottish Church, but a Directory of the Westminster Assembly of Divines; and though, in various important respects, it recognised the right of the people, yet it was only adopted by the Scottish Church under qualifications, one of which was, a provision that it should not prejudice “the distinct rights of Presbyteries and people in the calling of ministers; but that it shall be free to discuss and debate these as God shall he pleased to give farther light.” The tenor of that Act of Assembly clearly showed that, at this period, the Church of Scotland held by the rule of the Second Book of Discipline, and of the Act of Assembly 1638, and would not surrender this, even for so desirable an object as a Union of the Church in England and Scotland.—In 1649, the Act of the Estates, abolishing laick patronage, declared that churches were to be planted “on the sute or calling, or with the consent, of the congregation, on whom none is to be obtruded against their will.” Then the Act of Assembly 1649 was passed. 1 On contrasting the different weight which was thereby attached to the dissent of a majority, and the dissent of a minority, it was plain that mere consent or concurrence was looked on as an important element in admission. A minority dissenting were obliged instantly to verify and prove their exceptions; but if a majority dissented, the dissent was fatal to the admission, unless the Presbytery positively found that nothing but causeless prejudices existed in the minds of the dissentients, a state of matters which imposed no onus pro-handi on the dissentients, but laid it on another party, to remove, if it were possible, the otherwise fatal effect of the dissent. The Act of the Estates was subsequently repealed, and perhaps the Act of Assembly 1649, though never repealed by the Church, and though not now struck at by any Act of Parliament, if indeed it ever was so, was not now in actual force; otherwise the Act of Assembly 1834, might never have been required. But it was a standing evidence that a negative by a majority, taken as a test of consent, or not, was no novelty in 1834—Passing by the period of Persecution under the restored Honse of Stuart, the statute 1690, c. 1, rescinded the act 1669, c. 1, which had declared the King's supremacy “over all persons and in all causes ecclesiastical,” and it declared that act to be “inconsistent with the Church government now desired,” The statute 1690, 2 c. 5, was then passed, which was the true Charter of the liberties of the Church of Scotland. It ratified, established, and confirmed “the Presbyterian Church government and discipline;” appointed the first meeting of the General Assembly, which was evidently necessary, under the circumstances; and it made the jurisdiction of the Church Courts to depend, not on special acts of the Legislature, but broadly referred to it as to be exercised “according to the custom and practice of Presbyterian government, throughout the whole kingdom;” and that for various purposes, “and for redressing all the other Church disorders.” Ever since that day the Church had enjoyed, without dispute, the fullest powers of making laws, not only for its internal government and order, but for the general interest of the Church, and specially for instructing, and directing, and controlling the inferior judicatories, in the execution of the various powers and functions entrusted to them in every department of ecclesiastical affairs. And whatsoever the Presbyteries had power to do, in things which had properly belonged to their spiritual or ecclesiastical functions, in all such things the General Assembly had power, by acts regularly passed according to law, to direct and instruct them in the mode

_________________ Footnote _________________

1 See ante, p. 673.

1 See ante, p. 675.

2 Quoted, ante, p. 676, et seq.

of discharging the duty. And it might well be asked whether a Church so formed and consolidated equally by statutes and by the usage of centuries—the security of which was made an indispensable condition of the Revolution establishment—an equally indispensable condition of the union of the kingdoms—and the first sworn duty of every sovereign who is called to the throne,—was not something more than a mere corporation with power to make by-laws—whether it was not an essential and component part of the constitution of the realm, whose independent powers, judicial and legislative, were even more sacred and inviolable, than the powers and jurisdiction of the highest Civil and Criminal Courts of the country. These might be changed or taken away, as they had often been. The others could not be invaded in any vital point, without a direct breach of what was fundamental and essential in the political state of the United Kingdom.—By 1690, 1 c. 23, the right of presentation was given to the Protestant heritors and elders, who were to propose a person to the whole congregation “to be either approven or disapproven by them.” That provision expressly recognised the consent or approbation of the people as an element in the admission of a minister. And even assuming (though it was doubtful) that, where there was a majority of disapproves, they had still to give in their reasons to be cognosced upon by the Presbytery, the statute declared that “the calling and entry of a particular minister is to be ordered and concluded,” by the determination of the Presbytery; leaving their judgment open, of course, to the review of the superior Church 2 Courts. That was an express enactment making the whole transaction an ecclesiastical matter, and, had not the statute been repealed, that alone would have excluded the Civil Courts from cognizance of any such question. It might be observed, in passing, that the undoubted law and practice of the Church, both between 1690 and 1712, and at other times, was, that the minister of a parish, receiving a presentation to another parish, could not oven be taken on trials for admission into the new parish, until the Church had loosed the spiritual bond subsisting between him and the flock of his first parish. There was no Parliamentary authority for this remarkable limitation on the choice of pairons, except that Parliamentary authority, which extended much farther than the pursuers allowed, and which would be discovered by reading all the Acts of Parliament as having an implied reference to the existing state of the Church, and the known laws by which it must be guided.—In regard to 10 Anne, c. 12, the only question of importance arose under the clause at the end of the first section, obliging Presbyteries “to receive and admit, in the same manner, such qualified person or minister as shall be presented by the respective patrons, as the person or minister presented before the making of this act ought to have been admitted.” According to the plain import of these words, they directed admission to take place in the same manner as was practised immediately before the act, that is under 1690, c. 23. The patron who had the right of presentation, was no longer to be the heritors and elders, but the presentee was to be admitted as before; and, accordingly, that share in the process of admission, which had been allowed to the consent of the people, was not thereby taken away; and, farther, the sole jurisdiction was left to the Presbytery, finally to determine

_________________ Footnote _________________

1 Quoted, ante, pp. 678, 679.

2 So held in the cases of Kelso, 1705; Buncle and Preston, 1706; and others.

every thing in the calling and entry of a minister. Though the statute made no mention of the consent of the people, it made as little mention of the trial of the qualifications of the presentee; but, on reading it with implied reference to the existing state and known laws of the Church, the former of these was just as clearly left in the Church, as the latter. And according to the practice from that time downwards, a Call cr Concurrence of the people was a regular and essential element in the process of induction. This appeared not only from the Acts of Assembly 1736, 1 1753, 2 1759, 3 and 1782; 4 hut also from the numberless cases in the records of the Church Courts, in which the sufficiency of the Call was put in issue, on the invariable assumption that a Call was indispensable; and in which persons were repeatedly rejected on account of the insufficiency of the Call; and from the fact, that, in the only cause in which a Presbytery ventured to induct without a Call, they were censured, and the practice was instantly repressed by the General Assembly. 5 The cases, even in the General Assembly alone, were too numerous for citation, but many of them evinced the importance and necessity of a Call in a very remarkable manner. 6 The cases where Presbyteries and Synods rejected Calls us insufficient, were of very frequent occurrence, continuing at least as late as 1792. And in some instances where the General Assembly reversed their judgments, and sustained the Call, they did so by the narrowest possible majority of votes. There was no authority for saying that it was in consequence of the understood illegality of the Call, that the judgments of the Assembly progressively sustained Calls with fewer and fewer signatures, till it became difficult to say how very few would suffice. There was merely an abuse committed by the Assembly, in the exercise of its discretionary judicial powers, which required a remedy. And the legislative powers of the Assembly were quite adequate to supply the remedy.

After a full deduction of the Acts of Parliament, the Acts of Assembly, and the history of the decisions on the sufficiency of Calls, Lord Moncreiff observed that the following was the result:—“In the First Rook of Discipline, there was the first germ of the constitution of the Reformed Presbyterian Church. It declared the principle of the necessity of the consent of the people, and that no man be intruded contrary to it; and it gave a right of election to the people, if exercised within a limited time.

“The Second Book of Discipline was most express in declaring the principle, that no man be intruded against the will or without the consent of the congregation—repeating it in two several articles.

“That Second Book of Discipline was approved of in the General Assembly 1578, and then presented to the King, and was, long after, expressly referred to in the Act of Assembly 1736.

“Then the Conference took place, and these two articles were expressly agreed to—while the articles giving the right of election to the Presbytery and excluding lay-patronage, were not agreed to.

“After the statute 1592, c. 116, the principle was again broadly declared in

_________________ Footnote _________________

1 Ante, p. 683.

2 Ante, p. 683.

3 Ante, p. 684.

4 Ante, p. 684.

5 Arbroath, 1790.

6 Lochmaben, 1723; Aberdeen, 1725, 1726; Currie, 1740; Manner, 1742; Biggar, 1751, 1752, 1753; Cromarty, 1752; St Ninians, 1768; Glendovan, 1768.

1596: and the power of the Church to act upon it, was put into vigorous operation, in various rules laid down for the guidance of Presbyteries and future Assemblies.

“As soon as Presbytery was restored, after the reign of Episcopacy for 26 years, it was again distinctly declared by the Assembly 1638, ‘that there be a respect to the congregation, that no person be intruded in any office of the kirk contrary to the will of the congregation.’

“This point was in the strongest form reserved by the Assembly 1645, in accepting the Directory of the Westminster Assembly in other respects,—showing the clear interpretation which they put on it.

“The principle was explicitly stated in the Act of the Estates 1649; and the Act of Assembly 1649 gave a Directory calculated effectually to secure it.

“And it was once more announced in the most express and solemn terms in the Act of Assembly 1730, long after the passing of the Act of Queen Anne.

“These were all direct and express assertions of the principle in plain words. But it was with equal force and effect, that all the statutes, both of the Legislature and of the Church, which either expressed or implied the necessity of the consent of the people to the induction and ordination of a minister, bore at once on the truth of the principle, and on the power of the Church to regulate it.

“And when the point was looked at in this light, there were, first, the Two Books of Discipline, declaring in express terms the necessity of such consent—the Assembly of 1578 necessarily declaring the same thing, by adopting the latter as the law of the Church—the Conference, in which it was twice repeated as an agreed point.

“Then there was, secondly, the strong implication of the act 1592, ratifying the act 1567, in these two plain points: 1. That it confirmed the Church as previously established, with its whole jurisdiction and discipline; which evidently imported a ratification of that Second Book of Discipline, as the platform on which the Church stood, except those articles which had been rejected in conference, and superseded by the nature of the statutory enactments; and, 2. That it gave full authority to the Church Courts ‘to put order to all matters ecclesiastical,' and by ratifying the act 1581, and through it the act 1507, effectually vested every question in the admission of ministers in the Presbytery, and made the judgment of the Assembly final in the matter.

“Thirdly, The particular provisions of the Act of Assembly 1596, in regard to the fitness of the person for the particular place, plainly proved, that, according to the understood construction of these statutes, the Church Courts were the sole judges of that matter, and that all questions of the kind, whether on the literary and moral qualifications of the presentee, or on any other ground, must take end in the General Assembly.

“The Act of Assembly 1638, confirming the rules of 1596, still farther showed the necessity of the consent; being very express in its words to that effect.

“Fifthly, The act of 1645, ratifying the Westminster Directory, vindicated very emphatically the right of the people as previously maintained.

“Then, sixthly, the Act of Assembly 1649 placed the necessity of the consent of the body of the congregation, even where the Kirk-session nominated, on the footing of a negative of the majority being conclusive, unless causeless prejudice was positively proved against them.

“Seventhly, the act 1690, 23, expressly recognised the principle, even where the heritors and elders were patrons, that the approbation of the people must be asked, and by necessary implication reasonably obtained.

“Then, eighthly, by the practice under that act, previous to 1712, it was abundantly clear, that the matter was in general carried much farther than that principle of the statute, and that, in very many cases, the right of election and presentation by the heritors and elders was laid aside, and a direct calling by them and the heads of families substituted.

“Next came the remarkable practice after the statute of Queen Anne, evincing beyond all controversy the principle of the Church at least, and the strong sense of the country, that it was deeply settled in the belief and feelings of the nation.

“Then the Act of Assembly 1736 riveted it by express declaration, repeated in the face of all the land.

“The acts against simony, 1753 and 1759, and even the act of 1748, again authoritatively recognised it,

“The uniform practice of requiring the consent, concurrence, or Call of the people, in order to warrant induction on any presentation, went on continually:—Many were positively rejected for want of it,—still many more were rejected by the Presbyteries and Synods; and in another numerous class, the parishioners dissenting tried their fortune by appeal against the judgments of the inferior judicatories, on the ground of their having granted induction against what they stated to be, the inclinations of the body of the congregation. In all that time no one dreamt of making the question of refusal to proceed, on the ground of the insufficiency of the Call, the subject of any legal proceeding.

“In 1782, there was the unanimous declaration of the Assembly, that the moderation of the Call was according to the ‘immemorial practice’ of the Church. In 1790, a Presbytery was censured for having presumed to proceed without it. And, finally, that requisite, in the very solemn terms which have been quoted, has continued to be invariable down to the day of the meeting of the Presbytery of Auchterarder, when the presentation in this case was sustained, and the day for moderating in the Call was appointed.

“And while these points, fixing the principle of the Call or Concurrence of the people had been from time immemorial, and till this hour, a known and universally admitted element, essential in the process of induction, and fixing also the origin and ground of it, ‘that no man shall be intruded,' &c., was it not also now fully ascertained, that the Established Church of Scotland, by the Sessions, Presbyteries, Synods, and General Assemblies, as authoritatively recognised, not merely by single special statutes, but by the statutes on which the monarchy of these kingdoms rested, had the most ample powers to administer justice, and to pass laws, in all matters ecclesiastical, and the clearest exclusive jurisdiction in the admission, trial, ordination, and induction of all ministers, by whatsoever title of presentation they might appear before them?

“Such (said his Lordship) is the state of the law and history of this matter in the Church of Scotland, as I have learned them. And such is the Church of Scotland itself, by its constitution, and its existing condition in the state.”

In entering on the next question, whether the Presbytery of Auchterarder, being engaged in the process of moderating in the Call, bad acted illegally in rejecting the presentee in respect of the dissents of the majority of male beads of families, Lord Moncreiff observed that it should be kept in view that the simple point was, whether what was done by the Presbytery was illegal. Whatever was the ground on which they proceeded, the only question was, whether that which the summons libelled as done by them, was illegal. And if the Presbytery, acting in their own sphere, in the admission of a minister, had power to do that which alone the summons said they did, it must be clear that it was a purely ecclesiastical matter, and that the. General Assembly had power to pass an act instructing Presbyteries in performing their ecclesiastical duty. All reference to the decisions of the General Assembly, on the sufficiency of the Call, was irrelevant in support of the pursuer's pleas; and only showed more clearly that the matter in issue, was a purely ecclesiastical matter. Whether the Assembly should retrace its steps, as they might have done like many other courts, by a train of counter decisions, was clearly an ecclesiastical question also. They thought it more expedient to have recourse to their legislative powers in retracing their steps: but that did not alter the character of the subject-matter of their proceedings, as being wholly ecclesiastical. It appeared that the power of admission, collation, and ordination, and of judging of all questions of qualification and fitness, was exclusively in the Church Courts. It appeared also that the moderation of a Call by the people, following on the sustaining of the presentation, was according to the immemorial and constitutional practice of the Church. And if that was a reality, or ought to be so, it was the right and duty, and at least within the power of the Presbytery, to consider whether there was a sufficient Concurrence by the people. In doing so, dissents or Vetoes were to be taken into view, and always had been taken into view, as well as assents. If the Presbytery found that there was no Concurrence, but on the contrary the strongest case of dissent, then there was a case of intrusion contrary to the law of the Church, and it was the right and duty of the Presbytery to reject the presentee as unfit and unqualified for being a useful minister in that parish. If the Presbytery had rejected the presentee, before 1834, in respect of the number of dissents, and consequent insufficiency of the Call, it would just have raised an ecclesiastical question, on the sufficiency of the Call, for the Ecclesiastical Courts. But the circumstance that their proceedings were sanctioned by an express Act of Assembly did not make the question less ecclesiastical than before. In truth, therefore, the case brought before the Civil Court was just the common case of a Call rejected by a Presbytery for insufficiency: which was manifestly incompetent.

Lord Moncreiff then went over the decisions, observing that, in Auchtermuchty 1 there was a mere question of civil right, involving the validity of the presentation, and conclusions for the stipend; that, in Dunse, the Court refused to declare any thing against the Presbytery, as to stipend, or to meddle with the conclusion 2 to discharge the Presbytery from settling another man; that in Culross, the question was of disputed patronage, and the Court merely found the patron entitled to retain the stipend, his presentee having been rejected; in Lanark there were competing presentations, and the Court decided as to the stipend only; and in Kiltarlity, the question was merely an attempt to impugn the judgment of a Presbytery sustaining a presentation, and that on a ground clearly civil. The whole cases on the jus devolutum turned on questions of civil right.

_________________ Footnote _________________

1 See note, p. 714.

2 Monboddo's Report. 5 Brown's Suppt. 768.

His Lordship then added—“I have now delivered my humble judgment:—

“1. That the summons, as it is libelled, is incompetent in its form, and nugatory as leading to no result against this Presbytery, and altogether involved in ecclesiastical matter alone, with which this Court cannot competently deal.

“2. That the summons, defences, and record together, raise no question in a competent form, relative to the Act of Assembly 1834,—the moderation of the Call, or the jus devolutum. I am not unaware, as I before stated, that, in the answers for the defenders, they have stated narrative, that the Presbytery acted in obedience to an Act of Assembly. Their counsel perhaps necessarily did so. But their defence is on the want of jurisdiction simply, in regard to the act of the Presbytery in rejecting the presentee in respect of what is called a Veto of the parishioners, as alleged in the summons and condescendence. And I find no plea in law for the pursuers, which goes beyond that point, or which at all touches the legality or illegality of any act of the General Assembly. That there is no record on the moderation of the Call as illegal, and no question raised as to the jus devolutum, is apparent; and I would just appeal to your Lordships, whether, for the discussion of any of these questions, as they have been argued, we had not a right to expect a very different summons and record from the pursuers, who profess that they meant to try them, from those which they have presented to us.

“3. I have stated the grounds, on which I am humbly of opinion, that, so far as the question is before us, the Presbytery were acting entirely within the powers vested in them by law in all that they have done,—that they have dealt with nothing which is not strictly ecclesiastical,—and that, in so doing, however incompetent I may think the inquiry, they have acted in conformity to all the laws and principles of their own constitution.

“And, finally, 4. I have explained the reasons for which I think, that even though we had a proper summons and record, this Court has no jurisdiction to try any one of the questions attempted to be raised in this cause.

“I am happy now to relieve your Lordships from the pain and inconvenience of listening to so tedious an exposition of my opinion on this case. Something has been said of the possible consequences of any judgment which your Lordships may pronounce. On that subject I shall not say a word, and certainly will not even imagine what opinion I should have, on an action of damages against the General Assembly, and all the Presbyteries of the Church, or even against this Presbytery.

“Only permit me to say in conclusion, that, as I have expressed my opinion, and hitherto acted upon it to the utmost of my humble ability, for preserving the rights of patronage, though within the limits which I think attach to them by law,—and entirely repudiating the idea of any thing like ambages in that matter,—I earnestly trust, that it may not in the end be found, that they who so consulted for the patrons and the people together, had not taken the least considerate view of the real interests of both.”

Lord Glenlee * stated, that the fundamental question to be decided was whether the Act of Assembly 1834, was ultra vires. It might be taken for granted that, in Scotland, the Church itself had no power of putting a minister into a benefice against the will of the congregation. There were acts of the Church, one of

_________________ Footnote _________________

* His Lordship, through indisposition, had not been able to attend and deliver his opinion in the order of his seniority, as the other Judges did.

an earlier, and one of a later date, which declared that to be a fundamental law of the Church of Scotland.—By 1567, c. 7, 1 the right of patronage was not reserved generally; it was the right of presentation which was reserved, and it was declared how this right was to be effectuated, by a process ultimately admitting an appeal to the General Assembly whose judgment was to end the cause. And indeed patronage existed at all times, though the right of presentation was, from time to time, vested in different parties. The statute declared the examination and admission of ministers to be in the Church alone. And neither that, nor any other statute, ever defined the qualifications of which the Assembly was to judge. But there was no reason for confining them to the moral and literary qualifications of the presentee. His fitness for filling the particular charge to which he was designated, was equally for the judgment of the Church. And the acceptableness of the presentee to the people, was an element in that question, in a Church where it was a fundamental law that a Minister should not be intruded contrary to the will of the people. In regard to the obligation in 1592, c. 116, repealed in 10 Anne, c. 12, binding Presbyteries to admit and receive every qualified presentee, that did not mean that they must admit the person presented to them at all events, but that they must, not induct any other person, or order a Call at large, or act as if the disposal of the benefice were in their own hands, as they sometimes were in the illegal practice of doing. And it appeared, on the whole, to be the enixa voluntas of the Legislature, that the proper judgment, whether a presentee had the will of the people in his favour, belonged to the Presbytery; that it was wisely placed there; and, being there, that the Church had the undoubted power to make a general order or appointment, so that the course of judgment thereby prescribed, might, in all cases, be followed. A judicial deliverance by the Church Courts, rejecting a presentee in respect that a majority of the congregation dissented from the Call, could not competently be reviewed or altered in the Civil Court; and if so, the General Assembly were entitled to lay down that rule prospectively for the guidance of Presbyteries. The act of 1834 was neither better nor worse for being nick-named the Veto Act. In itself it merely enacted that the dissents of the majority of male heads of families should be probatio probata that the man was not acceptable to the parish. It was no delegation of the office of the Presbytery upon the people. It was the assent of the people which was in question, and the Act merely fixed what should be the best evidence on that point. A judge did not delegate his function by examining a witness; and the Presbytery delegated no judicial function, in holding that the majority of dissents was proof of the non-acceptableness of the presentee. Upon the whole, the act 1834 might be proper or improper, but it was not ultra vires of the Church. “The pursuer, (added his Lordship) Mr Young, has been found wanting in the qualities which fit him for the parish in question, by reason of a large part of the congregation dissenting; and on the whole, therefore, I am in favour of the defenders. I am certainly much afraid, that many evils will result from the present state of the ecclesiastical law, which, I daresay, were not in the view of those who passed the act 1834. But whatever may be my views on this question, I am of opinion that the Presbytery acted according to the rules of the Church; and that the Act of Assembly 1834 ought to stand as their sufficient warrant.”

_________________ Footnote _________________

1 Quoted, ante, p. 663.

Lord Jeffrey observed that the question now before the Court, must be dealt with as if there were no other conclusions in the summons than those which were, hoc statu, insisted in, against the Presbytery of Auchterarder, That conclusion which related to the validity of the presentation was not disputed; the only others were, that the Presbytery were bound to have taken the presentee on trials, and to have admitted him if found qualified; and that by refusing to do so, and rejecting him on the ground of a dissent by a majority of the male heads of families of the congregation, they had acted illegally, and to the prejudice of the patrimonial interests of the pursuers; none of which interests, however, were specified. But it appeared that the Court had no jurisdiction as to the disputed conclusions. 1st. In respect that no civil interest was properly brought before it for judgment; and, 2d, That the proceedings of the Presbytery which the Court was thus called on to condemn, were proceedings in matters properly ecclesiastical; and as to which the Court had no power to adjudicate, either by declaratory or executorial decrees. And it might be observed that, even if the proceedings complained of had been ultra vires of the Church Courts, in relation to the general statutes of the realm, still the jurisdiction of the Civil Court would not be let in, provided that these proceedings were within their own ecclesiastical province, and involved no assumption of civil jurisdiction. In the judiciary system of Scotland, there was no single tribunal which, either by review, or originally, possessed unlimited jurisdiction over all rights and interests. There were several Supreme Courts, of co-ordinate and independent jurisdiction, such as the Courts of Session, of Justiciary, and of Exchequer. The Court of Session had no right of control over the other Supremo Courts; and it had no jurisdiction whatever in matters ecclesiastical, especially as regarded the examination, ordination, or admission of Ministers, which, by express statute, was given exclusively to the Church. 1 In the present case, the question was whether a Presbytery acted illegally in not examining, ordaining, and admitting a presentee; and it appeared therefore to belong exclusively to the Church Courts. It was said, however, that, by the illegal act of the Church Courts, civil interests were affected, and therefore, even if their act was in matter ecclesiastical, yet its consequences being such as to affect civil interests, the jurisdiction of the Civil Courts was let in. But if this principle was well founded, it would be equally competent to review a sentence of the Court of Justiciary, which, in its consequences must affect civil interests; or a sentence of deposition of a minister, for heresy or immorality, which also, in its consequences, did so. But this was incompetent, because, whatever might be the consequences of these respective sentences, they were pronounced by separate, supreme, and independent Courts, each acting in its own province, and were not liable to review in the Civil Court. And, in the whole matter of the appointment, and the consequent rights and liabilities of the ministers of the Church, and indeed in the whole matter of the Church Establishment generally, there seemed to be properly but two things which were under the jurisdiction of the Civil Courts; all the rest being exclusively for the adjudication of Courts Ecclesiastical. These two were the right of patronage or presentation; and the right to the stipend and other temporalities of the benefice. The original settlement of certain articles of religion and Church government must, indeed, have proceeded from, or at least with the concurrence

_________________ Footnote _________________

1 1567, c. 7 (quoted, ante, p. 663), and 1592, c, 116 (ante. p. 669).

and authority of the Legislature, or supreme civil power; and it must consequently be ultra vires of the Church to innovate materially upon these. But they were not left, on that account, to the cognizance of Civil Courts of law; and if any question arose, either as to their interpretation, or any alleged violation of them by individuals, it seemed to be certain that it was in the Church Courts alone that they could be determined; and that the Civil Court could, in no such case, interfere, either originally or by process of review. All questions of Heresy accordingly, or Discipline, or generally of the relative rights of Kirk-Sessions, Presbyteries, and Synods in the government of the Church, were questions for the Church Courts only. And it was, if possible, still more clear, upon all practice and all principle, that the whole matters of the Education of candidates for the ministry, of their original Licensing, and afterwards of their Calling, their Trials, their moral character, their Ordination, and Admission, were exclusively with the same authorities. The Civil Court could not itself conduct, or regulate by its authority any one of those proceedings; or in fact interfere or look at them at all, except singly, where it was alleged, either that they had proceeded without the warrant of a legal presentation, or were made the pretext for an illegal exaction of stipend. It was very remarkable, accordingly, that all the cases to which the pursuers had referred, as establishing the right of this Court to look into the proceedings of Church Courts, in this matter of the admission of ministers, had, without one exception, arisen either upon an existing competition for the right of patronage between two or more parties, or on a similar competition for a present right to draw or to retain stipends; nor had any thing more ever been adjudicated here, than was necessary to settle those purely civil interests, beyond which former Judges had steadily, and most correctly, refused to interfere. The result of all the decisions referred to, as sanctioning the interference of the Civil Court, appeared to be merely this, that where a Presbytery had judged wrong as to who had the civil right of presenting, the Civil Court would not recognise their induction of the wrong presentee, as a title to the temporalities: but would not meddle either with induction itself, or with any of its ecclesiastical preliminaries: and the ground of these judgments appeared to have been, that the right of patronage being a proper civil right, and the law giving to the presentees of lawful patrons, and to them exclusively, a right to the temporalities of a benefice (which was also a civil or patrimonial right), so no act of an ecclesiastical court could possibly give that civil right to any other parties; and that if the Church courts had rashly taken upon them to judge of the right of a patron, and judged erroneously, and consequently inducted one who turned out not to be a lawful presentee, it was clearly competent for the Civil Courts to disregard that induction, as a title to the temporalities; although they could have nothing to say to it as the bond of a spiritual relation. In truth all former cases formed a contrast with the present, amounting to no less than this, that in them the Court, even when compelled to consider the illegality of the Presbytery's proceeding, as directly prejudging a civil interest, studiously abstained from finding or declaring that illegality; but simply decided the civil question before them,—passing over the incompetent proceeding sub silentio; while this Court was now called upon to decide no civil right whatever, but merely to declare illegal a certain act of the Presbytery, which adjudicated on no civil right, but was strictly in the course of their ecclesiastical procedure.—In filling up a vacancy, the patron had the sole right of nomination; but the Concurrence of the people was an ancient and necessary ecclesiastical preliminary to the admission of the presentee, as much as the approbation of the presentee's trials by the Presbytery. Each of these was alike an ecclesiastical proceeding, and alike a limitation on the right of the patron. In refusing to admit a presentee without the requisite Concurrence, the Presbytery were not refusing to fulfil the obligation of admitting, they were only insisting upon admitting according to their established rules and principles. The question involved here was essentially different from any question as to a Presbytery's sustaining a presentation or not. The object in judging of the presentation was simply to ascertain who was the true patron—or a point of mere civil right; but what was the object of the subsequent proceedings? Was it, or could it be represented as any thing else than to ascertain the fitness of the presentee to minister successfully in holy things to that particular people? and could their proceedings to that end be the subject of discussion in a Civil Court? It was said that the right to be taken on trials was a civil right, and a step to a valuable status. But what was the object of the trial but to prove the capacity of the party for religious services? surely not for enjoying the temporalities of the office. The only status which the Church could pretend to bestow, was a spiritual and ecclesiastical status bestowed by the solemn rite of ordination; and every test and every requisite it ordained as conditions of obtaining that status, were necessarily ecclesiastical also. If it were a part of the law and order of the Church, that before they could be justified in ordaining an individual as the pastor of a particular congregation, they must be satisfied that he was not unacceptable to a certain part of it, was it not plain that the proceedings necessary for obtaining that satisfaction, must, whatever else they might be, be at least proper ecclesiastical proceedings? as forming part of those provisions for spiritual edification, which, above all others, deserved that appellation, and were by their very description exclusive of all civil control. From the specific remedy of retaining the stipend, given by 1567, c. 7, to the patron whose presentee was rejected, the inference was plainly to be drawn, that that was the only remedy which was intended. It seemed to be protection enough for the civil interests of the patron, and, until induction, the presentee had no civil or patrimonial right vested in him, especially as the terms of the presentation assigned him into the temporalities only “so long as he shall serve the cure,” which, until induction, he could not begin to servo. No civil interest, therefore, was truly adjudicated by the Presbytery, except in sustaining the presentation. And that the matter before the Court was wholly ecclesiastical, farther appeared from the incompetency of the Civil Court, even if they found that the Presbytery had acted illegally, to decern them to undo what they had done. For it seemed indeed to be wholly without precedent or analogy that a court of supreme jurisdiction, should have power to declare what a party competently brought before it ought not to have done, and what such party ought to do, if it had not power also to decern and ordain such party to undo what had been wrong done, and to do what was right; and also to enforce its decree, by the usual executorials of the law. The pursuers asserted broadly enough that the Civil Court had such a power. But none of the Judges had gone that length: and indeed, when it was considered that the Civil Court could not possibly stop short of the sacred rite of ordination,—since without that there could be no admission to the benefice,—it was utterly impossible to hold that the Civil Court could decern a Church judicature to confer that rite upon one, whom, upon spiritual considerations, they thought unfit to receive it; and to issue horning and caption against those who may conscientiously refuse. It was quite in vain to take distinctions; or to disguise the difficulty, by dividing the process into its several stages. What was asked for this presentee, was full admission to the office of the ministry, and nothing else. The whole of the proceedings, after sustaining the presentation, appeared to be properly ecclesiastical: but at all events it was clear, that the concluding and most important part of them, was purely so. And if that could not be dispensed with, and was distinctly required by the pursuer, how could the Civil Court possibly decern the Presbytery to admit, without intruding, in the most flagrant manner almost that can be imagined, on their sacred and peculiar province? It would be but a little greater profanation, if the Court were asked to order a Church court to admit a party to the communion table, whom they had repelled from it on religious grounds; because he had satisfied the Civil Court that he was prejudiced in the exercise of his civil rights by the exclusion.—The alternative which had been thrown out, that, if the Civil Court could not decern for actual admission and ordination, it might subject the Presbytery in damages for not admitting, was even more startling than the proposal itself to decern. But it did not seem likely that, in any event, such an attempt should ever be made.—But it was said, that, even though the procedure of the Presbytery was strictly ecclesiastical, it still involved the civil right of the patron so directly, that the Civil Court, in explicating its proper jurisdiction, was entitled to take cognisance of the illegality of the ecclesiastical procedure, and to declare it. It was true that a Civil Court might adjudicate, for civil purposes, on the same facts which a criminal or other court had already dealt with; as, if a party had been acquitted of fire-raising in the Court of Justiciary, and claimed under a policy of insurance in the Civil Court, against which claim the defence was set up, that the claimant had wilfully raised the fire. To the effect of determining the civil question of liability for the sum claimed, that allegation might be tried and determined in the Civil Court; but not by way of reviewing the criminal procedure of the Court of Justiciary and declaring it illegal. The Civil Court would merely disregard that criminal procedure, and proceed to dispose of the interests submitted for its own decision, on the facts brought before it, without respect to the views which had been entertained on these facts elsewhere. And most of the cases of privilege, or conflict between Courts of Law, and the Houses of Parliament, might be truly referred to this category. No proposal was ever made, in them, to pass a sentence directly censuring or condemning what had been done in Parliament, but only, a right was asserted in the Court, dealing with the civil interests before it, to disregard and pass by what had been done elsewhere, and to refuse to recognise what had been so done, as any bar to its exercising its own admitted jurisdiction. Suppose that a reward were made payable to an informer, on conviction of a felon in the Court of Justiciary, and that the pannel was either acquitted on trial, or the libel thrown out as irrelevant; if the informer raised action in the Court of Session, concluding to have it declared either that the acquittal was illegal, and that there should have been a conviction, or that the libel was relevant, that the rejection of it was illegal, and injurious to his patrimonial interests, and that the pannel should still be taken on trial by the Court of Justiciary, it assuredly never could be held competent to give decree in terms of such a libel. The conviction was a condition precedent of the informers right to the reward; and the procedure for conviction, being of a criminal nature, and proper for the jurisdiction of the Criminal Court, which was a supreme and independent jurisdiction, could not be reviewed and declared illegal in the Civil Court, nor could the Criminal Court be decerned to retrace its steps, by the Civil Court, though it might very well happen that the civil and patrimonial interests of the informer were consequentially affected by the procedure of the Criminal Court. And in like manner, in the present case, where induction was a condition precedent of the presentee's having right to the stipend and emoluments of the benefice, he had as little title to require the Civil Court to review the procedure of the ecclesiastical court, in proper ecclesiastical matters, and to declare it illegal, or to decern these Courts still to take him on trial, although his civil and patrimonial interests might consequentially be affected by their procedure. It was true that a Civil Court was obliged occasionally, in order to explicate its proper jurisdiction, to enter incidentally upon questions which, per se, were appropriated to other Courts; but still it must be observed, 1st, That this could never be done except where it was indispensably necessary for the extrication of some civil interest, directly and properly brought for judgment in the court where the question arises. 2d, That it could only be allowed where there had been no previous adjudication of the proper courts for trying the incidental question, and where there were no ready means of obtaining their judgment. And, 3d, The effect of the decision, given on this necessarily assumed jurisdiction, could never extend beyond the case to which it was incidental, and might not always be permanently authoritative even as to that case. At all events, it could in no degree limit or affect the full and overruling authority of that Court within whose peculiar province it naturally lay, if the matter should ever afterwards come for adjudication before it. But, in the present case, it should be remembered, first, that there was here a final judgment of the Church Courts in a matter now assumed (and which seemed proved) to be clearly ecclesiastical; and second, that there not only was no present or direct civil interest on which the judgment of the Civil Court was sought; but that the only thing that the Court was called on to do, was to find that this final judgment of the Presbytery was illegal, and injurious generally to the patrimonial interests of the pursuer. If a Presbytery, who had competing presentations before them, ventured extra provinciam, and proceeded to sustain one of these, and to induct the presentee, they did so at the certain peril, that, if their procedure was afterwards challenged, the Civil Court would adjudicate on the question of which was the lawful presentation, without regard to the judgment which the Presbytery, had, extra provinciam, pronounced in that matter; though the actual induction which the Presbytery had made, and all that was truly ecclesiastical in their proceedings, would remain just as untouched and unquestionable, as a previous judgment of the Civil. Court on the question of patronage, if such had been pronounced, must and would have been with the Presbytery. In short, after the Presbytery had once sustained the presentation of the true patron, the subsequent steps of the process of admission were all within the proper province of the Church, and for the cognisance of the Church Courts or the Legislature alone.—This view implied that the pursuers' plea was bad, in maintaining that any proceedings of the Church Courts, though in matter ecclesiastical properly pertaining to their jurisdiction, did, if in any respect ultra vires, let in the controlling jurisdiction of the Civil Court. And the grounds of this might be shortly stated. Where a Supreme Court acted as to natters which were within its proper province, its acting ultra vires could be controlled by the Legislature alone. If the Court of Justiciary pronounced sentence for only one year's imprisonment on a pannel convicted of high treason, that sentence would undoubtedly be ultra vires, the only competent punishment being death. And the sentence might affect most important patrimonial interests, as, for instance, if the traitor were the last branch of a substitution in an entail, and the first in order of the next substitution, should be thereby kept out of the estate. Yet if such party brought a declarator in the Civil Court, concluding to have it found and declared that the Court of Justiciary were bound to have passed sentence of death; that their sentence of mere imprisonment was illegal and ultra vires; and that it was to the prejudice of the pursuer's patrimonial interests, these conclusions would clearly be incompetent in the Civil Court, and any ulterior conclusions which were based on these, could never be arrived at. It was on this principle that, in all the cases in whieh Presbyteries had inducted a wrong presentee, and had accordingly acted ultra vires in so doing (as the acts 1592, c. 116, and 1711, c. 112, clearly implied an obligation to induct only the rightful presentee), the Civil Court, though disregarding such induction as giving right to the temporalities, had never reduced the admission and induction, or decerned the Presbytery to recall and undo it, although there were the strongest interests, both public and private, to have led to such a decree, had it been competent to pronounce it. And be, putting it merely by way of illustration, if the majority of the Church should become heretical, depart from the Confession of Faith 1690, and, after trial, reject a presentee on account of his adherence to that Confession, it would still be out of the power of the Civil Court to declare their proceeding to be ultra vires and illegal, and decern them to retract and admit the presentee. All human tribunals were necessarily liable to error, and the error of exceeding their legitimate powers might be fallen into, by any court, whether civil or ecclesiastical. But if such court were supreme, there was no remedy but in the Legislature; and nothing could be more unconstitutional than to allow one fallible tribunal to trespass beyond the field of its proper jurisdiction, in order to remedy, or rather not to remedy, but only to Declare, an excess of power, alleged to have been committed, though within its own province, by another. Unless the error were extra provinciam, as well as ultra vires, the remedy could only be had from the Legislature.—But, farther, the proceedings complained of in this case did not appear to be ultra vires of the Church. The obligation to admit and receive qualified presentees, which was imposed by 1592, c. 116, was substantially re-enacted by 10 Anne, c. 12. And the question was, on what grounds were Presbyteries entitled to refuse admission, after they had rightly sustained a presentation? Keeping in view that the act 1567, c. 7, had been ratified (through the medium of 1581, c. 99) by 1592, c. 116, and 1690, c. 5, and was now, in all its clauses, a subsisting enactment, Presbyteries only being substituted for Superintendents, it appeared to apply to all cases in which the Presbytery rejected a presentee on account of any objection whatever, arising subsequently to the sustaining of the presentation. And in all such cases, the right of appeal was thereby limited exclusively to the Church Courts. But it did not apply where the Presbytery rejected the presentation itself, on the ground that the alleged patron had no right to present. Its application to that civil question was not to be presumed without express words; and the contrary was implied in the words of the act. None of the decisions referred to were inconsistent with this construction, as the title of the patron had, in all of them, been objected to by the Presbytery, and so a proper civil question was raised. And from the structure of the act 1592, c. 116, and looking to the unbroken usage since its date, it appeared, 1st, That the jurisdiction and power of the, General Assembly were not limited by any specification whatever, but left on a general reference to the known and existing usage of ‘the Church now openlie and publicly professed in this realm 2d, That it had a general power to make ordinances binding on all inferior judicatures; and, 3d, To ‘put ordour to all matters and causes ecclesiastical, according to the discipline of the kirk.’ A similar reference to usage was made in 1690, c. 5, and, as Lord Fullerton had observed, the clause in 10 Anne, c. 12, obliging Presbyteries to admit presentees “in the same manner as persons presented before the making of this act ought to have been admitted,” plainly referred to the previously existing mode of admission, under 1690, c. 23, when the presentee of the heritors and elders was subject to the approval or disapproval of the congregation. In substance, the act 1834 did not seem to vary from the provisions made for admission, before 10 Anne, c. 12; but even if they did so, it would not aid the pursuers, as the necessity of the Concurrence of the people was equally established, and the jurisdiction of this Court was equally excluded, the whole power of regulating admission being still left in the Church Courts according to such construction, and they being quite entitled to find that it was a sufficient reason to reject a presentee, if a majority of the congregation solemnly declared that they could receive no edification from his ministry.—But, independently of this, if it could be shown that, according to the Standards of the Church, and the usage of all the early Christian Churches, constantly therein referred to, it had been always held that a Minister could not he intruded on a congregation against their will, it would be difficult to maintain that the statutory clauses obliging Presbyteries to admit and receive qualified presentees, were to be read without reference to such open and existing rules and usage. On the contrary, the obligation imposed on Presbyteries should be read as binding them to admit qualified presentees, according to the established rules and open practice of the Church. And it appeared, in reference to the practice, that the obligation should be read with reference to the established principle of non-intrusion. Even if the Concurrence of the people, which was never renounced or abandoned, only took the form and name of a Call, after 10 Anne, c. 12, still it would appear, 1st, That by the practice of 120 years, such a Concurrence, and in that form, was now an indispensable part of the ecclesiastical procedure, towards ordaining and settling a parish minister; 2d, That the act 1834 was truly a mere regulation of that necessary procedure; and, 3d, That all the proceedings subsequent to sustaining the presentation, were intended for the one purpose of ascertaining the qualifications or fitness of the presentee to be so ordained and settled in the congregation; and were therefore within the exclusive province of the Church, on the most rigorous construction of the statutes.

Lord Jeffrey then made observations, corresponding with the views of Lords Glenlee, Fullerton, and Moncreiff, as to the necessity of the Call, and the powers of the Church both as a Judicature and a Legislature, to adjudicate and regulate thereon. His Lordship also observed, that he considered a presentee's acceptable-ness to the parish to be one of his qualifications, and among the most indispensable of the whole, for the performance of his unties as pastor; of which qualification the Church had as express and exclusive right to judge, in the process of admission, as in regard to the other qualifications of doctrine, literature, &c. The qualities, or defects, in the presentee which were indicated by the dissent of the people might infer no moral reproach, or intellectual impeachment; and they might often be such as to be incapable of being either distinctly stated or formally proved. They were merely relative to the condition of the people who were impressed by their effects; and might resolve only into a deep sense of such utter unsuitable-ness as to leave no hope of comfort or profit from their proposed relation. The preacher might be orthodox, and learned, and eloquent: But he might be too rapid for the comprehension of a dull parish—too ornate for their rusticity—too erudite for their ignorance. The very gifts which would have made him the glory of an university, or the delight of a cultivated metropolis, might be disqualifications for a congregation of incurious rustics. If Dr Clarke had preached his great sermons on the a priori argument for the existence of a Deity, at Anchterarder, or Dr Parr some of his learned discourses on the first verses of St John, the congregation would have been well entitled to say that they could receive no benefit from such lofty ministrations. But there might be many other most solid grounds for such a conviction. The preacher might pronounce his words too finely to be intelligible in a provincial district. He might be surly and repulsive in his manners—or too brisk and airy to suit their gravity—or too cold and reserved to invite their confidence, or give promise of any comfort in an intercourse which ought to be endearing. None of these things could well be stated as specific objections; or very well proved, otherwise than by the testimony of those who were conscious of their effects on themselves. But could it be doubted that they were serious disqualifications? and that the least of them was far more likely to unfit the pastor for the successful discharge of his duties, than a little less Hebrew or church history than might have been required by his learned and reverend examiners? For the latter deficiency he was rejected without right of appeal to any civil tribunal; but the former, it was said, was not to be regarded as a deficiency at all; and the solemn declaration of three-fourths of the congregation that they could receive no edification from his ministry was held to be no evidence of any unfitness in him for the charge. It had been said, that this rigid; of dissenting would be often abused. But there was the strongest ground for the conviction, that where Scottish heads of families thus came forward to record their dissents, under the sanction of such a declaration, their proceedings would generally be found to rest upon reasons at least as strong as any now stated: And since it was admitted that the Church Courts had the power of rejecting for unfitness, not generally for the office of the ministry, but unfitness for the particular parish in contemplation, there was great difficulty in imagining what better evidence could generally be given of such unfitness, than was furnished by such dissents and declarations. It had been said that the only proper “trials” to which the presentee was liable, related to his scholarship, orthodoxy, &c. But these were only part of his trials. His moral probation, after the service of the edict, was also a part of them, though coming after these specific trials of orthodoxy, &c. and so also his probation in preaching before the congregation, that they might judge of his gifts, and give or withhold their concurrence, was part of the trials also, though coming before the same specific trials above mentioned.

Lord Jeffrey also observed, that he concurred with Lord Fullerton in holding that the question as to the legality of the act 1834 was not raised under the summons and record, and that the only question competently raised was, whether a presentee was entitled to be taken on trials, per saltum, immediately after his presentation was sustained, and without any Call or Concurrence whatever. His Lord-ship then added—“I have said nothing of the peculiar importance of this case; but I can assure your Lordships that I feel it as deeply as any of your number. But we must decide without regard to consequences; and I do what I can to turn away from their consideration: For I grieve to say, that I thoroughly participate in the painful conviction which was expressed, I think by Lord Meadowbank, that whatever decision we may give on this question, the effects are likely to be unfortunate. It is certainly my impression, that the risk and the evil would be less, if decided as I would decide it. At the same time I am bound to say, that if I thought such a decision likely to lead to the introduction of a system of popular election of ministers, I should not be of that opinion; having the strongest possible conviction, that no dissensions in the Church, no risk of farther secession from her pale, no prospect even of recurring and more distressing conflicts between the civil and the ecclesiastical authorities (which are the evils I fear, from the decision to which I am opposed), would be so injurious to the peace and honour of the Church, and to what is far more important, the religious and moral welfare of the people, as the concession of that fatal boon for which so many are, as I think, so ignorantly, contending. These issues, however, must be left to Providence; and we have nothing to do but fearlessly to discharge our precise and limited duty.

“I am for dismissing the declaratory conclusions as incompetent; and finding, separating that the Act of Assembly 1834, and the proceedings of the Presbytery in the execution of it, were not illegal, or ultra vires of these ecclesiastical authorities.”

Lord Cockburn observed that he concurred with Lord Moncreiff in holding both that the pursuers were barred by the plea of acquiescence, and that the summons and record were not so framed as to justify the Court in deciding the only question which had been argued. Laying aside all views of expediency, as not fitted for judicial consideration, it appeared, First, That in doing what the Court was now asked to condemn, the defenders were acting in a character, and in relation to a matter, in which, even though they were wrong, the Civil Court had no jurisdiction to set them right; secondly, That though the Court had jurisdiction, and was entitled to review their proceedings, what they did was legal, and that, therefore, the pursuers were not entitled to any redress, and least of all to the redress which they now sought. When the law preserved patronage, it armed the Church with strong powers to prevent the abuse of the trust thereby confided to the patron; and the whole question in this action would be solved so soon as it was ascertained what these powers were. It was true that the Church, as an Establishment, had no power but what the State had conferred upon it. But it would not be inferred from this, that all power was to be withheld from the Church, for which no express clause could be produced in any Act of Parliament. Scarcely any old institution could stand upon that rule for a single hour. When the Legislature adopted Presbytery, it did so in reference to pre-existing ecclesiastical principles; just as when Episcopacy took the place of Catholicism, it carried along with it, and retained, the known and established rules of the old Church, in so far as they were capable of being transferred to the new one. In establishing Presbytery, the Parliament of Scotland did not proceed to manufacture a system entirely new in all its details, as if there had never been a Church before, but built upon the old ecclesiastical foundations. The Court were not, therefore, to expect that its privileges were imparted to the Church, or its duties imposed upon it, by precise modern definition. They wore given in a few words; the full import of which it had been the work of centuries to evolve.

Lord Cockburn then examined the statute 1592, c. 116, and the subsequent practice, in support of this view, and observed, as to the legislative powers of the Church, that these were not any thing equal, or analogous, or repugnant, to the legislation of Parliament. They amounted to this, that whenever a matter was within the peculiar jurisdiction of the Church, so that it could dispose of it at any time it occurred, by a separate determination, then the Church was entitled to embody its opinion in the form of a prospective rule, which it could compel all its members to obey. Its right to exercise that legislation, that is, to regulate the internal polity of the Church by Acts of the General Assembly, was indisputable and indispensable. Without that authority, and largely exercised, the Church must have been wrecked a hundred times; and there were very few years, even of its modern existence, in which it would not be aground were this privilege to be denied it. Without laws, made under the permission of the State, by itself, the Church could not have defined the limits and duties of its own component parts, the Assembly itself included; it could not now educate a single student, or license a single probationer, or admit or remove a single minister, or preserve the subordination and discipline of its system for an hour. The Barrier Act, which had now been acted upon for 140 years, and required the consent of a majority of all the Presbyteries of the Church to any new law, was of itself a public acknowledgment of the Church's legislative powers. By the constant exercise of these powers on every proper clerical subject, had the Assembly suited the Church to the necessities of different eras; and if it were now to be discovered that all this was usurpation, and that wherever any atom of civil interest was indirectly affected, the Assembly's legislation ceased, the Church must instantly fall to pieces.—The Legislature had given the power of collation, or the whole process of examination and admission to the Church. But those conclusions of the summons, which alone were before the Court, amounted substantially to this, that the Court should not only declare what the Presbytery had done, in the matter of collation, to be illegal, but should prescribe to them, acting in the matter of collation, what they should do hereafter. The essence of the demand was, that the Church, contrary to its own view of its spiritual duty, in that spiritual matter, should induct by order of the Civil Court. All that was for the Church Courts to consider, and not for the Civil Court, and was expressly provided for by 1567, c. 7.

Lord Cockburn then adverted to the necessity of a Call, as a step in the settlement of a presentee, and observed, as to the judicial practice of the Assembly, which relaxed the efficacy of the Call, that they never abolished it in practice, and never even attempted to strike it out of the system. All that they did was, that exercising their own discretion in their own day, they tried to make the Call, so long as it was administered by them, insignificant. But they still left it to be stated as a fact at this hour, that, for the last 150 years or thereby, not a single clergyman had been admitted into a Church, without a Call given by the people, accepted by the presentee, and approved of by the Presbytery. And accordingly the Act of Assembly 1782, and the cases constantly occurring for decision on the sufficiency of the Call, amply proved that it was constantly recognised as a necessary step in admission. Call was part of the process of collation, and was therefore under the exclusive jurisdiction and control of the Church. The Court might look into the matter, though spiritual, as into any other matter, in so far as was necessary for the disposal of a civil interest. But there was no civil interest at stake in the first conclusion of the summons; or assuming that there was, the demand was, that this civil interest, whatever it were, should be reached by the Civil Court controlling the Church in the induction itself; and particularly in that part of it which consisted of the Call. Let the Church be ever so wrong in what it had done, the Civil Court had not the power to give redress by taking the admission out of the hands of the Church; or by making the Church, in the admission, a mere instrument in the hands of the Civil Court.

In regard to the right of the Church to judge of the qualifications of the presentee, including his fitness for the parish, and consequently his acceptableness to the people, as a most important qualification, his Lordship took the same view with the Judges who were for sustaining the defences. His Lordship considered none of the decisions to be in point, as it was the patronage or temporalities of the benefice, which, in all of them, formed the subject of dispute. And, in so far as regarded the alleged analogy between the Church and a Corporation, it should be observed, 1st, That the Church of Scotland could not be regarded as a mere corporation; and 2d, That, though it were, it would be a corporation on which the law had imposed the duty of declaring the qualifications of its new members, and the forms of admitting them, to the exclusion of all other powers, and particularly to the jealous exclusion of the civil power.

Lord Cockburn observed that the act 1834, even if examined on its merits, was free of illegality. It was, in substance, an act for the regulation of the Call; and it was within the province of the Church to regulate that matter. There was no existing statute which required that the dissent of the people should be, on reasons stated; it was not clear that the law of the Church had ever made that indispensable; but if it had done so, the Church was equally entitled by a law to dispense with the statement of reasons. And was there any thing to hinder Presbyteries from holding, that there could be no better reason for rejecting a presentee, than that, from his being deeply disliked, his being admitted was certainly to lead to the secession of the people? And if this fact were a valid reason, where was the law winch prevented Presbyteries from ascertaining it in any way satisfactory to themselves, and from acting on it forthwith? In any rational view, the objectors in the present case did give in their reason, when they attested the fact. What else would they have required to do if the presentee had been dumb? They would merely have let the Presbytery know the fact; and the fact was the reason. At least it was competent for the Church to hold so. The acceptableness of the presentee to the people was a qualification; the presentee had been put on his trials as to that part of his qualifications; and it was sufficiently proved by the dissents that he wanted the qualification. And there was no actual difficulty which could prevent a patron, who desired to discover the feeling of the parish, from ascertaining it, before committing himself, or any probationer, by a presentation.

Lord Cockburn enforced, with new illustrations, the views and principles which had been stated by the four immediately preceding Judges, and added—“I cannot conclude without noticing what has been said about collision. The defenders endeavour to alarm us, by showing how they may Bet our judgment at defiance; and the pursuers try to allay the alarm by assuring us that the Church will speedily yield. This is a matter which concerns the Court more deeply than some of your Lordships seem to be aware. No doubt it is our duty to declare the law, and the duty of all to obey it. I cannot doubt that the Church will obey it, both from inclination and necessity. But it is also the duty of a Supreme Court to avoid every collision, through which it cannot see its way. Its dignity must necessarily be put in jeopardy by its exposing itself to a conflict in which it cannot explain how it is to prevail. This, I fear, is the position in which this Court is about to place itself. It is about to enter upon an untried voyage without a compass or a star. From the moment that a judgment shall be pronounced in favour of the pursuers, the civil and the ecclesiastical authorities are in a state of legal collision. Yet it is disclosed that no one, either at the bar or on the bench, can tell us what is to come next. Certain proceedings by the Church may be anticipated. To meet these we have had nothing definite laid down; but, after hearing some ulterior steps suggested, which make one start, we are told to rely on the latent vigour of the law. I do rely on it with the greatest confidence. But it is this that alarms me. For it may remain to be seen, whether, under the law, the defeat of what our judgment means, may not depend too much on the pleasure of the Church. The Church may be tempted to find out what its dormant powers are also; and whether there be expedients within its reach, by which the objects of the late act may be practically secured, though the act itself be quashed. The probability of this is, of itself, no inconsiderable proof that we have gone out of our province, and encroached upon a field to which our power does not extend. Whatever it may do, I hope that the Church will excuse one who counts himself among its warmest friends, if he venture to express a wish that it may proceed with sobriety and candour;—not misled by the irritation of a disappointed litigant, nor by the mortification natural to men who find that error has made a favourite object fail,—but thinking of duty more than of victory,—recollecting that this excitement of the public attention may of itself abate the abuses of patronage; and that its true policy is, never to keep itself in opposition to the civil power one moment longer than is indispensable for the maintenance of its authority and usefulness.”

Lord Coninghame observed, that when the Presbytery rejected the presentee, in the present instance, without examination, because the majority of the heads of families dissented from the presentation, they virtually, and according to the plain sense of the great bulk—the majority of mankind, transferred a part and portion of the patron's right of nomination to other parties, and so refused effect to a civil right constituted by the same statutes, under which alone they themselves had any jurisdiction in the matter. And if this could not be remedied in the Civil Court, it would amount to this, that the Church might either directly, or by the most palpable evasion, reject or defeat, without any control from the Civil Court, the most valued patrimonial and hereditary rights of others, declared in the very statute under which the present system of Church government was established and founded. Were any such doctrine sanctioned, it would lead to an ecclesiastical despotism within the State, as alarming in itself as it would soon be destructive of that Establishment, for which this extraordinary and irresponsible power was claimed.—The summons, as amended, appeared to be a writ, satisfying the strictest forms of the law, and sufficient to raise every question necessary for the full extrication of the pursuers' rights and of the defenders' pleas. * And when the circumstances were duly considered, there was no sufficient ground for any plea of acquiescence or homologation, as barring the pursuers from challenging the act 1834.—It appeared that the “qualifications” which had been required in a presentee, had, from the most ancient times, related solely to the literature, morals, doctrine, life, and conduct of the party. 1 And the term “qualifications” had continued to be used in the same sense after the Reformation. No power was either reserved for, or bestowed on the people, under 1592, c. 116, to approve or reject a qualified presentee. And that act was, in substance, revived by 10 Anne, c. 12, which described the person whom Presbyteries were bound to admit and receive, as any “qualified person or minister;” terms which were then, in the statutory language of both England and Scotland, understood in the same sense as they were in the ancient language of Scotland above referred to.—The presentation, in this instance, was never truly sustained by the Presbytery to any serious effect. It was nominally sustained; but the Presbytery thereafter, on the dissent of certain third parties, without cause, and without title, positively declined to take any trial of the presentee's qualifications, and rejected him. In so doing, the Presbytery did, in substance, deny effect to the presentation, and violated the civil law as it now stood on the statute-book.

In regard to the Call, his Lordship concurred generally with Lord Mackenzie. And in taking a review of the statutes, the Acts of Assembly, and the state of the practice, his Lordship supported, and nearly coincided with, those of the preceding Judges, who were of opinion that the act 1834 was ultra vires, and was an encroachment on the civil rights of patrons; that the jurisdiction of the Civil Court was competent to dispose of the action before it; and that decree should be pronounced in terms of the declaratory conclusions now insisted in.

After the Court had delivered their Opinions, the defenders, with consent of the pursuers, craved the Court to allow a plea in law to be added to the record, to the effect that “the pursuers were barred by acquiescence from objecting to the proceedings of the Presbytery of Auchterarder, and pleading that the same were illegal.” This plea being stated in a minute, the Court, “of consent of parties, allowed the above plea, in defence, to be added to the record.”

_________________ Footnote _________________

* His Lordship then analyzed the structure of the summons, observing, in particular, that it was unnecessary for the pursuers to libel on the act 1834 in any shape, and that they were entitled to reply to the defenders (who founded on it), by pleading its illegality.

1 Reg. Maj. B. I. c. 2, § 3; Balf. Pract. p. 501.

The Court then pronounced this interlocutor:—“The Lords of the First Division, having considered the cases for the Earl of Kinnoull and the Rev. Robert Young, and for the Presbytery of Auchterarder, with the record and productions, and additional plea in defence admitted to the record, and heard counsel for the said parties at great length, in presence of the Judges of the Second Division and Lords Ordinary, and having heard the opinions of the said Judges; They, in terms of the opinions of the majority of the Judges, repel the objections to the jurisdiction of the Court, and to the competency of the action as directed against the Presbytery: Further, repel the plea, in defence, of acquiescence: Find, that the Earl of Kinnoull has legally, validly, and effectually exercised his right, as patron of the church and parish of Auchterarder, by presenting the pursuer, the said Robert Young, to the said church and parish: Find, that the defenders, the Presbytery of Auchterarder, did refuse, and continue to refuse, to take trial of the qualifications of the said Robert Young, and have rejected him as presentee to the said church and parish, on the sole ground (as they admit on the record), that a majority of the male heads of families, communicants in the said parish, have dissented, without any reason assigned, from his admission as minister: Find, that the said Presbytery in so doing have acted to the hurt and prejudice of the said pursuers, illegally, and in violation of their duty, and contrary to the provisions of certain statutes libelled on, and, in particular, contrary to the provisions of the statute of 10 Anne, c. 12, entituled ‘An Act to restore patrons to their ancient rights of presenting ministers to the churches vacant in that part of Great Britain called Scotland;' in so far repel the defences stated on the part of the Presbytery, and decern and declare accordingly; and allow the above decree to go out and be extracted as an interim-decree; and with these findings and declarations, remit the process to the Lord Ordinary to proceed further therein as he shall see just.”

Solicitors: A. Storie, W.S.— W. Young, W.S.—Agents.

SS 16 SS 661 1838


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