) sewers te Theologica g PRINCETON, N. J. ak WL uy ‘4 | aad — a U. 15/78 BOSS 0ee kay Ss | Kinnoull, Thomas Robert Ha Drummond, 1785-1866, Report of the Auchterarder CASE ae Se Oe ae ae Oe ore 9 ae ae ees x na “pen Ri eB - ORT OF THE. AUCHTERARDER CASE, THE EARL OF KINNOULL, AND THE REV..R. YOUNG, AGAINST THE PRESBYTERY OF AUCHTERARDER. By CHARLES ROBERTSON, Esa, ADVOCATE, ONE OF THE COLLECTORS OF DECISIONS, BY APPOINTMENT OF THE FACULTY OF ADVOCATES. VOE. IF PUBLISHED BY AUTHORITY OF THE COURT, EDINBURGH : ADAM AND CHARLES BLACK, NORTH BRIDGE ; AND LONGMAN AND CO., AND J. NISBET, LONDON. M.DCCO.XXXVIII. as - ‘ ers a one HOU A Oe Gs ag CHET erEye pol (MOARIAGOM aa TbAHO a RAOOTCA ¥z ee rec 49 adore gs OLA 1. CCP AT. sie ‘ ‘ale sites . Aon id ee ot th haw ‘At 4 eee jm ' me me ane a on CONTENTS. VOLUME SECOND. Tue SPEECHES OF THE JUDGES IN DELIVERING THEIR OPINIONS REVISED BY THEIR LorDsHIPs, AND PUBLISHED BY AUTHORITY OF THE CouRT. The Lord President’s Speech, - - - 3 Page 1 Lord Gillies’s Speech, - - - : a 21 Lord Justice-Clerk’s Speech, - - - f a WES Lord Meadowbank’s Speech, - ; = “ 79 Lord Mackenzie’s Speech, - - « - 115 Lord Medwyn’s Speech, - - - . 133 Lord Corehouse’s Speech, - - - : 217 Lord Fullerton’s Speech, - - 239 Lord Moncreiff’s Speech, - - . = 275 Lord Glenlee’s Speech, - - : 2 355 Lord Jeffrey’s Speech, - : we fi . 361 Lord Cockburn’s Speech, - - - - 397 Lord ‘Cuninghame’s Speech, - - - = 419 The Judgment of the Court, - - - 450 APPENDIX OF Acts OF PARLIAMENT REFERRED TO. No. 1.—Act 1567, c. 6, « “ 7 . 1 No. 2.—Act 1567, c.%; é < 2 = 1 No. 3.—Act 1578, c. 61, = 5 ; bs f 2 No, 4.—Act 1581, c. 99, e 2 pH 5 2 No No No No. No. No No ® CONTENTS. . 5—Act 1584, c. 129, - u . 6.—Act 1584, c. 131, re é . T—Act 1584, c. 132, - -* . 8—Act 1592, c. 116, & “ 9,—Act 1592,c.117,—- . 10.—Act 1690, c. 1, - ~ _11.—Act 1690, c. 5, ‘ : . 12.— Act 1690, c. 23, - “ . 13.—Act 10, Q. Anne, c. 12.—A. D. 1711, . 14.—Excerpt from Act 5th Geo, I. c. 29, REPORT THE EARL OF KINNOULL, &c., against THE PRESBYTERY OF AUCHTERARDER, &c. OPINIONS OF THE JUDGES. Arter the Pleadings in this Cause were closed, the following Opinions were delivered by the Court on Tuesday the 27th of Fe- bruary 1838, and the six subsequent days. Tue Lorn Prestpent.—My Lorps,—In arranging the reasons for the opinion which I am now to deliver to your Lord- ships, I have endeavoured to condense them as much as possible, having regard always to the necessary perspicuity. I have omit- ted many topics, which, in the course of studying this important cause, presented themselves to my mind, being quite certain that such matters as I have either omitted, or but slightly noticed, willbe fully and more ably touched on, by such of your Lordships as may agree with me in opinion. And with the further view of saving your Lordships’ time, I shall not enter into any analysis of the different decisions which have been quoted to us, but shall confine myself to a general reference to that class of cases, which go to support the views which I take of the jurisdiction of this Court in cases such as this, where the proceedings of the Church Courts appear to trench on the law of the land, and the patrimonial rights of patrons and presentees. By this means, I hope to compress my opinion within a reasonable compass. VOL. It. A 24 THE LORD PRESIDENT'’S SPEECH, This is a Declarator, with petititory conclusions, brought by Lord Kinnoull, as patron of the kirk and parish of Auchterarder, and Mr Young, a licentiate of the Church, presentee to that pa- rish, to have certain patrimonial rights of theirs respectively de- clared by this Court. I shall hereafter consider more particularly the specific conclu- sions of the Summons. At present, the case before us involves the question, whether an act of the General Assembly of the Church, under which the presbytery acted, and by which the pur- suers allege that their civil and patrimonial rights have been in- vaded and injured, be or be not within the powers of the General Assembly, as constituted by law, or as ultra vires of the Assembly, whether considered in reference to the law of the Church or the law of the State. This question, as I mentioned formerly, is not new to me. I had occasion, some years ago, when I had the honour to be a member of the General Assembly, to consider, with great care and attention, the powers of the Church in its relation to the State. The question then was different, but it led me to the very same research and inquiry which are necessary to enable me to form an opinion on the present case. [ have again most carefully studied the subject, and considered all the arguments on both sides, as given most ably in the printed cases, and, if possible, more ably and fully in the eloquent argu- ments of the counsel on both sides at our Bar. And the result of my opinion is, that the Act of the General Assembly in 1834, now before us, is illegal, and not more contrary to the statute law of the land than it is to the law of the Church itself. In their arguments at the Bar, the counsel on both sides made admissions, which do not, however, aid us much in determining this question. The pursuers admitted, that this Court has no power to review or control the proceedings of Church courts, in matters purely ecclesiastical and spiritual, unless those proceedings encroach on the patrimonial or civil rights of the parties before them. The defenders, on the other hand, admitted that the Church of — Scotland is subject to, and dependent on, the Legislature. But these admissions do not solve the question in this case. For it remains to consider, on the one hand, whether the pro- ceedings of the presbytery, acting under the act of Assembly 1834, do or do not trench on the civil and patrimonial rights of the pa- tron and his presentee. ; _ And, on the other, quomodo et ad quem effectum is the Church subject to the Legislature. Now, with reference t the Parliament of Scotland, it is mate- rial to note, that, at all times, both Roman Catholic and Protes- THE LORD PRESIDENT’S SPEECH. oon tO tant, the Legislature has vindicated its authority over the Church, and its right to take under its cognizance its powers and privileges. The very first act on our statute book is a very remarkable one, and worded in a very remarkable manner. It is the first act of the first Parliament of James the First, which is worded with the laudable brevity and precision of our Scots Acts of Par- liament. ‘* In the first, to the honour of God and halie kirk ; it ‘* is statute and ordained, that the halie kirk joyes and bruke, “and the ministers of it, their auld privileges and freedomes. . « And that nae man LET them.” (#. e. hinder or molesf,) &c. Observe this emphatic word their awld privileges. These, says the Parliament, we know both in nature and extent. They have grown up with the existence of the Church and State past all memory. ‘These we acknowledge and will uphold and protect youin. But, if you attempt to exercise any new privileges, these we do not hold ourselves bound to acknowledge and protect, unless we also approve of and sanction them. By the act 1481, c. 84, the King is declared to have right to resent to all benefices. And by the next act, cap. 85, all persons are prohibited from purchasing, 2. e. in the language of that day, procuring any be- nefice from the see of Rome under severe penalties. And by several Acts of Parliament all clerks, 4. e. clergymen, are prohibited from leaving the kingdom without leave from the King. Thus Parliament dealt even with the Roman Catholic Church. Indeed it is well known to your Lordships, that the Pope, at all times, had less authority in Scotland, than in any country in Christendom. I shall now consider how Parliament has dealt with the Pro- testant Church, and quomodo et ad quem effectum the Parliament of Scotland has asserted and exercised authority over it, which will enable us to judge the better, whether the General Assembly had power to pass its act 1834. In judging of this question, the expediency or inexpediency of’ the act must not be allowed to influence cur 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 can- not fail to be most interesting. And in my decided opinion the Act of Assembly 1834 was quite wncalled for, in the circumstan- ces of the Church and country, and most inewpedient. If I want- ed any confirmation of this my opinion, I find it in the conclud- ing 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 4, THE LORD PRESIDENT’S SPEECH. was xealous 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 legis- lature. 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 pRacTiIcaL ‘* 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. ‘his is the most important fact which can be stated, ‘* and in comparison with this fact, every other feature in the ‘¢ laws or practice of any ecclesiastical body is equally uwnimport- ** ant and uninteresting.” Here is sound sense—here is the opinion of one of the best, as he was one of the ablest men that ever adorned the Church of Scotland, and this, I think, should settle this question of expedi- ency for ever. But, if this was his opinion, when he wrote this work, twenty or thirty years ago, how much more strongly would it have been his opinion now, when for at least that number of years back, the right of: patronage, with hardly any exception, has been exercised in the most considerate and temperate manner. Why then did the Assembly disturb a system of church govern- ment, which practically, as Sir Henry says, worked so well, both in regard to the moral and religious principles of the people. But still we must lay expediency out of view, and consider the case as a mere point of law. If im so doing, I had come to the opinion, that the Act of Assembly 1834 was truly useful and ex- pedient, but that it was not within the power of the Church, then certainly I should have found so with great reluctance. But with my opinion that it is inewpedient and uncalled for, of course, I have not any compunctious visitings, in coming to the conclusion, that it is equally illegal. | Before entering on the consideration of the different statutes relating to the Church, I must remark, that in every civilized country, there must be some court or other judicature, by which every other court or judicature may be either compelled to do their duty, or kept within the bounds of their own duty. With- » out this the greatest public confusion must follow, and often great injustice to individuals. I have not had an opportunity of learning how this end is ac- complished in most of the countries of Europe; but in France, the Cour de Cassation, among its other functions, has the power , THE LORD PRESIDENT’S SPEECH. 5 of keeping all other judicatures within the bounds of their proper duty. And such of your Lordships as have not had an oppor- tunity of informing yourselves of the constitution and powers of this Court of Cassation, will be a good deal surprised to find, as I was, that, although it was established by such a military despot as Bona- parte, it has actually the power of reviewing the proceedings of courts martial, naval and military, if they decide on matters not falling under their proper functions. It is declared as follows : “« Il n’y a point ouverture a Cassation contre les jugemens en der- “* nier ressort des juges de paix, sice n’est pour cause dincom- ‘* petence ou d’exces de pouvoir. Nicontre les jugemens des tri- ‘‘ buneaux militaires de terre ou mer, si ce nest pareillement pour “‘ cause dincompetence ou dexces de pouvoir, proposée par un “ citoyen non militaire.” Now certainly neither the General As- sembly of our Church, nor the ecclesiastical courts of any country, can appear to be more independent of this court, or of any civil tribunal, than courts martial are. And the same authority is exercised over courts martial by the Court of King’s Bench in England ;—of which a well-known case occurred many years ago, when the president and whole members of a naval court martial sitting at Portsmouth, were brought up by warrant of the Chief Justice for disregarding some order of the King’s Bench, and on the floor of that Court, obliged to beg par- don and acknowledge their fault. This authority of the Court of King’s Bench is exercised by what is called the Writ of Manda- mus, which, on cause shown, is issued, either to compel others to do their duty, or to restrain them from going beyond their duty. Such a writ has been issued to compel a Bishop to admit a person as a prebendary in his cathedral—has been issued against the Col- leges of Oxford and Cambridge. In short, it is the well-known remedy in cases of excess of power, and of refusal to execute their legal power. Nay, in the well-known case of the prosecution by Sir F. Bur- dett against Mr Abbot, Speaker of the House of Commons, Lord Ellenborough thus expressed himself: After admitting the un- doubted right and privilege of that House to issue its warrant by the Speaker to commit for contempt, if properly so expressed, ad- ded, “ But if it did not profess to commit for a contempt, but for ‘* some matter appearing on the return, which could by no reason- ‘* able intendment be considered as a contempt of the Court com- “ mitting, but a ground of commitment palpably and evidently ‘¢ arbitrary, unjust, and contrary to every principle of positive law ‘* and natural justice ; I say, that in case of such a commitment “¢ (if it ever should occur, but which I cannot possibly anticipate “‘ as likely to occur,) we must lcok at it, and act upon it, as jus- 6 THE LORD PRESIDENT’S SPEECH. “ tice may require, from whutever Court it may profess to have ‘* proceeded.” And Chief Justice Holt dealt in the same manner with the House of Lords, not in such a case as Lord Ellenborough only supposed, but in the famous case of the Earl of Banbury. He had been indicted for murder as a Peer before the House of Lords. But that House found that he was not a peer, and refused to try him. He was then brought to trial before Chief Justice Holt as a commoner by the name of Nicholas Knollys. He refused to plead, alleging a misnomer, for that he was Earl of Banbury. The Chief Justice took cognizance of this, and sustained the ob- jection of misnomer, and refused to try him, expressly on this ground, that the House of Lords had exceeded its power, because it has no jurisdiction in matters of peerage, unless, on a petition by the claimant to the King, His Majesty is pleased to remit the claim to the House of Lords for their investigation and opinion. The sole jurisdiction is in the King, and he need not remit the case to the Lords at all—and in the late case of the Earl of Hunt- ingdon, he did not do so—but on the Attorney-General, Sir Sa- muel Shepherd, reporting to the King, that the claimant had made good his pedigree, the King issued his writ of summons, and Lord Huntingdon took his seat accordingly. Chief Justice Holt was several times summoned to the Bar of the House of Lords, and required to give an account of his conduct, which he as repeatedly refused to do. The House became greatly excited, and threatened to send him and Judge Eyre to the Tower ; but when they had time to cool, they were glad to let the affair drop. Your Lordships are also aware of the late judgment of Lord Denman, in the action against the printer of the House of Com- mons, for printing a paper produced in that House, and ordered to be printed; Lord Denman held, and directed the jury according- ly, that this did not fall under the privilege of Parliament. Here, too, the Commons took up the matter most warmly, but after many hard words and violent speeches, they were also glad to let the matter drop—thereby tacitly admitting the supereminent autho- rity of the law, to keep all bodies within the strict bounds of their powers ;—and Lord Denman was undoubtedly right. The privi- leges of the Commons are coeval with the introduction of that House into the constitution, long before the art of printing was in- vented—and therefore the right to print any thing they chose, however injurious to third parties, could never form part of their customary privileges. Your Lordships all know the characters of all these Chief Jus- tices ; and while you must acknowledge their great abilities and le- gal knowledge, you must equally admire that stern independence which could prompt to such decisions, and such opinions of the ®; THE LORD PRESIDENT’S SPEECH. q supremacy of the law, over even such bodies as the Houses of Lords and Commons. In like manner, as will appear afterwards, this Court has exer- cised jurisdiction over presbyteries, when exceeding their powers, or when in the course. of their proceedings they encroached on ci- vil and patrimonial interests. Having thus cleared the way by giving my opinion, and I think showing clearly, that we have jurisdiction over the presbytery in this case, if they have gone wrong in the manner complained of by these pursuers, I proceed to the consideration of the different acts of Parliament, which bear on the connection between the Church and the State. The first is the act 1567, cap. 6, but this merely establishes the Protestant religion, instead of the Reman Catholic. The next is the material one 1567, cap. 7. This establishes the right thatthe examination and admission of ministers be only inthe power of the Church. Now it is plain, that by ministers here, is not meant persons already ministers, but persons applyingto beadmitted ministers, in virtue of a presentation by a patron. But before ad- mitting them, the kirk was to evamine the candidate. Now J ap- prehend that this necessarily implies two things,—Ils¢, That it was to be a personal examination of the candidate himself, to be taken and had by the kirk, 2. e. the ministers of the district—how such districts were defined at that time, I seenot. 2dly, The ex- amination clearly was to be only as to the qualification in point of learning and theological knowledge of the Scriptures, and as to his adherence to, and profession of, the Confession of Faith of Protestantism, as referred to in the previous act as having been settled by Parliament in 1560, and now ratified by this act 1567. Not a word is said here of any right in the people, either to call or dissent, either with or without cause. The only condition is, that the patron shall present a person qualified to his understanding. But this was justly thought not to be sufficient, for though the presentee might be qualified in the understanding of the patron, he might not be so in reality, and therefore, before admitting him, the kirk was to examine as to his fitness and qualification for the ministry. By this act, coeval with the introduction of Protestantism, and prior to the establishment of Presbytery, or any legalized form of church government, “‘ the right of latch and antient patrons to present to ** the kirks is expressly reserved.” Therefore, how the Church now can attempt to oppose openly, or to undermine indirectly, aright reserved by the very act which alone gave to the kirk the power of admitting ministers, seems to me to be not a little strange and inconsistent. Then the act declares, that the presentation shall be laid, not J * ‘ by 8 THE LORD PRESIDENT’S SPEECH. before the presbytery or any other church court, for none such ex- isted, but before “‘ the superintendent of thay pairts: where the be- ss nefice lyes.” For there not only was not any Presbyterian government at that time, but both the early and Jeading Reformers, and Parliament in this act, appear rather to have looked to, and contemplated a kind of modified Episcopacy, as the future ecclesiastical establish- ment and government of the Protestant Kirk of Scotland; for what was this superintendent but a bishop, for the name is just a translation of the Greek £piscopos. And therefore this act could not now have been considered as at all in force, if it had not been renewed. But it was renewed and confirmed by act 1581, cap. 99. But even this act 1581, was before the establishment of Presbyterian government. Then the act 1567 goes on to enact, thatif the superintendent or commissioner of the kirk, refuse to receive and admit the pre- sentee, it shall be lawful for the patron to appeal to the swperin- tendent and ministers of that province where the benefice lyes. So that there seems to have been some officer besides these ordi- nary and minor superintendents of small districts, a kind of supe- rior superintendents, like archbishops, over larger districts called provinces,—the very name now given to the provinces of Canter- bury and York, and I suppose then given in Scotland to those of St Andrews and Glasgow. And then, if this arch superintendent refused to admit the pre- sentee, an appeal was given to the General Assembly of the hall realme. How this General Assembly was then composed I see not, and we were not told by the counsel on either side. Then the Assembly was to “ decide the cause, which shall take *< end, as they decern and declare.” Now what does deciding the cause mean? It can only mean as to qualification of the presentee on his examination. 'This is a matter purely ecclesiastical, and which, by the preceding part of the act, was expressly declared, and rightly declared to be only in the power of the kirk. It can mean nothingelse. It cannot relate toeither call or assent or dissent by the congregation, or any part of it, heads of families or otherwise. No mention is made or alluded to of the congregation having any right to vote or any concern in the matter. The only parties are the patron and presentee on the one hand, and the superintendent on the other, and the only point of discussion between these parties is, Whether the presentee is or is not qualified; and the only cri- terion, by which the superintendent was to judge of that, is by ewamination. Under this act, could the superintendent have said to the presentee, You may or may not be qualified, but I will not examine whether you are or not, because a majority of heads of families object to you, and that without assigning any reason. . ‘. wl ‘THE LORD PRESIDENT’S SPEECH. 9 Where could our ancestors have found any authority under this act for such a proceeding on the part of the superintendent. This act too was passed when Knox was alive, for he did not die till 1572, and he must have had the chief hand in drawing it up. Therefore under this act, there must have been something for the General Assembly to judge and decide ; some issue between , the patron and superintendent ; and the only issue is, whether the pre- sentee was a qualified person. And the very same is the power and restriction on the kirk, (I suppose that is the superintendent, for no body is named or ewisted.) He too was equally bound to present a qualified person, under the jus devolutum. Now all this while, there was no government by presbyteries, &c.; at least no parliamentary recognition of any such government. The government of the kirk remained under the superintendents, and soon after, we find them turned into-bishops, as we see by the act 1581, cap. 102, and by 1584, cap. 182, And by act 1597, cap. 235, the King received authority to ap- point parochial ministers to be bishops or abbots, and to have seats in Parliament ; but this to be without prejudice to the government of the kirk by synods and assemblies, and it was referred to the King to commune with the Assembly as to what authority these _bishops were to have. I quote this act only to show, and it shows most clearly, that the Legislature constantly exercised a right to regulate the government of the kirk, and to fix what powers, offi- cers, and dignitaries it should have. And thus the Church re- mained in this unsettled and fluctuating state, under superinten- dents, and bishops with presbyteries joined with them, till the pas- sing of the act 1592, cap. 116, which in fact is the charter of the Presbyterian form of church government. But before proceeding to consider this act, it is important to make this remark on the two acts 1567, cap. Gand'7. ‘They utter- ly abolish the Roman Catholic religion, and all its ceremonies of the mass and other superstitions, and all authority and jurisdiction of the Pope. But they carefully reserve the right of lay patrons, which had been always an establishment of the Catholic religion. Now, how came this reservation to be made, and this delicacy shown to the lay patrons? Certainly because the right of patronage was a civil and patrimonial right, not connected with the one religion more than the other, and which religion could not justly and legally affect. Your Lordships will observe that it was only laick patrons whose right was reserved. ‘The rights of ecclesiastical patrons fell with their overthrow, and passed either into the hands of the Crown, or of the Lords of erection and other laymen, to whom the Crown granted the property of the dignified Catholic clergy. But “~ 10 THE LORD PRESIDENT’S SPEECH. if a bishop had a private landed estate, not part of the temporality of his see, and to that estate was attached a right of patronage, that estate and that patronage certainly was not forfeited by this act 1597. I believe that Cardinal Bethune, Archbishop of St Andrews, had such private estate, the estate of Monymeal, and kirk now belong- ing to Lord Leven, and which certainly would not have been for- feited under these acts which abolished the see of St Andrews. Now I come to the consideration of the act 1592, cap. 116, which deserves special attention. It begins by ratifying all liberétes, &c. whatsumever. But what liberties ? Not liberties which are acknowledged as belonging to the kirk swo jure, or by any inherent or divine right, but as given and granted by the King or any of his predecessors; and declared by former acts, beginning, however, with the act 1579—and all other acts made since syne. It is remarkable that the act 1567, cap. 7, is not here mentioned or ratified—probably because it recognized the order of superintendents, incompatible with the parity of rank among presbyters. Then it goes on to ratify the power of the ministers to hold General Assemblies, but under a remarkable proviso, “ That the ‘* King or his Commissioner be present at ilk General Assembly “< before the dissolving thereof, and nominate the place, when and ‘* where the next General Assembly shall be holden.” And yet the General Assembly always goes through the form, by the Mode- rator, of dissolving itself, and fixing the time and place for its next meeting ; which, however, it takes care shall be the same time and place which had been already declared by the High Commissioner. This leads me to observe, that I am afraid our more zealous Presbyterian ministers are misled by, and carry a great deal too far, the maxim, that there is no head of the Kirk of Scotland but our Saviour. In the proper sense of the word that is true,—as He is also the Head, properly speaking, of every Christian Church. He is the founder of the Christian religion, the object of our worship, of our faith, of our hopes, and of our fears. ‘And it is also true, that the King is not the head of our Church, in the sense in which he is the head of the Church of England, in virtue of which he can regulate the form of prayer, and do many things, which by his sole authority he cannot do in our Church. But that our Saviour is the Head of the Kirk of Scotland in any temporal or legislative or judicial sense, is a position, which I can dignify by no other name, than absurdity. THE PaRrLiaMENT is the temporal head of the Church, from whose acts, and from whose acts alone, it ex- ists as the national Church, and from which alone it derives all its powers. The act 1592 then goes on thus: “ Ratifies and approves the THE LORD PRESIDENT’S SPEECH. 11 ** Presbyteries, &c. &c. with the haill jurisdiction and discipline of ** the said Kirk.” Now what is the jurisdiction and discipline so ratified ? Not that claimed in the Second Book of Discipline, or the power of electing ministers and making laws. But only (the words of the act are) ‘* as agreed on by His Majesty in conference had *‘ by His Highness with certain of the ministers convened to that ** effect, of whilk articles the tenor follows.” So that whatever power and jurisdiction were claimed in the Second Book of Disci- pline, or by the ministers at the conference, none were ratified by Parliament, but those specially set forth in the subsequent part of the act. And all the articles so set forth, relate to matters pure- ly spiritual and ceclesiastical. Then it repeals the Act 1584, cap. 129, and the Act of the same Parliament granting commission to bishops. ‘Then comes this clause most important in reference to the case now before us,—‘* And therefore ordains all presentations to be- “* nefices to be direct to the Presbyteries in all time coming, with ‘¢ full power to give collation thereupon.” This was necessary, because the law, as it then stood, gave that power to the superintendents, and then the act ends with an ex- press recognition of the law of patronage in these unqualified terms, ‘ providing the foresaid presbyteries be bound and astrict- “ ed to receive and admit whatsomever qualified minister, present. “< ed by his Majesty or daick patrons.” Here the only limitation on the right of the patron is, that he shall present a qualified person, and whether the presentee was qualified or not, the presbytery was to determine by examination, while on the other hand, the presbytery is Gownd and astricted (stronger words could not have been used,) ‘* bownd and astricted ‘* to receive and admit such person so found qualified by them ‘* after due examination.” Not a word is said, not a hint is given, in this most important and fundamental Act, of any right in the congregation, or any part of it, to interpose themselves between the patron and the presbytery. No authority is given to the presbytery to order a Call and to moderate in it, and if possible still less authority is given to the presbytery to interpose a veto of part of the congre- gation against the receiving and admitting the qualified presentee. Now this Act 1592 was not passed till after Andrew Melville had returned from Geneva, and imported all the strict principles of Calvin, and his forms of church government. So that in the very fervour of these Calvanistic principles, no such right as that now claimed by the General Assembly, and acted on by the presbytery in this case, was claimed by the reformers of that day, or if claim- ed, was not allowed by Parliament. Therefore, on what principle, 12 THE LORD PRESIDENT’S SPEECH. and by what authority the kirk can now claim a power of enact- ing a regulation as to the admission of ministers, going not only so far beyond, but absolutely at variance with this their Great Charter, (the only title on which it can stand as the National Church) I cannot discover or acknowledge, with reference either to the constitution of the church itself, or to its connection with the Legislature which created it. Then comes the next act, chap. 117 of the same year, which provides “ always, in case the presbytery refuses to admit ony “‘ qualified minister, presented to them by the patron, it shall be ‘¢ lawful to the patron to retain the haill fruits of the said benefice «in his ain hands.” . Here was another opportunity for the church asking, and for the Parliament to grant, a right more or Jess broad, to the people to give their assent or dissent to the qualified presentee. But no such right is claimed or given. Neither the Reformers of that day, nor the Parliament had any notion of this vow populi vox Dei,—this supreme and omnipotent control of heads of families over the civil and patrimonal and parliamentary rights of the patron and his presentee. It is sometimes said that Parliament is omnipotent ; but our Church goes a step farther, and plays viceroy over Parliament it- self. But this act authorizes the patron to retain the haill fruits of the benefice in the event of the presbytery refusing to admit his qualified presentee. But he, the patron, must come to this Court to have his right to do so found, and to force the heritors to pay their proportions of the stipend to him, and to get possession of the manse and glebe. And then again, this Court cannot do so, with- out first reviewing the proceedings of the presbytery, and finding that they did wrong in rejecting his presentee. So that thejurisdic- tion of this Court over the presbytery, in the matter of theadmission of ministers, is rendered not only lawful, but absolutely necessary by this very act establishing Presbyterian Church Government. And your Lerdships will observe, that this review by this Court could relate to nothing at that period, but the examination of the presentee, and the articles on which they had examined him, whether properly appertaining to the clerical character or not. Soon after this, Prelacy was restored by the act 1612, and thus, the Parliament again exercised its right to say, what should be the constitution of the National Church. And so that consti- tution wavered between Prelacy and Presbytery till the act 1690, cap. 5, finally established Presbytery as the form of our National Church Government. I consider it to be unnecessary to make any remarks on the THE LORD PRESIDENT’S SPEECH. 13 vacillating conduct of Parliament during the unsettled and tu- multuous periods preceding the act 1690. Now as to this act 1690 one circumstance is very remarkable. If there was one thing more than another within the compass of the exclusive cognizance and jurisdiction of the Church, it would seem to be the settling the terms of the Creed or Confession of Faith of the Church. But the Church knew that it could not do so, and did not venture to do so, by its own authority. The Church drew up what she thought ought to be the Confession of Faith of the Presbyterian Church, but she did not declare and enact by her own authority, that this is and shall be the Confes- sion of Faith of the National Church of Scotland.—No.—The Church presented it to the Parliament, which “ 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 sub- “* stance of the doctrine of the Reformed Churches.” Now after this admission, on the part of the Church, of its de- pendence on the Legislature, and of the necessity of the authority of Parliament to render even its doctrines and creed valid in law, it is inconceivable that it can have the power, by any act of As- sembly, not sanctioned by Parliament, to pass an act, trenching - on the law of Parliament, and vitally affecting the civil and patri- monial rights of individuals. Nay, this very Confession of Faith not only acknowledges the authority of the civil magistrate, (#.e. the King and his magis- trates,) but calls on him for assistance, as your Lordships know, in the very remarkable words of the 5th section of the 23d chap. of the Confession of Faith,—and in the next section it declares, that even “‘ infidelity or difference of religion does not make void ‘“‘ the magistrate’s just and legal authority, nor free the people “‘ from their due obedience to him, from which ecclesiastical per- “ sons are not exempted.” After this, for the General Assembly to pretend, that the King, in his courts of justice, has not authority to review the proceed- ings of church courts, when alleged to have exceeded the bounds of ecclesiastical law, and encroached on civil rights, seems to me to be utterly extravagant. Then comes the act 1690, cap. 23, anent Patronages.—This act abolished the rights of patrons on compensation, and the ap- pointment of ministers to churches, thereafter to become vacant, is vested in the heritors (being Protestants) and elders. Now it is not easy to conceive any mode of election which would operate more unequally than this. In many parishes there is but one heritor, in others only two or three; while the number of el- ders may be unlimited ; so that in such parishes the voice of the 14 THE LORD PRESIDENT’S SPEECH. heritors might go for nothing. .In many other parishes again, there are twenty, thirty, fifty, nay a hundred heritors, while the number of elders may be very small; and here, of: course, their voice might be altogether lost. So that I think this regulation was notvery welladvised onthe part of the Parliament. But bethat as it may, it was made the law at the time. The heritors and elders are ordered ‘‘ to name and propose a “* person (not to the male heads of families, but) to the whole “* congregation.” So that here again the act ]834 runs counter to the law of the land as then established, and the person so pro- posed to the whole congregation “ was to be either approven or ‘¢ disapproven by them.” And if they disapprove, i.e. even the whole congregation, they are not to be permitted to do so by a veto.—No.—** The disapprovers (i. e. whatever be their numbers) “‘ are to give in their reasons, to the effect the affair may be cog- <*‘ nosced upon by the presbytery, by whose determination the “ calling and entry of a particular minister is to be ordered and “* concluded.” So that the presbytery was not to be guided by the mere number of disapprovers, but by the sufficiency and proof of their reasons for disapproving. And if on cognoscing on these reasons, they considered them to be irrelevant, though proved, they might reject them and admit the minister, whatever might be the numbers of the disapprovers. How different is this sober and judicial mode of proceeding, thus enjoined by Parliament in this act, from the rash and arbitrary proceeding by an absolute veto established by the act of assembly 1834! It is curious too that, by this act 1690, it is declared to be ‘* but ‘* prejudice of the calling of ministers by the Magistrates, Town ‘* Council, and Kirk-Session of the burgh, as they had been in use ‘¢ before the act 1660, and wherea parish is partly landward, the ‘* heritors are joined.” So that it is more than doubtful, if in these cases of burghs, the congregation had any right to disapprove at all, even on reasons. Matters, however, were not allowed to remain long under the act 1690. In 1711 patronage was restored. ‘The preamble re- cites, ‘* That by the ancient laws and constitution of Scotland, the ‘* presenting of ministers did of right belong to the patrons.” This is most unquestionably true. It was so under the Roman Catholic religion. It was so by the original act 1567 and by act 1592, the first and great charter of the Presbyterian Kirk, which expressly reserved and recognized the right of patrons, and astrict- ed the presbyteries to admit their presentees, if found qualified. Then the preamble goes on to state that great inconvenience had arisen under the act 1690, and great heats and divisions had been created among the persons authorized by that act to call mi- 4 THE LORD PRESIDENT’S SPEECH. 15 nisters. Now these being asserted as facts in the preamble, we must hold that Parliament was satisfied of the truth of these facts. And this act might have set forth another fact as a reason for repealing the act 1690, that so little was the privilege granted by it valued, that it is notorious, that not above six or seven parishes in all Scotland purchased up the rights of patrons, during the twenty-one years that the act 1690 was in operation. But so it was, that by this act 1711 the right of patronage was “ restored, settled, and confirmed” to the patrons, and they were authorized, as formerly, to present a qualified person to the pres- bytery ; and the presbytery, as formerly also, is taken bound and obliged to receive and admit such presentee. Now surely it must be admitted, that the General Assembly has no power to nerEAL this Act of Parliament, or to instruct their presbytery to reject every man who comes before them for examination, merely because he has a presentation in his hand. No man can be so extravagant as to maintain such a proposition. But they cannot have a right to do that indirectly and per amba- ges, which they cannot do openly and directly. And I sincerely hope, for the honour of the General Assembly, that it had no such covert and unjustifiable object in view. But, that in the fer. vour of zeal, the Assembly overlooked the opposition of their act to the law of Parliament, and the consequences which may result from it in every parish in Scotland,—for certainly, if this veto is to stand, the patron’s right may be set down as mil. Now the patronages vested in some families is a valuable patrimonial inhe- ritance, and would sell for a large sum of money, if left on the old footing. Many patrons have ten, twenty, or I believe even more kirks in their gift, which, if brought to sale, would fetch some thousand pounds. But under this act 1834, what would be their value, I believe no accountant or actuary of any insurance office could pretend to calculate. Now, can the General Assembly have the ‘right thus to trifle with the law of the land, and render nugatory valuable rights established by a solemn Act of Parliament ? It will be observed that this act of Parliament gives no autho- rity for calls or for approval or disapproval, either with or with- out reason, much less to an arbitrary veto, either to the congre- gation or any portion of it. Indeed calls were never heard of under the old laws of 1567 and 1592 ; and are certain- ly not very reconcilable with the law of patronage. Accordingly, IT cannot see any evidence of their existence, till the act of Par- liament 1649, under the authority of which the General Assembly established what has been called the Directory. The act of Par- liament 1649 having been repealed at the Restoration, it seems to be more than doubtful if this Directory of the Assembly, acting 16 THE LORD PRESIDENT’S SPEECH. under it, can be held to have any effect in law. But hear what Sir Henry Moncreiff says of it, page 34 of small edition,—* If a ‘© majority of the congregation dissented, (not heads of families ‘¢ observe) they were to give in their reasons, of which the presby- “* tery were to judge. Ifthe presbytery should find their dissent “ founded on causeless prejudice, they were notwithstanding to “¢ proceed to the settlement of the person elected.” Now this was the proceeding of the Church itself, when vested by Parliament in 1649, almost with unlimited authority ; when the Kirk had everything in their own hands. And yet they never conceived anything so extravagant as the arbitrary Veto created by the Assembly of 1834. At any rate this Directory was established for a different order of things, while patronage was abolished, and can have no effect now that it is restored. But while this Directory was in force, the presbytery could not possibly discover, whether the dissenters were or were not actuat- ed by causeless prejudice, unless they examined into the grounds of dissent. Therefore this excludes every notion of an absolute and unqualified Veto, which, unless examined into, may be found- ed on the most causeless and unreasonable prejudice. Therefore by this very law of the Church itself, drawn up when it had every- thing in its own power, Veto was excluded ; and as already said, as little is Veto sanctioned by act 1690, when patronage was abo- lished, and the election was in the heritors and elders, with the consent of the congregation. So that neither by the law of the Church, nor of the land, is there the least sanction or hint given of a right of Veto, either by the congregation or heads of families. This body of men is not recognized by any law, either of the Church or State, as distinct from the congregation at large, till called into existence by the act 1834. I now come to consider the practice of the Church for nearly a century. This practice of the Assembly proceeded under the statutory law of patronage on the one hand, and the wnauthoriz- ed and assumed right by the Church, of engrafting on patronage the form of a Call, which was introduced and intended for a dif- ferent order of things. The two are certainly not very reconcil- able, and the Assembly, for a great number of years endeavoured, as far as possible, to render the two compatible with each other. Now, how could this be done? ‘The Assembly could not repeal the law of patronage,—this was totally out of their power. ‘The only alternative which was in their power was to relax their own usage as to calls, and, unless in some very extreme cases, to sus- tain any call as sufficient, where there was no relevant objection stated against the presentee. The defenders could not deny in 3 THE LORD PRESIDENT’S SPEECH. he OY their pleadings, that this had undoubtedly been the practice, and spirit of the decisions of the General Assembly for a long course of years ;—so long and so uniform, that Sir Henry Moncreiff fairly and explicitly states, that he considered the question as set at rest. "This is what he says on page 94 of the small pamphlet,— ‘* The controversies relating to patronage are certainly now, in a ‘* oreat measure, at an end. And whether the policy ultimately “¢ adopted by the Church, has been agreeable, or contrary to its ‘* original constitution, and whether it is at last to be considered “‘ as wise or impolitic,—the whole weight of government. being ‘“‘ uniformly given to the ruling party, it would be equally unwise and ineapedient to disturb the decisions of more than half a “ century, and to agitate the country anew by controversies, which, “‘ with the influence of government on one side, would always ** have the same termination.” Here again we have the opinion of his sober and practical mind. And yet this act 1834 goes to revive, with tenfold virulence, those very controversies which he thought were set at rest,—for this Veto goes infinitely beyond what the most zealous of our former clergymen ever contemplated, or I believe would have agreed to. But while the defenders could not deny that such had been the current of the decisions of the Assembly, they attempted to lessen their weight and effect by a most extraordinary argument, that they were not so much to be considered as the decisions of the As- sembly, as of a particular party which had contrived for years to obtain a majority in the Assembly. If so, what becomes of the Act 1834? This then must also not have the weight of a real Act of the Church, but only of another party, which at present has also contrived to obtain a majority in the Assembly. But away with such arguments on both sides! Both must be held as the decision and acts of the Church, and, as far as the au- thority of the Church goes, of equal, though of opposite autho- rity. But there is this material difference between them,—the one party supported, as it was their duty to do, the statutory law of the land, and the civil and patrimonial rights of patrons establish- ed by that law ; while the act 1834 makes a direct attack on the rights of patrons, and flies in the face of the law of the land. I now come shortly to consider some of the cases which have been quoted to us. I pass over those cases, where an obnoxious settlement, and the presentee under it, was got rid of, by corre- spondence and compromise between the parties. No legal conclu- sion can be drawn from such cases, and they never came, and could not come, under discussion in this Court. But the cases are numerous, and I need not particularize them, in which this Court found the patron entitled to retain the stipend, as ina vacancy. Now, as I have already said, the Court could VOL. II. B “ 18 THE LORD PRESIDENT’S SPEECH. not find this without a thorough investigation and inquiry into the proceedings of the Presbytery, and a judgment that, in the settle- ment under review, that body had done wrong,—clearly establish- ing the control of this Court, even in cases purely ecclesiastical in themselves, but in which, in the administration of ecclesiastical law, the presbytery had exceeded their powers, and trenched on and injured civil rights. Therefore, in my humble opinion, we have a right to inquire and decide whether, in this case, the presbytery, in the course they took of rejecting this pursuer, Mr Young, avowedly on the single ground of this veto, without examination of his qualification, acted in the proper discharge of their ecclesiastical functions, and did not injure his or his patron’s civil and patrimonial rights. In determining this point in this case, we are freed from a dif- ficulty which seems to me, very unaccountably, to have embarras- sed our predecessors,—I mean that no other person has been pre- sented and inducted by the presbytery into this living,—so that, if we are of opinion that the presbytery did wrong, and that we can and ought to give redress, we can do so without interfering with what our predecessors seem to have considered as a sacred character, which they could not touch or recall,—I mean the cere- mony of ordination conferred by the presbytery on the minister whom they had thus wrongfully admitted. Certainly this Court could not revoke or annul the ordination : The man would remain an ordained minister, as contradistinguished from a mere licentiate, with power to administer the sacraments, and might officiate at baptism or the Lord’s Supper wherever he was invited to assist. But it did not necessarily follow from his ordination, that he rust hold and retain the benefice into which he had been illegally ad- mitted. Ministers are often ordained ad ministerium vagum, as I believe it 1s called, as is the case, I believe, with all the mission- aries who are sent out by the Church to India and other heathen countries. But how our predecessors came to be of opinion, that such a man’s ordination should convert an illegal appointment into a legal title to the very office into which he had been thus illegally intruded, I cannot understand. In my humble opinion this Court, having found his admission to be wrong, should have ejected him from the benefice, just as they would eject a tenant or any man, who, on a title found to be illegal, had got into the possession of a house or a farm. Suppose a presbytery, by mistake, (or if it were supposable, even, in the present temper of the Church, by de- sign,) to present, under their supposed jus devolutum, a person to a church before the six months allowed to the patron had expired: In the first place, if the patron heard of this attempt, and applied to this Court, I suppose your Lordships would not have the least hesitation to grant an interdict against the presbytery proceeding THE LORD PRESIDENT’S SPEECH. 19 farther ; and if they presumed to proceed in the face of the inter- dict, that you would punish the members of the presbytery who concurred in the breach of interdict, as you would do any other persons guilty of such a contempt. But suppose, in the face of the interdict, they were actually to proceed to ordain and induct the man into the benefice, would your Lordships permit this? I cannot conceive it; and if you did, you would furnish the Church, through its presbyteries, and by their own tortious and most ille- gal acts, with the means to acquire the patronage of as many pa- tishes as they choose to usurp. But we are free, in this case, from all embarrassment of that kind. ‘The presbytery hitherto, I understand, has not gone farther than to reject the pursuer ; so that every thing remains open. Then the question comes to be, what ought we, and what can we, do? In the first place, to prevent farther wrong, I think we ought to dis- charge and interdict the presbytery from proceeding to admit any other person to this living ; and, secondly, to find, in terms of the declaratory conclusions of the libel, as set forth in the printed sum- mons now before us. The first thing we are asked to declare is, “‘ that the pursuer, ** Mr Young, was legally, validly, and effectually presented to “this church.” Surely of this there cannot be a doubt. It is not disputed that Lord Kinnoull is the patron of the parish of Auch- terarder ; it is not disputed that he presented in due time; and, lastly, it is not disputed that the deed of presentation was in due and legal terms. The next proposition which we are asked to declare is, ‘ that “ the presbytery was bound to take trial of the qualification ‘“< of the pursuer, and, if found qualified, to receive and ad- “‘ mit him to this parish, according to law.” Your Lordships will observe, that this conclusion is cautiously worded. In the admission they are only required to proceed ‘‘ according to “‘ daw.” ‘This does not preclude their proceeding to moderate in a Call, as one of their number, Mr M‘Kenzie I think, required them to do. Here, however, the presbytery acted consistently, for it would have been absurd to order a Call, after having abso- lutely rejected the presentee by their previous veto. But they choose to substitute this new and unheard form of veto, for the for- mer consuctudinary form of a Call. This, I hold, neither the As- sembly nor the presbytery had a right todo. The form of Call itself, as in connection with the right of patronage, rests on very doubtful authority. It has no sanction in law but long usage, and certainly the Church has no right to abandon it, and substitute another form in its place. If the form of Call is given up, then pa- tronage will stand, as it did originally, without any check or limita- tion, except as to the personal qualification of the presentee. 20 THE LORD PRESIDENT’S SPEECH. The summons then proceeds to have it found in substance, That the rejection of the pursuer, without examination, and on the ground of this veto alone, was illegal, and injurious to the patrimo- nial rights of the pursuer, and contrary to the provisions of the statutes and laws libelled. J am most clearly of that opinion, and that we are entitled so to declare. Then the summons proceeds, that if the presbytery persist in refusing to take trial of the pursuer, and, if qualified, to admit him, that Hz, Mr Young, shall have right to the stipend, manse, and glebe, for crop 1835. Now, as to this I have doubt, be- cause the law is silent on this head ; and the only remedy given by the statutes is, that the patron shall have right to retain the stipend, as in a vacancy. And then there is a clause, to have the presbytery and collector of the widows’ fund ordained not to trouble and molest the pursuer in the enjoyment of the stipend for his life. Of this, of course, I have also doubts’; but, on the other hand, I have as little doubt, that no other person ever can have a legal right to the stipend, unless the pursuer is rejected on examination, as not properly qualified. As to the widows’ fund, that is not before us. No appearance was made for the Collector ; aud if we find that the patron has right to retain the stipend, it will be for the purposes authorized by law ; and if the Collector thinks he has a right to claim it, he can do so, and if found entitled to it, the patron must pay it over to him, and not apply it in any other manner. Such, my Lords, is my opinion, which I have not formed till after a very careful study of the subject in my own closet, subject always to what I may learn from the superior learning and abili- ties of your Lordships. LORD GILLIES’S SPEECH. 91 Tuesday, February 27. THE LORD PRESIDENT.—‘* LORD GILLIES.” Lorp Gitiirs.—My Lorp—I entirely concur in the opinion which has now been delivered by your Lordship, and generally in the sentiments you have so well expressed ; and that 1 may not weaken their force, I shall endeavour, as far as possible, to avoid - any repetition of them. This is represented to be a case of great importance, and it certainly has received all the attention and consideration which its importance deserves. We have been favoured from the Bar with an argument of unprecedented length, and displaying on both sides the greatest talent, learning, and eloquence. The Act of Assembly, of which we have heard so much, is en- titled, erroneously I think, an Act on the Calling of Ministers ; and as to the practical consequences of it in the present case, the defenders, in the course of their argument, have asked, Are you by your judgment to render the Call a mockery ?>—In answering this question I would begin by asking another of the same sort, Is patronage to be rendered a mockery ?—using this word in the sense in which the defenders have used it, when speaking of the Call. What is a Call? This question has often been asked, but has never yet been distinctly answered. Its history is buried ia obscurity. It seems to have been the creature of practice,—diffe- rent at different times. My friend the Solicitor owned hisjina- bility to point out any express authority for it, but said that it is law. If it be law, it is practice alone that has made it so. This is admitted, and if so, it must be regulated and controlled by the practice to which it owes its existence. Now we know: with cer- tainty, that for more than half a century, what is termed an active Call, «7. e. a popular call by a majority, has never been required. 22 LORD GILLIES’S SPEECH. And the Call has been practically a mockery, as the defenders term it. Nothing we do can make it a mockery, more than it has been made by the Assembly itself. s What is patronage, is not a question. We all know what if is, —a valuable patrimonial right secured by statute, existing for ages with some temporary interruptions, and which the patron holds by a tenure as sacred as he holds his property, or the lands to which it may be attached, if feudalised, as it may be, and often is. It is bought and sold. It is a subject of commerce, and has often been sold under the authority of this Court. A society, calling itself the Anti-Patronage Society, is said, within these few years, to have purchased several patronages. It is said to be a trust, and truly, for all our property, all the gifts of nature and Providence, are held by us in trust, and we shall all have to account for the use we make of them. To a certain degree, patronage, from the nature of the thing, partakes more of a trust ; but in so far as it does so, the law has adjected to it certain qualifications and conditions, intended, and sufficient to prevent its abuse. The patron must have some qua- lifications. ‘The presentee must have other qualifications, of which the presbytery is to judge ; and the latter are such, if the Church does its duty, as to preclude any abuse of the right of patronage. That, by a judgment in favour of defenders, patronage would be rendered a mockery, is, I conceive, undeniable. What is a right of which the exercise may be prevented, or defeated, by the arbi- trary will of a third party ? ‘The situation and powers of the pa- tron, will become analogous to those of the chapter in the election of a bishop. It belongs to the chapter to elect, but I understand that it can elect only one individual,—the person recommended by the sovereign. So the patron may present, but any, and every individual whom he presents, may be rejected. Now if the question be put, whether the Cail is to be rendered or continued a mockery, or whether patronage is to be rendered a mockery, I have no hesitation in thinking, that the Call must yield to the presentation ; and I would at once say, let not patro- nage be abolished, or defeated, but let the Call continue to be, what it has been for the last fifty years, a mere piece of form. On looking to the history of the case it will be found, that every- thing was quite regular as to the presentation. The patron’s right to present is admitted. And of presentee, the most ample certi- ficates were given in reference to his qualifications and fitness. Accordingly, the presbytery, so far sustain the presentation. They sustain it, but only so far sustain it. This is a novelty, and to me appears to be illegal. The presbytery then, gave an opportunity to the male heads of families whose names stand in the roll, to give in special objec- 4 LORD GILLIES’S SPEECH. 25 tions or dissents: but it is stated in their minute, that no special objections were given in. Now, suppose that special objections had been given in by a large proportion (say two-fifths) of the heads of families, and that those objections had been declared insufficient by the presbytery. But that afterwards, the objectors being join- ed by others, sufficient on the whole to make a majority, had lodged arbitrary dissents, it does appear to me that the presby- tery would have been placed;in an awkward predicament, in sustain- ing the dissents of those, whose reasons of dissent they had pre- viously disallowed. Ultimately a majority did lodge and adhere to arbitrary dissents, on which the presbytery reject Mr Young. It seems to be admitted that this rejectionwas altogether illegal , and unwarrantable, but for the Act of Assembly 1834, commonly called the Veto Act. On this alone it is defended. Why, I know not, for if it be true that this Court has no jurisdiction, and that the only redress was by appeal to the supreme Church Court, and that their judgment is final, then the rejection by the pres- bytery, under the same circumstances, would have been as effec- tual without, as with, the Veto Act :—I mean as effectual in this Court. As it is, however, the Veto Act is the sole defence on the merits, against this action. | In these circumstances, it appears to me that there are four _ questions for consideration. 1. Was this act ultra vires of the Assembly ? 2. Isthe power of the Assembly to make such an act, sanction- ed or fortified by pre-existing laws, or general principles of church law ?—I mean principles recognized 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 suchacase? Is there any rule or principle by which the party against whom (ew concessis) injury is done or threatened, is precluded from obtain- ing redress, or protection against such injury, from this Court ? 4, Is this Summons properly laid for obtaining such protection or redress ? These questions run into each other; and I shall not _ attempt to preserve a distinct separation of them. I first proceed to consider If this act is or is not wlira vires, The Assembly claims legislative power, or rather such a claim is broadly stated by the defenders in behalf of the Assembly. That the Assembly by its acts or resolutions may regulate the doctrine and discipline of the Church is true, and such acts and resolutions are, in all cases, to be treated with great respect. The power, or rather, as I think it may more properly be denominated, - the privilege of the General Assembly, in so far, does not seem to be disputed. But the argument of the defenders was not thus li- mited. They maintain that the Assembly is a legislature, and has 24 LORD GILLIES’S SPEECH. legislative powers. This is a great assertion of power. There is a Legislature in this country, and I don’t well see how two legisla- tures can co-exist. TJ'his legislative body is certainly subordinate to the other. But as the existence of two legislative bodies with equal powers seems to be impossible, so, I think it appears a sole- cism to hold, that there are two separate legislative bodies, of which one is subordinate to the other. If so, the latter may make laws which are good and binding, until altered by the former. It was accordingly said, that if this act was to be altered, or denied effect to, it could only be so by the authority of Parliament. Such a state of things, I own, seems to me irreconcilable with the exist- ence of any judicial power in the country. But it is said, that this act relates purely to matters. ecclesiasti- cal, and is, therefore, within the power of the Assembly. Whether it has such power, I stop not at present to inquire. But can it be said that, if in legislating on matters ecclesiastical, they in- jure or annihilate the civil patrimonial rights of an individual, he can have no redress or protection from the Supreme Civil Court against such injury, because the act relates to matters ecclesiasti- cal, and dears to be only a regulation of Church discipline ? The deposition of ministers, the defenders assert, is a matter purely ecclesiastical. Suppose the Assembly to declare, not that no man should be intruded, but that no man should be retained, in a parish against the will of the people, and then to make a law giving powers accordingly to the heads of families, to lodge arbitrary dis- sents, and directing the presbytery to give effect to such dissents by deposing or depriving the minister of the parish. This is not so unreasonable as the great principle or alleged fundamental law of non-intrusion, for the people are better qualified to say whether he should be retained, than whether he should be appointed, because they have experience to guide them in the one case and not in the other. But in such a case, I ask, whether your Lordships would hesi- tate in giving redress or protection to the person thus attempted to be ejected from his living? or whether such ejection would be effec- tual, because done in compliance with an Act of Assembly relative to matters ecclesiastical ? Attend to the probable situation of a pres- bytery in such a case,—compelled to depose a man known to them- selves to be highly qualified—to be the best minister within the whole range of the Church of Scotland. Such a case would be a very hard one,—but is not this nearly, or equally so? The presentee has spent his life and his means in qualifying himself for a situation, for which this presbytery may know that he is qualified, but which he is prevented from obtaia- ing by an arbitrary veto. His reasonable expectations are thus disappomted. Greater hardship cannot easily be figured, nor greater injustice. The appointment is lost, and his future pros- LORD GILLIES’S SPEECH. 95 pects are destroyed, for rejection by one parish will probably lead to his rejection by another. But I think that the defenders in the greater part of their ar- gument betray strong doubts of the legislative powers which they assert. ‘They have referred throughout to the former and pre- viously existing law of the Church. For what purpose ? To show that a law made, as they say, by a competent legislature is valid. Surely this is unnecessary. Whatever had been the laws of the Church, it was competent for the Assembly to alter them, or to make new laws that are inconsistent with them. I say this on the supposition that this act is purely of an ecclesiastical nature, as the defenders assert; and if this assertion be correct, and legisla- tive power be conceded to them, then it is absurd to refer to for- mer laws in support of this act. But perhaps former laws are referred to as proving that this act relates to a purely ecclesiastical matter, and that it is there- fore fortified and sanctioned by those laws. As to this afterwards, as it Is more properly embraced in the second question to be con- sidered. For the origin and history of the Veto Act, I refer tu the statement of the defenders. After mentioning the numerous judgments of the Assembly, by which presentations were sustained and calls disregard- _ ed, they say in their pleadings, ‘* Gradually, however, the opinion ‘* gained ground that the decisions which had been pronounced for “< a considerable period on questions of disputed calls, were contrary ‘“‘ to law.” Again, “‘ when the Assembly was once convinced that *‘ the train of decisions had been erroneous, it might have been “‘ competent for the Church Courts to have altered their mode of ** proceeding, sub silentio ; that is, to have disregarded the autho- ‘* rity of the more recent decisions ; and to have returned to the ‘* course which had been pursued during the stricter period of ‘‘ her history.” And again, “ But the Church is a legislative as ‘* well as.a judicial body. Some respect was held to be due to a *¢ series rerum judicatarum, however erroneous the majority of “¢ the Court had come to think those judgments had been.” Here again it is said that the General Assembly is a legislative body. So is every corporation. For the nature and extent of its legislative powers, I turn to Bankton, Vol. ii. p. 592, who there says, ‘* The jurisdiction of the General Assembly is either consti- ‘* tutive or judicial. The first consists in making acts and can- ‘‘ ons ordering the method of proceeding in matters before them, <¢ and other affairs touching the discipline and government of the “ Church, in the same manner as other corporations make BY E- “ taws.” Not legislative but constitutive powers, are assigned to it by Bankton. Thus its power is just that of making bye-laws, —a privilege (properly speaking) of corporations. Every corpo- ration has privileges. Che power of making bye-laws is one of its 26 LORD GILLIES’S SPEECH. privileges. I certainly mean and wish to say nothing disrespect- ful to the Assembly. On the contrary, I feel great regard and veneration for it. It holds, and properly holds, a high place in our constitution ; but as to its legislative powers, I humbly think with Bankton, that they are just analogous to the powers or privileges of corporations generally, to make bye laws. Its laws are perfectly good, if they are completely consistent with the law of the land, and do not interfere with civil rights,—but good for nothing, if inconsistent in any degree with either. Good also, if ratified by Parliament—as are the bye laws of the town of Edinburgh, and other corporations. But what was the law at the date of this act? It is admitted that there had been a train of decisions for a long course of years —a series rerum judicatarum—by which settlements were made or sustained, without, or with only a pro forma Call. Sir Henry Moncreiff says, p. 81, ‘‘ But the principle was ulti- ‘* mately avowed and adhered to, that a presentation to a benefice ‘‘ was in all cases to be made effectual, independent of the merits * of the Call or concurrence. Cases, as has been already stated, “‘ have sometimes occurred, in which presentees have been set “‘ aside. But this can scarcely be shown to have happened in Dr ‘¢ Robertson’s management, merely from defects in the concur- “rence from the parish.” And again, at p. 84, he says, “ The “* great majority of the Church are convinced that the system of ‘¢ patronage, so long resisted in the church courts, is at last com- ‘* pletely established. Even many of those individuals who held ‘< a different doctrine thirty or forty years ago, do not think it ex- ‘* pedient in the present times, to revive a controversy which such * a long series of decisions in the Supreme Court is held to have ** settled.” But, long before, the law was considered as settled—thus, in the Lanark case, it was argued on the part of Dick, that ‘ there is a ‘* wide difference betwixt a single presentee, and that of compet- ‘‘ ing presentees. In the former case the presbytery cannot over- ** look a presentation and settle a Church by a popular Call, which ** would be a gross contempt of the laws of the land.” Of this contempt I think the defenders have been guilty. What was the law of the land, is still the law of the land, except as ALTERED by the Assembly. Can it alter the law of the land? This argument for Dick is not authority ; but I quote it to show the understanding of civilians as to the law even in 1752. The paper was drawn by President Craigie. From that period down to the year 1834, there has been a series of judgments in confor- mity to this doctrine. If this does not settle the law, what does ? Thereis written and unwritten, statute andcommon. Howis the last expounded, or known, but by the general understanding of the coun- try, and above all by the reports and decisions. Blackstone, v. i. LORD GILLIES’S SPEECH. QY p- 68-69, says, “ It is an established rule to abide by former pre- - * cedents, where the same points come again in litigation : as well *“‘ to keep the scale ‘of justice even and steady, and not liable to ‘* waver with every new Judge’s opinion ; as also because the law ‘* in that case being solemnly declared and determined, what be- ‘¢ fore was uncertain and perhaps indifferent, is now become a per- ‘** manent rule, which it is not in the breast of any subsequent “* Judge to alter or vary from, according to his private sentiments : ‘“* he being sworn to determine, not according to his own private “¢ judgment, but according to the known laws and customs of the “‘ land; not delegated to pronounce a new law, but to maintain ‘* and expound the old one,” &c. The series of decisions are here of the more importance, when you attend to the ground on which they rest, viz. that they were agreeable and in conformity with civil law. The Assembly disre- garded the Call and obeyed the presentation, because such was the law of the land, and by that law they were bound. ‘The whole of the defenders’ argument strengthens this view of the case. The Assembly is by them represented as always friendly to Calls— active Calls. But such were dispensed with, and why ? because the Jaw of the land was in favour of presentations. But it seemed to be argued, that decisions of the Assembly were not those of the body itself, but of the ruling party at the time, led by Dr Robertson. Of this eminent person, a life has been wrote by Dugald Stewart,—a work which no one can read without regretting when he comes to its end : It may truly be said of it—and there cannot be higher praise,—that it is worthy of its subject and worthy of its author: It has just one fault,—it is too short,—a complaint not often made against books or speeches. In that work I find the following passage :—** The cirgumstances ** understood to be necessary for constituting an adequate call, were “* unsusceptible of a precise definition. The unanimous consent of the landholders, elders, and heads of families, was seldom to be ‘* looked for ; nor was even an absolute majority considered as in- ** dispensable, if the concurrence afforded a reasonable prospect of an harmonious and useful settlement. This principle of deci- ** sion was so vague in itself, and so arbitrary in its application, ** that much was left in the church courts to the private judgment of individuals, and much to the prejudices and passions ; while the people, finding that a noisy and strenuous opposition seldom failed of success, were encouraged to prosecute their object by “‘ tumult and violence. Many of the clergy, considering it a mat- ** ter of conscience not to take any share in the settlement of an ‘< obnoxious presentee, refused on such occasions to carry into exe- cution the orders of their superiors; and such was the temper of the times, that the leading men of the Assembly, although *‘ they wished to support the law of the land, found themselves n ‘ n “ © 6 n 4 n 6 “ n 6 n ¢ n Oe LORD GILLIES’S SPEECH. ‘* obliged to have recourse to expedients ; imposing slight censures “‘ on the disobedient, and appointing special committees (whom it ‘‘ was found sometimes necessary to protect by a military force,) “¢ to discharge the duties which the others had declined.” This passage I at first supposed to be wrote by Mr Stewart,—a mis- take occasioned by the mode in which the work is printed; but I have since discovered that its author is Dr George Hill, and Mr Stewart declines giving his own sentiments on the subject. But still though it may be truly said that these decisions were those of the ruling party, they are those of the Court,—a Supreme Court— and latterly almost, if not entirely unanimous. If this, however, forms any objection to their authority, possibly the same objection might be stated to the Veto Act, for that also is but the act of the ruling party for the time. But what is this act ? We are not called upon to judge of its expediency. The question is, if it be, or be not, wltra vires of the Assembly ? But in judging of this question, I am entitled and bound to Jook at its provisions, and when I do so, I, in the first place, find that it introduces a new element of government into the law of the country, in so far as it empowers the heads of families, or a ma- jority of them, to interpose an arbitrary veto in matters directly affecting the rights and interests of others, and bestows the veto on persons who have no legal title to object to presentation. ‘This is anew power, and that new power is given to new parties—I mean persons not known or acknowledged to have any right to interfere, —actually found to have no title to object to the presentation or set- tlement. This was expressly decided in the Kiltarlity case, to be afterwards noticed ; and yet on those persons, in the settlement and ordination of a presentee, there is bestowed, by this act, an impe- rative, uncontrollable, final, and arbitrary veto. This veto I conceive to be unconstitutional, and inconsistent with principle, political and moral. No such thing is known in our laws, or, so far as I am aware, in the laws of any country since the establishment and existence of the tribunation power in Rome. The sovereign of this kingdom has been said to have a veto, but incorrectly :—'The sovereign is one branch of the legislature, and his consent to any law is necessary :— sessions and the inhabitants of the parish:met and made choice “‘ of them for their pastors, and gave them a call (as they worded ‘“‘ it) to serve among them;” (v. 1, p. 281.) He mentions, however, that they got over their scruples, took possession, and at first the people flocked to them; (p. 282.) The presentation was received by the bishop. He remitted the presentee to the presbytery for his trials ; on being approved of by the presbytery, and being found qualified for ordination, this was notified to the bishop; a day was fixed for his ordination, some- times at the church he was to serve, but more commonly in the cathedral church, and in either case an edict was published in the church inviting all to object specially. Thus, in the register of the kirk-session of Canongate is this entry, *¢ 15th March 1663. The ** edict of Mr James Reid to be first minister at the kirk of Haly- “ roodhouse, was read at the kirk door in the forenoon in the time ‘¢ of divine service, and warning given to all that hath any excep- “ tion, that they come to the Bishop of Edinburgh his lodging at ‘¢ the Abbey, the 19th March next, where they shall be heard, and ** justice shall be ministrat.” I record the practice during this period, only because the act. of Queen Anne refers to the times when presentations were given, as a model for the procedure to be adopted now. I do not refer to this period because the Church was then Episcopal. It is on this very account I so deeply lament the conduct of our rulers both in Church and State at that time, and blush for the honour of my country at the doings which then disgraced the land under the sa- cred name of religion. But I never can admit that the whole blame was imputable to the ruling party, as it is too much the fashion to do, and that none is chargeable against the Remonstra- tors, the Cameronians, and Covenanters of that day. Terms of communion were offered to them and refused, which made Cala- my, the leader of the Presbyterian party in England, say, ‘‘ What ‘** would our brethren in Scotland be at, or what would they ‘“¢ have? Would to God we had these offers!” And it is singular how little patronage came into discussion at this time. Even more latitudinarian terms were proposed by the excellent Leighton, who, LORD MEDWYN’S SPEECH. 209 now raised to the see of Glasgow, and grievously lamenting the di- visions in the Church, endeavoured to effect an accommodation between the two parties so hostilely opposed to each other, Bur- net gives a large account of the concessions he proposed, which, as he says truly, “left little more than the name of bishop.”' (Burnet’s History, v. 1, p. 274.) With regard to the ordi- nation of presentees, it was “ that bishops should go to the ** churches in which such were to be ordained who were to serve, “ and hear and discuss any exceptions that were made to them, “and ordain them with concurrence of the presbytery.” He says that prior to this “the ordination had been huddled up in “ their cathedrals with no solemnity.” (Ib. p- 275.) But to these proposals even the decent respect of an answer was not paid. They were at once declined. Wodrow has given an intended counter- proposal, which, however, was never allowed to be brought for- ward (Cooke, v. 3, p. $22), and it isa remarkable circumstance that no claim is made for the people having a larger share in the election of a minister than was allowed under the edict ; it is only stipulated, what is plainly implied in Leighton’s plan, “ That it “* shall not be in the bishop’s power to refuse to concur in the or- “* dination of any persons lawfully presented by the patron and “ duly tried and approven by the presbytery ; and that the ordi- “ nation be publicly done by the concurrence of the bishop and “« presbytery at the parish kirk.” If the bishop refuses or delays to concur they propose that he be charged on letters of horning. (Wodrow, App. to Book 2d, No. 46.) The proposed accommo- dation was at once rejected ; it failed through the unreasonable- ness of the one party, and probably would not have been accept- able to the other; and at last this amiable man, of whom it may truly be said, this country was not worthy, worn out by the con- tradiction he met with on all sides, resigned his anxious charge, and spent the evening of his days in privacy in England. Though dead, he yet speaketh. I have now brought down this inquiry to the last change which has taken place in the church government of this country.* * Since this opinion was delivered, “The Life of the Rev. Ebenezer Er- “ skine, by D. Fraser, 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 presenta- tion cannot date further back than the act 1712, but that I was perhaps too cha- ritable in supposing that it originated in patrons not using their restored privi- lege, 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 impedeits opera- tion 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 shewn 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, 210 LORD MEDWYN’S SPEECH. We have nothing to do with patronage, except to inquire whe- ther it be established by law as a civil and patrimonial right, and whether it was competent for the Church, of their own autho- rity, to affect and limit it by this veto of the people. Whether it be expedient, as some suppose, or unscriptural and hostile to the principles of the Church, as others hold, we fortunately are not called upon to discuss. Ours is a much simpler task, to say what are the rights which the law confers on patrons? At the same time I may notice, as an historical fact, the opinion on this subject of our great deliverer at the Revolution, and the grounds on which that opinion was probably founded. I have already adverted to the ecclesiastical constitution of Holland and Zealand in 1577, and the strong assertion there made of the necessity of patronage being established and confirmed to the state. This was obviously with a view to insure such an intercourse and good feeling between Church and State, as to prevent as much as possible the risk of collision or interference between these separate jurisdictions. The democratic constitution of the Calvinistic Church of Holland no doubt im- pressed the necessity of such a bond with the States upon the Stadtholder William I, whose political sagacity and military talents enabled the Dutch to free themselves from the oppression of the Spanish yoke, and from the still more grievous bondage of the Church cf Rome. After William III. had wielded the. power of the States as their Stadtholder for several years, he was raised to the throne of these kingdoms; and, as might have been expected, he inherited the opinions of his great ancestor as to patronage, and reckoned it as necessary in a monarchical state as in an aris- tocratic republic, that this bond between the crown and aristocracy their views and intentions as to such were thus expressed at a subsequent meet- ing :— “ 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 en- “ croachment upon that comely gospel order of ministerial calls or elections ; and ** lest any countenance we give to presentations in that case be construed as re- “ ceding 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 up- ** on the election, choice, or free consent ofa 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 pre- ‘* sentations may offer, to go into no settlement but where the people’s freedom “ of electing their minister is maintained, and made legally and sufficiently evi- “dent 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 pre- tence that patronage did not embrace the right of presentation, except to trans- fer 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 his- tory of the church they had ever enjoyed. LORD MEDWYN’S SPEECH. 211 on the one hand, and the church on the other, whose character is republican parity, should exist : just one of those practical modifica- tions of the effects of the pure elements of a constitution, whether lay or clerical, which so often in the political history of nations are found to afford a balance, and prevent mischiefs which would other- wise ensue ; as in the natural world compensating powers are wisely introduced to counteract the effect of disturbing forces, and to bring back and perpetuate the harmony and order of the creation. Be. sides, he must have observed the great and positive advantages which the Church might derive from patronage, and of which it would more especially stand in need under its Presbyterian form ; that its obvious tendency, besides operating indirectly as a salutary check upon ecclesiastical power and clerical assumption, would be to connect the influential laity throughout the land as friends and auxiliaries with the Church and with its Presbyterian form of go- vernment, giving them an interest in its concerns and welfare, creating such a union and good feeling between the clergy and laity, as is most advantageous for the Church as well as for the people, both in promoting the great moral and political objects of a national church and church establishment, and in forwarding those schemes of benevolence for the advancement of christian knowledge in this and heathen lands, which it is the peculiar pro- vince of the Church to promote, and of the laity to support and foster, And he must have seen how different would be the tone, and cha- racter, and usefulness of the clergy, if they were interested only in regulating their studies, and suiting their deportment, and adapting their style of ministrations, to meet the taste and the wishes of the many in their congregations, compared with what these must be when claiming the countenance of the best educated of their con. gregations. ‘There could be little hope of a learned, a sober-minded, or influential ministry, when obliged to win their way into the Church by the arts and practices necessary for securing favour at a popular election ; and there would be much room for disappoint- ment afterwards, even among the electors, if the persons chosen acted on the independence which security now entitled them, and duty called on them, to assume ; while they would often fail to ob- tain the esteem and countenance and support of that class among their parishioners, whose favour it was most useful to secure, but which neither their education, their manners, nor their ministerial qualities, modelled as they now would be, could be expected to do, If this anticipation were to prove correct, what a death-blow would it have been to the respectability and usefulness of the Established Church in this country. Is there any man bold enough to assert, that if patronage had been abolished a century ago, the members of the Established Church would have responded to the call of the Church by such 212 LORD MEDWYN’S SPEECH. noble exertions they are making at this time, by their voluntary contributions, for enlarging church accommodation in this coun- try, and supporting missions in foreign lands ? Accordingly, it is well known that, in settling the church and church government in Scotland at the Revolution, while King William yielded, though unwillingly, to the Claim of Right as to the abolition of prelacy, he was determined to protect the rights of patrons, as appears from certain remarks on the draft of the act 1690, which he dictated to Principal Carstares, and transmitted to the commissioner Lord Melville. (Carstares’ State Papers, p. 45.) But he, conceiving that, under prior instructions, he had authority to do so, yielded to the wishes of the Parliament, and gave the royal assent to the act abolishing patronage. ‘This was so contrary to the views of the king, that it was with some difficulty he was prevented from disclaiming his act. He dismissed Lord Melville, however, from his situation in the administration of Scotland. (Bur- net, v. 2, p. 62; Carstares, p. 51.) Since the king was persuaded not to disclaim what had been done, he admitted it only by way of experiment, so that if the apprehended evils followed, the Legislature would be again called upon to consider the subject. This was not done in the busy reign of King William, nor till 1712. One cause of dissatisfaction is said to have been, that neither the people nor the heritors had benefited by the change; for by the power of naming elders of their own views, sufficient to outvote the heritors, it was com- plained that the nomination was in fact again in the hands of the Church (Carstares, p. 799), and when it appeared that only in three instances throughout Scotland (Connell on Parishes, p. 469) heritors, under these circumstances, had thought the permanent right worth acquiring at the expense of L.33 : 6: 8, there were far better reasons for the statesmen in Queen Anne’s time reviving the ancient rights of patrons, than the strange notion that this could be part of a plan to exclude the Hanoverian succession. And al- though this absurd cry was raised and pressed upon the notice of the ministry, more especially after the year 1715, they were too wise to adopt any such views, seeing the security alike to the State and the Church, from this bond of attachment, which allied toge- ther the affections as well as the interests of these otherwise inde- pendent powers, and which probably alone has for so long a period prevented a collision which would be alike injurious to both. We have already seen the effect which was given to this sup- posed fundamental law of the Church during the first century after the Reformation, so that even when the State, by the act 1649, authorised it, the effect now claimed for it was not given by the Church. We hear no more of it for above half acentury, till 1715, when efforts were made to obtain a repeal of the act of LORD MEDWYN’S SPEECH. 218 Queen Anne, the practice all along being adverse to it. Then comes a renewal of the declaration in 1736, 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.” (Acts of Assembly, 1736, p- 33.) But did this, even yet, in the opinion of the Church, imply that the people were entitled to have either voice or veto in the appoint- ment of a minister? Just four years after this the settlement of Currie came before the Assembly. Mr Mercer’s presentation was unpopular and opposed. He was set aside, the Assembly having the undoubted right to refuse to transport him from his parish of Aberdalgie, as they had alsodonein 1735 when presented tothe parish of Dron; and this they could do either on the ground of usefulness and acceptableness where he is already settled as minister, or on account of “ the difficulties which attend his call” or invitation to his new parish. But if the declaration 1736 imported that the people had the right now contended for, as the Assembly wished to allay the ferment in the parish by a healing measure, and re- commended that the patron should give a leet of six to the parish to choose one as their pastor, would not the recommendation have been to offer this leet to the congregation at large, or at least to the male heads of families? but instead of this, they propose the leet to be to the heritors and elders, thus giving “ the people exactly the same place” and the same power in the appointment “ which “ the language of the Church” as well as its practice, “ both in “early and later times, uniformly assigned to them.” Accordingly, Sir Henry Moncreiff has remarked, as to the de- claration by the Assembly 1736 (Account of the Constitution of the Church of Scotland, p. 59), ‘that this act could not have done more than soothe the discontent of the people by conciliatory language, unless more was attempted than perhaps was practicable, and unless the act had been followed up by a train of authoritative decisions, which was Sar from being intended.” Now, why was more not practicable in the opinion of this most able expounder of Church law ? Clearly because it was held, and that he held it to be, ultra vires of the Church? And why did the Church not in. - tend to follow up the declaration by authoritative decisions ? For no other reason surely than this, that this principle truly never carried the right of the people higher than to object to a patron’s presentation or a presbytery’s nomination, or the heritors’ and el- ders’ election ; and that'to decide otherwise would have been giving it a meaning it never had, either at Geneva or in the Church of Scotland, involving a usurpation of power trenching on civil rights, and therefore unconstitutional. The notable idea had not occurred, what in the debate was well termed the clerical subtilty of that ay, nor was legal ingenuity ready to support it, that a dissent P 214 LORD MEDWYN’S SPEECH. without cause shewn, might be dovetailed into a call or invitation to be pastor, and made a part of it; so that if a call, where a pre- sentation had already been given, could be by any reasoning con- sidered a requisite step in the constitution of the spiritual relation between pastor and flock ; it, with the power of the people to dis-. sent in its bosom, might be held to fall under the cognisance of the ecclesiastical tribunal, and may be withdrawn from the control of the civil courts. The act is said to be anent Calls, but surely if it had been said to be anent Patronage, it would have been a much more accurate description of it. It is neither more nor less than a restriction upon the patron’s right. It is said to be the initiatory step in the constitution of the pastoral relation. A presentation is just as truly the initiatory step as a call by the people ; and the same ar- gument might warrant the Church by an internal regulation to do away with patronage entirely. Election is the first step in the outward call, and this would embrace elections by the patron, as well as by the elders, or the presbytery, or the people, and but for the statutes securing the rights ef patrons, the Church might have assumed jurisdiction over it on this ground. There is only one other occurrence regarding this matter I wish to notice, to which I have already twice alluded, and which I think strongly corroborates the view I have taken, that the full effect of the Act 1834 gives an entirelynew meaning to the declaration. Hitherto the conduct of the Church has only been observed enforcing the set- tlement of a presentee, with a small concurrence from the parish, altering the sentences of the inferior church courts, and ordaining them to admit him into the benefice ; and, of course, with no other effect on the inferior judicatory than the implied censure by the al- teration of their sentence. But in 1752 the Presbytery of Dun- fermline having been required by the Assembly to admit Mr Rich- ardson to be minister at Inverkeithing, who had but a small con- currence to his call, six of the Presbytery declined to attend. They were summoned to the bar of the Assembly, where they ap- peared (22d May 1752), and gave in a representation founding on and embodying at length the above declaration of 25th May 1736, adding that they are ‘in this unhappy dilemma, either of coming *‘ under the imputation of disobedience to a particular order of *¢ our ecclesiastical superiors, or contributing our part to the esta- ** blishment of measures, which we can neither reconcile with the “* declared principles nor with the true interests of the Church.” Now if the Assembly, of which Dr Cuming was Moderator, had been conscious that the principle as declared by them, and so strongly founded on by the accused, as if not justifying at least alleviating their offence of disobedience, really imported that a majority of the people must concur, this appeal should have saved LORD MEDWYN'’S SPEECH. 215 the remonstrants from any very severe penalty. But what was the result? A vote of the Assembly, that its authority should be asserted by. the deposition of one of the six, was carried by 9% to 65 votes. (Scots Magazine for 1752, p. 265.) And accordingly, Mr Gillespie, minister of Carnock, was selected as the scape-goat, and actually deposed from the office of the ministry (Acts of Assem- bly, 1752, p. 7,) for demurring to act against what is now said to be, aud to have been since the Reformation, the principle of the Church. If such was the case, I cannot conceive any thing more iniquitous than sucha sentence. This proceeding, so serious in its conse- quences to one of their number, who was acting on conscientious motives, and in accordance with, as it is now asserted, a funda- mental law of the Church, can be justified only by the decla- ration referred to having a recognised meaning, which warranted the appointment of the Assembly to settle Mr Richardson, without the concurrence of a majority of the people, and therefore involving those who demurred in the penalty of disobedience—a meaning totally incompatible with the veto being now engrafted upon it, under the pretence of giving it full effect. The result, then, of this review of the history of the Church of Scotland 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 be 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 dis- approve they are 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 disapproba- tion, 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 in- compatible interests ceased. The first statute was rescinded, and the other repealed. They were inconsistent with the rights of pa- trons, and accordingly subsisted only during the abolition of patron- age. And it would be singular if the Church, which never attempt- ed of its own authority, even when most paramount, and when patron- age 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 216 _ LORD MEDWYN’S SPEECH. 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 specula- tively 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. During all this long period the rights cf the people have been uniform, none could be pro- posed to them as their minister till he had been pronounced quali- fied for the work of an Evangelist by the Church to which they be- long; 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. (Observations on Patronage and Calls, 1833, pp- 16 and 42.) 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 far- ther interference, and the power, without assigning relevant ob- jections, 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’S SPEECH. QF Friday, March 2. Tue Lorp Prestpenr.—** Lorp CorEHOUSE.” Lorp Corenousr.—My Lorp Prestpent,—I deeply regret that a question should have occurred which is said to threaten a collision between the Ecclesiastical and the Civil Courts, more especially as it relates to a subject which for so long a period agitated the country, and disturbed and distracted the Church. But since it has occurred, and we are required and bound to judge upon it, our duty is plain: On the one hand, we must lay out of view all considerations with regard to the expediency or in- expediency of the law of patronage; whether it is consistent or inconsistent with the Presbyterian system of Church Government; and whether it ought to be abolished, restricted, modified, or al- lowed to remain as it is. We must lay out of view all considera- tions whether the Act of Assembly 1834 is wise or prudent, or discreet, and whether, if enforced, it would tend to the edification of the people, and the efficiency of the Church. ‘These are mat- ters for the Legislature, and not for us. Itis a judicial question with which we have to deal, and in a judicial light alone I shall attempt to consider it. My learned friend, the Solicitor-Gene- ral told us, that neither he nor we had any right here to appre- ciate the merits of the Act of Assembly 1834; and he told us so correctly. But in laying down that position, he was scarcely entitled in the very same breath to assume, or even to msinuate, that all the objections to the wisdom and utility of that act are frivolous and shallow. Whether they ‘are or not, I shall not in- quire ; we have nothing to do with them at present. But, on the other hand, we have just as little to do with the consequences of our judgment. My learned friend held up a frightful picture of the excitement and dissension which may ensue if we decide against his clients; and the danger of anew and deplorable schism in the Church. That consideration may induce us to bestow more than ordinary care and. attention in forming our opinion, and to feel more than ordinary solicitude that it should be well founded ; but further than this it ought not, and I am sure it will hot, have the slightest effect upon the judgment of your Lord. VOL. II. Q 218 LORD COREHOUSE’S SPEECH. ships. We are bound to do justice, whatever may be the result. But though our decision should be unfavourable to the defen- ders, I rely on the good sense and moderation of the people of Scotland, more enlightened than in former times, and I rely on the wisdom of the Church, its attachment to the constitution, and veneration for the law,—qualities for which it has been long distinguished, and for which I hope it is still distinguished, that these gloomy anticipations will not be realized. There are two material questions in the cause. I. Have the patron of the parish of Auchterarder and his pre- sentee, or has either of them, sustained a civil injury, in conse- quence of the proceedings of the presbytery under the Act of Assembly 1834 ? II. If that question be answered in the affirmative, is it com- petent 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 acces- sories of patronage, as a right to free tends, vacant stipend, a seat in the church, and a burial-place there. The right of present- ing alone, which affords honour and 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, adjudg- ed, evicted, or escheated. 2. [assume that, by theact 1Othof Anne, cap. 12, patronage is the law of the land, and the lawof 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. With these postulates I proceed to the first question. Before inquiring whether it was or was not in the power of the Church to pass the Act of Assembly 1834, let us consider what is the effect of that act on the right of presentation. There is no doubt as to this matter—there is no attempt on the part of the defend- ers to conceal or disguise its effect. Every person presented to the benefice by the patron may, in virtue of this act, be rejected at the good will and pleasure of a majority of the male heads of families in the parish, being communicants, without any reason whatever being assigned. That majority may say to the ‘ patron, unless you present the individual whom we choose you LORD COREHOUSE’S SPEECH. 219 shall not present at all, that is, you shall not present with effect. Consequently the exercise of the right of presentation may be defeated in any case at the will of a third party. Now what is the nature of a right, the. exercise of which is at all times absolutely defeasible? In the eye of law such aright, at least when vested in a person sui juris, must neces- sarily be either a joint right, or a right by sufferance,—I know of no other alternative. In the case of a joint right the maxim of law is, in re communi melor est conditio prohibentis, that is, either party may prevent the other from acting. Of this there was an example in joint patronages in the early ages of the Christian Church. When joint patrons could not agree in no- minating the same person, the bishop or ordinary is directed by the old canons to proceed to the church, to remove the relics, to lock the doors, and to keep the key in his pocket until the patrons are of one mind. But this regulation did not continue long ; the ordinary in those circumstances took it upon himself, first to choose between the presentees, and by a second stride to present any person he thought fit without regard to the choice of the patrons. In the Protestant Church there is a more equi- table rule ; the patrons are allowed to present per vices. It is not alleged by the defenders that, under the act 1834, the party having the civil right of patronage and the heads of families are joint patrons, otherwise by our statute 1617 they would present by turns, the one having no control over the other. Under this act 1834, therefore, I conceive the other alterna- tive must be adopted, that is, the patron’s right must be reduced to asufferance. It is virtually a right of the same nature as that which I have to walk over my neighbour’s grounds if he consent that I should do so, to fish in his ponds, to shoot in his preserves, to cut his woods, and so forth, all of which I am entitled to do provided he gives me leave. In common speech this is often called a right, but in reality it is no right at all. It is of the same nature with the precariwm of the civil and canon law. But by the 10th of Anne, the right given to the patron is subject to one condition only, namely, that the presentee shall be qualified, a matter for the judgment of the Church Courts alone; quoad ultra, it is absolute. 'The statute provides, ‘¢ that it shall ** be lawful for her Majesty, and any person having a right to “* any patronage, to present a qualified minister, whom the pres- “ bytery shall, and is hereby obliged to receive and admit.” A clause follows with regard to the manner of admission, the im- port of which I shall afterwards consider. i Then on what grounds is it contended by the defenders that the General Assembly had power to convert this absolute right into a right by sufferance only ? 220 LORD COREHOUSE’S SPEECH. I. They say it is a fundamental principle in the polity of the Presbyterian Church, that no person shall be admitted to the office of the ministry contrary to the will of the congregation, and consequently, that no presentation can be made effectual if the people refuse their consent. If they refuse, and the induction proceeds, we are told it is violent intrusion, which is to be es- chewed. In support of this position the Books of Discipline, Di- rectories, and other works called the standards of the Church, with various Acts of Assembly referring to them, are cited as authorities. ‘That the maxim is so stated in general terms in those authorities is true, but it is necessary to inquire what is the precise import of this maxim. It does not occur for the first time in the writings of the Re- formers. It was a fundamental principle in the Christian church for more than a thousand years before Luther, or Calvin, or Knox was born. In those early ages, though patronage was not unknown, a very great proportion of benefices were elective, and not donative. ‘The minister was chosen by the clergy, but he was chosen with the consent, or with the concurrence of the peo- ple. Thus the rubric of a canon in 428 is in these words : Ple- bis non est elegere sed electiont consentire. Again in 493: In electione Episcopt populus debet adesse. The Pontifical says, ‘* it was wisely appointed by the fathers “* of the Church that the people should be consulted in the choice “* of those who are to minister at the altar.” And in Cyprian’s letter to the people of Spain, it is said, ** no one should be or- *“* dained, but in the presence of the people, that the demerits ‘* of the bad may be disclosed, and the merits of the good pro- “claimed.” (Van Espen. II., T. 9, c. 9) A great number of texts to the same effect might be cited from the canon Jaw and the works of the fathers, were it necessary to enlarge upon a point so well known. But after it was settled that the consent of the people is to be asked at the admission and ordination of a bishop or other mi- nister, the question arose, as it necessarily must arise in such cir- cumstances,— W hat if the people refuse to consent, does that de- feat the nomination, or does it not ? This question was answer- ed as early as 493. Gelasius, the Pontiff at that time, states, that he was informed that a benefice had been long vacant, and that very few, and those of the meanest class, would concur in the election of the person who had been approved of by-the Church, Therefore, he puts the clergy in mind that it is their duty to com- pel all the people, by assiduous admonition, to give their consent (1. Dec. Dist. 63.) This certainly means that it was the province ofthe clergy, whohad the right ofnomination at that time, toinquire LORD COREHOUSE’S SPEECH. pepe | into the objections of the people ; and if they were ill-founded, to remove them by such arguments or admonitions as would carry conviction to the mind. The same thing is laid down at a later period, still more ex- plicitly. The Pontiff Stephanus, in 886, writes, that he had heard that a certain bishop was dead, and that great dissensions had arisen with regard to the appointment of his successor, « I ‘am not surprised,” says he, ** at this, because it happens so ** frequently, men seeking their own, and not the things of Jesus “Christ. Therefore,” he adds, “ the greatest care must be *¢ taken that the clergy and people being convened, a person may ** be chosen against whom no canonical objection lies. The ** election belongs to the priesthood, and the consent of the people ** is to be adhibited. ‘The people are to be taught, but not obey- “ed. Docendus est populus, non sequendus.” (1. Dec. Dist. 63.) This maxim is repeated again and again in the early autho- rities of that church. It is, or at least was, unquestionably the doctrine of the canon law, that the consent of the people is to be required at the admission of a minister, and that they are entitled to object, under the proviso, however, that their objections are well-found- ed. You have thus both the maxim and.its limitation, or rather you have the maxim construed in a sound and reasonable sense. No person is to be intruded contrary to the will of the people, but it is not the nuda voluntas, the merum arbitrium of the people. It is will, as defined by Cicero after the Stoics, voluntas est que quid cum kATIONE desiderat ; que autem adversusrationem incitata est, ea cupiditas effrenata, que in omnibus stultis in- venitur. (Yuscul.) Itis the will of the people proceeding upon rea- sonable grounds, that is, grounds which can be stated and proved. I make no apology for referring to the canon law; for Lord Stair has told us, (I. 1. 14,) that so deep has this canon law been ** rooted, thateven where the Pope’sauthority is rejected, yet consi- “* deration must be had to those laws, not only as those by which “* Church benefices have been erected and ordered, but asilike- ** wise containing many equitable and profitable laws, which be. “* cause of their weighty matter, and their being once received, *“ may be more fitly retained than rejected. And to that effect ** also it is recognized in our Confession of Faith.” But if the maxim with regard to intrusion is thus limited in the canon law, let us see under what form it has been received in the Protestant Churches. That subject was so fully discus- sed by Lord Medwyn yesterday, that I am saved the trouble of entering upon it. I shall quote only one authority as the general summary of what he stated to your Lordships. Boehmer, in his excellent digest of the ecclesiastical law of the 922 LORD COREHOUSE’S SPEECH. Protestants, when treating of the law of patronage, prefixes this rubric tothe 77th section ofthattitle ; *‘ Haberunt etiam parochiani “‘ votum negativum.” The parishioners have a negative voice in the settlement ; and in the text he says, ‘ the parishioners must “not be excluded, over whom the presentee is to be placed. ‘* They are entitled to a negative voice, saving the right of pre- ‘* sentation, which belongs to the patron alone.” He continues, ** It isundoubtedly for the interest of the Church, that none but “‘ a qualified person be admitted, one against whom no objection *¢ lies. Therefore, the parishioners are to be heard ; and before ‘¢ the candidate is presented to the bishop for ordination, he shall ‘¢ preach a trial sermon in the principal church, after which the ‘¢ superintendent shall take the opinion of the parishioners, as to “his life and conduct, and if any objections are made, or fault *“‘ found with him, this is to be reported to the consistory, who ‘* are to judge of the matter.” And he proceeds thus, “ ‘The ne- ‘* gative voice which belongs to the congregation and superinten- ‘¢ dent operates in this manner, the want of ability in the pre- ** sentee being proved, and the other defects which may have ** been laid to his charge being demonstrated, he is to be reject- ‘* ed, and the patron enjoined to present a fitter person.” (Jus. Eccles. Prot. LIT. 28. § 77, 78.) The same thing is laid down as explicitly in another work of this author, entitled, Jus Parochiale. The rubric is Plebi competit votum negativum, and in the text, “‘ Universally in the law of ‘* patronage, the consent of the people is not excluded, but so ‘‘ that the patron shall have the decisive, and the people a ne- ‘¢ gative voice, that is, they may dissent, but only, however, if ““ they can allege just reasons of dissent.” EKquidem in omni jure patronatus non quidem excluditur consensus populi, sed ita, ut patrono votum decisium in electione tribuatur, populo nega- tivum ut possint dissentire; non tamen aliter quam si justas, dissensus causas allegare queant.” (Jus. Paroch. ii. 1, 18.) We are now prepared to inquire in what manner this maxim is construed in our own church, whether it is taken in the same sense as in the canon law, and in that of the Protestant churches generally, or ina sense altogether different, namely, that the mere will of the congregation, their dissent without any cause shown, is sufficient for the rejection of the presentee. The max- im itself is laid down in broad and general terms in the Fourth Chapter of the First Book of Discipline. ‘ The admission of “* ministers to their offices must consist in the consent of the ** people and Church whereto they shall be appointed, and ap- ** probation of the learned ministers appointed for their exami- ‘‘ nation.” ‘There is no limitation here, nor was there any room for limitation, for according to Knox’s scheme in that book, the LORD COREHOUSE’S SPEECH. 228 right of election, in the first instance, was vested in the congre- gation. They had the initiative. It was theirs to nominate, not to consent to the nomination of another party. But by the same book, if the congregation failed to elect for the space of forty days, the right to present accrued to the church, of the superintendent and his council, who were toexamine the person of their own selection, and to direct him to the congregation where he should serve. “'That there in open audience of his flock, in di- ** verse public sermons, he may give confession of his faith,” &c. “If his doctrine is wholesome, and if there is nothing reprehen- “sible in his life, doctrine, or utterance, then we judge the *¢ church, (congregation,) which before was destitute, unrea- ** sonable 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.” The instant, therefore, that the right to present passes into the hands of a third party, not only the maxim but its necessary li- mitation appears. The presentee is to preach before the con- gregation, that they may have an opportunity to state and prove any good objection to his life, his doctrine, or his utter- ance; but if there be none, the congregation is to be compelled to receive him. And the Father of our Reformation, while he states in the same chapter that violent intrusion js to be avoid- ed, explicitly declares, “ violent intrusion we call not, when the ** council of the Church, in the feare of God, and for the salva- ** tion of the people, offereth unto them a sufficient man to in. ** struct them, whom they shall not be forced to admit before *¢ just examination.” It is amusing to observe, that Knox uses here the very same words that Pope Gelasius did one thousand years before. They both say that the congregation shall be compelled to consent or to receive the presentee. But the compulsitor of the Pope is more gentle; it is to be accomplished by assiduous admonition ; while our stern Reformer orders that the consent shall be extort- ed by the censures of the Church, and at that time, when excom- munication was equivalent to the aque et ignis interdictio of the Roman law, the censures of the Church were no insignificant penalty. Let us come next to the Second Book of Discipline in 1587. There again you have the general maxim with regard to the people’s consent laid down in unqualified terms. “ Election is “ the chusing out of a person or persons most habi! to that office ‘¢ that veakes be the judgment of the eldership and consent of “ the congregation whereunto the person or persons are to be ap. “ pointed.” I am not aware that there is any restriction of the 924 LORD COREHOUSE’S SPEECH. rule to be found in this book. But we have the most authentic evidence in 1596 of the sense in which the maxim was taken by the authors of the book, the chief of whom was Andrew Mel- ville. King James put a series of questions to the Church in that year, and one of them regarded this point, “* Question 3, “‘ Is nocht the consent of the maist pairt of the flock, and also of ‘“‘ the patron, necessar in the election of the pastors?” What- ever might be the case as to the patron, there could be but one answer as to the consent of the congregation, if the maxim in question is to be taken in an unlimited sense. The answer must have been a simple affirmative, that the consent of the congrega- tion is necessary. But that was not the answer actually given. The Church, assembled by its commissioners at St Andrews, and after deliberation for diverse days on the King’s questions, re- turned this answer to the third question : ‘* The electioun of “‘ pastors sould be maid be tham wha are pastors and doctors “‘ Jawfullie called, and wha can try the giftes necessarilie belang- ‘* ing to pastors be the Word of God, and to sic as ar chosine *‘ the flok and patron sould giff their consent and _protectioun.” When the Church has chosen and approved of a man, which of course they would not do if any relevant objection was stated and verified, then it becomes the duty of the congregation to give their consent, as it is the duty of the patron to give his protec- tion; and if further explanation had been required, I make no doubt that Andrew Melville would have said in the words of his great predecessor, that they should be compelled to consent by the censures of the Church. If we read the act 1592, which is called the great Charter of Presbytery, we find no trace of the doctrine, that the dissent of the congregation without reasonable cause is sufficient to defeat the patron’s presentation. Patronage, which from the date of the Re- formation had been the law of the Church, was ratified by that act, contrary tothe wishes of the authors of the Second Book of Dis- cipline. And while it reserves the right of collation to presbyte- ries, it provides that they shall * be bound and astricted to receive *‘ and admit quhatsumever qualified minister presented be his “« Majesty or laick patrons.” If the congregation had any rea- sonable objection, they had an opportunity of stating it to the presbytery when exercising the duty of collation. But there is no recognition of any power in the people to stop collation by the simple interposition of their veto. This point was mooted in the General Assembly of Westmin- ster in 1644, but at that time it was not decided. ‘* Some de- ** bate,” says Gillespie, ‘* was of the people’s consent, which was ** waived.” The Directory said, “ If there be no impediment ob- ** jected against him who is to be admitted, but the people’s con- LORD COREHOUSE’S SPEECH. 225 ** sent to his admission.” Mr Lee said, “ Datur tertium, per- “ haps the people can object no cause to the contrary, yet not ** consent, what shall be done in that case?” Mr Marshall said, “* It isnot fitt now to debate such point.” But where was the oc- casion or possibility of debate if it had been a fundamental law of the Church from the Reformation, that the dissent of the ma- jority of the congregation alone, and without cause shown, is a bar to the admission of a minister ? The point which was waived by the Assembly in 1644 was de- cided in 1649. In that year the Convention of Estates wished to vest therightof election inthe people according tothe First Book of Dis- cipline. But the General Assembly, to whom the matter was re- mitted, thought otherwise, and gave the right to the kirk-session, the lowest ecclesiastical court. Lhe person so chosen was pre- sented to the congregation, who were called upon to approve or disapprove. If the majority approved, the presbytery proceed- ed to collate, unless the minority stated and verified relevant ob- jections. If the majority disapproved, the matter was brought into the presbytery, and if the presbytery did not find their dis- sent to be founded upon causeless prejudice, they proceeded to a new election. The distinction here between the majority and minority is plain and reasonable. If the majority assented, there was at least a prima facie case in favour of the person elected. There could be no “fama publica clamosa et Jrequens” against him, and, there- fore, there was no reason to stay the admission, unless some objec- tion was stated and proved. On the contrary, if the majority dissented, there was prima facie evidence the other way, and the admission was stayed until the presbytery had an opportuni- ty of judging upon all the circumstances of the case. here is nothing in this act to countenance the opinion, that the mera vo- luntas of the majority was sufficient to defeat the election. af so, there was no need to bring the matter before the presbytery, and no possibility of their judging whether the dissent was ground- ed on causeless prejudices or not. The distinction was reasonable, because otherwise a few individuals, or one individual, might have stopped proceedings in any case. But the assumption, that objec- tions wouldbe listened to if urged by the majority, which would be disregarded if they came from the minority, or objections which were neither relevant nor verified, might be sufficient to reject the nomi- nee, or thatthe will of the majority, withoutany reason at all being assigned, would defeat the election, appears to me not only gratul- tous, but in manifest contradiction. both to the spirit and words of the act. I do not think, either in the case of the majority or minority, that the objections were required to be such as might be the ground of a libel before the presbytery, as immorality, 226 LORD COREHOUSE’S SPEECH. unsoundness of doctrine, and so forth. But every other known objection, either in the canon law or our own, and they are nearly identical, to the fitness, or idoniety, as it is called by the canonists, of the individual for the office would be enough ; for example, in Scotland, that he did not understand the Gaelic lan- guage, or the dialect of it spoken in the district—that he had too weak a voice for the size of the church—too feeble a frame to do the duty of a Highland parish of forty miles in length, or a Low- land parish containing 20,000 inhabitants. As to that matter, I conceive the majority and minority were in pari casu. This is the construction I put upon the Act of Assembly 1649, and which the logic of my friends has not been able to shake. By the act 1690, the heritors and elders have the right of pre- sentation, and there again the dissent of the people is respect- ed, but not without cause shown. It is enacted, ‘‘ that they ** (the heritors and elders) name and propose the person to the *‘ whole congregation, to be either approved or disapproved by *¢ them ; and if they disapprove, that the disapprovers give im “ their reasons, to the effect the affair may be cognosced upon ** by the presbytery of the bounds.” 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 ; Is¢, 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 doc- trine ; 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 incom- petent. 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. _It does not appear to me, therefore, that the maxim against violent intrusion, when rightly construed, can be of any avail to the defenders. But, in the second place, they rely on the usage with regard to Calls, and the act of Assembly 1782, in which it is declared, 4 LORD COREHOUSE’S SPEECH. Say “That the moderation of a Call in the settlement of Ministers “is agreeable to the immemorial and constitutional practice of ** the Church, and ought to be continued.” Upon this point, it will be observed that the term Catt has two significations, and that ambiguity has given rise to endless disputes. A Call is defined in the First Book of Discipline thus : ** Ordinarie vocation consisteth in election, examination, and ad- mission.” It is granted on ali sides, that examination and ad- mission belong to the Church exclusively ; the other fraction, namely election, is declared by the same Book of Discipline to appertain to the people. If that had been received as law, which it never was, the Call on the part of the people would have been synonymous with a nomination. And it will be observed, that the term Call was long construed in that sense by a considerable party, both in the Church and among the people. It is so con- strued at present, I believe, by all the Seceders, and many mem- bers of the Establishment. But the term Cail has another and a very different significa- tion. It is used to denote the liter vocationis in the language of the continental Protestants, which are sent to the presentee by the people after he has received a nomination from the patron. In the passage from Boehmer which I have already quoted, it appears that the proceeding in the Saxon churches is exactly si- milar in that respect to our own. In that sense the Call is not an election by the people, as we have already seen, but an invi- tation, for the right to nominate is lodged elsewhere. It is ma- nifest that the term must have been used in this sense even in the First Book of Discipline, and under the act of 1592. It was so used after Episcopacy was re-established, when the practice of moderating ina Call, in someinstances, wascontinued, although the Privy-Council at that time was empowered togrant warrant for let- ters of horning against the Ordinaryif he refused to admit the pre- sentee. I conceive it was so construed under the act 1690, and that it must be so construed now under the act 10 of Anne. Those who adhered to the other meaning of the term Call, whether they maintained the divine right of the people to choose their ministers, or, what amounts at Jeast in effect to nearly the same thing, that the consent of the congregation is indispensible to constitute the pastoral relation, never dissembled that their doctrine is inconsistent with the law of patronage, which they held up as inconsistent with the standards of the Church, unscrip- tural and unconstitutional ;—on thecontrary, they often distinctly: announced that a Call in their sense of the term was subversive of patronage. As early as 1596, some presbyteries refused to take a man on trials if he had accepted a presentation, and be- fore induction obliged him to sign a declaration, that he imput- 228 LURD COREHOUSE’S SPEECH. ed his call to the people alone. After theact 10 of Anne was passed, similar proceedings took place. We are told,—“ for a great “* number of years, presbyteries refused to receive a presentation *‘ unless the presentee in his acceptance expressed a number of ** conditions, such as that patronage was contrary to the princi- “ ples of the Church of Scotland, and that he would not prose- ** cute his claim without having the Call of the people, that he ‘“* submitted bimself and his presentation entirely to the presby- *‘ tery,” and so forth. At that period preachers were often de- prived of their license, and it is believed ministers suspended, if not deposed, on no ground but because they had presumed to accept presentations, or refused to repudiate the law of patron- age. It was the common practice for presbyteries to moderate in calls in the teeth of the patron’s presentation, and to induct in opposition to it. The truth is, that for several years after 1712 the act 10th of Anne was in abeyance ; the Crown did not choose, and the patrons did not venture, to present in the excited state of the country. And really one cannot help sympathizing with the feelings which caused that excitement. ‘The statute was, or at least was represented to be, anew attempt to force Episcopacy upon Scotland; and many were then alive who remembered the tyrannical measures employed with that view before the Revolu- tion, and the savage babarity with which they were enforced. But whatever excusethe people and clergy may have had for theircon- duct, it is in vain to deny that they were then in a state of open and avowed resistance to the law. When the ferment subsided, and the horror of patronage began to abate, other views prevailed, and now for seventy years it has been settled by a series of ad- judged cases in the Supreme Ecclesiastical Court, that a Call is an invitation which it 1s desirable that the congregation should give for the encouragement of their pastor, and which by usage they are always asked to give, but which is not part of ordinary vocation, as defined in the First Book of Discipline, or in any wise essential to induction. During the period I have mentioned, num- berless cases have occurred in which the Assembly have sanc- tioned calls signed by two or three individuals, (in short, just such calls as the one which Mr Young obtained at Auchterar- der,) although the whole of the parish besides, consisting of hundreds or ‘oscands of persons, refused to subscribe, or even ex- pressly opposed the settlement. And that is the only sense in whichI conceive a Call can be reconciled with the existence of a real and efficient right of patronage. Those who understand it in a different sense,—at least those who so understood it in the beginning of the last century, and when the secession took place, —never pretended to reconcile them. In my humble opinion, therefore, neither the maxim against 3 LORD COREHOUSE’S SPEECH. 229 violent intrusion, nor the usage with regard to calls, affords any sanction to the Act of Assembly 1834. From the Reformation till the date of that act, I can discover no trace of authority (at least during the subsistence of patronage) for the doctrine, that the dissent of the congregation, or any part of it, without reasons assigned of which the presbytery could judge, was of itself suf. ficient for the rejection of a presentee, whatever might be his qualifications, and I consider this act, therefore, an unwarrant- able innovation ; while the avowed but abortive attempt, at the beginning of the last century, to defeat the right of patronage altogether by what is termed a Call, so far from affording coun- tenance to the measure, forms by its failure, and the acquiescence of the Church for so long a period in that failure, a distinct and powerful objection to the proceeding of the Assembly. But the defenders, giving up the ground, that the act 1834 is a declaratory law, attempt to Justify it as a new constitution which the General Assembly, as a legislative body, had power to make. They say that the Church may legislate in spiritual matters without control, that collation is a spiritual matter, and therefore, that the Church may require that the presentee shall be acceptable to the people, as the condition of his being induct- ed. Now in this syllogism the major must be conceded, but as to the minor there is a distinction. In so far as the qualifica- tions of the presentee are in question, collation is a spiritual mat- ter, for of them the Church alone ean judge; but in so far as the patron’s right is concerned it is a civil matter, and the Church has no power to impose any condition by which that right can in any degree be injured or impaired. The defenders say, that the presbytery are entitled to hold the acceptableness of the pre- sentee, as a qualification indispensible to the discharge of the pastoral office. I conceive that acceptableness is not a quality in the presentee at all, either absolutely, as connected with the du- ties of a pastor in general, or relatively, as regards the discharge of those duties in the particular parish to which he is presented, He may be perfectly able for the performance of those duties in the most efficient and edifying way,—he may be peculiarly suit- ed to that congregation, and yet he may be very unacceptable. — perhaps on that very account the more unacceptable. When the apostles first preached at Ephesus they were by no means acceptable ; and it was not a majority of the male heads of fami- lies there who objected,—we are told that the whole city rose and rushed into the theatre, threatening them with personal violence. If an apostle had preached one hundred years ago in some pa- rishes on the coast of Orkney or Shetland against plundering wrecks, or if he had preached fifty years ago in any one of half 930 LORD COREHOUSE’S SPEECH. the parishes in the north of Scotland against illicit distillation, he would probably have experienced a similar reception. Paul afterwards became very popular at Ephesus; and we know that many presentees, who were settled in Scotland with the assistance of a troop of dragoons, became useful ministers and obtained the veneration and love of their parishioners. Acceptableness per se is a matter not within the province of collation at all, though collators may inquire whether the want of it has arisen from a good and sufficient cause. If they give it any other ef- fect, they delegate to the people the office which was delegated to themselves, or rather, they substitute the people’s choice for the choice of the patron. But the defenders say, that the General Assembly have, from time to time, made regulations with regard to the qualifications of presentees. I believe it will be found on inquiry, that the greater part of those regulations were not only requisite for se- curing the respectability and usefulness of ministers, but had existed in the canon law for centuries before the Reformation— for example, that the presentee should bring testimonials of character from the place of his residence—certificates of attend- ance and proficiency from authorized seminaries of education— that he should speak the language of the district where the be- nefice is situated—that he should not hold pluralities, or engage in business incompatible with his duties. All these are intro- duced in terminis from the canonlaw. Other conditions, again, which the Assembly have adopted, for example, that he should have been previously licensed, were plainly for the benefit of the patron, as they directed his choice; and a late act, that a license from a foreign presbytery in communion with the Church should not be sufficient, was necessary, because there is often a want of candidates in those places having the knowledge and acquire- ments which in Scotland were always considered indispensible. But because patrons have acquiesced in some limitations of their right, the propriety and expediency of which were apparent, it does not follow that they should submit to a condition which would defeat their right altogether. That the Act 1834 would often, in practice, have this effect, is indisputable. Considering the weakness of human nature, the innate love of power, an- tipathy to patronage, personal dislike to individual patrons, causeless prejudice, and prejudices caused by intrigue, party spirit, or the solicitations of interested persons, motives would seldom be wanting to induce a majority of the congregation to reject every person offered, but the one whom they themselves had selected. : Some use has been made in argument of the last clause of the section in the 10th of Anne, already referred to. Af- ter declaring that it shall be lawful for her Majesty and other LORD COREHOUSE’S SPEECH. 231 patrons to present qualified ministers, it provides, “ that the “* presbytery shall be 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.” I think it is obvious that this provision as to the manner of admission is merely a saving of the Church’s right of collation; and it will be particularly noticed that ad- mission is to be made in the manner practised, or which ought to have been practised,—not while patronage was in abeyance during the usurpation, or after the act 1690, but while patron- age was in force, apparently for the very purpose of avoiding all cavils on the difference of the words to propose in the act 1690, and to present in the act of the 10th Anne. On ail these grounds I arrive at the conclusion, that the act 1834 is ultra vires of the Church. I think it has defeated the right both of the patron and presentee of the parish of Auchter- arder. And here one cannot but observe, that while the veto is a wall of brass against the patron, it is a web of gossamer against the presbytery. When six months have elapsed, and their jus devolutum has accrued, we hear no more of violent intrusion, no more of the people’s dissent, no more of acceptableness being an indispensible quality of the presentee ; as soon as the presbytery themselves become the patron all this is disregarded ; and, in- deed, were it not so it might be impossible to supply the vacancy. ‘This consideration of itself appears to me to sub- vert every ground on which the legality of the Act 1834 has been defended. I am confident, therefore, that your Lordships will see now what John Knox saw when the Reformation was in its cradle, and when he was writing his book of Prospective Ecclesiastical Polity. You will see that a right of presentation in one party is from the nature of the thing practically incompa- tible, with a right of dissent without cause in another party. If it existed, you must fall back to the old canon. The moderator must proceed to the church, remove the communion plate, the Bible and the gown, lock the door, and keep the key in his pocket till the patron and the people are agreed. And as that plan was found not to answer, the only other alternative is that which the Act 1834 would effect. If it be enforced, whatever may have been the intentions of those who framed it, and I be. heve their intentions were good—it would operate as an engine to destroy the rights both of the patron and the people, and to vest the sole and unlimited power of presentation in the hands of the Church itself, an effect which, in every point of view, is to be deprecated. I know ofno proceeding ofacharacter similarto that in question " except one, to which my Brother Gillies alluded, during the reign 2382 LORD COREHOUSE’S SPEECH. of Henry VIII. in 1533, exactly three auared years before the interim Act of Assembly was passed. By a charter of King John, when a bishoprick became vacant, the dean and chapter of the cathedral were empowered to Bae the successor. In the 25th of Henry VIII. there is a statute expressly acknowledging the right of the dean and chapter; but under this-proviso, “1st, that they shall not proceed to an election until they obtain a li- cense from the King, and 2d, when they do proceed, that they shall elect the person whom he is pleased to name, and no other. It appears to me that the General Assembly holds patronage only as a license to present, but under the condition that the patron shall have power to present no one but him whom a majority of the male: heads of families shall approve. When the 25th of Henry VIII. was repealed by the 1st of Edward VI. it is said, ‘* whereas the said elections (that is under Henry’s ‘* statute) be in very deed no elections, but only having colours, ‘* shadows, or pretences of elections, serving, nevertheless, to no ‘‘ purpose, and seeming also derogatory and prejudicial to the “* King’s prerogative royal.” If the Act of Assembly 1834, with regard to presentations, be enforced, it may. be said with equal truth, that the said presentations be in very deed no pre- sentations, but only having the colours, shadows, or pretences of presentations, serving, nevertheless, to no purpose, and seeming also derogatory and prejudicial to the patron’s right. Indeed, it may be said with more truth, because Henry’s statute was of little prejudice to the royal prerogative; but the act 1834 anni- hilates the patron’s right altogether. II. On the second branch of the case I shall detain your Lord- ships for a very short time. If a civil wrong has been com- mitted, and I think both the pursuers have sustained a civil wrong by the operation of an unwarrantable and illegal Act, a civil remedy must lie in somecourt; and I thinkit must lie in this Court, unless it has been taken away by statute or custom. The defend- ers found upon the act of Parliament 1567, which vests the juris- diction with regard to the settlements of ministers in the Eccle- siastical Court. After providing that the presentations of laic patronages shall be reserved to the just and ancient patrons, and . that they shall present a qualified person within six months, it proceeds thus, if ‘¢ the said superintendent or commissioner of ‘* the kirk refuses to receive and admit the person presented by ‘¢ the patron, as said is, it sall be leisum to the patron to appeale “to the superintendent and ministers of that province quhair “ the benefice lyis, and desire the person presented to be admit- ** ted, quhilk if they refuse, to appeale to the General Assembly « of the haill realme, be quhome the cause beand decyded, sail LORD COREHOUSE’S sPEECH. 233 “take end as they decern and declair.” Tn my apprehension this applies to the case, when the patron on the one part, and the superintendent or the commissioner on the other, Were at issue with regard to the qualifications of the presen- tee ; as appears manifest from the preceding clause of the Statute which was read yesterday. In that case the patron has an appeal from the lower to the higher church courts, be- cause it is a matter of collation, of which the spiritual courts are alone cognizant. I do not think it has any reference to the ex. ercise of a right of presentation as a civil right, which by the canon law had always been reserved to the civil courts. But supposing that view to be incorrect, the act 1567, as con- strued by the defenders, has long ago fallen into desuetude. This is clear from the:series of decisions cited by the pursuers, found that the jus devolutum had not accrued, because the pres- bytery had illegally failed to induct, and has deprived the per- son of the temporalities of the benefice, whom the presbytery had inducted without a legal warrant. Construing the act 1567 as the defenders have done, none of these decisions could have been pronounced. Then it is said that the Church’s independence has been se- cured by various statutes ; and, consequently, its proceedings, whether legislative or judicial, are beyond the cognizance of this Court. But this position is subject to the distinction already noticed. It is laid down in all the standards, from the First Book of Discipline to the Confession of Faith in 1690, * that in God’s ; it is our duty to render unto Cesar the things that are y fe I do not think that it is difficult to draw the line of distinction between the province of the ecclesiastical and that of the civil courts. Vocation, in the language of Knox, consists of election, examination, and admission. Foy election, presentation must now be substituted, as the right to nominate is not in the people but in the patron. It is for the civil court to judge in what re- lates to the first part of vocation ;—for example, who has the right of patronage, in what form, and within what time a pre- sentation is to be given,—how it is to be carried into effect, and in what manner unwarrantable attempts to frustrate it are to be VOL. Il, R 234 LORD COREHOUSE’S SPEECH. counteracted. On the other hand, examination belongs exclu- sively to the ecclesiastical courts. It is for them to judge of the character and qualifications of the presentee. Admission is like- wise an ecclesiastical matter. A civil court can neither confer the sacred character which ordination impresses, nor obliterate that character when it has been impressed. So also, a civil court can neither create the pastoral relation between the presentee and the parish, nor dissolve it when it has been created. On the same principle all spiritual functions are under the control of the Church, while the temporalities of the benefice fall under the cognizance of the civil power. It is from overlooking this distinction that difficulties have arisen, both as to the cases in which it is competent for this Court to interfere, and the nature of the redress which it has power to give. For example, if there is a competition for the right of patronage, it is for us exclusively to try the question between the competitors. If, pending that competition, both parties issue presentations, and the presbytery proceeds to induct on the wrong presentation, this Court cannot review the sentence in an advocation, nor suspend the spiritual relation between the person inducted and the flock in a suspension, nor set aside the pro- ceedings in an action of reduction. But, on the other hand, we can find in a declarator that the right of the true patron has been wrongfully defeated, and in consequence we can suspend a charge for the stipend at the instance of the person inducted, or we can find the patron entitled to the vacant stipend, (suppose the act 54 Geo. III. to be out of the question, of which I shall after- wards speak.) ‘These points were keenly contested in the cases of Culross and Lanark, but established by the decisions in both, and this, I think, is not now disputed by the defenders. On the same principle, I conceive, we can sequestrate the manse and glebe, or find the heritors entitled to dispose of the rents and profits of them to pious uses, until the right presentee is inducted. In like manner, though there is no competition for the patronage, if the presbytery induct in prejudice of the right of the undoubted pa- tron by virtue of a supposed jus devolutum, or of a general call, the same redress can be given. This was the case in Auchter- muchty and Unst. Suppose the presbytery shall defeat the right of the patron, not by inducting in prejudice of his presentation, but by refusing to proceed under it, this Court may resort to similar measures after establishing the wrong by decree of declarator against the presbytery. We can find that the gus devolutwm cannot accrue until the presbytery have taken trial of the qualifications of the presentee. This was decided in the case of Dunse by a judg- ment of the Court of Session, not touched by that which was LORD COREHOUSE’S SPEECH. 235 pronounced by the House of Lords. But further, notwithstand- ing an observation in Lord Monboddo’s report, which is not confirmed by that of Falconer, I think it is clear that the patron may be found entitled to the vacant stipend, and the heritors to the profits of the manse and glebe, till the presbytery proceed. The presbytery is the proper contradictor in that action, because during a vacancy, they have a title and interest to defend the be- nefice from dilapidation. It is true that, in consequence of the act 54 Geo. III. the Col- lectors of the Widows’ Fund also must now be called to try a new and. very important question, whether, on a fair construction of that statute, the Church is entitled to apply to their own patri- monial benefit, stipends arising during a vacancy occasioned by their own illegal conduct. If that be decided in the negative, the presbytery are not only a proper contradictor, but the only proper contradictor. All these points, in so far as the competency of this action is concerned, I humbly conceive, have been clearly settled by a se- ries rerum judicatarum. But there are other points which have not been decided, and which, before the Act 1834, could not arise for judgment in this Court. In this case the presbytery have not merely delayed to act on the presentation, but they have rejected the presentee, not in the exercise of their judicial functions, but in the exercise of a mi- nisterial function, giving obedience to the unwarrantable act of the Assembly, by which they are prohibited to take on trial a presentee vetoed by the male heads of families. Now granting that your Lordships can neither rescind the Act 18$4, because the Church is independent both as a legislative and a judicial body, or even granting, which is more doubtful, that you can- not decern the presbytery to proceed to trial, it is clear, at least, in my judgment, that you can make the presbytery responsible for all the civil and patrimonial consequences arising from their illegal conduct in the exercise of their ministerial function. To put acase. ‘The Court of Exchequer is a supreme court, and as independent of us as the Ecclesiastical Courts are. Suppose my learned brother on the other side of the Bench, sitting as Baron of Exchequer, should make an order on the Presenter of Signa. — tures, that he shall present no signature for revisal containing the grant of a patronage unless it be accompained with a.bond from the grantee, that he will never interfere with the settlement of a minister, but allow the benefice to be always filled by vir- tue of a popular call alone. I do not think your Lordships could rescind that order, or decern Sir James Montgomery td pre- sent signatures without such a bond. But, if he refused to pre- sent a signature in obedience to the Baron’s order, and in conse- 236 LORD COREHOUSE’S SPEECH. quence a Crown Charter could not pass the seals, nor infeftment be expeded, and if the estate was carried off by the creditors of the former proprietor, would you, sitting here, or in the Jury Court, hesitate to sustain an action of damages against the pre- sentee? So again we are as independent of the Court of Justi- ciary as the Ecclesiastical Courts are of us. But you will recollect that, on the 6th July 1692, when different notions prevailed both of the principles of political economy and the powers of this Court, your predecessors made an Act of Sederunt, order- ing that no French wine should be sold in the city of Edinburgh at a higher price that 1s. 2d. a bottle, and enjoining the ma- gistrates of Edinburgh to punish contraveners by fine and im- prisonment. I presume that act is now in desuetude. But suppose that you were to re-enact it to-morrow, and a magis- trate of Edinburgh, in obedience to your injunctions, were to send to jail an unlucky wine-merchant who had sold his claret at L. 3 per dozen, the Court of Justiciary could not decern you to expunge the act from the books of Sederunt; but I scarcely think they would doubt their power to find a libel against the magistrate for wrongous imprisonment competent at the instance of the Lord Advocate, or of the private party with his con- course ; and, if the fact were proved by the verdict of the jury, to send the magistrate to the place where he had sent the wine- merchant. But I shal] put a third case more to the point than either. Suppose the General Assembly in May next, should pass an act setting forth in the preamble, that patronage is unscriptural, un- warrantable, contrary to the liberties of the Church, and offen- sive to the people of Scotland, and enacting that every presby- tery should deprive of his license any preacher, and depose from his benefice any settled minister who presumed to accept of a presentation from a laic patron. The preamble of that act might be defended by an appeal to the standards of the Church, Books of Discipline, Directories, Acts of Assembly, and the works of ecclesiastical lawyers of undoubted authority. Maxims to that effect might be cited much more direct and explicit than any about violent intrusion, or the necessity of popular calls, and susceptible of no modification or restriction, express or implied. I shall read only one from Pardovan, Book T. Tit. I. sect. 11. three or four years before the 10th of Anne was passed. ‘ This ‘“Church maintains that the patron’s pretended privilege of a ‘* negative interest in the call and maintenance of ministers is a “‘ sinful and wrongous usurpation, without warrant from the “word of God, destructive of the true liberties and interest of “the Church, and most scandalously offensive to all ranks of *‘ Christians therein. This is gathered from their writings and LORD COREHOUSE’S SPEECH. 237 ** sermons, and Act of Assembly, August 4, 1649.” Reference might also be made to the practice of the Church both before and after the 10th of Anne, and what are now called its purest days, in which, as already mentioned, ministers, I believe, were deposed, and certainly preachers often deprived of their license, on the ground of their accepting presentations. Now, although your Lordships could not rescind that act, if it were to be pas- sed, 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, 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 sup- posed, 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. 1 do not think the act which I snppose, would be a greater violation of the 10th of Anne, 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 cha- racter and prospects of an able and worthy man may be blasted while he lives. The rejected of Auchterarder may be the re- jected of every parish in Scotland to whom he is offered. But, perhaps, I am now overstepping the limits which I pre- scribed to myself, in considering how the Act 1834 may work in other cases, instead of how it has worked in the case of the pa- tron 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 pro- per form to try the question which has been raised. On this point the case of Unst and other cases quoted at the bar are con- clusive, in which this Court sustained its jurisdiction, and decern- ed 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 commited, and also, I conceive, as entrusted with the care of the benefice during the vacancy ;—in others the presbytery themselves were pursuers. 238 LORD COREHOUSE’S SPEECH. 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 Or- dinary, 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 tempo- ralities 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 va- cancy, is incompetent. He can have no right to the fruits of the benefice until he shall be inducted. If he had inserted a con- clusion 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 eonclusions 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 con- verso that we can ordain them to proceed. It seems also to fol- low asa corollary, from the act 10th Anne, which establishesa 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 de- crees, that point has beenexhausted by Lord Mackenzie, and I will add nothing to what he has so admirably stated. LORD FULLERTON’S SPEECH. 239 Friday, March 2. Tue Lorp Presipent.—“ Lorp FuLLEerRToN.” Lorp FuLierton.—My Lorp Presipent,—I wish, for many reasons, that I could have availed myself of the excuse, which, differently circumstanced, I might have had, for declining to enter at large into the consideration of this question. For if I had been able to adopt that view of the case in which all of your Lordships who preceded me have concurred, I doubt much, whether I should have ventured to attempt any additional exposition, of the grounds on which that view was to be supported. But, after bestowing all the attention on the case which was within my power, and which was due to its importance, I have formed a different opinion. I have then no alternative: I feel it to be ne- cessary to state fully, but as shortly as I can, the grounds of that opinion ; and I do it, I confess, under the somewhat uncomfort- able misgiving, that there may lurk, unperceived by me, some de- fect in a train of reasoning, leading to a conclusion against which there is such a formidable array of authority. There are here two questions which admit of being kept, and I think may be beneficially kept distinct, as has been done by the Judge who has just delivered his opinion; though I am in- clined to reverse the order in which he considered them. The first regards the jurisdiction of the Court to entertain the purely declaratory conclusions of the summons, as directed against the presbytery of Auchterarder, to which, for the present at least, the inquiry is limited. The second, arising, if the former is decided in the affirmative, is, whether those conclusions ought in law to be sustained ? The first question is raised in consequence of the unusual po- sition in which the case has been placed, by the course taken on the part of the pursuers in conducting it. 240 LORD FULLERTON’S SPEECH. The summons is founded on the recital of the patron, Lord Kinnoull’s, right to present to the Church of Auchterarder,—of the acceptance of that presentation, by his presentee, the other pursuer,—and of the various proceedings of the presbytery of Auchterarder, which terminated in his rejection ; from which are derived the conclusions, being, first, that it ought to be found, that the presbytery were bound to make trial of the qualifications of the presentee, and are still bound to do so; and that, if upon 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 ;”°—and that the rejection of the presentee without so mak- ing trial, and in respect of the veto of the parishioners, was illegal and injurious to the patrimonial rights of the pursuer, and con- trary to the provisions of the statute and laws libelled. 2dly, That it being so found, and in the event of the presbytery con- tinuing to refuse to discharge their duty, &c. the said Robert Young, pursuer, ought to be declared to have the just and legal right to the stipend. 3dly, That the presbytery of Auchterarder, and the colleetor of the Widows’ Fund, ought to be decerned to desist from troubling him in the payment of said stipend, &c. ; and, Athly, That the various heritors should be decerned to make pay- ment of the stipend to the pursuer. These conclusions seem to be exclusively applicable to the rights of the pursuer, the presentee; and there is, in addition, an alternative conclusion in favour of the other pursuer, the pa- tron, for having it found and declared that he had legally exer- cised his right as patron,—that the presbytery have illegally re- jected the presentee,—and that, therefore, the pursuer, the patron, ‘“‘ has right to, and is entitled to receive and retain the whole sti- *¢ pend and emoluments ;” and then follows a set of conclusions against the presbytery, the collector of the Widows’ Fund, and the heritors, resembling those above-mentioned, and applicable to this alternative demand of the stipend made by the patron. Had either of these sets of conclusions, properly pecuniary, been insisted in, there could have been no doubt of the jurisdic- tion of the Court to entertain the question ; and, in investigating it, to consider the legality or illegality of the proceedings of the presbytery, in so far as that might be necessary to the determina- tion of the question of civil right,—a question which is clearly within its province. But when the case came before me in the Outer-House, the pursuers were met on the part of the defenders, the presbytery, by the objections, that it was not competent to conclude against the presbytery for payment of stipend,—and that, consequently, the pecuniary conclusions were not properly directed against them; and, in regard to the proper pecu- LORD FULLERTON’S SPEECH. 241 niary conclusions for stipend, &c. the defenders denied the title of the presentee and the patron to insist in them,—and maintained, that, if the leading declaratory conclusions were intended as merely introductory to the proper pecuniary conclusions, they could not be reached, until the title or interest of the pursuers, in regard to the pecuniary conclusions, was sustained. But these pecuniary conclusions certainly raised questions which could not be assumed, without argument, in the affirmative. In the first place, it is a novel proposition that a presentee, without induction, is entitled to the stipend ; and, secondly, since the statute of the 54th Geo. III. cap 169, gives the vacant stipend to the Widows’ Fund, there arises a plausible objection, to say the least, against the title of the patron to insist for the vacant stipend. And accordingly, to relieve the case of those difficulties, as it appeared to me, the pur- suers waived for the time, insisting in these pecuniary conclusions, and stood upon their right to insist in the leading, and merely de- claratory conclusion of the illegality of the proceedings of the presbytery, as directed solely against the presbytery. Now there certainly is no incompetency in this, as a party who raises a summons, containing a conclusion declaratory of a right, and follows that up by conclusions properly petitory, does not necessarily abandon the declarator, by abandoning or waiving, for the time, those petitory conclusions. But then it is equally clear that, in any question regarding the competency of the court to entertain the mere declarator of right, he, when he has separated the two sets of conclusions, cannot seek any assistance from those petitory conclusions which he has for the time waived ; and that the whole question regarding the competency of the declarator must be treated as if the summons contained no other conclusion. The present question, then, must be considered as purely one with the presbytery of Auchterarder, called as the defenders in a declarator, for having it found and declared that the presbytery have acted illegally in rejecting the presentee, and are still bound to admit him. According to the usual mode of treating reserved points, the presbytery, the defenders, are better entitled to assume that the petitory conclusions will be decided against the pursuers, than the pursuers, the parties who waive them, are to assume that they will be decided in their favour. But it is unnecessary either to assume the one or the other. The true view to be taken of the case in the position in which the pursuers have placed it, is, that the summons must be treated as one exclusively declaratory, and exclusively directed against the presbytery of Auchterarder. What, then, is the nature of this declaratory action.. That it is purely declaratory, when limited to the first conclusions against the presbytery, is obvious.—It contains no petitory conclusions of any kind. It dees not even call upon your Lordships to decern 242 LORD FULLERTON’S SPEECH. or ordain the presbytery to do anything, or to abstain from doing anything. Itis limited to declaring what they were bound to do, and that what they had done was illegal. It is, to be sure, a de- clarator of right, but of what kind of right? Not a right to the stipend, or any other pecuniary and patrimonial civil benefit ; but the right to be admitted minister of the gospel in the church of Auchterarder, coupled with the additional conclusions, that the presbytery have done wrong in rejecting him ; that the presbytery were and are bound to take the presentee on trials, and if qualified, to admit him as minister of the church of Auchterarder, and that they acted illegally in rejecting him. In my opinion, then, the conclusion truly aims at the declarator, not of a civil, but of an ecclesiastical right, directed against the party, by whom that ecclesiastical right is said to have been with- held. And this view of the nature of the summons, when so limited, raises the first question, whether such an action, directed solely and substantively against the presbytery of Auchterarder, can be entertained by this Court >—It appears to me that it cannot. It is true that mere declarators of right are perfectly well known in the practice of our law, and the competency of in- sisting in them disjoined from any petitory or pecuniary conclu- sions, of which the right sought to be declared may form the basis, is beyond the reach of dispute. But in the general class of cases of that kind, the rights sought to be declared, are mere civil or secular rights, clearly within the jurisdiction of the Court, —and they are rights, in regard to the granting or with- holding of which, the defenders are clearly under a civil or secular obligation. But the present case is widely different.—This action, as now insisted in, is directed against a body of public functionaries, who within their own resort, are, in my opinion, ab- solutely independent of your Lordships ; and it is brought for de- claring an ecclesiastical right, a matter as clearly within their own resort. And this view of the case does not interfere, in the slight- est degree, with the rule so often repeated, that a right of patron- age is a civil right. ‘That is quite true; but, like many other principles, its apparent application to the matter in dispute arises from its undefined and unqualified generality. It is a civil right. It may be bought and sold, and litigated for in a civil court: and in regard to this last quality, the presbytery can found nothing on its ecclesiastical character, iu order to claim an immunity from civil jurisdiction. If the presbytery challenge the title of a patron, his right may be declared against them, and if they claim the jus devolutum, that claim may be put down by a civil action. . But if it is meant to be inferred, that, because a 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 3 LORD FULLERTON’S SPEECH. 243 of what those rights consist. They comprehend, in the first place, a claim to the emoluments of the living—which clearly is a mat- ter of civil right; but further, they give a claim to the im- portant and sacred trust of the ewra animarum of the parish ; and besides, in this case, as in most cases in Scotland, where the ministe- rium vagum is not permitted, they include the claim to be ordain- ed minister of the gospel. Now these two latter rights, though arising from the exercise of the civil right of patronage, are un- questionably and exclusively spiritual or ecclesiastical ; and the cor- responding 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 bond to grant them. ‘lhe 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 di- rected substantively and exclusively against the presbytery ; and thus, 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. And in other circumstances, I should hardly have thought it necessary to guard against the supposition, that this view in any way impeaches the dependence of the Church on the State; a point on which we have heard so much in the course of the argu- ment. It was admitted on the part of the defenders, and indeed cannot be reasonably denied, that, however high and superior to all earthly jurisdiction, the church in the spiritual sense may be, still the Church as an establishment,—as a privileged and endow- ed Church, owes its institution to the State, and is the creature of the law of the land. In that particular the Church and its courts stand exactly on the same footing as the civil courts, which draw their jurisdiction from the same source. But what is gained by that admission in relation to the present question ?—Surely it does not warrant the conclusion, that when the Church Courts go wrong in the exercise of their ecclesiastical functions, the Civil Courts are entitled to set them right, and either to compel or to recall the exercise of the powers, with which the State has entrust- ed them. It does not and cannot follow from the circumstance of the church being, as an establishment, subject to the Legislature, that either the Church or the Church Courts are subject to the Court of Session. The answer to such a pretension is obvious— that, by the laws of the State, each class of courts has its proper 244 LORD FULLERTON’S SPEECH. sphere, which the other is not entitled to invade ; although within that sphere, it may happen, God knows, that both the one and the other may go far enough wrong, and may do so without any other remedy, than that afiorded by the voice of public opinion, or the interference of the Legislature. . It may be, that, in some systems, one supreme court has juris- diction over all the subordinate judicatories, to which the discus- sion of the different descriptions of rights and other subjects of ju- dicial decision are entrusted. The policy of this country has been different. It is quite well known that there are various courts, each supreme in its own province, and within which none of the others is entitled to intrude, either cumulatively or by a power of re- view. Of these I must consider the ecclesiastical judicatories of this country to form a class, just as independent within their own department, as the Court of Session, as the Court of Exchequer, or the Court of Justiciary. The notion that, but for the superintend- ence of the civil court, great wrong may be done without a remedy, appears to me to be little better than a delusion. In one sense there must always exist the possibility of awrong without a remedy, aslong as there exists a possibility of error, of precipitancy, or of prejudice in the individuals of whom all courts are composed. Accumulate check upon check, and appeal upon appeal, the last and only se- curity must be, in the enlightenment and conscience of the su- preme judge or judges, acting in the face of the country, and sub- ject to the control of the Legislature. When it is found that one part of the complicated judicial machinery is so deranged as to jar withand impede the rest, measures may be taken, and no doubt will be taken, to remedy the evil; but until that be done, the diffe- rent courts of co-ordinate jurisdiction must be confined to their pro- per limits. Ecclesiastical jurisdiction must be kept distinct from civil or secular ; and while that distinction exists, I am not en- titled to assume that the control of the one by the other, is demanded by the necessity of the case, and thus, reversing the ancient error, to provide against the possible fallibility of the Church, by the sup- posed infallibility of the Court of Session, or any other civil court. And it will be found, that the words in the Act 1592, if that act can be considered as in terminis in force, of which I have great doubts, leaves the matter just where it stood. That was an act for regulating the powers and duties of the Church judica- tories; and of course it must be held tobe, according to the sense of it entertained by those judicatories, theruleof theirprocedure. But that is immaterial in the present discussion, because the act certainly con- tains nothing empowering any other judicatory toinquire into and de- termine, how far those rules have been rightly construed and duly observed. Just suppose an act passed to regulate the Court of Jus- LORD FULLERTON’S SPEECH. 245 ticiary, or the Court of Exchequer, binding or astricting them to do or to abstain from doing certain things. It is quite possible, that very important civil rights might depend on their obedience to those enactments. But it never could follow, from the existence of the obligation so enacted, that it could be directly enforced in the Court of Session, by a declarator against the functionaries who were charged with disobeying the enactment. The question in all such cases must be, not whether there is a right and obligation, but whether the right or obligation be such as to fall within the resort of the Court before whom the action is brought ? Neither is there the slightest ground for alarm, that this prin- ciple ever can place the civil rights of parties at the discretion of an ecclesiastical jurisdiction. For whenever a question of civil or pa- trimonial right does arise, the case is necessarily brought within the province of the civil courts,—and in order to the giving or refusing redress for the alleged wrong, those courts will unquestionably be entitled to judge of the legality of the whole proceedings which led to the result complained of,—and, in the course of that in- quiry, to determine whether, and how far, the ecclesiastical courts may have gone wrong in matters on which their opinions is not absolutely conclusive. Thus, when the petitory conclusions of the present action come to be insisted in,—and when it shall be found that those petitory conclusions in any way depend on the legality or illegality of the rejection of the presentee, your Lordships will be clearly entitled to exercise a sound judgment on all those points, of which the determination is essential to the extrication of the question of civil right. But, taking the declaratory conclusions, as now insisted on, and stripped of those or of any other pecuniary consequences, and calling upon your Lordships to find that the Presbytery of Auchterarder, an ecclesiastical body, have done wrong in refusing the presentee an ecclesiastical right, viz. the cure of souls, and ordination as the minister of Auchterarder, I consider the case to be clearly beyond our province. This dis- tinction is so perfectly well understood in practice, that I could have hardly anticipated the necessity of illustrating it. It has fre- quently happened, that questions of civil or patrimonial right arise, which involve in the train of reasoning necessary to resolve them, points which have been adjudicated, but to a different effect, in other tribunals. Then arises the opportunity for the operation of that safeguard against the illegal encroachments upon civil rights if attempted by other tribunals. Your Lordships, then, are not bound to take the law on those matters from those other tribunals, but, acting upon your own lights, to determine every point necessary as the means for reaching that conclusion which is undeniably within your own jurisdiction. ‘The legality of the resolutions of a branch of the Legislature,—pointsof peerage,—questions of ecclesiastical law, 246 LORD FULLERTON’S SPEECH. —may in this way be all competently brought within the cogni- zance of the Court. But it would be rather 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 func- tionaries, 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. Neither do I think that we can listen, here, to the supposed com- petency of your Lordships granting civil redress, in the event of the declaratory conclusion being sustained, as, for instance, that such declaratory conclusion might support the claim of the presentee to the stipend,—might bar the jus devolutum of the presbytery,—nay, might be the foundation of a diligence against the presbytery to take the presenteeon trial, and admit him—or even form theground of an action of damages. Some of these seem to me to be illustrations, which are darker than that which they are meant to enlighten. They are truly attempts to demonstrate the point now before the Court, by assuming postulates more startling than the proposition which they are brought to support. Such, for instance, is the no- tion, that this Court could give authority to charge the presbytery to admit, that is, to ordain, the presentee as minister of Auchter- arder. But it is needless to go into these matters. It is possible that the Court may have such power ;—it is possible that the pre- sentee, without induction to the cure, may be found to have a right to the stipend, and that the presbytery may be found excluded from the exercise of the jus devolutum ;—nay, it is possible, although I am certainly not at present prepared to assent to any of these pro- positions, that these reverend gentlemen, the defenders, may be ex- posed to an action of damages for doing that which, by the law of the Church, and the special direction of their ecclesiastical supe- riors in this very case, they were enjoined to do. But these sup- positions afford us no assistance in the present discussion, for, even the supposed action of damages implies the existence of a question of civil or pecuniary claim, of which this Court would be entitled to take cognizance. Besides, and what is conclusive here, we are certainly not entitled to take cognizance either of that, or of any of the other suppositions, until such questions are competently rais- ed. But they are not raised here. ‘There is no question here re- garding the jus devolutum, the claim of damages, or any of the other matters just referred to. They do not, and could not, enter into the present record, and still less into the present discussion, limited as it is by the act of the pursuers themselves. The defend- ers are therefore not bound to argue them; and if they are dis- pensed from the necessity of any such argument, I must consider myself, not only as dispensed, but as bound to abstain, from mak- ing them the subject of any opinion. LORD FULLERTON’S SPEECH. 247 It will not do, then, to assume, in discussing the competency of the present declarator, that such civil redress will be given, and must be given in some future or possible action, and to found upon that assumption an argument in support of this declarator. On the contrary, im considering the conclusions as they are now limited, your Lordships are bound to assume the possibility that no civil result whatever can follow against the presbytery from such a de- clarator, and then to consider whether such conclusion can be re- garded in any other light, than as an attempt to review the judgment of an ecclesiastical court on a claim for admission and ordination, being a point clearly within their own exclusive jurisdiction. It only remains to be inquired, whether the various cases cited by the pursuers afford any support to the competency of these de- claratory conclusions. I think it clear that they do not. In every one of the cases alluded to, the jurisdiction of the Court was ne- cessarily let in, by the existence of a competition of civil or pecu- niary rights. Thus in the case of Auchtermuchty, the question was, whether or not the patron was entitled to retain the stipend, in competition with an incumbent admitted in defiance of his pre- sentation? That question necessarily embraced the considera- tion of the legality or illegality of the admission of the incumbent. It was found competent for the Court to consider that point ; but nothing can be conceived more guarded than the judgment ascer- taining and defining the principle, upon which the competency of such an inquiry was sustained. One might think that it was worded for the express purpose of guarding against the doctrine now maintained on the part of the pursuers. By the first inter- locutor it was found, “ that the right to a stipend is a civil right, ‘‘ and therefore, that the Court have a power to cognosce and de- ‘* termine upon the legality of the admission of ministers, ad hune ‘* effectum, whether the person admitted shall have right to the ‘* stipend or not.” The case of Culross, 26th June 1751, Mor. 9951, was one of exactly the same kind. It was a competition for the stipend be- tween the patron, whose presentation had been rejected, and the incumbent settled on a call at large, as if the presentation had been in the hands of the presbytery jere devoluto, so that it, too, was truly a competition for a pecuniary right. The next case, that of Dunse, is an authority against the pursuers. There, the presbytery objecting to the presentation, as only held in trust for a patron disqualified, appointed a moderation of a Call without regard to it, in virtue of the jus devolutwm, and the patron brought a declarator for ascertaining, inter alia, that he had presented in due time,— and that the right had not fallen to the presbytery,—and in this de- clarator he was successful. This clearly raised the question of civil right,—a competition for the patronage, pro hac vice,—to 248 LORD FULLERTON’S SPEECH. which the presbytery were the proper partics. But, according to the report of Lord Monboddo, “ there were still two other con- ** clusions that the Court would not meddle with ; one, that the “¢ patron was entitled to the stipend, which the Court thought *‘ could not be declared against the presbytery; and the other, “ that the presbytery ought to be discharged to moderate a Call, ‘ or settle any other man, because that was interfering with the “< nower of ordination, or the internal policy of the Church, with “ which the Lords thought they had nothing to do.” This isa much stronger case than the present. In the case of Lanark, the judgment of the House of Lords, reversing that of the Court of Session, was on a competition for the stipend, between the Crown, found to be true patron, and the incumbent settled on a presen- tation from another party, whose right to present had ultimately been rejected. Lady Forbes’s case was another, of a claim for sti- pend, in which it was found that the incumbent settled on presenta- tion of pretended patron, whose right had been found bad, could not claim stipend against the true patron. ‘The case of Lord Dundas was one regarding the jus devolutum, between Lord Dundas and the presbytery ; and although the declarator there, seems to have originally embraced conclusions, resembling those now under consideration, it was, I think, shown satisfactorily by the Solicitor-General, that those conclusions were departed from, and that the judgment ultimately pronounced was confined to the point of civil right, In the case of Kiltarlity, an interdict was granted against the presbytery proceeding under a particular presentation. But there the only matter in dispute was the presentation, viewed in the light of a civil right—the right of the patron in the particular case to exercise his power. It was in substance an interdict against the presbytery receiving or acting in respect of a particular presentation ; just raising the question, which might have been competently raised in the form of a declarator, without any interference with the proper ecclesiastical power of the presbytery, viz. whether the patron had, in the circumstances of the case, a power to present or not. It is true that in all or the greater part of these cases, preten- sions were advanced by the presbytery, to which the Court did not listen ; viz. that even in the discussion of the points of civil right, the legality or illegality of the proceedings could not be challeng- ed, and that the judgments of the Ecclesiastical Court were to be held final and conclusive. Carried to that extent their arguments were unsuccessful. It was found, as it appears to me justly found, that this Court was entitled, in determining the matter clearly with- in their own jurisdiction, to inquire into the legality of the proceed- ings of the Church Courts. But nothing in those cases gives any sup- port to the notion, that, without raising any question of civil or pa- 4 LORD FULLERTON’s SPEECH. 249 -trimonial right, the judgments of the Church Courts could be re- viewed in the form of a declarator. One of those cases, then, that of Dunse, is, according to the re- port of Lord Monboddo, of which I see no reason to question the accuracy, a decision directly against the jurisdiction which your Lordships are, in the present case, called upon by the pursuers to exercise. And in the leading case, that of Auchtermuchty, the judgment of the Court, sustaining the competency of cognoscing and determining upon the legality of the admission of ministers, is carefully put upon a principle, which, so far from being appli- cable to, is exclusive of the present. Accordingly, the nega- tive inferences to be drawn from many of these decisions, are as strong evidence of the concurring opinion of the Bench, and the Bar, and the country, of the incompetency of proceedings like the present, as if they had been embodied in express judgments. No- thing can well be conceived more inexpedient and more injurious to the just interests of all parties, than the situation in which mat- ters were left, by the decision of such cases as those of Auchter- muchty, 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 recognized by the judgments, left deprived of the si- tuation 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 pre- sent action. For although a presbytery might not, perhaps, have thought themselves authorized to recall the ordination of the in- cumbents who were settled in the different parishes, they unques- tionably had the right to recall their settlements as the ministers of those parishes. ‘Ihe commission did so in the case of Auchter- muchty, in regard to the presentee, though that judgment was afterwards reversed by the General Assembly. Now if the Church courts have the power, as they unquestionably have, 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 can be maintained in the present cases, concurred there. There was the violation of the rights of the patron,—the illegality of the settlement of the incumbent,—and the manifest injury to the pa- trimonial right of the legal presentee ; while the conclusion, name- ly, the divestiture of the incumbent 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 con- VOL. IT. S 250 LORD FULLERTON’S SPEECH. sidering the import, then, of these various cases, I think, while that of Dunse is a case strictly in point, the whole inferences fairly deducible from the others are directly adverse to the competency of the declaratory conclusions, as now insisted in. é In regard to the cases of schoolmasters under the act of the 43 George III. they proceed on a totally different principle. By the Act 1693, confirming various prior statutes, the power of examining, judging of, and censuring schoolmasters, was com- mitted to the presbytery of the bounds. In the case of Bothwell it was found that, by those statutes, schoolmasters were rendered exclusively amenable in the matter of qualification, &c. to the Church Courts, and that, consequently, the appeal from the presby- tery lay, not to the Court of Session, but to the Supreme Church Courts. Afterwards, by the 43 George III.,a power wasconferred on the presbyteries, to judge in the censure and deprivation of school- masters, without appeal either to the ecclesiastical or civil courts ; and, in the cases referred to by the pursuer, it has been found, that, in the event of the presbyteries exceeding, or failing to exercise, the powers thus conferred upon them, the Court of Session was entit- led, not to review their judgments on the merits, but to annul those judgments, in respect of the violation of the conditions, ex- pressed or implied in the statute. On these decisions it is enough to observe, that the appointment or deprivation of a schoolmaster is not properly, nor intrinsically, a matter of ecclesiastical dis- cipline or order, like the ordination or deprivation of a minister. It is only from considerations of expediency, that the statutes sub- jected persons in that capacity to the control or jurisdiction of the Church Courts; so that, properly speaking, the office of a schoolmaster, to which certain emoluments are attached, is not by any inherent quality beyond the jurisdiction of the civil courts. And, consequently, when, by a special statute, the appeal to the Su- preme Ecclesiastical Court was taken away, but taken away on conditions either expressed or implied in the statute, there was held to be no incompetency in the Supreme Court, the only Court which could apply a remedy, applying the only remedy which could be applied, by setting aside the judgments pronounced in breach of those conditions, but cautiously abstaining from any in- terference with the merits of each particular case. It is clear that the principle upon which, in these last cases, the jurisdiction of the Court was sustained, cannot possibly apply to the present. And, indeed, it would be utterly impossible so to apply it, without at once asserting the unqualified right of your Lord- ships to review, even in ecclesiastical matters, the judgment and procedure of the ecclesiastical courts. If it be enough to state, as is done in this summons, that such procedure is injurious to LORD FULLERTON’s sPEECH, 251 the patrimonial rights of property, there is hardly any one step which can be taken, which does not, indirectly or consequentially, affect those rights. he refusal of a presbytery to admit to a living is, certainly, not more injurious, than the divestiture of the party after he has been admitted. But it cannot be maintained that, upon that ground, your Lordships could directly review a sentence of deposition ; and it could not stop there. Upon the very same ground, your Lordships might be called upon to find that a presbytery had done wrong, not only in deposing a clergy- man, but in refusing to loose him from one parish, in order that he might accept a presentation to another and a better living ; or in refusing to take a party on trials, with a view to a license. In all those cases, a possible or consequential patrimonial Joss is just as clear asin the present. And in both of the latter, the effect might be, just as much as it is here, to narrow the right of the patron, by excluding the individual on whom he wished to confer the church. The answer to all such attempts is,—and I think equally good here,—that the right sought to be declared is truly an ecclesiastical right, and that such actions are just attempts to re- view or control the judgments or actings of independent tribunals in matters clearly within their own resort. I think this incompetent, and, in so far as the defenders, the pres- bytery, are concerned, most unreasonable and unjust, inasmuch as it forces them into court to defend, not merely the propriety or legality of their own procedure, but that of a law of the church to which, whatever be its merits, they are bound to yield obedience. They are called upon to submit to a judgment finding them wrong, for doing that which, if they had refused to do, censure, and even the infliction of higher penalties, by superior ecclesiastical courts, must have been the consequence. I think this is a hardship which these reverend gentlemen ought not to have been subjected to. ‘They claim no civil right whatever in competition with these pursuers. Nay the pursuers do not demand the esta- blishment of any civil right against the presbytery. There is.no conclusion regarding the jus devolutum in the sum- mons, nor regarding any other civil right, which the presbytery might possibly claim, but which they might, at the same time, have an opportunity of abandoning if they thought proper. But they, the members of an independent court, are called upon to de- fend the legality of their procedure, a course for which I can see no authority in our practice. And in this view, the petitory con- clusions for the present waived, only serve to render the incompe- tency and uselessness of the declaratory conclusion against the presbytery more glaring. When the proposition, that the proceed- ings of the presbytery were illegal, is put as an element of the argument leading to the proper petitory or pecuniary conclu- 952 LORD FULLERTON’S SPEECH. sions against the heritors and the trustees of the Widows’ Fund, it is consistent enough. But when the summons is split into two dis- tinct parts, the declaratory conclusions against the presbytery, and the petitory conclusions against the others, the one part of it is ab- solutely contradictory to the other. The first declaratory conclusion is, that the rejection by the presbytery is injurious to the pursuer’s patrimonial interests. That being found, what is the result, — that, if the presbytery continue to refuse to induct the pursuer, he shall still have a right to the stipend and whole other emoluments of the living. Now, if this be so, where is the sense of any decla- ratory conclusion as to illegality against the presbytery? ‘Vhat point evidently ought to be tried, not in an action against the pres- bytery, but between the presentee, the heritors, and the Widows’ Fund. The legality of the proceedings may, ad hunc effectuin, as inthecase of Auchtermuchty, be questioned in that discussion; but that affords no ground for a special declaratory conclusion against the presbytery as parties. Nay, it is absolutely fatal to any such couclusion. For that conclusion is bottomed on the subsumption, that the rejection was prejudicial to the patrimonial interests of the pursuer ; while the pecuniary conclusion is, that his patrimonial in- terests are no way affected by the judgments of the presbytery, as he claims right independently altogether, or rather in defiance of that judgment, to the full emoluments of the benefice. In these circumstances, then, I think the declaratory conclusion against the presbytery cannot be sustained, and that the summons, in so far as regards the substantive declaratory conclusion against the presbytery, ought to be dismissed, reserving to the pursuers their right to question the legality of the procedure, ad hunc effectum, viz. in discussing the pecuniary conclusions of this or any other summons which the pursuers may raise. I have said so much on this point, because I think it is of the utmost importance to observe, with the greatest scru- pulosity, the limits of our own jurisdiction in competition with that of other tribunals,—and to abstain most cautiously from all pretensions leading to a collision in relation to mat- ters, on which every collision is to be deprecated, and in which, it appears to me, collision is to be easily avoided. Not, indeed, collision of opinion, for that may be unavoidable. When ques- tions of civil right arise, involving the legality of that procedure, your Lordships must judge of it,—and, in judging of it, may take a view different from that of the church courts. But collision of ‘urisdiction is a different thing. That can be easily prevented, by the simple course of confining ourselves to the decision of points of civil and patrimonial right, and leaving unquestioned, uncan- vassed, and undecided, the legality or illegality of the proceedings of an independent jurisdicton, until such points are raised in that LORD FULLERTON’S SPEECH. 253 form, viz. as involved in questions of civil right, which is indis- pensable to bring them competently within our cognizance. But while this is the opinion which I have formed on the point of jurisdiction, I am unfortunately not relieved from the necessity of proceeding, as that opinion is at variance with that of the majo- rity of the Court. Then what may be called the merits will remain to be considered, viz. whether, holding the jurisdiction to be esta- blished, the proceedings of the presbytery were illegal, meaning by that term, an infringement of the civil rights of the patron and presentee. ‘hat they were legal, according to the law of the Church, is undoubted. They were exactly agreeable to the gene- ral enactments of the Church, passed in its legislative capacity,— and, besides, they were warranted by the order of the General As- sembly, in their judicial character, and the decision of the 30th of May 1835, ‘“« Remitting to the presbytery to proceed farther ‘in the matter, in terms of the interim acts of the last Assembly.” Were these proceedings, then, had by the presbytery in this case, infringements of the civil rights of the pursuer or not? Did they or did they not exceed the powers vested in the presbytery, in re- gard to the admission or ordination of ministers, and do they war- rant the declaratory conclusions which are now sought for by the pursuers. But, in canvassing these questions, we must examine par- ticularly what was actually done by the presbytery in this particular case; and what the pursuer maintains they are bound to do. For I think we are not entitled, and not cal- led upon to discuss, the general merits of the declaratory enact- ments, and the accompanying regulations of the General Agr- sembly. We are not considering the Act of the Assembly, but the special procedure of the presbytery with relation to this particular case, and the special conclusion of this particular summons ;—a distinction which has been lost sight of in the course of the argu- ment. Indeed, so completely has this been the case, that, if we did not keep the summons steadily in view, if we were to regard merely the argument, one might be led to imagine that this was not an action against the presbytery of Auch- terarder, for refusing to admit the presentee, but an action against the General Assembly, for having passed an illegal enact- ment. And this is the more extraordinary, as in this particular, the summons is singularly guarded and explicit. Neither there nor in any of the pleas inlaw for either party, is there, as far as I can see, any mention of the act of Assembly. The action is laid, and pro- perly laid, on the specific acts which were done by the presbytery ; and, in relation to the particular view which I take of this part of the case, it is of importance to consider, Ist, 'Mhe procedure which was actually had; 2dly, The particular grounds upon which illega- O54 LORD FULLERTON’S SPEECH. lity is charged against that procedure ; and, 3dly, The particular conclusions which are drawn from these premises. In the first place, then, as to the procedure, the presentation was sustained, in so far as any presentation ever is sustained, viz. to the effect of appointing the Call to be moderated in, so that there is no question regarding the right to the patro- nage. ‘The next step was giving the necessary intimations of the days on which the presentee was to preach,—and the 2d of December was appointed to moderate in a Call, in the usual way, to Mr Young to be minister of that parish. On the day appoint- ed, (2d December,) there was produced and read a Call to Mr Ro- bert Young, and this Call was signed by Mr Lorimer for the Earl of Kinnoull, and by Michael Todd and Peter Clark, heads of fa- milies. The presbytery then proceeded, in terms of the third re- gulation of the interim act of the last Assembly, anent Calls, to give an opportunity to male heads of families to give in special ob- jections or dissents from the Call. No special objections were givenin. ‘The presbytery then, in conformity with the regulation of the act of Assembly, 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 mi- nister of the Parish. Various persons then standing on the roll gave in dissents, amounting to 287 out of 330. Another meeting then was held on 16th December 1834, for the purpose of ascertaining whether or not the major part of the persons on the roll, and who dissented, do still adhere to their dissents, and no dissents were withdrawn,— and the presbytery found, in terms of the regulations, that there is a majority of persons on the roll who still dissent. At the same time a motion was made, that the Call to Mr Young should be taken into consideration, and should be held not a good or suffi- cient call, in respect it was only signed by three individuals, and only two members of the congregation. ‘This motion was rejected as being incompetent at this stage of the business ; and, on account of certain appeals having been taken against their proceedings to the synod, “‘ the presbytery sist procedure in this case till they ‘* learn how these appeals are disposed of.” When these appeals, into the details of which it is unnecessary to enter, were disposed of, the presbytery, on the 7th July 1835, proceeded agreeably to the remit from the General Assembly ; ; and in terms of the inte- rim acts of the last Assembly, and, in obedience of the 14th article os the regulations, they rejected Mr Young, “ so far as regards the “ particular presentation, and the occasion of that vacancy in the *¢ parish.” The rejection, then, took place in terms of the acts and regu- LORD FULLERTON’S SPEECH. 255 lations of the Assembly ; and there seems to me to be no difficulty — in determining the true principle and ground of that rejection. The Act of Assembly of May 31, 1834, is termed, an Interim Act on Calls ; and the regulations are embodied in another interim act, of 2d June, for carrying the preceding declaratory enactment of the 31st of May into effect. These regulations provide for two cases, 1s¢, That of special objections being given in; which ob- jections, if they are ultimately sustained, are, by the Gth article, declared to be the ground of a finding, that the presentee is not qualified. 2dly, In the event of no special objections being given in, dissents may be given in, without reasons, by the heads of fa- milies. ‘Uhe direction applicable to the case of the number of dissents, not amounting to a majority of the persons on the roll, is contained in the 12th article. ‘The provision for the other event, viz. the majority of the persons on the roll maintaining their dissent, is in the 14th article. Now the expressions used in these two articles are not quite co-relative :—By the 12th article it is provided, that, if there is not a majority of the heads of families dissenting, the presbytery shall sustain the Call; and in the other case, of a majority of heads of families dissenting, it is declared, they shall reject the presentee. But I think it would be a most unreasonable piece of hy- percriticism to found any thing on such a distinction. In the one case, every Call not dissented from by a majority of the heads of families is to be sustained; and by the 14th section, the majority of dissents is to operate as a rejection of the presentee, but evi- dently on the ground that the Call is insufficient. No doubt the word ‘ Call” has been omitted in the 14th regulation: But, look. ing at the whole terms and object of these regulations,-—consider- ing that the part of the procedure at which the dissents are given in, and at which the presbytery are to take those dissents into consideration, is the receiving the Call,—I think that the 14th section is just equivalent to the provision, that a Call dissented from by the majority shall not be sustained, and the presentee consequently rejected. And there is nothing inconsistent in such a provision with the nature of a Call,—at least in the only sense in which it is of importance in the present question, viz. as im- porting a limitation of the rights of the patron. It is true that that document is, in form, a positive concurrence in the nomina- tion of the presentee. But this is perfectly compatible, with the regulation on the one hand, that the mere absence of an express concurrence of a majority of a certain class of persons shall not be fatal to the Call; and, on the other, that an express dissent shall be fatal to it. The effect of the regulation in this case was, that the Call, signed by only three parties out of 330 heads of fa- milies, was not in itself held bad, but required an express dissent 256 LORD FULLERTON’S SPEECH. of a majority of those parties to make it so. These enactments, then, seem, if any thing, rather favourable than otherwise to the patron and presentee, inasmuch as they assume, that, in the matter of a Call, silence shall import consent, and enact that the presump- tion of such tacit consent can be excluded only by the expression of dissent. Combining, then, the terms of the regulations of the Assembly with the judgment ultimately pronounced by the presbytery, I think it must be held to be a judgment rejecting the presentee, in respect that he had not a Call of the kind declared to be indis- pensable by the law of the Church. That is truly the act which is charged against the presbytery, in the summons, and this leads me to the second branch of the inquiry, What is the precise nature of the illegality with which this act of the presbytery is said to be chargeable? For it is to be observed, that the illegality might be of two kinds. The rejection of the presentee on the ground of the insuffi- ciency of the call, might be said to be illegal, inasmuch as a high- er standard of concurrence had been required by the presby- tery, in consequence of the Act of Assembly, than was warrant- ed by the previous practice of the Church, and, in consequence, by the law. This is a perfectly relevant statement of illegality ; but thenin order to render it admissible or intelligible, it would have been necessary for the pursuer to state it distinctly as a ground of complaint, and to plead the call which he had actually received, and which had been defeated, by the unwarranted conditions super- added by the Act of Assembly. He must have stated this, just as he stated in the other part of the summons, that though qualified, the presbytery refused to take trial of his qualifications. Now your Lordships will observe, that that is not the nature of the illegality charged against the act of the presbytery. The pursuer does not put in plea the call which he had, as contrasted with that required by the Act of Assembly. He neither men- tions the call nor the Act of Assembly from beginning to end of the summons. But the illegality charged against the rejection might be of an- other kind, viz. that all demand of a call or concurrence was un- warranted, and that the presbytery were not entitled to require any thing but a valid presentation, and an acceptance by the presentee, in order to bind them to take him on trials. And upon looking at the summons, it must at once appear that it is this par- ticular kind of illegality, which is in the summons imputed to the act of the presbytery. It is there set forth, that the judgments or deliverances of the 2d December 1834, and 7th July 1835, were ultra vires, illegal and unwarrantable, inasmuch as the presbytery were bound and LORD FULLERTON S SPEECH. 257 astricted to make trial of the presentee’s qualifications, and were not entitled to delegate to or devolve, &c. And after examination of the pursuer, the said Robert Young, being found to be duly qualified, the presbytery were bound and astricted to have ad- mitted and inducted him into the office of minister. It then pro- ceeds to state that, though the pursuer, the presentee, is qualified, the presbytery refused to take him on trials, or to admit and re- ceive him, and rejected him as presentee, ‘‘ expressly on the ground ‘* that they cannot and ought not to do so, in respect of a veto of ‘* the parishioners.” Though the meaning is here disguised by the form of ex- pression, a very little consideration will shew that it is the second kind of illegality which is here charged, viz. that of requiring any call or concurrence whatever. There is not one word of the pres- bytery requiring the assent, or acting upon the dissent of the ma- jority of heads of families. Heads of families are not mentioned. The illegality is said to consist in their delegating the duty of examining the pursuer ¢o third parties, and their having reject- ed him in respect of a veto of the parishioners. But it seems to me clear, that these expressions apply to every call which is made the ground of refusing to take a presentee on trials. If a call is required and acted upon at all, it must necessarily operate as a veto; and, according to the view of the pursuer, as a delega- tion of the powers of the presbytery. If a call, signed as that of the petitioner was, by three names out of 350 heads of families or parishioners, is held bad, that must necessarily proceed on the silent veto of the 347 who have withheld their concurrence, and on the constructive delegation, thence arising according to the pur- suer’s argument, of the powers of the presbytery to the parties who have refused to sign. In regard to this matter, in regard to the rights of the patron, it is demonstratively a matter of absolute indifference, whether what is termed a vefo, be exercised tacitly by a refusal to concur, or expressly by a dissent. And the nature of the illegality charged, is made still clearer by the pleas in law for the pursuers. ‘These pleas in law do not say any thing of the majority of heads of families. According to the third plea, the presbytery were bound, in terms of the statute libelled, to have ‘¢ themselves taken the pursuer on trials, and to have given judg- ‘* ment on his qualifications,” &c. 'Vhe fourth plea is, that accord- ing to the statutes, ‘‘ it is illegal and unconstitutional, and con- ‘“‘ trary to the laws establishing the Church of Scotland as the ‘¢ National Church, for presbyteries to refuse to execute that power ‘* and duty, or to denude of the power and duty of collation, or to ‘* submit the qualifications of the preachers and presentees to an *‘ arbitrary power of rejection by any portion of the parishioners , 958 LORD FULLERTON 'S SPEECH. “© 7 hearers.” And the fifth is, that “‘ a veto on the patron’s right ** of patronage and presentation by the parishioners or communi- “‘ cants, that is, an arbitrary rejection by them, of a presentee duly ‘‘ qualified according to the forms and trials of the Church, and ‘‘ licensed as a preacher of the Gospel, without any trial by the “ Church Courts, and without any cause assigned, és illegal, un- “¢ constitutional, and incompetent.” There is here no reference either to the Act of Assembly, or to the majority of the heads of families. The pleas are put ex- clusively on the ground, that all reference by the presbytery to the concurrence or consent of any portion of the parishioners, hearers, or communicants of the parish, as a condition of the presbytery taking the presentee on trials, is illegal, unconstitutional, and in- competent. ‘This, then, being the special nature of the illegality charged in the summons, against the act of rejection complained of, the con- clusions of the summons are strictly and logically consistent with the specialillegality charged, and with no other. Had theillegality charg- ed beeu that first mentioned, viz. requiring a higher standard of Call than that previously in use, and thanthat held by the pursuer,—being the kind of illegality which would have properly raised the question onthe Actof Assembly,—he must, asalready mentioned, have plead- ed the Call which he had, and have concluded that i¢ should be sus- tained as a preliminary to taking him on trials, which, however, would be rather a singular conclusion in a civil action. Accord- ingly, that is not attempted. ‘The conclusion is, that he shall be taken on trials without any Call whatever. The words, “ according ‘* to law,” in the Summons, cannot possibly refer by implication to a Call. They are subjoined to the conclusion, as to receiving and admitting the pursuer after due trial and examination. But the leading part of the conclusion is quite explicit, that, ante omnia, and without any condition or limitation whatever, the presbytery were and are bound and astricted to make trial of the qualifica- tions of the presentee ; and if qualified—that is, as explained by the pursuers themselves, if satisfied of his character, of his ability and learning,—must admit him to the benefice. According to this reading of the summons, then, which I take to be the only admis- sible one, it is a summons founded on the rejection of the Call of the presentee,—charging, as the ground of illegality of that re- jection, that the demand of any Call or concurrence whatever was illegal,— and concluding, in perfect consistency with those premises, that the pursuer shall be taken on trial without any Call or concurrence, even of the smallest portion of the parish- loners. Indeed, the pursuer must go that length to be consistent ; for, LORD FUL LERTON’S SPEECH. 259 if he maimtains that the ground of his rejection is bad, without maintaining that every rejection founded on the defect of the con- currence of the parishioners is bad, he is truly requiring the Court to determine, not that the requiring the concurrence of the parish, or, in other words, the veto, is illegal, but that, in the present case, the concurrence was not so defective, as to warrant his rejection ; not that a veto is illegal, but that the veto in this case was by an insufficient number. He would be demanding of the Court to decide, not that a Call is unnecessary, but that the presbytery have rejected a Call which ought to have been sustain- ed,—which last is exclusively of the resort of ecclesiastical courts. For, though your Lordships may possibly have jurisdiction to in- quire, whether the requiring of a Call be or be not an infringe- ment of the rights of patrons, yet, unless that question be decided in the affirmative, the discussion must be at an end, as the suffi- ciency of the Call, if required at all, is clearly an ecclesiastical matter, of which this Court can take no cognizance. Looking, then, at the proceedings of the presbytery, combined with the enactments of the General Assembly, on which they are rested, and the terms of the summons, I think these inferences are inevitable, ‘That the presentee, in this case was rejected, on the ground of the insufficiency of the Call; and, That your Lordships are called upon to declare the illegality of that rejection, on the ground, that no Call or concurrence on the part of the parishioners is required to support a presentation, and that no bar can be interposed, between the admission of the presenta- tion, and the taking the presentee on trials, and his ordination and induction, if those trials are satisfactory. That I must consider to be the question now at issue. And it is needless to state, that, whether the extent of its operation be considered, or its bearing on what has been immemorially treated as the law and authorized practice of the Church, it is a question of the greatest import- ance. To a certain extent, no doubt, it affects the right of patronage ; as the condition of a Call or concurrence on the part of the parishioners, subject to the control of the presbytery, does, of course, form a limitation of the patron’s power to nominate. But that of itself is not conclusive, because, confessedly, the right of patronage falls far short of an absolute right to nominate. It is, in form as well as substance, a right to present, while the acts of acceptance and admission depend on the Ecclesiastical Courts, which courts have the power, not only of judging, but of fixing the requisite qualifications of the presentee. In another par- ticular it is, in its own nature, a qualified right. It is a right to name, certainly not for the benefit of the patron, nor for the benefit, exclusively, of the presentee :—A third party, viz. the pa- 260 LORD FULLERTON’S SPEECH. rish, having evidently the deepest interest of the whole three. In so far as the patron is concerned, it is 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 is undeniable that, to a certain extent, the Church Courts, as the guardian of the other interests, are associated with the pa- tron. The question, then, is, whether or not in the present case the Church Court, one of these associates, has exceeded its powers, or encroached on those of the other; and, as in every other ques- tion involving the conflicting or balancing rights of parties or public bodies associated in the same act, the line does not admit of be- ing drawn with precision. Even if that line were drawn by sta- tute, it might be a matter of difficulty, but I do not think that it is. On the one hand, I do not adopt the argument of the defenders, founded on the Act 1567, c. 7, as absolutely conclu- sive in favour of the Finality and immunity from challenge, of every judgment pronounced by the supreme Church Courts regard- ing the settlement of a minister. It rather appears to me that that statute applied merely to the question of qualification in the proper sense of that term ;—that when a presentee was rejected on the score of deficiency, the judgment of the General Assembly on his qualifications was to be final ;—without going the length contend- ed for by the defenders, that the judgment of the supreme Eccle- siastical Court, was in every one particular which could arise in the settlement of a minister, to be held as the law of that particu- lar case ; even when questions of patrimonial right, involving that point, came to be raised in the Civil Court. And, indeed, the plea founded upon this statute and urged to that extent, appears to have been repeatedly disregarded in many of the cases already alluded to, as to the patron’s right to the vacant stipend, in consequence of the settlement of a minister by the Church Courts in violation of his rights. On the other hand, I do not think, with the pursuers, that the question is entirely settled by the Act 1592, cap. 116. Even if the question depended on the particular words of that enact- ment, they would not be absolutely conclusive. It binds the presbytery to admit qualified ministers. But the words are quite general. Nothing is said as to the form of admission. And if by immemorial practice a form of admission had been established and recognized both by patrons and presentees, I see no reason to doubt, that any limitation of the patron’s power of nomination implied in that form of admission, would have been effectual. But besides, looking at the terms of the Act 1690, cap. 5, and 1690, cap. 23, combined with the 10th of Queen Anne, cap. 12, I think there would be great difficulty, indeed, in holding the special provi- sion in the Act 1592, on this matter, to be iz terminis revived and » LORI) FULLERTON’S SPEECH. 261 still in force For by the Act 1690, cap. 5, the Act 1592 was not revived in all particulars. It was only revived under the express ** exception of that part of it relating to patronages which is here- ‘“ after to be taken into consideration.” That matter was taken into consideration in the Act 1690, cap. 23, by which patronage was abolished, and the right of presentation transferred to the heritors and elders in each parish. Again, by the 10 Queen Anne, cap. 12, this last statute was repealed, in so far as relates to * pre- ‘* sentation of ministers by heritors and others therein mention- “ed.” But there is no alteration made on the Act 1690, cap. 5, so that at this moment there appears to me to be no part of the Act 1592 in terminis in force, in so far as regards the question of patronage. But this, perhaps, is a matter of comparatively little moment, be- cause the Act of 10th of Queen Anne contains a clause, by which, at any rate, the Act 1592 on this point must have been superseded. By this last statute it is provided, that the presbytery ‘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 betore the making of this act, ought to have been ** admitted.” I confess that, in reading this enactment, Isee no sufficient grounds for holding it to repeal that part of the previous Act of 1690, cap. 23, which directed the presentee to be proposed to the whole con- gregation to be either approven or disapproven by them, and au- thorized the presbytery to judge conclusively of thosereasons of such disapproval. Presbyteries are directed by the 10th Queen Anne to admit qualified presentees in the same manner as “‘ the persons or ‘* ministers presented before the making of this act ought to have ** been admitted.” Now, as in this very statute of the 10th of Queen Anne, the right of nomination given to the heritors and elders by the Act 1690, cap. 23, is expressly termed a right of presentation—and as that act of 1690, c. 23, is only repealed by the 10th of Queen Anne, in so far as relates to the presentation of ministers by heri- tors and elders, I see no good reason for denying effect to the ex- press terms of the statute, which, on the subject of the admission of presentees, refer to the manner in which they ought to have been admitted ‘* before the making of this act.” The perfectly con- sistent and obvious reading is, that while the right of presentation was taken from the heritors and elders, and restored to the former patrons, the mode of admission, that is, the admission by the pres- bytery on a definitive judgment of the reasons of approval or dis- approval of the congregation, remained in full force. But I do not think it necessary to press this, because, from some reason or 262 LORD FULLERTON’S SPEECH. other, it does not appear to have been generally received or acted on. And, at all events, it does not appear to be adopted by either party in this discussion. However they differ in other particulars, they seem to concur in holding by what I cannot help thinking astrained construction, that the manner of admission ** before the ** making of this act,” applies to the manner of admission while patronage was in full force, and prior to the Act 1690. . Even adopting this last construction, there is in the statute a re- ference to usage; and if it could be shown that in those early times, from the year 1592 downward, there was required, in ad- dition to the presentation, a Call or concurrence of the people, of . which the ecclesiastical courts uniformly judged, in admitting or rejecting the presentee, there would be anend to the question. If such form was part of their procedure in admitting and ordaining a presentec, the statute bound them only to admit in the same manner as before. Certainly, the evidence laid before us of the practice prior to the Act of the 10th of Queen Anne is very imperfect. Indeed, there is hardly evidence at all on the matter—and this is not much to be wondered at, for, strictly speaking, the only relevant evidence, would be the evidence of the usage of presbyteries, in relation to the presentees of lay patrons. But that combination of circumstances did, as it so happened, hold for very short periods indeed, from the date of the Act 1592, till that of the 10th of Queen Anne. In the year 1612, Episcopacy was established, and continued in force until 1637. Inthe year 1637, Presbytery was again introduced; but, in combination with patronage, it continued only from that period to 1649, when patronage was abolished. Patronage was restored again by the act rescissory in 1661; but it came into operation not with the Presbyterian Church government, but alongst with Epis- copacy, which was restored in 1662, and so matters ccntinued until it was again abolished in 1690. There were truly, then, only the short periods between 1592 and 1612, and between 1637 and 1649, to which reference can justly be made in regard to the man- ner in which presbyteries were in use to admit the presentees of patrons—and, from this consideration, I am led to pay very little attention to that which occupied a considerable part of the argu- ment, viz. the form of admission under the Directory of 1649, and under the Act 1690. 'The true question being, what was the usage on the subject of the admissions by presbyteries, of the presentees of patrons, I do not see what either party could gain, by referring to modes of admission, practised while no such combination of cir- cumstances existed. Throwing these out of view, the evidence is nearly a blank. No doubt we have evidence enough that the Church of Scotland, LORD FULLERTON’S SPEECH. 263 from its earliest establishment, refused their sanction to the intru- sion of ministers against the will of the parish, and repeatedly and uniformly protested against such practice. But how that princi- ple was practically applied in combination with the rights of pa- trons—what kind of adjustment actually took place between the two rights, in the periods above mentioned, from 1592 to 1612, and from 1637 to 1649, we do not know ; though, from some of the do- duments referred to, as well as the temper and spirit of the times, one cannot doubt that, in one way or other, full effect was given to those pretensions of the Church. In the absence of any previous information upon this point, I was much indebted to the researches of Lord Medwyn for the discovery of the proceedings in the settlement of Crail in the year 1647, though I cannot draw exactly the same inference. No doubt the party was settled on a presentation, but the entry on 17th No- vember is, “* Compeared Commissioners from the parish of Crail, ** desiring the presbytery to proceed in putting Mr James Sharp “* on his trials, according to the presentation given last day, &c.” It may be true that there is no evidence of a form of a moderation of a call; but until some other authoritative explanation can be given of the appearance of the commissioners of the parish, the probable conclusion is, that, though a presentee, effect was given to his presentation as to taking him on trials, on the application of the parish, expressed through their commissioners. And cer- tainly I see nothing in such a practice inconsistent with the earlier authorities cited from the canonists, or with the opinions entertain- ed by the many learned persons of the Presbyterian church, on the subject of the right of election by the people. Though many of those authorities are adverse to the notion of the right of the peo- ple to elect, they all seem to be in favour of the right of the peo- ple to influence the nomination, subject always to the guidance or control of the Church,—a right perfectly consistent with the mode of admission now under consideration, in which, besides the pre- ‘sentation, there was required some concurrence on the part of the people, of which the Ecclesiastical Courts were to judge. But i apprehend that in construing the act of Queen Anne, we are not confined to the authority of church writers, or to the obscure evidence of what took place prior to the passing of the act. We are not now construing the act of the 10th of Queen Anne, as matters stood when it passed. When a statute refers to usage, —to the way and mammer in which something has been, or ought to have been done, before it passed,—and when the evidence of such prior usage is obscure, the best of all readings must be, the usage which follows upon it, as decisive of the sense in which the parties having the best opportunities, and the greatest interest, to explain it aright, have explained it. So that in order to ascertain in 3 26 4 LORD FULLERTON’S SPEECH. what manner presbyteries are bound to admit presentees of patrons, the most important, and, indeed, now the only conclusive, inquiry is, in what manner, that i is, what are the forms inwhich those admissions have taken place for nearly a century and a-half since the passing of the act? And it does appear to me, that every form adopted by the Ecclesiastical Courts, invariably acted on and recognized in practice by patrons since that date, must now, whether forming an abridgment of the rights of patrons or not, be considered as binding, and as completely and effectually part of the law of the land, as if such form had been inserted expressly in the act of the 10th of Queen Anne. It is in this view, and in consideration of the usage which has followed upon that statute, that I feel myself called upon to refuse assent to the conclusions of the present summons, which, as I have said before, are, however disguised, conclusions against the legality of a Call,—of any thing in the form of a concurrence of the parish, superadded as a condition of the efficacy of the patron’s nomination, interposed between the acceptance of the presentation, and the taking of the presentee on trials, and admitting him to the bene- nefice. For if there be one point ascertained in the practice of the Church, from the 10th of Queen Anne downwards to the present day, it is the indispensable necessity of a Call, or some kind of a concurrence of the parish, and the exclusive power of the Church to judge without appeal of such Calls or concurrence. And it is to be observed, that this is not merely the pretension of one of the parties whose rights are in dispute. The usage consists of a series of the acts of the Ecclesiastical Courts, exercised in the face of the public, and recognized and yielded to by every patron, who has presented to a Church since the days of Queen Anne. Nay, so deeply rooted is the conviction of the indispensable necessity of this form, that of these very pursuers, the conclusions of whose summons are destructive of the Call,—the one has actually signed, and the other received a Call, as*part of the forms of procedure. Itis true that the decisions of the Supreme Kcclesiastical Court on the matter, i. e. on each Call that came before it in its judicial ca- pacity, are not very uniform; nor is this much to be wondered at, considering the circumstances of the country, and the composition of that Court. The presbyteries, at first, did not confine the callers to the presentee alone, but sometimes, as they termed it, moderated in a Call at large, i. e. allowed a wider range of selection, and then settled the party whose Call they considered preferable. It is not to be disguised, that this procedure was a breach of the act of the 10th of Queen Anne, inasmuch as it settled a party without, or rather in defiance of a presentation. This practice was afterwards put an end to; and from the year 1730, downwards to 4 LORD FULLERTON’S SPEECH. 265 -1749,various cases occurred in which, on appeal, the General Assembly directed a moderation of a Call to the presentee alone, expressly finding that no other was to be “on the leet.” Upon this footing the matter has stood ever since. The Call has been limited to the presentee ; but still the necessity of a Call, and the exclusive power of the church courts to judge in it, has, in so far as I can discover, been invariably recognized. And it is of little importance here to consider, what was the origin of the term ** Call,” and whether the word “ Call,” meaning the election of a minister, may not have been sometimes confounded with the “ Call,” considered as an invitation given by the parish to a presen- tee for his encouragement. It may be true, that, after the 10th of Queen Anne, this last was the only kind of Call of which, ac- cording to law, the case could admit.. But still the fact is un- doubted, that this invitation, concurred in to the extent which the Church deemed requisite, was held in practice indispensable to the settlement. It is a mistake to suppose the case of Currie was a singular instance of this kind. There are many others. Indeed, it is hardly possible to turn over the abridgement or index of the procedure of the Assembly without meeting them. Although in a great many, it does not appear whether or not the call rejected, had proceeded on a presentation, it is not to be taken for granted, that in those cases, the party founding on the Call had not receiv- ed a presentation. The whole churches of Scotland are patronate ; and though it is historically stated that many of the patrons did not at that time exert their rights, still, in a question of evidence, in a le- gal discussion, that presumption, as a general presumption, cannot be received. One inference, however, from those entries is evident, that in every case which appears to have been disputed, the sus- taining of the call was held indispensable to the settlement of the party. And if anything is to be founded on the supposed limita- tion of those cases of rejection, to the cases in which there had been no presentation, some farther inquiry and more accurate in- vestigation would be indispensable on this, which I cannot help thinking a most important point of the case. But even from the cursory view of these Acts of Assembly, which I have been able to take, a great many cases appear, in which it is quite clear that the judgment of the General Assembly upon the Call, did enter into competition with the rights of patrons. Some of them, I think, were quoted by the Solicitor-General. Such are those of Cluny, 1744; Kirkowen, the same year ; Kirkaldy, 1741 ; Kirkpatrick, 1746; Methven, 1750. But there are one or two more which appear to me to be so exceedingly instructive on this point, that I shall make no apology for quoting them at greater length. In 175], there is ‘* A reference from the synod of Lothian and ‘Tweed- VOL. II. T 266 LORD FULLERTON 'S SPEECH. “ dale, of a case brought before them by appeal from the presby- “ tery of Biggar’s sentence in the settlement of the parish of Biggar, ** pronounced in April last, viz. that, in the present circumstances, “‘ they could not proceed to the settlement of Mr William Haig, ‘* the presentee ; and that the honourable patrons be applied to, “* to ease the presbytery in this matter, read, and it being repre- ** sented that there was no concurrence with the presentation of “ any who residein the parish, save one, the Assembly found that, ‘* in the present circumstances, it is not expedient to appoint the ** settlement of the presentee, and remitted to the presbytery of “* Biggar to deal with all concerned, in order to bring about a com- ‘s fortable settlement of the said parish.” ‘The next year, in 1752, there appears a reference to the com- mission, of an appeal from a sentence of the presbytery of Biggar, finding the said parish ‘‘ in the same circumstances it was in at last ‘** General Assembly, and, therefore, that they could not proceed ** in the settlement thereof.” The next year the presbytery are appointed to ‘“ represent the ‘* state of the case to the parish, and to deal with them further, in “* order to reconcile them to Mr Haig, the presentee.” And in 1754, there is an entry, that there being a prospect * that this matter would be brought to such a conclusion as should “* be to the satisfaction of all concerned, it is agreed that this ques- ** tion lie over till next Assembly; and in case the presentation “to Mr Haig to be minister of that parish is taken out of the ** field, the presbyter y of Biggar empowered to proceed to the set- tlement of the said parish, ‘according to the rules of the Church.” Again, in 1768, there is an * appeal of George Cockburn-Hal- ** dane of Gleneagles, Esq. and other callers of Mr Patrick Crich- “* ton, the Crown’s presentee, to be minister of Glendovan, from a ** sentence of the presbytery of Auchterarder, the 5th day of April *« last, finding there was no Call before them for Mr Crichton, and “* therefore could not proceed to his settlement as minister of Glen- ** dovan, and affirmed by the Synod of Perth and Stirling heard : ‘* and the sentences of the presbytery and synod affirmed.” In the same year 1768, there is another entry of the same kind: “* An appeal of Sir John Stewart of Allanbank, ‘patron of the pa- ‘* rish of St Ninians, and several heritors in the said parish, con- ‘© curring in a Call to Mr David Thomson, from sundry senten- ** ces of the presbytery of Stirling, finding there was no sufficient “ call before them for Mr Thomson, and therefore could not pro- “ ceed with his settlement as minister of St Ninians, and affirmed ‘“* by the Synod of Perth and Stirling, heard, and the sentence of ** the presbytery and synod affirmed.” The final result of these two last cases is of some importance, It would appear that the presbyteries were disposed to consider LORD FULLERTON’S SPEECH. 267 the judgment of the General Assembly, as final against the pre- sentee, and as exclusive of all attempts on his part to obtain a far- ther concurrence, sufficient to support the presentation. For in the year 1769, the judgment of the presbytery of Stirling, finding that the former judgment of the General Assembly, in the case of St Ninians, was final, was reversed—and the Assembly appointed moderation of a call to the presentee. he same course was taken in Glendovan—and, in 1770, it appears that calls had been ob- tained in both cases, which were ultimately satisfactory to the Ge- neral Assembly, and which led to the settlement of the presentees. Now, I think, that these cases are absolutely conclusive of the practice of the Church in the admission of ministers, forming, by the force of a usage to which the patrons and presentees were parties, part of the law of the land—and I think the cases all the better, for there being in some of them, dealings and compromises between the Church and the patron. It is just what was to be expected in a matter, in which both the church courts and the patron were con- cerned—in which both were most properly disposed to respect the rights of each other—and in which, consequently, the admitted and unchallenged rights of both, led to an adjustment in which those rights were mutually observed. But the cases of St Ninians and Glendovan are particularly striking ; because they afford instan- ces illustrating not merely the ground on which the presentee was rejected, but the condition upon which he was ultimately received, the first being the insufficiency, and the second being the suffi- ciency of the call, as judged of by the church courts. It is impossi- ble to conceive cases more decisive, in the first place, of the prac- tice of the Church in requiring a call—and, secondly, of the re- cognition of that right in practice by patrons. And, accordingly, there is not one case in which the rejection of a presentee on the score of the insufficiency of call, has been made the subject of chal- lenge in the civil court ; though the patrons, in consequence of their right to retain the stipend upon an illegal refusal to ad- mit, had the means on every such case of rejection, to raise the question. From the date of these decisions last referred to, I mean from 1770, and perhaps from an earlier period, the General Assembly became much more lax in their opinions, in regard to what should be considered as a sufficient call in each particular case. ‘The records of the Assembly exhibit numerous instances of calls being rejected by the presbyteries, and ultimately sus- tained by the General Assembly. The index or abridgement of the proceedings of the Assembly does not give any information of the particulars of each case. Butit is said, and, I believe, truly said, that, in agreat number of those cases, the calls were very im- perfect expressions indeed, of the concurrence of the parishioners. 268 LORD FULLERTON’S SPEECH. But although this is a part of the case attended with difficulty, and on which I certainly have at different times entertained different opinions, my fixed impression now is, that this course of decisions, as it is called, is not, when properly considered, sufficient to take off the effect of what I must hold to be the previously es- tablished practice, and to invalidate the rights implied in that practice. In the first place, when one reflects on the latitude assumed by tribunals much more carefully composed than the General As- sembly, a series rerum judicatorum is not to be rashly given effect to, as fixing the law, and still less as importing a surren- der of a right, previously appearing to exist in that tribunal. Secondly, Considering the nature of the point decided in each par- ticular case, and the kind of jurisdiction exercised in regard to it, I think it would be a harsh construction, indeed, to ascribe such an effect to that course of decision. The point involved in each particular appeal was not the absolute condition of what should form a good and valid call in every case. According to my un- derstanding of the matter, the call or concurrence of the parish was exercised under the authority of the Church Courts, taking into consideration the circumstance of each particular parish. Each judgment, then, might perhaps be considered as a judgment fixing that a call, so inadequately signed, was not necessarily bad, and therefore absolutely inadmissible in all cases ; but it went no further: and it certainly was not a judgment that a call so inade- quately signed must in all cases be considered good. It fixed, perhaps, that the Church Courts were not bound, in all cases, to reject so defective a call ; but it is a wide and most illogical step to conclude, that it imperatively bound them, in all other cases, to find that such a call was necessarily good. And unless so considered, the series rerum judicatorum does not touch the present ques- tion. Aad when we are told that these decisions proceeded from the opinion entertained by the leaders of the church in their day of the illegality of the requisite of a call, I confess I receive the statement with very considerable distrust. According to my no- tion of those proceedings, and I say it without the slightest dis- paragement of the eminent persons who took a part in them, the practice of admitting calls on such easy terms arose, not so much from their diffidence in the discretionary power of the church, in judging of calls, as from the exercise of that discretionary power, in a particular direction, best calculated to facilitate the admis- sion of ministers holding opinions most agreeable to the ruling party at the time, and to exclude those of a different way of think- ing. And lastly, I think the series of judgments, when strict- ly considered, tends most materially to support the pretensions of the defenders. Of that long series of judgments, nearly the whole LORD FULLERTON’S SPEECH. 269 were pronounced in cases, in which the calls to presentees had been rejected by the presbyteries and the synods. Now, what was the course taken in those circumstances by those patrons and pre- sentees,—not an appeal to the Civil Courts,—not an appeal to the Supreme Ecclesiastical Court, complaining that the condition of a call had been illegally superadded to the presentation,—but an ap- peal, praying that the Supreme Ecclesiastical Court would sustain the Call. And the proceedings had in the General Assembly in disposing of those appeals, were uniformly in accordance with those reasons of appeal. ‘They were not disposed of as mere mat- ters of course, by reversals of the judgments of the presbyteries and synod, proceeding on the notion, that a call or concurrence of the people was a mere matter of form. Inquiries were gone into on the circumstances of each case, and upon those circum- stances, judgments were pronounced, whether right or wrong it is unnecessary here to inquire, finding, that, in the opinion of the General Assembly, those calls were sufficient, which had not been held satisfactory by the inferior Church Courts. When those judgments are viewed, then, in this, which, in my opinion, must be held to be their true light, they, so far from impeaching the rights of the Church Courts, constitute a course of proce- dure fixing the very points which are conclusive of the case in their favour : that, by the practice of the Church, acquiesced in and adopted by all parties, including patrons and presentees, and consequently forming a usage legally capable of explaining the Act of Queen Anne, a Call was an indispensable part of the ecclesiastical procedure in the admission of ministers; and that the Church Courts were recognized by all parties concerned as the sole and exclusive judges of the sufficiency of such call or concurrence.—And this is confirmed by the Act of Assembly in 1782, declaring, that ‘* the moderation of a Callin the settlement ‘* of ministers 1s agreeable to the immemorial and constitutional ** practice of this Church, and ought to be continued.” But the strongest evidence of all on this point is to be found in that express reference to the Call, which is invariably made in the pro- cedure preceding the ordination. One of the questions put to the candidate for admission to orders is, ‘‘ Have you used any undue ** methods, either by yourselves or others, in procuring this “ Call?” And another, “ 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?” And the Call here can have no other meaning than the concurrence or invitation of the people. It cannot possibly apply to the presentation, of which the acceptance takes place at a different and earlier part of the procedure ; when the presentation is first laid before the presbytery. So that the 270 LORD FULLERTON’S SPEECH. Call is not only uniformly required by the Church Courts as an indispensable part of the procedure in the admission of a minister, but is actually embodied in the most solemn part of the ceremony by which that admission is completed. When I look, then, to the very general terms of the act of Queen Anne, directing how presbyteries are to admit,—at the principles immemorially held by the Church against intrusion, meaning by that, settlements absolutely independent of the con- currence of the people, at the constant practice, since the act of Queen Anne, of never dispensing with a Call, on which the eccle- siastical courts were sole judges,—when I look at the numerous instances in which presentees have been rejected on the ground of the insufficiency of the Call,—and find that in no one instance has there been any challenge by patrons or presentees in a civil court, either of such rejection, or of the form requiring a Call as a condi- tion superadded to the presentation,—I cannot avoid the conclu- sion, that the requisite of some concurrence on the part of the pa- rish, of which the sufficiency is to be judged of exclusively by the Church courts, is, by law, part of that form of the admission of ministers, according to which alone, presbyteries are bound to admit the presentees of patrons. And if this be so, no difficulty can arise from the circumstance of the presbytery of Auchterarder having, in this instance, obeyed the enactment of the General Assembly in regard to Calls, with- out exercising any farther judicial discretion on the Call held by the presentee. Of course, the point on which the sufficiency of any Call, as evidence of the concurrence of the people, must depend, is the amount of the concurrence weighed against the expressed or implied dissent. And if the Church courts and the General As- sembly, the Supreme Court, have the power of determining in each special case, what concurrence shall constitute a sufficient Call, the last body, which has also legislative powers in ecclesiastical mat- ters, may surely enact and declare what degree of concurrence, the presbytery, the inferior court, shall or shall not adopt as sufficient. It may be a question, whether or not it was expedient for the Ge- neral Assembly to lay down, prospectively, a general rule for all cases, instead of allowing the presbyteries to determine on the cir- cumstances attending each particular Call which should come be- fore them. But that is a matter with which we have nothing to do. It was one well deserving the consideration of the General Assembly before they declared the law; and I have no doubt that it was deliberately considered. The only point here is, whether, as between the Church courts and the civil rights of patrons, it was ultra vires. And I do not see how it could be considered ultra vires of the General Assembly to enact, generally and prospective- ly, that in all cases there should be exacted, something which they LORD FULLERTON’S SPEECH. 271 had a right to exact, in every particular case which might come before them. While giving this opinion, I am not conscious of ascribing to the General Assembly any higher legislative powers than they are generally, and, as I think, justly, understood to possess. I think they have legislative powers in matters properly ecclesiastical ; and, for the reasons already given, I think that the Call is by law, at- tested by immemorial usage, a matter ecclesiastical ; being part of the ecclesiastical form of the admission, and, in the great majority of cases, of the ordination of a minister. Ags such, I think the General Assembly has the power to regulate it to an extent, bona Jide, consistent with the nature of that form, and the object which it was intended to answer. I hold them to have the power of re- gulating it, precisely as they have the power of regulating the qua- lifications of presentees; and that, although such regulations may limit in some degree the range of selection by patrons, I do not say that cases may not occur in which the one power as well as the other may be abused. If it were attempted by the Church courts, under the disguise of pretended regulations of either the one kind or the other, to defeat the rights of patrons, by requiring con- ditions palpably inconsistent with the object for which those powers were vested in them, the civil courts might be justified in disre- garding those enactments. But I see no just cause for holding the present case to fall under this exception. Looking at the nature of the regulations enacted by the General Assembly, as enforced in this particular case, they appear to me to be clearly within the powers which the Church courts might have judicially exercised, and of which the General Assembly, therefore, might, in their le- gislative capacity, prospectively regulate the exercise. It is true they form a more rigorous standard, than that by which the Church courts had for some time previously, measured the sufficiency of Calls in the particular cases coming before them. But they con- tain nothing inconsistent with the obvious and only intelligible ob- ject of a Call, viz. that it should express, to a reasonable extent, a concurrence on the part of the parish. Above all, they do not go beyond what the Church courts might, in the exercise of their judicial discretion, have exacted ; and, what is of more im- portance, might have exacted in this particular case. For it must always be kept in mind, that the question here is not, whether the General Assembly did wrong in passing the law, but whether wrong has been done to tlie pursuer by the application of the law to his par- ticular case. In this view the whole circumstances must be taken into consideration. And I think it cannot possibly be disputed, that the rejection of a presentee, on the insufficiency of a Call, signed only by two resident heads of families, and expressly dissented from, by 287 heads of families out of 330, could at no period, even during 2712 LORD FULLERTON’S SPEECH. the utmost relaxation of the practice of the Church in this particu- lar, have been held to be beyond the powers of the Church courts. But, besides, I do not think that the question of the legality of the regulations of the General Assembly properly arises in the present case. From the terms of the summons, from the narra- tive, the subsumption, and from the conclusions now insisted in, it appears to me that the only question that does arise here is, whether or not the pursuer is entitled to be taken on trial, and ad- mitted as minister of the parish of Auchterarder, without any call or concurrence whatever? The affirmative of that proposition is truly the conclusion arrived at in the present summons, and is one which, for the reasons already assigned, I think, cannot be sus- tained. I am sensible that it may be said, and has been, though not very distinctly said, in opposition to this view, that the ques- tion of the legality of a call is not here raised, and that the ille- gality against which the pursuer seeks redress is what is called the Veto, the rejection of the presentee in consequence of the dis- sents of the majority of heads of families. I have already explain- ed my reasons for thinking that it is impossible to separate the dissent from the Call ; that the dissent was only ene of the means taken by the General Assembly to determine whether a Call should be sustained or not ; and that the grounds on which the Veto was challenged in the summons, must apply to every rejec- tion on the score of insufficiency of call, because every such case must be reducible to the veto of those who decline to concur. But, even admitting, for the moment, the ground of rejection taken in this way, to be the ground set forth in the summons, it would be impossible to reconcile it with the conclusion, except on the assumption of that very proposition respecting calls, which in the same breath is supposed to be waived. For if the rejection of the presentee is in this case to be disconnected from the consi- deration of the call, it follows that there is at this moment before the presbytery of Auchterarder, a call on behalf of the pursuer, the pre- sentee, still undiposed of. Now I can understand that there might be two conclusions consistent with the supposition that the legality of a Call was not questioned in the present action. ‘The summons might have concluded, either that the call should be sustained by the presbytery—a conclusion which, though consistent with the above supposition, would have been clearly incompetent, as touching a matter beyond the cognizance of the Civil Court; or it might have concluded that the presbytery should take the call of the pursuer under consideration, and upon that being sustained, take him up- on trials, &c. But the present summons does neither the one nor the other. Although the fact is unquestionable, that, according to this view of the case, there lies before the presbytery of Auch- LORD FULLERTON’S SPEECH. 273 terarder a Call still undisposed of, the conclusion of the summons is, that the presbytery shall at once take the presentee on trials, and admit him if qualified,—in other words, that they should take him on trial, and admit him independently of any call or concurrence on the part of the parish ;—being the very proposition which is involved in the other, and, as it appears to me, more cor- rect view of the summons, and which is negatived by the invari- able and concurring practice of Church Courts, presentees and pa- trons, in the matter of the admission of ministers, since the passing of the act of the 10th of Queen Anne. Before concluding, I may be permitted shortly to notice a mat- ter which, though not entering strictly speaking into the law of the case, has been employed as a kind of argument 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 ne- cessarily destructive of all beneficial influence on the part of the parish, in the appointment of their pastor. I do not see the ab- solute 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 exer- cise 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 pre- tensions ;—the practical effect of which in general, is not felt as an impediment, but, on the contrary, is highly beneficial in the con- duct of affairs. ‘Lhe result is, not absolute opposition, but com- promise ; and, like that arising from the composition of different for- ces, 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 coun- try, 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 VOL. Il. U 274 LORD FULLERTON’S SPEECH. which it may operate, in such a way as to render the actual exer- cise 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 conscien- tiousness, 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 se- lection 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 can- didates 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 settlement of presentees, the vast and overwhelming majority of settlements have been perfectly quict 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 ofits utility on the part of those mainly interested—a ground much more likely to se-~ cure its efficacy and permanence than the most authoritative an- nouncement 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, hold- ing the opinion which I do of the probable consequences of the re- gulations of the Assembly, contrasted with those which are now likely to follow, I cannot help expressing my deep regret that ob- jects 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. ho ~j Cr LORD MONCREIFF'S SPEECH. Saturday, March 3. THE LORD PRESIDENT.—‘‘ LORD MONCREIFF.” Lorp Moncreirr.—My Lord President, This is a very un- common case, and I think I may say it is absolutely without pre- cedent in the records of this court. It raises in every view ques- tions of the greatest importance: But, in the way it has been pleaded, those questions of jurisdiction, competency, and relev- ancy, which are necessarily raised by the summons and defences, have been rendered of tenfold more vital and momentous inter- est. or I confess it appears to me, that the various and con- tradictory theories to which the counsel of the pursuers have found it necessary to resort, in order to sustain so singular an action, would, if they had really any solid foundation, go far to annihilate all the substance of the fabric of the Church of Scot- land, and all that has hitherto endeared it to the affections, and drawn to it the grateful respect and veneration, of the people of this land. The question, whether it was in the power of the church-courts as by law established, to pass such an act as that which the General Assembly of 1834 transmitted to the presbyteries of the church, and enacted ad interim, and which in 1835 another Assembly, with the express concurrence of a great majority of the presbyte- ries returned within a single year, finally passed into a standing law, is certainly not new tome. It has been pressed on my at- tention in other places, and on various occasions, with great se- riousness and solemnity. After very numerous overtures on the subject, and many directed to the total abolition of the law of Patronage, from the presbyteries and synods of the church, had been laid before the General Assembly, and after the tables of the Houses of Parliament had been covered with petitions on the subject, I was called upon amongst others known to have taken an active interest in the affairs of the church, to render such as- sistance by information or otherwise as I might be enabled to do, in the enquiry which proceeded from those petitions before a Committee of the House of Commons. Though feeling all the delicacy of the situation of a judge, when so called upon, I deem- 276 LORD MONCREIFF'S SPEECH. ed it my duty to comply with that request, from the deep con- viction which I had formed, of the extreme inexpediency and dan- ger of the measure of abolition demanded of Parliament, and my earnest anxiety that the real history, character, and position of the law of Patronage in Scotland might be fully understood. But, in doing so, I felt it to be necessary clearly to guard myself, that, on the one hand, I should not be understood to compromise the right of myself or any other judge to decline any such examination, in which questions of municipal law or on the construction of statutes might arise, and on the other, that I should not be understood, in any answers I might give, to deliver any judicial opinion, but to ‘«‘ have most fully reserved to myself the right of free and unre- ‘* strained judgment, upon argument and discussion, whenever ‘¢ any such question should be raised before me judicially.” Un- der that protestation, all the humble aid which I could render, according to my conscientious opinion, was freely given for the preservation of the law of Patronage: But incidentally, I was also requested to answer to questions, concerning the powers of the. church to enact any such ecclesiastical law, as the act which had previously been proposed, and has since been passed ; and re- newing my protestation, ! did then with equal freedom express my opinion on that point, according to the best judgment which, on much reflection, I had then been able to form. My Lord, I have now had the advantage (though I think rather unaccountably) of hearing this question as to the power of the church argued before me with the most consum- mate ability. I have given to it in private more study and reflection than I ever did to any cause since I have sat on this Bench. I have also listened with the most anxious atten- tion to the opinions delivered by those of your Lordships who have already spoken ; and now, with the utmost possible respect and deference to the opposite views taken of this cause, I find myself enabled and bound most conscientiously but firmly to de- clare, that I have as clear and as decided an opinion as I ever had on any question of importance presented for my judgment, or as I ever can have when so many of your Lordships differ from me, that the church had the power to enact the law which is said to be the subject of this action, and that the action itself is both incompetent and groundless. It has been granted in argument, that this court has no juris- diction to consider the policy or expediency of the measure. I must say, however, that, though the pursuers no doubt intended so to limit themselves, many parts of their argument were to my mind no way pertinent to the subject, except as directed against the rightness or expediency of it; and I am afraid that, even in the opinions of your Lordships, the strict line of distinction LORD MONCREIFF’S SPEECH. 277 may not have been entirely preserved. Perhaps I may not myself be able in all points to preserve it, however anxious to do so. But the concession is not in itself sufficient. Some- thing more, and of much greater importance, must, in my opi- nion, be granted. For there may be a constitutional question strictly in ecclesiastical law, which is quite foreign to the juris- diction of this court. There may have been,—I know there were,—different opinions entertained and expressed, concerning the constitutional correctness of the act, with reference to the law of the church, and the separate jurisdictions of its several courts. And I humbly think, that the great scope of the argument of the pursuers, except when it is directed to deprive the church of all power of legislation whatsoever, even in matters ecclesiastical, truly relates more to supposed difficulties in the ecclesiastical competency of the law, or the practical use of the principle laid down in it, than to the proper question, how far it is in violation of civil statutes, or an infringement on civil rights. But the dis- tinction is plain, and of essential importance. If the church- courts were acting within their own competency, it is not here that any party can be heard to argue against the constitutional ac- curacy of the measure they have adopted. That argument was fitted for another place. I know that some of your Lordships think otherwise. But I must state it as a very important point in the opinion I entertain of the case, that we have no compe- tency to consider any such question. It may be right here to advert to the exact position, in which the act of Assembly stood, at the time when the sentence which is the cause of this declarator was pronounced. But first, let me make a few general observations. The law of Patronage is part of the law of this land; and undoubtedly the titles, by which it is held by an individual, confer on him legal rights, But the right of patronage is not a right of absolute property. It has been too much so treated; and I own, that, being sin- cerely of opinion that it would not be for the interest of the church or of the country that it should be taken away, it is always with regret that I hear it spoken of as a mere subject of patrimonial value, which may be sold to the highest bidder, and bought on speculations of personal interest, like any ordinary article of mer- chandise. It is, no doubt, true as matter of fact and law, that a right of patronage may pass from one person to another by sale or gift; but that is one very strong reason for keeping it con- stantly and strictly in view, that the right can only so pass, and must always be held, according to its true nature and legal cha- racter, and with all its qualities and conditions. The patron has no property in the frwits of the benefice, and he cannot legally de- rive the smallest fragment of personal benefit from any exercise 278 LORD MONCREIFF'S SPEECH. of the right of presentation. It is but a ¢rwst in his person,—a trust the most sacred and solemn with which a human being can be 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 depend. Need it be wondered at, then, if, in the original foundation, or in the progress, of such a church establishment as that of Scotland, built as it was on broad principles of freedom, and whose main aim ever was the instruction and edification of the people, such a trust- right, in its very nature exposed to abuse, should, by the laws equally of the church and of the state, have been subjected to various checks and restraints, conditions and qualifications, in the exercise of it, for securing its faithful and beneficial use for the great end in view? It would be expected beforehand that it should be so; and it is certain that the right is subject to many such restraints. It is 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 limit the time of presenting—by the qualifications attached to the patron, and the oaths he must have taken,—and by other qualities—all directed to the object, that the trust for the people shall be duly executed. Now it appears, that, previous to the General Assembly in 1834, an impression, which had never ceased to exist in Scotland, had become vivid and prevailing, that one of the constitutional and most essential safeguards against the undue use of the right, though maintained and constantly observed in form, had been reduced by practical operations to nearly a dead letter; that many evils had in consequence been brought upon the church; and that it ought to be revived in its full spirit, and brought into a state of definite and active efficiency. I see that an opinion is enter- tained, that no evil had been produced, but that, on the contrary, the series of decisions spoken of had conferred great benefit on the church and on the country. One authority in the Life of Dr. Robertson has been referred to, bearing the name of an eminent professor, but which, in the particular part quoted, as explained by Lord Gillies, was not written by him, but by another very eminent and excellent person, Principal Hill; and, though I bear to his name also the most sincere respect, it cannot but occur to every one, that his authority cannot be exactly the same on a sub- ject, in which all his opinions, associations, and prejudices, were on one side, as it must be acknowledged by all men to be in the much higher departments of his theological and literary labours. But on this point, as on many others, another treatise, which was republished by me in 1833, has been much referred to. My LORD MONCREIFF’S SPEECH. 279 Lord President, I cannot but be deeply affected by the kind and feeling manner in which your Lordship was pleased to express yourself in regard to the author of that treatise. I should be my- self destitute of all honourable feeling, if I were not profoundly sensible to the value of such a warm tribute of respect and affec- tion towards his memory, coming from your Lordship, towards whom, permit me to say, I always look with the truest reverence and attachment. But will youallowme mostrespectfully to suggest a doubt, whether, in such a legal discussion as that we are now en- gaged in, more use has not been made of the various parts of that pamphlet than the nature of it will altogether authorise. It 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 composi- tion. 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 Com- mons, 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 desir- ed in every thing which may be safely appealed to in a legal in- quiry : Several mistakes in facts were pointed out by the Dean of Faculty: I could mention others: And I am firmly per- suaded, that, in the most important of the passages which have been quoted, there isa 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 intoan acknowledgment that no evil consequences had arisen from 280 LORD MONCREIFF'S SPEECH. them. If any such inferences are drawn, they are not correct, as the pamphlet itself shews. Allow me to say,—in which he also joined,—that the men who took the lead in that struggle, concern- ing the necessity of a real call by the people, Dr. Dick, Dr. Mac- queen, 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 follow- ing 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 pa- rish 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. After explaining the progress of the controversy, he says, at page 86, “ The zeal of the people was irritated, and at last exhausted, ‘< by processes in the Assemblies, so long protracted, and so uni- ‘* formly unsuccessful. Their opposition to presentees did not be- ** come less frequent, or less difficult to manage at home. But the ** people became gradually less inclined to bring their opposition ** to the Assemblies. Before Dr. Robertson retired from the ma- ** nagement of church affairs in 1781, there were, in comparison, ** few cases of disputed settlements brought to the General Assem- “bly.” At page 87, he says, ‘* Whether it was originally ex- ** pedient to have adopted the system; whether the system was “Sat any time agreeable to the constitutional laws and usages * either of the Church or of the State; and whether the support ‘* given to it by his Majesty’s government, under every successive administration, was dictated by sound policy, are quite different “* questions.” ‘Then the following passages occur at pages 89, 90, The language of the majority in Assemblies at this time unl- versally was, that thesecessionfrom the church, instead of increas- ing, was on the decline ; and that the superior character and ta- lents of the established clergy was gradually weakening its re- sources, and would ultimately exhaust them. Hixperience has not verified these sanguine expectations. At the distance of a ‘* few years after Dr. Robertson retired, the people, disgusted with unsuccessful processes before the Assembly, relinquished the plan of their predecessors, and came seldom to the Assembly with ap- pealsfrom thesentences of the inferior courts, appointing the settle- ment of presentees whom they resisted. But they began to do more quietly, or with less observation than formerly, what was not less unfriendly to the establishment. In ordinary cases, they now leave the church courts to execute their sentences Without opposition; and set themselves immediately to rear a 66 LORD MONCREIFF'S SPEECH. 281 ‘* seceding meeting-house, which very often carries off a large ‘* proportion of the inhabitants of the parish. The bustle in As- ** semblies is in a great measure over; or a disputed settlement ‘ no longer creates any serious interest or division in the church- “courts. But the silent increase of seceding meetings has gra- ‘¢ dually weakened and contracted the influence of the Establish- “* ment on the general population.” The author elsewhere explains, that the Secession, which con- sisted originally of only eight churches, had increased to 360, at the time he wrote in 1838. This is the state of quiet repose, which the prevailing views brought about. I agree perfectly, notwithstanding, in what has been said of the concluding passage of the pamphlet, that, in spite of all evils and defects, the practical benefits conferred on the country by the Church of Scotland had equalled, if they had not surpassed, those of any church in christendom. But still the evils were very serious. And I may be allowed farther to mention, that, long after the Life of Erskine was published, and after the author's death, another agitation arose, of which he could have had no con- ception, directly connected with the subject of the last passage I have read. He had, in a spirit of Christian liberality, which I believe was fully appreciated by many of the Secession Church, suggested, that they might all be again united to the Established Church. Unfortunately, other views were taken up by a great part of that body after his death. It would be wrong to say a word on such a subject. But no man can doubt, that neither the Church, nor the people of the Church, could be indifferent to it. As mere matter of fact, it necessarily directed attention to the subject of the calling and inducting of ministers, and revived some of the old questions on that subject. It was in these circumstances, and while the Committee of the House of Commons on the law of patronage was yet sitting in London, that the General As- sembly of 1834, far from meeting with no complaints, having their own table covered with overtures from very numerous presbyteries and SEVERAL ENTIRE SYNODs, pressing earnestly for some fixing measure on thesubject of the moderation of the calls, then necessarily entered on the serious consideration of that part of the regular, constant, and legal process of the admission of ministers, which con- sists in, and is known in all the records of the church by the name of, “ The moderation of the Call ;” and being fully satisfied of the expediency, and indeed the necessity, of some distinct and clear law being passed on the subject, adopted the overture which was then transmitted to presbyteries, and being enacted ad interim, constitutes the act under which the presbytery of Auchterarder proceeded in this case. But it is well worthy of notice, that so strongly was it felt, that there was a necessity for some declaratory 282 LORD MONCREIFF'S SPEECH. enactment on the subject of the settlement of ministers, that the only motion, which was set against a similar overture in 1833, consisted in a resolution for a declaratory act, with various regula- tions, distinctly directed ¢o a change of the existing practice, pro- ceeding on an express avowal by the mover, that the former deci- sions had gone too far ; which resolution was to be converted into a declaratory act of the church, by the authority of a single As- sembly: And it is farther remarkable, that, in the following Assembly, an approval of the relative regulations constituted the motion, which was set against the overture of 1834. I do not at present enter into any discussion of the terms of the act of 1834. The principle of it was simply, to de- clare what those who framed it believed to be a fundamen- tal law or principle of the church in the admission of minis- ters, and then to make a definite provision for the instruction of presbyteries, which was thought to be sufficient for securing effect being given to that principle, and fully believed not to be in any respect inconsistent with the just exercise of the right of patronage. Whether that measure was wise or not—whether it was as well conceived or expressed as it might have been,—are not questions which can be discussed here. There are many consider- ations affecting them which would be altogether unsuitable in this place ; and I shall not allow myself to be excited by the many hard, and, in my sober judgment, most unjust things which have been said, so far to depart from my proper judicial functions, as to enter into any such discussions. I may be permitted simply to observe, that I think the principle of the act has been much misapprehended, as if it were a very violent measure against the rights of patrons, whereas, if it were proper in this place to enter into such a question, it could be easily shewn, and has been proved by experience, that it was in fact a much milder form of giving definite effect to the call, than if, assuming that part of the undoubted law of the church not to be abolished, it had been re- solved to require any positive quantum of direct concurrence by the people, or members of the congregation. But I now wish to observe, that though,—the act having been passed ad interim by the Assembly 1834,—the Auchterarder case arose under it while it so stood, and must be judged according to it, wherever there is competency to judge of it, the state of the mat- ter was very different when the sentence of the presbytery reject- ing the presentee was pronounced on the 7th July 1835. By that time, the overture had passed the ordeal of the whole church, had been approved of by a great majority of the presbyteries of the church, and had been finally passed into a standing law by the General Assembly of 1835. Your Lordships will perceive, there- fore, that what you are required to consider—not indeed by LORD MONCREIFF’S SPEECH. 283 the summons, which makes no allusion to it, but by the argu- ment of the pursuers—is, not the act, or the views of any in- dividual or number of isolated individuals; not any hasty de- cision of any church court in a particular case; not even a de- claratory act like Dr. Cook’s of 1833, proposed to be passed by a single General Assembly ; but an act finally passed into a law of the church, by the whole body of the Church of Scot- land, in the most regular, solemn, and deliberate manner, under all the sanctions of the barrier act, and which every presbytery within it is imperatively bound to obey. Let the pursuers make as light of it as they may, (I am sure your Lordships cannot do s0,) itis a very serious matter, for this court to interpose to de- clare such a law itself in matter ecclesiastical, and the act of a a presbytery in obeying it, to bernuxcax. This is perhaps even more serious than it may at first sight appear to be. For, though it cannot of course affect any of your Lordships in the judgment which you may think it your duty to pronounce, it may be right to put it in the view of the Court, that the act in question, having passed through the operation of the barrier act, cannot be altered by any act of a single Assembly, or otherwise than by an over- ture transmitted to presbyteries, and afterwards enacted by an- other Assembly. But, my Lord, it has been well said, that this is merely an ac- tion at law, however large and interesting the questions raised in it may seem to be. And I apprehend, that in it, as in all cases, it is our duty to consider it strictly as such, and to give attention to all the difficulties with which the pursuers may, by their own conduct, or by the form of their summons and pleadings, have en- cumbered it. And this brings me to take notice of what—if any case on the act of Assembly is before us at all, of which presently—I think ought to be treated as a preliminary question, and which, to my mind, is far from being so simple and easy as the pursuers have treated it.—Indeed, I do not think that the full force of it has yet been attended to.—I mean the objection, personal to the défenders, that they acquiesced in the legality of the presbytery proceeding on the act of Assembly, and are barred from now maintaining the point, which is said, though erroneously, to betaken against the presbytery by the declaratory conclusion to which our attention is at present confined. I have doubts, indeed, whether either this plea, or any question on the act of Assembly at all, is properly in the record. But if the plea on the illegality of the act is before the Court, the _ objection of acquiescence in it must be open, and is of material importance. Observe the terms of the summons. It proceeds on an as- sumed obligation on the presbytery fo take the presentee on 284 LORD MONCREIFF'S SPEECH. trials, and, if found qualified on such trials, to admit him; and on the fact stated, that without doing so they rejected him on the ground of a veto of the parishioners: And this is attempted to be sustained by an argument (not in the record, as I think,) to . shew, that the act of Assembly under which the presbytery proceeded was illegal. Now, look at the minutes of the presby- tery. The presentation, with the presentee’s acceptance, his li- cense, and other necessary papers, were at the first meeting pro- duced by Mr. Hope Moncrieff as agent of the patron. Accord- ing to unform practice, it was received, and appointed to lie on the table till next meeting. ‘The minute of the second meeting, after mentioning that Mr. Moncreiff appeared and produced other papers, proceeds thus: —‘** The presbytery taking into consideration «that the late Rev. Charles Stewart, minister of Auchterarder, “‘ died on the 31st August last, and that the 23d regulation of — ‘* the interim act of the late General Assembly anent Calls, inti- ** mates that all cases in which the vacancies have taken place “* after the rising of said Assembly, shall fall under the opera- “¢ tion of the regulations and relative act of Assembly anent Calls ; ‘© FINDS, THEREFORE, THAT THEY MUST PROCEED TO FILL UP THE “¢ VACANCY IN AUCHTERARDER, ACCORDING TO SAID ACT AND RELA- “ TIVE REGULATIONS.” Then it bears, that all the necessary papers being produced, the presbytery found themselves prepared to sus- tain the presentation and appoint a day for moderating in the call— that they appointed Mr. Young to preach in the church of Auchterarder on two successive Sundays, and intimation to be made, that the presbytery would meet in the church ‘ 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,” &c. After this the minutes hear— In atu which sentence of the presbytery Mr. Moncrieff’ ‘© ACQUIESCED, and TOOK INSTRUMENTS in the clerk’s hands.” Here observe, (1.) T'he presbytery expressly resolved to pro- ceed on the act of Assembly. (2.) They did proceed on it ea- pressly. (3.) They appointed the presentee to preach twice. (4.) They appointed a specific day for moderating in the call. (5.) In atu which sentence of the presbytery Mr. Mon- crieff acquiesceD, and took instruments, &c.—Did the patron, then, not acquiesce in the resolution of the presbytery to proceed on the act? He most decidedly did. Yet he finds it necessary, in this summons, to set forth the very proceedings in which he so acquiesced—and in doing so éo omit the material part, not daring to state it as having been witra vires or illegal. If he founds on the terms, ‘“ so far sustains the presentation,” &c. he acquiesced expressly in that. It is a very trifling criticism. The presby- tery mistook the meaning of the instruction, and put the words LORD MONCREIFF’S SPEECH, 285 in their resolution—the meaning evidently being merely, that if aiZ the necessary documents were there, the presbytery should sustain the presentation, and appoint the moderation of the call. It is trifling to found any thing on such criticisms. The presentee preached as required, A mandatory for him appeared at the meeting for moderating in the call. And the patron’s factor acted for him. A call, which I believe to be in the form commonly used there, was produced, and it was signed by the factor and by two heads of families, in a population of 3182. Did either the patron’s factor, or the presentee’s manda- tory, object to or protest against the legality of proceeding on the act.of Assembly? They found it necessary to state in the sum- mons and record that they did. But it is not so. They objected to the roll, as not made up in ¢erms of the regulations—thereby founding on the act; but they made no objection to the legality of the act itself, or of the presbytery proceeding on it. They then appealed to the synod, and afterwards to the General As- sembly, on the same ground solely, that the roll had not been made up in the manner prescribed. They argued it largely in the Assembly on that single ground. The Assembly having af- firmed the judgment of the presbytery, the case went back, and the presbytery rejected the presentee. Mr. Young appealed to the synod (apparently on good grounds), still proceeding on the act. But he ofterwards fell from his ap- peal. All this time, not a word of illegality in the act, or in the resolution of the presbytery to act on it, had been spoken. When all was over, a notarial protest was served, and then this action was raised. I think it a very strong case of express acquiescence, spe- cially in the act of the presbytery in the meeting of 27th October, resolving to proceed in the case under the law of the Assembly. It is not at all saying, we shall first see if the case is within the act. It is resolved by the presbytery that it is within it, and that is acquiesced in; and in all the future steps there is not a whisper of objection. And yet, the whole theory of the argument nbw is, that the pursuers cowld ruEN have applied to this Court. No wonder that Mr. Young did not object to the legality of the act of Assem- bly. For I read in Dr. Hill’s Book of Practice, p. 45, the ques- tions which he solemnly answered in the affirmative, when he ob- tained his license, without which, it is singularly admitted, he could not be qualified ¢o accept the presentation at all; and one of them is in these words—* Do you promise that you will sub- ** ject yourself to the several judicatories of this church, and are ‘* willing to subscribe to these things ?” No one can be surpris- ed, that Mr. Young, who must have solemnly answered that ques- tion in the affirmative, did not, either in the Presbytery, or in the . 286 LORD MONCREIFF’S SPEECH. Synod, or in the Assembly, object to the legality of the act 1834. But I should not perhaps attach so much importance to this ob- jection, if I did not think, that the mode of proceeding adopted by the pursuers goes deep into the competency of the action as laid, and was, besides, very unfair in tts substance. When the _ proceedings began, and the express acquiescence in the validity of the act took place, it was but an interim act. The presby- tery were bound to conform to it, if they saw no legal objection. None was stated ; they resolved accordingly ; and their resolution to do so was expressly acquiesced in. Now, was it fair to the people so to acquiesce, if all the time such an action as the present was contemplated? If apprised of such an intention, they might have taken a different view of the subject, rather than go into discussions which must keep the parish vacant for a long period; or they might perhaps have taken their ground on Mr. Mackenzie’s hint, on the defect of the positive con- currence, and tried the case separately on that footing, by taking ¢hat to the Assembly 1835, with the protest against their act. Was it fair to the presbytery, who were bound to act as they did, but who, if aware of the objection, might have gone by reference to their superiors for advice? But most of all, was it fair to the church at large, and specially to the General Assembly 1835? ‘The church in the presbyteries were then (October 1834), only con- sidering the overture transmitted, and were to report to the As- sembly 1835. ‘The Assembly 1835, on the returns, were still entitled to consider the whole merits of the act. In that Assem- bly, this very case was pleaded to them by the pursuers on an as- sumption and admission of the legality of the act; and, while they decided it, the same Assembly, having the concurrence of the presbyteries, finally passed the act, when as yet the pursuers had intimated nothing of any meditated proceeding in the civil court. What the Assembly might have done, if such a case had been fairly presented to them, it is not for me to conjecture. Your Lordships seem to think that they should stop in such a case. Was it fair to deceive them into a belief of acquiescence, and de- prive them of that power? I am, therefore, strongly inclined to think, that the objection of acquiescence has much weight in it, and has received no satisfactory answer. But the fact bears also on another important point. I proceed now to enter into the merits of this momentous, and, in the way it has been argued, most complicated case. It appears to me, that the questions are, 1. Whether this Court has jurisdiction, with reference to the conclusions of the summons. For I think it impossible to consider any question of jurisdiction correctly, apart from the conclusions of the summons. To attempt LORD MONCREIFF’S SPEECH. 287 this is an ingenious way of avoiding the real difficulty in the case of the pursuers. The question, whether this Court has jurisdiction or not, must depend on that which we are asked to do, not on any thing which the Court might do in another case, or in this case differently placed before us. 2. Whether if the summons, in the declaratory conclusion, presents a case in which the Court may have jurisdiction, the facts of the case itself are such as to bring it within such jurisdiction. These two points may probably seem to embrace the whole substance of the cause. But though I ap- prehend, that the question concerning the power of the General Assembly to pass the act of 1834, with reference to any civil rights alleged to be involved, cannot with any propriety be sepa- rated from the question of jurisdiction, yet it may, for the sake of clearness, be stated as in some sense a third head in the discussion, Whether the act of Assembly was so wltra vires of the church courts, as to render the sentence of the presbytery illegal. 1. Though I am well aware, that it is impossible fully to ap- preciate the weight of the objections to the jurisdiction of this Court to try any question under the conclusions of the summons directed against the presbytery of Auchterarder, until the argu- ment presented to us in detail has been considered, I own it appears to me, that, if it were not that the real object of the pursuers is, evidently, not so much to try the merits of this particular case, as to endeavour indirectly to obtain a judgment of the Court on the supposed excess of power involved in the act of Assembly, the case might be brought to a short issue upon the bare reading of the summons. The plan of it is to set forth the acts 1592, c. 116 and 117, and the 10th Anne, c. 12; then the terms of the presentation, and the license, and other documents produced to the presbytery ; after that, the presbytery’s deliverance sustaining it, and appoint- ing the day for moderating in the call; then the proceeding on the 2d December 1834, when the dissents were received, and on the 7th July 1835, when the presentee was rejedied. It next states, that the said judgments of 2d December 1834, and ‘jth July 1835, were ultra vires and illegal, in so far as, though, by the laws and statutes above libelled, the presbytery were bound and astricted to make trial of the qualifications of the pur- suer, &c. and were not entitled to abandon their duty as a Church Court, to judge of and decide on the qualifications, &c. or to de- volve that duty on others,—and though if, after examination, he was found qualified, they were bound and astricted to admit and induct him,—yet, nevertheless, notwithstanding that the pursuer is duly qualified as a licentiate, &c. and though no objections were stated, the presbytery refused totake him on trials, and to pronounce judgment on his qualifications, or to admit him, but have reject- 288 LORD MONCREIFF'S SPEECH. ed him without trial, or taking cognizance of his qualifications, &c. expressly on the ground, that they could not do so in re- spect of a veto of the parishioners,—in all which they have exceed- ed their powers, &c. and acted illegally, and to the prejudice of the pursuer. Then come the conclusions to the same effect, *‘ That the presbytery of Auchterarder, and the individual mem- ** bers 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 ifin their judgment, after due trial and examination, the ** pursuer is found qualified, the said presbytery are bownd 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 presen- ** tee foresaid, without making trial of his qualifications in com- ** petent 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 in- ** jurious to the patrimonial rights of the pursuer, and contrary ** to the provisions of the statutes and laws libelled.” I beg leave to ask, by which of the statutes libelled is it, that the presbytery are bound and astricted to make trial of the presentee’s qualifications ? As it seems that, in this cause, nothing but express statute will avail any thing, this is surely a relevant question on such an express libelling. Not one of the statutes says a word of such a thing. Ifthe presbytery are bownd to go into any trials or examination, it is solely by the ecclesiastical laws. The sole power of examination and admission is given to the Church by the stalutes, and the pursuers say that they are obliged to receive and admit any qualified person presented. But there is no law which obliges them to any particular mode of forming their judg- ment of his qualifications, except the laws and directions of the Church given from time to time. Can 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, is in matter purely ecclesiastical? Observe that the summons does not once mention the act of Assembly 1834, nor even the judgment of the Assembly in this case in 1835. Lay these things aside, then, for a moment, and take it as in a common case before the act. Could any patron come to this court, to ask decree to ordain the presbytery to take his presentee on trials ? Or it 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 this court for a judgment to compel them ? Quite plainly, in both cases, the ap- _ LORD MONCREIFF’S SPEECH. 289 peal must be to the superior church courts, the whole matter of qualification and admission being confessedly ecclesiastical. But this is precisely the case stated in the present summons ; for it bears no relation at all to the act of Assembly ; and thus the first and leading demand in the conclusion is, as plainly, a demand against the presbytery in matter ecclesiastical, to which no civil statute obliges them, as any one thing which it would have been possible for the pursuers to conclude for. I know that there is something more in the subsumption, and also in the conclusion, and to that I shall presently advert. But there is another even more vital difficulty in this part of the case, which will bring out still more clearly the utter incompetency of the whole sum- mons, It will be observed, that the pursuers do 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. I suppose the pursuers do not complain of this order, or pretend that your Lordships can take any cogni- zance 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 some meaning ; and there can 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 preaches, and the call is presented for signature. It is signed by the patron’s factor, that is, by the pur- suer, Lord Kinnoull—and by two heads of families, the designa- tion of persons which the pursuers’ counsel would exclude from all concern in it. But the pursuers actually make it part of their argument, that the presbytery gave no deliverance on the call; and two of your Lordships, rather unaccountably to my mind, as their views seem to extinguish the call altogether, insist also that the presbytery were buund to give a deliverance on\the call. I think that they did so in due time. But why is there nothing in this summons on that point? It is not stated, that the pursuer has any call, or that the call was moderated, or that the presby- tery refused to give judgment on it. But is 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 this court to put them right, the process of induction must still begin where it stupt, 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, VOL. II. x * 290 LORD MONCREIFY’S SPEECH. until the call be sustained, the presbytery cannot take the pre- sentee on trials. He was not even present at the meeting for mo- derating in the call; well knowing, that, though the call had been the most unanimous and harmonious possible, he could not have been taken on trials till another meeting. But the summons slurs this all over. If there were any competency in it, it ought to have concluded that the presbytery were bownd and astricted to sus- tain the call, and then to take the presentee on trials. If the pur- suers were to prevail in their action, without a summons adapted to the case, that is 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 your Lordships, I presume, will not take upon you the duty of szstain- ing the call, or disposing of it in any manner. We see very well, why there is not a word of this in the sum- mons. ‘There are two reasons. One is, that, in the difficulties of the case of the pursuers, they are exceedingly desirous of con- vineing us that, in the process of induction, there is no such thing as a call, and would very willingly have it discarded from all con- sideration. That this will not do, if any regard is to be paid to the established order of proceeding before the act 1834 was heard. of, is manifest. But the other reason for avoiding all mention of the call in the summons is, that it would have presented too mani- festly the absolute incompetency of the judgment demanded of this court—betraying too palpably the truth, that they require us to deal with things which all men must hitherto have acknowledged to be purely ecclesiastical. Is it not, then, a matter ecclesiastical, to say that the presby- tery are bound to take the pursuer on trials, while yet the sum- mons discloses that no judgment sustaining the call has been pro-, nounced, but contains no conclusion regarding it? The pursuers would scarcely maintain—I had thought it clear that they should not be listened to if they did—that it would be within the competency of your Lordships to determine, that ro moderation of a call is neces- sary 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 have not attempted it. At all events, they acquiesced in that; and they ratse no case against it in the sum- mons. There is no such question before the Court. It is but too plain, therefore, that the whole scope—the marrow and substance— of the summons is and must be in matter ecclesiastical, because it could only land in a thing not concluded for, but which is clearly ecclesiastical—judgment upon the call, or for moderating in the call, according to the appointment made, and the fixed law and in- _ variable practice of the church. LORD MONCREIFF’S SPEECH. 291 ‘What remains of this summons? Assuming that the presbytery had refused to take the pursuer on trials, and that judgment may be obtained finding that they are bound, without any previous proceeding, to do so, it farther concludes for decree, That the rejec- tion of the pursuer as presentee, without making trial of his quali- fications, and without any objections having been stated to his qua- lifications, or to his admission as minister of Auchterarder, and on the ground of a veto by the parishioners, was illegal. What is to follow from this we are not told, except in some conclusions as to the stipend, which are not now in discussion, a point which I un- derstand to be agreed. But observe, that nothing ts here satd of the act of Assembly 1834, or of any proceeding of the Assembly. The pursuers at. once assume, that no objection was stated, and yet inform us that it was in respect of what they call a veto by the parishioners, that the presentee was rejected. The objection evi- dently was, that a majority of the male heads of families in com- munion with the church having dissented from the call tendered to the congregation, there was no sufficient call, and the presentee was therefore not fitted to be a useful minister in that parish. Some of your Lordships may think this very wrong. hat is not the question, But, supposing that any presbytery had done the same thing before May 1834, would they not have been in the evercise of an ecclesiastical function? And must not the appeal of the presentee, if dissatisfied, have been to the supertor church courts ? Tt would just have been the common case, only presented in a very strong form in favour of the people, which occurred so frequently during many years in the history of the church; in all of which the redress sought was uniformly in the General Assembly. And I apprehend, that not one case has been or can be pointed out, in which this court ever interfered in that question. Whether the superior church court would have been bound, in its merely judicial capacity, by the previous decisions, or whether those decisions would have ruled the case, is not the question. But it is manifest, that that is the very case which here occurs. I speak of the case in the summons. In that instrument, in which the character of the action, and the competency of its conclusions, must be exclusively found, there is no mention made of any act of Assembly. Nay, there is a studious avoidance of all allusion to the act of 1834, insomuch, that, even in stating the proceedings of the presbytery, every thing that could disclose the existence of such an act is care- fully suppressed. It seems to have been felt, that it would have too strong and too direct an exhibition of incompatibility, to ask this court to sit in judgment to reduce an act of the church, passed by one Assembly, confirmed by the presbyteries, and finally ‘ratified by another General Assembly. This, at least, would have been a novelty in jurisdiction, for which the pursuers were not pre. 292 LORD MONCREIFF'S SPEECH. pared ; they designedly shrunk from it in the summons ; and they followed the same course in making up the record. And yet what is the issue which they have argued? ‘They have throughout put it, not on the case in the summons, of the presbytery having simply acted as there stated, but on the existence of an act of Assembly not therein alluded to, and the alleged illegality committed by the Assembly, not here as a party, in passing that act. But if the real intention was to obtain a judgment annulling the act of Assembly, I may ask, Why is not the corporation spoken of called, to hear and see their bye-law reduced ? Now, though I intend to consider fully all that has been stated on that subject, I think it of the last importance to observe, that, in my apprehension, there is no such question brought before us by this summons. With all deference, your Lordships cannot on this summons decide any such question, as whether the act of Assembly 1834 was within the powers of the church or not. Try to do it in direct. words, and you will find it to be impossible. It is not said that the presbytery acted by any such authority. The pursuers would not state ¢hat in the seemmons. And thus the case there pre- sented is the simple issue, whether the presbytery did right in re- jecting the presentee, on the ground alleged in the summons,—an issue of the most common and clear ecclesiastical character. The pursuers may possibly say, it would have been in vain to appeal to the Assembly, because the act would have made it impe- rative to decide against them. Can I find that in the summons ? It is carefully excluded from our knowledge. It may not be true. For I rather think that there were good grounds of appeal, from an irregularity in the proceedings of the presbytery, if the appeal had been followed forth. But the question is not, whether they could have appealed with effect or not ; but whether the case, As sTATED IN THE suMMoONS, does not present an ecclesiastical cause,—an ecclesiastical proceeding,—an ecclesiastical question? I amclearly of opinion that it does, and that, as the summons is laid, there is nothing of which this court can take cognizance. Indeed, if it could be held otherwise, there are hundreds of questions, which have occurred in the settlement of ministers, and in other purely ecclesi- astical transactions, which might with equal propriety be made the subject of suits in this court. On the principle of this summons, it is impossible to conceive any thing which might not be made the subject of a civil process, however properly it fell under the juris- diction of the church courts. It may possibly be, that the pursuers mean something by their summons which they have not said. Perhaps I may think that it is not a specimen of the very finest legal style. There is no help for that. I believe, however, that the strange, and in my opinion incompetent, shape in which, after an endeavour to amend its first LORD MONCREIFF’S SPEECH. 293 form, it appears, is chiefly to be ascribed to the real difficulty or empossilility of presenting the case truly meant to be raised, in any shape which would not have forced upon the Court still more palpa- bly the total want of jurisdiction to try it. This summons is liable to other objections of a serious nature, as leading to no intelligible end, in so far as it is now insisted in against the presbytery. And the whole action is exposed to still more important objections to its competency, in respect of jurisdic- tion, when we are required to consider the case on broader grounds than the summons presents. But, for the reasons now stated, I am, in the first instance, of opinion, that there is no case raised by that summons, on which it is competent for this court to pronounce any judgment. 2. I come now to the second question which I have indicated, namely, whether, if the objections to the jurisdiction arising on the summons by itself could be got over, the facts of the case, as in any way disclosed, are such as to give such jurisdiction. It is very evident, that the record on the part of the pursuers in the condescendence makes no change on the state of the ease. It is still placed solely on the actings of the presbytery, as insulated and unconnected with any act of Assembly, or deliverance of that higher court. So far they preserve consistency. Apparently car- ried away by some notion of extraordinary subtilty, their idea seems to have been, to try the question of the validity of the act of As- sembly, by concealing from the Court that their action had the least relation to it. ‘There is something wonderful in this, when the sober realities of an action at law, which the pursuers’ counsel justly say is all we have to deal with, are considered. From the first sentence spoken by Mr. Whigham, to the last words of the Dean of Faculty, what was the point of discussion? Did it net en- tirely relate to the act of the General Assembly, and the power of the church to make it? And have not. your Lordships all so treated the case? And yet, but for the mere ae of the proceedings of the presbytery by the defenders, we should never have known, on the record, that such an act existed, or imagined the idea that the action had any such object. The parties bring a declarator, for the purpose of trying a question as to the validity of a certain act of the church ; and in a form of pleading quite new, I think, in this court, they leave the whole purpose and object of it to remain a hidden mystery on their own summons and record. They seem to have proceeded on the singular idea, that, unless the presbytery could establish a defence on the authority of the act aimed at, their proceedings must fall; not reflecting, that if the presbytery erred in what was clearly their ecclesiastical duty, it lay 5 294 LORD MONCREIFF'S SPEECH. with the party to obtain redress from their ecclesiastical superiors ; and that to resist an action such as this is, they had no occasion to resort to the protection of any act of Assembly, but had only to state that the action as laid was incompetent in any civil court. Neither have they plcaded any thing else, as erroneously supposed. They narrate in the answers to the condescendence the proceedings of the presbytery simply. But their defence AgarnsT THE SUMMONS is in a few words, that the Court has no jurisdiction to try the case there libelled. It is supposed by some of your Lordships, that the defence is put on the act of Assembly. With deference, it is not so. No acr or ASSEMBLY IS MENTIONED FROM THE BEGINNING TO THE END OF THE DEFENCES. So, we are in the extraordinary predicament, that we are engaged in discussing the legality of an act of Assembly, the very ewistence of which is not to be discovered either in the sum- mons or in the defences. Neither is it in the record at all. For, though in the mere narrative of the proceedings of the presbytery in the answers to the condescendence, we see something of some act of the Assembly 1834, and certain regulations in some act of Assembly anent calls, the act on which this question is raised, is not cited and not referred to in any definite form, and No PART OF THE DEFENCE IS RESTED UPON IT. ‘here is NO PLEA IN LAW Jor e1tHER party on the subject. It is in this strange way, that the pursuers have got up what they call their argument in their own declarator, but which is really a pleading on an entirely different case, on which the sum- mons furnishes no means of pronouncing any judgment. Decree in terms of the libel in its declaratory conclusion, would decide mo- thing in regard to the act of Assembly. ‘They think, I suppose, that they are to get this by inference,—the marvellous idea, of get- ting, in an action at law, what they do not ask, and tacitly admit they cannot competently obtain. Nevertheless, upon such a summons and such a record, we are forced into this large discussion on the original constitution of the Church of Scotland, and its whole history since the Reformation— on the powers of legislation vested in the church courts—on all the statutes regarding the law of patronage—and on every thing in the remotest degree connected with any of those wide subjects—all, in order that we, a civil court, may judge, according to the terms of the summons, whether a single presbytery, in a country district, has com- mitted an error of judgment in its peculiar and undisputed function of the admission of a minister. We learn by mere chance the fact, not naturally calculated to improve such a case on the pursuers’ part, that that presbytery acted in obedience toa standing lawof thechurch, to which all the members of it had sworn, as the pursuer had also solemnly engaged, to give all subjection. And on this strange basis we begin the inquiry, held essential to the pursuers’ case, which, on LORD MONCREIFF'S SPEECH: 295 the showing of the action at law and the record under it, has no relation to it at all. A great deal has been said about the importance of giving obe- dience to acts of parliament. No one can doubt the truth of such observations, especially when the meaning of the statute is clear; and therefore I think it is our first duty, to enforce the observance of the statute which regulates all our pro- ceedings,—I mean the judicature act, 6 Geo. IV. c. 120, in which I read, in § 10 and 11, that after the record is closed and: authenticated, ‘* the record so made up and authenticated shall be «held as foreclosing the parties from stating any new averments ‘< in point of fact ;” and “* The pleas stated on the record, and au- ‘« thenticated as before directed, shall be held as the sole grounds ‘< of action or of defence in point of law, and to which the future “ arnGuMENTS Of the parties shall be conrinep.” How has this statute been observed by the pursuers in this case? The fact, on which the whole argument of the pursuers proceeds, is not regular- ly, or in any authentic shape, in the record at all. T'he plea which has occupied so many days of the time of the Court, is not even hinted at, either in the swmmons or in the closed record. The de- fenders, of course, were obliged to follow the pursuers in the hear- ing appointed. But now, when the matter is im the hands of the Court, I think it the most extraordinary thing I have met with since the passing of the 6th Geo. 1V., that we should be called on to give any judgment on a case of fact and a case of law, which is not to be found in any definite form in the closed record. I say that the whole proceeding is a direct violation of the statute. But the matter is even much worse than this; for not only is there no plea founded on the illegality of the act of Assembly, but, as Lord Fullerton has shown, the case is not even laid on the ground of illegality in giving effect to the dissent of any majority of any imaginable class or denomination of the heritors, elders, heads of families, communicants, or the congregation ; it is laid on the ille- gality of the rejection ‘* by any portion of the parishioners or hear- ‘«¢ ers.” And, while the summons distinctly places the case on a denial of the necessity of any call whatever, without even mention- ing such a thing, the pleas in law contain not ove word to cover such a point. If, therefore, you hold, on the one hand, the modera- tion of a call to be an established part of the process of induction, which, under the act of. Assembly 1782, the express finding of the Assembly 1790 quoted by the Solicitor-General, and the uniform and invariable practice of every presbytery since, it is not possible for the presbytery to dispense with, the summons is nugatory, and no judgment can pass on it. And if, on the other hand, you hold thatno call at all is necessary, and that this court of purely civil jurisdiction can so find, you must do it without a summons, which states either the fact or the conclusion, and without a record, in which either 296 LORD MONCREIFF’S SPEECH. the fact is stated in any regular shape, or any plea whatever is taken on it. But this latitude given to these pursuers, which has not been allowed in any other case known to me, becomes peculiarly mconve- nient and most unjust, in the progress of the argument, in which the pursuers insist, not only on what has been done in this case, but on what may be done hereafter. Have they any right to do so upon this record ? The general act of the Assembly is one thing; and it is not mentioned in the record of the pursuers in any way. The interim act of reyulations, which was in force when this case arose, 1s perfect- ly distinct from it, and was passed at a different time. The first was finally passed into a standing law with concurrence of the presbyte- ries in 1835; but no final act of regulations has even yet been passed. That is a matter which still rests with the church, the several acts passed by the successive Assemblies being merely interim acts of regulation for the guidance of presbyteries. Now, supposing that the defects of the summons and record could so far be got over (which I think impossible), as to allow the pursuers to discuss the legality of the general law, and of the things done under it, so far as they were done in this case, that is the utmost latitude which can legitimately or fairly be given. If they are allowed to speak of the act of regulations, in so far as it did come into operation in this case, it is surely going far enough to grant this, where they have made no record at all upon it or beyond it. The pursuers’ counsel went into a great number of hard criti- cisms on this act of regulations, many of them, in my opinion, very light and trivial, and some of a nature which, I own, I should not have expected ; and I must say, that they find many things in them which exist only in the imagination of the pursuers. I have no intention to discuss those criticisms; but as the learned counsel think they have discovered, that the regulation about the jus devolutum lies at the root of the whole law, and have insisted on it, as giving a clear competency to their action, in which idea some of your Lord- ships seem to agree, I think it proper here to say a few words on that point. And (1.) As the pursuers have made no record on the subject of jus devolutum, they have no right to make their case in any way rest on it. Jt is not mentioned from the beginning to the end of the record, either by the pursuers or by the defenders. This is a most im- portant point. There is no other example of such pleading even in the looseness of old practice. I say that your Lordships have no power to consider it at all. The pursuers have made no case upon it, which can enable the Court to do so. And is it not quite into- lerable, and in the face of the whole letter and principle of the judi- cature act, that the defenders should be called upon to defend them- selves against a case not stated in the record, and of which they have LORD MONCREIFF'S SPEECH. 297 nO notice in it—and a case totally and essentially different from the only case that is stated in the summons and condescendence? As far as my judgment goes, I cannot consent to allow it. (2.) Not a syllable concerning the jus devolutwm occurs in the minutes of the presbytery. They have done nothing in it ; and, therefore, whatever regulation may have existed for the contingent event of that right falling, it is nothing to the pursuers upon this record, since o act or proceeding is complained of, having any rela- tion to it. (3.) At the date of the judgment of the presbytery, the jus devo- lutum had not fallen, even assuming the act of Assembly to take effect, and consequently no act covwld be done on it. The proceed- ings in the Synod and Assembly suspended the time; and the presbytery have not done in this case, what the presbytery in the ease of Auchtermuchty did, by proceeding to exercise a jus devo- lutum, while the six months were still current. (4.) When the jus devolutum does legally fall, it belongs to the church-courts to regulate it, and they have always done so. (5.) Ifthe presbytery assumes the jus devolutum, when the patron thinks it has not fallen, it is admitted that he has a remedy in the civil court to certain effects ; and, if he thought it could not legally fall by consequence of the act 1834, he might possibly have tried that, in regard to the stipend, when the case occurred, but not till then—not while the six months were running, and no jus devolu- tum was claimed. ‘The cases referred to on this subject were all cases, either where the jus devolutum was acted on within the six months, or where the time was expired, but the patron maintained that the right had not fallen ; and were all confined to the stipend. (6.) The regulation makes no change on this, nor attempts it. The time is left to the time limited by law. It is but a direction when the jus devolutum shall have fallen. (7.) The further regulation is not justly dealt with. It is sup- posed to have been at the root of the act, as if the object had been to grasp power to the church. Nothing can betray more a morbid jealousy on this subject. It is evidently the very reverse. The regulations had no existence, (I speak in the presence of some who know the fact,) and had not even been conceivedy-till after the act was carried and passed. The records of the Assembly shew this—It was several days after the general resolution was passed, before any regulations could be adjusted, or even proposed ; but this had noé¢ been even thought of before. (8.) The last clause, as to the act not’taking effect in the event of the jus devolutum falling, seems to have had two objects, First, It appears to have been conceived in favour of the patron and his presentee—to bring about agreement between them and the peo- ple, who would scarcely ever desire the right of appointment to fall to the presbytery. Secondly, That, when it did fall in the 298 LORD MONCREIFF'S SPEECH. hands of the presbytery, there should be a sure way of ending the process by the church courts. And, whatever hard reasonings, from unjust jealousy, may be applied to this by the pursuers, I cannot but think it quite reasonable. The settlement jure de- voluto is peculiar: When it falls, the matter becomes ecclesiasti- cal: The PATRON HAS NOTHING TO DO WITH IT, nor has any pre- sentee who has been legally rejected. No time is limited for the presbytery to present: When the time for patrons was limited, that was put as the final remedy. Properly it is, that the pres- bytery finding a church vacant plant a minister themselves. It is presumed they will consult the people. If they don’t get the consent of the people, the remedy lies with the Superior Courts. The fundamental law of non-intrusion 1s not violated—only the spe- cial rule or instruction is superseded in that particular case. But if a right to present ze devoluto be assumed, when it has not fallen, it is plainly matter of civil right. The words may be criticised, but the substance is clear. (9.) The act of regulations in 1834 is not passed into a standing law yet: Several presbyteries object to that very article, especially those most adverse to patronage : It may be altered yet. Whether it is or not, it is nothing to the pursuers, if the law itself is valid ; for nothing has been done on it here ; and besides, if the jus devolu- tum has fallen, the mode of ewercise is extraneous. (10.) In this the root of the whole matter, mot one case of jus devolutum has occurred in nearly four years. But I must again re- peat, with all possible deference, that, in my opinion, there cannot be anything clearer, either in Jaw, in form, or in substantial jus- tice, than that there is no case here having any relation to the jus devolutum. There is another question behind, in regard to the jurisdiction of the court to try such a question, of vast and serious importance. I mean the question which was first spoken to by Lord Fullerton, Whether, if all the difficulties of the summons and record were laid aside, there is any competency in the attempt to make this court review the proceedings of the ecclesiastical courts, on the particular points which are here brought under our notice. I should proceed at once to the consideration of that question, and of the cases relied on as proving the jurisdiction, if it were not that the very pe- culiar nature of the pleas which the pursuers have maintained, con- cerning the constitution of the Church of Scotland, renders it impossible for me to bring out fully the views which I entertain of that question of jurisdiction, until I have first endeavoured to form some correct estimate of the extent and qualities of the ecclesiastical jurisdiction with which we have.to deal. Saving, then, my opinion as to'thé-entire ineompetency of the de- LORD MONCREIFF'S SPEECH. 299 mand of the pursuers in argument, that we should form any judg- ment on the validity of the act of 1834, as the proceeding of the lawfully constituted authority in matters ecclesiastical ; I proceed to enter on that question. I deny, with all deference, that it is competent for this court to consider the constitutional correct- ness or incorrectness of that law; and have very particularly to remark, that when we do consider it, we are not dealing merely with the act of a Court of Judicatory however high, but with the act of a Legislative Assembly, ratified by the whole church. This is what renders it necessary for me to consider very particularly the attempt made, to limit, or do away, all the important powers of le- gislation which, I think, do belong to the church courts. The question concerning the power of the church to pass the act 1834 seems to turn on three points, in the view of the pur- suers, (1.) Is the statement of the fundamental law érwe ? (2.) Isa call, concurrence, or consent, of the people, an essential part of the constitution of the church in the admission of mi- nisters ? (3.) Is the provision made in the act of Assembly 1834 a legal mode of regulating what shall be deemed sufficient consent. But, in my view, there is always a fourth point. (4.) Whether it is not the exclusive province of the church, to declare what is the law of the church, and to regulate what other- wise ts within their proper province. The two first points necessarily run into one another, For the existence of the general principle will explain the purpose of the CALL, and the existence of the call proves the principle. I proceed, then, to consider the grounds, on which the declaration in the first part of the act of Assembly 1834 is rested. I can make no pretensions to antiquarian knowledge, and will not venture intoa field, which my learned brethren may tread with safety, but in which I should soon find myself bewildered. I must confine myself to what is plainly laid open to me, in the acts and proceedings of the church and of the state, so far as they are within my reach. The Reformation began in Scotland in 1560. I deny Mr. Whigham’s doctrine that, by the statute of that year, the reformed church took nothing from the ancient church. The statutes prove the reverse. I need go no farther than the act 1690, c. 5. which gives us the fact in the clearest terms: For it bears, that the king and queen conceiving it their 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 reli- “* gion, according to the truth of God’s word, as it hath been a long ** time professed in this realm ; as also the government of Christ’s * church within this nation, &¢.” ‘¢ And that by an article of the 300 LORD MONCREIFF'S SPEECH. “ claim of right, it is declared, that prelacy and the superiority of ‘* any office in the church above presbyteries, 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, &c.” ©The same in substance is in the earlier statutes, in 1567, ‘ as in the reformed kirkes of this realm, &c.” And in 1592, “ the true and halie kirk as presently established in <¢ this realm, &c.” This, however, is a point, perhaps, of little consequence. And yet it does deserve notice, that so exceedingly anxious are the pursuers to lower and depreciate the strength of the church esta- blishment of Scotland, as feeling this to be essential to their case, that they begin the inquiry into her history, by this extraordinary assumption. That it is contrary to the real state of the case, I have the authority of the statutes for asserting. As soon as the popedom was thrown off, Knox and those who acted with him set themselves to arrange a system of church go- vernment. The First Book of Discipline was composed chiefly by him, soon after the passing of the act 1560. Dr. M‘Crie tells us, that it was very hastily composed ; and we know that it never did become of authority, either in the church or in the state. It is not a little singular to me, that the pursuers and some of your Lord- ships should attach so much importance to it, and endeavour to set it up as of higher authority than the Second Book of Discipline. I have always rejected it in the question of patronage, because I know that it never was regularly acknowledged in the church, and because it is in my humble conception, the single ground of autho- rity for any right of election by the people. But, strange to say, it is now the authority of the pursuers, against the very different position, of a right of selection and appointment by others, and the consent of the people. How it can aid them in that, I know not, except in the way lately suggested, of comparing the case of an appointment by the church authorities on a failure to elect, when the power is given to the people, with a direct intrusion against their will, where no such opportunity is given at all. The statement, however, is so much pressed, that it deserves atten- tion; and I have considered it. It seems to me, that the whole passage, though bearing evident marks of haste, is well worthy of attention. First of all, it gives the election absolutely to the people. I suppose the illustrations from the fifth century, and the foreign churches, as I understand them, will give no aid to the argument as to this first foundation of the Church of Scotland. So far, therefore, the illustrious Knox, in his first design of the church, is perfectly clear of the influence of those authorities, though I doubt not he may have had others to guide him which I cannot pretend LOKD MONCREIFF'S SPEECH. 30t to trace. 'Then he tells us, that, if the people be found negligent in appointing a minister for forty days, the best reformed church (that is, the superintendents) may present one whom they have examined. After this, no doubt, it is said, that if they refuse the person so appointed, they may be compelled by censure to admit him. The very stating of this shews that consent was NECESSARY. I am not able to admit the inflamed statement of the effect of it; I doubt whether it does justice to the character of Knox, as recently brought to light. But, however that may be, the article itself shews that there was no sternness in it; for it tells, that if, after all, the people shall appoint, though after another had been presented, the people’s presentee shall be preferred. What do you say to this veto ? It is ten times stronger than any other. The patrons are allowed to present, because they are the people, after the jus devolutum has fallen. Does the passage prove, then, that, whenever the appointment landed in a third party, the voice of the people went for nothing ? It proves, with all submission, the reverse. But this was the case of the necessity of the appointment falling into the church itself, by the failure of the people to exercise the right of election once given to them. It is, in my opinion, quite foreign to the point, and rather goes to illus- trate the principle of the regulation so unjustly criticised in this case, that, when the matter is allowed by the parties having the relative rights to fall into the hands of the church, there ought to be an end of it. But, if the case were plainly stated, that the Zaw of the church was, that, without any right of election, no man should be intruded against the will of the people, and that their consent must be ob- tained, I suppose, that whatever subtilties might be found in the canon law, if the appointment were in a third party foreign to the church, the idea of compelling the consent would rather be too strong for the sober understandings of Seotchmen, however it might possibly suit the notions of the fifth century. Knox had too much sagacity to entertain such an idea. But I regret to be obliged to treat of the First Book of Discipline in this manner. Though hasty, it had great merit. But, in this point of the power of election given to the people, I do not acknow- ledge it as of any authority. And I beg leave here to express my satisfaction, that, though I pretend to no antiquarian know- ledge, the researches of my more learned brethren have so power- fully confirmed all my views as to the general prevalence of the - right of patronage in the Christian church, and its full recognition in the laws of this country. Though perhaps I do not get credit for it, as it seems the act of Assembly which I think right, and calculated for the protection of patronage, is thought equivalent to its abolition, I agree with all your Lordships on the point, that the law of patronage was at all times the law of this land, and that 302 LORD MONCREIFF'S SPEECH. it never was the law either of the church or of the state, that the people should have any right of election of their ministers, except only in the First Book of Discipline: Yet that is now made the great authority against the doctrine of non-intrusion, although the prin- ciple is thus expressly declared in that work,—‘* For altogether this <¢ is to be avoided, that any man ts to be intruded or thrust in upon << any congregation.” This is the corollary drawn from the imme- diately preceding sentence, bearing that though the forty days had elapsed, and another man had been presented by the council of the church, the man appointed by the people should still be pre- ferred. But it is also very satisfactory to me to learn, that, in all the foreign churches, and especially the Protestant, there is a uniform system, which requires, that before induction or ordination, the proposed minister must be presented to the congregation or the people, for their consent or disapprobation. The question how that is to be regulated, and at what particular time the consent is to be asked, appears to me to be of small moment indeed. The broad fact established, if the statements be correct, which I have vo doubt they are, is, that in all Christendom the consent of the people must be asked, before the presentee of any patron, even the church itself, can be admitted or ordained to the pastoral duty. The question, What shall be the effect of positive dissents? is quite a different matter. In my humble judgment, the demand, in point of principle, of positive consents, which it seems is according to the laws of all the churches, is a far stronger rule. I have doubts of the correctness of the opinion attributed to Calvin, be- cause, though I believe he was not opposed to patronage, and have read with great pleasure the letter referred to by Lord Med- wyn, I have also seen passages in other parts of his works, which import, that it can only be recognised with the consent of the people. I shall only quote the following short passage :—*‘ Sic ‘ igitur fert vera ratio, et Dei mandatum, ut nemo se temere in- ‘¢ gerat, nec privatus quisque pastoris munus usurpet. Sed ut pas- ** torum judicio electus, et gregi oblatus ipso consentiente appro- ‘* betur. uc accedat solennis manuum impositio, quam ordina- ‘¢ tionem vocant.”—Calv. Epist. Regi Polonia, fol. p. 87. I infer, therefore, that the first Book of Discipline, so far as material, decidedly proves the fundamental law or principle laid down in the act of Assembly 1834. I come now to the Second Book of Discipline. It is said, that ° it was Andrew Melville coming from Geneva, who introduced ex- travagant notions, and that he was the author of this Book of Dis- cipline. I believe this is a mistake, which has been corrected by Dr. M‘Crie in his work, (v. 1. pp. 172, 173,) who tells us, and shews by reference to authentic documents, that the extravagant preten- LORD MONCREIFF’S SPEECH. 303 sions referred to had been strongly maintained by others before Mel- ville came to Scotland, and that he was not the sole author of the Second Book of Discipline, though he had a considerable share in the composition of it. Though there are some extravagant views in it which were not adopted, it was composed with great care, and it did become the law of the church generally. It was adopted by the General Assembly in 1578, and King James is said to have given his consent to it in 1581, though reluctantly and disingenu- ously. ‘The things he mainly wanted were prelacy and the king’s supremacy. This Book of Discipline was made the subject of a conference between a committee of the ministers, and the king’s commissioners, in 1578, of which I shall speak presently. The acts 1567, c. 6 and 7, had in the meantime been passed. The first of them 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. So it is held by all authorities. Hence the conferences which succeeded. The General Assembly had then the same general character, which it afterwards held under all the statutes; and it is most particular- ly deserving of notice, ¢hat no civil statute ever defined the consti- tution of that body, or laid down any specific rules regarding it. These always rested on the laws and ordinances of the church it- self, recognised even in the act 1567,c. 6. as already formed and subsisting. For, attend to what that act does. It « declares the ‘* ministers of the blessed evangel of Jesus Christ whom God in his *‘ mercy has now raised up among us, or hereafter shall raise, *¢ agreeing with them that now lives in doctrine and administration ** of the sacraments, and the people of the realm that professes ** Christ as he is now offered in his evangel, and does communi- ** cate with the halie sacrament, (as in the REFoRMED kirkes of ** this realm are publicly administrate), according to the Confes- ** sion of Faith, ¢o be the trew and halie kirk of Jesus Christ “© within this realm ;” and it decerns and declares all who either gainsay the word of evangel, received and approved, as the heads of ‘¢ the Confession of Faith professed in Parliament in 1560,” and specified and registrat in the acts of Parliament in the first year of the king’s reign, and ratified in this present Parliament, or that refuse the administration of the sacraments as they are now minis- trat, * to be na members of the said kirk within this realm, and “* trew religion now presently professed.” This is a full recogni- tion of the church reformed by presbyters as the established church of the realm ; and it will be observed, that the Confession of Faith 1560, which is here ratified, bears in ch. 17, that the Lord Jesus Christ ‘is the only Head of the same kirk, &e.” The Presbyterian Church being thus established, the act 1567, ce. 7, regulates the matter of the admission of ministers. It bears expressly, ** that the evamination and admission of ministers be 804 LORD MONCREIFF'S SPEECH. « only in the power of the kirk, now openly and publicly profess. “ed.” Itis very manifest to me, that this broad provision placed the whole matter of admission in the exclusive power of the church courts, and paramountly of the General Assembly, which is ex- pressly recognised as the supreme court in the later part of the statute ; and I have no idea, that the power of review by that As- sembly, in the case of the superintendent admitting or resolving to admit a man thought to be incompetent, was not as necessarily im- plied in the whole scope of the act, as their power of review in the event of his refusing to receive and admit a person duly presented by a lawful patron. I think it altogether impossible, on any sound principle of construction, to arrive at such a conclusion. If the exclusive power in the admission of ministers was vested in the kirk by the act, it cannot be otherwise than that the supreme court of the kirk had full superintendence and jurisdiction in that matter. The act saves the rights of laick patrons; no doubt of it. But then it is most explicit in these points: 1. That it supposes that the patron may present a person whom the kirk may lawfully reject. 2. That if he presents a person qualified ¢o his understanding, and the superintendent notwithstanding refuses to receive and admit him, his appeal is not to any civil court, but solely to the provin- cial Assembly or synod, and the General Assembly. And, 3. That by the General Assembly, “* the cause being decided, shall take “* end, as they decern and declare.” It is final and conclusive judg- ment; and it is evident, that this provision necessarily implies, that the General Assembly already had a constitution settled. As it is quite clear, that this statute stands fully ratified in all its points, I apprehend, that it is impossible to strike this last clause out of it on any ground whatever. It can make no differ- ence on the subsisting efficacy of it, that by the act 1592, c. 116, the court of the presbytery was substituted for the superintendent in the special matter of presentations to be directed to them, and in the duty of receiving and admitting ministers so presented. For that act, as will be immediately seen, ratified in the fullest manner the jurisdiction of the General Assembly, and established the subordination of the inferior judicatories; and it at the same time distinctly ratified (through another act 1581,) the act 1567, c. 7, without the slightest qualification. I therefore think it the clearest thing in the world, that the part of the act relative to the appeal to the synod and Assembly, and the finality of the judgment of the latter, was made to apply as much to the case of the refusal of a presbytery to receive a presentee, as it had before ap- plied to the refusal of the superintendent. It was but a change in the form of the inferior jurisdictions of the church, both being at the different times but parts of the Presbyterian kirk itself, to which the exclusive province of the examination and admission of ministers LORD MONCREIFF’S SPEECH. 305 was beyond doubt committed. But, indeed, if the simple case be taken, that the presbytery reject a man, upon trial, in respect of de- fect of any thing which may be admitted to be strictly matter of qualification, 1 imagine, that it will appear to be indisputable, even now, that the only appeal must be to the synod and Assembly, and that the judgment of the Assembly must be conclusive. The Lorp Prestpenr.—We are all agreed in that. Lorp Moncrerrr. I am not sure whether we are agreed or no. I think I heard it stated, notwithstanding the admission as to the right of the church courts to refuse a presentee whom they found to be unqualified, that, if the effect of the judgment be such as to affect civil rights, it is competent to bring even that case into this Court. So far as I can understand the views that have been stated, they | appeared to me to go thus far; and I put a case under the act 1567, or under the law as I think it is admitted to stand, with regard to qualification, in order to test the soundness of the prin- ciple so assumed. Bearing in mind, that the church courts have thereby an absolute and uncontrolled power of deciding in the qua- lifications of a presentee,—bearing in mind, too, that the rejection of the presentee, on the ground of non-qualification, must in every case necessarily affect the civil rights of the party, what course may the patron take? According to the view suggested, as I understand it, he may come to this Court, and say, ** You hold that you have “« jurisdiction to set aside such decisions of the church courts as inter- “* fere with the civil rights of the parties ; my presentee has been re- “jected on the ground of non-qualification, whereby he loses the be- *‘ nefice; but I maintain that he is a perfectly qualified person, “and I call upon you to redress the civil wrong which has “been done.” If we are forced into such a question, it is a necessary consequence of the view I am speaking of; and I allude to it now, because it may be taken appropriately in con- nection with the act 1567, which I think can be demonstrated to be in full and effectual force ; and because, in the enactment of that, statute, I see the clear ground on which the church stands, with regard to all matters that relate to the admission, induction, and ordination of ministers. But now, leaving that statute, I come to the conference to which I have already alluded, which was held with the Commissioners of the King, on the subject of the Second Book of Discipline; and I look upon this as so exceedingly important, in my view of what followed, that I can by no means think that it ean be thrown aside in the way the pursuers did, but, on the contrary, consider to be well worthy of the most serious attention. The Book of Discipline, after having been approved of by the Assembly 1778, was presented to the King, who appointed Com- missioners to confer with the clergy on the work. The whole result VOL. II. 2 ¥ . 306 LORD MONCREIFF’S SPEECH. of the conference which was held, is recorded by Archbishop Spottis- wood, (Hist. p. 289, &c.) who states expressly that he had the original minutes of it before him ; for, he says, ‘* Wherefore I thought meet to ‘‘ set down the form of policy, as 1t was presented, with the notes of <¢ their agreement or disagreement, AS THEY STAND IN THE ORIGI- ‘¢ NAL, WHIcH I HAVE By ME.” What he sets down, therefore, is upon no doubtful authority ; he copies from the original record of the conference lying before him; and such a document recorded by him is certainly not of the less authority in the material points, that he was no friend to the Presbyterian Church. ‘There is no- thing to contradict it; and it must therefore be taken, as unques- tionably exhibiting a true account of what took place in that im- portant conference. Now see-how very pointed it is. He goes through the whole ar- ticles, and marks opposite to every one of them, whether it was agreed to, rejected, or referred for further consideration. When he comes to the 3d chapter, of which the subject is, ‘‘ How per- “¢ sons ecclesiastical are admitted,”* he goes over the Ist, 2d, 3d, and 4th articles, which are all marked ‘ agreed ;” so is the 5th, which is, “* That none ought to presume to enter into any office . “+ ecclesiastical, unless he have a good testimony in his conscience “¢ before God,” &c. Then comes the touching point of the election and ordination, the 6th article, bearing, ‘* That this ordinary and ‘* outward calling hath two parts, election and ordination.” The 7th is, that the election should be ‘ by the judgment of the elder- “<< ship and consent of the congregation.” This is the claim of the right of appointment to the presbytery, by implication ex- cluding patronage. What do the Commissioners say to these? Not ‘ agreed,” but “ referred.” That is to say, the claim was not granted, but reserved for consideration by the King or Parliament, being contrary to the act 1567. The 8th article relates only to the gene- ral qualities of those who should have charge in the church, and is marked ‘ agreed with the generality thereof.” Then come the material articles 9 and 10. The 9th, especially, is the important one, in these words :—*‘ In this ordinary election “it is tobe 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.” Now, opposite to this 9th article the Archbishop marks the resolution of the Commissioners, ‘“* Agreed.” It thus appears from the original minutes of the conference, copied into his work by a person who was noway friendly to the Presbyterian Church, that in that solemn meeting, the leading men of the clergy, and the Commissioners who appeared on behalf of the King, were alike AGREED on the great principle, that in this ordinary election, ‘it is * See, for the words of the Articles, the Dean of Faculty’s speech, p. 208, LORD MONCREIFF’S SPEECH. 307 to be eschewit that no man be intruded into any office of the Church contrary to the will of the congregation.” The article referred to by one of your Lordships is in a different part of the book. It truly serves to show, that nothing in regard to the articles 7th and 9th of chapter 3, had either passed per encuriam by the Commissioners, or been set down by any mistake. That is in chapter 12, articles 9 and 10. The 9th is, that « none “* be intruded on the congregation, either by the prince, or by any “¢ other superior person, without lawful election, and the assent of ** the people,” &c. The Commissioners seem to have put’ their own interpretation on the words, ‘ lawful election,” as not exclud- ing patronage, and to have considered the substance of the ar- ticle as consisting in the “assent of the people” required, and the principle against intrusion without it; and, taking it in this view, it is very remarkable, that their resolution on it was, « Agreed “to the general,” thus again granting the general principle against intrusion without the Assent of the people, yet saving themselves against any construction of the article which might import a denial of the righis of patronage, as spoken of in the next article. That 10th article runs thus :—*+ And because this *¢ order cannot stand with patronage and presentation of benefices ‘used in the Pope's church, we desire all those that truly fear *¢ God, to consider that patronage and benefices have no ground in “« the word of God, but is contrary to the same, and to the liberty ‘* of election of pastors, ‘and ought not now to have place in the “light of reformation,” &e. On this it is to be observed, (1.) That the framers of the book, when they spoke of lawful election in the 9th article, must have meant election by the judgment of the eldership, as in the 7th of chapter 3. Consequently, (2.) When they said that the rule in that article 9 could not stand with patronage used as in the Pope’s Kirk, it is plain, that they had re- ference chiefly to that right of appointment claimed for the pres- bytery. But, (3.) The patronage spoken of, is patronage as used in the Pope’s Kirk, that is, uncontrolled patronage, without the consent of the people being required. Now, the Commissioners, after having expressly agreed to the general principle of the 9th article against intrusion without the consent of the people, as they had before done, under the 3d chapter, now refuse to assent to the proposition which went to the abolition of the rights of patronage ; and it is accordingly marked, ‘ Referred,” in the same manner as the previous article to the same effect had been. Thus we have a second time the result of the conference distinctly brought out in both points ; first, refusing to give up the rights of patronage, or to grant the claims for election by the presbytery ; and, second, the general principle against intrusion, ‘contrary to the will of the people, again specially conceded. I apprehend that it is impossible 308 LORD MONCREIFF’S 8PEECH. to estimate too highly the importance of these passages of the conference ; for they show, that the principle of non-intrusion was so deeply rooted in the church, that the Commissioners of the King, when canvassing everything doubtful—everything that could be objected to—were so clear on this point, that it is marked in both parts of the Book of Discipline where it is mentioned, as agreed to. Neither do I think, that there is any weight in the observation, that because it was here said that the rule laid down in the 9th article of chapter 12, could not stand with patronage as used in the Pope’s Kirk, it must be inferred, that as the rights of patronage were not given up, but established by the subsequent statute, the principle of the necessity of the consent of the people must fall also. This I think a complete misapprehension. The right of election claimed by the presbytery evidently could not stand with the rights of patronage in any sense. But it does not at all follow, that the principle twice set forth, and twice agreed to, that no man should be intruded without the consent of the people, was therefore of no effect if the election were not given to the pres- bytery. It was only the more important and the more necessary. There is another article of considerable importance in this ques- tion. I refer to article 11 of chapter 7: It relates to the powers of General Assemblies, and bears, *‘ They have power also to abro- ‘* gate 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.” ‘This article is marked on “ the margin, ‘* Agreed ; that as they make acts in spiritual ‘¢ things, so they may alter the same as the necessity of the time ‘* requires.” So that their authority to make laws is acknowledged, and the legislative power of the Assembly is conceded, in terms even more ample and explicit than those of the article itself. But perhaps the most remarkable thing of all, in reference to the act 1592, is to be found in the articles which relate to the arrange- ment of the inferior judicatories. All the articles, with regard to these inferior ecclesiastical courts, are ‘* Referred” for consideration. The Commissioners apparently had not made up their minds to grant all the things stated ; but yet I think it must appear, that a great many points had been agreed on afterwards, though it was not thought necessary to mention them all in the act of parliament which followed. And now let me ask, is it then a pretence to say, that the law or principle against intrusion is an original law of the Church? We have found it in the First Book of Discipline. Here we find it in the Second Book of Discipline, as agreed to by the learned Commis- sioners acting for the king. The claim as to the election and ap- pointment of ministers, on the other hand, is not agreed to. It is substantially rejected. The act 1567 again admits the principle, that LORD MONCREIFF’S SPEECH. 309 the church shall have the sole power of admitting ministers, and that the judgment of the General Assembly shall be final in that mat- ter. I apprehend that this put into the hands of the church the right of judging, not merely 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. I think it impossible to doubt, that this is the true meaning of it. An attempt has been made to say, that this part of the act is obsolete. I cannot agree in any such view. In no case, except on questions of disputed presentations in one form or another, has the point ever been attempted to be raised in this court. It has never been held by the court, that they could inter- fere in any other case than one involving civil rights, and to civil effects only; and, most particularly, there is no example of its interference in any case of rejection on the defects of the call: Such cases have always been judged of finally by the General Assembly, as was fully shown by Lord Fullerton. King James, though he had given his consent to the Second Book of Discipline in 1581, if we may trust the historian,* was cer- tainly temporizing ; for we find, that in 1584 presbytery was overthrown. It could not have been overthrown, had it not pre- viously been settled. Then came the three acts of parliament, 1584, c. 129—1584, c, 131—1584, c. 132. Iam surprised that these acts are at all quoted, or that the pursuers thought it worth while to put them-among the statutes on which they founded. Dr. M a Bais ting visas ig a3 Speier 5 Svwel i Saecemarae fe ReE i iinet ar Ti Boeing ie bk a iggy Sear oak ’; eine boaste ik amet ey) Ser } “y . } a ivi % f .e a ENE . F HA, » dhe J i if ’ s A a Me A Ph a pie < it, ee See Sees WAS, ig At ; F Are : at a SRY re 24 or —- Alt: 4 ”* Uy APPENDIX OF ACTS OF PARLIAMENT REFERRED TO. No. I.—Act 1567, c. 6. Anent the trew and haly Kirk, and them that ar declared not to be of the samin. LAs corrected and re-enacted by Act 1579, e. 68. ] Our Soveraine Lord, with advise of his three Estaites, and haill bodie of this present Parliament, hes declared and declaris the Minis- ters of the blissed Evangel of Jesus Christ, quhome God in his mer- cie 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 offer- ed in his Evangel, and dois communicate with the halie Sacraments (as in the reformed Kirkes of this Realme ar publicklie administrate, ) 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 cuther 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 zeiris: As alswa spe-= cified 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 partici- pation 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 keip themselves sa divided, from the societie of Christ’s body. No 2.—Act 1567, ¢. 7. Admissioun of Ministers: Of laick Patronages. Item, It is statute, and ordained by our Soveraine Lord, with ad- vise of his dearest Regent, and three Estaitis of this present Parlia- ment, that the examination and admission of Ministers, within this Realme, be only in the power of the Kirk, now openlie, and publick- ly professed within the samin. The presentation of laick Patronages alwaies reserved to the Just and auncient Patrones. And that the Pa- troun present ane qualified persoun, within sex Monethes (after it may cum to his knawledge, of the decease of him, quha bruiked the Bene- fice of before) to the Superintendent of thay partis, quhar the Bene- fice lyes, or uthers havand commission of the Kirk to that effect ; uther- waies the Kirk to have power to dispone the samin to ane qualifyed person for that time. a VOL. II. G rho) APPENDIX. Providing that in caice the Patron present ane person qualified to his understanding, and failzeing of ane, ane uther within the said six Mo- neths, 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 Mi- nisters of that province quhair the Benefice lyis, and desire the person presented to be admitted, quhilk gif they refuse, to appeale to the Ge- neral Assemblie of the haill realme, be quhome the cause beand decyd- ed, sall take end, as they decerne and declair. No. 3.—Act 1578, c. 61. The ratification of the libertie of the trew Kirk of God and Religion. Our Soveraine Lord, with advise of his three Estaites of this pre- sent Parliament, hes ratified and appreved, and be the tenour heireof, ratifies and apprevis all and quhatsumever acts of Parliament, statutes, and constitutions past, and maid of befoir, aggreable to God's word, for maintenance of the liberty of the trew Kirk of God and Religion, now presentlie professed within this Realme, and puritie theirof. And decernis and declaris the samin to have the effect in all poynts, after the forme and tenour theirof. No. 4,.—Act 1581, c. 99. The ratification of the libertie of the trew Kirk of God and Religion, with confirmation of the Lawes and Actes maid to that effect of befoir. Our Soveraine Lord, with advise of his three Estaites and haill body of his present Parliament, hes ratified and appreived, and be the tenour heirof ratifies and appreivis, all quhatsumever Actes of Parlia- ment, Statutes, and constitutiones, past and maid of befoir, aggrieable to God his word, for maintenance of the libertie of the trew Kirk of God _and Religion, now presently professed within this Realme, and’ puritie theirof. And speciallie the Act maid in the reigne of the Queene, his dearest mother, in the Parliament halden at Edinburgh, the 19th day of April, the zeir of God 1567. Anent the cassing, an- nulling, and abrogating by all Lawes, Acts, and constitutiones, Canons Civile and Municipal, with uther constitutions contrair the Religion now professed within this Realme. And in likewise the Actes after following, maid in divers Parliamentes, halden sen his Hienes’ Corona- tion. Namelie, the Actes anent the abolisching of the Paipe and his usurped authoritie. Anent the annulling of the Actes of Parliament, maid against God his word, and maintenance of Idolatrie in any times bypast. The Confession of the Faith professed be the Protestantes of Scotland. Anent the Messe abolisched, and punisching of all that " hearis or sayis the same. Anent the trew and haly Kirk, and of them: that are declared not to be of the same. Anent the admission of them that sall be presented to Benefices, havand cure of Ministrie. Anent the King’s Aith to be given at his coronation. Anent them that suld beare publick Office hereafter. Anent thriddis of Benefices granted in the moneth of December, the zeir of God 1561 zeires, for sustein- ing of the Ministrie, and utheris affairis of the Prince. Anent them APPENDIX. 3 that shall be teachers of the zouth in schools. Anent the jurisdiction of the Kirk. Anent the disposition of Provestries, Prebendries, and Chaplaineries to Bursares, to be founded in Colledges. Anent the filthy vice of Fornication, and punischment of the same. Anent them that committis Incest. Anent Jawful Mariage of the awin blude in degries, not forbidden be God his word. Ratification and approba- tion of the Actes and statutes maid of befoir, anent the freidome and libertie of the trew Kirk of God. Anent the trew and _hailie Kirk. That the Adversaries of Christ Evangel sall not enjoy the Patrimonie of the Kirk. Anent the disobedientes, quhilk sall be received to our Soveraine Lord is mercie and pardon. The explanation of the Act maid anent manses and glebes. Anent purchessing of the Paipe’s Bulles, or giftes of the Queene, our Soveraine Lordis mother. Appro- bation of the Act maid anent the disposition of Benefices to the minis- ters of Christis Rvangel. Anent the reparation of Paroche Kirkis. The ratification of the libertie of the trew Kirk of God and Religion. That the Glebes of the Ministers and Readers sall be free of tenydes. Anent the trew and hailie Kirk, and of them that are declared not to be of the same. Anent the jurisdiction of the Kirk, dischargeing of Mercat- tes, and labouring on the Sabboth dayes, and playing or drinking in time of Sermone. Anent the zouth, and uthers bezond Sey, suspect to have declined from the trewe religion. That householderis have Bibles and Psalme buikes. For punischment of strang and idle beg- gars, and releife of the pure and impotent. And declaris the saidis Actes, and everie ane of them, and all utheris actes of Parliament, maid in favours of the trew Religion, sen the said Reformation, to have ef- fect in all poyntes, after the forme and tenoir theirof. No. 5.—Act 1584, c. 129. Ane Act confirming the Kingis Majesties Royal power over all Kstaites, and subjectes within this Realme. Forsameikle as sum persones, being lately called befoir the Kings Majestie, and his secreit Councel: to answer upon certaine points to have bene inquired of them, concerning sum treasonable, seditious, and contumelious speaches, uttered by them in Pulpit, Schooles, and utherwaies, to the disdaine and reproch of his Hienes, his Progenitours, and present Councel, contemtuouslie declined the judgement of his Hienes, and his said Councel in that behalfe, to the evil exempil of utheris to do the like, gif timous remeede be not provided. There- foir our Soveraine Lord, and his three Estaites assembled in this pre- sent Parliament, ratifies and apprevis, and perpetually confirmis the royal power, and authoritie over all Estaites, alsweil Spiritual, as Tem- poral, within this Realme, in the person of the Kingis Majestie, our Soveraine Lord, his aires and successours: And als statutis and or-. dainis, 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, sum- mound, or charged to answer to sik thinges as sall be inquired of 4, APPENDIX. them, be our said Soveraine Lord and his Councel. And that nane of them, quhilkis sall happen to be apprehended, called, or sum- mound, to the effect foirsaid, presume, or tak upon hand to decline the judgement of his Hienes, his aires and successours, or their Coun- cel in the premisses, under the paine of treason. No. 6.—Act 1584, c. 131. Ane Act dischargeing all jurisdictions, and judgements, not approved be Parliament, and all Assemblies, and Conventiones, without our Soveraine Lordis special licence and commandement. Forsameikle, as in the troublous times, during thir xxiiij zeires, by past, sindrie formes of judgements and jurisdictions, alsweil in Spiri- tual, as Temporal causes, ar entred in the practize and custome, quhairby the Kingis Majesties subjects ar often times convocat and assembled togidder, and paines alsweil civile and pecunial, as Eccle- siastical, injoined unto them ; processes led and deduced ; sentences, and decreetes given, and the same put in execution: Na sik ordour as zet, being allowed of, and approved be his Majestie, and his three Estaites in Parliament, contrare the custome observed in onie uther Christian Kingdome, or weill governed commoun weill; and to the diminishing of the force, and power of his Hienes awin lawes, be the quhilkes his Majesties subjects aucht to be ruled; and speciallie his Hienes and his Estaites, considering that in the saidis assemblies, cer- taine his subjectes have taken upon them to justifie, and auctorize the fact perpetrat against his Hienes person and Estate at Ruthven, and prosecuted thereafter, quhill his Majestie at Gods pleasure, recovered his liberties, having in their pretented maner, maid actes theirupon, kiepis the same in Register, and as zet seemis to allow the said at- temptat, althoucht now publicklie condemned be his Hienes and Estaites as treasonable, nane of the authors theirof, having craved his Hienes pardon theirfoir. For remeid quhairof, in time cumming,’ swa that according to the lovabil act of his dearest Grandsir, King James the Fourth, of worthie memorie, all his Hienes lieges (being under his obeysance) mon be ruled by his awin lawes, and the com- moun lawes of this Realme, and be nane uther lawes: Our Soveraine Lord, and his three Estaites, in this present Parliament, dischargis all judgements, and jurisdictions, Spiritual or Temporal, accustomed to be used and execute, upon ony of his Hienes subjectes, quhilkis ar not approved be his Hienes, and his saidis three Estaites, conveened in Parliament: and decernis the same to cease in time cumming, quhill the ordour thereof be first seene, and considered be his Hienes, and his saidis three Estaites conveened in Parliament, and be allowed and ratified be them: Certifieing them, that sall proceed in using, and exercing of the saidis judgements, and jurisdictions, or in obeying of the same, not being allowed, and ratified, as said is: They sal! be re- pute, halden, called, persewed, and punished as usurpers, and con- temners of his Hienes authoritie, in exemple of utheris. And als it is statute and ordained, be our said Soveraine Lord, and his three Estaites, that nane of his Hienes subjectes, of whatsumever qualitie, estaite, or function they be of, Spiritual or Temporal, presume or tak APPENDIX. 5 upon hand, to convocate, convene, or assemble themselves togidder, for halding of cotncelles, conventions, or assemblies, to treat, consult and determinat in ony matter of Estaite, Civile or Ecclesiastical, (ex- cept in the ordinar Judgement) without his Majesties special com- mandement, or expresse licence, 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. No. 7.—Act 1584, c. 132. The Causes and Maner of deprivation of Ministers. Our Soveraine Lord, and his three Ustaites, assembled in this pre- sent Parliament, willing that the word of God sall be preached, and Sacramentes administrat in puritie and sinceritie, and that the rentes, quharon the Ministers aucht to be sustained, sall not be possessed be unworthie persones neglecting to do the deuties, for whilkis they ac- cepted their benefices, being utherwaies polluted with the fraill and enorme crimes, and vices after specefied. It is therefoir statute and ordained be his Hienes, with advice of the saidis three Estaites: That all Persones, Ministers or Readers, or utheris pro- vided to benefices, sen his Hienes Coronation, (not having vote in his Hienes Parliament,) suspected culpable of heresie, papistrie, fals and erroneous doctrine, commoun blasphemie, fornication, commoun drunkennes, non-residence, plurality of benefices having cure, quhair- unto they are provided sen the said Coronation, Simonie and dilapi- dation of the rentes of benefices, contrare the lait Act of Parliament, being lawfully, and ordourly called, tryed, and adjudged culpable, an the vices and causes above-written, or onie of them, be the ordinar Bishope of the diocese, or utheris the Kingis 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 theirof, were naturally dead: And that it sall be esteemed, and judged non-residence, quhair the person being in the function of the ministry, provided to ane benefice, sen the Kingis Majesties Coronation makis not residence at his manse, gif he ony hes ; and failzieing thereof, at sum uther dwelling place with- in the parochin, bot remains absent theirfra, and from his Kirk, and using of his office, be the space of four Sabboth dayes in the haill zier without lauchful cause and impediment, allowed be his ordinar. And quhair ony person, is admitted to maa benefices, havand cure, sen our Soveraine Lordis Coronation, the acceptation of the last, sall be suffi- cient cause of deprivation from the remanent, swa that he be provided to twa, or maa benefices havand cure, sen the time of the said Coro- nation. And neverthelesse this present act sail not extend to ony per- son, provided to his benefice befoir the said Coronation, neither sall the bruiking of that office, quhairunto he was provided of befoir, in- duce pluralitie of benefices in this case, bot he sall allanerly tine his richt of the benefice, quhairunto he was provided sen the said Coro- nation allanerly : And union of Kirks to ane benefice, viot to be Judged pluralitie, quhill farder ordour be established and provided in 6 APPENDIX. that behalfe: Sike as alswa, the persones being in the function of the ministrie, that sall happen to be lawfullie and ordourly convict befoir our Soveraine Lordis Justice-General, or utheris their Judges compe- tent, of capital crimes, sik as treason, slauchter, mutilation, adulterie, incest, thieft, commoun oppression, usurie against the lawes of this . Realme, perjurie, or falsed : They being likewaies lawfullie and or- dourlie deprived fra their function in the ministrie, be their ordinar, or the Kingis Commissioners in Ecclesiastical causes. The benefices possessed by the saidis persones to vaik, be reason of the said convic- tion, and deprivation. And this to have effect and execution, onlie for crimes, vices, faultes, and offenses, that sall happen to be committed after the dait heirof. No. 8.—Act 1592, c. 116. Ratification of the liberty of the trew Kirk : Of Generall and Synodal assemblie: Of Presbyteries: Of Discipline. All Laws of Idola- trie ar abrogate: Of presentation to benefices. Our Soveraine Lord and Estaites of this present Parliament ; fol- lowing the lovabil and gude exemple of their Predecessours: Hes ra- tified and appreeved, and be the tenour of this present act, ratifies and apprevis all liberties, priviledges, immunities and freedoms quhatsum- ever, given and granted be his/Hienesse, his Regentes in his name, or onie of his Predecessours, to the trew and halie Kirk, presently esta- blished within this Realm; and declared in the first Act of his Hie- nesse Parliament, the twentie day of October,. the zeir of God, ane thousand, five hundreth, three-scoir ninetene zieres: 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 twentie foure daie of October, the zeir of God, ane thousand, five hundreth, fourscore ane zieres, with the haill particular Acts there mentioned: Quhilk sall be als sufficient as gif the samin were here expressed. 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 : And declares, that it sall be lauchfull to the Kirk and Ministers every zeir at the least, and oftner pro re nata as occasion and necessity sall require, to hald and keepe general Assemblies: Providing that the Kingis Majesty, or his Commissioners with them to be appoynted, be his Hienesse, be present at ilk general Assemblie, before the dissolving thereof, nominate and appoynt time and place, quhen and quhair the nixt General As- semblie 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 assembly of the Kirk sall be keined and halden, as they have bene 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 Mi- nisters, twise ilk zeir, as they have bene, and ar presently in use to do, within every Province of this Realme; and ratifies and ap- 4 APPENDIX. a previsithe 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 ar- ticles the tenour followes. Marers to be entreated in Provincial Assemblies: Thir Assemblies ar constitute for weichtie maters, ne- cessar 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 Elder- shippes, quhairof they are collected. Marxrs to be entreated, in the Presbyteries. The power of the Presbyteries is to give diligent la- boures in the boundes committed to their charge: That the Kirks be keeped in gude ordour, To enquire diligently of naughty and ungod- ly persons: And to travel to bring them in the way againe be ad- monition, or threatning of Gods judgements, or'becorection. It ap- pertaines to the Elderschippe, to take heede, that the word of God be purely preached within their boundes. The Sacraments richtly mi- nistred, the Discipline interteined : And Ecclesiastical guddes uncor- ruptly 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 ¢o prepon in the Kirk, for decent ordour, in the par- ticular 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 Proces 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 maters Ecclesiastical. And decernis and declairis the saids Assemblies, Pres- byteries, and Sessiones, Jurisdiction and Discipline thereof foresaid, to be in all times cumming maist just, eude, and godly in theselfe, Not- withstanding of quhat-sumever Statutes, Actes, Canone, Civill, or Municipal Lawes, made in the contrare. To the quhilkis and every ane of them, thir presentes sall make expresse derogation: And be- cause there ar divers Actes of Parliament, maid in favour of the Pa- pistical Kirke, tending to the prejudice of the liberty of the trew Kirk of God, presently professed within this Realme, jurisdiction and dis. cipline thereof ; Quhilk stands zit in the buikes of the Actes of Par. liament, nocht abrogated nor annulled: Therefore his Hienesse, and Estaites foresaids, hes abrogated, cassed, and annulled, and be the te- nour hereof, abrogatis, cassis and annullis all Actes of Parliament made by ony of his Hienesse Predecessoires, for maintenance of su- perstition and idolatry, with all and quhat-sumever Acts, Lawes and statutes, maid at ony time, before the day and dait hereof, against the 8 APPENDIX. liberty of the trew Kirk, Jurisdiction and discipline thereof, as the samin is used and exercised within this Realme. And in speciall, that part of the Act of Parliament halden at Stri- viling, the fourth day of November, the zeir of god, ane thousand, four hundredth, fourty three zeirs, commaunding obedience to be giving to Eugenius the Paipe for the time: the Acte made be King James the thrid, in his Parliament halden at Edinburgh the twenty four day of Februar, The zeir of God, ane thousand, four hundredth, fourscor zeires. And all utheris actes quhairby the Paipis authority is esta- blished. The Acte of King James the third, in his Parliament halden at Edinburgh, the twenty day of November, the zeir of God, ane thou- sand, four hundredth, three scor nine zeires, anent the Satterday, and uther vigiles to be halie dayes, from Evensang to Evensang. IrrM, that part of the Act, maid be the Queene Regent, in the Par- liament halden at Edinburgh, the first day of Februar: The zeir of Gop, ane thousand, five hundredth fifty-ane zeirs, giving special li- cence for holding of Pasche and Zule. Irem, The Kingis Majesty, and Estaitis, foresaidis, declaris, that the 129 Acte of the Parliament halden at Edinburgh, the xxij day of Maij, the zeir of God, ane thou- _ sand, five hundredth, fourscoir, four zeires, sall naways be prejudi- ciall, 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 mi- nisters, or ony siklike essential censours, speciallie 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, ane thousand, five hundredth, fourscoir four zeires, granting commis- sion to Bischoppes, and utheris Judges, constitute in Ecclesiastical causes, to receive his Hienesse presentations to benefices, to give col- lation 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 colation 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 quhat-sumever qualified Minister, presented be his Majesty, or laick patrones. No. 9.—Act 1592, c. 117. Vnqalified persones being deprived, the benefice vaikis, and the Patron not presentand, the richt of presentation pertaines to the Presby- tery, but prejudice of the tackes, set be the person deprived. Our Soveraine Lord Considering the great abuses quhilkis ar laitly croppen in the Kirk, throw the misbehaviour of sik persones, as ar provided to Ecclesiasticall functions: sik as Parsonages and Vicarages within ony parochin, and thereafter neglecting their charge, ather leave their cure, or els committis sik crimes, faultes, or enormities 3 APPENDIX. 9 that they are found worthy of the sentence of deprivation, ather be- fore their awn Presbyterie, or else before the Synodall or Generall - assemblies. Quhilk sentence is the lesse regarded be them, Because albeit they be deprived of their function and cure within the Kirk : zit they thinke they may bruike lawfully the profites and rentes of their saids benefices, enduring their life-rentes ; Notwithstanding the said sentence of deprivation: Therefore, our Soveraine Lord, with advice of the Staitis of this present Parliament, declaris, that all and quhatsumever sentences of deprivation, ather pronounced already, or that happenis to be pronounced hereafter, be ony Presbyterie, Syno- dall, or General assemblies, against ony Parson or Vicar, within their jurisdiction, provided sen his Hienesse Coronation: All Parsones, provided to Parsonages and Vicarages, quha hes voit in Parliament, secreit Councell, and Session, or provided thereto of auld, before the Kingis Coronation, (And Maister George Young, Arch-dean of Saint Andrewes, being specially excepted,) is, and sall be repute in all J udge- mentes, ane just cause to seclude the person before provided, and then deprived from all profites, commodities, rentes and dewties of the said Parsonage and Vicarage, or benefice of Cure: And that ather by way of action, exception, or reply. And that the said sentence of de- privation, sall 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 shall tine the right of presentation, for that time allanerly: And the richt of presentation to be devolved in the handes ofthe Presbytery, within the quhilk be- nefice lies ; to the effect that they may dispone the same, and give collation thereof, to sik an qualified personas they sall think expedient. Providing allwayes, in case the Presbytery refuses to admit ony quali- fied 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. And furder, his Hienesse and Estaites foresaides, de- clairis, that the deprivation already pronunced, or to be pronunced, be ony Presbyterie, Synodall, or Generall assemblies, against ony of, the Parsones or Vicars foresaid, sall na-wayes hurt, or be prejudiciall to ony tackes, lawfully set be that Person deprived, before his depri- ' vation, to quhatsumever persones. No. 10.— Act 1690, ¢c. I. , Act Rescinding the First Act of the Second Parliament, 1669. - Our Soveraign Lord and Lady the King and Queen’s Majesties, taking into their Consideration, that by the second Article of the Chterarleck presented to their Majesties, by the Estates of this King- dom ; It is Declared, that the First Act of the second Parliament of King Charles the Second, entituled, Act asserting his Majesty’s Su- premacy over all Persons and in all causes Ecclesiastical, is incon- sistent with the Establishment of the Church Government now de- sired, and ought to be abrogat. Therefore, Their Majesties, with Advice and Consent of the Estates of Parliament, do hereby Abrogat, 10 APPENDIX. Rescind, and Annull the foresaid Act, and Declares the same in the Whole Heads, Articles, and Clauses thereof, to be of no force or ef- fect in all time coming. No. 11.—Act 1690, c. 5. Act Ratifying the Confession of Faith, and Settling Presbyterian Church Government. 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 Kingdon, 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 this 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 griev- ance and trouble to this nation, and contrary to the inclinations of the generality of the people éver since the Reformation, they having reformed from popery by presbyters, and therefore ought to be abo- lished: Likeas, by an act of the last Session of this Parliament, pre- lacy is abolished ; Therefore their Majesties, with advice and consent of the said three estates, do hereby revive, ratifie, and perpetually con- firm, all laws, statutes and acts of Parliament, made against popery and papists, and for the maintenance and preservation of the true re- formed Protestantreligion, and forthe 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 ap- proven 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 subjoined 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 114th 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 na- tion, to be the only government of Christ’s Church within this king- dom ; reviving, renewing, and confirming the foresaid act of Parlia- ment, 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 follow- ing, viz.; act anent Restitution of Bishops, Ja. 6, Parl. 18, cap. 2; act ratifying the acts of the Assembly, 1610, Ja. 6, Parl. 21, cap. 1; act anent the election of Archbishops and Bishops, Ja. 6, Parl. 22, cap. 1; act intituled, Ratification of the Five Articles of the General Assembly at Perth, Ja. 6, Parl. 23, cap. 1; act intituled, For the APPENDIX, il Restitution and Re-establishment of the ancient government of the Church by Archbishops and Bishops, Ch. 2, Parl. 1, Sess. 2, act 1 ; anent the constitution of a National Synod, Ch. 2, Parl. 1, Sess. 3, act 5; act against such as refuse to depone against delinquents, Ch. 2, Parl. 2, Sess. 2, act 2; act intituled, Act acknowledging and assert- ing the right of succession to the Imperial Crown of Scotland, Ch. 2, Parl. 3, act 2; act intituled, Act anent religion and the test, Ch. 2, Parl. 3, act 6; with all other acts, laws, statutes, ordinances, and pro- clamations, and that in so far allanerly as the said acts, and others ge- nerally 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 declar- ing 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 com- plying 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 pursu- ance of the premises, their Majesties do hereby appoint the first meet- ing 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. And because many conform ministers either have deserted, or were removed from preaching in their churches, preced- ing the thirteenth day of April 1689, and others were deprived for not giving obedience to the act of the Estates made in the said thirteenth of April 1689, intituled, Proclamation against the owning of the late King James, and appointing publick prayers for King William and Queen Mary: Therefore their Majesties, with advice and consent fore- said, do hereby declare all the churches, either deserted, or from which the conform ministers were removed or deprived as said is, to be va- cant; and that the Presbyterian ministers exercising their ministry within any of these paroches, (or where the last incumbent is dead,) by the desire or consent of the paroch, shall continue their possession, and have right to the benefices and stipends, according to their entry in the year 1689 ; and in time coming, ay, and while the Church, as now established, take further course therewith. And to the effect the disorders that have happened in this church may be redressed : their Majesties, with advice and consent foresaid, do hereby allow the ge- neral meeting, and representatives of the foresaid Presbyterian mi- nisters and elders, in whose hands the exercise of the Church governs ment is established, either by themselves, or by such ministers and elders as shall be appointed and authorized visitors by them, accord- ing to the custom and practice of Presbyterian government through- out the whole kingdom, and several parts thereof, to try and purge out all insufficient, negligent, scandalous, and erroneous ministers, by due course of ecclesiastical process and censures; and likewise for 12 APPENDIX. redressing all other Church disorders. And further, it is hereby pro- vided, that whatsoever minister, being conveened before the said ge- neral meeting and representatives of the Presbyterian ministers and elders, or the visitors to be appointed by them, shall either prove con- tumacious in not appearing, or be found guilty, and shall be therefore censured, whether by suspension or deposition, they shall zpso facto be suspended from, or deprived of their stipends and benefices. No. 12.—Act 1690, c. 23. Act concerning Patronages. Our Soveraign 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 faras they may be extended, or under« stood, to establish the said right of presentation; but prejudice al- ways, of such ministers, as are duly entered by the foresaid presenta- tions, (while in use,) their right to the manse, glebe, benefice, sti- pend, and other profits of their respective churches, as accords: And but prejudice to the patrons of their right to employ the vacant sti- pends 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 fore- said, that he shall lose his right of administration of the vacant sti-' pend for that and the next vacancy, and the same shall be disposed on by the presbytery to the uses foresaid ; excepting always the va- cant 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 disap- prove—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 ofa mi- nister within the space of six months after the vacancy, that then the presbytery may proceed to provide the said parish, and plant a mi- nister in the church, tanquam jure devoluto. It is always hereby de- clared, that this act shall be but prejudice of the calling of ministers to Royal Burghs by the Magistrates, Town-Council, and Kirk-Ses- APPENDIX. 13 sion 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 pa- roch. And in lieu and recompence of the said right of presentation, hereby taken away, their Majesties, with advice and consent foresaid, statute and ordain the Heritors and literenters of each Paroch, and’ the Town-Councils for the Burgh, to pay the said Patrons, betwixt and Martinmas next, the sum of six hundred merks, &c. &c. No. 13.—Act 10, Q. Anne, c. 12.—A.D. 17]1. An Act to restore the Patrons to their ancient Rights of presenting Ministers to the Churches vacant in that part of Great Britain call- ed Scotland. “‘ 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 pre- «* sentation was taken from the patrons, and given to the heritors and “elders of the respective parishes ; and in place of the right of pre- ** sentation, 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 benorth Forth, and the “other intituled, Act in favour of preachers benorth Forth; there “are several burthens imposed upon vacant stipends, to the pre- ‘judice 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 like- «« wise has been a great hardship upon the patrons, whose predeces- ‘«< sors had founded and endowed those churches, and who have not “‘ received payment or satisfaction for their right of patronage from the *< aforesaid heritors or life-renters 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 authori. ty 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 presenta- 14 APPENDIX. tion 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 suc- cessors, 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 he presented by the respective patrons, as the persons or ministers pre- sented before the making of this act ought to have been admitted. II. Provided always, That in case any patron or patrons have ac- cepted of and received any sum or sums of money from the heritors or liferenters of any parish, or from the Magistrates or Town-Coun- cil of any borough, in satisfactidn of their right of presentation, and have discharged or renounced the same under their hand, that nothing herein shall be construed to restore such patron or patrons to their right of presentation ; any thing in this present act to the contrary notwithstanding. III. Provided also, and it is hereby enacted by the authority afore- said, 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 presenta- tion 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 fanquam jure devoluto. IV. And be it further enacted and declared by the authority afore- said, That the patronage and right of presentations of ministers to all churches which belonged to Archbishops, Bishops, or other dignified persons, in the year one thousand six hundred eighty-nine, before Episcopacy was abolished, as well as those which formerly belonged to the Crown, shall and do of right belong to her Majesty, her heirs and successors, who may present qualified ministers to such church or churches, and dispose of the vacant stipends thereof for pious uses, in the same way and manner, as her Majesty, her heirs and successors, may do in the case of other patronages, belonging to the Crown. V. Declaring always, That nothing in this present act contained, shall extend, or be construed to extend, to repeal and make void the aforesaid twenty-third act of the second session of the first parliament of the late King William and Queen Mary, excepting so far as relates to the calling and presenting of ministers, and to the disposing of va- cant stipends, in prejudice of the patrons only. APPENDIX. 15 VI. And be it farther enacted, by the authority aforesaid, That all and every patron and patrons, who have not taken, or shall not take, at any time before his or their presenting a minister or ministers to any church or churches aforesaid, the oath appointed to be taken by persons in publick trust, by an act made in the sixth year of her Ma- jesty’s reign, intituled, An act for the better security of her Majesty's person and government, shall, and are hereby obliged, at their signing such presentation, to take and subscribe the aforesaid oath before the Sheriff of the shire, Stewart of the stewartry, or before any two or more Justices of the Peace, of the county or place where such patron resides ; and in case such patron or patrons, who have not formerly taken the aforesaid oath, refuse or neglect to take the same at the signing of such presentation, that the same. shall be and is hereby de- clared to be void, and the right of presentation, and of the disposing the vacant stipends for that time, shall belong to her Majesty, her heirs and successors, who may present a qualified person to such church or benefice, at any time within the space of six months after such neglect or refusal ; any thing in this present act, or in any other act, to the contrary notwithstanding. VII. “ And whereas the right of patronage of churches may belong “* to Papists ;” Be it therefore enacted by the authority aforesaid, That any person or persons, known or suspected to be Papists, and who have a right of presenting ministers, shall be obliged, at or before his or their signing any presentation, to purge himself of Popery, by taking and signing the formula contained in the third act of the Pay. liament of Scotland, held in the year one thousand seven hundred, in- tituled, Act for preventing the growth of Popery ; and in case such Po- pish patron or patrons shall refuse to take and subscribe the formula aforesaid, the same being tendered to him or them by the Sheriff of the shire, Stewart of the stewartry, or any two or more Justices of the Peace within their respective jurisdiction, who are hereby impowered to administer the same, the presentation, and the right of disposing the vacant stipends shall, for that time, belong to her Majesty, her heirs and successors, who may present any qualified person or persons within six months after such neglect or refusal ; any thing in this pre- sent act, or any other act to the contrary notwithstanding. No. 14. Excerret from Act 5th Geo. I. cap. 29, intituled, “ An Act for mak. ** ing more effectual the Laws appointing the Oaths, for Security ** of the Government, to be taken by Ministers and Preachers in “ Churches and Meeting-houses in Scotland.” VIII. “ 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 per- “sons to churches who are not qualified by taking the oaths appoint. ** ed by law, or who, being settled in other churches, cannot or will ** not accept of such presentations.” To theend that such inconvenien- 16 APPENDIX. cies may be prevented for the future, Be it enacted by the authori- ty 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 hun- dred and nineteen, who shall not be qualified by taking and subscrib- ing 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 ac~ counted any interruption of the course of time allowed to the patron for presenting ; but the jus devolutum shall take place, as if no presen- tation had been offered ; any law or custom to the contrary notwith- standing. IX. 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. OPE TT a ENO OTN eas RT EDIN BURGH : PRINTED BY JOHN STARK, OLD ASSEMBLY CLOS#. DATE DUE oll | I Me GAYLORD PRINTEDINU.S.A. <= i i i) |