Scottish Court of Session Decisions

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 By statute 3, another act of the year 1560 was ratified, by which previous statutes were rescinded as “not agreeing with God his word,” and were declared to be “abolished and extinguished for ever, in so far as any of the foresaids acts are repugnant, and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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“Heritors and Elders.	Heads of Families—Parishioners.
For the Earl of Kinnoull, Patron.	Michael Tod.
Ja. Lorimer.	Peter Clerk.”

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

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

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

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

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

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

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

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

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

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

Pleaded by the Pursuers—

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

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

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

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

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

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

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

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

_________________ Footnote _________________

¹ M'Culloch, 1800 (7471).

² March 10, 1812 (F. C.)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

_________________ Footnote _________________

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

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

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

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

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

Pleaded by the Defenders,—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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¹ Ante, p, 728.

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

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

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

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¹ Ante, p. 727, 728.

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

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

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

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¹ Ante, p. 717.

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

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

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

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

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

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

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

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

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