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016SS1024

Irvine

v.

Trustees of Ministers' Widows' Fund
No. 181

Court of Session

1st Division

May. 24 1838

Ld. Fullerton, Lord Justice-Clerk, Lord Glenlee, Lord Meadowbank, Lord Mackenzie, Lord Corehouse, Lord Medwyn, Lord Moncreiff, Lord Jeffrey, Lord Cockburn, Lord Cuninghame, Lord Gillies, Lord President.

Rev. Alex. R. Irvine and Rev. James Pearson, Pursuers.— Counsel:
Robertson— Inglis. Trustees of Ministers' Widows' Fund, Defenders— Counsel:
D. F. Hope— Grant.

Subject_Church—Ministers' Widows' Fund.— Headnote:

Held, by a majority of the Whole Court (reversing the judgment in Gordon, Feb. 18, 1836), that ministers of the churches erected pursuant to 5 Geo. IV. c. 90, although duly ordained and admitted by the Church of Scotland, and although possessed of a benefice of a permanent nature, are neither entitled, nor bound, to become contributors to the Ministers' Widows' Fund, in respect (1.) that, independently of the Act of Assembly, May 25, 1833, they do not come within the description of ministers, declared by the statutes regulating the Fund, to be contributors; and (2.) that the Act of Assembly could not bring them within it.

Facts:

The Rev. Donald Gordon, Minister of Store, which was a Place of Worship with an annexed district, under 5 Geo. IV. c. 90, raised an action against the Trustees of the Widows' Fund of the Church, of Scotland, and the Universities in Scotland. The action concluded for declarator that he had a right to become a contributor to the said Widows' Fund, and was entitled to be admitted on paying the requisite rate. He libelled chiefly on the statutes 19 Geo. III. c. 20; 5 Geo. IV. c. 90; and the Act of Assembly, May 25, 1833, which declared that class of ministers to which Mr Gordon belonged, to possess the whole rights and privileges of parish ministers; to be members of church judicatories; and to stand in all respects on a footing of presbyterian equality with the other ministers of the Church of Scotland. Defences were lodged, maintaining that the pursuer, and the class of ministers to which he belonged (generally termed ministers of Parliamentary Churches), were not within the description of ministers, set forth in the statutes instituting and regulating the Widows' Fund, as entitled to the benefit of the Fund. It was also pleaded, that, if the pursuer was entitled to the benefit of the Fund, he, and all the other parliamentary ministers, who were forty-two in number, were liable to the burden of contributing to the Fund, and were bound to pay up all arrears of contribution, with interest, from the date of their induction. On Feb. 18, 1836, ¹ the Court, by a majority, held that Mr Gordon was “entitled to be admitted and received as a contributor to the Ministers' Widows' Fund;” and afterwards, on November 14, 1836, ² found him liable as a contributor from the date of his induction, which was in 1829, with interest on arrears. On this last occasion, one of the Judges (Lord Balgray) who had been in the majority when the first judgment was pronounced, took occasion not merely
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¹ Ante, XIV. 509.

² Ante, XV. 15

to state that he regarded the question involved in it as being attended with great difficulty, but that he had come to entertain great doubt as to the soundness of the judgment which had been pronounced.

The question involved was of great importance to the Ministers Widows' Fund, and, in the peculiar circumstances above stated, fresh actions were brought for the purpose of having the point authoritatively settled, and asking a judgment of the whole Court in determining it. The Rev. Alexander Robertson Irvine, of Foss, and the Rev. James Pearson, of Kilmenny, who were two of the Parliamentary ministers, were pursuers of these actions, and they concluded against the Trustees of the Ministers' Widows' Fund, for declarator of their right to be admitted contributors. Defences were lodged, and cases were ordered, with which great avizandum was made by the Lord Ordinary to the Judges of the First Division. Their Lordships directed a hearing of one counsel on each side, to take place in presence of the whole Court, before whom the cases were also laid. ^*

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^* In this discussion, the statutes founded on were more minutely analyzed than formerly; but as a very full report of the discussion, with extracts from the statutes, has already been given, and the point discussed was precisely the same as that already reported, a reference to that report ¹ will render an abridged statement of the pleadings all that is requisite in the present instance.

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¹ Ante, XIV. 509. 3 T

The defenders, in addition to the clauses of the statutes referred to in the former report, founded also on § 66, of 19 Geo. III. c. 20, which enacted that all Presbyteries should make up lists of “all the ministers admitted into benefices within their respective Presbyteries”—“and also a particular list of the ministers of the Presbytery, who shall have died within the year”—and also “lists of all the vacancies happening within the said Presbyteries.” These lists were to be duly attested by the moderator and clerk of the Presbytery, and annually transmitted to the clerk of the Trustees of the Widows' Fund. As the preparation and transmission of the lists in question were directed with a view to the preparation of lists, by the Trustees, of the parties entitled to the Fund, the defenders contended that the clause was important, along with the other provisions in the statute, as it not only implied, but expressed, that the persons whose names were to be inserted in the list of deaths, were all to be “ministers of the Presbytery.” But, under the statute, 5 Geo. IV. c. 90, the Parliamentary ministers were not made, and could not be, constituent members of any Presbytery, and therefore did not fall within the statutory description of the persons entitled to the fund.

In general the defenders pleaded, (1.) that, apart from the act of Assembly, the action was unfounded. Although the word “benefice” as used in the statutes, describing a contributor as a minister “ordained and admitted to a benefice,” was not to be taken in its strictest sense, yet that word was never used in the law of Scotland except in connexion with a parochial office and cure. ¹ And so far from any parish being given by statute to the Parliamentary ministers, they were expressly declared to have none. Besides this, it was a fundamental and essential principle of the Presbyterian Church of Scotland, that there should be perfect parity among all the ministers of the Church, and no pre-eminence amongst them, of one individual over another. Whereas by the statute, a Parliamentary minister was not on a footing with other ministers, as he had no kirk-session; no right to exercise church discipline; no status as a member of any church court; and was merely appointed to a preaching station, in a particular locality, where he was necessarily under the ecclesiastical authority of the minister and kirk-session of the parish where his preaching station lay. A class of ministers of this description stood in an anomalous position, and certainly were not on that footing of Presbyterian parity, without which they could not be viewed as ministers of the Church of Scotland, in the proper and constitutional sense of that term, in which sense alone it was used in the statutes regulating the Widows' Fund. And on a closer examination of the statute 5 Geo. IV. c. 90, under which they had been called into existence, it appeared that their whole institution was of an anomalous character, which separated them by a broad line, from the parochial ministers of the church. Thus the proceedings for designing a district for a “Place of Worship,” might commence on an application by heritors to the Parliamentary Commissioners, without the concurrence of the Presbytery; if the heritors and Presbytery did not agree as to the district, the Sheriff might fix it, even in the face of opposition by the Presbytery; the Commissioners might fix the size of the building for the “Place of Worship,” without consulting the Presbytery; no burden for repairing it was laid on the heritors, except in reference to such agreement as might be undertaken by them; the pew rents were put under special regulation, and declared applicable to the repairs of the church; a power of fixing the seat-rents was given, in a certain event, to the Sheriff; and, besides various other anomalous regulations as to the collection at the church door, &c., the minister was declared to possess no church discipline, to have no kirk-session, and to be a member of no church court. The whole body of these regulations, partaking so largely of a civil and non-ecclesiastical character, indicated clearly that the Parliamentary ministers, when admitted to the pastoral office, and appointed to a preaching station within a given district, but without having any parish, and being affected by the other provisions above quoted, formed a separate and anomalous class, who did not fall within the description of ministers “ordained and admitted to benefices
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¹ 2 St. 8, 15, &c.—1581, c.102—1584, c. 132—1584, c. 133.

in the Church of Scotland,” in the sense of the statutes regulating the Widows' Fund. These views were strengthened by the terms of § 25 of 5 Geo. IV. c. 90, which declared that, in adjudicating on the civil and patrimonial interests of Parliamentary ministers, regard was always to be had to the fact that their district was not a separate parish, and that they had no kirk-session. In disposing of the present question, therefore, and due regard being had as thus required, the pursuers were not entitled to become contributors under the statute 5 Geo. IV. c. 90. And accordingly, it was universally so understood in practice, as no Parliamentary minister claimed admission to the Widows' Fund, until after the Act of Assembly, 1833.

(2.) That Act of Assembly could not aid the pursuers. It was only a civil and patrimonial interest which was here in question; and unless it was conferred on them by the statutes, it could not be conferred by any Act of the Church. ¹ But farther, that Act was irregular, and ultra vires, as it was not in the power of the Assembly to erect parishes quoad sacra. The Church should have had recourse to Parliament, or to the Teind Court, in order to carry through a procedure which affected important civil interests, and altered materially the composition of the Church Courts themselves. ²

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¹ For the farher argument on this head, see former report, XIV. 157.

² Connell on Par. 84, and 107.

The pursuers answered, that, whatever anomalies might be pointed out in the statute 5 Geo. IV. c. 90, the only question to be decided was, whether they were ministers “ordained and admitted to a benefice in the Church of Scotland.” If they were so, then they were within the benefit of the Widows' Fund, according to the description uniformly given, in all the statutes, of the persons entitled to that benefit. (1.) As to the statute, 5 Geo. IV. c. 90, independently of the Act of Assembly. Each of the pursuers was ordained to the pastoral office, and inducted. He enjoyed a “benefice” in the sense in which that word was well understood in the practice of the country, and in which it was used by the most eminent legal authorities. ³ The term was undoubtedly so used in the statute regulating the Widows' Fund, and had been always so understood in practice. A large class of the ministers of the church, who had always hitherto been contributors, would be at once disqualified, if any sense was ascribed to the term “benefice” so restricted as not to reach the Parliamentary stipend payable to the pursuers, and the other emoluments provided to them in respect of their ecclesiastical office. The provision for the Parliamentary ministers, was of a permanent kind. But if the pursuers were ministers, admitted and ordained, and holding permanent benefices in the Church of Scotland, they were
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³ 2 St. 8, 29–1 Ersk. 5, 23—Magistrates of Strling, Feb 24, 1837 (ante, Xv. 657).

expressly within the description of persons to whom the statutes gave the right to become contributors.

2. If any doubt could have existed prior to the Act of Assembly 1833, it was removed by that act, which declared the Parliamentary ministers to possess every right and privilege competent to parish ministers, erected their respective districts into parishes quoad sacra; gave them kirk-sessions and declared their right to be members of all church judicatories. ¹ It thus came in supplement of the statute, and clothed the pursuers with all the right and status which any minister of the Church possessed. And that act, as it related only to spiritual and ecclesiastical matters, was clearly within the power of the Church, ² which could erect new parishes, quoad sacra, without the interposition either of Parliament or the Court of Teinds.

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¹ See farther argument, ante, XIV. 516.

² 1 Ersk. 5, 23—2 St. 8, 27—Forb. on Tithes, c. 4, § 10—Connell on Par. 85, 86, 87, & 105 to 110—Haddington, Nov. 18, 1680 (9901).

On considering the Cases and pleading, the following Opinions were viva voce delivered.

Lord Justice-Clerk—This is a very important question, and it is attended with considerable difficulty. In disposing of it, we should keep in view the scope and object of the statutes regulating the Widows' Fund, which proceeded upon minute calculations made before-hand, the results of which might be very seriously affected by the judgment of the Court in this cause if the claim of the pursuers was sustained. In regard to the use of the term “benefice,” I am satisfied it is not to be limited to a parochial benefice, the income of which is derived from teinds, but in a larger and more general sense; and were it not to be so construed, a large number of contributors, whose right has never been disputed, would be disqualified. But I see that the term is used by Stair as synonymous with stipend, in the passage quoted by the pursuers, and also where his Lordship is treating of the Annat of the “benefice or stipend.” ³ And on this view the fund has all along been administered. The ministers of Edinburgh have been admitted to it though not paid out of the teinds; so have the ministers of many other burghs who were not paid out of the teinds; and the second and third ministers in country parishes have also been admitted to the fund whether paid out of the teinds or not. The only question on that point has always been whether the benefice was of a fixed or temporary nature. In the present instance, a permanent income of £120 has been settled on the pursuers, so that I view them as holding a permanent benefice. But that does not decide the whole question. On reading the entire statutes together, I am satisfied that the benefice must be possessed by ministers of the Church of Scotland holding parochial charges, and in the full possession of all the rights, as well as in the discharge of all the duties, of parish ministers. But under the statute 5 Geo. IV. c. 90, the Parliamentary ministers, appointed to specific districts, were so limited in their functions, powers, and duties, as to be separated by a broad line of distinction from the ministers of the Church of Scotland having

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³ 2 St. 8, 34.

parochial charges. The Parliamentary ministers were to be ordained and admitted by the laws of the Church, and they were to discharge within their respective districts the duties of a minister of the Church, “save and except the right and duty of church discipline.” The district might he defined, I may almost say privately, by arrangement between the heritors and the Presbytery; and it was expressly declared that such district was not disjoined from the parish in which it was locally situated, but remained an integral part of it. No kirk-session was allowed to the Parliamentary ministers. The elders who were to assist them were to be delegated by the session of the parish to which they belonged; they had no authority excepting as members of that session, and at its meetings it was not even provided that the minister should himself be a member of that session, though not the moderator of it. He thus had not the means of exercising all the functions of a minister within his district, being debarred from some which were of great importance. I, therefore, do not hold that Parliamentary ministers fall within the description required by the statutes. And it appears to me material also to notice the very slender provision made for these Parliamentary ministers, who are classed so much below the minimum provision of parochial ministers, as being another circumstance making a marked distinction between them, and showing that the Parliamentary ministers formed a class by themselves, and do not fall under the class contemplated by the statutes regulating the Widows' Fund. It was true that they were declared by 5 Geo. IV. c. 90, to be in full communion with the Church of Scotland; but that did not take away the effect of the other clauses already noticed. And, supposing the converse of the present case to have occurred, and an action to have been raised by the defenders for compelling the pursuers to become contributors, I think that action could have been successfully resisted. But as the liability to contribute, is co-ordinate with the right to be a contributor, I must also hold that the present action is ill-founded.

The only other question is, whether the Act of Assembly 1833 conferred the right on the pursuers, though they bad it, not before. I am clearly of opinion that it did not. It did not even remotely affect the present question. Supposing that the General Assembly wished to countenance the Parliamentary ministers in any way they thought proper, their act could not have the slightest effect on the civil rights of parties. As to the mode of dividing parishes which has hitherto been practised, it appears to me that the common course has been for the Church to recommend an application to be made to the Teind Court, or to Parliament, where parishes were to be divided. But at any rate, in a question of civil right like the present, the Act of Assembly cannot be pleaded to any effect: it could neither give the civil right nor take it away.

I am, therefore, of opinion that the pursuers are not entitled to become contributors to the Widows' Fund. But on taking the whole circumstances into consideration, there would appear to be materials which it would not be improper to submit to the Legislature, in order to have this subject placed on a proper footing; and if an application were made to Parliament, I cannot doubt that the whole matter would be regulated on an equitable footing.

Lord Glenlee concurred with the Lord Justice-Clerk.

Lord Meadowbank also concurred. In stating the grounds of his concurrence, his Lordship in particular adverted to the circumstance, that the Widows' Fund acts were based on the result of nice and complex calculations, and, inter alia, that it must have been in the view of the parties who obtained these acts, that, although the number of ministers might be from time to time increased, yet the only increase for which they were bound to allow in their calculations, was an increase according to the known law of the land. In particular, it was not to be assumed that Parliament would create a whole class of new men, and intrude them on the fund, upon terms more disadvantageous to the fund, than those terms on which the existing contributors had acquired their vested rights in it. This would be the case, however, in various particulars, if the Parliamentary ministers were admitted to the fund; and, among others, because, under the statute regulating them, no vacant stipend could accrue on the decease of a Parliamentary minister, whereas all the vacant stipends of other ministers, so far as previously applicable to pious uses, were now paid to the Widows' Fund, and formed an important item of its annual income. Keeping these things in view, it remained for inquiry whether there were any words in the statutes such as to compel the Court to admit the claim of the Parliamentary ministers, though contrary to what must be presumed to have been the equitable intention of the statutes.

On examining the statutes, his Lordship took a view similar to that of the Lord Justice-Clerk, and observed farther, that it seemed to be doubtful, in reference to the terms of the statute 5 Geo. IV, c. 90, whether it would be competent, even for the Teind Court, by regular process, to declare the Parliamentary districts to be separate parishes.

His Lordship thought that the defences should be sustained.

Lord Mackenzie.—I retain the opinion which I delivered in the previous action. ¹ I think the pursuers, as ministers admitted under the statute 5 Geo. IV. c. 90, have right, on the one hand, to contribute to the Widows' Fund, and are liable, on the other, to the burden of contributing. The whole statutes regulating the Widows' Fund, however they may vary in other respects, agree in the definition which they give of the persona who are entitled and bound to be contributors. It is of little moment to enquire into the views and calculations on which these statutes were framed, unless some ambiguous expressions occurred in them, the interpretation of which could be aided by such inquiry. But nothing of the kind occurs here. The words are plain and unambiguous. The persons entitled to be contributors are “all ministers, ordained and admitted to a benefice in the Church of Scotland.” It is farther provided that the benefice must not be of a temporary nature. This leaves the single question to be, whether the Parliamentary ministers under 5 Geo. IV, c. 90, are within the statutory definition. Have they benefices of a permanent nature, and are they ministers of the Church of Scotland? I own that I can see no ground on which it is possible to doubt that these questions must be both answered in the affirmative; and if so, the pursuers are within the benefit of the Widows' Fund. 1. Are they ministers of the Church of Scotland? I can entertain no doubt that they are. It would even seem to me to be strange to doubt it, in the face of the provisions of the statute 5 Geo. IV. c. 90. That statute not only provides for the erection of a church which is to be for ever appropriated as such, but also for setting off a specific district, containing a population, which is permanently annexed to the Church. Within that district the whole

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¹ Ante, XIV. 519, and XV, 17,

cure of souls, and administration of Christian ordinances, such as baptism and marriage, were to be performed by the Parliamentary ministers. And the statute provides for their being ordained and admitted according to the laws of the Church, and declares them to be in full communion with the Church of Scotland. Assuming then that they are unquestionably ministers of the Church of Scotland, the only remaining point is (2.) Whether they hold benefices of a permanent nature in the Church? That seems to me to be just as clear a point as the other. Indeed none of the opinions which have hitherto been delivered have expressed any doubt as to this. I at one time thought, that, perhaps, under the canon law, they might not be considered to hold proper benefices, but I now think otherwise. Even under that law I apprehend that it is not necessary that the emolument should be derived from teinds, or out of any grant which has been made to the Church in the abstract. It seems to be enough if the emolument derived from goods belonging to the Church, and bestowed on account of an ecclesiastical office, be granted to a party as a churchman, in respect of his office But however that may be under the canon law, there is no doubt as to the use of the term “benefice” in the Church of Scotland. The greater part of the ministers of Scotland are provided merely with stipends, payable not out of the property of the Church, but out of that which formerly was its property, until it was taken away by Parliament, and given to the King and laymen. The statutory or Parliamentary ministers, the ministers deriving a stipend out of the tenuis, and the burgh ministers, are all beneficiaries alike. And this being the case, I do not see any sufficient ground for excluding the Parliamentary ministers from the definition of the statutes, and holding that they are not within the benefit of the fund. The ground on which the opinions which have been just delivered seem chiefly to rest, is that the pursuers were not made parochial ministers. But the question here is as to the application of statutes, and I do not see within these statutes, any such exception as this. I do not see one word in the statutes requiring that the ministers must be parochial ministers. It may well be that none but parochial ministers were contemplated in the statutes regulating the Widows' Fund; the Parliamentary ministers could not possibly be so, as they were not then in existence. But if the words of these statutes clearly include the Parliamentary ministers, so soon as they come into existence, they are entitled to claim as they now do. There is just one exception specified in the statutes, and that serves to show how strong and general the rule is, to which it was thought necessary to make that specific exception. I refer to the case of assistants and successors, as to whom it was declared by 17 Geo. II. c. 11, that they “shall, as to all the purposes of this act, be held as admitted to a benefice in the Church of Scotland, only from the time that any such assistant is or shall be married, or when he shall come to have full right to the benefice.” Thus, as soon as an assistant married, he was no longer excepted, though still a mere assistant and not enjoying the benefice. It was only afterwards that the exception was enlarged be as to exclude assistants from contributing to the Widows' Fund until they actually succeeded to the full benefice, although till then, they had no actual benefice but merely the hope of one. If all the ministers, not parochial, were meant to be excepted, I think the exception would have been expressed. And although it may not have been the intention of 5 Geo. IV. c. 90, to place the Parliamentary ministers on the Widows' Fund, there being very probably no intention on this point either one way or another, still, if that statute provided for their being made ministers having permanent benefices in the Church of Scotland, it positively placed them within the benefit of the Widows' Fund. As to the fact that no vacant stipend can accrue to the Widows' Fund on the death of the Parliamentary ministers, I do not ascribe much weight to it, in deciding on this question. No vacant stipend or salary arises on the death of the Professors in Universities who are also contributors. It is but lately ¹ that the Legislature most liberally bestowed vacant stipends on the Widows' Fund, and it was entitled, without injustice, to withhold vacant stipends as to the new Parliamentary ministers. But, at worst, the not doing so, was only an omission which did not warrant the rejection of the pursuer's claim, if it were otherwise well founded. There is a clause in 5 Geo. IV. c. 90, which seems to touch on this matter where it is provided, § 25, that “all questions respecting the rights of the ministers, &c., or regarding their civil and patrimonial interests, &c., shall be judged of and determined according to the law of Scotland respecting the rights and interests of parochial clergy,” regard being always had to two special points, that their districts were not separate parishes, and that the elders assisting them did not along with them, form a kirk-session. But, under these two very limited and express exceptions, their rights and interests quoad ultra are to be judged of just as the rights and interests of the parochial clergy. Now it would seem to me to be very difficult to deny that this question of a liability to a call for contribution, and a right to insist on the benefits of the Widows' Fund, is within the description of the “rights,” or “civil and patrimonial interests” of the Parliamentary ministers, and so falls to be judged of just as the rights and interests of the parochial clergy would be. But I do not rest much on this view, as it was not insisted in at the debate.

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¹ 54 Geo. III. C. 169—See also 50 Geo. III. C. 84, § 18

In regard to the effect of the Act of Assembly 1833, it is unnecessary for me to say any thing, as I consider that the right of the pursuer is well founded, under the statutes, independently of that act.

As to the date from which the liability for contributions begins, I remain of the same opinion which I expressed when the former cause was before the First Division of the Court. I think it is from the date of induction.

Lord Corehouse intimated that he concurred with Lord Mackenzie. His Lordship then delivered an opinion, in the course of which he observed, that the statutory definition of the class of persons entitled and bound to contribute to the Widows' Fund, was plain and unambiguous, so that no room was left for construction. All inquiry as to the calculations on which the statutes proceeded was irrelevant; but it might be observed that there was no evidence before the Court to show that the addition of a new class of contributors, all liable to the same rates as the previous contributors, would materially disturb or injure the calculations on which the Scheme of the Widows' Fund was founded. The whole question appeared to be whether the pursuers were ministers of the Church of Scotland, and whether they held benefices therein, of a permanent nature. They were undoubtedly ministers of the Church of Scotland, and it was equally clear that they held such benefices. Ever since the middle of the 12th century, and according to the canon law, as well as the law of the Church in Scotland, both during Episcopacy and Presbytery, the term “benefice” had just one signification, being a right to a share of the patrimony of the Church, whether the emolument arose from teinds, or lands, or voluntary subscription, if the' fund were permanently appropriated to the Church. In this sense the word was used by Stair, Bankton, Erskine, and every other writer. Some benefices were held cum cura animarum, others were held sine cura. Some benefices were held by the regular, some by the secular clergy; some were appropriated to bishoprics, abbacies, priories, and provostries, and the same term was applied to the minor endowments of chapels and altarages. Benefices were often disjoined from any office, as for example the Lords of Erection were beneficiaries, but without any office. Keeping in view the general application of the term benefice, there could be no doubt that the pursuers held benefices, which were of a permanent nature, the fund being dedicated by Parliament for ever to the Church. And they farther enjoyed a house and garden, though that was immaterial. There were many instances of ministers in the Church of Scotland, which had been already alluded to, and who had been always admitted to the fund, yet who could not be considered beneficiaries if the pursuers were not so.

Lord Corehouse farther added, that, as to the pleas of the pursuers being excluded as not being “parish” or “parochial” ministers,—their not being members of Church Courts—their status being characterised by various peculiarities, &c.,—none of all these had any foundation in the statutes regulating the Widows' Fund. And though the vacant stipends of the Parliamentary ministers had not been granted to the Fund, these were not originally granted at the institution of the Fund, but only recently by the statute 54 Geo. III. c. 169; and after so large a donation, the Legislature might, without injustice, refrain from a grant of vacant stipends of the Parliamentary ministers. In regard to the “lists” which were to be furnished by Presbyteries to the Trustees of the Fund, it did not appear that these were limited to members of Presbytery. In various other points Lord Corehouse concurred with Lord Mackenzie, and concluded by observing that he laid the Act of Assembly entirely out of view as not affecting the question; and that he thought the pursuers' liability for their rates must commence from the date of their respective inductions, though the hardship to which they might thus be exposed, might, perhaps, in the circumstances, warrant an application for a special legislative remedy.

Lord Medwyn concurred with the Lord Justice-Clerk.

Lord Moncreiff also concurred with the Lord Justice-Clerk, and observed that it was necessary to look, not merely at the single word “benefice,” or at a single isolated defiintion in the statutes, in order to discover who were included in the benefit of the Widows' Fund. A general view of the statutes required to be taken; and from this it appeared that with reference to the object of the statutes, and the principles and calculations on which they proceeded, the persons there defined as ordained ministers, having permanent benefices in the Church, were ministers having a full cure at the time, according to the existing state of things. These terms could not be applied so as to include a very different class of ministers, subsequently created, whose admission would be dangerous and detrimental to the Fund. Even as to the assistants and successors, who were admitted to the Fund in the terms specified in the acts, these were still persons duly ordained to a cure of souls, and who were members of the kirk-session and of other Church Courts, in the absence of their principal. They were essentially distinct, therefore, from the Parliamentary ministers. It was not necessary to go out of the statutes in order to perceive that they were founded on nice and complex calculations, reference being made thereto on the face of the statute 19 Geo. III. c. 20, § 2, and other sections. Even by the first statutes, vacant stipends were liable to contribute, to a certain amount, annually to the Fund. That Fund was an existing, private, civil institution; and although it was difficult to set limits to the power of Parliament, it might perhaps be doubted whether Parliament could summarily pass an act, introducing, per aver-sionem, a class of above forty persons on such a fund, upon terms injurious to the fund, and without consulting those interested in it. At least it was clear that, in practice, the Legislature would never design to do so.

His Lordship thought that the Act of Assembly had little or nothing to do with this question; also that § 25, of 5 Geo. IV. c. 90, especially when explained by the relative § 23 and 24, was not material; and that it rather appeared that the Court had the power to declare the Parliamentary districts to be parishes, by process in common form, but it was not necessary to go into this.

His Lordship also added that, though unwilling to go into the Act of Assembly, he did not doubt that the Assembly possessed a power to make purely spiritual parishes; but that, had the Assembly supposed their act was to bring this whole class of ministers on the Widows' Fund, they would have undoubtedly consulted the Trustees of the Fund before passing the act, which they did not do. But if on due inquiry into all the circumstances, it seemed expedient that the Parliamentary ministers should be entitled to the benefit of the Fund, application should be made on the subject to Parliament.

His Lordship stated, in conclusion, that if the pursuers were entitled to become contributors, he thought their liability began from the date of their induction.

Lord Fullerton concurred with Lord Mackenzie and Lord Corehouse. His Lordship rested the right of the pursuers upon the statute, and thought it therefore unnecessary, and unadvisable, to inquire into the effect of the Act of Assembly.

Lord Jeffrey—I concur with those Judges who are of opinion that the pursuers did not acquire the right, or become subject to the liability, to become contributors, by force of the statute 5 Geo. IV. c. 90. It is true that they have a “benefice,” of a permanent nature, in the sense of the statutes regulating the Widows' Fund; but on looking to the whole purview and provisions of these statutes, I am satisfied that the ministers of the Church, included therein, were ministers possessing all the privileges and rights of parochial ministers, having a cure of souls, a fixed flock, a kirk-session, the power of Church discipline, the right to sit as a member in Church Courts, and in general, all other rights and powers belonging to the character and status of parochial ministers. Under the statute 5 Geo. IV. c. 90, the pursuers fell far short of this in various particulars already specified. And in addition to this it appears to me, that, in various passages of the Widows' Fund Acts, there are terms used which expressly import that the contributors to the Fund are, all of them, members of their respective Presbyteries, which the pursuers could not be under the statute 5 Geo. IV. c. 90; and in the formula annexed to 54 Geo. III. c. 169, which was intended to apply to all ministers who were contributors, the words are “I, A. B., minister of the parish of, &c.;” thereby expressly importing that parish ministers were necessarily alone contemplated.

But it appears to me, that, if the statute 5 G. IV. c. 90, in place of stopping short as to various important ecclesiastical privileges and functions, had expressly enacted that the ministers who should be ordained under it, should be members of all Church Courts; that their districts should be separate parishes quoad omnia; that they should have kirk-sessions, and the power of Church discipline, and all other privileges of parish ministers, there could be no doubt of the pursuer's right and liability to contribute to the Widows' Fund. The Legislature did not do this, but neither did it at all prohibit this from being done by the Church, if the Church possessed inherent power to do it. The Legislature seems merely to have refrained from any encroachment on the province of the Church, and to have stopped short at that point at which the subsequent Act of Assembly begins. The statute omitted nothing as to the rights and status of a minister, which the Act of Assembly did not supply, and it may be truly viewed as coming in supplement of the statute. If, therefore, the act be not ultra vires of the Church, it would appear that the Parliamentary ministers were thereby completely brought within the provision of the Widows' Fund Acts. Even if the consequence of this should be, to disturb the calculations of the scheme of that fund, that is a consideration which may be submitted to a Parliament, but is not for a Court of Justice.

In regard to the question whether the Church had power to pass the Act of Assembly in question, I feel that it is attended with considerable difficulty. But, viewing it as an act importing a purely spiritual arrangement, which confers on a class of ministers of the Church a right to participate in purely ecclesiastical functions and privileges, I desiderate any sufficient authority for denying the power of the Church to pass it. I do not see how it can be disputed that the Church had power to declare these ministers to be members of the respective Presbyteries, and of all Church Courts. And as little can I doubt its power to say, which of its own members should have the cure of souls in the several districts in question. The statute 5 G. IV. c. 90, does not seem to me to contain any prohibition against the erection of these districts into parishes: it merely declared that, huc usque, the districts should not be disjoined from their several parishes by the mere force of the statute, but left it, I conceive, within the competency of the Church to declare them spiritual parishes, without infringing in the least upon the statute. And as to a division of parishes by the Teind Court, I may observe that it seema to be doubtful whether that Court can do so, quoad sacra tantum.

I am of opinion, that, from the date of the Act of Assembly the Parliamentary ministers were within the provisions of the Widows' Fund Acts, and that both the right, and the liability, of the pursuers to become contributors to the fund, arose from the passing of that act.

Lord Cockburn concurred entirely with Lord Mackenzie.

Lord Cuninghame delivered an opinion concurring with the Lord Justice-Clerk, and the Judges who were for sustaining the defences. In the course of his opinion his Lordship observed, that, considering the very general application of the term “benefice,” and the great number of new churches which were lately erected or were now in progress, the decision of the Court, if it admitted the pursuers as contributors to the Widows' Fund, would probably go much farther that was now in the contemplation of any party. And that circumstance went to show that such decision would truly be inconsistent with the Widows' Fund Acts, and would introduce a set of contributors, such as not only were not contemplated, but such as were not truly within the words and meaning of these acts. His Lordship also intimated that he entertained the strongest doubts as to the power of the Assembly to erect parishes, though quoad sacra tantum, because such erection necessarily and directly affected various important civil interests.

Lord Gillies delivered an opinion concurring with the Judges who were for sustaining the defences. In the course of that opinion his Lordship observed that the Act of Assembly could not affect the case. If the civil right, claimed by the pursuers, was conferred by the statute, the Act of Assembly could not have taken it away: and if it were not conferred by the statute, as little could the Act of Assembly bestow it. Farther, although the word “parish” or “parochial” minister, was not expressly inserted in the Widows' Fund Acts, the full import of it was there, because there were none but parish ministers then in existence; and the sense of the words which were actually inserted in the acts would have been neither stronger, nor weaker, at the time they were used, though the addition of the word “parish” or “parochial,” or any equivalent term, had been expressly made to the designation of ministers there given. It would have been a mere unmeaning redundancy of expression, and seemed, therefore, to have been omitted. Subsequent practice had corresponded with this, as no claim was made by the Parliamentary ministers, until they understood they were made parish ministers by the Act of Assembly. So far as regarded the present question, that act could not have any effect; and, on the whole, it seemed clear that the defences should be sustained.

Lord President.—As I have entirely altered the opinion which I formerly expressed on the points involved in this cause, I waited to hear the opinions of your Lordships before delivering my own. I formerly held that the Parliamentary ministers were entitled to become contributors, and that they were liable for their annual rates from the date of the Act of Assembly. In both points I am now satisfied I was not well founded. In regard to the civil rights of Parliamentary ministers, it is necessary to look to the provisions of the statute 5 G. IV. c. 90, under which that class of ministers was called into existence. On examining that statute it would appear, that these ministers were not brought within the provisions of the Widows’ Fund Acts, being separated by many important peculiarities from the “ministers, ordained and admitted to a benefice in the Church of Scotland,” to whom these acts applied. Even the title of the statute 5 G. IV. c. 90, imported that it is not passed for the building of “churches,” but of additional ‘Places of Worship;” and these were spoken of (§ 3) as being to be placed within certain existing parishes, pertaining to parish churches already erected, so that these Places of Worship were broadly distinguished from being themselves parochial churches. Again, as to the personal accommodation of the ministers, nothing was said as to “manses,” and “glebes,” the well-known technical words of the law, but it was a dwelling-house, or place of residence which was to be provided for the minister; a phrase previously unknown to the law, and which was resorted to for the purpose of avoiding the familiar and significant word “manse.” And as to garden, or glebe, the provisions were also broadly distinguished from those which were made by the law, for the parochial clergy. Then the “district” which was to be allotted as the sphere of their labours, was not directed to be designed, or set apart, according to any forms known in the law of Scotland, or its Courts, but entirely according to a new process, created by the statute itself for the occasion. If the heritors and presbytery agreed, they might mark off the district, if not, the sheriff had power to do so. No province was assigned by the statute to the Teind Court, or to the Assembly quoad sacra, to interfere in this allotment. The district given was a mere Parliamentary district, created by the statute for certain specific purposes. The minister who was to officiate within that district, was to have no kirk-session; no power of church discipline; no right to be a member of Church Courts. These were all important characteristics separating them from the parochial clergy. The power of church discipline, of censuring, and, if necessary of excommunicating delinquents, was essentially inherent in the office of the parochial clergy, and necessary for the good of the Church. But the Parliamentary ministers had none of that power, and even seemed to be amenable, not to the jurisdiction of presbyteries alone as parochial ministers were, but to that of the kirk-session of the parish within which they resided and officiated. Under the statute 5 G. IV. c. 90, it therefore appeared that the pursuers were not entitled to prevail in their action: and the Act of Assembly could not, in this question, avail them. It was a very anomalous act, introducing a material change in the constitution of the Church, making additional ministers in the presbyteries, and thereby affecting the number of members returned by each presbytery to the General Assembly. Unless that act was passed after due observance of the forms required by the Barrier Act, it would seem to be invalid even according to the constitution of the Church itself. But supposing that the Church possessed full power to declare the several districts to be parishes quoad sacra, and to clothe the Parliamentary ministers with the whole rights and status of members of the Church Courts, and that such power had been duly exercised, still it would not have the least effect in conferring upon the Parliamentary ministers any civil right which they did not before enjoy. The institution of the Ministers' Widows' Fund was just that of an insurance office, of a peculiar kind, and assuredly the Act of Assembly could not be allowed to have the effect of intruding a new class of contributors on that fund, who were not authorized by any statute to become contributors. Even Parliament itself would have just as much right to foist in a set of contributors, upon any of the common Life-Assurance Offices, as to foist in the class of Parliamentary ministers on the Widows' Fund, without those parties having been at all consulted who had vested interests in that fund. Let the Church, therefore, confer upon the Parliamentary ministers whatever spiritual and ecclesiastical privileges it was in its power to confer, that would not, in the least degree, bestow on them civil rights which had not been conferred by the statute under which they had been called into existence.

I am of opinion, therefore, that the pursuers are not entitled to become contributors to the Widows' Fund: and although, in these circumstances, it is not necessary to consider from what date their liability for annual rates would commence, if they were entitled to be contributors, I think it right to add, that, in my opinion, their liability would commence from the date of their induction.

The Court then sustained the defences, but found no expenses due. The Judges composing the majority were, the Lords President, Justice-Clerk, Glenlee, Gillies, Meadowbank, Medwyn, Moncreiff, and Cuninghame. The Judges in the minority were, the Lords Mackenzie, Corehouse, Fullerton, Jeffrey, and Cockburn.

Solicitors: J. Robertson, W.S.— H. Inglis, W.S.—Agents.

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