ton shows

that the pursuers is the Veto

claim of the

to have, not

law merely,

but the call illegal.

declared

1838. which they are rested and the terms of the summons, I CHAP. VIII. think these inferences are inevitable: That the presentee in Lord Fullerthis case was rejected on the ground of the insufficiency of the call, and that your lordships are called upon to declare the illegality of that rejection, on the ground that no call or concurrence on the part of the parishioners is required to support a presentation, and that no bar can be interposed between the admission of the presentation and the taking the presentee on trials, and his ordination and induction if these trials are satisfactory. That I must consider to be the question now at issue. And it is needless to state, that whether the extent of its operation be considered or its bearing on what has been immemorially treated as the law and authorized practice of the church, it is a question of the greatest importance."* Lord Fullerton was clearly of opinion, that the act of Queen Anne restoring patronage left untouched all that portion of the preceding law of 1690, which recognised the congregation's right to approve or disapprove of the presentee. But, even if this should not be insisted on, he held it to be indubitable that the uninterrupted and unvarying usage of the church in maintaining the call, even under the act of Queen Anne, and that without challenge for 150 years, made the call "as completely Maintains and effectually part of the law of the land as if such form (of a call) had been inserted expressly in the act of the 10th of Queen Anne" itself. It had been argued, indeed, by some of the judges on the other side, as well as at the bar, that the charge of illegality might stand good against the rejection of Mr. Young without necessarily involving the illegality of the call; because his rejection proceeded on the ground of the dissent or veto of the congregation. In reply to all this, Lord Fullerton showed that it was utterly incon

* Robertson's Report, vol. ii., p. 259.

† Ibid., p. 264.

the call to

be part of

the law of

the land.

simply a means of testing the sufficiency of the call.

CHAP. VIIL sistent with the summons of the pursuers, which was "quite 1538. explicit, that ante omnia and without any condition or limitation whatever, the presbytery were and are bound and astricted to make trial of the qualification of the presentee;" and that it was equally inconsistent with common sense and The Veto-law the nature of things, it being "impossible to separate the dissent from the call," the dissent being "only one of the means taken by the general assembly to determine whether a call should be sustained or not." The mere circumstance that this means of testing the sufficiency of a call had been prescribed by a standing law of the church, could not posIf the Assem- sibly make it illegal. If the assembly had a right to test the sufficiency of a call judicially in each case as it arose, it could not, as Lord Fullerton well remarked, be “ultra good call-vires of the general assembly to enact, generally and prothey could declare it spectively, that in all cases there should be exacted someby a general thing which they had a right to exact in every particular

bly could decide in each case judicially what is a

once for all

law.

case which came before them." It was obvious, indeed, that no dependence was placed on the contrary argument even by those who used it; for, as has been distinctly shown, both the counsel of the pursuers and the judges who supported their claim contended for the absolute nullity of the call, judging evidently that on this footing alone could their charge of illegality against the church's proceedings be made good. "When I look, then," said his lordship, summing up his views as to the alleged illegality of Mr. Young's rejection, "to the very general terms of the act of Queen Anne, directing how presbyteries are to admitat the principles immemorially held by the church against 150 years, intrusion, meaning by that, settlements independent of the concurrence of the people-at the constant practice, since demon- the act of Queen Anne, of never dispensing with a call, on which the ecclesiastical courts were sole judges-when I call. look at the numerous instances in which presentees have

The practice

of the Church for

unchalleng ed in any civil court,

strates the

legality of

the right of

crieff takes

view.

1838. been rejected on the ground of the insufficiency of the call, CHAP. VIII. and find that, in no one instance has there been any challenge by patrons or presentees in a civil court, either of such rejection or of the form requiring a call as a condition superadded to the presentation,-I cannot avoid the conclusion that the requisite of some concurrence on the part of the parish, of which the sufficiency is to be judged of exclusively by the church courts, is, by law, part of that form of the admission of ministers, according to which alone presbyteries are bound to admit the presentees of patrons."* Lord Moncrieff concurred with Lord Fullerton in his interpretation of Lord Monthe act of Queen Anne, and held it to leave untouched the the same right of the congregation to approve or disapprove. At the same time, like Lord Fullerton, he was thoroughly satisfied that, independent of that consideration, the matter was "absolutely closed and settled by the practice ever since the date of that statute of Queen Anne." Lord Jeffrey was of the same mind with Lords Moncrieff and Fullerton as to the meaning of the act of Queen Anne. That act declared that with the exception of transferring the initiative, the right of presentation, from the heritors and elders of the parish to the patron, the admission of ministers was left to proceed "in the same manner as persons presented before the making of this act ought to have been admitted." To say, as was said on the other side, that "before the making of this act," of 1712, must be understood to signify, before the making of a totally different act, that, namely, of 1690, appeared to Lord Jeffrey to be "altogether extravagant." Nor is there anywhere, I believe," added his lordship, "an example of such a perversion of clear and unambiguous expressions being suggested." Even admitting the extravagance, however, the

46

Robertson's Report, vol. ii., p. 270.

Ibid., p. 386.

Lord Jeffrey's the act of

remarks on

Queen

Anne,

the call had

questioned

CHAP. VIII. unchallenged practice for a century and a half of the church 1838. courts was enough in his judgment to decide the question in dispute. "When I consider," said Lord Jeffrey, "how much painful discussion and costly litigation took place for the better part of a century upon this very subject of the sufficiency or insufficiency of calls, and how many parishes were left vacant and destitute for a long course of years in consequence, I confess it is impossible for me to believe that it really was all this time in the power of any one patron or presentee to come to this court, and maintain, as I understand the pursuers do now, that the existence or sufficiency of a call was no necessary proceeding in the settlement, but a mere idle or mischievous ceremony, and that the presentee was fully entitled to go on without it. The fact that That such an argument was never started during all that never been time by any of those who had so clear an interest to mainbefore, was tain it, or by any of their learned advisers, is conclusive a clear proof in my mind against the possibility of its soundness, opposed, as it now is, by the accumulated usage and settled opinion of all the intermediate period.' Lord Glenlee, one of the ablest men and most accomplished lawyers that ever adorned the judicial tribunals of Scotland, and whose great age made him the natural representative of the views that were held on such questions by the men of a former generation, while his unabated intellectual vigour, his venerable character, and his manifest freedom from all possible bias or prepossession upon the matters in dispute, lent peculiar weight and force to his judgment, concurred in maintaining the perfect legality of what the church had done. The church, he conceived, was manifestly both entitled and bound to ascertain the fitness of every presentee for the particular charge to which he had been nominated. Acceptableness

that it had

a firm footing in law.

Lord Glen

lee's opinion.

*Robertson's Report, vol. ii., p. 388.

burn's

known

Lord Cockopinion: no period, in history of the Scottish which the maintained.

Church, in

call was not

1838. to the congregation was, by the law and practice of the CHAP. VIIL church, a necessary part of that fitness, and Mr. Young had it not. The act 1834, was simply the test by which his want of fitness was ascertained. "Upon the whole matter," said his lordship, after submitting his views, "it may be that this act is an improper act, but, for the life of me, I cannot find myself at liberty to say that the act is ultra vires." On the subject of the call, Lord Cockburn observed, "I cannot discover an accurately known period of our history in which some such call has not prevailed. I could not have been more surprised on being told that presbytery was not the church of this country, than I have been by learning that calls, except as forms, are no part of our presbytery; they seem to me to be absolutely imbedded in the constitution and in the practice of the church. The solicitorgeneral quoted some strong instances from the proceedings of the assembly for several years after the final establishment of presbytery (patronage?) in 1711, to show how efficaciously calls were then enforced. Lord Moncrieff explained how these examples were succeeded by the cases of Cromarty, St. Ninians, Glendevon, Currie, and other parishes, all showing that it never was the feeling that the call was not a real and practical thing. No doubt there came a period during which, under Principal Robertson's guidance, its efficacy was relaxed. Those who, in his day, had the wisdom to enforce the law of patronage had also the weakness to imagine that they supported patronage when they repressed every popular claim by which its abuses might be checked, and therefore they repressed the call. It may have been wise in them to do so; but though the assemblies of that day made the call as insignificant as they could, they saw that circumstances might change, and they never attempted

Robertson's Report, vol. ii., p. 359.

Lord Cock marks on the policy of Principal

burn's re

Robertson,