Tuesday, December 5th 1837. THE LORD PRESIDENT.-" DEAN OF FACULTY." THE DEAN OF FACULTY.-MY LORD-I begin without one word of preface,-assuring your Lordships that I am fully impressed with the fact that you are now engaged,—not in an historical discussion, but-in the trial of a civil action, and entreating your Lordships, if I have earned any character with you for the desire of looking to my business with business views, to give me credit throughout my argument, for the intention at least of bringing every word of it to bear practically, not only on the questions raised in this cause, but on the Conclusions in the Summons on which I ask decree. The discussion, as it has hitherto been conducted, seems to involve four general points, 1. The legality and competency of the Act by the Church, which gives to the people a veto on the patron's selection of a presentee. 2. Admitting the illegality of this act, has this Court jurisdiction to declare the wrong and the rights of the partics injured, and to give redress-to any, and to what extent and effect? 3. Admitting the illegality and the jurisdiction, does this Summons ask for the interposition of the Court in the way, to the effect, and against the parties, which the jurisdiction possessed requires and involves ? 4. Are the pursuers barred, by personal exception founded on alleged acquiescence, from insisting in a competent action with competent conclusions ? I concur with Mr Bell, that both of the latter points must be taken in this order. The mode of exercising, and the effect of, the jurisdiction, if possessed by the Court, and the parties with whom the points ought to be tried, will best be understood when the legality of the act, and the nature of the jurisdiction are ascertained; And the effect of the supposed personal exception,-which will give the Court little trouble,-can only be understood when the other points have been discussed. I shall follow the same order. Your Lordships will notice the peculiar condition of the argument as it arises on each of these points. The legality of the act of Assembly is one distinct point. But then the question as to the general jurisdiction of the Court must be argued on the assumption of the illegality of the act of which we complain, and of a great and unconstitutional usurpation of power by the Church, in a matter involving civil rights. Such must be the condition of the argument on the point as to the jurisdiction of the Court. Again, the objections stated to this par K ticular summons must plainly grant to me the general jurisdiction of the Court. It will be found to be of most vital importance in the discussion of the second and third points, to have distinctly in view the condition on which the argument of the defenders on these points must proceed. Some most important admissions have been made by Mr Bell, which it is essentially necessary in the very outset to put distinctly before the Court,-admissions made with the deliberation which the long management of this discussion, not only in this cause but elsewhere, implies, and to which his thorough acquaintance with every part of the subject attaches the greatest weight and authority. The admissions by Mr Bell were: 1. That this Court is entitled to inquire into and ascertain the law of the Church, so far as necessary to explicate whatever civil jurisdiction the Court possesses. 2. That the civil court must judge whether the point on which the Church claims the power of legislation or of jurisdiction, is spiritual or temporal, as he phrased it,—I would say ecclesiastical or civil. 3. That in all civil questions, this Court is entitled to judge whether the presentation is effectual. Mr Bell limited, I know, the consequences which are to follow from such jurisdiction of the civil court. The admission, however, of this point was distinctly made, and the Court will judge of the grounds for limiting the jurisdiction thus conceded. 4. That the Church cannot interfere with civil rights arising out of patronage. 5. Generally, the law was admitted to be settled, that the Court might hold the patron of the legal presentee entitled to the stipend and temporalities, though another has been inducted or ordained. Mr BELL,-No. That was not my admission. I admitted that the Court might withhold from the person inducted by the Church the stipend. DEAN OF FACULTY.-I accept the correction. I am willing so to word the admission, and I think that mode of stating it illustrates more strongly its importance, and more emphatically shows the extent of the jurisdiction conceded, when it goes the length of admitting as legal and settled that anomalous result, namely, that the Court is entitled to deny effect to the induction by the Church, and to withhold from the person ordained to the cure, if in their opinion illegally inducted, the right to the stipend, which forms part of the benefice. I may here generally remark, that a very slight consideration of this last admission, worded as my friend wishes, shows,-1. The extent of the jurisdiction of the civil court, and 2. The unsoundness of the argument which claims finality for the decisions of the ecclesiastical courts, in admitting, or refusing to admit, the presentee, and in granting induction,-since even the irrevocable act of induction does not establish or carry with it the effects which, on the notion of finality, it ought to have. 3. That the collision so much deprecated has taken place in the worst of all cases, after induction-not when the Court was in a situation to prevent wrong, but after induction, and even then, in this most unfavourable of all cases for your interposition, when the parties have not come to you, it might be said, in time, the Court have not even then hesitated to decide, and to give all the redress then possible. The case here is infinitely more favourable, as I shall afterwards show, for the jurisdiction we contend for. On the importance of these admissions, I presume, I need not dwell. The case has been already so fully under the view of the Court, that your Lordships will see the bearing they have on every part of the case, and the immense aid thus given me in making out the points which are contested. Before entering on the more regular part of argument, I wish to present one (comparatively) short, but in itself sufficient view of the first two questions,-viz. the Legality of the Veto, and the Jurisdiction of the Court. For convenience and precision, I will state that view in distinct propositions. I intend to show, I. That the Act of Assembly 1834, in its main principle, and on the face of its regulations, raises and disposes of questions of civil right, the determination of which belongs to the civil court, and the determination of which involves the whole question as to the legality and competency of the act, and the jurisdiction of this Court. The sweeping disposal of a question of civil right, the jus devolutum of the Presbytery, will be found to be at the root of the act of Assembly. With this proposition I propose at present to combine another, viz.II. That, on the face of the act itself, the right of peremptory rejection given to a portion of the congregation is as distinct and separate from the call, as it is unauthorized by the nature of a call, or any enactments regarding calls. I say, that the veto is, on the face of the act of Assembly, wholly distinct and separate from a call, and does not partake of its nature, or fall within the meaning of a call. I have now to call your attention to the Act of Assembly. And first, let me ask,-1. Is it legislation or not? It is surely right to know this from its defenders. It is very necessary to decide upon the character of the act-as legislation or not-for that point enters into the essence of the question as to the competency of the Church to introduce or sanction the veto. Now I doubt if the See Appen- Court are yet sure what the defenders mean to say as to this point,whether they avow the act to be legislation or not. In page 8 of the Defender's Case,-again in page 43, (the important proposition read by Mr Whigham,) and in one part, but not in every part, of Mr Bell's argument, the defence of the Veto is rested wholly on a power to legislate, claimed for the Church, to the extent of such a change. But if not legislation, then second,-Is it declaratory of Law? Then two things must be kept in view.-(1.) It is of law which must be taken in connection with the civil right of patronage, and the statutory enactments on that subject; and (2.) If declaratory of existing law, it is clear that it must then be shown not to be a new measure; for if the measure is new, and effects a change, then clear it is that the Act of Assembly cannot be declaratory of any existing law, when no such veto was previously known. Now, then, in reference to the view stated in the two propositions I have announced, let us look to this act of Assembly. Turn to Appendix pursuer's Case, p. 13. There is first the declaration," That it is a fundamental law of "this Church, that no pastor shall be intruded on any congrega"tion contrary to the will of the people.” This declaration, then, is made on the face of the act, the test of its legality. Mr Bell admits, that to explicate your civil jurisdiction, you must consider, 1. What is the law of the Church; 2. What is spiritual or ecclesiastical, and what is civil. Hence, then, let us see what are the civil questions raised on the face of this Act of Assembly? But let me ask in passing, as of great importance to both of these points, Is the term people the same as congregation or not? When and how is this term defined? What law decides and defines the portion of the people, or makes a distinction between one portion and another? "Will of the people."-This is singular phraseology, very loose, very wide, considering the subsequent limitation of the alleged rights to a specific portion of the congregation, far short of the people in any church sense of the term. To me, I own, it wears too much the semblance of that preposterous and alarming doctrine of the Divine rights of " the Christian People," which Sir Henry Moncreiff, (in the work so often quoted,) justly and strongly condemns as inconsistent with every sound principle of Presbytery, and repugnant to the whole system of its establishment in Scotland :— But I point to the phraseology in this solemn declaration, as plainly indicating some very wild or very confused notions at the bottom of this ill-advised measure, and very likely to lead its authors into extravagant excess of power when so influenced and misled. Then the Act proceeds 2. "And in order that this principle may be carried into full "effect," &c. Conceive the absurdity of putting then this measure in the form of a declaratory act. The Church found at once, that new machinery and regulations, new measures were necessary to give effect to this assertion; in other words, to give and bestow this abstract right :-Surely a tolerably strong proof that this is not a fundamental law, if, in 1834, the Church had to devise machinery, in order to let this principle for the first time work. It is not pretended that the machinery adopted is a reenactment of any corresponding regulations, or that in any one law or act a regulation exists, providing for peremptory rejection. No: The Church is above disguise as to this. Fundamental as they say the law is-now, at this date in the Church for the first time, they must contrive, invent, and introduce the form, the machinery, the way and the time-for making this law tell and operate. How strange a result. This is plain, that regulations alone can accomplish such an end as the peremptory rejection of a presentee. If there is no mode in existence of expressing or enforcing such rejection,-if there is no regulation, in short, on the subject,no rule which says the majority, or two-thirds, or one-third shall reject, it is clear that the law has not existed: that the change is as new as it is bold and sweeping. Hence, it is ludicrous to speak of a fundamental law having previously existed, if no means, power, or scheme was previously known for carrying it into effect. The very terms of the act then condemn it. This declaration of a Fundamental Law is a mere pretext. Law there can be none-when, in this very act they are obliged, for the first time, to set about devising the time and the method of exercising this power of rejection, and to settle to whom the power actually is to be entrusted. 3. The act proceeds: "In order that this principle may be "carried into full effect, the General Assembly, &c. ordain, that "it shall be an instruction to presbyteries that, if at the moderat"ing in a call to a vacant pastoral charge, the major part of the "male heads of families, &c. shall disapprove of the person." &c. "such disapproval shall be deemed sufficient ground for the "presbytery rejecting such person, and he shall be rejected accor"dingly." The terms here employed are very important: True, the time and occasion of moderating a call is chosen in order to give a colour to the new scheme: But even in the face of the Act, this right to disapprove or reject is no part of a call. The call is equally moderated, even though the veto is exercised:-And the call may be signed, aye by a great majority of the congregation, and yet the presentee may be vetoed. The Call is an expression of assent. How far actual signatures or what amount of assent has ever in the views of some been required is a different point. But the call is an expression of assent, and only an expression of assent. The form imports this. The ob |