fenders of the well known rule, that the title of a party to the stipend, and to the manse and glebe, is not completed until induction. That was in truth a rule for the protection of the patron, for, until induction, he was entitled to retain the stipend. The Church had no means of itself, of giving any party a title to claim the stipend and the other temporalities. So that if the patron should say, these were to be withheld till his presentee was inducted, he also might withhold them from any other person inducted. The object of this rule was in truth to force the Church to receive and admit his presentee, unless he was found not to be qualified. But in the question between the patron and the presentee,-if the latter is illegally rejected-the rule cannot possibly hold; for, against the patron, the presentee has an unqualified grant from him of the stipend and temporalities. It is not the fault of the presentee that he has been illegally rejected,—it is a wrong of which he complains as much as the patron,-and hence he comes forward, and may irresistibly plead as against the patron, that when the latter has been found entitled to withhold the stipend and temporalities from the person inducted by the Church, because the presentee was duly presented and illegally rejected, such a decision only the more obliges the patron to give effect to his own grant in favour of the presentee, and the more entitles the latter to demand from him the benefit of that grant.

It is in truth jus tertii to the presbytery, what the patron does with the stipend, as he is not bound to apply it to the pious uses of the parish in such a case as the present. The presentee is in truth the assignee of the patron. I apprehend the patron could not withhold from the presentee; at all events, in the present case the presentee appears with his concurrence and in his right.

But, while I have thought it thus necessary to explain the object of the first conclusion as to the stipend, you will observe, that the Summons concludes alternatively that the patron is entitled to retain the stipend. Now to the competency of that conclusion I heard no objection at all. It surely cannot be said that—when it is competent to have such right found after the induction of another. man, and when the wrong done by that ordination is irremediable, it is incompetent to try it before the ordination, when the presentee may still be taken upon his trials,-when such a decision is one of the remedies most likely to secure his being taken on trials, and practically to prevent before hand the ordination of another.

But, at all events, being the established right of the patron, in the event of the wrong being completed, why-upon the ordinary principles in the law of Scotland as to the objects of an Action of Declarator,-as soon as the question is raised by the effect of his presentation being disputed, and by the illegal rejection of his presentee, the patron has an unquestionable right to have the full extent of his rights declared, and to have it found that, if that rejection is persisted in, and until the presentee is inducted, (if

qualified) the occasion has arisen for that established right of retaining the stipend.

These are all trite points in regard to an action of declarator, as to which, when the questions are separately considered, I am persuaded that your Lordships will entertain no doubt. But there has been great confusion throughout the argument of my learned friend. The questions as to the legality of the Veto, and the powers of the Assembly, were mixed up in every part of his speech with the separate question as to the jurisdiction of this Court, and the extent to which it would interfere: And again the objection as to the competency of the present conclusions of this Summons, which was stated to be a separate question, was equally mixed up with the general question, as to the jurisdiction of this Court, and the purposes for which that jurisdiction should be exercised. Those three questions are perfectly distinct and separate. I may have been right in the two first branches, and yet I may not have raised a competent action. But, then, in considering this latter point, as to the competency of the conclusions of the present summons, you must give me the full aid and benefit of all the points, which I assume that I have established in discussing the previous questions: And the only objections, strictly relevant and competent in this view, to this present Summons, must then be objections to the action, as not consistent with the points previously made out to the satisfaction of the Court. Now, after full consideration of the subject, it humbly appears to me that the objections taken to this present Summons are in truth just a repetition, in another form, of the objections to the jurisdiction of the Court, and would necessarily exclude any summons with any conclusions, because they would exclude any interference or exercise of jurisdiction by the Court with the Church, in the matter in question, to any extent whatever.

IV. The last point I do not mean to resume or discuss separately. I have already shown you, first, that there was no acquiescence in the proceedings of the Assembly,-I have already shown you, secondly, that in order to make the civil action competent, it was not necessary to carry the rejection, in respect of the veto, by appeal to the General Assembly,-indeed one of my fundamental objections to the Veto is, that I could have obtained no redress by appeal, since no appeal is permitted, because there is no deliberative or judicial judgment of the presbytery at all.

My Lords, after the length of this argument, it would be unpardonable to recapitulate, it would be even unpardonable, in expressing my gratitude for the attention I have received, to do it at greater length than simply by thanking your Lordships.

My Lords, I trust I have shown good grounds in law for decree in terms of the conclusions of this Summons.

Tuesday, December 12, 1837.

THE LORD PRESIDENT.- "MR SOLICITOR-GENERAL."

THE SOLICITOR-GENERAL.-IN rising to reply on the part of the defenders, however reluctant to waste a moment in prefatory remark, I must be permitted to say, that I approach the present case with the greatest anxiety, whether I consider its importance to the country at large, or the magnitude and variety of the topics which have been drawn into argument. One might naturally expect, that, in a discussion of this kind, the ground should be narrowed as the debate advanced,-that the lists should be contracted in the hour, as it were, of mortal strife. But it often happened otherwise, and in this case remarkably so; for the field grew wider, and more wide, as the conflict was prolonged; position after position was taken up by both parties; till at last they were in danger of abandoning altogether the points on which alone the contest turned.

It shall be my endeavour in these observations to throw out of view a great deal of matter, superfluous and irrelevant, as I conceive, that has been introduced into the discussion; and to recall your Lordships' attention, directly and immediately, to the questions upon which the case really hinges, and to the considerations necessary for its decision. Nor shall I resume the argument which the Procurator submitted on the plea of personal exception-my object being rather to make an addition to some part of his reasoning, than to go over a second time what he has so ably stated.

In proceeding with the settlement of a presentee to a parish, according to the existing law of the Church of Scotland, the course, as prescribed in all the institutional books, is to lay upon the table of the Presbytery the patron's presentation with the presentee's letter of acceptance, certificates of both parties having qualified to government, and an extract of the presentee's license, if he is not already an ordained minister, and in possession of another cure. The presentee is then appointed to preach on one or two Sundays in the church of the vacant parish; and a day is

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also fixed for the purpose of moderating, or presiding, in what is termed the Call. This is intimated to the congregation, who are informed that a presentation has been lodged in favour of the presentee. At the meeting on which the Call takes place, a sermon is preached by a member of presbytery, who is appointed to moderate or preside; and the people, at the conclusion of public worship, are invited to subscribe a Call to the presentee, the nature of which shall be afterwards considered. If the Call is properly subscribed, it is laid before the presbytery, who, in the ordinary course, then pass a resolution concurring with or sustaining the Call, which is put into the presentee's hand; if he accept of it, the presbytery devolve on him the care of supplying the vacant parish with public worship, and appoint trial to be taken of his qualifications. This trial proving satisfactory to the presbytery, he is required to subscribe the formula; and a day is then fixed for serving the edict, as it is termed, or publicly proclaiming to the congregation, after sermon, that the presentee is to be ordained, and requiring any one who knows cause against his admission, to notify the same. A day is appointed for the ordination, on which occasion the presbytery must, before celebration of public worship, receive the report of the minister by whom the edict was served. The officer is then directed to proclaim, that, if any one has objections to the life or doctrine of the presentee, the presbytery are ready to hear them. Any objections which may be then stated must be immediately proved, or are disregarded; if no objections are stated the presbytery proceed to ordination, and induct the pre

sentee.

Such generally are the steps required by the law and practice of the Church, for the induction of a clergyman of the Establishment to spiritual connection with the cure.

In 1834, the General Assembly thought fit to pass an interim Act, which they at the same time directed to be transmitted to presbyteries in terms of the Barrier Act of the Church, in order to its being enacted in due form as law. By that interim Act the General Assembly declared, "that it is a fundamental law of this "Church, that no pastor shall be intruded on any congregation

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contrary to the will of the people; and in order that this prin"ciple may be carried into full effect, the General Assembly, with "the consent of the majority of 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 fa"vour the Call is proposed to be moderated in, such disapproval shall be deemed sufficient ground for the presbytery rejecting

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"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 "further 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." Your Lordships will observe, that, although this act has been termed in the argument a declaratory law, it is properly declaratory in so far only as it asserts, that it is a part of the fundamental law of the Church," that no pastor shall be intruded on any congregation contrary to the will of the people." In other respects, and particularly in the regulations which it proposes for the purpose of carrying that principle into effect, it is plainly enactive; inasmuch as it contains instructions or directions to presbyteries, with respect to what shall be considered a sufficient and adequate Call; ordaining them to reject the party, as not having a sufficient Call, where the major part of the male heads of families, members of the vacant congregation, and in full communion with the Church, have disapproved of the presentee, but to sustain the call as adequate and sufficient where such majority shall not have disapproved of the presentee, and to proceed with the settlement, as in the case of a sufficient Call, agreeably to the rules of the Church; and farther providing, that any party appearing to disapprove may be required to declare solemnly in presence of the presbytery, that he is not actuated by factious or malicious motives, but solely by a conscientious regard to the spiritual interests of himself or the congregation. The Assembly, in short, lay down in declaratory words the fundamental principle of the law, and introduce by enactment a regulation in itself new, for the purpose of guiding presbyteries in determining what shall be deemed a sufficient or adequate Call.

The Call, as will be immediately shown, was known in the earliest period of the Church, and has all along been, as it still is, essential to the admission of an incumbent; the fundamental principle, which the Assembly declared, was beyond all doubt the law of the Church, whatever question might be raised, as to the regulation proposed for the purpose of rendering that principle more effectual and more authoritative.

Connected with this interim act, referring to it, and upon the narrative that it was proper to lay down some precise and definite rule for the course of proceeding under it, the General Assembly, on the 2d of June 1834, agreed to transmit to presbyteries certain regulations, which at the same time they converted into an interim