"the people either to give their consent, or to state and substantiate "their objections, of which the presbytery were to judge. The peo"ple were not the electors, even by this rule; and though it gave "more power to the presbyteries than was ever afterwards conceded "to them, it gave the people exactly the same place, which the lan"guage of the Church, both in early and later times, uniformly "assigned to them."

The statute 1592, c. 116, was repealed by the statute 1612, c. 1, whereby episcopacy was re-established in Scotland. Under the last mentioned statute it is declared, if The Bishop shall refuse to admit any qualified minister, that the patron might not only retain the fruits of the benefice, but the Lords of the Privy Council might direct letters of horning to be issued, " charging the Ordi"nary to do his duty in the receiving and admitting of sik a per"son as the said patrone has presented." And it is maintained on the other side, That as no such compulsitor is given against presbyteries, there is therefore no remedy competent to a patron and presentee for the illegal rejection of a presentee, except retention of the stipend by the patron under the act 1592, c. 117. But, in the first place, there was no necessity to enact, in express terms, any such compulsitor against presbyteries. The conditions of the compact by which presbytery was established, might be enforced without its being necessary, as in the case of Episcopacy, (the establishment of which, in Scotland, was not based on any express compact), to provide the express mode of execution. Accordingly, Lord Bankton says, (B. ii. t. 8. sect. 62,) that, though by our present custom charges on letters of horning are not in use, the patron may, on application to the civil courts, obtain redress with respect to his civil rights whereof they alone are competent to try the va lidity; but as to grounds of refusal on account of insufficiency, heterodoxy, or immorality, the Lords of Session are not Judges, "but only the church judicatories, whose right it is declared to "be to try the qualities of the person presented, and in that respect their sentence is declared final by our old statute. But as "to the civil right, the patron has interest to retain the stipends, "or fruits and rents of the benefice in such case; and there must "be a remedy to make that right effectual, which can only be by sus"pending the charge at the instance of the person settled in opposi❝tion to his presentee. A qualified person is an ordained minister, "or a licensed preacher, who accepts the presentation, and takes "the oaths to the government, which must be done within the six "months, or otherwise the right devolves to the presbytery." Mr. Erskine, in like manner says, (b. 1, t. 5, sect. 16,) that though since the statute of queen Anne, letters of horning have not been directed against presbyteries, yet the right of presentation is restored to patrons," and of course all the consequential

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"rights, and, among others, that of retaining the stipend." And Mr. Dunlop, in his work on Patronage, (ch. 8, sect. 283,) adds the observation, that independently of the statute 1592, ch. 117, "and at common law, the patron had always a right to administer "the fruits of a benefice while it remained vacant, and the same " right has been acknowledged to belong to them, in regard to the "stipend of our stipendiary cures."

I pass over, for the present, the act of the Convention of Estates in 1649, abolishing patronage entirely, and the Directory of the General Assembly of the same year, as to the admission of ministers under the abolition; and passing over also the period while prelacy prevailed, the next statute to which I refer is the act 1690, c. 5, ratifying the Confession of Faith, and SETTLING THE PRESBYTERIAN CHURCH GOVERNMENT. It expressly ratifies the Presbyterian Church Government and discipline as established by the acts 1567 and 1592, "in the whole heads thereof, except that "part of it relating to patronages, which is hereafter to be taken "into consideration." And what is remarkable, as evincing the extent of the civil authority still exercised over the Church, this act "appoints the first meeting of the General Assembly of this "church, as above established, to be at Edinburgh, the 3d of "October next to come, 1690." Their farther meetings are still regulated by the act 1592. The statute of the same year, 1690, c. 23, was passed, whereby the power of patrons to present ministers was declared void, without prejudice to the rights of all ministers before presented, and to the rights of patrons to vacant stipends; and then it enacts as follows:-" And to the effect, THE "CALLING and entering ministers, in all time coming, may be "orderly and regularly performed, their Majesties, with the con"sent of the Estates of Parliament, do statute and declare That "in the 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 devolu "to." The statute then provides, that compensation shall be made to patrons for being deprived of their rights of patronage, and that

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the right to teinds not heritably disponed shall belong to them; but that heritors may oblige them to sell the teinds of their respective lands, at the rate of six years' purchase, as the same shall be valued by the commission.

It will not, I presume, be alleged by the defenders, that the act 1690 was intended by the framers of it as a limitation of the rights of the Christian people; or that the church was thereby authorized to delegate their power of judging of the qualifications of nominees a power of which they had ever been most tenacious, conceiving that it was handed down to them direct from the Great Head of the church through the apostles. While the statute transferred the right of appointing ministers from patrons to the heritors and kirk session of a parish, it, in the most anxious manner, reserved entire the power and proper duty of the church courts of judging of the validity of objections to nominees. And so far from there being, from beginning to end of the statute, one sentence calculated to convey the idea that a bare majority, or any section of the congregation, could, without assigning and establishing reasons, absolutely veto the nomination-the whole spirit, as well as words of the act, exclude the doctrine. The people had neither a share in the initiative nor a veto upon it. And it is not unimportant to observe that, though in the act 1690, the word "calling" is substituted for "presenting," as used in the former statutes, and the power is transferred from patrons to the session and heritors-what is done is in substance the same. Under the former laws a patron presented the individual to the presbytery. Under the ast 1690, the heritors and elders" call or choose" him, and then present him to the whole congregation, to be either approven or disapproven by them. But their dissent or disapproval is only on cause shewn. The presbytery are constituted judges of the validity of the reasons assigned, and their judgment was subject to the review of the superior church judicatories, who were to cognosce and judge of the matter, as the courts on whom by law the obligation to that effect was imposed. Your Lordships must, I think, have observed, while I read the act 1690, that the objection of one man, if valid and substantiated, was just as effectual to exclude the nominee, as if the whole congregation objected. And does not even this statute, which was meant to extend the rights of the congregation, as well as the other statutes by which it was preceded, show that the legislature was entitled to statute and declare, and regulate the mode of admission of ministers to benefices, and the grounds which should be held valid by the proper tribunal to prevent their admission? And what was the practice under the law of 1690 ? Can the defenders point out a single instance under that law, of a presentee being rejected before trial of his qualifications by the Presbytery of the bounds, in respect of the veto of a majority

or any other section of the congregation ? They will, I believe, search the records of the church courts in vain for any case of the kind. There could be no such practice if the terms of the statute were regarded. The interim law of the Church speaks of a majority of male heads of families, excluding thereby from the right it proposed to confer, all the female heads of families and others composing the congregation. The act 1690, on the other hand, required the person called" by the Session and heritors to be presented to "the whole congregation;" so that instead of extending the privileges of the Christian people, the late interim-act of Assembly is in effect a limitation of them in one particular, though an infringement of the rights of patrons, and of the highest duty of the Church, the duty of collation.

As to the practice under the act 1690, I again refer to SIR HENRY MONCREIFF's Work, who, after referring to the Directory 1649, says page 35,-" These circumstances are adverted to, "because they go a great way to explain the provisions of the "act 1690." "It was not thought expedient to give the clergy the "influence which, in whatever form it was exercised, they really "possessed before the usurpation of Cromwell, and still less to "place any power in the great body of the people, which could "interfere with the right of election. King William's advisers "followed a middle course, between these extremes. Though their "arrangement was certainly suggested by the former practice, it "was in a great measure free from its chief disadvantages. In place "of the Presbytery, it gave the original and exclusive power of "nomination to the heritors and elders of the parish. The person nominated, was then indeed to be proposed to the congrega"tion, who might approve, or disapprove for reasons shown and "substantiated; BUT WHO HAD NO POWER OF REJECTION WITHOUT "SUBSTANTIATING REASONS, which the Presbytery, and (on ap"peal) the Superior Courts, were to pronounce sufficient," whose judgment the cause was to be ordered and concluded.It is an ascertained fact, that King William foresaw the effects. likely to result, even from the statute 1690, c. 23, which was passed by his Commissioner against his desire. And King William's apprehensions on the subject were soon realized; for instead of using the concessions made to them with temper and moderation, the clergy so disgusted him by the turbulence and intolerance of their proceedings, that his commissioner, according to the author of the Life of Principal Carstairs, (p. 50.) suddenly dissolved the General Assembly in 1692, and it was with no small difficulty that the king was prevailed upon to countenance its meeting for the future.

at

In the order of time, the "Act of Settlement," as it is usually termed, (1693, c. 22,) is next to be referred to. It ratifies the

Confession of Faith and the Presbyterian Church Government. And for the more effectual setting the quiet and peace of the Church, an address to their Majesties is proposed, to the effect that all the present ministers possessing churches, but not yet admitted to the exercise of the church government, shall qualify themselves by subscribing the assurance and formula attached to the Confession of Faith, certifying such as shall not qualify themselves within thirty days, that they may be deposed tam ab officio quam a beneficio. But further declaring, that any who have not been received into the government of the Church, but shall offer to qualify themselves, shall have their Majesties' protection, ay and until they may be admitted and received. But the benefit of the act is declared not to extend "to such of the said minis"ters as are scandalous, erroneous, negligent or insufficient, and against whom, the same shall be verified within the space of "thirty days after the said application; but these, and all others "in like manner guilty, are hereby declared to be lyable and sub"ject to the power and censure of the Church as accords."

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From these enactments, I submit, it is clear, that the qualifications necessary to entitle a person to be admitted to, or to continue in the office of the ministry, were in their nature personal, and such as could be dealt with by the legislature as well as by the church courts. Your Lordships can judge of the requisites of a presentation, and of the time when lodged, or of the effect of a church court sustaining it in favour of a qualified presentee. This you have often done. And in the recent case of the Duke of Gordon v. Gillon, 7th June 1825. 1 Wilson & Shaw, p. 295, your Lordships (and the House of Lords affirmed the judgment,) found that a presentee whose presentation had been sustained by the Presbytery, THOUGH HE HAD NOT BEEN INDUCTED, and not The Moderator of the presbytery, was the proper party to be called in a process of approbation of a decreet of valuation by the subcommissioners. Though you cannot touch the spiritual act of ordination, you can judge of the admission of ministers to any civil effect. But the reason for the pursuers particularly referring to this statute, is to show that it contains no authority for holding the assent of a majority of the congregation as a necessary qualification of a presentee to a living, or their dissent an absolute disqualification. It was the statute 1693 which enacted, "That all "schoolmasters, and teachers of youth in schools, are, and shall "be lyable to the trial, judgment, and censure of the presbyteries "of the bounds, for their sufficiency, qualifications, and deport"ment in the said office." The duty thus devolved on presbyteries of trying and judging of the qualifications of the teachers of youth, they have not attempted to devolve upon others, or to require as a test, before judging themselves of the qualifications