been raised, or of your Lordships to entertain these questions in their present shape. We maintain, that, as there is here no question about a civil right, or about patrimonial interest; but the only matter brought into discussion is the presbytery's discharge of what is purely an ecclesiastical duty, the action is not competent in this Court, nor have your Lordships any jurisdiction in the matter. The presbytery may go wrong; but the remedy is not here. The Church may go wrong; but there is no remedy in any civil court; because your Lordships, whose jurisdiction has its own confines and limits, as well as that of the Church Courts, would transgress those bounds, if you proceeded to entertain a purely ecclesiastical question without reference to the enforcement of any civil right or patrimonial interest.

Lastly, on the merits we maintain, and with great confidence, that the pursuers have no case. In the first place, even if the Veto Act were, in the opinion of the Court, beyond those powers which the State entrusted to the Church, acting legislatively, still that excess of power, occurring in a matter solely ecclesiastically, gives no right of redress here; but the redress, if it is to be obtained at all, must either proceed from the Church herself, or from the Legislature of the State,-from whom the power of the Church is unquestionably derived. There are, however, no grounds in the statutory or the common law of this country, and it is contrary to the principles of the constitution of this Court to say, that there shall be any control in the civil judges over the actings of the Church in matters purely ecclesiastical. But, in the second place, and I rather put the merits on this ground, it is a part of the fundamental law of the Church, as recognised by the State, and has been acted on from time immemorial, that there shall be a certain concurrence of the people in the settlement of a minister. Whether this arises from the great principle, of which strong traces will be found in the purest ages of the Church, and the practice of which the reformers required, That no man should be intruded into a parish; or whether it has been derived from considering acceptableness to the people as one necessary part of the presentee's qualification; in either way the Church has always required a Call as a necessary step in the induction of a minister; and the right of patronage never has been an absolute and unconditional right, but has always been exercised with reference to the rights vested in the Church; and one of these rights is to require a Call from the parish, as well as a presentation from the patron. This condition, annexed to patronage, just like the condition of the presentee's qualification in life and doctrine, is a matter ecclesiastical, and within the province of the Church to regulate. The Church might regulate the matter, either by decision in each

particular case as it occurred, and through a course of decisions restore the efficiency of the Call, which a course of bad judgments had rendered ineffectual; or it might proceed, as in 1834, in virtue of the large ecclesiastical powers which the State has bestowed upon her, and which, in many other ways, and on many other occasions equally important, she has previously exercised, and, acting legislatively, overrule the previous decisions of her tribunals, and establish by declaratory law, and by enactment, an authoritative rule for the guidance of her courts. The Church has adopted the latter course in 1834,-and in adopting it she did not exceed her powers. Whether she acted wisely or not, is not here the question; nor is this the place to entertain such discussion. She will vindicate her own proceedings to public opinion, she will vindicate her proceedings before the Legislature of the State if called upon to do so; but she denies she is under any necessity to defend herself in this Court; and the presbytery of Auchterarder will not betray her interest or her rights, by entering into a defence, even before this high tribunal, in a matter as to which, however deep and sincere the respect she feels for your Lordships, she must disclaim its authority.

I have now done, my Lords; and have only to say, that I leave this case in your Lordships' hands, sensible how very imperfectly, on my part, the argument has been stated; but with no other solicitude about the result, than that which is inseparable from the great importance of the case, and from its probable consequences. It is impossible to look without deep concernment to the possible conflict of jurisdiction which may ensue, and to the consequences which may be the result of that conflict to the interest of the Church, and of the State, as well as to the interest of the more immediate parties, who will be placed in a state of the most painful and inextricable embarrassment, from the impossibility of giving effect to your decree, if it should be pronounced in favour of the pursuers, without incurring the censure of their ecclesiastical superiors,—a consequence the most painful and intolerable.

Owing to the Solicitor-General having been called suddenly to London, this Specch has not been so carefully revised as might have been wished.

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APPENDIX.

No. I.

I. OVERTURE and INTERIM-ACT on CALLS.

Edinburgh, May 31, 1834.-THE General Assembly declare, That it is a fundamental law of this Church, that no pastor shall be intruded on any congregation contrary to the will of the people; and, in order that this principle may be carried into full effect, the General Assembly, with the consent of a majority of the 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 favour the Call is proposed to be moderated in, such disapproval shall be deemed sufficient ground for the Presbytery rejecting 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 farther 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.

The General Assembly agree to transmit the above Overture to Presbyteries for their opinion, and, without a vote, convert the same into an Interim-Act.

II. OVERTURE, with RegulatiONS, for carrying the above Act into effect.

Edinburgh, June 2, 1834.-WHEREAS the General Assembly have declared, enacted, and ordained, in terms of their Act, passed in the sederunt of 31st May ult., on the subject of the moderating in of Calls;

a

and whereas it is necessary, for the better regulating the forms of proceedings under that Act, that some precise and definite rules should be laid down, the General Assembly do, therefore, with the consent of a majority of the Presbyteries of this Church, declare, enact, and ordain, that the following directions and regulations shall be observed:

1. That when any presbytery shall have so far sustained a presentation to a parish, as to be prepared to appoint a day for moderating in a call to the person presented, they shall appoint one of their own number to preach in the church of the parish on a day not later than the second Sunday thereafter; that he shall, on that day, intimate from the pulpit that the person presented will preach in that church on the first convenient Sunday, so as it be not later than the third Sunday after such intimation; and that he shall, at the same time, intimate, that on another day, to be fixed, not less than eight, nor more than ten days after that appointed for the presentee to preach, the Presbytery will proceed, within the said Church, to moderate in a call to such person to be minister of the said parish in the usual way; but that the presbytery, if they deem it expedient, may appoint the presentee to preach oftener than once, provided that the day for moderating in the call be not more than six weeks after that on which the presentation has been sustained.

2. That, on the day appointed for moderating in the call, the Presbytery shall, in the first instance, proceed in the same manner in which they are in use at present to proceed.

3. That if no special objections, and no dissents, by a major part of the male heads of families, being members of the congregation, and in full communion with the Church, according to a list or roll to be made up and regulated in manner herein-after directed, shall be given in, the Presbytery shall proceed to the trials and settlement of the presentee, according to the rules of the Church.

4. That it shall be competent to any one or more of the heads of families in the parish, in full communion with the Church, by themselves, or by an agent duly authorized, to state any special objections to the settlement of the person presented, of whatever nature such objections may be; and that, if the objections appear to be deserving of deliberate consideration or investigation, the Presbytery shall delay the further proceedings in the settlement till another meeting, to be then appointed, and give notice to all parties concerned, then to attend, that they may be heard.

5. That, if the special objections so stated affect the moral character or the doctrine of the presentee, so that, if they were established, he would be deprived of his license, or of his situation in the Church, the objectors shall proceed by libel, and the Presbytery shall take the steps usual in such cases.

6. That if the special objections relate to the insufficiency or unfitness of the presentee for the particular charge to which he has been appointed, the objectors shall not be required to become libellers, but shall simply deliver, in writing, their specific grounds for objecting to the settlement, and shall have full liberty to substantiate the same; upon all which the presentee shall have an opportunity to be fully

heard, and shall have all competent means of defence: That the Presbytery shall then consider these special objections, and, if it shall appear that they are not sufficient, or not well founded, they shall proceed to the settlement of the presentee, according to the rules of the Church; But if the Presbytery shall be satisfied that the objector or objectors have established that the presentee is not fitted usefully and sufficiently to discharge the pastoral duties in that parish, then they shall find that he is not qualified, and shall intimate the same to the patron, that he may forthwith present another person; it being always in the power of the different parties to appeal from the sentence pronounced by the Presbytery, if they shall see cause.

7. That if it shall happen that, at the meeting for moderating in the call, dissents are tendered by any of the male heads of families, being members of the congregation, and in full communion with the Church, their names standing on the roll above referred to, without the assignment of any special objections, such dissents shall either be personally delivered in writing by the person dissenting, or taken down from his oral statement by the moderator or clerk of the Presbytery.

8. That if the dissents so lodged do not amount in number to the major part of the persons standing on the roll, and if there be no special objections remaining to be considered, the Presbytery shall proceed to the trials and settlement, according to the rules of the Church.

9. That if it shall appear that dissents have been lodged by an apparent majority of the persons on the said roll, the Presbytery shall adjourn the proceedings to another meeting, to be held not less than ten days, nor more than fourteen days thereafter.

10. That if the Presbytery deem it expedient, and the person presented be willing, or if he shall desire so to do, the Presbytery shall appoint him to preach to the congregation in the interval.

11. That it shall not be competent to receive any dissents without cause assigned, except such as shall be duly given in at the meeting for moderating in the call, as above provided; but it shall be competent to any person, who may have lodged a dissent at that meeting, to withdraw such dissent at any time before the Presbytery shall have given judgment on the effect of the dissents.

12. That, in case the Presbytery shall, at the second meeting appointed, find that the major part of the persons entitled to dissent do not adhere to their dissents, or that there is not truly a majority of such persons on the roll dissenting, they shall sustain the call, and proceed to the trials and settlement.

13. That, in case the Presbytery shall at that meeting find that there is a majority of the persons on the roll still dissenting, it shall be competent to the patron or the presentee, or to any member of the Presbytery, to require all or any of the persons so dissenting to appear before the Presbytery, or a committee of their number, at a meeting to be appointed, to take place within ten days at furthest, at some place within the parish, and there and then to declare in terms of the resolution of the General Assembly; and if any such person shall fail to appear, after notice shall have been duly given to him, or shall refuse