farther; and if they presumed to proceed in the face of the interdict, that you would punish the members of the presbytery who concurred in the breach of interdict, as you would do any other persons guilty of such a contempt. But suppose, in the face of the interdict, they were actually to proceed to ordain and induct the man into the benefice, would your Lordships permit this? I cannot conceive it; and if you did, you would furnish the Church, through its presbyteries, and by their own tortious and most illegal acts, with the means to acquire the patronage of as many parishes as they choose to usurp.

But we are free, in this case, from all embarrassment of that kind. The presbytery hitherto, I understand, has not gone farther than to reject the pursuer; so that every thing remains open. Then the question comes to be, what ought we, and what can we, do? In the first place, to prevent farther wrong, I think we ought to discharge and interdict the presbytery from proceeding to admit any other person to this living; and, secondly, to find, in terms of the declaratory conclusions of the libel, as set forth in the printed summons now before us.

The first thing we are asked to declare is, "that the pursuer, "Mr Young, was legally, validly, and effectually presented to "this church." Surely of this there cannot be a doubt. It is not disputed that Lord Kinnoull is the patron of the parish of Auchterarder; it is not disputed that he presented in due time; and, lastly, it is not disputed that the deed of presentation was in due and legal terms.

In

The next proposition which we are asked to declare is, "that "the presbytery was bound to take trial of the qualification "of the pursuer, and, if found qualified, to receive and ad"mit him to this parish, according to law." Your Lordships will observe, that this conclusion is cautiously worded. the admission they are only required to proceed" according to "law." This does not preclude their proceeding to moderate in a Call, as one of their number, Mr M'Kenzie I think, required them to do. Here, however, the presbytery acted consistently, for it would have been absurd to order a Call, after having absolutely rejected the presentee by their previous veto. But they choose to substitute this new and unheard form of veto, for the former consuetudinary form of a Call. This, I hold, neither the Assembly nor the presbytery had a right to do. The form of Call itself, as in connection with the right of patronage, rests on very doubtful authority. It has no sanction in law but long usage, and certainly the Church has no right to abandon it, and substitute another form in its place. If the form of Call is given up, then patronage will stand, as it did originally, without any check or limitation, except as to the personal qualification of the presentee.

The summons then proceeds to have it found in substance, That the rejection of the pursuer, without examination, and on the ground of this veto alone, was illegal, and injurious to the patrimonial rights of the pursuer, and contrary to the provisions of the statutes and laws libelled. I am most clearly of that opinion, and that we are entitled so to declare.

Then the summons proceeds, that if the presbytery persist in refusing to take trial of the pursuer, and, if qualified, to admit him, that HE, Mr Young, shall have right to the stipend, manse, and glebe, for crop 1835. Now, as to this I have doubt, because the law is silent on this head; and the only remedy given by the statutes is, that the patron shall have right to retain the stipend, as in a vacancy.

And then there is a clause, to have the presbytery and collector of the widows' fund ordained not to trouble and molest the pursuer in the enjoyment of the stipend for his life. Of this, of course, I have also doubts; but, on the other hand, I have as little doubt, that no other person ever can have a legal right to the stipend, unless the pursuer is rejected on examination, as not properly qualified.

As to the widows' fund, that is not before us. No appearance was made for the Collector; and if we find that the patron has right to retain the stipend, it will be for the purposes authorized by law; and if the Collector thinks he has a right to claim it, he can do so, and if found entitled to it, the patron must pay it over to him, and not apply it in any other manner.

Such, my Lords, is my opinion, which I have not formed till after a very careful study of the subject in my own closet, subject always to what I may learn from the superior learning and abilities of your Lordships.

Tuesday, February 27.

THE LORD PRESIDENT." LORD GILLIES."

LORD GILLIES.MY LORD-I entirely concur in the opinion which has now been delivered by your Lordship, and generally in the sentiments you have so well expressed; and that I may not weaken their force, I shall endeavour, as far as possible, to avoid any repetition of them.

This is represented to be a case of great importance, and it certainly has received all the attention and consideration which its importance deserves. We have been favoured from the Bar with an argument of unprecedented length, and displaying on both sides the greatest talent, learning, and eloquence.

The Act of Assembly, of which we have heard so much, is entitled, erroneously I think, an Act on the Calling of Ministers; and as to the practical consequences of it in the present case, the defenders, in the course of their argument, have asked, Are you by your judgment to render the Call a mockery ?-In answering this question I would begin by asking another of the same sort, Is patronage to be rendered a mockery ?-using this word in the sense in which the defenders have used it, when speaking of the Call. What is a Call? This question has often been asked, but has never yet been distinctly answered. Its history is buried in obscurity. It seems to have been the creature of practice,--different at different times. My friend the Solicitor owned his inability to point out any express authority for it, but said that it is law. If it be law, it is practice alone that has made it so. This is admitted, and if so, it must be regulated and controlled by the practice to which it owes its existence. Now we know with certainty, that for more than half a century, what is termed an active Call, i. e. a popular call by a majority, has never been required.

And the Call has been practically a mockery, as the defenders term it. Nothing we do can make it a mockery, more than it has been made by the Assembly itself.

What is patronage, is not a question. We all know what it is, -a valuable patrimonial right secured by statute, existing for ages with some temporary interruptions, and which the patron holds by a tenure as sacred as he holds his property, or the lands to which it may be attached, if feudalised, as it may be, and often is. It is bought and sold. It is a subject of commerce, and has often been sold under the authority of this Court. A society, calling itself the Anti-Patronage Society, is said, within these few years, to have purchased several patronages.

It is said to be a trust, and truly, for all our property, all the gifts of nature and Providence, are held by us in trust, and we shall all have to account for the use we make of them.

To a certain degree, patronage, from the nature of the thing, partakes more of a trust; but in so far as it does so, the law has adjected to it certain qualifications and conditions, intended, and sufficient to prevent its abuse. The patron must have some qualifications. The presentee must have other qualifications, of which the presbytery is to judge; and the latter are such, if the Church does its duty, as to preclude any abuse of the right of patronage. That, by a judgment in favour of defenders, patronage would be rendered a mockery, is, I conceive, undeniable. What is a right of which the exercise may be prevented, or defeated, by the arbitrary will of a third party? The situation and powers of the patron, will become analogous to those of the chapter in the election of a bishop. It belongs to the chapter to elect, but I understand that it can elect only one individual,-the person recommended by the sovereign. So the patron may present, but any, and every individual whom he presents, may be rejected.

Now if the question be put, whether the Call is to be rendered or continued a mockery, or whether patronage is to be rendered a mockery, I have no hesitation in thinking, that the Call must yield to the presentation; and I would at once say, let not patronage be abolished, or defeated, but let the Call continue to be, what it has been for the last fifty years, a mere piece of form.

On looking to the history of the case it will be found, that everything was quite regular as to the presentation. The patron's right to present is admitted. And of presentee, the most ample certificates were given in reference to his qualifications and fitness. Accordingly, the presbytery, so far sustain the presentation. They sustain it, but only so far sustain it. This is a novelty, and to me appears to be illegal.

The presbytery then, gave an opportunity to the male heads of families whose names stand in the roll, to give in special objec

tions or dissents: but it is stated in their minute, that no special objections were given in. Now, suppose that special objections had been given in by a large proportion (say two-fifths) of the heads of families, and that those objections had been declared insufficient by the presbytery. But that afterwards, the objectors being joined by others, sufficient on the whole to make a majority, had lodged arbitrary dissents, it does appear to me that the presbytery would have been placed in an awkward predicament, in sustaining the dissents of those, whose reasons of dissent they had previously disallowed. Ultimately a majority did lodge and adhere to arbitrary dissents, on which the presbytery reject Mr Young.

It seems to be admitted that this rejection was altogether illegal, and unwarrantable, but for the Act of Assembly 1834, commonly called the Veto Act. On this alone it is defended. Why, I know not, for if it be true that this Court has no jurisdiction, and that the only redress was by appeal to the supreme Church Court, and that their judgment is final, then the rejection by the presbytery, under the same circumstances, would have been as effectual without, as with, the Veto Act:-I mean as effectual in this Court. As it is, however, the Veto Act is the sole defence on the merits, against this action.

In these circumstances, it appears to me that there are four questions for consideration.

1. Was this act ultra vires of the Assembly?

2. Is the power of the Assembly to make such an act, sanctioned or fortified by pre-existing laws, or general principles of church law? I mean principles recognized by statute, or by judgments of civil courts. Or, on the contrary, is it not inconsistent with, and a violation of, those laws established by Church and State.

3. Is the jurisdiction of this Court excluded in such a case? Is there any rule or principle by which the party against whom (ex concessis) injury is done or threatened, is precluded from obtaining redress, or protection against such injury, from this Court?

4. Is this Summons properly laid for obtaining such protection or redress? These questions run into each other; and I shall not attempt to preserve a distinct separation of them.

I first proceed to consider If this act is or is not ultra vires. The Assembly claims legislative power, or rather such a claim is broadly stated by the defenders in behalf of the Assembly. That the Assembly by its acts or resolutions may regulate the doctrine and discipline of the Church is true, and such acts and resolutions are, in all cases, to be treated with great respect. The power, or rather, as I think it may more properly be denominated, the privilege of the General Assembly, in so far, does not seem to be disputed. But the argument of the defenders was not thus limited. They maintain that the Assembly is a legislature, and has