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of any judgment which your Lordships may pronounce. On that subject I shall not say a word, and certainly will not even imagine what opinion I should have, on an action of damages against the General Assembly, and all the presbyteries of the church, or even against this presbytery.

Only permit me to say in conclusion, that, as I have expressed my opinion, and hitherto acted upon it to the utmost of my humble ability, for preserving the rights of patronage, though within the limits which I think attach to them by law,-and entirely repudiating the idea of any thing like ambages in that matter,-I earnestly trust, that it may not in the end he found, that they who so consulted for the patrons and the people together had not taken the least considerate view of the real interests of both.

My Lord-I have done.

Tuesday, March 6.

THE LORD PRESIDENT. LORD GLENLEE."

LORD GLENLEE.-My Lord President, I understand the fundamental question to be decided is, whether this act of the Assembly 1834 was within their competency. The pursuer says the presbytery acted illegally in proceeding in the manner in which they did; and the defence of the presbytery is, that they acted entirely in conformity with the laws of the church, and in particular with this act of 1834. And certainly, if it were within the competency of the Assembly to pass that act, the defence must be sustained. But on the other hand, if it does appear, upon due consideration, that, really and truly, the act of Assembly 1834 was in itself ultra vires, and consequently an illegal act, on the part of the Assembly, it will not justify the conduct of the presbytery ;—for although they may indeed escape all sort of moral blame or censure, because they obeyed the instructions of their ecclesiastical superiors, yet still their act must be held as, in itself, illegal.

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The ground, upon which the pursuer seems to proceed, is this :He says, that this act was beyond the competency of the church; and, that somehow or other, it is in violation of his rights of patronage. To be sure, if he can condescend upon some specific civil right, which he can satisfy your Lordships has been disappointed by this act of Assembly, it may be true that he is entitled to have the act declared ultra vires and illegal, and to obtain redress in this court. But really, I suspect, that, in this matter, a good deal must depend upon what our ideas of the rights of the patron are. The pursuer has formally pleaded a right of which I have very great doubts. He seems to think, that truly, and fundamentally, a right belongs to the patron to nominate unconditionally, a person who shall be the minister. I have no idea that the right is of this nature. He has only the right of presenting a person who may be inducted, if the superior churchman to whom he is presented has himself a full and complete power of inducting him into the benefice. To be sure, in the case of the superior churchman having this power, the right of presentation would, in fact, be a right of nomination.

As to the origin of patronage, I shall not say anything; but, certainly, it was introduced after churches were fully established. These were filled up, some way or other, by bishops, or other functionaries of the church at the time. It is exceedingly probable, that, originally, this functionary was liable to some restriction in the capacity which he thus had of introducing a person to the cure of a particu lar congregation. I have not a doubt on that head, though I certainly have no idea, that, at any period whatever, the right of electing their ministers was vested in the hands of the Christian people. On the other hand, it is equally clear, that, in the beginning, their consent, in some shape or other, was supposed to be necessary for the canonical filling up of the benefice; for I see that various complaints were made, that one party had transgressed by invading the rights of the other; and particularly on the part of the congregation, that persons had been intruded on them. Thus it appears that the clerus and populus had each a part assigned. But, in all human probability, the popular consent was, in reality, nothing else than a tumultuary expression of good-will by the people. In the progress of time, it is likely that this consent came ultimately to be neglected; and that either the bishop, or some other functionary in whom the right was determined to reside, had the absolute power of putting in a person to the charge. In that state of matters, perhaps the patron had a direct right to compel that functionary to induct the person whom he had chosen. It is very possible that, in such a situation, the patron, if his presentee were refused, might be authorized to compel him to give effect to his presentation.

Now, whatever may be the case in countries where this right of appointment is not dependent on any assent by the people, it appears to me, from the very nature of the thing, that the case must be altogether different in a country, such as ours, where the church, itself, has no power of putting a minister into a benefice against the will of the congregation. This circumstance convinces me, and has always ruled me very much in the matter. I think I may take it for granted, that here no person can be intruded on a congregation contrary to the will of the congregation. There are acts of the church, one of an earlier, another of a later date, which declare that this principle is a fundamental law of the Church of Scotland. Now, many material points might be indicated in the different statutes which have been quoted and referred to, in connexion with the present case. But the most material of those acts appeared to me to be that of 1567, c. 7, which begins with declaring, "That "the examination and admission of ministers within this realme be "only in the power of the church;" whilst it enacts that "The "presentation of church patronages always is reserved to the just "and ancient patrones."

It appears to me that these words do not reserve the right of pa

tronage generally, but that, in this particular matter of the admission and qualifications of ministers, the act simply reserves to the patron the right of presentation; and then goes on to point out how that is to be effectuated; ultimately declaring, in precise and positive terms, that an appeal may be brought to the General Assembly, and that their judgment shall end the cause. This seems to me to reduce the right of the patron in this particular matter-I mean in the admission of ministers; for it is only this particular matter of the admission of ministers to which the act refers,-to a right of presentation. And indeed patronage has always existed, though it is commonly said that patronage was abolished at one time, and restored at another. It was not so abolished, but the right of presentation was only given to different parties. But my idea is, that it was the enixa voluntas of the legislature, by this act, in reference to this particular matter of the admission of ministers to which it refers, to confine the right of patrons to a mere right of presentation: And, in pointing out the course to be taken by them in order to effectuate this right, it declares, that the cause may be appealed to the Assembly, where it must take end by the judgment of that

court.

A material part of the same act is, that it declares the examination and admission of ministers shall be in the church alone-that is, in the inferior courts first, and in the General Assembly in the last instance. There never occurs, either in this statute, or in any other, any definition on the part of the legislature, of the qualifications of which the Assembly was to judge. I fairly own that I see no reason for confining their power to that of judging of qualifications merely moral and literary. I think the act necessarily implies that they shall judge of the presentee's qualification for filling that particular charge to which he is designated. How could they act otherwise? The church was prohibited, by its own laws, from giving admission to any one as minister of a parish where he was not acceptable: They must, therefore, be satisfied, some way or other, that the will of the people is not against him. The general expression which is used in reference to the law on this matter is of extreme vagueness. What particular will, or amount of consent, is spoken of, is more than I can well say; and, therefore, I think, that the fixing of the particular rule for judging of this matter is, of necessity, devolved on the Assembly.

There is another act-that of 1592, c. 116-quoted and founded on by the pursuer, which ordains all presentations to benefices to be directed to the particular presbytery, with full power to give collation thereon," provided they shall be bound and astricted to receive "and admit quhatsumever qualified minister presented" by the

patron.

I know it is said-(I am not very fond of that mode of arguing)

-that this referred only to ordained ministers; and if it were so, I think the construction would be strongly in favour of the right of the church to determine-as one of the necessary qualifications for the particular charge-whether he was acceptable to the people-yea or nay. For if he be already a minister, with the spiritual and literary qualifications, and those of a good life and conversation, there is no other earthly qualification upon which the presbytery could possibly have to decide, as they are required, except the qualification of his acceptableness to a majority of the congregation. However, I think this too nice a construction of the words of the act, and I am really of opinion, from what I see in the other acts, that the fair meaning of the expression "a qualified minister" is, a person qualified to be a minister; and nothing else.

Another argument which has been founded on is, that the presbyteries are, under this statute, (and there is no express difference between its terms and those of the act 1711,) "bound and astricted" to give induction where a qualified person is presented; and that it is sufficient that a qualified person be offered to a presbytery. To me, however, it appears, that the true meaning of the statutory restriction is not that the presbytery were bound to induct the person presented to them, at all events; but only, that they should not, on any consideration, (which I suspect they sometimes took the liberty of doing,) induct any other person, or order a call in general, so as to choose a party different from the one prescribed by the patron, or in any way to act as if the disposal of the benefices were in their own hands. Sometimes we see, from the reported cases, that such proceedings took place that the presbyteries and General Assembly, some way or other, inducted a person different from the person who was presented, a proceeding contrary to law, as established by the judgments in these cases.

Therefore upon the whole I do think, if it be granted that no person can be brought into a parish against the will of the people, that the proper judgment, whether or not he has the will of the people in his favour, belongs to the presbytery: I think it was the enixa voluntas of the legislature that it should be so; and I think it was wise to put this matter in the hands of the presbytery alone. But if it were in the power of the p resbytery to judge in any particular case, whether the person presented had properly a majority in his favour, I fairly own that I cannot, for my life, doubt the power of the church to make a general order or appointment, that the course of judgment they may prescribe should he henceforward in all cases followed.

Suppose, for instance, the admission of a minister came to be contested, as has happened very frequently in the Assembly, on the question whether or not there was a sufficient call,-and suppose the presbytery had pronounced an explicit judgment, finding that the

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