majority of the congregation dissented from the call, and, therefore, refusing to sustain the call, and so the case went through all the steps, and the presentee was rejected,-Could the parties interested in the presentation come to this Court for a remedy, pleading, "This judgment of the presbytery is not only beyond their powers, "but contrary to my civil rights as patron." And why is it so? "Because they have taken upon them without sufficient inquiry "into the grounds and nature of the dissents, to hold a mere dis"sent a sufficient reason for rejecting the presentation." Could such a case come before this Court? or was the judgment of the presbytery one which could be challenged here on the ground taken in the present complaint, that the church has presumed to give a veto to the heads of families without putting a single question as to the grounds of dissent? If such a judgment could not be altered in this court, how could the General Assembly be hindered from laying down that rule prospectively?

Really I see no just foundation for this action. When the pursuer comes to shew the particular right violated, I find nothing else than that his presentation is not sustained. Why, that is the very thing to which, by the act 1567, he was expressly precluded from objecting. He had no title to say he had any right whatever, except to have his presentation tried in the presbytery and Assembly, in the manner in which the statutes direct.

names

in

that

way.

Let

The act of Assembly in question is said to give a veto, and has been styled the veto act. Really it is not right to give nickus, however, see what the thing is. What is it? A simple declaration that the dissents of the majority of heads of families should be held as probatio probata, that the man is not acceptable to the parish. I cannot think the objection of the pursuers is well founded, merely because they choose to call it

a veto.

We are told the presbytery have no right to delegate their office, and that under the act 1834 they delegated their office in this case to the congregation, when they ought to have used their own judgment. What is it but an inquiry into the acceptableness of the presentee? They are taking the best evidence-what they think the best evidence on this point. Does a judge, or do a court, delegate their power to a witness, when they examine him?

Upon the whole matter, it may be that this act is an improper act; but for the life of me I cannot find myself at liberty to say that the act is ultra vires. I think the Assembly had power to pass this act, whatever I may think of their right to pass acts of a different kind. The Assembly agreed to the appointment of a committee to draw up rules and regulations, on the footing that the dissent of the congregation was a disqualification; and I think they were entitled to

do so.

I have said nothing with regard to Calls, for this would involve us in a long history; and every thing that can be said on this subject has probably been said already. I shall only observe that, from the general form of the Call-whatever it may have been—I take it, of late years, it has been used only as a token of consent. If nobody dissented, it was held as good evidence that the man was agree

able.

The only other thing I have to say is, that, it appears to me, that the ordinary form of a presentation implies, that the presbytery was to judge not only of the qualification of the presentee as to his literary and moral character, but also especially of his being qualified for the identical parish. For these forms of presentation, after requiring the presbytery to consider such and such qualifications of the presentee, as, for example, his literature and good life, always end with a request, that the presbytery, having found him qualified for the identical parish, should proceed with his induction accordingly.

The pursuer, Mr. Young, has been found wanting in the qualities which fit him for the parish in question, by reason of a large part of the congregation dissenting; and on the whole, therefore, I am in favour of the defenders.

I am certainly much afraid, that many evils will result from the present state of the ecclesiastical law, which, I daresay, were not in the view of those who passed the act 1834. But whatever may be my views on this question, I am of opinion that the presbytery acted according to the rules of the church; and that the act of Assembly 1834 ought to stand as their sufficient warrant.

Tuesday, March 6.

THE LORD PRESIDENT.-"LORD JEFFREY."

LORD JEFFREY.-My Lord President, I concur generally in the conclusions at which the three judges who have spoken last have arrived; and I adopt, for the most part, the grounds on which they have rested those conclusions.

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I understand that there is nothing now before us but the Declaratory conclusions of the summons; or rather such of these conclusions as can be competently insisted in against the presbytery of Auchterarder, the only compearing defenders; and I agree entirely with Lord Fullerton and Lord Moncreiff in thinking, that the pursuers can be allowed to derive no aid, in determining the true character of these conclusions, from their having formerly insisted on others, which they have chosen for the present to withdraw. When I look to the very grave objections raised to their title to proceed with those other petitory conclusions, I am satisfied, that we never can discuss the declaratory process, now alone before us, on any such assumption as is usually made when a question of relevancy is discussed, before answer as to facts that are averred. The course of proceeding in such a case is, that the party objecting to the relevancy says, assuming your facts to be true, they do not support your con❝clusion;" and they are accordingly assumed to be true, when the relevancy is discussed. But here the objections to the title of both pursuers to insist in the petitory conclusions, for stipend &c., were, "you, the presentee, never can have any " right to stipend, as due under the presentation, till you have "obtained induction to the office; and you, the patron, never "can have any right to it, as vacant, till you can get rid of the statutory title of the Widows' Fund." Instead of proceeding to meet these objections, they voluntarily withdraw the petitory conclusions to which they applied; and now demand judgment in the declarator alone. I can interpret this conduct only in one way; and I hold the import of it to be, that they allow the defenders in the mean time to assume the validity of these objections, and substantially say, "assume that we have no right at present to "demand payment of stipend; we have still right enough to follow “out our declaratory conclusions; and we now confine ourselves

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entirely to these." After this, I think it quite incompetent for them, in discussing these declaratory conclusions, to assume that they have a good right to succeed in the others. If the present discussion is to proceed upon any assumption as to the conclusions that are now withdrawn, I think it must be on the very opposite assumption. But at all events, I hold it to be indisputable, that we must now judge of the question of competency and Jurisdiction exactly as if there never had been any conclusions in the summons, but those to which it is admitted that our present judg ment must be confined.

I do not reckon among these, the introductory conclusion, that one of these pursuers should be declared the undoubted patron of this parish, and the other his lawful presentee; because I think this has never been disputed by the defenders, and is now fully admitted on the record. Indeed, I take it to be a mere cavil to say, that the presentation is not completely and unconditionally sustained in their original minutes: no objection of any sort having been stated to its validity. The remaining conclusions, then, are merely, That the presbytery were bound to have taken the presentee on trials, and to have admitted him if found qualified; and that by refusing so to do, and by rejecting him on the ground of a dissent by a majority of the heads of families of the congregation, they have acted illegally, and to the prejudice of the patrimonial interests of both the pursuers. But no particular interests are specified; and I think it most material to observe, that it is not now sought to be declared, either that the stipend belongs to the pursuers, or either of them, or that the presbytery shall have no right to exercise their jus devolutum till the presentee has been lawfully found unqualified, and the remainder of the six months then allowed to expire, without a new presentation. In substance and in form we are asked merely to declare, that the presbytery ought to have tried and admitted the presentee; and that they acted illegally, and to the detriment of the pursuers, in not doing this, and in rejecting him.

Now, I am of opinion, that this court has no Jurisdiction to entertain such a question as this; and that the declarator ought therefore to be dismissed as incompetent.

I rest this opinion on these two grounds: 1st, That no civil interest is properly brought before us for judgment; and 2d, That the proceedings of the presbytery which we are thus called on to condemn, were proceedings in matters properly ecclesiastical; and as to which we have no power to adjudicate, either by declaratory or executorial decrees.

These two considerations run very much into each other; since, if the presbytery did not truly adjudicate on civil interests, we can scarcely be adjudicating on them, when we merely declare

that what they did was illegal, or point out what they ought to have done. It will be in some measure necessary therefore to consider them together. I may add, however, that if either of them is made out, I do not think the jurisdiction of this court can be maintained, even if it were assumed, that, in relation to the general statutes of the realm, the proceedings complained of had been ultra vires of the church courts; provided they were still within their own ecclesiastical province, and involved no assumption of civil jurisdiction. My opinion, however, is, (though that is on the merits) that they were not ultra vires; which I understand to be the only illegality with which they are now charged.

Now, though I do not think it seriously disputed that we have no jurisdiction in matters properly ecclesiastical, yet as something has been thrown out as if this court possessed some supereminent and peculiar power of correcting, or at least declaring, the errors or excesses of power of other independent judicatures, I think it right to say in the outset, that whatever may be the case with the court of Cassation in France, or even with the court of Queen's Bench in England, I am unable to discover the traces of any such prerogative or extraordinary authority in the Court of Session. In our judiciary system, I take it to be clear, that no tribunal has, either on review or originally, an unlimited jurisdiction over all the rights and interests of the subject. On the contrary, I think we recognise, in our judiciary establishment, several supreme courts, of co-ordinate and independent jurisdiction; each of which has a specific and well defined province, within which alone it has any authority, or power of acting; and beyond which, it has, in no case, any right to trespass, so as to encroach with effect upon the province or jurisdiction of another. This court, in particular, possessing, within its own province, as large powers, both in law and equity, as any court can possess, has by no means an universal or unlimited jurisdiction, even in questions of civil right. Till very lately it had no original jurisdiction in proper consistorial cases; which belonged to the commissaries; nor in proper maritime cases; which were for the Admiral; and even now it has no jurisdiction whatever in proper fiscal or revenue cases, which are exclusively for the Court of Exchequer; nor can it take cognisance even of ordinary actions of debt, unless the sum is above L.25, or the question is with one of its own members: But, at all events, it has no proper jurisdiction, except in civilibus. With a few exceptions not affecting the principle, it has no jurisdiction in Crimes, and, with no exception at all, it has none whatever in matters properly Ecclesiastical; and especially none as to the examination, ordination, or admission of ministers; which are not only in their own nature proper ecclesiastical proceedings, but are expressly declared, by the acts of 1567 and