minister of that parish; and they have full powers, I think, to ascertain this in every material particular. Their whole proceedings are directed to this object; and every one step of them is as plainly intended for this purpose as every other. It is a spiritual relation which is about to be established between him and the congregation; and the first step, therefore, is to ascertain whether they are willing to enter into it, or feel such a repugnance, as makes it plainly impossible for the presbytery conscientiously to sanction its completion; and for this purpose is the Call; now rendered more efficient by the regulations of 1834. Then come the trials of literature, soundness of doctrine, and intellect; and last the ordeal of the Edict, for the purgation of any moral impurities. But the whole is one unbroken course of trials; and all directly calculated to ascertain the single point of the fitness of the individual for the charge on which he proposes to enter.

I had noted some other remarks bearing upon this view of the question; but I will not go farther into it. Your Lordships will understand that I think the law of 1834, and the proceedings under it, are not ultra vires of the church, 1st, Because they amounted only to such modifications of the Call as were plainly within their competency; and that the sustaining the sufficiency of a Call is a necessary preliminary to any valid ordination; and, 2d, Because I think the qualities in the presentee, which, though not specified, or separately proved, draw on him the deliberate and conscientious dissents of a majority of the congregation, are truly disqualifications, on which the presbytery is entitled to decide, in the very terms of the statutes relied on.

Before concluding, I wish to say a word on the objections to the summons so forcibly stated by Lords Fullerton and Moncreiff. It is no doubt quite true, as observed by the latter, that the cause has been argued much more as if we had been in a reduction of the act of Assembly 1834, than in a declarator against the presbytery of Auchterarder, proceeding on a summons in which the existence of that act is not once recognised. At the same time, I am not prepared absolutely to concur in the conclusion, that it was therefore incompetent for the pursuers to go into the merits of that act, and to dispute its validity in their action with the presbytery. The presbytery alone had rejected the presentee, and were necessary parties to the action. If what they did was truly illegal and injurious, the warrant, or even the order of a superior, would not take away their responsibility; and when this warrant was brought into notice, I rather think it was competent to discuss its legality without making its original authors parties to the suit. But at the same time I agree that the entire omission of all notice of it in the summons, and the fact of the

pursuers proceeding as if the act complained of had originated with, and been spontaneous on the part of the presbytery, was, in my view of it, a suspicious and improper proceeding. But on the other hand, I have a very firm opinion as to the entire justice of the other objection, so fully and ably explained by Lord Fullerton, that the question as to the legality of the act 1834 truly is not raised under this summons and record; and that the only question properly before us on these, is, Whether the presentee was not entitled to be taken on trials per saltum, and at once, after his presentation had been sustained; and whether it was competent for the presbytery to interpose any form of proceeding whatever, between the presentation and the trials? Thus negativing all right on their part to require a Call, or a deliverance thereon, and demanding judgment on the broad general ground, that the concurrence of the people, in any form, or to any extent, is not in any respect necessary, and cannot be required in any case where the presentee asks to be examined without it. I am satisfied that this is truly the only question which is raised on the pleas in law for the pursuers on this record; and therefore I am of opinion that, even if I could have concurred with the majority of your Lordships on the merits, I should have thought it incompetent to decern in the terms of this declarator, unless I had also been prepared to say that no call or concurrence of any sort was ne

cessary.

I have said nothing of the peculiar importance of this case; But I can assure your Lordships that I feel it as deeply as any of your number. But we must decide without regard to consequences; and I do what I can to turn away from their consideration: For I grieve to say that I thoroughly participate in the painful conviction which was expressed, I think by Lord Meadowbank, that whatever decision we may give on this question, the effects are likely to be unfortunate. It is certainly my impression, that the risk and the evil would be less, if decided as I would decide it. At the same time I am bound to say, that if I thought such a decision likely to lead to the introduction of a system of popular election of ministers, I should not be of that opinion; having the strongest possible conviction that no dissensions in the church, no risk of farther secession from her pale, no prospect even of recurring and more distressing conflicts between the civil and the ecclesiastical authorities, (which are the evils I fear from the decision to which I am opposed,) would be so injurious to the peace and honour of the church, and to what is far more important, the religious and moral welfare of the people, as the concession of that fatal boon for which so many are, as I think, so ignorantly, contending. These issues, however, must be left to

Providence; and we have nothing to do but fearlessly to discharge our precise and limited duty.

I am for dismissing the declaratory conclusions as incompetent ; and finding, separatim, that the act of Assembly 1834, and the proceedings of the presbytery in the execution of it, were not illegal, or ultra vires of these ecclesiastical authorities.

Wednesday, March 7.

THE LORD PRESIDENT-" LORD COCKBURN."

LORD COCKBURN.-MY LORD-Before proceeding to consider the more general and important question that is before us, I haveto express my concurrence, on two special points, with what has been said by some of your Lordships, and particularly by Lord Moncreiff. These points are, that the pursuers are barred by acquiescence from making their present demand; and that the record is not constructed in such a way as to justify the Court in deciding on the only question that has been argued. I think both of these objections well founded. I am aware that the defenders have no plea upon the acquiescence; but there is a statutory remedy for this, which I think ought to be applied. The record, especially when considered in reference to the only conclusion now before us, instead of correctly bringing out the point really meant to be tried, is framed so as to hide it; and to compel us to give a judgment on an abstract proposition, which, taken, as it must be, by itself, the pursuers have no proved interest to maintain.

The case upon which, it seems, it was intended to obtain our judgment, and which we must take up as disclosed in the course of the discussion, is by far the most important that this Court has ever been required to determine. Its decision involves the future condition, perhaps the existence, of church-patronage in this country. Its principles involve still more. They involve the subsistence of the General Assembly as a supreme and independent ecclesiastical authority. Deeply affecting these things, the case includes the subjects which, for the longest period, have been the most important to the feelings, the rights, and the interests, of the people.

We have nothing to do here with views of expediency. The

weight of our judgment with the public must diminish in proportion as it shall appear that such considerations tended to produce it. Separating my own mind from them entirely, my opinion isFirst, That in doing what the Court is now asked to condemn, the defenders were acting in a character, and in relation to a matter, in which, even though they were wrong, this Court has no jurisdiction to set them right; secondly, That, though the Court had jurisdiction, and was entitled to review their proceedings, what they did was legal, and that, therefore, the pursuers are not entitled to any redress, and least of all to the redress which they now seek.

Having stated the fact that this is my opinion, I wish I could stop; for I am conscious that I have not a word to say which has not been said better already. But it is proper that the views of each of us should be distinctly known. I shall run over the grounds of mine as rapidly as I can. My judgment rests upon very humble ground. The results which I have come to are forced upon me by what I find in one or two acts of the Scottish Parliament-upon a Scotch subject,-explained by Scotch practice.

After many struggles, and a strong aversion on the part of the people, and a wholesome jealousy, natural to presbytery, on the part of the Church, patronage was at last definitively fixed as the law in 1711; and it has been practically enforced since about the year 1750. But there never was a time at which it was not seen, and acted upon, that patronage, if unchecked, must necessarily be dangerous; and, accordingly, the law never tolerated it without interposing the barrier of the Church between the people and the patron. It left him his trust; but it armed the Church with strong powers to control him in its exercise; and the question as to the legality of the interference of the civil court is solved as soon as it is ascertained what these powers are.

I acknowledge the great principle that the Church, as an establishment, has no power but what the State has conferred upon it. But I cannot infer from this, that all power is to be withheld from the Church for which no express clause can be produced in any act of Parliament. Scarcely any old institution could stand upon this rule for a single hour. When the Legislature adopted Presbytery, it did so in reference to pre-existing ecclesiastical principles; just as when Episcopacy took the place of Catholicism, it carried along with it, and retained, the known and established rules of the old church, in so far as they were capable of being transferred to the new one. In establishing Presbytery, the Parliament of Scotland did not proceed to manufacture a system entirely new in all its details, as if there had never been a church before, but built upon the old ecclesiastical foundations. We are not, therefore, to expect that its privileges were imparted to the