Wednesday, March 7.

THE LORD PRESIDENT.- "6 LORD CUNINGHAME."

LORD CUNINGHAME.-My Lord President, When the very able argument which was addressed to us in this case from the bar was closed, I felt myself unable to resist the conclusion, that the declaratory branch of the pursuers' summons, was maintainable in this court, and well-founded in law; and I need hardly add how much that opinion was confirmed by the elaborate expositions of the law, given by the majority of your Lordships in the earlier part of our deliberations last week. But latterly a series of opposite opinions characterised by the greatest learning and most powerful reasoning, have been delivered by my brethren who have spoken last, to which I have listened with the deepest attention; but my former impression remains unshaken, that the pursuer is entitled to judgment in terms of the declaratory conclusions of his libel.

At the same time, I am as much impressed as any Judge can be, with the magnitude of this case, or rather with the momentous importance of some of the questions which have been incidentally and perhaps unavoidably raised in the course of the discussion. My learned brethren, from whom I have the misfortune to differ, consider that the mere entertaining of such an action as the present, may affect the rights and independence of the Church, and consequently impede its ministers in the sacred duties which they are appointed to discharge. On the other hand, my conscientious conviction is, that, if the pursuers' case as laid, were found incompetent in this court, it would be a determination of the most fatal and dangerous import to the rights and liberties of the people of this country. These mainly depend on the efficacy and supremacy of the civil tribunals to protect and preserve inviolate the whole property of the lieges. In so far as this is secured by statutes of the civil legislature, these can only be interpreted by the civil judges of the land, trained by education and long experience to this high and responsible duty. But the plea of the defenders, as I conceive, leads to this, that while the Kirk as a state establishment derives its powers, and privileges, and endowments solely from the statutes

of the municipal legislature, it may either directly, or by the most palpable evasion, reject or defeat, without any control from the Civil court, the most valued patrimonial and hereditary rights of others, declared in the very statute under which the present system of Church government was established and founded. Were any such doctrine sanctioned, it would, as I conceive, lead to an ecclesiastical despotism within the state, as alarming in itself as it would soon be destructive of that establishment itself, for which this extraordinary and irresponsible power is claimed.

I know well that no such consequences are apprehended by such of your Lordships as support the plea of the defenders. If it were, they certainly would be the very last men to give it any countenance. I am aware, that they not only view the presbytery as having acted within their powers, but think that they gave effect to the rights of the patrons, at least as far as any such rights can be maintained in the times in which we live. But to my poor understanding, this is incomprehensible. When the presbytery rejected the presentee, in the present instanee, without examination, because the majority of the heads of families dissented from the presentation, they virtually, and as I believe the plain sense of the great bulk-the majority of mankind, will pronounce, transferred a part and portion of the patron's right of nomination to other parties, and so refused effect to a civil right constituted by the same statutes, under which alone they themselves had any jurisdiction in the matter.

If this, however, be the effect of the proceeding of the presbytery under review, it strikes me, that it cannot be too jealously watched or too promptly checked. Let patronage be ever so inexpedient, or ever so unsuited to the present feelings and wishes of the people; if it really be so felt, the remedy obviously lies not with the Kirk, who can in no shape restrict the civil rights of any parties, but with the civil Legislature who can alone abrogate or modify, by any direct law, the rights of patrons which are so anxiously and expressly reserved entire by a series of statutes, both ancient and modern, still in full force.

Hence, even if I were as averse, on views of Church policy, to patronage as its most strenuous opponents are, I should hold it alike unconstitutional and unwise to seek relief in the form complained of in the present action, at the hand of the Church court. If they, or any body within the state, are permitted either directly to violate, or indirectly, and by a thin disguise to defeat the civil rights of parties, this is laying the foundation of an irreponsible power, pernicious in point of example, and incalculably dangerous in its consequences. And let us not be deceived by the apparent concession to popular rights which may be supposed to attend the particular case now before us. If the Kirk can, at its own hand and in

defiance of the civil statutes and tribunals, restrict, under the profession of regulating, the exercise of patronage in one year, they may entirely abolish it in the next. This, of course, is a consummation to which many look devoutly forward. But who can say that the power and interference of the Kirk will stop here. If they could of their own assumed authority first restrict and then rescind patronage, may they not ere long resume the privileges which they may allege they have given to the people, and place the nomination and election of the whole ministers of the country under regulations calculated only to serve the purposes of bigotry or faction? May they not refuse a presentation, unless the candidate, as enacted by the General Assembly in 1596, has the previous consent of the presbytery; or unless he submits to some new test calculated more than any now existing to fetter his understanding, or impair his usefulness? And all this power uncontrollable by civil courts, is to be wielded by a body, it is believed, of indefinite expansion in point of numbers, and enjoying within the State, valuable patrimonial endowments and temporalities derived from the acts of the civil legislature. It requires no sagacity to foresee that such a state of things would never be permitted to continue. It would in fact af ford a constant and never ending topic for the annihilation of a religious sect exercising or usurping such powers, when upheld and supported by the State.

These considerations, however, lie on the very surface of this case; they were early suggested to my mind by the plain narration of the facts in the summons, which, in my humble opinion, sets forth the nature of the wrong of which the pursuers complain, as fully and as precisely, as can be reasonably and competently required.

Yet while the Summons as amended appears to me to be a writ satisfying the strictest forms of our law, such is the diversity of opinion arising in this extraordinary cause, that some of your Lordships, whose opinion I must ever highly regard, consider it either as plainly incompetent on its own narrative, or as unfit from many alleged defects and imperfections, to raise almost any of the questions which have been so deliberately discussed and considered by us. This has led me again to examine and analyse the Summons with all the care in my power; and I must own I should think it a precedent fraught with danger to the law and its present forms, if this writ were not held as sufficient to raise every question necessary for the full extrication of the pursuers' right on the one hand, and of the defenders' pleas on the other. I shall afterwards consider the jurisdiction of the Court to entertain the question; but let us for a moment attend to the Summons.

The Summons as framed then sets out, (1.) With the specification of the pursuers' title to maintain the action. (2.) It narrates

the whole civil statutes from 1567 to 1711, by which the rights of the patrons, as the pursuers maintain, are constituted. (3.) It narrates with accuracy the proceedings of the presbytery, by which the pursuers allege that they have suffered wrong; in particular it narrates the minute rejecting the presentee without taking any trial of his qualification, on the ground that a majority of the heads of families dissented from his call and settlement; and the narrative of the summons concludes with the following distinct summary of the civil wrong or injury which forms the ground and substance of the action at present before us. "Nevertheless, though the pursuer, "the said Robert Young, is duly qualified as a licentiate of the "Church of Scotland, and presentee foresaid, as well as in all other "respects, to be received and admitted minister of the church and parish of Auchterarder, and though no objections have been "stated against his qualifications, the presbytery not only refused, "and continue to refuse to take the pursuer upon trials, and to "pronounce judgment on his qualifications as presentee, or to ad"mit and receive him as minister of the said church and parish of "Auchterarder, but have by their sentence rejected him as presen"tee to the said church and parish without trial, and without tak"ing cognizance of his qualifications as presentee, and expressly on "the ground that they cannot and ought not to do so in respect of "a veto of the parishioners: In all which respects the said presby"tery, and the individual members thereof, have exceeded the powers conferred on them by law, and acted illegally, in violation "of their duty, and of the laws and statutes libelled, and that to "the serious prejudice of the patrimonial rights of the pursuers."

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Then follow the declaratory and petitory conclusions of the summons, which it is unnecessary to repeat. Some of the latter of these conclusions certainly admit of great doubt; but on the other hand, if there has been a violation of a civil right-a rejection of a qualified presentee without legal and sufficient cause, and without trial, this at least presents a case set forth with sufficient accuracy and precision in the summons to enable us to enter on the question.

I shall afterwards consider how far this court has jurisdiction to entertain and take any cognizance of the case. But at present, and in so far as relates to the form and structure of the Summons, I ask with the greatest deference, that this Writ be compared with any of the best models of summonses in our practice, on which cases of the highest importance have been tried in Scotland; and I feel persuaded, that according to whatever test it may be tried, it must be found at least thus far correct and complete, as to be fully sufficient for the trial of all the points which have been agitated in the present question.

No doubt it has been objected, that the Summons here does not set forth the particular statute among those libelled on, under

which it is maintained to have been incumbent on the presbytery to take trial of the presentee's qualifications; to which it is obvious to answer, that, as all the statutes recited in the outset of the summons, either give that particular right expressly, or by the most plain implication to the presbytery, it was quite unnecessary (as it would have been unusual according to our forms) again to quote it in any subsequent part of the summons.

Next, it has been said, that nothing is set forth in the summons as to the legality or illegality of Calls as an ecclesiastical proceeding, or as to the competency or nullity of the veto act, though it is added, that much argument has taken place on these topics in the course of the discussion. But to that, and to various other criticisms of the same description on the summons, it occurs to me as conclusive, to state, that it would have been alike superfluous and improper for the pursuers to have made any reference to calls in the summons. These did not necessarily form any parts of the pursuer's case. The ground of the action is, that a presentation by an undoubted patron to a qualified presentee, was rejected without cause by the presbytery. That, again, is met by the defence, that the presentee had not a sufficient Call, under the act of Assembly of 1834. This certainly opens up the whole question of Calls, and of the legality of the act of Assembly in 1834; because the pursuers, according to every system of pleading, are entitled to meet pleas in defence by the rejoinder, as to their competency and relevancy, which such pleas suggest.

Applying these observations to the present case, it is next proper to attend to the Record, where the pursuers make an averment, which, in fact, constitutes the whole of their case, while the defenders brought forward in full narrative, the procedure as to the call and the enactments of the act of Assembly, which, of course, form their justification. Accordingly, in article 11 of the condescendence, it is set forth, "That the foresaid sentence, whereby "the presbytery rejected the Rev. Robert Young, pursuer, as "presentee to the church and parish of Auchterarder, proceeded exclusively on the ground of the veto, or dissents exercised by "the alleged majority of heads of families, or parishioners of "Auchterarder."

To which this answer is made, " 11. Admitted."

The facts supposed necessary for the pursuers' case being thus fully and judicially established, the record of the defenders proceeds to narrate their proceedings as justified by the interim act of the General Assembly in 1834, (see statements by defenders, Arts. 10, 11, 15,) and of course the pursuers plead, and were entitled to raise pleas, that this act, as flowing from the authority of the Kirk alone, was ultra vires of the Assembly, and such as