wards found that the Crown was the true patron, and the stipend was therefore claimed by the Crown in preference to Dick, Lockhart's presentee and the minister settled by the presbytery. This was a very favourable case for Dick, and he was accordingly preferred both by the presbytery and this Court. This judgment, however, was reversed on appeal by the House of Lords, thus ascertaining the principle that the presentee of the true patron, and he alone, had right to stipend.

It was in this case, that Dick's counsel (President Craigie) stated, that if there had not been competing patrons, the settlement of Dick would have been a gross contempt of the laws of the land. And who can deny this on attending to the former cases of Auchtermuchty, Dunse, and Culross?

The fifth case is that of Forbes, (Lady Forbes v. M'William, February 1762.) Here there were competing patrons-Lord Forbes and Lady Forbes. This Court found against Lady Forbes, but this judgment was reversed by the House of Lords. In the meantime the presbytery had settled Lord Forbes's presentee-but it was found that he had no right to the stipend, and it was given to Lady Forbes, the true patron, or her presentee―agreeably to the cases already mentioned, which were referred to, and thus confirmed," It is a rule, that where there is any controversy about "the right of patronage, the ecclesiastical courts must stop till it is "determined,"-thus indicating the fixed and paramount right of the patron to grant a valid presentation.

The sixth case is that of Lord Dundas v. Presbytery of Shetland and Gray, 15th May 1795. This was truly stated to be a most important case. The facts of it are well known-too well. In it, the presbytery, on a call by the people, and after they knew that a presentation had been given to Nicholson, exercised the jus devolutum, and ordained and settled Gray. Lord Dundas did not go to the church courts, but at once brought a declarator against the presbytery and Gray, containing conclusions reductive of Gray's right, and alternatively the following declaratory conclusions.

"Or, at least, that it ought and should be found and declared, "that the pursuer, as undoubted patron of the said church and "parish of Unst, had, and has the only right and title to present "a minister thereto, in the room of the said Mr James Barclay, "the late incumbent; that he exercised his right as patron within "the time required by law, and that the presentation granted by "him in favour of the said Mr John Nicholson is valid and effec"tual; and was with the presentee's licence, certificate, and let"ter of acceptance, offered to the moderator of the presbytery, as "is usual in such cases, within the time law requires;-and, there"fore, that the said defenders, the presbytery of Zetland, ought

"and should be decerned and ordained, by decreet foresaid, to give "due obedience to the said presentation, and to proceed in the "settlement of the said Mr John Nicholson, with all convenient "speed, according to the rules of the church; and until the final "and conclusion of the process to follow hereupon, and that the said "Mr John Nicholson shall be settled in the said church and parish "of Unst, it ought and should be found and declared, by decreet "foresaid, that the pursuer, and the other heritors, liferenters, "and others liable in stipend to the minister serving the cure of "the said parish, are entitled to retain and withhold the stipend, "whether payable in money or in kind, and to prevent the said "Archibald Gray from taking possession of the manse, glebe, or "other rights and privileges belonging to the minister of the said "parish.'

This last conclusion could not be insisted in, as Gray was already settled. But decree passed in terms of the declaratory conclusions. Lord Dundas did not insist on the reductive conclusions; and had no occasion, for it was found that he had right to the stipend; and the result was, the settlement of Nicholson, whose name as minister of the parish appears, as I was told, in next year's almanack. Here all the redress was given that was asked for, or that the case required. The presentation was found to be valid and effectual, necessarily implying that the presentation and settlement by the presbytery were not valid and effectual.

In the present case matters are in a more favourable state for the pursuers. There is here no settled minister to eject. All that in substance is asked for, is to find that Mr Young's presentation is valid and effectual, if he shall be found qualified.

Lastly, we come to the two cases which lately occurred, relative to the settlement of a minister in the parish of Kiltarlity.

In the first (Baillie v. Morison, 28th February 1822,) two important points were decided. First, that it was competent, by suspension and interdict, to stop the presbytery from proceeding in the settlement. Second, that the parties, i. e. elders, heritors, and parishioners, had no title to object to the presentation or settlement. These are the very persons who here forbid the presbytery to proceed.

In the second, which was decided on the 10th June 1823, it was found that the presbytery was barred from objecting to a presentation, after having once sustained it. The new mode of so far sustaining had not then occurred to them. But the case is also of importance, as being a declarator at the instance of the presbytery. Yet it has been said that presbytery cannot be called as parties. Why-of the eight cases mentioned, the presbytery were parties in four, viz. those of Dunse, Zetland, and the two Kiltar

lity cases. Who else can be called in any action than the party by whom wrong is done or threatened?

Here the presbytery has done wrong, first, in refusing to take on trial; and, secondly, in rejecting the presentee. Besides, it threatens farther wrong; and the wrong which it threatens is not matter of speculation or conjecture, but of certainty; for in pursuance of what they have done, and in consistency with it, they must proceed to exercise the jus devolutum. If they were not to do so, it would be a complete admission that what they had already done was wrong; that the Veto Act was not binding on them; and that they were to disobey it. It is against this future proceeding that the pursuers ask for protection; and we are bound, I think, to afford it to them.

Recurring to the decisions, I think they establish all the points maintained by the pursuers. It is most true that none of those decisions is precisely in point. There was no Veto Act, and they cannot relate to a nonentity. Indeed, so far as relates to this act, no similar or analogous case can possibly, I believe, be found. You will in vain search the records of all judicatories, civil and ecclesiastical, and of all the legislative bodies existing, no such act, giving an uncontrollable and arbitrary Veto, will be found in any of them.

But setting this aside, the decisions establish every point. 1. That the proper parties are here called; 2. That in questions relating to matters ecclesiastical, this Court has jurisdiction to assert and protect civil rights; 3. That those very rights which the pursuers are here vindicating, which rights have already been invaded, and are threatened with further invasion, are just those rights for the assertion and protection of which, your Lordships have in all the cases mentioned, exercised your jurisdiction.

I am therefore for repelling the defences. Judges, in administering law, have no discretion. In the discharge of this sacred duty we are not to be intimidated or influenced by acts of Assembly, or by resolutions of either House of Parliament. The first duty to which our oaths binds us, is to administer the law of the land; and from this duty nothing can hinder or deter us, but an Act of Parliament, an act by which the law itself is changed.

I am bound to come to this conclusion, but I should come to it with much regret, if I thought that it could be hurtful to the Church of Scotland. I had the honour, for a considerable period, of a scat in the General Assembly, though for several years, I have ceased to be a member of it; and I am still a sincere friend to the Church, and nearly connected with it. My grandfather was a minister of the Church of Scotland; one of his sons after him was also a clergyman, distinguished by his piety, his

learning, and his usefulness :-I am proud of such connexions, -they serve to attach me, in every way, and by every tie, to the National Church, of which I have always been a member. As a sincere well-wisher of the Church, I repeat, that I should deeply regret any judgment that might be hurtful to it; but I console myself, by taking an opposite view of the effects which will be produced, if our judgment should be in favour of the pur

suers.

Here I intended to read, but in this I have been anticipated by your Lordship, the concluding passage of Sir Henry Moncreiff's excellent pamphlet, where he states, that the practical effect of the Church Establishment in Scotland, on the information, the morals, and religious character of the people, equals, if it does not surpass, whatever can be imputed, on the same points, to any other church in the world.

This, was well, and truly said :-It was true at the time;-it is true still; and, long may it continue to be so. The Church of Scotland, is a beautiful and solid fabric:-It rests on durableon eternal foundations: It has nobly fulfilled, and continues to fulfil, the important purposes for which it was intended; and I, for one, am unwilling to tamper with so fair, and useful an edifice.

Wednesday, February 28.

THE LORD PRESIDENT.-"LORD JUSTICE-CLERK."

THE LORD JUSTICE-CLERK.-My Lord President, in explaining the grounds of the opinion which I am about to deliver in this important case, I must begin with stating, that I can yield to no one in a sincere and ardent regard for the welfare and interests of the Church of Scotland, of which I am, and have always been a member, and in the General Assembly of which, I had the honour to hold a seat as an elder for the long period of forty-one years. I must not, however, disguise from your Lordships, that having in that capacity taken a part from the beginning in these discussions in the General Assembly, that ultimately led to the Act of 1834, I was called upon to form, and did form according to the best of my ability, a decided opinion upon the question which was then determined by the Assembly,-that I gave my voice against that enactment, -and that I also dissented, with many others of the minority, from the passing of that Act. I went, however, no farther than to warn the Assembly of the risk that might be incurred, of the Church being brought into collision with the law of the land; and foreseeing the possibility of civil suits being afterwards instituted, I purposely abstained from concurring in the separate Reasons of Dissent, which, on the special ground of the illegality of the act of the Assembly, in a civil point of view, were entered upon the record, by a learned person well known to your Lordships That which I anticipated having taken place, by the institution of the present action, I came to the discussion of the important question of civil right raised by it, prepared to listen with attention to every thing that could be urged on either side. But should the decision of this question prove in any way detrimental to the interests of the Church of Scotland, I have the satisfaction of knowing, that it can in no degree be ascribable to the large minority of the Church, who were upon principle opposed to the uttermost to that act of the General Assembly 1834, from which alone the present litigation has originated.

Keeping in view the facts as appearing on the record, and the proceedings of the presbytery of Auchterarder, in reference to the presentation by the Earl of Kinnoull, the undoubted patron of that parish, in favour of Mr. Robert Young, a regular licentiate of the Church of Scotland, and apparently possessed of the re

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