is the argument; but is that the state of things during the last 21 years by the Act of 1690? It is as utterly different as any one thing can be different from any other, for the Act of 1690 does not prescribe any presentment by the patron to the Presbytery. It prescribes a presentment by the heritors and kirk-sessions to the congregation. The Act of 1690 does not prescribe a dissent or assent by the congregation without reasons. It prescribes a statement by the congregation of reasons for or against the presentee. The Act of 1690 does not prescribe an absolute binding of the Presbytery by the assent or dissent of the people. It prescribes a cognoscing by the Presbytery, and an adjudicating by the Presbytery upon cognoscing, that is to say, upon examining those reasons. Consequently, two things more completely different than the state of matters as it existed between 1690 and 1711, and that which is now contended for by the Presbytery against Mr Young as the relative position of the parties under the proviso, cannot possibly be imagined.

My Lords, I hold this to be quite conclusive. I hold this to be demonstrative that there is no foundation whatever for this construction sought to be put upon the Act 1711. It is equally clear that this argument might be admitted without benefit to the Appellants, or damage to the Respondents, to its full force. I think it is very absurd,-I think it is grossly indecorous towards the Legistature,-I think it is mocking the Legislature, to suppose that they did so great an absurdity, as to say that they meant to repeal an act, and yet to keep that act in force. But still I will admit, for argument's sake, that the construction is both decorous and well grounded, that the Act of 1711 left the matter of presentment and induction precisely upon the footing upon which it stood immediately before 1711. The Appellants cannot require a larger concession than this. Then what follows?-Not the advancement of their argument by one hairs-breadth; for what men did before 1711 and after 1690 is not what the Appellants have done, is not what they pretend to do,-is not what they contend for the right of doing. Therefore it appears to me perfectly evident, that this construction of the Act of Anne is wholly groundless; that the Act of Queen Anne repealed the Act of 1690, restored the right of patronage, and left that right of patronage precisely as it stood before the Act of 1690. But it is said to be a very strained and fanciful construction to import into the Act of Queen Anne those words, as matters stood before 1690.' My Lords, I am not importing those words, or any others; but the meaning of the Statute of Anne, so plain that he who runs may read, is to abrogate the Act 1690, and, therefore, to leave things as they stood before 1690. The Act of Anne says, Let the Statute of 1690 be entirely out of

the field; let it be abolished altogether.' Then it equally says, for this is implied, Let matters be as they were before that re'pealed Act passed.' When you repeal an act in one year, which was passed twenty years before, of necessity, and by the abrogation, you restore things to the state in which they were twentyone years before. If there comes, at the end of an act of Parliament, a clause about which some doubt is sought to be raised, are not you to adopt one or other construction of that clause, according as it makes out, or does not make out,-according as it helps, or frustrates, the plain and obvious meaning of the whole statute itself? That is an ordinary and simple principle of construction, not only of all acts of Parliament, but of all instruments, all wills, all deeds, and all writings whatever. Far from being fanciful, it is the plain rule of common sense. Far from being strained, it is the only natural course. These, therefore, are the grounds upon which I have come to the conclusion, that the judgment must be affirmed. I wish I could have stated them more shortly. If I had had time to digest my judgment, and, as I usually do, to reduce it into writing, I should have spared your time; but it was a choice of evils, because I must either give my judgment at greater length, and less compression, than I could have wished, or I must delay giving it, and that was on all accounts to be avoided if possible.

Now, my Lords, although these views satisfy my own mind, yet, in consideration of the importance of the question, and by way of confirming the view I have taken of the construction of the statute, I think it may be advantageous, that we should just look at the subject in different lights, that we should see it from various points of view, for the purpose of observing whether this consideration of it, in those various lights, and seen from different quarters, may not aid the decision to which, by other means, we have arriv. ed. First it is admitted, on all hands, that neither the General Assembly, nor any Consistorial Court, has any vocation to adjudicate on merely civil rights.-That is granted on all hands.—It is allowed by every reasoner on these subjects, that, if a question arises whether A has the patronage of a certain parish, or C, this is for the courts civil, and not for the courts spiritual :—It is admitted fully, and without any hesitation whatever, that the ecclesiastical courts are confined to spiritual matters, and that the temporal courts have exclusive jurisdiction over civil matters; consequently it is certain, that if this were a proceeding, or if the grounds whereupon it is sought to be rested were arguments, that affected the rights of the patron, the claim of the Presbytery could not be sustained; nor could the General Assembly, which passed the Act of 1834, deal with those civil rights.-Now, let us see whether they have dealt with those rights: Let us see whether

that is not the effect of the Act of 1834, passed by the General Assembly, acted upon by the Presbytery, maintained in argument as the title of the Appellants,-for though I have not mentioned that Act of Assembly, yet I have argued all along with reference to it in considering the argument of the Presbytery; and if I have defeated that argument, I have defeated the right of the General Assembly, subject to an observation as to the question of jurisdiction hereafter to be made. Now, it being admitted that the Assembly has no jurisdiction to judge of civil rights, I apprehend that we shall have the same admission, that if the church court has no power, as a judicature, to interfere with the civil rights of patrons, in any one case, still less can it have any power as a legislature, by one sweeping provision, to abrogate all those rights, in all cases. But let us see whether the Assembly does not interfere directly, and almost avowedly, with the rights of patrons by the Act 1834.

What they say is this, The Patron has a right to present, We sustain that right; but the people have a right to dissent, and to reject the presentee. Now, what is the people's dissent? It is saying, without a reason assigned, that they do not like this man: It is saying that they prefer another: It is saying that they prefer any other: It is saying they will not have him. What does that mean? Under what general expression would you convey the different meanings which all these particular and detailed forms of expression comprehend? I should think choice-election. Refusal to choose,-refusal to elect, is at least one-half of choice, and one-half of election, because election consists in selection and in choice, affirmatively; it consists, negatively, in rejection of all others, in refusing to choose all others but its object. If I select A, I reject B, C, D, &c.: If I reject A, I exercise a negative power of choice, I exercise the right of choosing some other person than A, or of saying to the patron Z, he shall not choose A, that is quite certain,-I may cover it over by whatever circumlocution I please; I may say that he is not acceptable to me: A person being acceptable to me is the reason why I choose him; a person not being acceptable to me is the reason why I reject him : But because I say he is not acceptable, I do not deny that I exercise choice; I exercise the negative choice of saying either I prefer another to him, and that is one reason, or I prefer every other to him, and that is another reason. Does not this interfere with a man's right of choice? It is taking half of it away from him. It is saying, you, the patron, have the right of choice, but upon one condition, namely, that you choose the person that I, the congregation, wish. It is saying, I admit I have no right whatever of choice; the whole choice is vested in you, the patron, but upon this one condition, that you choose the person that I

would have chosen if I had been to begin: That is the meaning of it. You shall choose whoever you please; that is the meaning of choice: Whoever you please to choose is the man; that is the meaning of choosing: Well, say the Congregation, the Presbytery, the General Assembly, Whoever you choose shall be the man upon this only trifling condition, that you must choose no other person except the man we choose. Who is the chooser there? I think the second person is the chooser rather than the first. If I were to choose, if I may so speak, between the position of the patron, and the position of the congregation, I would much rather be the congregation than the patron, as regards the choice of A or the choice of B, because the patron may choose A, B, C, and go on to the end of time, and the congregation will always reject him till he happen to hit upon X, the particular person they choose.

Now this illustrates the nonsense of saying, that the kirk courts do not interfere with the rights of the patron. My Lords, I cannot help casting my eye back to the former times of the Scottish Church, and endeavouring to figure to myself the contempt, the scorn, the indignation, with which such a man as my most venerable relation, who once led that General Assembly, one of the greatest men that Scotland ever produced, one of the greatest historians, and one of the greatest statesmen, one of the most accomplished orators which any age of this, or any other country has ever seen.-What would Dr Robertson have said to such pretensions, so couched, and so covered? When he led for so many years the General Assembly, when he took that wellknown part on the question of patronage which was supposed to have settled it for ever, that very part which the Presbytery and the General Assembly of our day have not taken, and in the face of which they have done all these things, it is not difficult to conceive what reception his manly, practical, understanding would have given to the doctrine of 1834. 'We do not interfere with the rights of patrons-they may choose whom they please-but we tell both patron-both patron and people that if any body is chosen by the former whom the latter dislikes, the ' choice shall go for nothing.' His manly and practical understanding, aye, and the honest nature of his venerable colleague, Dr Erskine, who differed from him, toto cælo, upon the question of Church patronage, (though their difference never threw any shade across the intercourse of the two friends in private life,) how would his honest mind have received the subterfuge, upon which the distinction of the present day is sought to be raised— the paltry subterfuge that the rights of the patron are preserved, but the veto of the parish let in? Aye, or another light of the Church, a man of as honest a nature, as sound and sagacious an

understanding as ever flourished in any sphere, a great leader of the General Assembly, though not of Dr Robertson's party, I mean my venerable Friend the late Sir Harry Moncreiff, what would he have now said? I doubt whether any man could have dared to use such arguments as have been invented at the present time if he had been living: I doubt whether those subtleties would ever have been ventilated in his presence; but I know, if they had, how swiftly they would have been blown away out of the General Assembly, and out of whatever kirk court, be it Presbytery, or Synod, or Consistory, or Council, had ever suffered them to flutter about within the dark walls of the aisles of their sanctuaries for the fraction of a second of time: For if there ever was a man who despised such subtleties, and sophistries, it was that man :If ever there was a man who knew and practised the true rule of honest morals, as well as sound judgment and good policy, it was that man, I mean the rule of never trying to do indirectly, what you dare not do openly, and manfully, and avowedly; and never to seek to escape from, or to shelter yourself from the natural and just consequences of your own proceedings by myste rious generalities, and vague phrases, and shadowy distinctions, which, as they never for a moment do deceive yourself who practise them, never can, in such cases, deceive any one else.

Then, my Lords, it is said, (to make it still more absurd,) that the congregation have a right to say, we do not choose this man -we prefer another to him-we prefer any other to him—w like him less than any other man that can be mentioned, and, therefore, we will not have him; and this decision of the congregation is to bind the Presbytery. But, observe, all the while the congregation themselves are not bound by it; for a few moments after they have said that they prefer any other man to A, you present B to them, who is another man than A;-and they may refuse him as they did A. You may present twenty people after A, but they are not bound to take any of them. That is exactly the state of the argument. The patron says, I choose A, he has a right to say so-the Presbytery sustains his right,the General Assembly sustains his right, he is not called upon to say why he prefers A;-if he chooses A, and A is a qualified person, the choice is in him to select a qualified person;-Oh, but, say they, the people shall be called in; and the people say, we do not choose A, and without giving any reason. Now, I say, no two things are so impossible to exist together in the same world, as the absolute right to choose, on the part of one person, without a reason, and the absolute right to refuse, on the part of another person, without a reason, unless you mean to say that they have a joint choice; and that has been said for the first time in the history of the Scottish Church, and in the history of