the Scottish Courts, and the history of Scottish jurisprudence, Ecclesiastical and Civil, by the Act of the Assembly of 1834, and by the Presbytery acting upon that act of the Assembly in this instance.

But then, it is said, that they would not exercise this veto, as it is called, (or right of dissent as it is translated, by way of making it more fatal to the argument which rests upon it,) capriciously; they would do it conscientiously, and they would not refuse a man without reasons. My Lords, I do not much understand, and do not at all approve of a confidence sought to be reposed in persons whom you vest with the power of acting without a reason, and do not call to give any reason at all, and yet are to confide in their always acting correctly, always exercising it conscientiously. But the patron is also to exercise his choice conscientiously: The law does not assume, it does not protect him in the capricious, or wanton, exercise of what is a kind of public trust. It is a right of private property, but it is to a certain degree a trust for the benefit of the Church. And I am sure that if a patron, either in Scotland, or England, were to present a party to the Bishop, here, or to the Presbytery, there, whatever his motive might be if it were a bad one, he would be slow to avow it: He would not say I presented this man because he is a pot-companion, or because he is the nephew or the brother of a mistress, or a complying husband: Those are all bad motives; he would not avow them, if he acted on them: They might influence him, but he would not say so. Nor will the people avow that they refuse a man because he is too strict in his doctrine, which makes him the better pastor; because he is a man of a high moral sense of duty, and will not overlook scandalous crimes in his parishioners; because he is one who will preach the word faithfully, and be instant for righteousness in season, out of season, as his duty to his Master prescribes, and as his Master and his Apostles have enjoined: No congregation will say, Because that is a man likely to preach against notorious enormities practised by us the parishioners, and refuse us access to the sacraments of the Church if we are of impure life, because he will catechise us, and insist upon our attention to our spiritual concerns in the performance of his ministry, we do not like him: No congregation will openly avow such motives; but they may be motives which influence them all the while, and this Act of the General Assembly allows the fullest scope to such motives, because it does not require any reason whatever to be given, and the reason, if it were given, is not required to be cognosced and judged upon by the Presbytery: Consequently they place things upon a very different footing from the Act of 1690. The Act of 1690 had some sense, it had some consistency, it made some pro

vision for the right government, and right filling of the Church, for it said, If any man has any reason to propound against the presentee, let him state that reason to the Presbytery, and let the Presbytery judge of the sufficiency thereof, or of the truth of the facts upon which it is grounded. But not so the Act of 1834: It says, whoever is presented shall undergo the ordeal, not of examination by the Presbytery, but of gossip among the people; and if the people choose to say they will not have him, though the reasons at the bottom of their refusal may be the very things, in all the world, that make him the fittest minister for the parish, he shall be rejected simply, and finally; and rejected only because the people say, We will not have him. That is the Act of 1834, and therein lies its material difference even from the repealed Act of 1690, which our ancestors 120 years ago thought so unfit, so inconvenient, and so mischievous, that they utterly and absolutely repealed it.

Dolus versatur in generalibus, is a maxim of the civil law adopted by all our Courts, frequently referred to by the Judges, nowhere more frequently than in the Scotch courts, and one which I have often times heard cited, both in the General Assembly and in the civil courts. When a Quare impedit was once brought in England-where the right of the patron is precisely the same as in Scotland, for he must present a qualified person, and the Bishop is to judge of his qualification for the sacred office, that is to say, his literature, his life, and conversation, and his orthodoxy, which comes within literature, and may, according to the Calvinistic creed, come both within literature, and life, in Scotland,-I am alluding to Specot's case, (in the 5th Rep. 58.) a leading authority here as to the limit of the Bishop's power -when Specot was presented by the patron, and refused by the ordinary, it was held not to be sufficient for the Bishop to return, generally, that he was non idoneus;' But if he had answered minus sufficiens in literatura,' that, it was held, would be sufficient; and as the Court have no organs to say whether he is, or not, the Bishop shall decide it, because literature is matter of clerical qualification, and clerical cognizance. It is remarkable that the Judges assign for a reason why the general return ‘non 'idoneus' will not do, Quod dolosus versatur in universalibus." If they will not allow the Bishop or the Presbytery merely to say, non idoneus,' without specifying in what; much less will they allow it to be said, We will not have you ;' they must say why; and then the Judges add, For if it were otherwise the patron's ' rights might be prejudiced;' so that, holding the patron's rights might be prejudiced by a general answer, they require a specifi

cation.

6

This I throw out in answer to what may seem an objection,

though it was not much relied upon at the Bar, to the course of my present argument. It may be said, if the Presbytery had only said We refuse him,' without saying why, nobody would have touched their decision. In the first place, my Lords, I do not deny that, if such had been the return of the Presbytery, just as the Bishop's return was to the Quare impedit in Specot's case, it would have made our proceedings a good deal more difficult. The case for the Respondent would then have rested upon different grounds; it would not have been the same case, and would not have been tangible by the same arguments by which this case is touched. But I say, in the next place, that a general refusal, without assigning any reason, would not be legal and valid, on the part of the Presbytery, any more than the Bishop's refusal was valid, who, in Specot's case, merely said non idoneus.' He must point out some non idoneitas' to the Court, of the relevancy, of which we, and not he, are entitled to judge; some qualification, or want of qualification, of which he has exclusive cognizance. But I am not called upon to dispose of that point, because it is not before us. The Presbytery have not sheltered themselves under a general refusal. They have come so far to particulars, that they have said, We refuse him, though a regularly presented person, though a perfectly qualified person, and we reject him because the majority of heads of families in the parish dissent without giving any reason, and we are bound by their dissent; that is their return, and that is a totally different case from the one now put. I understand the Act of the General Assembly to specify a majority of male heads of families. Is it not so, Mr Attorney?

MR ATTORNEY-GENERAL-Yes, my Lord, those are the terms.

LORD BROUGHAM.-I think the Lord President refers to that in his plain, distinct, and highly judicial view of the case,- The 'male heads of families,' what is the meaning of that? Who are the male heads of families? The men are to decide, it seems. Shall nothing be said of women in the matter of salvation, and in the administration of the Church to which they belong? We are living under the Christian and not under the Mahomedan law. But it is the male heads of families.' Now suppose there are three or four single women, pious women, in communion with the Church, and three or four widows: These may constitute a majority of the whole communicants: Are they to have no interference, never to be consulted at all? Oh, no, the General Assembly says, they must take whoever the males of the parish choose to impose upon them for their edification. But heads of families; why not lodgers: Why not a respectable and well informed journeyman? Why not a respectable scholar, more

learned than all the parish together? Is he to have no voice quoad sacra, though perhaps a communicant more regular at the altar than any one? No, 'The male heads of families,' says the General Assembly, The male heads of families.' Now all this exclusion of females, and of lodgers, may be right, or it may be wrong; but it is not self-evident which: It is not of necessity right; and it does not follow from the nature of Church discipline, it does not follow as a necessary consequence from the nature of the case at all: It is an arbitrary, it is a gratuitous, it may be a capricious selection of a judicature by the General Assembly-and that leads me to my next observation.

If the General Assembly have a power to impose the will of this kind of majority upon the whole parish, Have they not equally the power to make a totally different arrangement altogether? Can any one earthly reason be propounded which justifies the present criterion adopted by the Assembly, the majority of heads of families in communion with the Church, which would not just as well, and for the exactly same reasons, and precisely on the same grounds, have justified a totally different scheme of induction altogether? Suppose it had been enacted thus provided that he shall be acceptable to the majority of the Synod; that is a very important body: Or, provided he shall be acceptable to and chosen by, or not rejected by a Commissioner whom the Assembly shall appoint for that purpose to superintend as they have done, in former times.-Because I read to your Lordships out of the Book of Discipline, and I read to you out of an act, that at one time the superintendence and control was given to Commissioners appointed by the Kirk to regulate the presentment and induction of ministers. They might have done that. Or I will tell you what they might have done, and for ought I know it is the next thing they will do, if you allow them to do what is now attempted. They might have said -provided he be agreeable to the Presbytery of the bounds; who could object to that? Is it impossible they should do that? My Lords, it is so far from being impossible, that they have done it already. There was an Act in 1576 made by the General Assembly, by which it was provided, that none seek preferment without the advice of the Presbytery :-That was for a season the law of the Kirk: The Assembly may now revive it, and the Legislature may make that Law, now, which out of the Kirk courts was the law before; but has the General Assembly any right to do so? Has the Church judicature and the General Assembly, which by the common law of the land, and by statutory enactment, is limited to ecclesiastical concerns, a right to do that? For the statutory enactment of the year 1592 is revived in all particulars by the Act of 1690, cap. 5. except as to patronage, and that is disposed of by the subse

quent Act of 1690, cap. 23, which is repealed by the 10th of Queen Anne; but the other is not repealed: The Act of 1592 is to all intents and purposes revived; and among other intents and purposes to that of defining, chalking out, and limiting the bounds, and the functions, of the ecclesiastical jurisdiction. By all these rules, by the common law, by the Parliamentary Constitution of the country, by statutory enactment, by the Act of 1592, by the Act of 1711, it is the province of the General Assemby, and the Inferior Church Courts, to take cognizance of Church matters, and to make regulations touching ecclesiastical concerns, and ecclesiastical concerns alone, and they are excluded, they are barred and shut out from any cognizance of civil patrimonial rights; and not only of civil patrimonial rights directly, but of those things which in directly affect civil patrimonial rights. They cannot do per nefas what they cannot do per fas: They cannot do indirectly what they cannot do directly. They have a right to make rules as to qualification, and they have a right to make rules as to who shall judge, and how they shall judge, upon qualification; because qualification is admitted, upon all hands, to be a matter of ecclesiastical cognizance. But they have no right to make a rule as to who shall be chosen, and how he shall be chosen, when the patron presents him: They have no right to transfer from the patron, either the whole, or the half-and in this case they have transferred by far the larger half-of the choice and selection of the presentee. But one thing is perfectly clear, that no grounds in reason, which the General Assembly can advance for its right to make the Act of 1834, giving a veto to the congregation, can be conceived to exist, which could not give them precisely as complete a power, and as undeniable a right to give a veto to the Presbytery of the bounds, that is to say, to repeal the Act of Anne, and to revive the Act, long since repealed, of 1576, which alone, and for the first time, assumed the choice to the Presbytery.

It is now fit that I should advert to one topic which certainly, at first, did seem to impose some difficulty upon those who maintained the judgment of the Court below. There is a great difference, it was said, between the location or admission of a minister in Scotland, and the admission of a clerk by the ordinary in England, inasmuch as, in England, the person having the advowson presents his clerk, a person already ordained to the Bishop; whereas, in Scotland, the presentee is ordained and inducted unico contextu by the Presbytery,-that Presbytery being beyond all doubt the only judge of ordination, with which the Municipal Court has no right whatever to interfere: Ordination, it was said, is, then, mixed up with the induction, and cannot be severed from it. But, in the first place, we must look to the case before us: The severance here, at least, is complete: The