may be cognosced upon by the Presbytery of the bounds, at whose judgment, and by whose determination" (as is declared by the said Act), "the calling and entry of a particular minister is to be ordered and concluded: "

AND WHEREAS the said Act last mentioned formed part of the settlement of the Presbyterian Church government effected at the Revolution, and was one of the "Acts relating thereto," and to the statute 1690, c. 5, specially confirmed and secured by the Act of Security and Treaty of Union; yet, notwithstanding thereof, and of the said Treaty, the Parliament of Great Britain, by an Act passed in the 10th of Queen Anne (10 Anne, c. 12), repealed the said Act, "in so far as relates to the presentation of ministers by heritors and others therein mentioned,” and restored to patrons the right of presentation, and enacted that Presbyteries should be "obliged to receive and admit in the same manner, such qualified person or persons, minister or ministers, as shall be presented by the respective patrons, as the persons or ministers presented before the making of this Act ought to have been admitted:"

AND WHEREAS, while this Church protested against the passing of the above mentioned Act of Queen Anne, as "contrary to the constitution of the Church, so well secured by the late Treaty of Union, and solemnly ratified by Acts of Parliament in both kingdoms," and for more than seventy years thereafter uninterruptedly sought for its repeal, she at the same time maintained, and practically exercised, without question or challenge from any quarter, the jurisdiction of her Courts to determine ultimately and exclusively, under what circumstances they would admit candidates into the office of the holy ministry, or constitute the pastoral relationship between minister and people, and, generally, "to order and conclude the entry of particular ministers:"

AND WHEREAS, in particular, this Church required, as necessary to the admission of a minister to the charge of souls, that he should have received a call from the people over whom he was to be appointed, and did not authorize or permit any one so to be admitted till such call had been sustained by the Church Courts, and did, before and subsequent to the passing of the said Act of Queen Anne, declare it to be a fundamental principle of the Church, as set forth in her authorized standards, and particularly in the Second Book of Discipline (ch. iii. sec.5), repeated by Act of Assembly in 1638, that no pastor be intruded upon any congregation contrary to the will of the people:

AND WHEREAS, in especial, this fundamental principle was, by the 14th Act of the General Assembly 1736 (c. 14), re-declared, and directed to be attended to in the settlement of vacant parishes, but having been, after some time, disregarded in the administration of the Church, it was once more re-declared by the General Assembly 183+ (c. 9), who established certain specific provisions and regulations for carrying it into effect in time to come:

*

AND WHEREAS, by a judgment pronounced by the House of Lords, in 1839, it was, for the first time, declared to be illegal to refuse to take on trial, and to reject the presentee of a patron (although a layman, and merely a candidate for admission to the office of the ministry), in consideration of this fundamental principle of the Church, and

* Auchterarder Case, 1839.

in respect of the dissent of the congregation; to the authority of which judgment, so far as disposing of civil interests, this Church implicitly bowed, by at once abandoning all claim to the jus devolutum,—to the benefice, for any pastor to be settled by her, and to all other civil right or privilege which might otherwise have been competent to the Church or her Courts; and anxiously desirous, at the same time, of avoiding collision with the Civil Courts, she so far suspended the operation of the above mentioned Act of Assembly, as to direct all cases, in which dissents should be lodged by a majority of the congregation, to be reported to the General Assembly, in the hope that a way might be opened up to her for reconciling with the civil rights declared by the House of Lords, adherence to the above mentioned fundamental principle, which she could not violate or abandon, by admitting to the holy office of the ministry a party not having, in her conscientious judgment, a legitimate call thereto, or by intruding a pastor on a reclaiming congregation contrary to their will; and farther, addressed herself to the Government and the Legislature for such an alteration of the law (as for the first time now interpreted), touching the temporalities belonging to the Church (which alone she held the decision of the House of Lords to be capable of affecting or regulating), as might prevent a separation between the cure of souls and the benefice thereto attached:

AND WHEREAS, although during the century which elapsed after the passing of the said Act of Queen Anne, Presbyteries repeatedly rejected the presentees of patrons on grounds undoubtedly ultra vires of the Presbyteries, as having reference to the title of the patron or the validity of competing presentations, and which were held by the Court of Session to be contrary to law, and admitted others to the pastoral office in the parishes presented to, who had no presentation or legal title to the benefice, the said Court, even in such cases, never attempted or pretended to direct or coerce the Church Courts, in the exercise of their functions in regard to the collation of ministers, or other matters acknowledged by the State to have been conferred on the Church, not by the State, but by God himself. On the contrary, they limited their decrees to the regulation and disposal of the temporalities which were derived from the State, and which, as the proper subjects of "actions civil," were within the province assigned to the Court of Session, by the Constitution refusing to interfere with the peculiar functions and exclusive jurisdiction of the Courts of the Church. Thus,—

66

In the case of Auchtermuchty,* where the Presbytery had wrongfully admitted another than the patron's presentee, the Court found, "That the right to a stipend is a civil right; and therefore that the Court have power to cognosce and determine upon the legality of the admission of ministers in hunc effectum, whether the person admitted shall have right to the stipend or not; and simply decided, that the patron was entitled to retain the stipend in his own hands. So also, the same course was followed in the cases of Culross, Lanark, and Forbes; † in reference to one which (that of Lanark), the Government of the country, on behalf of the Crown, in which the

*Moncrieff v. Maxton, Feb. 15, 1735.

Cochrane v. Stoddart, June 26, 1751. Dick v. Carmichael, March 2, 1753. Forbes v. M'William, February 1762.

patronage was vested, recognized the retention of stipend by the patron, as the only competent remedy for a wrongful refusal to admit his presentee; the Secretary of State having, in a letter to the Lord Advocate of Scotland (January 17, 1752), signified the pleasure of his Majesty, "directing and ordering his lordship to do every thing necessary and competent by law, for asserting and taking benefit in the present case of the said right and privilege of patrons by the law of Scotland to retain the fruits of the benefice in their own hands till their presentee be admitted."

66

So farther, in the before mentioned case of Culross.* the Court refused, as incompetent," a bill of advocation presented to them by the patron, for the purpose of staying the admission by the Presbytery of another than his presentee.

So likewise, in the case of Dunse,† the Court would not interfere in regard to a conclusion to prohibit the Presbytery "to moderate in a call at large, or settle any other man," because "that was interfering with the power of ordination, or internal policy of the Church, with which the Lords thought they had nothing to do."

And so, in the same manner, in the case of Unst, where the party concluded to have the Presbytery ordained to proceed to the presentee's settlement, as well as to have the validity of the presentation and the right to the stipend declared, the Court limited their decree to the civil matters of the presentation and stipend:

AND WHEREAS, pending the efforts of the Church to accomplish the desired alteration of the law, the Court of Session,-a tribunal instituted by special Act of Parliament for the specific and limited purpose of "doing and administration of justice in all civil actions,” (1537, c. 36), with judges appointed simply "to sit and decide upon all actions civil," (1532, c. 1),-not confining themselves to the determination of "civil actions,"-to the withholding of civil consequences from sentences of the Church Courts, which, in their judgment, were not warranted by the statutes recognizing the jurisdiction of these Courts,to the enforcing of the provision of the Act 1592, c. 117, for retention of the fruits of the benefice in case of wrongful refusal to admit a presentee, or the giving of other civil redress for any civil injury held by them to have been wrongfully sustained in consequence thereof,-have, in numerous and repeated instances, stepped beyond the province allotted to them by the Constitution, and within which alone their decisions can be held to declare the law, or to have the force of law, deciding not only "actions civil," but "causes spiritual and ecclesiastical,”and that, too, even where these had no connection with the exercise of the right of patronage, and have invaded the jurisdiction, and encroached upon the spiritual privileges of the Courts of this Church, in violation of the constitution of the country-in defiance of the statutes above mentioned, and in contempt of the laws of this kingdom: as for instance

By interdicting Presbyteries of the Church from admitting to a pastoral charge, § when about to be done irrespective of the civil benefice attached thereto, or even where there was no benefice-no right of patronage-no stipend-no manse or glebe, and no place of worship, or any patrimonial right, connected therewith. ||

* Cochrane, November 19, 1748.

† Hay v. Presbytery of Dunse, February 26, 1740. Lord Dundas v. Presbytery of Shetland, May 15, 1795. 1st Lethendy Case.

Stewarton Case.

*

By issuing a decree, requiring and ordaining a Church Court to take
on trial and admit to the office of the holy ministry, in a particular
charge, a probationer or unordained candidate for the ministry, and
to intrude him also on the congregation, contrary to the will of the
people;-both in this, and in the cases first mentioned, invading
the Church's exclusive jurisdiction in the admission of ministers,
the preaching of the Word, and administration of Sacraments-
recognized by statute to have been "given by God" directly to the
Church, and to be beyond the limits of the secular jurisdiction.
By prohibiting the communicantst of the Church from intimating their
dissent from a call proposed to be given to a candidate for the mi-
nistry to become their pastor.

By granting interdict against the establishment of additional ministers
to meet the wants of an increasing population,‡ as uninterruptedly
practised from the Reformation to this day: against constituting a
new kirk-session in a parish, to exercise discipline; and against
innovating on its existing state, as regards pastoral superinten-
dence, its kirk-session, and jurisdiction and discipline thereto be-
longing."
By interdicting the preaching of the gospel, and administration of ordi-
nances,§ throughout a whole district, by any minister of the Church
under authority of the Church Courts; thus assuming to themselves
the regulation of the "preaching of the Word" and "administra
tion of the Sacraments," and at the same time invading the privi-
lege, common to all the subjects of the realm, of having freedom to
worship God according to their consciences, and under the guid-
ance of the ministers of the communion to which they belong.
By holding the members of inferior Church judicatories liable in da-
mages for refusing to break their ordination vows and oaths
(sworn by them, in compliance with the requirements of the sta-
tutes of the realm, and, in particular, of the Act of Security em-
bodied in the Treaty of Union), by disobeying and setting at defi-
ance the sentences, in matters spiritual and ecclesiastical, of their
superior Church judicatories, to which, by the constitution of the
Church and country, they are, in such matters, subordinate and
subject, and which, by their said vows and oaths, they stand pledged
to obey.

By interdicting the execution of the sentence of a Church judicatory,
prohibiting a minister from preaching or administering ordinances
within a particular parish, pending the discussion of a cause in
the Church Courts as to the validity of his settlement therein.
By interdicting the General Assembly and inferior Church judicatories
from inflicting Church censures; as in one case, where interdict
was granted against the pronouncing of sentence of deposition upon
a minister found guilty of theft, by a judgment acquiesced in by
himself; ** in another, where a Presbytery was interdicted from
proceeding in the trial of a minister accused of fraud and swind-
ling;tt and in a third, where a Presbytery was interdicted from
proceeding with a libel against a licentiate for drunkenness, ob-
scenity, and profane swearing.‡‡

By suspending Church censures, 22 inflicted by the Church judicatories in the exercise of discipline, (which, by special statute, all "judges and officers of justice" are ordered "to give due assistance" for making "to be obeyed, or otherwise effectual"), and so reponing ministers suspended from their office, to the power of preaching and administering ordinances; thus assuming to themselves the "power of the keys."

Marnoch Case.

1 Daviot Case.

1 Stewarton Case.

2d Auchterarder Case.
Culsalmond Case.
**Cambusnethan Case,

†† Stranraer Case.
# 4th Lethendy Case.
1st and 2d Strathbogie Cases,

By interdicting the execution of a sentence of deposition from the office
of the holy ministry, pronounced by the General Assembly of the
Church; thereby also usurping the "power of the keys," and
supporting deposed ministers in the exercise of ministerial func-
tions; which is declared by special statute to be a "high contempt
of the authority of the Church, and of the laws of the kingdom
establishing the same."

By assuming to judge of the right of individuals elected members of the
General Assembly to sit therein,† and interdicting them from tak-
ing their seats; thus interfering with the constitution of the Su
preme Court of the Church, and violating her freedom in the hold-
ing of General Assemblies, secured to her by statute.
By, in the greater number of instances above referred to, requiring the
inferior judicatories of the Church to disobey the sentences, in mat-
ters spiritual and ecclesiastical, of the superior judicatories, to
which, by the constitution in Church and State, they are subordi-
nate and subject, and which, in compliance with the provisions of
the statutes of the realm, their members have solemnly sworn to
obey; thus subverting "the government of the Church by Kirk-
sessions, Presbyteries, Provincial Synods, and General Assemblies,"
settled by statute and the Treaty of Union, as "the only govern-
ment of the Church within the kingdom of Scotland."
By all which acts, the said Court of Session, apparently not adverting
to the oath taken by the Sovereign, from whom they hold their com-
missions, have exercised powers not conferred upon them by the
Constitution, but by it excluded from the province of any secular
tribunal,-have invaded the jurisdiction of the Courts of the Church,
-have subverted its government,-have illegally attempted to coerce
Church Courts in the exercise of their purely spiritual functions,
-have usurped the "power of the keys,"-have wrongfully ac
claimed, as the subjects of their civil jurisdiction, to be regulated
by their decrees, ordination of laymen to the office of the holy minis-
try, admission to the cure of souls, Church censures, the preaching
of the Word, and the administration of the Sacraments, and have
employed the means intrusted to them for enforcing submission
to their lawful authority, in compelling submission to that which
they have usurped,-in opposition to the doctrines of God's Word
set forth in the Confession of Faith, as ratified by statute,-in vio-
lation of the Constitution,-in breach of the Treaty of Union, and
in disregard of divers express enactments of the Legislature:

AND WHEREAS farther encroachments are threatened on the government and discipline of the Church as by law established,‡ in actions now depending before the said Court, in which it is sought to have sentences of deposition from the office of the holy ministry reduced and set aside, § and minorities of inferior judicatories authorized to take on trial and admit to the office of the holy ministry, in disregard of, and in opposition to, the authority of the judicatories of which they are members, and of the superior judicatories to which they are subordinate and subject:

AND WHEREAS the government and discipline of Christ's Church cannot be carried on according to his laws and the constitution of his Church, subject to the exercise, by any secular tribunal, of such powers as have been assumed by the said Court of Session:

AND WHEREAS this Church, highly valuing, as she has ever done, her connection, on the terms contained in the statutes herein before *3d Strathbogie Case.

† 5th Strathbogie Case 14th Strathbogie Case, § 3d Auchterarder Case. 3d Lethendy Case.