we understand the principle maintained by the majority of the Church to be, that no presentee ought to be settled in any parish where the people say in simple terms, "we do not like him," or 66 we will not have him," without any explanation whatever.

*

We have been the more anxious to arrive at a very clear understanding of the question at issue, because there are obvious symptoms of a wish on the part of the Church to avoid the real difficulty of the subject. For example, the pamphleteer already quoted has the following passage:"Upon this motion" (Dr Chalmers's) "I only further observe at present, that while it distinctly pledged the Assembly to adhere to the fundamental law of the Church against the intrusion of ministers, it did not pledge the house to adhere to the particular mode of giving effect to that fundamental law by the Veto of the majority of the heads of families, but left it open to the Church hereafter to modify or alter that branch of the law as might yet seem to be advisable." Again, he speaks of "calling in the control of the Presbytery" where opposition is stirred up against a presentee upon groundless prejudices, or from motives positively unworthy."

P. 45. Nay, he says, "the very first duty of the Presbytery in such circumstances would necessarily be to support the hands of the patron, and to put down the unworthy and scandalous opposition."-Pp. 47, 48. Now we repeat our admission, that the precise form in which the people's absolute right is exercised does not affect the question of principle, nor would it alter the course of our argument, if, in place of the male heads of families within the parish, the Church had seen fit to commit the right of Veto to the females under fourteen years of age. But the moment that our opponents begin to speak or to write of the "control" or the "judgment" of the Presbytery in this matter, they necessarily and at once abandon their broad principle, that the people's dislike, expressed in a negative monosyllable, shall exclude-that being unacceptable, no matter from what cause, shall constitute a disqualification.

Having so far cleared the way towards a full understanding of the question truly at issue, we proceed to enquire into the merits of the principle of non-intrusion as thus explained and defined, and to examine the arguments chiefly relied on by its supporters.

In the Act of 1834, "The General Assembly declare, that it is a fundamental law of this Church, (i. e. of the Church of Scotland,) that no pastor shall be intruded on any congregation contrary to the will of the people." This is at once the inductive cause and the justification of the enactment which follows. The principle of non-intrusion therefore is defended, not only on the general ground of its expediency or necessity, but also by reason of its antiquity and its fundamental character. We are told that it is "coeval with the existence of the Christian Church," † and that the Veto Act is therefore no innovation, but the revival of an old law. This is perhaps not the most important branch of the subject; but we are unwilling to omit the consideration of an argument so confidently advanced by the supporters of the General Assembly's enactment.

We directly and utterly deny that there ever existed in the Church of Scotland, or in any Established Church whatever, such a fundamental law as is now sought to be enforced. Neither during the centuries which have elap. sed since the Reformation, nor at any earlier period, have the people in the Church of Scotland possessed or exercised a right of negativing the choice of the patron, without stating special grounds of objection for the consideration of the Presbytery—a right of having the bare expression of their will given effect to as against the presentee, without explanation and without enquiry. The people, it is true, have always borne some part in the ceremony of induction, their presence and concurrence being thought conducive to the decency and solemnity of the occasion, and their right to state and prove objections to the life and doctrine of the proposed new pastor, necessarily implying that their presence was recognised and desired.

The rule of the Canon Law is "Ple

bis non est eligere, sed electioni consentire." But this consent, so far from being essential to induction, was a mere formal part of the proceedings; and wherever it was unreasonably withheld, the officers of the Church were instructed to proceed notwithstanding, and by admonition, and, if need were, by Church censures, to compel the consent of the people-assiduâ admonitione compellere ut omnes in unum consentiant." To the same purpose is the instruction of the Pontiff Stephanus to the Archbishop of Ravenna:-"Veruntamen in hoc tuam plurimum oportet adhiberi solicitudi. nem, ut convocato clero et populo talis ibi eligatur per Dei misericordiam cui sacri non obvient canones. Sacerdotum quippe est electio, et fidelis populi consensus adhibendus est; quia docendus est populus, non sequendus." The text of the canon law is thus clearly contradictory of the existence of any right of control in the people; and so these texts have been understood by all the commentators, and by the later canonists. Thus Zoesius, after mentioning the presence of the people as a usual part of the ceremony of election and induction, adds:" Verum hoc non ita accipiendum, quasi populus suffragia daret, sed quod vel populus aliquem postularet aut desideraret, quem postea clerus pro populi voto eligeret, non tamen necessario: vel quod postea consentiret in electum per clerum populus, ut gratior esset." So that the people were at liberty to express either their wish for the election of a particular person, or their approval of the person elected; but neither their desire nor their opinion had any legal or necessary effect on the election.

But it is not in the canon law alone that we find authority for the opinion which we have so distinctly expressed; for the Protestant churches generally have received the doctrine of the people's assent to precisely the same effect, and in the same spirit. Boehmer, in a work which is of great authority in all Protestant churches,

* 1 Dec. Dis. 63, cap. 11.

† Ibid. cap. 12.

Zoesius in Decret. lib. I. tit. iv. § 24.

tit. xviii. § 1, et seq.

describes the general practice in terms almost exactly descriptive of our own system, which allows the people to state special objections:

Præterea nec ipsi parochiani, quibus præsentandus præficiendus, prorsus excluduntur, sed itidem voto negativo gaudent, salvo jure præsentandi soli patrono debito. Audiendi itaque sunt, et hunc in finem; antequam præsentetur candidatus Episcopo, sistendus iis est in cathedrâ sacrâ ad concionem oxiri habendam; alibi etiam, eâ habità et finitâ, superintendens, qui eidem interesse jubetur, sententiam parochianorum de candidati moribus et vitâ exquirit, et quæ forsan in eo reprobata ipsique objecta fuerint, consistorio refert."§ In the next section, he tells us what effect the Consistory give to such objections. "Operatur vero hoc votum negativum, ut probatâ inhabilitate aliisque defectibus candidato objectis demonstratis, repellatur, et patrono injungatur ut magis idoneum præsentet." The same au thor, in another and a later work, (as quoted by Lord Corehouse in the Auchterarder case,) repeats the same doctrine in terms equally express; and we make no apology for the length or the number of our quotations, because the presumption arising from the absence in all Protestant churches, other than our own, of any provision for giving effect to the unexplained dissent of the people in settlements, appears to be conclusive against the alleged antiquity of the principle of the Veto Act. In his Jus Parochiale, Boehmer says, "Equidem in omni jure patronatus non quidam excluditur consensus populi, sed ita ut patrono votum decisivum in electione tribuatur, populo negativum ut possint dissentire; non tamen aliter quam si justas dissensus causas allegare queant."¶

It would be an easy matter to multiply authorities on such a point, but we refrain, the rather because we apprehend that our opponents in the argument will hardly venture on this field of enquiry. They will, we think, hardly

See also Lancellotti, Inst. Jur. Can. lib. I.

I $ 78.

affect to find traces of their fundamental principle, either in the Canon Law or in the ecclesiastical polity of the continental Protestants. For the same reason we shall assume, without argument, that no such principle exists in the Church of England.

But the assertion of the fundamental principle is rested mainly, we presume, on the history of the Reformed Church of Scotland, and the claims and pretensions to exclusive power and jurisdiction which that Church has from time to time advanced. To a consideration of these we accordingly proceed.

In the year 1558, on the eve of the Scottish Reformation, but while the Canon Law was still the law of the Church, and as such the law of the land, immediately after the accession of Elizabeth to the English throne, and while the Queen Regent in Scotland was "labouring what she could to make up the differences that had arisen in point of religion,”* the grievances of the CONGREGATION (as the Reformers were called) were presented in an articulate form to the Regent, and by her remitted to a convocation of all the ecclesiastics within the kingdom. Among other demands, there is one relating specially to the settlement of ministers; "That Bishops be elected by the consent of the gentry of the diocese, and parish priests by consent of the parishioners."† This is the first regular and formal intimation, so far as we know, of a desire on the part of any section of the Church of Scotland for the introduction of a new principle into this branch of Ecclesiastical Law. The answer of the Convocation is, "That what is decreed by the Canon Law concerning the election of bishops and pastors, ought to be maintained entire. And moreover, seeing the election of prelates was a privilege belonging to the Crown, which required only the consent of the Pope to determine any thing in opposition thereto, at a time when the Queen was so young, would be a piece of very high indiscretion and insolence, and a treasonable en croachment upon the royal prerogative."

But the demand on the part of the

people, thus, for the first time, announced in general terms, was not lost sight of, when the triumph of the reforming principles in 1560 gave to John Knox and his brethren a favourable opportunity of pressing on the notice of Parliament such views as they deemed necessary to the promotion of the Reformation. It was under these circumstances that the "First Book of Discipline" was compiled, and submitted to Parliament as a system of ecclesiastical polity suited to the improved principles and condition of the Church. Many of its provisions, however, were so distasteful, especially to the nobility, that it never obtained the sanction of the Legislature, but, on the contrary, was generally denounced as "devout imagination." The authority of this book therefore is, to say the least, extremely questionable; nor could it, with any show of reason, be relied on as evidence of the existence of a fundamental law. But, as illustrative of the views entertained on many important questions of polity, by the fathers of the Reformation in Scotland, it is beyond doubt a valuable monument, and well worthy of notice in such a discussion as the present. The fourth chapter concerns the settlement of ministers, and the subject is thus introduced :

a

"In a church reformed, or tending to reformation, none ought to presume either to preach, or yet to minister the sacraments, till that orderly they be called to the same. Ordinarie vocation consisteth in Election, Examination, and Admission. And because that election of ministers, in this cursed Papistrie, hath altogether been abused, we think expedient to intreat it more largely."

The initiative, or the right of election, is then committed to the people: "It appertaineth to the people, and to every several congregation, to elect their minister." But if the people did not exercise their right within forty days after the vacancy, the election was to devolve upon the superintendent and his council, in whose place the presbytery now stands. In the first case of course, that of absolute popular election, no minister could be elected who was unacceptable to a majority

† Ibid, p. 82.

of the congregation, and no collision could take place between the right of nomination and the mera voluntas, the unreasoning dislike, of the people. But when the election fell to the Church Court, let us see what provision was made for consulting the wishes of the people. In the first place, it is said that "the admission of ministers to their offices" (as distinct from election, and forming the third part of "ordinarie vocation") "must consist in [the] consent of the people and church whereto they shall be appoint ed, and approbation of the learned ministers appointed for their examination." And if the "learned ministers" approve of the candidate; if his "doctrine be found wholesome, and able to instruct the simple, and if the Church justly can reprehend nothing in his life, doctrine, nor utterance, then we judge the church (i. e. the congregation) which before was destitute, unreasonable, if they refuse him whom the Church did offer; and [that] they should be compelled, by the censure of the councell and church, to receive the person appointed and approved by the judgment of the godly and learned." "For altogether this is to be avoided, that any man be violently intruded or thrust in upon any congregation; but this liberty, with all care, must be reserved to every several church to have their votes and suffrages in election of their ministers. But violent intrusion we call not, when the councell of the Church, in the feare of God and for the salvation of the people, offereth unto them a sufficient man to instruct them, whom they shall not be forced to admit before just examination, as before is said."

Violent intrusion therefore, according to the "First Book of Discipline," does not consist in compelling the congregation to receive a minister whom they wish to reject without stating relevant objections to his "life, doc trine, or utterance;" for this latter course is recommended to the Church Court, while violent intrusion is denounced as inexpedient. Between the Reformers of that day at least, and the framers of the Veto Act, there is but small sympathy. The stern and manly mind of John Knox must have

*Keith, p. 534.

revolted from the idea of giving effect to objections, the grounds of which the people would not or could not state.

If the First Book of Discipline is to be taken as an exposition at length of the views of those men who, in 1558, required the consent of the people in the settlement of ministers, the earliest Reformers clearly looked to popular, or a mixture of popular and clerical, election as the most desirable system, and must, of course, have aimed at the total abolition of the ancient rights of patronage. Indeed, it is impossible to read the above quoted passages, and to observe the studious omission of all allusion to the patron's right and interest to interfere, without arriving at the conclusion, that the authors of the First Book of Discipline wished and intended that lay patronage should form no part of the new code of ecclesiastical law. With the wisdom of the design we have at present no concern; suffice it to say, that the attempts to abolish patronage in the sixteenth century were eminently unsuccessful. For not only was the First Book of Discipline rejected by Parliament, but in five years after its compilation, the leaders of the Church found themselves compelled to admit and acquiesce in the patron's right to present to benefices. In 1565, the General Assembly solicit her Majesty "that the Benefices now vaikand, or has vaikit since the moneth of March 1558, or that hereafter sall happin to vaike, be disposed to qualified and learned personis, able to preach God's Word, and to discharge the vocatioun concerning the ministrie, be the tryall and admissioun of the superintendents.' This seems modest and reasonable enough, but the Queen's answer betrays considerable jealousy of the designs of the Church ::-" To the second article it is answerit, That her Majestie thinks it na wayes reasonable that scho sould defraude herself of sa great a Pairt of the Patrimonie of her Crowne, as to put the Patronage of Benefices furth of her awin hands." The explanation of the General Assembly, in their " Answers to the Queen's Answers," is a complete submission and acquiescence in the existence and exercise of patronage within the Church:

† Ibid, p. 550,

"Our mind is not that her Majestie, or any uther Patron of this Realm, sould be defrauded of their just Patronagesi; but we mean, quhensoever her Majestie or any uther Patron does present any person to a Benefice, that the person presentit sould be tryit and examineit be the judgement of learned men of the Kirk, sick as presently are the superintendents appointed thereto : and as the presentatioun of Benefices pertains to the Patrone, sa aucht the collatioun thereof, be law and reason, pertain to the Kirk: of the quhilk

collatioun the Kirk sould not be defraudit, more nor the patrones of their presentatioun: For uther wayes, if it sal be lesum to the Patrone absolutely to present quhom ever they please, without Tryall or Examinatioun, what, then, can abyde in the Kirk of God bot meere Ignorance without all Ordour? "*

All, therefore, that the Church here proposes as a check on the absolute exercise of patronage, is the trial and examination of presentees; and the motive for insisting on this is perfectly satisfactory-viz. to prevent the intrusion of ignorant men into the ministry.

Then follows the Act 1567, c. 7, which, in the spirit of the above communications, statutes and ordains "That the examination and admission of ministers within this realme be only in the power of the Kirk, now openlie and publickly professed within the samin, the presentation of laick patronages alwaies reserved-to the just and auncient patrones."

Various attempts, however, still continued to be made, to substitute the election of the people or of the Church Court for the presentation of the patron. Of these, one of the most celebrated, and historically the most important, is contained in The Second Book of Discipline, compiled by Andrew Melville and others in 1578-a work of which it is only necessary to say, that, though some of its provisions received a partial and doubtful sanction from Parliament, that portion to which our attention is at present directed, (Chap. III. § 4,) was certainly never admitted as law: “Ordinar and outward calling (it is said) hes twa parts, election and ordination. Election is the chusing out of a person, or persons, maist abile to

NO. CCLXXXIX, VOL. XLVI.

the office that vaiks be the judgment of the elderschip and consent of the congregation." And a little after (§ 5):-" "In this ordinar election it is to be eschewit that na person be intrusit in ony of the offices of the kirk, con trar to the will of the congregation to whom they ar appointed, or without the voce of the elderschip." This is a very broad doctrine, boldly stated; and, if it had been represented as a declaration of the existing law, it might have been a difficult task to reconcile

it with the admissions of the Church in their answers to the Queen in 1565. But it is not a little remarkable that, in a subsequent part of the book, Melville and his coadjutors admit, that the system which they propose and admire is altogether impracticable in conjunction with patronage-that the two are positively incompatible. In a subsequent chapter (Chap. XII. § 9) they say:-" The libertie of the election of persons callit to the ecclesiastical functions, and observit without interruption swa lang as the Kirk was not corruptit be Antichrist, we desyre to be restorit and retenit within this realme, swa that nane be intrusit upon ony congregation, either be the prince or ony inferior person, without lawful election and the assent of the people ower quham the person is placit; as the practice of the apostolical and primitive kirk and gude order craves. And because this order, quhilk God's word craves, cannot stand with patronages and presentations to benefices usit in the Paip's kirk, we desyre all them that trewlie fear God, earnestly to consider that, for swa meikle as the names of patronages and benefices, together with the effect thairof, have flow'd fra the Paip and corruption of the canon law only, in so far as thereby ony person was intrusit, or placit owir kirks having curam animarum,' therefore they beseech all true Protestants to join them in the crusade against patronage.

On this passage we remark, in the first place, that there is a clear admission, by the framers of The Second Book of Discipline, that a right of election in the people cannot exist in union with the exercise of the patron's right of nomination; and if this be morally true, we maintain, in the se