NOTES

ON

PARDOVAN'S COLLECTIONS, &c.

PREVIOUSLY to the publication of Dr. Hill's Institutes, Walter Steuart of Pardovan's "Collections and Observations, concerning the Worship, Discipline, and Government of the Church of Scotland," was the only systematical treatise which afforded anything like a concentrated view of our reformed national establishment, deduced from the civil and ecclesiastical statute laws by which it was constituted and governed, and embodying a detail of the usages of the presbyterian church, from its first foundation, till the time of its appearance in the year 1709. During the century and upwards which has elapsed since its publication, it has accordingly been deemed a standard authority and guide in the church, as much so as the Commentaries of any Institutional writer on the municipal law; nor, although it is not much referred to as authoritative in the loose discussions of our church judicatories, has it been superseded in utility by any other work as a fountain whence our church leaders and orators derive the principal part of their information. It is a work of great and unquestionable merit, and serves as a faithful index to the whole body of our ecclesiastical law and practice; and although many of the usages belong to the primitive state of the church, and the style be now somewhat antiquated, these circumstances do not materially detract from its value.

Viewing this work therefore in this favourable light, it seemed å matter to be regretted, that the only correct edition of it had, for many years past, become extremely rare; and the only impressions of it attainable by the members of the church, namely, that of Dickson and

Elliot in 1783, and another published at Montrose of a later date, in a very mean and inaccurate state, were neither to be easily procured nor relied upon. In these circumstances, a new and neat and accurate edition of it was deemed advisable; and the only addition which it seemed to require, was a series of Notes, indicating the changes which had been superinduced upon the law as stated by Pardovan, by annexing the evidence of such changes effected in later acts of the General Assembly and otherwise.

It was originally our intention to have done this in foot notes, on the several chapters and sections into which the work is divided; but on further reflection, it was considered better, in every point of view, to give separately, and in alphabetical order, a consecutive and abridged view of the whole Acts of Assembly relative to the matters treated of by Pardovan, both before and since the time that his work was first published. Such a continuous digest, under the several heads into which the subject is divisible, seemed calculated to corroborate the authority of his statements, and to indicate most conveniently for the inquirer, the progressive changes which had been introduced subsequently to the time he wrote; thus combining the traditionary evidence, as it may be called, of our early commentator, with the authentic and recorded acts and decrees of the supreme ecclesiastical legislature and judicatory of our church. And in order to complete the compendium, a similar digest of the municipal laws operative upon the church, as contained in acts of parliament and decisions of the supreme court, appeared to be a useful and necessary appendage. This has now been accomplished in the preceding pages; and they will be found to contain, in the form most practically useful, the great body of what we contemplated as the Notes upon Pardovan.

There are still, however, a few topics of prominent importance, but lightly touched on by the author, which, on that account, as well as in consequence of material changes in later times, require a fuller illustration than can be given in a brief abridgment of the statutes and

decisions relating to them, although these have been pretty extensively given. The chief of these are with regard to the laws for the relief of the Poor, and to the School Establishment of Scotland, the administration of both which is in a great measure devolved on the presbyteries and parochial clergy of the church. These matters, indeed, next to the primary object of religion itself, and the maintenance of the institutions by which its ministration is purified and upheld, are amongst the highest functions with which the church is invested; and it is to the honour of the Church of Scotland, that from the first dawning of the Reformation, the interests of education and of the poor, have formed leading objects of its paternal and beneficial care, and that its exertions in these departments have been crowned with a degree of success unexampled, perhaps, in any other region of the world. To these two subjects, therefore, we propose chiefly to limit our attention in the following brief notes; and it is our object in so doing to condense within the narrowest bounds as much information as possible of a practical nature, in order to aid those who may not have access to ampler and better sources of intelligence, in following out usefully the beneficent spirit of the law, in the hallowed work which is consigned to their hands.

It was our intention further to have completed a collection of decisions by the General Assembly on important questions which have been agitated, as tending to afford what might be considered the decided church law. But although we have made considerable progress in this, we have been dissuaded by those whose judgment we respect, from completing or publishing it. There is a disadvantage resulting from the popular and mixed judicial and legislative character of the General Assembly, which distinguishes it materially from courts of law. While the latter look upon previous decisions, and upon a series of these in accordance, as of authority nearly if not quite equal to a legislative enactment, the General Assembly can scarcely in any instance be found to listen. with any degree of complacency to precedents; nor is this to be much wondered at, when it is considered that

party ties, and popular feelings, and local cabals, too often influence the decisions of that venerable body, so as to deprive them in most cases of that character of deliberate and impartial judgment which can alone confer on precedents the stamp and force of authority. Neither is it possible in practice to induce a great portion of the members to discriminate their legislative from their judicial functions. In judging on particular causes, they are perpetually led astray, if not by partialities and party leanings, at least by the reflection that they unite with the judicial, a complex legislative and superintending power; and it is extremely difficult in most cases to persuade a great portion of the members, when judging on causes, to divest themselves of the nobile officium with which most tribunals in the last resort are prone to clothe themselves. Hence an unwilling ear is generally lent to every argument founded on precedent in the General Assembly; and hence, too, we so often see the elementary laws of evidence, and the most sacred forms of procedure, and all the analogies of former decisions, trampled under foot, and broken through and contemned, and causes decided upon an assumption that, in the supremacy of its complex authority, the General Assembly may decide a cause, as if they were legislating on the principles involved in its merits. The inveterate prevalence of such a spirit, much as it is to be regretted, is, we fear, inseparable from its popular and fluctuating character; and it renders any collection of decisions, therefore, in a great measure, useless lumber. We have therefore, though with reluctance, abandoned this branch of our undertaking, as neither calculated to do good, nor to be acceptable to many of our readers.

In addition to these considerations we may state, that in the present condition of the records of Assembly, it is next to impossible to procure access to the several processes on which decisions of importance have been given. It would require the labour of years to search out the original papers in those causes, and without them it would be impossible to draw up reports of the precise facts to which the rules of law were applied in the decisions

given; and in such a state of matters, anything like a satisfactory collection of decisions is almost hopeless. This evil will, in a great measure, be obviated by the adoption of an overture introduced by Mr. Douglas of Ellon, into the last Assembly, and transmitted to presbyteries, namely, to print the record in all causes brought up from the inferior courts for review. This overture, among many other advantages, will supply a basis for the accumulation of precedents, easily accessible to every member of the church; and this, it is to be hoped, will in time introduce a more wholesome and consistent course of procedure in the judicial department of our Assembly's deliberations. In the meanwhile, we may refer our friends to an excellent manual on "The Practice in the several Judicatories of the Church of Scotland," by Dr. Alexander Hill of Dailly, which appeared in May last, after our publication had commenced, and in which reference is made to many cases that have been decided upon almost every point of importance, with regard to which the several judicatories of the church may be called upon to avail themselves of the light afforded by previous decisions of the supreme ecclesiastical court.

THE PAROCHIAL SCHOOLS OF SCOTLAND.

Having in a former part of this volume inserted the most important statutes now in operation relative to the parochial schools, it is here only necessary to give a slight connected view of the history of that establishment, and of a few cases in the courts of law relative to the institution.

So early as the reign of James IV. (1496) there was an act of parliament passed, ordaining, that "all barones and substantious freeholders sould put their airs to ye schulis."* And by an act of privy council in 1616, the establishment of schools in the particular parishes of the kingdom was accomplished for the promotion of "civilitie, godliness, knowledge, and learning," where the youth of . Balfour " anent schulis," p. 132.