him to intimate from his own pulpit, that there is a call to him from another parish, and to summon such of his parishioners as wish to oppose his transportation, to attend the presbytery on the day appointed.1

may

263. If appearance is made for the parish to resist the translation, they are entitled to be heard, and the presbytery have the power of judging whether they will allow it or not, subject, of course, to the review of the superior courts.

264. In former times transportations were not always allowed, and during a period when there was an insufficiency of probationers who understood the Gaelic language, to supply the Highland parishes, presbyteries were prohibited from transporting to the Lowlands ministers settled in the Highlands, without a particular allowance from the Assembly; and it was provided, that no such transportation should take place, except upon "great and weighty reasons, and for the evident good of the church;" and, in particular, that in Highland parishes, "wherein popery abounds, no minister shall be transported, nor any thing done leading thereto, but by the General Assembly, except it be to another Highland parish, wherein, also, popery prevails."

"3

265. For a considerable period, transportations do not appear in practice to have been opposed or disallowed.

266. The presbytery having approved of the reasons of transportation, pronounce a sentence, loosing the presentee's connexion with his present flock, and declaring the parish vacant by his removal, but only from the day on which he shall be admitted to his new charge, and notice of this sentence is immediately transmitted to the presbytery where the vacant parish lies, who thereupon proceed with the settlement.

267. If both cures are within the same presbytery, they pro

1 Act, Sess. 11, 1642. Act 7, 1704. The provisions of the latter of these acts, which are those mentioned in the text, though originally intended merely for cases where excitement prevailed among the parishioners against the removal, is now generally acted upon in all cases, instead of the more formal mode of citation previously required.

2 Act 8, 1716.

3 Act 9, 1726. On the other hand, ministers settled in the Lowlands, having the Gaelic language, were directed to be transported to the Highlands, whenever a call to any parish there was given them. Sess. 11, August 5, 1642; Act 16, 1699.

H

ceed at once to appoint intimation, and determine on the translation, in the manner above detailed.

268. A minister already settled is not subjected to the trials prescribed for a probationer.

269. If the presbytery resolve to proceed with his settlement, they fix a day for his admission into the new charge, and order his edict to be served, as in the case of the probationer presentee above mentioned.

270. On that day, the proceedings are conducted as in the case of a probationer, with this distinction, that the act of ordination is not repeated. The presentee is, however, again called upon to answer the questions above recited (supra, 258) in the face of the congregation; and having renewed the previous declarations and engagements thereby required, he is received and admitted as minister of the parish.

271. By the act of admission, the presentee becomes ipso facto a member of the presbytery and synod within whose bounds the parish lies; he is invested with the full powers and privileges of pastor of that parish, and entitled to all the civil rights of the benefice.

272. In all matters properly relating to the trial, ordination, and admission of presentees, the jurisdiction of the church courts is exclusive, and not subject to review or control by any civil authority whatsoever.

273. As to the effect of their rejecting a presentee on grounds not legally competent to them, see infra, 282, et seq.

CHAPTER VIII.

OF THE JURISDICTION OF THE CIVIL AND CHURCH COURTS.

274. As, on the one hand, the fitness of the presentee for the pastoral office is solely in the judgment of the church courts without control; so, on the other hand, the validity of the presentation, which is his only title to the temporal emoluments constituting the benefice, is subject to the cognisance of the civil courts alone; and the Court of Session, as supreme civil court, has the primary and exclusive jurisdiction in this matter, subject, of course, to appeal to the House of Lords.

275. This power of the supreme civil court extends equally to the case of competing presentations by opposing parties of a collective body, in whom the patronage may be vested, whether heritors having acquired right under the act 1690, or others, as to the case of private patrons competing.1

276. As, however, the presbytery have a material interest that a presentee, whose presentation is invalid, should not be admitted to the pastoral office, they are entitled, although no competing party claiming a right to present should appear, to form a judgment on the validity of the presentation, so as to regulate their own conduct, in regard to whether they will or will not proceed with the settlement of the presentee. Their judgment on this point will not, of course, conclusively determine the question, and must yield to the decision of the only competent tribunal, the supreme civil court; but still they are entitled to form a judgment on it, with a view to regulate their procedure in that matter wherein they have jurisdiction.

277. Accordingly, when a presentation is laid before a pres

1 Snodgrass v. Logan, June 16, 1772 (M. 7374 and 9937.) Dunlop v. Muir, Dec. 9, 1791 (M. 7470.) See also Campbell v. Stirling, March 4, 1813 (F. C.) Brown v. Johnstone, June 9, 1830 (8 S. & D. 899.)

bytery, the first step on their part is to determine whether it is such as to warrant their proceeding with the settlement, or, as it is commonly expressed, whether they will sustain or reject the presentation.

278. If there are competing presentations by different patrons, or if they consider themselves entitled to present jure devoluto, and their claim be disputed by the patron, their proper course, which has been repeatedly sanctioned by judgments of the General Assembly, is to delay proceeding with the settlement till the question of civil right shall be settled by a court of law. As, however, they cannot compel patrons to institute a process for determining their rights, it would seem reasonable that, if after a sufficient delay to enable them to take the necessary steps in a civil court, no proceedings have been adopted, the presbytery should exercise their own judgment in sustaining the presentation which appears to them entitled to a preference, and proceed with the settlement of the presentee, which may again be superseded, should the tron, whose presentation has been rejected, institute a process before the presentee shall have been inducted.

pa

279. Where there is only one presentation, and no objection to the right of the granter of it to the patronage of the church, the points to be attended to are its regularity in point of form; whether, if the presentation be by a commissioner, he be properly authorized,-whether the patron have taken the oaths required by law, and, if a suspect Papist, purged himself of Poof which evidence should be laid before the presbytery, pery, —and whether the presentee be qualified in terms of law.

280. The qualifications of a presentee to warrant a presentation being sustained, are not those which form the subject of his subsequent examinations and trials, but certain requisites to constitute an ex facie qualification, as to which, see supra, chap. 5.

281. Although a presbytery should erroneously reject a valid presentation, or refuse to settle a presentee on grounds not cognisable by them, as entrusted with his examination and admission to the spiritual office, they cannot be compelled to settle him by civil diligence, which it was competent for the patron, by the act 1612, c. 1, to have employed against a

bishop who refused to collate a qualified minister presented by him.

282. If the presbytery form an erroneous judgment in sustaining the validity of a presentation where there is a competition, and settle a presentee under a presentation irregular or informal, or from a party who is not truly patron, or if they settle a minister on their own presentation, tanquam jure devoluto, under circumstances in which the jus devolutum has not legally taken place, their proceedings will no doubt confer on him the spiritual office of pastor of the congregation, but the question then arises, whether they thereby give him any right to the benefice.

283. By the act 1612, c. 1, patrons, besides being allowed to use diligence against the bishop, were also authorized to retain the fruits of the benefice in the case supposed; and by the act 1592, c. 117, the same privilege was given them, but in reference only to benefices rendered vacant by deprivation of the incumbents, and in the case of refusal to receive a presentee already admitted to the ministerial function.

284. Independently of that statute, however, and at common law, the patron had always a right to administer the fruits of a benefice while it remained vacant, and the same right has been acknowledged to belong to them in regard to the stipend of our stipendiary cures. This privilege has now been taken away by the 54 Geo. III. c. 169, but all vacant stipends have been thereby appropriated to the ministers' widows' fund, which would be entitled to all stipends whereof the patron would formerly have had the administration.

285. Now, no person admitted to the mere pastoral office in a parish, without some title to the benefice, can be entitled to the fruits thereof; and consequently, if a presbytery, after rejecting a valid presentation, were, pending the measures taken by the patron to have it declared effectual in the civil courts, to proceed to admit another presentee, or to settle a minister themselves, tanquam jure devoluto, such proceedings on their part would, so far as the civil right was concerned, be void, and the benefice consequently would continue vacant, so that the party admitted by them as minister, although he would possess the pastoral office of minister of the congregation within