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as we do, moderator, upon the interest and preparation of a whole people for another world, woe be to us if we flinch, by a single iota, from what is right, by the powers of this world being brought to bear upon us. What is the language addressed to us by such an argument? Gentlemen, you may vote out Mr. Ferrie if you like, but have a care; your Church will lose £300 a year by it. There is bribery, unblushing bribery, in the very sound of such an argument as this; but we may give up all our alarms, for it can not hold. I am quite sure, if carried to the court of ultimate appeal, it would not bear a moment's hesitation. The stipend is the minister's, and the minister is he, and he only, who comes in with the sanction of the Church judicatories. What a violent and unnatural spectacle! One man drawing the stipend of a parish because he has the patron's presentation; another administering the word and ordinances in virtue of another presentation issued by the Presbytery, and claimed by it in virtue of the jus devolutum. Oh no, my brethren, we may set ourselves at rest upon this score. There will be no such thing; and we may be assured that the government of the country would as soon hang up the signal of its own dissolution as suffer so glaring an invasion upon one of its establishments."

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APPENDIX, M.-P. 406.

By passing it into a law, that the same individual shall not hold at one time a professorship and a country living, you accomplish a great specific good; you avert a mischief from the Church which threatens to accumulate upon it; you do away one of the causes of non-residence; you put a decisive stop to a corruption which has crept among us of late years, and which, if suffered to extend itself much longer, will lose its novelty, and cease to alarm us. It is delightful to understand that such a tide of overtures upon this subject

pouring in upon the Assembly from all quarters of our establishment. It is indeed a refreshing spectacle, and recalls to my imagination the zeal and the purity of better days. It is something like the awakening of a righteous spirit among us, the breaking of that spell by which evil was held for good, and good for evil, by which principle and integrity on each side of the Church (for I am far from giving the monopoly of what is right to either) was held in abeyance, and all the distinctions of right and wrong lay buried and confounded under the odiousness of party denominations. I count it a healthful symptom to see such a breaking up upon this subject, to see the men who have stood so long in fronted opposition mingling around one common standard, and that hateful line which often separated the good and the wise from each other so crossed and recrossed in a thousand directions, so traversed and trodden under foot, so borne down by the step

of daring adventurers, that every year it is getting more obliterated, and will in a little time vanish like the fiction of a day into everlasting forgetfulness.

"But while I rejoice in the prospect of a specific good, I totally dissent from that principle on which the passing of a law is deemed necessary in order to its accomplishment. I deny the necessity of such a law. I contend that there is a power in the Church to repress the abuse in question antecedently to the framing of any law upon the subject. This power belongs to her in virtue of her office as guardian of the interests of religion; and we have departed from the uniform practice of our Church, which for upward of a century has sat and exercised her discretion on thousands and thousands of questions, and given her firm decision, without any thing in the shape of written or express law to which she could refer, and upon the solitary principle of what she counted to be for the good of edification, has she times without number most confidently pronounced her judgments, and been as implicitly adhered to. I most cheerfully vote for a law, as in the present state of opinion it appeared to be the nearest and the likeliest way of quashing the corruption; but I solemnly protest against the principle of its indispensable necessity, and assert that those sons of the Church are making an unthinking surrender of its dearest privileges, who call out, 'Give us a law; we can do nothing without a law;' who leave us so unprovided with instruments for the defense of the trust committed to us, that if any unheard of or unthought of enormity shall be attempted, against which no positive statute could ever be devised, we must just look helplessly on, and bewail that there is no remedy. Oh no, my brethren, there lies a power with us to repress the abuse at the very outset, to smother it in its infancy; and if this power be taken away, you leave us open and defenseless against the inroads of every abomination.

"There is no such thing as providing by law against all the contingencies of future days. Our ancestors never thought of it. They exerted the power of correcting every abuse instanter, and they bequeathed this power to their successors in office. Annihilate this power, and what do you land us in? We have already reaped some mischief from the suspension of it. That abuse against which you are now attempting to guard the Church in all time coming, you have suffered to fall with cruel severity upon several of its parishes. You have not stirred till you have seen the victims of your negligence strewed around you. You have imitated the misconduct of those who forbear to put a fence round the well till the body of a drowned man convinces them that they ought to do something. You are now constructing the fence, and I most willingly lend a helping hand to it; but if the law you are now framing be upon the principle that you can do nothing without a law, while you are doing away one solitary

corruption, you are opening the door to a thousand. It is like building a fence round the well, but digging out the foundation of the house for materials."

"So much for the effect of this new maxim; but let me carry your attention for a few moments to its principle. It appears to me, then, that it is altogether founded upon a delusive assimilation of an ecclesiastical court sitting in judgment upon its own proper questions, to a civil court sitting in judgment upon a question of property. It is right that the adjudication of property should be founded upon unvarying principles, upon statute-law as far as it can reach; and as no written code can provide for all varieties, its deficiencies are made up by common law, or the decisions upon unprovided cases, pronounced as they occur by a court of equity. Hence every barrister in a court of justice has a right to demand for his client a most scrupulous adherence to law or to precedent; and I am too well aware of the influence of professional habit, to wonder that he should carry the same language and the same style of conception to the bar of the General Assembly. I have the highest respect for the legal profession; and I think that at this moment its honor is nobly sustained by the talent, and eloquence, and accomplished literature of the individuals who compose it. It is not them whom I blame, when I say that our proceedings are too much infected with the principles and the technology of another profession. It is the members of the General Assembly, who, forgetting their high functions, consent to be addressed as if they were a mere judicial court, sitting upon a question of property. We are guardians of the interests of religion; and the man who comes to our bar with a presentation to a living, has acquired no absolute right of property till he obtain our consent to his induction. A presentation carries along with it no absolute right of property: it is only a right of property, with submission to the judgment of the Church. But, in the mean while, if we find something in the man's character or in the man's situation, which we think to disqualify him for a useful minister in a parish, it is our part to find accordingly. Let lawyers expatiate as they will about law and about precedent; it should be no more to us than the gibberish of an unknown tongue. The legal principles which they apply to the maintenance of the shepherd, should not have the weight of a feather upon us when we are sitting in deliberation upon the interests of the flock. Our deliberations take the precedency of their reasonings altogether; and if we surrender our right to a veto upon every presentation that comes before us, we pull down the only effectual barrier against the corruption of our establishment.

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Oh, but let us retain the control, you may say. We can insist on obedience to our laws; and if we find the laws insufficient, we can make new ones. I am glad you admit thus much.

Why, then, you

give up the absolute right of the patron. When he gives away a presentation he gives only a conditional right of property, burdened to the presentee by the duty of obedience to the laws of the Church. I shall keep my finger upon this concession; and I find it peculiarly valuable when coupled with the undeniable right of the Church to make new laws. Upon what principle is a new law ever framed? Doubtless, the good of religion. Who are the framers? Members of the Church, consisting of ministers and elders. Are patrons ever consulted in the framing of laws? In the whole progress of the business it is never thought of. Their concurrence is not asked; and should they offer to interfere, the Church would rise in all the dignity of her offended privileges and resent their interference. What do you make, now, of the absolute right of patrons? It is altogether a visionary principle. Every new law is a new limitation of the right of patronage. It is equivalent to the imposition of a new tax upon the property conveyed by it. It is a new exaction of obedience from all their presentees, and refusal would infer the deposition of those who are within the Church, and the exclusion of those who are entering it. Had we, without a law, refused to admit a presentee who was already a professor in a university, we would, no doubt, be cramping and limiting the patron in his right of patronage. But this is what we do every year. are proposing to do it at this moment. Without asking the leave of any patron, we are for limiting the extent of their claim, and confining them to a narrower range for the exercise of their privileges. We are interdicting them not from one professor, but from all the professors of Scotland; and upon no other principle than that we judge it expedient, and for the good of religion, are we coming forward with an exercise of power, against which the right of the patron is nothing better than the bugbear of a name. . . . .

We

“It will not bear a hearing, moderator. Every judicial court must be furnished with powers adequate to the object for which it is sitting. In civil cases that object is the dispensation of justice. But justice would, in many instances, be delayed or defeated altogether if it was kept back from pronouncing upon the innumerable varieties which no written law can provide for, and compelled to wait till laws could be framed. When we sit as a judicial court, we must be furnished with powers adequate to the object for which we are sitting. That single object is the good of religion. But this object would also be delayed or defeated if, instead of pronouncing upon the unprovided case, we were to wait the circuitous process of framing new laws. No one expects of Parliament the construction of a code ample enough and varied enough to meet all conceivable variety of cases which come before a court of justice. A power of deciding on the principles of equity is, therefore, vested in that court, and it is to the continued exercise of this power that we owe the creation and yearly extension of

common law. No man can expect of the General Assembly, in its legislative capacity, the construction of a code furnishing us with a written law for every case and question that comes before it. A power of deciding on the Christian principle of what we judge to be for the good of edification, and consonant to the spirit of our religion, is therefore vested in us when we sit in our judicial capacity. It is a power which has continued in vigorous and uninterrupted exercise for upward of a century. It is found in practice that we could not go on without it. Had it not been for this, there could have been no such thing as precedents to appeal to; for how came a precedent into being but by virtue of a decision not founded on statute law. To deny such a power is to belie the whole practice of the Church, as well as to reduce it to the helplessness of an infant; and I know not whether I should more lament the mischief of the maxim, or wonder at the crude and unfinished conception which lies at the bottom of it, or be indignant at its authority over the minds of my brethren, whom I have heard to exclaim, with such confidence and such frequency, 'Give us a law; we can do nothing without a law.'

"But, oh! you mistake us, it may be said, we acknowledge the authority of something else beside law; we give an authority to precedent also. You curtail our maxim, and do it an injustice. It is not that we can do nothing without law, but that we can do nothing without law or without precedent. And what is precedent, moderator? It is a former decision founded upon that power of judging which I am all along contending for. At its first introduction there was no former precedent to sanction it. Now that it is found among us, let us pay it all due respect, but how, in the name of wonder, got it in? Every distinct precedent is a distinct something done by our forefathers without either law or precedent, and we who inherit the full power of our forefathers, will not be restrained from doing as they did. In every new case not within the scope of law or precedent, we will pass our independent decision, and if we have no old precedent to follow, we will create a new one for the use of succeeding generations.

"I am sorry that I have taken up so much of your time, and to feel that so much of my argument still lies before me. I assert, upon the strength of the above considerations, that we have the power of deciding as we will upon every new case, though neither law nor precedent can be appealed to. I further assert, not that we can decide 'judicially against law, though in the practice of the Church this has been done so often as to render many of the unrepealed laws of the Church a dead letter; but, I assert, perhaps to the astonishment of every civil practitioner, that he misunderstands the constitution of our court, when he brings the authority of precedents to bear upon us, and says that we can not and must not go against them. On the strength of what has been already said, I hold by the principle, that

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