Bench decided that a rate made by churchwardens after a refusal by the parish to make one was not a good rate, although it was not denied that money was wanting for the necessary repairs of the church-from which decision there is an appeal to the Exchequer Chamber.

The article is short, for there are very few decisions to be found in the books on the subject of church rates; hardly any indeed except such as have lately arisen upon the general or local church building acts. It concludes with a long note on the subject of retrospective church rates, directed against the doctrine that church rates are necessarily bad if any retrospective purpose appears on the face of the rate; and it is contended that the decisions upon poor rates, which are made by the authority of statute, do not apply. He says,1"In the opinion of the learned judge of the Consistory Court all retrospectiveness is not illegal, but whether such an objection be well founded or not, must depend upon the nature and amount of the restrospective items, which depend upon the discretion of the judge; if so there seems to be no reason why such a rate should be held invalid if those purposes are declared upon the face of the rate in the first instance; if it be the law of that court that a rate prospective in point of form is not to be upheld if it be for purposes which are retrospective and illegal, so neither ought a rate to be quashed merely because it appears to be retrospective, if its retrospectiveness be not sufficient, either in the amount or nature of the retrospective purposes, to render it invalid; in other words, if a prospective form be not allowed to cover retrospective purposes which would not be sanctioned by the court, so neither should a retrospective form vitiate a rate if its purposes, though retrospective, would be sustained by the court; in short, it would seem that a rate ought to be valid according to its real, not according to its professed, objects."

He concludes the note with the following general remarks on the subject of retrospective rates:" The real objection to retrospective rates, however, is that parishioners being a fluctuating body, it is unfair for persons coming into a parish to be burthened with the debts of their predecessors, but this, 2 Page, 1007.

1 Page, 1004.

which is a substantial objection, applies to all retrospective rates, whether retrospective in form or not. It is an objection also which presses far more strongly against poor rates than against church rates; in the first place, the overseer can of his own authority make a rate when he chooses, and it is his duty to see that the burthen is fairly distributed and borne; in the case of church rates, it is the parishioners themselves who make the rate, and persons coming into a parish must be bound by the majority in this as in other cases; besides, in the case of church repairs the objection does not seem to apply, for it is those who come into the parish who have the benefit of the outlay of money, not those who have left it.”

We should be glad to continue our quotations, but the allotted space is filled, and we must content ourselves with adding a warm general recommendation of the work.

ART. VII.-CHURCH OF SCOTLAND QUESTION.

OVERTURE AND INTERIM ACT ON CALLS.

"EDINBURGH, May 31, 1834.

The General Assembly declare that Church that no pastor shall be in

it is a fundamental law of the truded on any congregation contrary to the will of the people; and in order that this principle may be carried into full effect, the General Assembly, with the consent of the majority of the presbyteries of this Church, do declare, enact and ordain that it shall be an instruction to presbyteries, that if at the moderation in a call to a vacant pastoral charge the major part of the male heads of families, members of the vacant congregation and in full communion with the Church, shall disapprove of the person in whose favour the call is proposed to be moderated in, such disapproval shall be deemed sufficient ground for the presbytery rejecting such person, and that he shall be rejected accordingly and due notice thereof forthwith given to all concerned but that if the major part of the said heads of families shall not disapprove of such person to be their pastor, the presbytery shall proceed with the settlement according to the rules of the Church. And further declare that no person shall be held to be

entitled to disapprove as aforesaid, who shall refuse, if required, solemnly to declare in presence of the presbytery that he is actuated by no factious or malicious motive, but solely by a conscientious regard to the spiritual interests of himself or the congregation."

Such is the too celebrated ordinance by the General Assembly of the Church of Scotland, which has raised a tempest of religious and civil discord in that country unparalleled since the days of the Stuarts, dividing congregations against patrons, people against aristocracy, the civil against the ecclesiastical tribunals, the State against the Church, and lastly the Church against herself. With its consequences however, fearful as they may be, we have nothing properly to do here. Our object and our province, almost if not wholly, is to come to right conclusions on its legality, to which end it is mainly necessary to consider the correctness of the introductory declaration, that" it is a fundamental law of the Church that no pastor shall be intruded on any congregation contrary to the will of the people ;" for if that be correct, the rest is little more than matter of form.

In the first place, then, we may observe, that for a declaration of law this proposition is somewhat deficient in clearness. What is meant here by the will of the people? Is it the will of the people at large,—of the nation in other words? If so the proposition is at once encumbered with much difficulty; for as the will of a nation finds its proper expression in its laws, and as its laws are administered by its government, and as its government deputes to civil courts the administration of its laws, and as the supreme civil court of Scotland has solemnly decided that this very proposition is contrary to law, we have here this same will of the people deciding that a pastor may be intruded contrary to it. Both on account of this absurdity, and from the nature of the rest of the enactment, it is therefore fair to conclude that the Assembly in this part of their declaration have used a term too large, and that what they mean by people is only a portion of the people at large, as a congregation, a presbytery, or a synod; and looking further into the context, from what is said of the "heads of families" we collect that the proposition which the Assembly intended to advance is this:"It is a fundamental law of the Church that no pastor

shall be intruded on any congregation contrary to the will of the majority of the male heads of families belonging to it."

A great deal has been written and argued about the injustice and illegality of the Assembly selecting this mode, admitted to be a new one, of expressing the will of the congregation by the mouths of the male heads of families alone. It has been urged, both in ecclesiastical and civil courts, that female heads of families have as much judgment, and as much a right to judge, about the fitness of their spiritual teachers as male heads; and that the adult population of the parish not male heads, as they have likewise souls, should have likewise votes in such a matter, their salvation being equally important. Without altogether making light of these complaints, we think it better to have the question argued on the great principle it involves only; and that if the General Assembly are able to prove it a law of the Scotch Church, that no pastor shall be intruded on any congregation contrary to that congregation's will, it is of very inferior moment to inquire whether they have chosen the most fair or legal form for expressing that will. Having thus relieved the question from some incumbrances, we propose to examine, in the first place, whether it is a law of the Scotch Church, that no pastor shall be intruded on a congregation contrary to the will of that congregation, or, in other words (for the Assembly are surely right in contending that the two propositions are identical), whether the simple declaration of the majority of a congregation, "we will not have this man to be our pastor," operates legally as an exclusion of him from that office.

This may be a law in either of two ways. It may have been law before the passing of the "Act" on the 31st May, 1834, or it may have become law from that date by the General Assembly declaring it to be so, and having power to make it law by declaring it to be so. Both positions have been advanced by the vindicators of the Assembly and both require serious consideration. Taking them in their order then, it must first be examined whether this law existed prior to the passing of the Interim Act.

If it did so exist, the proof of its existence would be found either in statute or in usage. Either the legislature would have declared it law, or would have recognized it as law by sanc

tioning the practice under it. Both modes of proof have been resorted to by the advocates of the ordinance, and as that by statute would be more sure and decisive of the controversy it has been attempted with proportionate industry. In order to see with what success, it will be necessary to pass in review the Acts relating to the Church of Scotland, happily not very long or numerous.

In 1560, the first year in which a meeting called a General Assembly was held, popery ceased to be the established religion of Scotland and underwent total extinction by act of parliament in 1567. In the same year two statutes passed, one, c. 6, establishing the then prevailing form of Protestantism, which, though widely different from the Presbyterianism of later times, might perhaps be called Presbyterian, as the national religion; and the other, c. 7, entitled, "Admission of Ministers: Of Laic Patronages," and enacting that "the examination and admission of ministers within this realm be only in the power of the Kirk now openly and publicly professed within the same. The presentation of laic patronages always reserved to the just and ancient patrons. And that the patron present one qualified person within six months to the superintendence of the parts where the benefice lies, or others having commission of the Kirk to that effect:" otherwise the Kirk to have the turn, jure devoluto as it is called. We have here then the first statutory declaration of the rights of lay patrons and of the Church in relation to one another under the new establishment. The patrons were to present within six months, the Church exclusively were to examine and admit. The patrons' presentees were to be qualified persons, and the superintendents or others having commission were to judge of their qualifications; at least such is the fair inference from the words "present to." The superintendents seem to have been a sort of bishops covertly introduced into the system of church government by the queen and the court party, to whom the government by elders was unpalatable; and when in 1572 the convention of estates restored bishops, these superintendents were supported by the General Assembly as the preferable intruders of the two. They were sometimes laymen. Another clause of the same statute, c. 7, provided that if the superintendent or commissioner refused to receive and admit the presentee, there should