Agreeably to this recommendation, the Assembly (1649, Ses. 4) enacted that the session of the congregation should elect a person, who, if approven by the congregation, should be tried and admitted by the presbytery; but that, if the major part of

presbyteries to reject the same, and to refuse to admit any to trialls thereupon; and notwithstanding thereof, to proceed to the planting of the kirk upon the sute and calling, or with consent of the congregation, on whom none is to be obtruded against their will: And it is decerned, statute, and ordained, that whosoever hereafter shall, upon the suit and calling of the congregation, after due examination of their literature and conversation, be admitted by any presbytery unto the exercise and function of the ministry in any paroch within this kingdome, that the said person or persones without presentation, by vertue of their admission, hath sufficient right and title to possesse and enjoy the manse and gleib, and the whole rents, profits, and stipends, which the ministers of that kirk had formerly possest and enjoyed, or that hereafter shall be modified by the Commission for Plantation of Kirks; and decerns all titulars and tacksmen of tythes, heretors, liferenters, or others subject and lyable in payment of ministers stipends, to make payment of the same, notwithstanding the minister his want of presentation: And ordains the Lords of Session and other judges, competent to give out decreets and sentences, letters conform, horning, inhibition, and all otheres executorials upon the said admission of ministers by presbyteries, as they were formerly in use to doe upon collation and institution following, upon presentations from patrons: Declaring alwayes, that where ministers are already admitted upon presentation, and have obtained decreets conform thereupon, that the said decreets and executorialls following thereupon, shall be good and valid rights to the ministers for suiting and obtaining payment of their stipend; and the presentation and decreet conform, obtained before the date hereof, shall be a valid ground and right for that effect, notwithstanding the annulling of presentations by vertue of this present act, and because it is needfull that the just and proper interest of congregations and presbyteries, in providing of kirks with ministers, be clearly determined by the Generall Assembly, and what is to be accompted the congregation having that interest; therefore, it is hereby seriously recommended unto the next General Assembly, clearly to determine the same, and to condiscend upon a certain standing way for being a settled rule therein for all time coming: And it is hereby provided, declared, and ordained, that the taking away of patronages and presentation off kirks shall import, nor inforce, no hurt nor prejudice unto the title and right that any patrone hath unto the tythes of the paroch, nor weaken his infeftment, wherein the same is contained; but that the said title, right, and infeftment, shall, in every respect, (so farre as doth concern the tythes,) be als strong and valid as when presentations were in use. It is further statute and ordained, that the tythes of these kirks, whereof the presentations are hereby abolished, shall belong heretably unto the said patrons, and be secured unto them, and inserted in ther rights and infeftments in place of the patronage: Likeas the Estates of Parliament declare said patrons their right thereunto to be good and valid, hereby granting full power to them to possesse, annalzie, sell, and dispone the same, in manner after specified, as fully and freely as the minister and patron might have done before the making of these presents, excepting always therefrom these tythes, which the heretors have had and possest, by vertue of taks set to them by the ministers, without

the congregation should dissent, the matter should be reported to the presbytery, who, if they did not find the reasons of dissent to be grounded on "causeless prejudices," were to appoint a new election. If only a minority dissented, the admission was to proceed, unless relevant exceptions were verified to the presbytery.

18. At the Restoration, the law of patronage was replaced on its former footing by the act rescissory, which cut down the statute 1649; and, by another act of the same period, all the ministers who had been settled in the interim were ejected from their benefices, which were declared vacant "ipso jure."

19. By the act 1690, c. 23, passed immediately after the Revolution, the right of patrons to present was again annulled, and it was provided, that, on vacancies in churches, the elders, with the heritors of the parish, being Protestants, or the magistrates in burghs, were to elect a person for the approval of the congregation, who, if they disapproved, were to give in their reasons of disapproval to the presbytery, by

any deed or consent of the patrons, concerning which it is provided, that the said tythes, at the issue and outrunning of the present taks, shall belong unto the heretors, respective, the said heretors and patrons above mentioned, each of them for their interest, being alwayes lyable to the payment of the present stipends to the ministers, and to such augmentation and provision of new stipends to one or more ministers, such as the Parliament or Commission for Planting Kirks shall think fit and appoint, excepting also such tythes as are and have been possest, and uplifted by the ministers as their proper stipends; concerning which, it is hereby declared, that the minister shall enjoy the same without any impediment, as formerly, it being hereby provided also, that this act shall prejudge no person of the right, title, and possession of their tythes by infeftments, taks, and other lawful rights, acquired by them, and the predecessors and authors, as accords of law: Likeas the Estates of Parliament renew the former acts granted in favour of heretors, for valuing, leading, and buying of their tythes, hereby ordaining any patrone, having right to these tythes made to them by this act, and having no right thereunto of before, to accept the value of six years rents, according to the prices of valued bolls respective, injoyned and set down in the former act thereanent: And that, for the heretable right of the said tythes, and for all titles interest, or claim, that the said patrons can have, or pretend thereunto, by vertue of this act.

1 1662, c. 3. This cruelly oppressive statute, whereby were ejected about one-third of the ministers of Scotland, having obtained right to their livings according to law as it stood at the time, proceeds on the following preamble :- "The King's most excellent Majestie being desirous that all his good subjects may be sensible of the happy effects and fruits of the Royal Government, by a free, peaceable, and safe enjoyment of their due interests and properties under his protection," &c.

whose judgment the calling and entry of the minister was to be ordered and concluded. In consideration of their being deprived of their right of presentation, patrons were to receive from the parish 600 merks, (L.33, 6s. sterling,) on obtaining payment of which they were obliged to execute a formal renunciation of the patronage, and they were also declared to have right to all teinds of the parish to which no other party could show a title.

20. In a few years, however, the right of patrons to present was again restored by the 10th of Queen Anne, c. 12, which proceeds on the narrative, that the way of calling ministers, sanctioned by the act 1690, "has proved inconvenient, and has not only occasioned great heats and divisions among those who, by the aforesaid act, were entitled and authorized to call ministers, but likewise has been a great hardship upon the patrons, whose predecessors had founded and endowed these churches," and repeals the same, "in so far as it relates to the presentation of ministers by heritors and others mentioned therein," declaring that it should be lawful to all patrons, who had not executed renunciations in terms of the former statute, to present as formerly, and that presbyteries should be bound to admit the qualified presentees, as presentees ought to have been admitted before the passing of the act.1

21. For many years the church remonstrated against this enactment; but, since 1784, the annual instruction to the commission to take advantage of any fit occasion to obtain its repeal, has been omitted. In the meanwhile, therefore, the first step towards the settlement of a parochial minister, is the presentation by the patron. To give to the presentee, however, a right to the stipend, and other emoluments attached to the office, he must be admitted thereto by the church. As

1 Only three parishes, viz. :—Cadder, Old Monkland, and New Monkland, had obtained effectual renunciations. The parish of Strathblane, in the Presbytery of Dumbarton, had paid the 600 merks to the provost of the Collegiate Church of Dumbarton, who, as such, was supposed to be patron of the parish, and had obtained from him a renunciation; but the Duke of Montrose having purchased the patronage of the provostry, as well as of the parish, from Queen Anne, who had acquired it from the Duke of Richmond, succeeded in a declarator of his right of presentation and reduction of the renunciation of the Provost.-Duke of Montrose, v. Heritors of Strathblane, June 4, 1747.—(Elchies v. Patronage, No. 2.)

already mentioned, the consent of the people was originally deemed requisite to the constitution of the holy office, as well as admission and ordination by the presbytery, after trial and examination. In practice, the trial and admission by the presbytery is maintained in substance as well as in form, but the consent of the people is retained in form only.

22. The form, however, being still retained, as "agreeable to the immemorial and constitutional practice of the church,” it shall constitute the subject of one of the following chapters, in which I propose to treat, 1. of the title to patronages; 2. of the exercise of the right; 3. of jus devolutum; 4. of the qualifications of the presentee, to the effect of sustaining the presentation; 5. of calls; 6. of examination, ordination, and admission; and, 7. of the jurisdiction of the civil and church courts in regard to these matters.

1 Act of Ass. 7, 1782.

CHAPTER II.

OF THE TITLE TO PATRONAGES.

23. PATRONAGE is an heritable right, and, as such, subject to the same rules in regard to the matter of title which hold as to other rights of an heritable nature. Into these I do not propose here to enter, but shall confine my observations as much as possible to certain peculiarities which exist with reference to this right, as distinguished from others.

24. In general, it may be observed, that, though capable of feudalisation, a right of patronage is originally, of its own nature, jus incorporale, and capable of being transferred by disposition merely.'

25. When once feudalised, however, the right thereto can only, on transmission, be completed by infeftment, with which, of course, mere personal titles to such feudalised patronages, though followed by prescriptive possession, cannot compete.2

26. The usual symbols in giving an infeftment of a patronage are a Psalm-book and the keys of the church. A sasine, however, has been held good, the instrument of which bore, in general terms, "juris solemnitatibus consuetis debitis observatis."4

27. Although a right of patronage have been originally granted along with lands, and infeftment taken thereon, it is transmissible separately, and without any part of the lands to which it has been attached ; but it nevertheless still requires infeftment.6

5

28. Besides these general rules, which apply alike to all

1 Stair, 2. 8. 35; Ersk. 1. 5. 15; Parson of Moreham, July 6, 1666 (M. 9897). Urquhart v. Officers of State, July 27, 1752 (M. 9915.)

3 Ersk. 2. 3. 36.

Urquhart, ut supra.

5 Ersk. 2. 6. 19; notwithstanding Craig, 2. 8. 37.

Ersk. 1. 5. 15.

B