senting conditionally to proceed with a presentee, and taking some steps towards his settlement, were barred, personali exceptione, from afterwards challenging it, and claiming the presentation tanquam jure devoluto.' I have, in the preceding chapter, ventured to express some doubts of the soundness of this decision. See supra, 123.

147. When a presentation is void in respect of the patron not having taken the oaths to government, or purged himself from popery, the right of presenting for that vice falls to the crown; and if the crown fail to present within six months, from the neglect or refusal of the patron to take the oaths, the presbytery have right jure devoluto. In the case quoted in the last paragraph, it was held, that a plea of personal exception competent to the crown against the presbytery, in respect of certain proceedings on their part excluding the crown's right, notwithstanding the lapse of six months, might be made available to the presentee under the presentation alleged to be invalid, though not pleaded by the crown. This judgment, as already mentioned, seems very questionable.

148. It is a competent form of process for the patron to bring a declarator to have it found that he has presented in due time; and for the presbytery, on the other hand, to have it declared that he has not presented in time, and that the presentation has fallen to them jure devoluto.3 Where the jus devolutum would, in the event of his being held to have failed, fall to the presbytery, the action by the patron will be properly directed against them; but if it would fall first to the crown, as where he is said not to have taken the oaths, the crown must also be made a party.*

1 Presbytery of Inverness, June 10, 1823 (2 S. & D. 384.) The General Assembly pronounced a corresponding judgment in the same case, 1822, sess. 7. 2 See supra, 116, et seq.

3 Presbytery of Paisley v. Erskine, Aug. 10, 1770 (M. 9966.) Procurator of Church and Presbytery of Ayr v. Earl of Dundonald, March 2, 1762 (M. 9961.) Presbytery of Strathbogie v. Forbes, Aug. 2, 1776 (M. 9972.) Lord Dundas v. Presbytery of Zetland, May 15, 1795 (ibid.)

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Hay v. Presbytery of Dunse, Feb. 25, 1749 (M. 9911, and 5 Brown's Sup. 768,) as reversed on appeal.

CHAPTER V.

QUALIFICATIONS OF THE PRESENTEE TO THE EFFECT OF THE PRESENTATION BEING SUSTAINED.

149. BESIDES the personal qualifications of a presentee for the pastoral office in respect of literary attainments, moral character, doctrine, &c., to which it is not now intended to advert, there are others requisite to authorize the presentation being sustained as a title to warrant further steps being taken towards his settlement.

150. The presentee must have attained the age of twentyone years complete; and he must have been licensed as a probationer by a presbytery of the Church of Scotland.

151. This last-mentioned qualification being a test established by the church, with reference to admission to the pastoral office, as to which alone they can establish any regulations, and not being required by the municipal law as essential to the validity of a presentation to a benefice, it is not, according to strict principle, necessary to the presentation being sustained, though absolutely so to a call being concurred with. As, however, the want of a license is an insuperable obstacle to admission, and as the status of a licentiate has been acknowledged in diverse acts of Parliament, it has in practice very properly come to be considered an essential, without which a presentation cannot be sustained.

152. At one time it was not unusual to receive parties who had obtained license or ordination from Presbyterian churches abroad; but, by act 9, 1779, all persons educated or residing within the bounds of the church were prohibited from going forth thereof to obtain licenses to preach; and all licensed preachers were in like manner prohibited from going without the bounds to obtain ordination, unless called to a particular

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congregation in another country; and it was enacted "that, licenses obtained in that manner shall not be received, or have any effect in this church ;" and that "such preachers as contravene this act shall forfeit the license formerly given them, and be no longer entitled to the privileges which belong to a preacher of the gospel in this church." And by a subsequent act (5, 1799) it was declared, that no such person should be held qualified to accept a presentation; and presbyteries were enjoined, in the event of their tendering a presentation or call, instantly to pronounce a sentence refusing to sustain such presentation or call, and declaring it null and void.

153. The license by a presbytery of the church is required as an essential test of prima facie qualification, which the church courts in no case dispense with; and the regulation of the course of study and trials which shall entitle parties to obtain a license, is exclusively within the control and discretion of the church, which may, by her enactments, vary these from time to time as she sees fit.

The subsisting regulations as to this matter are chiefly contained in act 8, 1813, and are in substance as follows:- 2

"Ordained, That in all time coming the following regulations be strictly observed:-1. Enacted, That no student be entered upon the roll of any professor of divinity, unless he shall produce to the professor a certificate from the minister of the parish in which he has his usual residence, or, in his absence, or during a vacancy in that parish, from some neighbouring minister, bearing that his character is suitable to his views; together with a diploma of master of arts, or certificates from the several professors of philosophy under whom he had studied, from which it may be clearly ascertained that, in some university or universities, he had gone through a full course of philosophy in some winter sessions of college preceding that in which the certificates are produced.3

1 This enactment was enforced, Gary, Sess. 5, 1798.

I have quoted the substance of this, as of other acts, from a very useful abridged and arranged collection, called, "A Compendium of the Laws of the Church."

S By act 7, 1827, it is now required, that, before a student be enrolled by the professor of divinity, he must be examined by the presbytery within the bounds of which

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"2. Ordained that all students who have been enrolled by professors of divinity, in the manner prescribed, continue to prosecute the study of divinity for the term of six sessions, provided, that if any student hath given regular attendance on the divinity hall during three sessions, his course shall be considered as completed in four sessions; and that if he hath given regular attendance in the hall during two sessions, his course shall be considered as completed in five sessions.1 Ordained, That, in each of these cases, students be enrolled by the professors during the several sessions of their respective courses, and deliver in the divinity hall, in the manner afterward provided, an exegesis in Latin on some controverted head of divinity, a homily in English, an exercise and addition, a lecture on some large portion of the scripture, and a popular sermon, together with such other exercises as the professors think proper to prescribe. Further enacted and declared, That a student is entitled to apply to the professor for his certificates, that he may be proposed for trials, and that the preliminary steps may be taken by the presbytery during the currency of the last session of his course, as above described, with the limitation, that, if the last session is to be claimed as a session of regular attendance, he shall, toward the conclusion thereof, obtain a new certificate of his attendance during its currency, and produce the same to the presbytery or synod.

he resides, (or by the presbytery in whose bounds the university in Scotland he has attended is situated, if he be resident beyond the bounds of the church—by overture and interim act 8, 1832,) in literature, science, and philosophy, and particularly in Greek and Latin, and must present the certificate granted by the presbytery to the professor. Dr Hill, in his "Practice in the Church Courts," observes, with reference to this act, that it" is in a great measure nugatory, and ought to be amended, to the effect of giving presbyteries a power to prevent students from being enrolled, if the result of the examination is unsatisfactory." P. 41, note.

1 By act 7, 1827, it is ordained, that when students shall not give regular attendance at the divinity hall, excepting for one year of their course, they shall, during the fourth year, be examined by their respective presbyteries upon their attainments in divinity, church history, Greek, and Hebrew. Persons who have not completed the prescribed course cannot be taken on trial. Ross, 1824. By overture and interim act 9, 1832, students are required to have attended two sessions of Hebrew and two of Church History, if there be a chair of Church History at the University, during two of the sessions which they claim to be considered as sessions of regular attendance at the Divinity Hall.

"3. Professors of divinity are required to attend, as much as circumstances may permit, to the conduct of such students as are under their care; and, as far as they find it practicable, to insist that every student deliver his first discourse some time during his second session at the latest, and the remainder of his discourses at such periods as may enable him to deliver the whole of them before the end of January of the last session of his course.

"4. When a student is proposed to any presbytery, in order to be taken upon trials, the presbytery shall be alone, and the motion for that purpose shall lie upon the table till their next ordinary meeting. In the meantime, the presbytery shall appoint the member by whom the student has been proposed, to lay before the meeting the certificate or certificates in favour of the student that are specified in the third paragraph of the third section of the act; to desire him to attend the same, and to inform him, that, previously to the meeting, he ought, as far as circumstances may permit, to wait on such ministers of the presbytery as have not formerly had an opportunity of conversing with him in private.

"5. When the time appointed for considering the motion has arrived, the presbytery shall strictly observe the following regulations:-(1.) The presbytery shall be alone while they are employed in discussing the several preliminaries respecting students who are proposed for trials. (2.) They shall require satisfying evidence that every student who is proposed for that purpose has completed the twenty-first year of his age. (3.) No student shall be admitted to trial unless he produces to the presbytery a certificate or certificates from the professor or professors of divinity under whose tuition he has studied, bearing that he hath prosecuted his studies and delivered his discourses in the manner prescribed by this act; and that his conduct, as far as it consists with the knowledge of the professor or professors, has been in every respect suitable to his views in life. Likewise enacted, That the presbytery shall record at full length the certificate or certificates in their minutes : And enacted and declared, That the student, having lodged such certificate or certificates, shall be entitled to obtain extracts of the same, if demanded. (4.) No presbytery shall