motion of Mr. Yorston issued, to touch at all the standing laws of the Church against non-residence and pluralities, but merely to regulate the mode of procedure in certain instances of their supposed infringe

ment.

"A great deal of light may be thrown on the intentions of a court in passing an act, by reference to the sentiments of the principal speakers on the occasion. Let us take a few specimens, then, from the chief pleaders on the question before us in the Assembly 1816, when, let it be particularly noticed, the matter was, for the last time, submitted to the review of the Supreme Court. Dr. Chalmers considered it a material point gained, to have obtained the law 1814. It was a vantage ground on which the church now stood. The framers of it seemed to have had an ulterior object in view, namely, to do what he should wish to see done, union of offices declared to be unlawful in all cases. But the church at that time was not in a state to be brought to such a measure. He hoped, however, it would at length be accomplished. He said they should keep what they had now distinctly and clearly gained, and not allow it to be again involved in doubt, and all the mysticism of a legal phraseology.' In his view of the impolicy of unions of offices in all cases, a number who agreed with him in the other points might not concur; but certainly not one of them ventured on the preposterous averment, that Dr. Cook, and the other friends of the act 1814, meant the very reverse of what Dr. Chalmers affirmed; namely, to sanction all unions of offices where non-residence did not take place. And, we beg to know, how was the averment of Dr. Chalmers received by the speakers on the

other side? Did they rebut the averment? Or did they avow it as their design, in the intended ove!ture, to do the very reverse of what the friends of the declaratory act wished and longed for-even to give the sanction of the church to an union of offices in all cases where non-residence did not take place? Did any individual breathe such a sentiment? Or had such an idea been put into the overture, does any man in his senses think that it could have been taken up and carried by a majority of the house? No certainly. We make an appeal to an authority of no slender weight; that namely of an enlightened and most justly respected Judge, whose speech followed that of Dr. Chalmers, to which it was designed as a reply. The Lord President said, that the reverend gentleman who had just sat down had appeared to him to take the only consistent view of the subject when he proposed to abolish pluralities altogether; nay more, that he concurred with him cordially in his views of the impolicy of such unions of office; and were he,' Dr. Chalmers, to introduce an overture to prevent them in toto, he was ready to go out and out with him in it." His Lordship then went on to show, that the act of 1814 gave no advantage to the church beyond what it had before, since the terms of the enactment appeared to him so vague as to leave every special case to be de cided, as formerly, on the basis of its own merits. But, did it ever occur to the comprehensive mind of his Lordship, that the friends of the declaratory act and of the overture, which are substantially the same, intended, either by the one or by the other, to legalise an evil, whose results in one class of instances, they were so anxious to prevent?

"In conclusion, let us look for one moment to the terms employed in the motion with which Principal Hill and his friends met the declaratory enactment of 1814. In as much as the church courts have already sufficient powers to prevent any union of an ecclesiastical benefice with a professorship in an university, where the duties of the two are found incompatible, the General Assembly judges it unnecessary hoc statu to transmit to presbyteries any overture on the subject. But if the declaratory act was understood to aim at the annihilation of the power of the church to sit in judgment on all cases of plurality that might come before them, where is the reasonableness of the inference, that therefore it is unnecessary to overture the presbyteries on the subject?' Would not this have been the very best reason for sending an overture to the presbyteries? in order that the sense of the church might be had on the vitally important question, Whether shall pluralities come within the judicative powers of church courts, or be placed under the guardianship of a law, which no court, however high, can venture to tamper with? Does not the obvious sense of the motion amount simply to this, that seeing the church courts are vested with ample powers to judge in all cases of plurality which may come before them, it seems unnecessary to propose any new enactment of a special nature in reference to the cases noticed in the proposed act? And hence we find, that the overtures presented to the Assembly in 1816, all went on the assumption that the Assembly 1814, 1815, had by its ipse dixit, taken out of the hands of

presbyteries the power of judging in the case of non-resident pluralists. No complaint was made of their having taken the entire jurisdiction of pluralities out of their hands; for in all other instances except this one, the right and the power were supposed to remain complete and untouched, as before.

"II. But is there any thing in the terms of the law which requires us to put on it such an interpretation as that contended for? It might have been reasonably expected, that, if the act in question had been designed to take such an extensive range as to sanction, by implication, all unions of offices in which non-residence is not implied, some hint would have been inserted in the body of it. Assuredly, such an important change on the statutes and practices of the church should not be left to be deduced by mere inference, and that, as we shall soon see, not the most logical. In the year 1638, the Assembly at Glasgow passed an act rescissory, in which it specified nominatim et seriatim all the acts, or parts of acts, passed during the ascendency of the hierarchy, and declared, with regard to all and each of them, that they were thereby annulled. In 1662, the Parliament of Scotland passed an act rescissory, in which every act of legislature enacted during the ascendency of the com. monwealth, was specially named, and all declared to be henceforth null and void. In such instances, there is no room for doubting. The law is plainly laid down; and, by its terms, we are made acquainted with what is binding and what is not. In this instance, however, no such course is followed. A distinct

* Assembly Acts, 1814.

negative is put on a certain class of abuses; but as to all other abuses that may creep in, we are left entirely to our own conjectures from the supposed implications of the

statute.

But farther, What are the terms in which the overture of 1816, in other words, the standing law of 1817, expressly avows its design and aim? The General Assembly, conceiving that it is their duty to watch over both the interests of religion and literature, and feeling a becoming solicitude to maintain inviolate the residence of ministers in their respective parishes, which the fundamental laws of this church require, and by which the people of Scotland enjoy, in full measure, the comfort and edification of a Gospel ministry, direct all the Presbyteries of this church to employ the means competent for them, in order to prevent the same person from holding, at the same time, a professorship in a university, and a parochial charge which is not situated in the city which is the seat of that university, or in the suburbs thereof.'* A plainer, a more specific definition of the object and intent of the Assembly in this enactment, cannot be desired; and surely, we must interpret the enactment in consistency with the grounds and reasons on which it is represented as proceeding. The end in view is distinctly and unequivocally avowed; and the means employed, or to be employed, in order to the attainment of that end, are no less distinctly and unequivocally prescribed. And upon what principle are we entitled to say, that, besides the avowed end, there was, in the view of the Assembly, another, not avowed, but understood an end much more extensive, and affecting most deeply, not the residence of the clergy indeed, but what is far more impor

VOL. XXIII. NO. IV.

tant, the very purpose and design for which residence itself is enjoined-an end, too, let it be noticed, for the attainment of which, the means prescribed in the act, possess no kind of aptitude? In one word, where is the reasonableness, where the decency of supposing, that, while the Supreme Court was stretching forth her arm to protect the residence of her clergy on their cures, she was, at the very same moment, covertly giving her sanction to a principle, which goes directly to deprive residence of all its value to render a clergyman, although resident, entirely inefficient, as to all the advantages which residence is designed to secure-and to do the very reverse of what this act so properly assigns, as its prominent desire, that the people of Scotland may enjoy, in full measure, the comfort and edification of a gospel ministry?' What more glaringly inconsistent, than to pass such an enactment as this, The clergy shall indeed be resident, but presbyteries must see to it, that, by sanctioning the union of the most laborious university offices with an overburdened pastoral charge, they shall take care to prevent the people of Scotland from enjoying, IN FULL MEASURE, the comfort and edification of a gospel ministry!"

"Again, Suppose that, in place of the terms employed in the act 1817, the ipsissima verba of the de claratory acts 1814, 1815, had been retained, and transmitted as an overture to presbyteries, and in the same shape passed into a law, would there have been the shadow of a foundation for such an infer ence as that which has been wrest ed from its terms as actually adopted? In the act 1814, the law of re sidence, and no other, is specifically announced in the preamble. The want of minute specification as to

20

more unfair, than to graft a sweeping rule upon the terms of an exception; in other words, to measure the design and meaning of a whole system of statutes, by the accidental terms of an excepting clause.

After all, what is the fair and logical inference from the law of 1817? The statute says, that a man cannot be both minister and professor, where the charge and the chair are not situated in the same town. Ergo, A man may, or can be, a minister and professor, where the charge and the chair are situated in the same town. Is not this the literal and grammatical inference? And does it not appear, that the very farthest length to which the implication extends, is to permit a minister, in certain cases of necessity or expediency, to accept of a professorship along with a pastoral charge at the same time? The law indirectly says, you must prove the necessity of an union, and the compatibility of the offices. You must prove, by independent evidence, that the duties of the chair are either, in their nature, or in the extent of labour involved in them, not sufficient to employ one man; or, at all events, that the duties of the parochial charge are not so great and numerous as to leave no room for addition to the burden. All this is plain and intelligible, and will be readily granted by the enemies of pluralities: but to say that because pluralities are not absolutely, and in all cases, forbidden, they are, therefore, in all cases except one, confirmed and sanctioned; and to infer, that because a professor cannot sustain a presentation to a church in a different parish, therefore a professor must be inducted upon a presentation to a church in the same

parish, however needless the union, and however incompatible the duties of each may be, is surely weak and unwarranted. In the one case, there is a legal disability which no act of the General Assembly itself can control or set aside; in the other, there is, or there may be, such an incompatibility as renders the case a very fair subject of investigation and judicial discussion before the supreme court. The law proscribes and places, as it were, hors de combat, a particular class of pluralities, which, on no account whatever, can be sustained in the church, obviously leaving all other classes to be judged of as before. What, we ask, is the opposite of an impossibility? It is neither more nor less than a possibility. The law says, union of offices, in such and such cases, is impossible—it cannot be therefore, we infer by necessary implication, that union of offices in other cases is possible-it may be. The church may allow it, either by overlooking, as in some instances; or by judicial decisions, as in others. But surely the church may also disallow it, by retaining in her hands the power of preventing such unions as contrary to statute, or as inconsistent with the due discharge of pastoral obligation.

"Thus it appears, that neither from the history of the law, nor from its terms and legitimate meaning, does it appear to have been the design of the Church of Scotland to denude herself of her just and unalienable right of sitting in judgment on every case of plurality as it occurs, in which there may seem to be fair room to question the consistency of such plurality with her express laws, or the spirit and ge nius of her constitution."