The power of the bishop over the curate is unlimited—just as unlimited as that of our Scottish presbyteries over the licentiate. Neither the licentiate nor the curate is recognised, even by our civil courts, as possessing any patrimonial right,' or 'vested interest,' the one in his licence, the other in his orders. The bishop has only to recal his licence (which every curate in his diocese must possess), and that he may do without formal process or assigning any reasons, and the curate is silenced and deprived of his cure without power of appeal, or possibility of receiving redress from any quarter whatsoever.*

It is only after one has been ordained priest that he is qualified to be presented to an English cure; and this gives an Anglican prelate an incalculable advantage over one of our presbyteries, if we are to receive the law according to the recent decisions in our civil courts. In England the presentee is already in full orders, so that whatever the force employed to compel the prelate to induct him into a benefice, the matter of ordination is left altogether untouched. The analogy, therefore, on this point ought to be not between the Scottish preacher who is only a layman, and the English presentee who is a priest, but between the latter and one of our ordained ministers, say to make the analogy complete, a Dr B. or a Dr L. who, although they may have been in orders for years, yet possess at present no benefice in the church. Now, although some of our presbyteries might, perhaps, object, and that very decidedly too, to being compelled, by civil pains and penalties, to induct one of these Rev. Drs into a reclaiming parish, where is the man who does not perceive that this would be infinitely less objectionable than to be bound and restricted,' not only to induct, but, in addition, to ordain such unpopular presentees? If, however, the Erastian doctrine maintained by the Court of Session should happen to become the law of the land,' then the Church of Scotland shall become all at once, from the freest, the most enslaved Church in Christendom. No Anglican prelates would for one moment listen to the compulsitors now issued against our Church. And if our courts should yield to them, by one hair's breadth, all who love the freedom wherewith Christ has made his people free, must abandon all connection with so Erastian and enthralled a community.

Upon this point there prevails the grossest ignorance throughout England, regarding the principles of our present resistance to the demands of the courts of civil law. We have conversed upon the subject with very many educated Englishmen, and never yet met

Burn Tit. Curates, 9. Nelson's Rights of the Clergy, 3d ed. Tit. Curates. Watson's Clergymen's Law, 3d ed.; and the Stat. articuli sleri, 9 Ed. ii. 1, c. 13, as quoted by Burn, Tit. Benefice ii. 1.

with one who did not fancy that the presentees rejected and refused to be inducted by our presbyteries, were already in orders; never have we met with one who fancied that orders was one of the matters which the courts of temporal law commanded our presbyteries to bestow. This we consider, if properly managed, will be one of the telling points upon the Legislature. Let it be distinctly placed before peers and prelates that the Court of Session not only commands our presbyteries to induct ordained men into benefices, but also to ordain laymen,-a thing never dreamt of in England, or any where else, but in our Court of Session, and we can answer, from our own observation of the surprise with which an Englishman learns the fact, that the bench of bishops at least will be on our side.

But having gone thus far, we must, to complete the matter, show the various steps by which a presentee is put in full possession of a benefice. And here we confine our remarks to rectors and vicars, because it is only between them and our parochial clergy that any analogy or resemblance obtains.*

The method of becoming a parson or vicar,'t says Blackstone, 'is much the same. To both there are four requisites necessary,— holy orders; presentation; institution; and induction.'

An English presentation is in the form of a very respectful, indeed humble, petition to the bishop of the diocese in which the benefice is situated. On receiving the presentation the presentee must forward it to the bishop, along with his letters of orders, (which are an extract from the bishop's register, testifying that he was ordained priest, as well as deacon), and a certificate of good character from three beneficed clergymen, signed and countersigned as before. He then attends for examination, and if the bishop finds him fit, (idoneus, as the statute has it), he admits' him, that

6

* Blackstone (B. i. c. 2) says, 'The distinction of a parson (or rector), and a vicar is this; that the parson has, for the most part, the whole right to all the ecclesiastical dues (especially all the tithes) in his parish; but the vicar has generally an impropriator over him entitled to the best part of the profit, to whom he is, in effect, perpetual curate (substitute or vicar), with a standing salary.' The origin of impropriation was simply this: During the domination of Popery it was common to bestow the tithes of parishes upon monasteries, and other religious houses and colleges, who appointed a curate to officiate in the parish, with a small part of the dues as his stipend, the remainder going into the coffers of the society. At the dissolution of religious houses in England, their lands and other rights were bestowed, some upon the crown, some upon laymen, some upon lay corporations, others upon ecclesiastical corporations, such as colleges or chapters, and others upon bishops, all of whom still retain their impropriations.

+ Ubi supra.

Paternitati vestrae humilime supplicans, &c.'—' Humbly requesting that you will be pleased, &c. See the Latin form in Nelson's Tit. presentation," and the English in Burn Tit. Benefice i. 20; or Watson c. 15. How different this from our Scottish presentations, which are certainly sufficiently Erastian and imperative.

is, he expresses his approbation of his fitness to serve the cure. The bishop then administers to him the oath against simony, the oaths of allegiance, supremacy, canonical obedience, and of residence. By the thirty-sixth canon the presentee must also, in presence of the bishop, swear and subscribe the three articles contained in that canon; viz. those regarding the supremacy royal, the prayer-book, the thirty-nine articles, and the declaration of conformity.

The next step is to receive institution.

The form and manner

of the institution is, that the clerk kneeleth down before the ordinary (the bishop), whilst he (the ordinary) readeth the words of institution out of a written instrument drawn (up) before for this purpose, with the seal episcopal appended, which the clerk, during the ceremony, is to hold in his hand.'*

The final step in the process is induction. After institution, the bishop issues a mandate, commonly addressed to the archdeacon, authorising and enjoining him to induct the presentee into his benefice. The archdeacon commonly issues his precept' to some neighbouring clergyman to perform the act, which takes place on a week day, and with the following ceremonies :-" The inductor usually takes the clerk by the hand, and lays it upon the key, or upon the ring of the church door, or if the key cannot be had, and there is no ring on the door, or if the church be ruinated, then on any part of the wall of the church or church-yard, and saith to this effect, By virtue of this mandate, I do induct you into the real, actual, and corporal possession of the rectory of H., with all the rights, profits, and appurtenances thereto belonging.' After which the inductor opens the door and introduces the clerk into actual possession. The clerk then tolls the bell, if there be one to the church, to give public notification of the act to all parishioners. 'Which being done, the clergyman who inducteth, endorseth a certificate of his induction on the archdeacon's mandate, and they who were present do testify the same under their hands.'+ ceremony being over, the person thus inducted is then complete incumbent, and entitled ad beneficium, that is, to an estate in the glebe and tithes.'

• This

The only thing farther necessary to complete the forms required by law are, that within two months of the induction, the incumbent shall read morning and evening prayer, and declare his unfeigned assent and consent thereto, in the presence of the congre

Burn Tit. Benefice v. 2. Nelson (Tit. Institution) gives the following as the usual form of this instrument: Institui te Rectorem ecclesiæ de H. et habere curam animarum parochianarum, &c., et accipe curam tuam et meam.' + Burn, tit. Benefice, vi. 2. Hodgson, p. 30. Watson, c. 15. Nelson, tit. Induction.

gation; read also publicly in the church, and in the same form, declare his assent and consent to the Thirty-nine Articles; and within three months after his induction, that he read publicly during divine service his having subscribed it before the bishop. The forms required, as above mentioned, constitute what is termed, "Reading in," and are usually observed on the same Sunday.'*

The difference between institution and collation is simply this:When a bishop is patron of a benefice, or a right of presentation falls to him by lapse, he does not grant a presentation to the clerk he has selected to supply the vacant benefice, but grants him institution at once, and this is called collation.

We have hitherto proceeded upon the assumption, that the bishop was satisfied with the presentee. We shall now notice what steps must be taken when a presentee is rejected. In this case, there is a remedy provided by law, both for the presentee and the patron. We shall consider each separately.

And, 'first, for the presentee. The presentee having been refused institution in due form and time, the bishop is bound to give notice of the fact to the patron, specifying distinctly the cause or causes why institution has been refused. On being apprised of this, the presentee may apply to the archbishop's Court of the Arches for a writ of duplex querela. The first step taken on obtaining this writ, is to admonish the bishop to admit and institute the clerk within a period specified in the writ; and, for this purpose, the complainant is to wait upon the ordinary, exhibit his presentation, and offer to take all the oaths, and subscribe all the articles required by law. Should the bishop still refuse institution, he is cited to answer for his conduct. Should he not compear, he is pronounced contumacious, and the case is taken out of his hands and transferred to the archbishop of the province, who may grant institution and order induction, if, upon examination, he is satisfied with the fitness (idoneitas) of the clerk. But should the archbishop refuse, an appeal lies from the Arches to the crown, who issues a commission to the Court of Delegates (which consists of a number of lay and spiritual persons selected and appointed for the purpose,) whose decision is final, unless on a writ of error' the crown in chancery or council reverse it. It would also appear (al

• Hodgson, 31.

The reader ought particularly to bear in mind, that the Anglican ecclesiastical courts bear no resemblance whatever to our church courts. The English church courts are mere courts of canon and civil law, in which laymen preside as judges, and plead as proctors, and in which neither bishop nor archbishop has a seat, nor, in fact, any power or jurisdiction. The court even does not sit in the name of the bishop or archbishop, but that of the king or queen, the fountain of all power, ecclesiastical as well as temporal, and the ultimate judge in all causes, spiritual as much as civil.

though of this point we have not been able to obtain satisfactory proof,) that at every stage of this process in the ecclesiastical courts, the temporal courts are warranted to interfere by prohibitions,' which possess the same force as our interdicts. But passing this latter point, of which we are not so certain.

If, on being summoned, as stated above, the bishop should appear to defend himself, and allege reasons for refusing institution, the court proceeds to try the truth and validity of the reasons assigned. The most common reason alleged is want of sufficient learning, and here it has been ruled, over and over again, in all the civil and temporal courts, and in Parliament, and is now a settled point, that in deciding upon the literature of the presentee, the bishop is the sole judge, and need not even state in what kind of learning, or to what degree the clerk was found defective.'* Should the bishop allege heresy, schism, or immorality, the matter goes to proof, and if the fact be proven, and the offence sufficient to warrant the sentence, decision is given in his favour, and the fact is notified to the temporal courts.

But should the bishop fail to prove his allegation, or should the disqualification specified not be sufficient in law to warrant his refusal, sentence is given against him, and he is condemned in costs. Should the bishop still refuse, and should the archbishop support him, we believe (although we are not certain that) the Arches acting in virtue of its delegated authority from the crown, or the Court of Delegates, can grant institution, and order induction, which are mere civil acts, necessary to secure civil rights, as they are regarded by the law of England. But even in this case of final and obstinate refusal on the part of the bishop to institute, we have not been able to discover that the presentee can claim from him any damages (although as we shall see the patron can). It would appear in this, as well as in every thing else, it is the determination of the Court of Session to enslave our Scottish courts to an extent never yet attempted even in Erastian England.+

But as the presentee, being refused institution, has his remedy in the spiritual courts by duplex querela, so the patron can claim redress in the temporal courts by a writ of quare impedit. We

* Burn, tit. Benefice iii. 4, 1. This will account to our readers for the manner in which the batch of chancellors who decided upon the Auchterarder appeal so repeatedly conceded, that our courts were the sole judges as to literary qualifications-a concession which may have been looked upon as rather liberal, especially as coming from such quarters. These chancellors, however, in this, as in every thing else, decided merely according to the laws and constitution of the Anglican Church. We are fully persuaded they know about as much of the laws and constitution of the Church of Scotland, as they do of the Eleusinian mysteries or the Jewish synagogue.

+ Burn, tit. Benefice. Nelson, tit. Duplex Querela. Watson, c. 21.