Theological Essays and Other Papers, vol 2 | Page 6

sort of customary law
founded upon vague tradition or irregular practice. And here, by the
way, arises the place for explaining to the reader that irreconcilable
dispute amongst Parliamentary lawyers as to the question whether Lord
Aberdeen's bill were enactory, that is, created a new law, or
declaratory, that is, simply expounded an old one. If enactory, then
why did the House of Lords give judgment against those who allowed
weight to the 'call?' That might need altering; that might be highly
inexpedient; but if it required a new law to make it illegal, how could
those, parties be held in the wrong previously to the new act of
legislation? On the other hand, if declaratory, then show us any old law
which made the 'call' illegal. The fact is, that no man can decide
whether the act established a new law, or merely expounded an old one.
And the reason why he cannot, is this: the practice, the usage, which
often is the law, had grown up variously during the troubles of the

seventeenth century. In many places political reasons had dictated that
the elders should nominate the incumbent. But the ancient practice had
authorized patronage: by the act of Queen Anne (10th chap.) it was
even formally restored; and yet the patron in known instances was said
to have waived his right in deference to the 'call.' But why? Did he do
so in courteous compliance with the parish, as a party whose
reasonable wishes ought, for the sake of all parties, to meet with
attention? Or did he do so, in humble submission to the parish, as
having by their majorities a legal right to the presentation? There lay
the question. The presumptions from antiquity were all against the call.
The more modern practice had occasionally been for it. Now, we all
know how many colorable claims of right are created by prescription.
What was the exact force of the 'call,' no man could say. In like manner,
the exact character and limit of allowable objections had been
ill-defined in practice, and rested more on a vague tradition than on any
settled rule. This also made it hard to say whether Lord Aberdeen's Act
were enactory or declaratory, a predicament, however, which equally
affects all statutes for removing doubts.
The 'call,' then, we consider as no longer recognised by law. But did
Lord Aberdeen by that change establish the right of the patron as an
unconditional right? By no means. He made it strictly a conditional
right. The presentee is now a candidate, and no more. He has the most
important vote in his favor, it is true; but that vote may still be set aside,
though still only with the effect of compelling the patron to a new
choice. '_Calls_' are no longer doubtful in their meaning, but
'_objections_' have a fair field laid open to them. All reasonable
objections are to be weighed. But who is to judge whether they are
reasonable? The presbytery of the district. And now pursue the action
of the law, and see how little ground it leaves upon which to hang a
complaint. Everybody's rights are secured. Whatever be the event, first
of all the presentee cannot complain, if he is rejected only for proved
insufficiency. He is put on his trial as to these points only: 1. Is he
orthodox? 2. Is he of good moral reputation? 3. Is he sufficiently
learned? And note this (which in fact Sir James Graham remarked in
his official letter to the Assembly), strictly speaking, he ought not to be
under challenge as respects the third point, for it is your own fault, the
fault of your own licensing courts (the presbyteries), if he is not

qualified so far. You should not have created him a licentiate, should
not have given him a license to preach, as must have been done in an
earlier stage of his progress, if he were not learned enough. Once
learned, a man is learned for life. As to the other points, he may change,
and therefore it is that an examination is requisite. But how can he
complain if he is found by an impartial court of venerable men
objectionable on any score? If it were possible, however, that he should
be wronged, he has his appeal. Secondly, how can the patron complain?
His case is the same as his presentee's case; his injuries the same; his
relief the same. Besides, if his man is rejected, it is not the parish man
that takes his place. No; but a second man of his own choice: and, if
again he chooses amiss, who is to blame for _that_? Thirdly, can the
congregation complain? They have a general interest in their spiritual
guide. But as to the preference for oratory--for loud