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in the year 1696,) were never intended against a person in appellant's circumstances; for that act was made only against those who intrude into vacant churches without a legal call and admission; and that appellant never intruded into any church or benefice, or deprived any person of his right, but exercised his function only in a private house to those of the same communion with himself; neither was imprisonment warranted by any of the said acts: And further, because the Lords of Council and Session ought only to have affirmed or reversed the sentence, for the reason on which it was founded, and not proceed to judgment upon any new reason: And finally because if those Lords might found their decree upon a new reason, not contained in the magistrates sentence, yet their decree, as to such new reason, was contrary to the principles and practice, not only of the christian church in general but of the church of Scotland, which admitted Presbyters ordained by exauctorated Presbyters, and also Presbyters in the same circumstances with appellant, [429] who, though they were ordained since the abolition of episcopacy by exauctorated bishops, yet their ordination had been allowed of, and they admitted to the cure of souls, as rightly ordained; wherefore, and because there was no superior court of justice in North-Britain, whereto he could in this case have any recourse, appellant prayed that decree might be reversed. (Tho. Lutwyche, Hum. Henchman.)

The respondents on their part stated, that appellant, without any lawful warrant, set up a meetinghouse in Edinburgh, for preaching and public worship, contrary to the method and usage of the church of Scotland, in an insulting and offensive manner, just opposite to the great church of Edinburgh, where four parishes meet for public worship; and the Presbytry of Edinburgh summoned him before them, for so presuming to exercise the ministry; and that appellant appeared, and produced the certificate of his ordination, by the exauctorat Bishop of Ross, with some testimonials from Ireland; but declined the authority both of the Presbytry and national church, and subscribed the same coram, and insisted that the church had no jurisdiction over him as to spiritual concerns; and adhered to his declinator; whereupon the Presbytry prohibited him, and recommended it to the magistrates of Edinburgh, to render the sentence effectual according to law: And thereupon, and upon a petition signed by many hundreds of the neighbourhood, the Lord Provost, and other magistrates of Edinburgh, cited appellant to appear before them, and required him to obey the act of Presbytry; which he refusing, they again prohibited him to exercise any part of his ministry within Edinburgh, and gave him notice, that upon his first transgression that they would imprison him according to law; but appellant, notwithstanding, preached and performed divine service the Lord's day following; whereupon the magistrates committed him to the prison of the Tolbooth, there to remain until he should find sureties to obey the sentence, or remove out of their bounds; and that appellant preferred a bill of suspension to the Lords of Session, who after a new and full hearing, again refused him; whereupon appellant protested against the Lords of session, and appealed to the Queen's Majesty, and the Lords; and that the Lords having declared by their order, that the prosecutors should be at [430] liberty to argue in the first place, whether this appeal be regularly and properly before them or not, respondents contended it was not, because the Presbytery was only a subordinate ecclesiastic judicatory, from which appeals in course lie to the superior judicatories of the provincial synod, and general assembly; and if appellant thought himself grieved by the sentence of the Presbytry, and omitted this known and proper remedy, he could not in law, or good order, appeal from the Presbytry to the Lords, who in all appealable cases are known to be judges only in the last resort: And if this appeal be from the sentence of the Presbytry to the Lords, no proper defenders or contradictors were summoned or called, and the Presbytry's sentence could not be reviewed, unless they themselves were called to answer for it, and that the respondents were not the persons to make answer in the case: And that although appellant pretended only to appeal from the decree of the Lords of Session, and the sentence of the magistrates, he directly libelled the sentence of the Presbytry, as groundless and illegal, and therefore to be reviewed, which upon the matter, was an appeal from the Presbytry against it; and that the sentence of the magistrates was purely executive; and that they were only concerned to make the sentence of the Presbytry effectual, as they were obliged to do