6

does not in terms enact the powers which and the circumstance that the parochial it confers, but refers for an accurate de- clergy had only the benefices of value scription and definition of them to the under 300 merks conferred on them by 19th act of parliament 1633, the 23d and the legislature, have been urged as prov30th acts of the parliament 1690, and the ing, that, after the reformation, the divine 24th act of the parliament 1693.-The right to tithe had been abandoned.-As question concerning the powers of the bearing on the present case, all these concourt as defined by these acts, has been siderations appear immaterial: whatever considered at the bar in two different points might be the rights of the parochial clergy, of view. First, it has been contended by it is perfectly clear, that, antecedent to the appellant, that after a church was the year 1617, they had been reduced to once modified and augmented, provided extreme poverty. For in that year an act the stipend assigned was not below the of parliament passed, which describes minimum as fixed by law, the court could the state of the church in terms not equinot re-augment, without encroaching on vocal; the preamble states: Considerthe sacred rights of property. On the ing that there be divers kirkes within other hand, by the respondent, it has been this kingdome not planted with minisargued, that the clergy, from the refor-ters, wherethrough ignorance and athemation downwards, never gave up theirism abounds amongst the people; and claim to an adequate maintenance out of that many of those that are planted, have the tithe, and that the court, without any no sufficient provision or maintenance apinvasion of the right of property, had a pointed to them, whereby the ministry are right to assign such maintenance, and keept in poverty and contempt.' Though occasionally to augment it, as the circum- this act of parliament is not referred to in stances of the times authorized. Secondly, the act 1707, out of which this question it has been stated on the part of the appel- arises, it has been dwelt upon in argument lant, that the act 1707, and the acts it by both parties, as being the first act apreferred to, in their enactments, only meant pointing a commission, intrusted with the to confer the right of granting one aug- charge of providing for the parochial mentation of stipend, which was to endure clergy out of the tithes of the church.— in perpetuity, and that many concomitant In the present case, for the better undercircumstances clearly pointed out this to standing of the act 1633, it appears to me be the true construction of the law. On the only necessary to state, that it provided other hand, this construction has been con- that 500 merks of money, or five chalders tested by the respondent, and arguments of victual, should be the minimum; that have been brought from other acts of 1000 merks of money, or 10 chalders of parliament to induce your ldps to conclude, victual, should be the maximum, given as that the act 1633, on which this question stipend to the clergy; and that after such mainly relies, never intended to circum- a provision was made, the holder of the scribe the powers of the commission it ap- tithes should be quieted in his possession pointed to the granting of a single aug- for ever. It is proper also to remind your mentation, but that it clearly conferred ldps,that another commission was appointed the right of reviewing its own decisions. in the year 1621, similar in principle and -In the conduct of the argument, much effect to that established in the year 1617.— learning has been displayed, on the ap- It is material also, here to observe, what propriation of the tithe in ancient times indeed was admitted at the bar, that the in Scotland. The act 1567, which granted stipends given to the clergy, under the a third of all benefices to the church, and provisions of these acts, were to be paid the circumstances that the various grants either out of the tithes held by the bishops, of tithes to the lords of erection, were uni- or the tithes held by titulars; for the parformly burdened with the condition of sonage tithes were already the property of maintaining the clergy, had been relied the church; and the lands held cum decion as proofs that the clergy, at no time, mis inclusis,' never were subjected to any even after the reformation, were depriv-provision for the maintenance of the clered of that right to tithe for which the church has uniformly contended. On the other hand, it has been said, that this right was abandoned by the protestant clergy: the authority of John Knox has been cited. The power of the titulars,

a

a

parties at your bar. And as this case ap- , claim, the moment the purchase was efpears to me very much to depend upon the fected. This act ordains the tithes to be true and sound interpretation of one of valued, and gives to the commissioners these acts, viz. chap. 19, it is necessary power, after the valuation, to appoint a shortly to allude to the public feeling on constant local stipend for ministers : the the subject of tithe at the time in which term constant has been dwelt upon by the it was passed.-King Charles 1, soon after respondent in this cause: much reliance coming to the throne, evidently appears has been placed on the circumstance, that to have wished that some general arrange- perpetual is dropt, which was used in the ment should be made on this subject. It former acts, and that the word constant is seems to have been his intention, if pos- here resorted to : between these a distincsible, to settle the disputes existing about tion has been made; perpetual is said to tithes, in a manner advantageous to all be properly used in relation to time; conparties; submissions were entered into in stant, as applicable to regular payment : the most formal manner, and the result of but it is impossible to conceive that there the award, carried into execution by the is any real distinction betwixt the meaning acts passed in 1633, was an arrangement of these words, as used by the legislature: apparently beneficial to all who were con- and if the act itself is examined, it is clear cerned.— The crown got a right of pur- that the word constant was not used for chasing the superiority from the titular, the purpose of securing the regular pay. at the rate of ten years purchase, and an ment of the stipend, as that is afterwards annuity of six per cent. out of the tithe.- especially provided for in a subsequent The titular was quieted in the possession clause of the act, when the commissioners of his property, which had been disputed are directed to set down the security in by the crown.—The landholder got rid of · favour of the ministers, so far as concerns the grievance of drawing the tithe in kind, the maintenance assigned to them, for his tithe was to be valued, and he was only good, thankful, and timeous payment of to be assessed in perpetuity in a fifth par • the rate of teind.'— The price for which of the then value of the lands; he ob- the tithe was to be sold by the titular to tained, also, a right, if he chose it, to pur- the land holder, subsequent to the clergychase his tithe so valued, at the rate of man's provision, has been relied on by nine years purchase.—The clergy were on both parties : by the respondent it has their part benefited by the minimum be- been said, that nine years purchase was a ing advanced from 500 to 800 merks, and very inferior price: he has argued, that the commission appointed were no longer it is so stated by Mr. Erskine, who says, restrained in relation to the maximum of that the tithes were sold at that inferior what was to be given as a proper stipend price from the circumstances of their betor the minister.-In considering the acting subject to future augmentations.' of parliament which passed in the year By the appellant it has been contended 1633, the words of the act, as well as the that the price was adequate, that the inhistory of the times, have been relied upon terest of money was at that period at ten as proving, that it meant to enact, and did per cent. which was evidently the case as actually enact, a final settlement of all appears from the act 1633 providing that claims concerning the tithes; and there the lender of money should receive only. can be little doubt, that words stronger or eight per cent. and that the remaining two. more appropriate to produce this impres- should go to the crown: the authority of sion could hardly have been selected. Mr. Laing has also been relied on: his The preamble recites what had been the history has been quoted in opposition to king's object from the coinmencement of Mr. Erskine, and the parties have canvashis reign, and describes the enactments to sed whether a lawyer or an historian was be, for the finishing and full perfection best authority for the market rate of in

of the glorious work anent the teinds and terest in remote times. It is to be obmaintenance of ministers'

'—an accurate served, however, that the interest of description of the law, if it was meant to money is stated to have been at ten per settle once for all the state in which the cent. at this period, by the clergy themparties were permanently to stand; but a selves, in the answer drawn up by the very false representation of it, if it meant committee of the general assembly, to the only to provide for the sale to the land- third and fourth reasons of dissent in the bolder of that, which it was to be under- year 1750.-Independent of these, howstood the parochial clergy had a right to ever, there are various circumstances,

which make me incline to the opinion altered to such an extent, as to reserve to. that nine years purchase was deemed an the church a right to come back for readequate and full price for the tithe.-The augmentation as often as they thought fit, superiorities sold to the crown under the how is it possible that they should have same acts of parliament were valued at felt themselves aggrieved or concerned, ten years purchase, which, like the tithe, whether the tithe went to the landholder, conveyed an unimprovable annuity, with or remained with the titular? They might the sole distinction, that the feudal service, as well have opposed the sale of a titular's certainly worth one year's purchase, went right, as the sale from the titular to the along with it. This alone is strong evi- landholder, if this had been deemed to be dence, that nine years purchase was, at the sound interpretation of the law at that that period of time, deemed a fair price time. But this is not all: in no part of for a quit-rent; and on the authority of this report is it stated as a ground for the king's declaration, it appears that this keeping up this commission, that the cirwas the light in which it was considered. cumstances of the times might authorize But it is not only upon the words and pro- the clergy to come back; on the contrary, visions of the act 1633, and upon the con- it is said, that many of them not having got temporaneous exposition of it, derived the statutable allowance, and others, though from such authority, that I am disposed to their stipends were modified, not having ground the opinion, that that act meant to obtained decrees of locality, it is judged give to the landholder a right to his tithe, most necessary, that the commission should unburdened with any obligation for in- " be kept up till the work was ended;" clearcreased allowance to the clergyman.-ly implying, that the clergy and nobility, Circumstances at no very remote period from the passing of the act, as well as subsequent enactments of the legislature, appear to me to prove, that this was understood to be the real meaning of the act, beyond a possibility of doubt.-As the commission constituted under the act 1633, was to endure during his majesty's pleasure, in the year 1636-7, a selection of persons from the nobility and clergy were appointed by his majesty to report whether this commission should be allowed to continue, or whether it was then fit to put an end to it. This report having been framed by the ecclesiastics, was agreed to, with some exceptions, by the lay lords: in the narrative it recites, that the clergy had from the first objected, that the tithes being the proper patrimony of the church, and reserved particularly in the Act of 'annexation, should be heretably disponed and sold to the heritor.' Now it is impossible to conceive that the clergy should have this feeling if the tithes subsequent to sale, had been, as the respondent contends, equally liable to future augmentations as before the sale. The act 1633 must have made on their minds a very different impression: they knew that both by the act 1617, and the act 1621, in press terms the tithe was discharged from all further claims, after payment of the sum modified; they knew that the act 1633 had raised the minimum from 500 to 800 merks, that it had left the maximum indefinite; and if they had thought, as the respondent contends, that the law was

6

and

in making this report in the year 1637,
still conceived that the object was the
same as recited in the preamble of the act
1633.-Strong evidence of this being the
sound construction of the act 1633, is also
to be found in the act of parliament which
passed Nov. 15, 1641: this act, though
not referred to by the act 1707, and in
truth not in existence, being rescinded
after the restoration, may be referred to
as explaining the sense parliament enter-
tained at the time of the act 1633
any illustration derived from it is the more
forcible, because the power the presbyte-
rian clergy then possessed, ensured that
the interpretation the most conformable to
their interests of which it was susceptible
would be imposed upon it.-Yet this act
does not empower the commission it ap-
points, to take into consideration, general-
ly, what sum it was fit to grant to the
clergyman out of the tithes which had
been sold. Indeed it specially bars the
possibility of augmentations being grant-
ed on this principle, because it confines
the attention of the commissioners to
those cases, who got not the benefit of
the former commission, and have not the
full quantity of eight chalders of victual,
or 800 merks, according to the tenour of
the Acts of Parliament made in anno
1633.'-The only other cases submitted
to the cognizance of this commission,
where previous augmentations had taken
place, were those where there existed
proofs of agreement betwixt the minister
and his heritors, or where the parish mi-

" ex

nister had been defrauded by the interfe-, of reference from the lords commissioners, rence of the prelates.—The act 1641 fur- to any of their number to sanction the ther shews, that the landholder was deem- agreement with the parties : now it is ed to have acquired a real right to that clear that nothing can bear more strictly which he had purchased, by cautiously on the point than this decision. In truth, avoiding, under any circumstances, sub- it shews that the commission under the jecting his property to further demands.- act 1641 could not in their opinion reBut it is not the phraseology of the act augment a living, even supposing it was 1633; it is not the full knowledge of the proved that collusion had taken place beking's intention and of the tenour of his tween the parties, provided the commisdecreets arbitral ; it is not his majesty's sioners acting under the former commission declaration of his sense of what had been had sanctioned the result of that collusive done; it is not the clear coincidence in agreement: how much more strongly, opinion of the clergy themselves in their therefore, must they have felt themselves report in the year 1636; nor even the obliged to reject a claim where a decision commentary afforded by the rescinded had been pronounced by the commisact 1641, upon which I rely in giving a sion after due and full examination of the decided opinion on the meaning of the act case ? - There is also a report of a decision 1633. The reports of the decisions of the of Feb. 22, 1643, which goes to confirm commission appointed under this rescinded the same interpretation : in the case of act, support this interpretation of the act of Forgandenny it is found, that the kirks parliament in the strongest manner. In provided by the former commission, if the acts and practicks of the commission they be bishop's kirks, and provided 1642, there are three decisions reported up within 800 merks, or eight chalders of on very different points, but none of which victual, that by the act of parliament they can in common sense, be reconciled to have power to provide them further — any other view of the law, than that which clearly shewing that the sense of the I have given to your Idps.—The acts 1633 court was, that no addition could be made and 1641, it will be recollected, ordered to the stipend of a kirk, if it were not a the commissioners to set aside, after the va- bishop's kirk, and if it had not less than luation of the tithe, a constant local stipend 800 merks, or otherwise fell under some for the clergyman, and then gave to the one or other of the exceptions of the act landholder the right of purchasing the re- 1641. That the legislature meant, by mainder at nine years purchase. It ap- the act 1633, to give to the landholder a pears that there came before the commis- clear right, at the rate of nine years pursion a case, wherein it was disputed, whe- chase, to the full possession of the tithe ther the landholder could purchase his conveyed after a provision given for the tithe before the minister got a stipend; clergyman, to be enjoyed by him in the and it was decided, (earl of Haddington same manner as if his property had been against Bearford) that the heritor may buy held · cum decimis inclusis,' does not even his teinds, although the kirk be not pro- rest upon all this body of evidence, which vided, if he be content to undergo the pro- I have taken the liberty to detail : a strong portionable part of the augmentation, corroboration is derived from the act of when it shall be granted, notwithstanding the year 1690, chap. xxiii. This act conthe right he had acquired by purchase, veys to the patron of the parish all the clearly shewing, that in this case the parsonage tithes not heretably disponed, landbolder was to be subjected to an obli- which it subjects generally, not only to gation after purchase, to pay the augmen- past but future augmentation of stipend : tation; an obligation, which it is never it obliges the patron, as the act 1633 had alleged, existed in any conveyance from obliged the titular, to sell the parsonage the titular to the landholder of tithe, sub- tithes thus acquired to the landholder :sequent to an augmentation having been but they were to be conveyed under the granted.—There is another decision of obligation on which they were held; i. e. the same day, in the case of Erskine subject to future augmentations. Had against Ker, and the minister of Lecropt; they been conveyed, released from all it is there found, that the titular is not ob-such burden, the fair price must have much liged to augment the minister's stipend if exceeded nine years purchase as fixed in it was augmented by the last commission, 1633. The interest of money had been by agreement betwixt the titular and the reduced by an act of the legislature to minister, provided it proceeded by way six per cent. in 1661. It was reduced in

mented: indeed, the words of that act recite, and specially regard the provisions of the act 1633, as a conclusive settlement. To these objections, therefore, I can attach no importance.-I have now stated the grounds on which I have formed a decided opinion, that the act 1633 gave to the landholder a clear right to his tithes, after a due provision to the clergyman being once modified, unburdened with any future obligation to provide increased sti

queen Anne's time to five. The value of a quit-rent in the year 1690, therefore, must have greatly exceeded nine years purchase, but in consideration that those tithes were to be subjected to future augmentations, the act fixes their value at six years purchase, which on principle, as the market rate of interest of money was then at five, and in 1633, at ten, must have induced the legislature in 1633, if the tithe had been to have been conveyed to the landholder subject to the same bur-pends; and I have in vain looked for any den, to have fixed the value at three years purchase instead of nine.-In opposition to all this body of evidence, tending to explain the real meaning of the Act 1633, on consulting my notes, I can only find two circumstances which have been urged by the Respondents that appear to me to bear upon the question. First, it has been said, that the act 1633 could not have been understood as an ultimate settlement of the stipend of the clergy, because, by the act 1641, a power is given to grant a further augmentation; and the ground upon which this proposition was submitted to your ldps, is, that in the year 1633 there were general powers given to the commissioners to go below the minimum, and that in this act they are only empowered to go below the minimum in special cases, which was a provision more favourable for the clergy. To this circumstance, however, I can give no weight; nothing has been brought to shew, that this is not in itself a specification of those very cases, and of the whole of them, with regard to which the exception had been made in general terms in the year 1633 on the contrary, from the respect paid to the act 1633, by the whole tenour of the act 1641, the presumption arises that it was only a specific enumeration of the cases understood to be generally alluded to in the act 1633.-Secondly, it is said, that the rescinded act 1649 is also more favourable to the clergy than the act 1633; and this observation is grounded on the circumstance, that in the act 1633, where victual cannot be given to the clergyman, the conversion is settled at the rate of 100 merks for a chalder of victual, whereas by the act 1649, it was settled at a. sum between 100 merks and 100 punds: if, however, this act is consulted, it will be seen that it in noway relates to churches which had antecedently received an augmentation under any for mer commission; and that it alludes alone to churches which had not been aug

enactment in the acts of the 23d and 30th of the year 1690, and the 24th of the year 1693, the other acts referred to the act 1707, which interfere with or invalidate the right so conferred.-With regard to the second question, how far the act 1633, or the other acts of parliament referred to in the act 1707, bars the clergy from obtaining more than one augmentation, provided that augmentation had not been obtained by collusion, or is not below the minimum; it is to be observed that if the proposition I have endeavoured to establish, viz. that the act 1633, in so far as relates to tythes belonging to the titular, and to tythes belonging to the bishop, gave a complete right to what remained, after the stipend was once modified, is well-founded, it flows as a corollary that no subsequent augmentation could be granted.—In relation to the parsonage tythe, sold under the act 1690, I own that is the subject on which, from the discussion at the bar, I think your ldps have received the least satisfactory information: in this case, however, you are relieved from all consideration of the tythe thus circumstanced, as it is agreed by both parties that the tythe out of which this augmentation is claimed is tythe conveyed from the titular, in consequence of a purchase by the landholder, from whom the appellant derives his title. There is still one observation of some importance that arises out of the act 1707, from the use there made of the phrase, "to grant augmentations," a term seemingly copied from the act 1690, and which is not to be found in the act 1633. It is the more necessary to take this into consideration, as it appears that the chief argument on which the justice clerk, and some of the other judges, rest their opinion, is derived from the use of this phrase. To understand the import of it in the various acts of parliament in which it is used, it is necessary to attend to the circumstances of the times in which this phrase was first introduced. It is first to be