Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
The Minister of Nig v. his Parishioners
1676 and 1677.
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1676. December 13.—Mr Richard Maitland, minister at Nig, pursues Sir Jo. Forbes of Monymusk, Meinzies of Pitfoddells, &c. his parishioners, before the commission for kirks, for an augmentation of his stipend, the length of the act of Parliament. They say, the Bishop of Aberdeen had ordered all the ministers in his diocess whose stipends were under eight chalders of victual to pursue to get them made up. Among sundry defences, which see in the Information, this was one, That Monymusk's teinds could not be affected or burdened with any augmentation, because he had bought his teinds, and obtained them, on the resignation of the Marquis of Hamilton, (who was lord of erection of the abbacy of Arbroath, to which thir teinds belonged,) in 1618, heritably and irredeemably disponed to him, cum decimis inclusis; and therefore, having so onerously acquired them, they could not be clogged or destined so long as there was other free teinds unbought, and not in so favourable a case, in the parish. 2do, They could not be affected at all, because we offered to prove that the lands of Monymusk, stock and teind, were an ecclesiastical feu of the said abbacy of Aberbrothick; (to which religious house they were vowed by King David, that sair saint to the Crown, when he went against Donald of the Isles, if he should return prosperous;) who being monks of the Cistercian order, their teinds, both by the canon law, cap. 10 and 34, extra, de decimis, and our law, (see Ha-dington's Index of Practicks, verbo Teinds, No. 17; see Stair's System, Tit. Of Teinds, §; see Craig, Feudorum, p. 101, in margine; see Mornacii Observations ad L. 16, D. de Legibus, p. 22,) are declared free of all burden. If that cloister were Cistercians, I cannot tell; some say, in their foundation they are so called; but in the list I have of all the monasteries in Scotland, they are called Turonenses or Tironenses, quasi Tirones novitii; see Rosse's View of all Religions. But if there be no other teinds, it were hard on this to defraud the church of that which is naturally their patrimony, as the teinds are called, act 10, Parliament 1567; but if there be any other teinds, they should be free and exemed.
I find now Arbroath was a convent of Benedictine monks, from the charters of Torric; see a Compend of them. They are called Turonenses from the Benedictine Abbey of Marmoustier at Tours, which I saw.
Advocates' MS. No. 523, folio 270.
1677. June.—In the action pursued before the Commission for Plantation of Kirks, mentioned supra, December 13, 1676, No. 523, at the instance of Mr Richard Maitland, minister of Nig, against Monymusk and others, for an augmentation of his stipend; I alleged, It was none of the best characters of a minister to endanger Christian charity, and the breach of that spiritual union between him and his flock, for 100 merks more stipend; that augmentations and prorogations were correlata; went pari passu; uno posito ponitur et alterum, sublato uno tolli-tur et alterum; that they were like the thing and its price; (see this enlarged in my Observations on the Act of Parliament in 1672, giving a new commission for valuation of teinds;) and, therefore, where prorogation could not take place, neither could an augmentation, because they could not remunerate and recompense; but here no prorogation was prestable, because they had the heritable and perpetual right of their teind; ergo, they could not be burdened with an augmentation.
2do, Decimæ inclusæ,* by the law of Scotland, have ever been freed from all burden of stipend, because they are not reputed to be teinds, but a part of the stock. See Craig, p. 102, who calls them decimas garbales; though that word also signifies parsonage teinds. See Stair's System, Titulo Of Teinds, § And for proving the allegeance, I produced a charter granted by the Abbot and Convent of Arbroath in 1544, granting feudum perpetuum decimarum garbalium of the half-lands of Torry. See a summary of the said charter, alibi.
Pitfoddels produced, for proving that his teinds were included also, a charter both of stock and teind, wherein his teinds were expressly designed decimæ inclusce.
Alleged, 1mo, against Monymusk's charter, that it did not prove his teinds to be truly decimæ inclusæ, which are only such as were nunquam antea a solo separatæ, and are presumed to have been feued cut before the Council of Lateran. But Monymusk's were not such; for in the narrative it was confessed they had been formerly under tack, qua locari prius solitæ sunt. Next, they were actually separate from the stock, in so far as he had a separate charter for them. Stio, They were not designed inclusæ, but only garbales. 4to, They were separate, in so far as they paid a distinct reddendo and duty, viz. 28 bolls of victual for them, which was an evident demonstration that they had been separately valued. And there was no other objection against Pitfoddell's charter cum decimis inclusis, for evincing that his teinds were not truly of the nature of these decimæ inclusæ, to which the law hath given such a special privilege and exemption,† but only this last. Monymusk's charter lay open to all the foresaid exceptions.
After many reasonings, the Commission, on the 25th of July, 1677, gave him 270 merks of augmentation, and imposed it all upon Monymusk and Kirkhill, conform to their rentals in process: viz. 250 merks per annum on Monymusk, and 30 merks yearly on Kirkhill, reserving always to discuss the point of right before the Judge Ordinary, (id est, the Lords of Session;) at the discussing whereof, if it appear that Pitfoddell's right to his teinds is not truly of the nature of decimæ inclusce, then he is to relieve them, pro tanto, and to bear a proportional part of the augmentation, conform to the rental of his lands in that parish produced in process.
This was a strange and extraordinary reservation, and reflected extremely on the knowledge of the members of the Commission, as not of that reach to determine what were truly decimæ inclusæ and what not, as the fifteen Lords can. It was the President's cue to suggilate the Bishops and to cut Commissary Monro, its clerk, short of all the benefit he could; and he seemed in his own opinion not to be convinced
* Lands cum decimis inclusis, since the act of annexation in 1587, are not esteemed valid decimæ inclusæ, unless they were given out as decimæ inclusæ before the said act of annexation. See February 20, 1611, Murray contra Maxwell. See Sir George Lockhart's resolution anent the decimæ inclusæ beside me, upon the occasion of this debate. Infra, No. 593, [July 7, 1677,] Minister of Prestonhaugh.
† Anent the reasons of this exemption and freedom from teinds given to the Cistercian order, and the limitations thereof, see neatly set down by Thomas Fuller, in his Church History of Britain, in that part of it called The History of the Abbeys in England, p. 283.
either that Pitfoddell's charter did truly contain decimas inclusas. It is not usual to bring decreets of the Commission to be recanvassed before the Session: though this is rather a reference of a hard kernel in law to them that are most used in breaking them. Yet I remember, on the 27th of January, 1670, (Vide it supra, No. 111,) M'Keinzie contra M'Keinzie, Gosfuird sustained himself judge competent to a reduction of a decreet of the Lords of the Plat for Kirks, though the Advocate declined it. The truth is, it being a committee of Parliament, it is at least coordinate with the Session. See M'Keinzie's Criminals, part 2, titulo 3, Of the Jurisdiction of the Parliament, p. 366.
There are no detimæ inclusæ with us, but such as were so possessed, and holden, and reputed, before the 29th act, in 1587, annexing all the kirk-lands to the crown.*
As for the rights of kirk-lands, granted after March, 1558; (because then the Reformation prevailing, churchmen did wilfully delapidate their rents and benefices,) they are null, ipso jure, by the 88th act, Parliament 1564, and 7th act in 1584, unless they were confirmed by the King, who came in place of the Pope. See Craig, Feud, page 108.
In prosecution of the foresaid reservation, Monymusk has raised his process of declarator before the Session, against Pitfoddells, for bearing a proportional part of the augmentation, his teinds not being the privileged decimæ inclusæ. See the 12th of July 1678, [Dictionary, p. 15718,] where it is decided they are not inclusæ.
Advocates' MS. No. 586, folio 290.
* Fishings, in many places, pay no teind; for decimcæ minores sunt locales, et debentur tanlum secun-dem consuetudinem. Multures have also been found free of teind; and in a late debate anent the teinds of Tulloch-mill, the Lords sustained the whole rental of the mill thereof to be free of teind, without respect to the mill-lands or mill-croft.
