Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
The Marquis of Lothian v. The Vassals of Jedburgh Priory
Date: 16 June 1711
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The Marquis of Lothian, as Lord of the Erection of Jedburgh Priory, pursues a reduction and improbation against the vassals and feuars of that abbacy; and he craving a certification against them, because they refused to take a term to produce their writs,—it was alleged they were not obliged, because he was not their true superior nor dominus feadi directus, but they were vassals to the Crown: for though he had right, by the erection, to their feu-duties and other casualties, yet that did not state him in the superiority, which title alone is sufficient to prosecute a reduction and improbation, and force them to produce; and therefore, without a special warrant from the Queen, no process can be sustained. Nor can the Queen's Advocate his general concourse support it; for that was refused to the Earl of Nithsdale, when he raised a process of this kind. And it was observed by a great statesman, that if the advocate were permitted to raise improbation against the Crown vassals, and force them to open their charter-chests, and sift out their defects and want of mid-couples, profccto poterat esse valde dives.
Answered,—That the vassals were in two classes; some of them had renounced their holdings of the Queen, and had taken their lands hold en of him; as to whom he was well founded to insist in his process of improbation. As to the rest, Imo, He craved they might disclaim him on their peril.———But here there was small hazard; for the disowning of a subject as our overlord, and going to hold of the Crown, is never reputed a legal disclamation so as to forfeit the feu. 2do, alleged,—By the feudal law there was ostensio monumentorurn, an obligation to show their holding, that it might appear quid dejure vassallus facere debet. So the Marquis may justly insist for exhibition of their charters, to know the reddendo and feu-duties.
For understanding of this affair, it is fit to know, that, after the Reformation, the Parliament, considering that most of the kirk-lands had been mortified and given for saying of soul-masses, and other superstitious uses, therefore they annexed the temporality of the whole kirk-lands to the Crown, by the 29th Act 1587, to be a fund for defraying the necessary charges of the government, and to ease the subjects of stents and taxations; but such was the importunity of courtiers and favourites with our princes, that, in a short time, they got the most part of these kirk-lands erected into temporal lordships and baronies, whence they were called Lords of Erection; and the donatives had this excuse,—That the putting them in the nobility and gentry's hands was the best way to keep out the return of popery. King Charles I. being sensible of this dilapidation, he makes an ample revocation of all these gifts and alienations in 1627; but this startling and alarming many, he, by the 10th and 14th Acts 1633, allows the lords of erection the feu-farm duties; but declares the superiority of these vassals stood vested in the Crown: which was both an addition to the sovereignty, that the subjects should rather depend on it, than on other great men; and was the great ease, interest, and advantage of the vassals to hold only of the Crown. Therefore it was declared, That their feu-duties should be redeemable from them at ten years' purchase, or 1000 merks the chalder: but, to procure these lords' votes to carry on the Union, the court faction yielded to the 11th Act 17O7 to discharge that reversion, and declare these lands irredeemable; by which gratification and bait they got sundry votes. These lords of erection gained another step by the 53d act 1661, by which it was left optional to these vassals of kirk-lands either to continue to hold of the Crown, or to take a new infeftment to hold of the lords of erection. After which, by cajoling them, in giving some abatement of their feu-duties and personal services, some of them were prevailed on to take their lands holden of the lord of erection, by which they became superiors to all such as consented to this change; but, as to the rest who have not transacted, they still continue the Queen's vassals. And the declaring their feu-duties irredeemable, neither alters nor transfers the superiority; but it remains with the Crown in statu quo prius.
And therefore, in the present case of the Marquis of Lothian's, the Lords ordained him to give in a condescendence who had agreed and who had not; and then they would consider if he might not insist against the rest, in his exhibition, to produce their charters, that he might see their reddendo, feu-farms, and other services; but not to infer the severe certification annexed to improbation.
