The Magistrates and Town Council of Elgin v. the Minister and Kirk Session
Date: 4 December 1740 Case No. No 9.
Nomination of kirk-officers, viz. beadle, session-clerk, and precentor; and to whom the emoluments of baptisms and marriages belong.
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Though the ostiarius was, before the Reformation, a church-officer, yet that seems to have proceeded from this circumstance, that the churchmen had then the chief care of the fabric, which now is not the case; and so it was here found, that the nomination was not in the minister and his session, but in the magistrates.
Ibidem, Not only has a kirk session the power of naming its own clerk, but but as the Court itself is not in the Crown's nomination, it was thought inconsistent that it should be even in the power of the Crown to confer the office, or to grant to any other the power of conferring it.
Ibidem, As the precentor was before the Reformation a church-officer, then called psalmista or cantor, it would appear that the right of nomination is in the minister and kirk-session; but then the office may be conferred by a grant of the Crown; and so it was found in this case, where a grant of certain emoluments having been made by the Crown to the town of Elgin, for maintaining a music-master, who should be obliged to precent in the church, the right of nomination of the precentor was found to be thereby conferred upon the town; the minister's own office being patronate, it did not appear why that of precentor, which he and his session were pleaded to have power to present to, might not be also patronate.
It was remitted to the Ordinary to hear parties, whether the emoluments of baptisms and marriages belong to the session-clerk or precentor? which may happen not to be insisted on for the precentor; for it is thought clear on the following considerations, that they belong of right to the session-clerk; 1mo, As to baptisms, what is paid upon that account is for obtaining the kirk session's order for the baptism, and recording it, with which the precentor, as such, has nothing to do; 2do, As to the marriages, what is paid for these, is in the same way paid for obtaining the order of the kirk-session for the marriage, and recording of it; and of both, the session-clerk gives the extracts; 3tio, It is not to the precentor, but to the session-clerk, that parties give up their names in order to marriage; 4to, It is the session-clerk, and not the precentor, who certifies the proclamation of banns to have been made, and that there is no objection; 5to, A precentor is member of no conrt, whereas a session-clerk is a clerk of court, makes minutes, keeps records of the session's proceedings in whatever falls within their cognizance; and particularly, the session being judge in the first instance of the objections to marriage, the record of said proceedings is kept by the session clerk; and lastly, The penalty in use to be consigned before marriage, is consigned in the hands of the session clerk, &c. &c. See Public Officer.
Fol. Dic. v. 3. p. 371. Kilkerran, (Kirk Officers.) No 1. p. 323.
