Patronage not comprehended under any of the annexing acts.
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The abbacy of Aberbrothock, to which belonged the patronage of the kirk of Aberarder, was erected by King James VI. in a temporal lordship in favour of the Marquis of Hamilton; and upon his resignation, was by Charles I. disponed to William Murray, afterwards Earl of Dysart, from whom Kinnairdie derived right. His right being controverted, he insisted in a declarator of the same against the Officers of the Crown. For them it was objected, That the abbacy of Aberbrothock having been comprehended under the general act of annexation 1587, the grant thereof by the King in favour of the Marquis of Hamilton, and the subsequent grant in favour of William Murray, were null and void. It was answered, That patronages were not comprehended under any acts of annexation; and, therefore, the objection is not good.
‘The Lords, I think, unanimously preferred Kinnairdie to the patronage.’
The history of the patronage of the church after the Reformation, appears to be this. The bulk of the subjects belonging to the church, teinds as well as lands, being under patronage; and the use for which these subjects were given to the church, having ceased upon the Reformation; it was thought that these subjects ought to return to the respective patrons, as being the presumed donors. All the subjects of which the King was patron were upon this principle restored to him; and all that were of church patronage went to him as bona vacantia. Laick patrons at the same time took possession of the subjects under their patronage. All this happened long before the act of annexation 1587, which is evident from the act itself, excepting from the general annexation many lands belonging to monasteries, formerly gifted by the Crown, and erected in temporal lordships. And with regard to patronages in particular, all of them, in the act 102d, Parl. 1581, are understood to be either in the Crown or in the laick patron; which shows, that even before the 1587, such patronages were transferred to the Crown.
We are not then to consider the act 1587 as the title which the Crown has to church lands, and other branches of its patrimony. The sole intention of this act was to annex to the Crown certain subjects which formerly belonged to the King. No subject is conferred upon the King by that statute save bishop lands. These are not only taken from the bishops and bestowed upon the King, but also annexed to the Crown. Church patronages were certainly in the Crown long before the statute, and as these are not annexed, the King is under no limitation, but may dispose of them at his pleasure.
N. B. With regard to common kirks, such as M'Kenzie observes upon the act 199th, Parl. 1594, were not patronate, but like mensal churches were, from time to time, served by persons appointed, the King, after the abolition of popery, came, from the nature of the thing, to be also patron of these. And accordingly, by the statute now mentioned, these are appointed, like other benefices of cure, to be provided by presentation of the lawful patron.
