Andrew Beveridge, Precentor and Session-clerk of Dunfermline, v. James Bayne and Others
Date: 26 June 1765 Case No. No 4.
The kirk session of Dunfermline ordained, That whosoever in that parish should give up their names to be proclaimed for marriage, should give half a dollar to the poor before their proclamation. An action was brought against certain persons, who refused to pay this sum; but it appearing from a proof, that the use of payment had not been general, the Court assoilzied the defenders.
The defenders in this case, who were seceders, also refused to pay certain dues to the beadles for marriages and baptisms, established likewise by act of the kirk session, and immemorial usage; upon this ground, that these dues being a recompence for the beadle's trouble in attending at those ceremonies, the seceders, who put them to no such trouble, owed them no-thing. The Court found the seceders liable in the usual dues.
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The kirk session of Dunfermline, by an act 23d January 1681, ordained, “That whosoever in that parish should give up their names to be proclaimed for marriage, should give half a dollar to the poor before their proclamation.” This act was renewed 8th November 1719, upon a narrative, that the custom of paying the above sum was much worn out.
The pursuer, authorised by the kirk session, brought an action before the Sheriff, against the defenders, all dissenters of different denominations, and mostly seceders, for payment of this sum, founding his claim upon the acts of the kirk session and use of payment. As to the last, the Sheriff allowed a proof to both parties. The pursuer limited his to the period from 1718 to 1738, i. e. from the date of the last act of the kirk session to the secession. It appeared from the proof, that the use of payment had been pretty general, though not universal; that the kirk session, on account of the reluctance of the parishioners, had resolved to accept what they would voluntarily give; that numbers had paid less than the half dollar, and many, though people of substance, had paid nothing.
The Sheriff having given judgment for the pursuer, the cause was brought into this Court by advocation, and, after a hearing, was taken to report.
The pursuer contended, That, by common and universal custom over Scot land, small sums, in some parishes more, in some less, were paid to the kirk session, for behoof of the poor, on occasion of proclamation of banns for marriage; that the exaction of such sums had been authorized by a decree of this Court, in a case between the kirk session and seceders in the parish of Falkirk, of which, as it is not in any printed collection of the decisions, proof was produced in process. The sum here demanded is very moderate, but one half of what was found due in the case of Falkirk.
Answered for the defenders; This imposition is illegal, irrational, and impolitic; illegal, for kirk sessions have no power to impose taxes of any kind; irrational, being a constrained charity; impolitic, being a tax upon the marriages of the poor. That being the case, it cannot be sanctified by use of payment, for any length of time. Besides, the plea of immemorial use is excluded by the act of the kirk session 1719, as well as by the parole evidence. That of Falkirk is but a single case, and differenced from this, in that immemorial usage was there proved. The pursuer's claim cannot be supported from the smallness of the sum; because, if the kirk session may impose half a dollar, there appears nothing to hinder them from increasing the imposition to what sum they please.
“The Lords sustained the defences.”
The pursuers' libel also concluded for payment of certain dues to the kirk beadles, on occasion of marriages and baptisms, founding this claim likewise upon an act of the kirk session, and immemorial usage.
Argued for the defenders; These dues are only paid as a recompence for the beadle's trouble in attending at marriages, when solemnized by the parish minister, and for setting water, furnishing clean towels, &c. at baptisms, when administered in the parish church; and, as the beadles are not put to this trouble by the defenders, they have no claim for the recompence. The act of the kirk session is no good foundation for this claim; for the session have no power to impose taxes, neither can the pursuers derive any aid from common usage in this case; on the contrary, that is in favour of the defenders, as hither to these dues have been considered only as a recompence, and never exacted but when the service was performed. They have never been exacted from any species of dissenters through the kingdom; and, even when a person of the established persuasion had occasion to apply to the minister of a neighbouring parish for marriage or baptism, it was the beadle of that parish who got the dues, and not the beadle of the parish where the person resided.
Answered for the pursuer; Kirk sessions are a part of the church government, expressly authorized by law; as such, they are entitled to have their proper officers, and to ordain for these such dues and perquisites as may seem reasonable, in their respective parishes.
Whether the defenders are entitled to the benefit of the toleration, may be questioned. But, supposing they are, the law certainly never meant to tolerate them in withholding of those small dues necessary for the preservation of order, or the payment of those officers which the constitution of the church, as by law established, has found expedient and necessary.
This point was also struggled by the seceders of Falkirk, in the case above mentioned, and determined against them.
“The Lords found the beadles entitled to the dues claimed by them.”
Act. Lockhart et Henry Dundas.Alt. Montgomery et Rolland.Reporter, Kames.
Fol. Dic. v. 3. p. 372. Fac. Col. No 19. p. 31.
