Scottish Court of Session Decisions

Lord Justice-Clerk, as nearly related to a member of the kirk-session, declined judging.

Lord Meadowbank.—This case is one of considerable importance and novelty. There is no authority directly in point in the papers, but I shall state shortly the grounds on which I am for passing the bill. The question is, whether heritors in landward parishes, and magistrates in towns, are entitled to appropriate the churches to any purpose but for public worship, and contrary to the will of the clergyman. At common law, it appears to me there can be no such right. During popery, the right was vested in the clergy alone; and conversion to any other purpose than public worship would have been sacrilege. That right of the clergy would not only have been enforced by the thunders of the church, but also by the power of the civil magistrate. Then we come to enquire if there was any change in the right of the clergy at the Reformation. If any change took place, the onus probandi must lie on those who allege the change. There is nothing of the kind stated in the papers, and there is no authority; churches are not now consecrated; but that makes no difference in regard to the civil right. It might diminish the ecclesiastical means of enforcing it, but could not affect the civil right. This is not all. We find statutes for providing kirks for public worship, and there is nothing in any one of them from which it can be inferred that any change was intended in the exclusive object to which the edifice was to be applied. They oblige the heritors to provide places of public worship, and to assess themselves for maintaining and erecting them. This is a most material matter, for they were for the purpose of public worship. They are not empowered to assess for edifices for any other purpose, and I pray your Lordships to consider what would be the effect on this obligation if the churches were allowed for any other purpose. It would produce great additional tear and wear, and dilapidation, and consequent assessment, and so would be converting the power of assessment to other purposes. This, therefore, without any thing else, would be sufficient ground for passing the bill to enquire; but I will throw out the other views that have occurred to me. When the legislature provided for the erection of places of public worship, without saying who were to be custodiers, I would pray your Lordships to consider who, a priori, might be expected to be custodier. Public worship is not confined to Sundays, and the minister is subject to no control as to his use of his church whenever he pleases. It could not, in common sense, have been the object of the legislature to use them for other purposes, and, therefore, the custody of the keys must have been in the minister, who was to have the use of them; and I do find the authority of Lord Preston-grange, who states expressly that the right to the custody of the keys is vested in the minister; and, in the case of Craigdallie, as to the Seceders, when the right of the clergyman was discussed, I, without knowing the views of Lord Prestongrange, came to the same opinion, that the right to the keys was in the clergyman. In confirmation of this, is the custom of the keys being delivered to him, as a symbol of possession, at his induction; and I think it proof positive of the right of the minister, for the patron receives the keys as symbol of his right, and he delivers them over to the presentee who possesses in his right. In these papers, there is something said of the practice of holding meetings of heritors in churches—but the matter never came to be questioned in this Court, and arose from the necessity of the case, and I reserve my opinion on the point—if not for the inspection of the building, or meetings about the poor of the parish, along with the session. As to other meetings, and for secular purposes, that is not before us, for the point here is not, if the heritors, who have a right to the building itself, or those in the situation of them in cities, are entitled themselves to meet, but if they are entitled to authorize all and sundry to meet there when they please, and without the consent of the minister. I think they are not; and, having arrived at this opinion, I was much satisfied at it, being convinced that nothing could be of worse effect than that churches should be made places of disputation and public wrangling. I think these respondents ought to have considered these matters, and ought to have paused before they attempted to enforce such right, and I rejoice at having arrived at an opinion that they have no such right.

Lord Medwyn.—I cannot say that I can express myself with so much confidence as my brother, and though, on the bill being presented to me, I had no hesitation in granting the interdict till answered, it was much more a matter of feeling than of judgment; but still I am now satisfied there are sufficient grounds for passing the bill and continuing that interdict. As to the ecclesiastical law, we have not very great light on it, and if we were to go into that, we would have to distinguish between that part of the parish church maintained by the parishioners, and the chancel or part of it maintained by the clergy, and I would have some hesitation in saying that either heritors or ministers were proprietors. That, however, is not the question so much, as to what use churches are to be applied. By statute it is declared, that neither fairs nor markets are to be held in them, and I do not see why Sir George M'Kenzie should say the acts are not in observance. From the Quoniam Attachiamenta it appears that no courts were to be held in churches. Mr Erskine says—“Of old, these were formally consecrated by the proper persons; at present, though we have no formal consecration, yet the very setting of them apart for that end imports a dedication of them, so that they thereby cease to be in commerce, nor can they be employed to common uses, while they remain in that state.” And Lord Bankton, in like manner, observes to the same effect. Now, what is sought for here is certainly a “common use,” and it weighs much with me in passing the bill. I looked to the First Book of Discipline for curiosity, and it says—“Lest the word of God, and ministration of the sacraments, by unseemliness of the place, come into contempt, of necessity it is that the kirk and place where the people ought publicly to convene be with expedition repaired, with doors, windows, thack, and with such preparation within as appertaineth as well to the majesty of the word of God as unto the ease and commodity of the people.” With these feelings, it is impossible to conceive that its framers could have approved of uses Buch as these; and there being no authority, I do not think any practice could sanction such misapplication of it as here proposed. It does appear that the Dean of Guild had some sort of jurisdiction as to churches even before the Reformation, for the act 1551, c. 17, ordains the Dean of Guild to “gar leish bairns that perturbis the kirk” during service. As to his right of holding the key of the church, I am not prepared to give an opinion. In the case of Elgin, it was held that the magistrates (and, of course, the heritors in a landward parish) are entitled to appoint the beadle; but, whether he holds the key for the minister or the heritors does not weigh much with me, as he would hold it for the proper use of the heritors for their meetings, and for the minister for his use. I do not lay much stress on the provisions of the Rabbling Act, and relative Acts of Council, which were for a temporary purpose. If I wore to draw any conclusion from them, I would infer that the heritors were held to be possessors of the keys, for if the beadle were a proper kirk officer, it would not have been necessary to have gone to Parliament and Privy Council for authority to obtain the keys from him; and I rather incline to hold that the custody belongs to the heritors, by their officer the beadle, under the obligation to make the church patent for the use of the minister, and without power to order him to open it for such common uses as are hero proposed.

Lord Glenlee.—I have no hesitation as to passing the bill and continuing the interdict. It is a question of law new to me, I admit. The magistrates have not made their right so clear as to make it at all decent to refuse the bill, and the interdict is not putting the magistrates out of possession, because this confessedly is a new use. They say it flows from rights inherent in them; but, under the principle uti possidetis, I would continue things as they are, till they make out their right.