United Kingdom House of Lords Decisions

The united parish of Buncle and Preston became vacant in 1761; and a question arose between the respondent and the crown, as to which of them had the right of patronage, and of presenting the minister to the vacant benefice. The respondent brought an action of declarator against the Officers of State, to have it found that he had right, in virtue of a charter granted in 1547, by Queen Mary, to his ancestor Archibald Earl of Angus, which was ratified in parliament in 1567, and granted to him and his heirs therein named, the several lordships and baronies therein mentioned, and inter alia “Terras Dominium et Baroniam de Buncle et Preston, cum omnibus et singulis annexis, connexis, partibus, pendiculis, tenen. tenan. libere tenen. servitiis, molendiuis, multuris, silvis, piscariis, et capellaniarum earundem et suis pertinen. jacen. infra vicecomitatum nostrum de Berwick,” &c.

The Earl of Angus was forfeited in 1581, and during the interval between this and his restoration, the crown, as in his right, exercised the right of patronage.

In 1602, having been sometime previously restored by King James, his Majesty granted a new charter to the then Earl of Angus, of the barony of Buncle and Preston, with the right of patronage of the churches thereof. This was renewed in 1698 to James Marquis of Douglas; and in 1707 Queen Anne, by charter in favour of Archibald Duke of Douglas, granted to him the lordships of Buncle and Preston, “una cum advocatione, donatione et jure patronatus ecclesiarum beneficiorum, capellaniarum aliisque pertinen. quibuscunque dict. terrarum dominii de Buncle et Preston.”

In virtue of this title, the family of Douglas had always exercised the right of patronage, with certain exceptions; these exceptions arising from being deprived of exercising the right by the political changes of the period. In 1582, the crown had exercised it after the earl's forfeiture. In 1665, being restored, the Marquis of Douglas presented on the next vacancy. In 1678, the Bishop of Dunkeld wrote a letter to the presbytery of Dunse, recommending a person on the next vacancy. The next vacancy, in 1696, was by a call from the heritors, the right of patronage having, in the meantime, been taken away by act 1690; and so also was the next vacancy in 1706. When patronage was restored, the right returned, as the respondent alleged, to his family.

On the other hand, the appellant claimed the right of patronage in question, to belong to the crown, as coming in place of the Bishop of Dunkeld, to whose see it was attached, as one of his mensal churches, which were churches inseparably joined to the bishopric, for the better support of the Bishop, and to which the Bishop, before the Reformation, had the appointment of the vicar, for the performance of the cure, to whom he allotted a yearly income, or stipend, out of the living. The bishop, for these purposes, had the whole right to the tithes of the parish, and, as a part of this right, the presentation accompanied or adhered thereto. When, after the Reformation, this system of church government was destroyed, the crown came in place of the bishop, and was now entitled to exercise the rights which he then exercised, in presenting ministers to the vacant benefice.

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