4 A * O F Church-lands & Tithes : In two Parts. CONTAINING, An Hiftorical Account of Ecclefiaftical Revenues, Chur¬ ches, Church-yards, Church-offices, Benefices, Glebes, Manfes, Patronage, Monachifm, Religious, and fome Military-orders, with a particular Hiftory of Tithes: And a clear and full Difcufion of Points of Right and Controverfy, relating to thefe Matters ; And fhewing . how far the SCOTS and Canon Laws do agrees and differ. A diftinft Explanation of Attions before the Commifsion, concerning Minifters Stipends ; Tithes ; Ere&ing or Tranfplanting Churches; And the Inlarg- ing or Reftri&ing Parifhes. And of Aftions about Mi¬ nifters Stipends, Tithes, &e. falling under the Cognifi- ance of the Lords of Sefsion. By WILLIAM FORBES Advocat. EDINBURGH, Printed by the Heirs and SuccefTors of Andress And erf on, Printer to the Queens moft Excellent Majefty : And to be fold at John VaUange's Shop, on the North-fide of the •» i:.tje above the Crois, Amo DOM, M DCC V. ...... ........ Mtk ». » . -.1.,. C J TO The Right Honourable , Sir Hugh Dalrymple 0 F North- Berwick, Knight Baronet , Lord Prefident of the Sejjion , 0;/e of Her MAJESTIES moft Honourable PRINT COUNCIL, &c. t My LORD, IWoud not be underftood by this Dedication fo vain, as to think any thing I do of this Nature can be of much Ufe to You, whom the Nation has a due Veneration for as an Oracle of Law, and Ornament of the Bench 5 Where You Juftly fill a W or- thy Father’s Chair, and E^ercife that Vir- fl 2 we. C J tue, and thofe Sublime Parts, which GOD lias fo Liberally beftowed on You, to good Purpofe in the Service of Your Queen and Country. All I propofe, is only to pay my Acknowledgements in this eafie Way, for tbe Learned and Ufeful Advice I received from your Lordfhip, in fome Points handled in this Treatife. 1*11 fay nothing about my Book to You, who are the beft Judge of Standard-Law and Senfe, but that its Fate depends upon Your Ap¬ probation:, Which I prefume will recom¬ mend the Performance to the Knowing World, in fpite of the Weaknefs and De- Lefts of the Author, who ftudies to ap¬ prove himfelf with all Sincerity and Af- feftion. My LORD, To nr LordJInps mofl Humble 9 and Devoted Servant, WILLIAM FORBES, c ) I i PREFACE, AS in the Body of the Roman Law there arc feven Cruces, That is, fo many Perplexed Laws, whereof to find out the True and Genuine Meanings Interpreters have rack'd their Fan¬ cies : So we have two Subjects in our Law^e- nerally not well underflood, viz. Bills of Exchange, and Ecclefiaftical Benefices, confifting of the Temporality and Spiritua¬ lity of Church lands and Tithes. I have lately endeavour'd to clear up the former, and the Favourable Reception of that EBay hath incouraged me to try my hand upon the Tatter. The Reafon why fo few at this day have very diflincl Notions of that Matter, doth Obvioufly proceed from this , That the Ca¬ non Law, th$ we never burnt it as Luther did, fa) hath fince the Suppreffion of Po¬ pery been little Studied in Scotland : And fo the different Regular and Secular Offices of the Church of Rome, to which before the Reformation particular Benefices flood an¬ nex'd, are turn'd a kind 0/Myftery to many . (a) 4j fjfttjghrf; iy p §tlmn jtjfmbly, Beac« ■ V.. - ' • „• C ) Benefices are Lands and Rents given to Ecclefiafticks for Service to be done to the Church. About the Nature and Rights whereof a multitude of Books, Prolix and Perplex d enough , are extant : Such as thofe written by Rebuff, Bengaeus, Garcia, D* Efpeifles, Duaren, Bar bo fa, Dartis, Cor- radus, and others , which for Brevities fake fiall be Namelefs. Peter Rebuff a French Profejfor of Law, , whoflourijhed at Paris in the Sixteenth Centu¬ ry , is the firft whom 1 find to have diftingui - fled the Spirituality from the Temporality of Benefices, by a formal Treatife upon Tithes. But fmce his time that Subjedf hath been much , tho not well , handled. Rebuff, H. Canifius, A* Moneta, and the Authors of the Parfons Law, Parfons Counfellour, and Parfons Guide, are thofe I cite mofi frequently. The Writers beyond Sea do wea¬ ry us with their needlefs Gales and Queftions about the Popes Power in Alienating, Im- pofing, and Difpenfing with Tithes 5 The Various Kinds of cm 5 the Perfons by , and to whom they jhould be pay d 5 the Manner of Payment 5 what Things are fubjeft to Tith- ing^ and the Punifhmetits to which the Not- payer of Tithes is expos d , whereof fScbub enumerates no fewer than 3 6 Sorts, Lawyers C J do firangely vary and flu&uate, as to the Point of Prescription in Tithes 5 Nor arc they more of a Piece or confiftent with themfelves, when about to determine the Subjedt Tithable. Which may probably be afcrib'd to their con¬ founding the Pofitive, with the Negative Prefer ipt ion 5 And not diffinguijhing the Charadteriftick of Parfonage from that of Vicarage Tithes. The Divine Right ^Tithes hath long been an Argument of Debate to Canonifts, School-men, Proteltant Divines, and 0- thers : But differently manag'd. The Genera¬ lity of the Canonifts, fome few excepted , imperioufly died ate the Divine Right ^Tithes from the Moral Law, which is aljo preach'd up by fome of the Englifli Clergy, and Zca- loufly maintain'd by Sir Henry Spelman. The School-men, and great Lawyers not a few , plead that Maintenance is due to the Miniftry Jure Divino out of the Annual Pro- dudfc of our Subftance^ But that the Quota of a Tenth Part is meerly I begin with a brief Hint concerning the precari¬ ous Mean 0/Subfiftance of the Primitive Cler¬ gy 3 and Jhew why0 and when the Patrimony of the Church was termd Benefices 5 and explain the kinds of em^ viz,. Regular and Secular Be¬ nefices, Titles, and Commendams. For un- derfianding the Nature of Regular Benefices, there is an Hijlorical Relation of the Qrigine, Nature, and Progrefs 0/Monachifm arid Re¬ ligious Orders, and of their regular Polity. Secular Benefices are dijlinguified into Orders and Dignities $ into thofe of Cure, and Sine- Cures 5 and into Prelacies, and the Livings of the inferior Clergy, fitch as Parifh-C hurches, Chappelries, and Altarages. Parifh-Chur- ches are divided into dependent and inde¬ pendent Benefices : Z Jnder the former are comprehended Menfal, and under the Latter Common-Churches, and thofe under Patro¬ nage. All which things are fully difeourfed of and cleared up : With a particular Account of the Rife, Nature, Progrefs and Fate of Patronage. Thefie Matters are fiucceeded by the Hiftory of Ecclefiaftical Revenues from the Commenceme7tt of Chriftianity, till the appointing of Commiffions of Parliament for Planting of Churches, and modifying Stipends to Minifters out of the T itlies. And then the Temporality of Benefices is treated n q 3. of C ) of in this manner. I explain, I. How Titles to Benefices arc acquir'd by Eeclefiafticks 5 And when they Commence to take effeT. Where Annats and the Crimes of Simony and Barratry are dif cours'd. 2 . What way Titles to Benefices are Extinguish dj and when they ceafe to have effeft. Where the Ann due to the Relid:, Bairns or Neareft of Kin of In¬ cumbents «• treated. 5. I fpeak of Rights to Benefices that may be acquir'd from Bene¬ ficiaries. 4. O/RightS acquire able by them. 5. I confider Beneficd Per Ions in the Triple Capacity of Subjects, Superiors, and Vaf- fals, and Jhew what is due to, and by them in thzfe different RefpeTs. Under which Head the Plea ^/Church-men for an Ex¬ emption from Subsidies is brought in ^ The Nature perhaps from the old Culfom of Polling upon Altars, or Churches, the Titles and Arms of thofe prefented to them. 4. Such as have Benefices in Commendam on¬ ly, are termed Commendators , Thefe at firffc were only defign’d as Stewards and Overfeers, to call for and receive the Rents, until Titulars were provided ; for which they were anfwer- able, and lyable to hold Compt, In Procefs of Time* fome of ’em turn’d Fadlors in Rem fuam, and Titulars in Effedl. By the Influence of Moyen andFriendfliip at the Court of Rome , they got Powers to difpofe upon the Benefice in the fame manner as Titulars, and to apply the Profits to their own Ufe, during their Life¬ time. Hence arofe the Dillin&ion of Commen- dams into Temporary, and Perpetual, The former, as being in favours of the Church, might have been granted by the Bi/hop. (a) But no meaner Man than the Pope himfelf, cou’d confer a perpetual Commendam. (i>) Cu- j&s refpePlu omnia rBeneficia funt Manualia , as Baidu. s expreffeth it. By the 3. dft 1. Pari. J. 3. Commendams are difeharg’d, without annul¬ ling the Deeds of Commendators: And there* ( a ) Garcia dc Bmeficiis , Tome i. P. 4 C. 4; N. 8. Zoef, in Decretal, L\b, 3. Tit, <. N. 61. ( b ) Ibid, Garcia, Ibid. N. n. fore many fuch have been fuftained fince that time. But then Rights made by Commenda- tors, tho with Confent of the Chapters, are only binding in our Law, during the ftanding of the Gommendators own Right, (a) The Reafon for introducing Perpetual Commendarnsi was partly, that the Pope might be able to compliment his Favourite, with the Enjoy¬ ment of a Benefice under the Title of Com- mendator, who was incapable by the Canon Law to hold the fame as Titular : Partly, that two incompatible Benefices might be be¬ llowed upon one Perfon, without infringing the Canons, by making him Titular in the one, and Commendator in the other* or by giving him both in perpetual Commendam . But a Grant of a Benefice in Commendam was prefum’d to be Temporary, and a Truft for the Titulars behoor • unlefs conceived exprefly in favours of the Obtainer for his Lifetime, with Power to apply the Rents to his own Ule. { b ) 5. Some Benefices are called Great, or Con- fiftorial Benefices, from the Popes Cuftom of beftowing them deliberatly in the Confiftory of Cardinals. 6. For underftanding the Nature of Regu¬ lar Benefices, it will be fit to give feme Hi* ftorical Account of Monachifm, and Religif ous Orders. (a) Mackenzie Obferv. on the Ad 3 . P arl, 1. J. 3. ( b) Hope Maj. Pratt, CHAP. f s ) CHAP. II. The Hi/iory of the Orig ine, Nature, and Progrefs of Monachijm t and Religion Orders . MONKS, at the beginning, were a parcel of Men> whom the Heat of Perfection, in the Infancy of Chriftianity, had forc’d into De¬ farts } where they liv’d more fafe- ly, and ferv’d God without Difturbance. All their Employment confided in Prayer and Meditation, and Reading the Holy Scrip¬ tures. Of this fort were our ancient CuUees , or Keldees : So termed, either becaufe they were Cultores Dei , according to HeBor Boeth ; or from Living in Cells, as B. Spotfwood wou’d have it. They were Chriftian Britains, who flying Dioclefians Perfecution, retired firft to the Ifle of Man, and afterwards fpread them- felves through this Nation. They lived toli- tary, but famous for Learning and a good Life, breathing a Spirit of Devotion : And left fuch an Opinion of their Holinefs behind ’em, that their Cells, after their Death, were con- ! verted into Churches. So, Kilmarnock , Kilpa¬ trick, Kilriny , &c. is as who flioiild lay, Gella j Marnoci , Gella Patricii , Gella Niniani , &c. 2. Many of the MonkifliDevoto’s, the times growing more calm, found fo much Content m V A 3 in C 6 ) in a retired Life, as they were loth to return to Secular Bufinefs. Being adted by a miftaken Principle, as if the Perfection of theChriftian Religion confided not in Adiion, but in Re¬ tirement and Contemplation ; and our higheft Imitation of Chrift lay in following him into the Wildernefs to be tempted of the Devil, and not in walking as he walked, who converfed with the World. Yea, fome not thinking it fufficient fimply to withdraw for Devotions lake, from the Prefs of the People, and Noife of a Tempting World, were pleas’d with all to expofe themfelves to the moft auftere Exer- cifes of Mortification. Simeon Stylites , or of the Pillar, may ferve for an Example, who liv'd in the Firft Century, and was furnamed from his Abode upon a Pillar, 36 Cubits high, where he flood not a few Years with a Chain to his Foot, Affiduous in Prayer, and Falling after a ftrange fafhion. 3. But tho’ many of the Solitaries wou’d not abandon their Lurking Places, even after the Blaft of Perfection was over; yet the moft part found it convenient to go together into Monaflries, where they might be aflifting and comfortable to one another. This was done by the Influence of Cohmba s Ferfwafion, who in Ccngallw the Second’s Reign, return’d from Ireland , whither he had gone ( a ) with S. * Patrick to affift: in the Converfion of that Na¬ tion. He founded the Monaftery of Icolmkil for that end» in one of our Weftern Lies. ( a ) Anno 491. Where Where he led a Pious and Exemplary Life, keeping ftrift Difcipline over his Monks: To whom he gave Precepts of Direction, without obliging them to any Vows. After this Ex¬ ample, other Monaftries were ereCted at Aber- nethy, Dunkeld , Kilrlmont , Abercorv , Melrofs, Lochleven , Monimusk , Kirkaldy : And the Mo« naftry of Icolmkil had an extended Jurifdiction over all the reft. , Thefe Monaftries were Nurferies and Seminaries of Religion, and Learning, out of which Parochial Churches were planted with Minifters. Buchanan tells us, that Palladim was the firft Biftiop in Scotland , and that till he came here, the Church was rul’d by thefe Monks with moreSimplicity and Holinefs, and lefs Pride and Pageantry. But others are of Opinion, that they finding the Number of the Faithful much increas’d, chufed Bifttops out of their own Number, as Ambula¬ tory Superintendents of the Church, called Epifcopi Scotorum. Thefe Keldees being diligent and fruitful in Works of Piety, were in fuch Efteem, That Conftantine 3, one of our Kings, died a Keldee at S. Andrews. They did always mightily oppofe the Introduction of Popifh Innovations : But the Emiflaries of Rome hav¬ ing gained upon the eafy Mind of King David; a Legate from Pope Innocent 2 was received in Scotland in the Year 1138, with a great deal of Ceremony and RefpeCt. After which time Prelates began to get up their Heads among us, and to drive us to Superftition and Idola¬ try : But were not able to fupprefs the Keldees, as that Learned and judicious Antiquary S. James ( 8 ) James Ddlrymple obferves, (a) till the begin¬ ning of the Fourteenth Century. Pains was taken firft to Profelyte their Abbots with the Bait of Preferment to new ereded Bi/hopricks} and Keldees poffefs’d of Parochial Churches were fuffer’d to enjoy their Benefices during Life. At length what by thefe, and forcible methods, that Pious Set of Men was quite thruft out: Upon whofeRuines,a moft corrupt Regular and Secular Clergy fet up. Mona*? chifm in Scotland , by the Diftindion of Vows, Rules, and different Orders, became a motely kind of thing : And Monks, without regard to thefe, turn’d quite unruly and diforderly. 4. 'Tisbefide my purpole to ipeak of all the Religious Orders, Hiftcrians are not agreed about the Number of ’em. Mr. Fox} ( b ) reckons up no fewer than 102 different Orders of Monks and Friars in Chriftendom. Let it fuffice me to notice the chief of thofe that took Footing in Scotland. y. S. Bafil founded the moft ancient, if not the only Order of Monks in the Eaft ; S. Augu - (line contriv’d a famous Order in Africk ; and j Benedict an Italian born at Nurji , was the firft who brought the Monks in Europe under the Ties of Vows, and Rules as to Lodging, Habit, and Diet. His Difciples were called Benedict tines. The Abbeys of Icolmkil ', Dumfermling , S. Colms Ab-erbrothock, and the Priories of Col- dinghame and Irefontana were inhabited by fa) Collections concerning the Scottijb Hijlorie , Chap. 9. (. b ) Aits and Monumf Monks C 9 ) Monks of this Kidney: And from this Order^ many others have fprung, as thofe of Valombre in Ttifcany, the Cart bujians, Ciftercians , and the Congregation of Cluny. 6. fttalvoijin Bifhop of S, Andrews introduc’d the Monks of Valombre among usj ( a ) with whom the Priories of Arcbattany Lefmahagoe , Vlujcartie , and Beawly were planted. Thofe of Vlujcartie wrote a Scots Chronicle. 7. The Auftere Qarthufian Order, ( fo called from a frightful Solitude near to Grenoble in Vaufbinee ) was fet up by Bruno a Canon of Reims , about the Year 1086. But the Learned differ as to the Occafion of his Retreat. Some afcribe it to a Prodigy, faid to have happen’d while he was prefenc at the faying of Mafs for a famous Dodfor of Vans , who lifted up his Head thrice from off the Bier, crying out, firft, that he was Accus’d, thenjudg’d, and fi¬ nally Damn’d, by the juft Judgment of God. Others difprove that Story, alledging, that a Bruno had no other Reafon for his Renouncing the World, than a Senfe of the Vanity on’t, and a Deteftationoi the loofe Lives of feveral Monks. King James the Firft brought thefe Carthujians into Scotland ; and built them a Beau¬ tiful Priory in Berth . Their Inftitution was of the moft rigid kind. They were not allowed ,to go out of their Monaftry, or to converfe together 5 But were enjoined perpetual filerce, and forbid to eatFlefh in any cafe whatfoever, or to look upon the fair Sex. Volateran reports ( a ) Aim 1219. of C 10 ) of Bruno their Father, that, for 50 Years, he wou’d never fee a Womans Face. 8. The Monks of the Abbey of M olefine within the Diocefe of Langres in France , having about the Year of our Lord 1098 extremely deborded from the Rule of their Inftitution, 21 of them, together with Robert the Abbot, concerning a juft Abhorrency of the Diflolute Life of their Fellows ; left the Monaftry, and fix’d at citeaux , a wild and defolate Solitude in the Diocefe of Chatons in Burgundy : Thence came the Name bf Ci(lerciam% Refolving upon a ftrid and Reformed Life, according to the Difcipline of S. Bennet • They, by the Autho¬ rity of the Bifhops of Lyons , and Chalons , and Qtho I* Duke of Burgundy , erected an Abbey : And diftinguifhed themfelves by a white Habit, from the Benediftines , who went in black. At firft they leem’d altogether mortified to the World, but foon acquired great Riches, 0 through a mighty Opinion that Men had of their Piety. This Order was approven by Urban 2 ; mightily increas’d under Innocent 2 • and was exeem’d from payment of Tithes by Adrian 4. For which Immunity I know no other Reafon5 if it was not becaufe they pro- felfed to be a fort of Refin’d Benediffines , and that Pape was at firft a Benedictine Monk ; or elfe, that there was Bribery in the cafe i For Popes commonly granted to Monks for Money, as many Exemptions as they pleas’d. The Ctftertians were named Bernar dines , for that their Order was render’d famous and Amplify ’d by S, Bernar d9 to that Degree of Power, Power, as it govern’d moft part of Europe a whole Age both in Spiritual and Temporal Concerns. The Monaftries of Sandel, Soul- Seat , Dundrennan , Melro/s, Newbottle , Hew- Abbey, Glenluc s% Balmer'ino, Cowper in Angus % Deer , Kelfo , Guirofs, and the Priories of El- tyuhow, and ^ Aachline belong d to this Order of Ciflertians. The Monaftry of Fafley was once fill’d with ’em, in whofe Room the Monks of Cluny came afterwards, to whom the Gijlertians had formerly fiicceeded in thatCloifter. The Congregation of cluny was a famous Order of Monks inftitute in the Year 910 by Berno in France , where they have their princi,’ pal Abbey. Of the Greatnefs whereof we may make an Eflimate from it’s being found fufficient to afford Lodging to Pope Innocent 4, with 2 Patriarchs, 12 Cardinals, 3 Arch-Bi- fhops, and 15 Bifhops, &c. As alfo, at the fame time, to Lewis the Eleventh, with the Duke of Artois , and the Emperor Baldwin. We had firft Monks of Cluny in the Monaftry of Fafley, and then C iflertians, and afterwards thofe of Cluny again : With whom alfo the Ab¬ bey of Rewls-crofs , or C orfraguel was planted. . 10. Norbert Arch-Bifhop of M aydenburg did inftitute the Order of Fremontre in a place of that Name within the Diocefe of Laon in France , about the Year 1120. The Monks pretend it was fo called, becaufe the place was Divind Rem velatione PramOnjtratum , They were under the Rule of S. Auguftine, and had five Convents in Scotland , viz- the Abbeys of Tungland, Holy « wood , Dry burgh, Fern% and the Priory of V/hitm horn , ( 12 ) 11. The Mendicants, or Begging Friers, arofe in the Twelfth Century. Who were not as the Monks confin’d to their Cloifters, but al¬ lowed to go about for their Living,* and to Preach in the Neighbouring Parodies. They are branch’d into the five Otders of Carmelites, Dominicans, Francifca»sJ Align flinians or the Hermites of S. Augu(line> and the Trinity Friers or Mathurins. 12. The Carmelites were feveral Weftern Pilgrims pick’d up by the Patriarch of Antioch, and plac’d in a Monaftry upon Mount Carmel , about the Year 1160, while Alexander 3 was called his Holinejs at Rome. They boaft them- felves to be the Succeffors of Elias, becaufe Carmel was formerly the Retreat and Refidence of that Prophet. Being expelled thence in the Year 1538, they came into Europe ; and in King Alexander %d’s time, to Scotland , where . they had their Convents at D umbar, Linlith¬ gow y TiUilum , Queens ferry, Aberdeen , Irving , and Banff. ThisOrder was called, the White Friers ; and hath furnilhed many Bifhops, Preachers, and Learned Men to the Romijh Church. 13. The Dominicans , or Black Friers, had S. Dominick deGuzmdn a Spaniard, who contriv¬ ed the Inquifition, for their Founder,* and were called the Treachers , from their Preaching down Herefy, as Roman Catholicks term the Prote- ftarit Do&rine. In France they went under the Name of Jacobines , becaule their firft Con¬ vent was in S, James's Street of Paris. This Order is Laid to have been confirm’d by Inno¬ cent I cent 3, after a Vifion he had of "Dominick fhoul- dering up the Lateral i Church. 14. The Order of F rancifcans or the Gray Friers, called alio the M in or Brethren were in* ftituced by $. Francis an Italian , about the Year 1208, approven by Pope Innocent 3, and con¬ firm’d by Honorius 3. This S. Francis had been a diifolute Merchant in his Youth, w ho upon the Wakening of his Confcience, put himfelf under the greateft Aufteritiesj and turn'd fo compaffionate, that he cou’d not find in his Heart to kill a Loufe. He endeavoured by Preaching to Beafts, and Teaching Birds their Catechifm, and Sheep to Bleat out their Ca¬ nonical Hours, and fuch like Holy Feats, to treafure up a Stock of Merit in the Bank of his Fraternity, He prefcribed extreme Poverty to his Followers, that they fliou’d go bare-footed, girt with a Rope about their Wafts, and beg their daily Bread. They were not allowed to handle Money, or to poflefs any thing in Pro^ perty, and fcarce' could call their Wearing Clothes their own. To gain Credit^ o this Or-» der,' a Story was vented, That a m™ter of two Years before S. Francis's Death, a Seraphim, as he was Failing and Praying, Imprinted upon thefeveral parts of his Body, the fame Marks and Wounds our Saviour bore upon theCrofs. iy. We had no Dominicans or F rancifcans in Scotland , till a Sample of "'em came from France with Biiliop M alvoifin in the Year 12 19. But they foon got into a mighty Efteem with the People, invaded the Pulpits, and leften’d the Reputation of the Priyib, Both thefe Orders had • C H ) -- had their Convents at Edinburgh, Glafgow, Air, Perth , 'Dundee , Stirling, Aberdeen , Elgine , Sfr Andrews , Haddingtoun , D Umfreis and lnnerkeith - The F rdncifcans alfo had their Houfes at Roxburgh, and L anerick; and the Dominicans at TVigtoun,MontroJe , Invernefs, Jedburgh, Linlithgow, Kinghom,DfJert, Lorres and Selkirk, Thefe Black and Gray Friers had the Ground Annuals with¬ in Burgh, for their Patrimony: And all their Pofleffions within thejurifdidtion of Edinburgh were dilponed to that Good Town by Queen M^r/sCharter dated M whom the chief Gare and Management of the Monaftry, was lodg’d One Monaftry cou’d not have two Abbots; But I find there hath been many forts of ’em : Such as, Regular Alt - botsi who were Monks ; and Secular , or Lay Abbot s, or Abbots inCommendam, who convers'd with the World, and by Difpenfation as to their Age, and other Qualities, fucceeded to the Rights of Regular Abbots. The Diffe¬ rence betwixt Abbots Commendatory , and Regu¬ lar , is, That the former enjoy but a Third of the Revenues of their Abbeys, Two Parts be- in! allotted for the Maintenance of the Monks, and Charges of the Monaftry ; whereas the whole was at the others Difpofal. Another Speciality in the Commendatory Abbot is this, that tho he be Subftitute in the Right of the Regular Abbot, yet the Monks are not fubjedt to him in what concerns the Rule of their Inftitution, or Monaftical Difcipline : As to which, they are only to obey the Prior* during the time that the Abbey is in tommendam ; that is, during the Vacancy of the Abbots Office. But then the Commendatory takes upon him to put in, and turn out the Priors. The Dig¬ nity of an ordinary Abbot, is next to that of a Biftiop. But fome Heads of Monaftries, that they might be Independent of the Bifhops, were freed from their Jurifdidion, and there¬ fore calied Abbates Exempt, Another kind there was of Sovereign Mitred Abbots , that were not only fubjedt to no Diocefan, but alfo inverted with tpil'copal Power : In fign whereof, the ufe of a Mitre and other Epifco- ( i9 ) pal Ornaments were indulged them. But Pon¬ tius Abbot of Cluny , not content to ftand upon a Level with Bilhops, did, in a Synod held at Rome in the Year H17, aflfume ( as’twcre to vie with the Pope ) the Boafte'd Title of Abbot of Abbots. The Abbates Exempts had Jurifdi<5ti* on over the Monks, to Difcipline and puni/h them when they tranlgrefs’d the Rules of the Order, or committed a Grime : But Abbots that were (ubje , iytes, and Exercijls. Others go under the De- fignation of greater Orders, as Sub-Deacons, Deacons, and Priefts. &11 invented to fupport the Sacrifice of the Mafs j alluding to the abo- lifhed Miniftration of the Priefts and Levites, under the Old Teftament* The Acolytes had the Charge of the Lights in the Temple. And the Work of the Exorcifl. was to caft Devils out of Demoniacks, by the Impofition of Hands, ’ and fome Conjuring Words. * 3. Dignity is either an Ecclefiaftical Benefice with Jurisdi&ion, or quod habet nomen dignitatis cum prerogativa in cBoro & capitulo, The Digni¬ ties ate thofe of Popey Cardinals 3 Patriarchs , Pri¬ mates , Metropolitans , Arch-bijhops , Bifrops ♦ Their Subalterns and Provofts. 4. The Pope , who is now arriv’d at the Pi- nacle of Ecclefiaftical Preferment, what by Fraud, and Force, and the Aftiftance of the Emperor Phocas , acquir’d the proud and lofty Tides of C jbrjjh Viccars Univerfal Bijhop , Head cf the Cjhurch , Supreme and Infallible Judge of all QcntrOver/ies in Religion. When Popes began to fee up for the Succeifors of S. Peter , they called their Eftate Peters Patrimony • and the Tribute pay’d them Tcter-Pence. They pretend to derive a Right from Conjiantine the Great, not only to the' Spiritual Dominion over the Church,- but alfo to the Temporal Sovereignty of all Italy ; and that the Seat of the Empire was remov’d to C onjlantinople, to give way to the Pontifical Power in Italy: But the more Judicious of the Romanics are juftly aftiam’d to own this Fiction. I confefs it is mention’d in the ( ) the Decretals : ( a ) But fo different Accounts are handed about concerning it» that the fame is mighty liable to the Sufpiciort of an Impo- fture, Nay, if we’il only confider the fubfe- quent State of Italy , and the Weftern Empire, we (ball find it no hard matter to dafh and beat down this Papal Pretence. For is it not irianifeft, that Confiantine, before his Death, divided his Empire among his three Sons, al» loting to the eldeft the Weftern parts, to the fecond the Eaft, and the Countrey interjacent | to theyoungeft:And thatGonjlantinesSucceffors continued to fway the Sdepter in the Eaft, till the Irruption of the Goths and Vandals. Yet giving, not granting, that Donative had been a true Deed, it could not have fubfifted in Law : Since chat Prince had only the Admi- niftration of the Imperial Revenue ; without any Power to dilapidate, or throw it away. 5, Cardinals at firft, were only Priefts or Deacons of the Church of Rome : So called from their prefiding over fome Cardinal or principal Churches. But at- prefect they have got above Arch-Bifiiops, and are mightily greaten’d* and confiderable in the View of the World, through their being Senators of the Popes Confiftory, and the only Perfons Who can eled or be chofen Pope. 6. There were five Patriarchs, as thofe of Rome , Constantinople , Alexandria , Antioch and Je^ rufalem. Which five Patriarchs a Popilh Writer { b ) fancies to be prefigured in the fourth ( a ) C. Consent inu: £>;]}, ( b ) Lyra in Cup. 4, Apmlypf. S. Joan, Chapter ( 2 4°' f )'R°d' J ^ d • -r 7' 1 i od cujufque Univ. Norn L. 6. §. i.ff. de Divif. Rerum. ( f ) l. r. § off Quod cujufque Univ. Horn: l: 8: cod (g) /: 3; p. ff dt Colleens Mi* utis ( h ) Greg Tholof: Synt: Jur.p. 2: /; I5; Cat>f\ 2: 17. & fe<]q. ( i ) vid; Chap, 5; H; z6. k 19- Secular r ?4 ) 19. Secular Benefices may be divided, 1. into Benefices of Cure, and thofe without Cure, commonly called Sine-Cures. 2. Into Prelacies, and fuch as pertain to the inferior Clergy. I muft here add to what hath been faid concerning Prelacies and Dignities ; That *tis prefently under Debate before the Lords, (a) whether an Arch Deacon be a Prelate. The Reafons alledg’d for his being a Prelate are, 1. By the Nature of the Office pr&efi atiis , & capitulo , vel ejus parti. 2. The Adfs of Parliament, particularly in K. James the Sixth’s time, after the Reftoration of Epifco- pacy, allowing Tacks by Biffiops and other Prelates , import, that Arch-Deacons come un« der the Denomination of Prelates : Since the Popifti Offices of Abbots, Priors, and the like were excind, and unlawful at that time. But out of Modefty I lhall leave the Point to the Decifion of the Bench, where it lies at Avifan- dum\ and content my feif to notice, thatfome Prelates, as Provof.s of Collegiate Churches, have this of the Nature of inferior Beneficiaries, that they cannot do efFe<3tual Deeds without the Patrons content, as well as the Chapters '.(h) And in fome refpe&s all benefic’d Perions are confider’d as Prelates, viz,. That they may have Heirs, and Heir/hip Moveable. ( c ) 20. The Priefts or under Clergy, were ei¬ ther diiposM into Parifh Churches, ot Chappel » ( a ) In the cafe of Sinclair of Barack again]} Sinclair of Southdown and the Earl of Broadalbin : ( b ) vid: infr ; Chap: ic: Self: i: N: 8: ( c ) ‘vid-.infr: Chap: 9: fc; 2. ( 35 ) , rtet, or had their Pofts aflign d them at Altars* or in Chappels of Cathedral, or Collegiate Churches. The Priefis, who had Fees for Tinging of Mafs in thefe Chappels, or at fueh Altars, and made alfo feme Hand with the Cafualities of Obits, and Proc.eftion- Pence, have been already fpoke to t The Nature of Parifli Churches, and Chappelries, remain to be cleared up. 21. Parifli Churches were either diflinS Be¬ nefices, or united to other Benefices. Vica» rages, and Menfal or Patrimonial Churches were united to other Benefices. Common Churches, and thofe under Patronage, were poffefs’d as feparate Benefices. For the better undemanding of thefe things, it is proper to notice, that the Bilhop, with his Chapter, liv’d once in common upon the Revenue of the Bifhoprick, which conlifted much in Parifli Churches. But about the Twelfth Century, conveniency requiring aDivifion,- fome pare of it was fet off for the common ufe of the Members of the Chapter, referving the reft for the Bifhops own Maintenance. Hence pro¬ ceeded the DiftindHon of Menfal and common Churches. 22. Menfal Churches were de Hcnfa Epljcopi , a part of his own Patrimony or Benefice,- To the Rents whereof he had Right as Parfon or Titular : And the Minifter admitted by him, as Vicar or Stipendiary, got only fome year¬ ly Portion or Duty out of the Rents, or io much Money for his Maintenance, as the Bi- fhop and he agreed Ip t. Thefe Minifters of C z Menial f ( 36 ) Menial Churches, in time of Prelacy, depend¬ ed fo much upon the Biffiop, that the Com- miflion could not modifie Stipends for them, in the Terms of the Adi of Parliament 1 633. But fince the Revolution, they had accefs to purfue for Modifications and Localities, as well as other Minifters : Being always oblig’d to cite the Officers of State for the Kings lntereft. However, in regard the Tithes of fuch Parifhes were in the Hands of the Sove¬ reign by the Suppreffion of Biffiops, the Commiftion us’d no further to interpofe their Authority , than by a Recommendation to the Thefaury for a Gift in favours of the Minifter, equivalent to the legal Stipend. 23. Common Churches were thefe, in the planting whereof with Incumbents, the Mem¬ bers of the Chapters of Cathedral and Colle¬ giate Churches had a joint lntereft. 24. Churches under Patronage, are to be treated of in the next Chapter: Where the Rife, Nature, and Progrefs of Patronage is explain’d. 25'. The Word Chappel certainly comes from Capella ; but whether that owe it’s Original to Capra, becaufe the Tabernacle was cover’d with Curtains of Goats Hair - or to Capana3 tpuia paucos capit ; or to Capa 5- Martini Bilhop of Tours , which the French Kings of old were wont to carry with them as a Holy Relick in their Warlick Expeditions ; or if it be fo called a capiendo Laic os'. I (hall not be pofitive, be¬ caufe I do not know, nor is it much material 10 know it. This is certain* that there were three three forts of Chappels ,* Chappels of Eafe, Free Chappels, and Private Chappels. 2 6. Chappels of Eafe , arofe much upon the like occafion as Synagogues among the Jews. For as they had one Temple at Jerufalem% to which they reforted thrice a Year, at the folemn Feafts of the Paftover, Pentecoft, and Tabernacles, for a Profeffion of the Unity of their Faith and Worfhip ; and that the Exer- cifes of Religious Duties might not in the Interval be quite negleded, nor the Know¬ ledge of the Law loft to the Vulgar; and in confideration of thofe whom Age, or Habit of Body, or other Circumftances wou’d not permit to vifit Jerufalem ; were indulg’d the ufe of Synagogues in their Cities, and Villa¬ ges, where the people met upon the Sabbath for publick Prayer, and to hear the Law read: So when Ministerial Duties were firft bound¬ ed by Parifhes, thefe were very wide, and it being found uneafy for fuch as dwelt in the remoter partsi efpecially old and fickly per* fons, and Women with Child, to come up to the Church on all occafions, for partaking of the Ordinances ; Chappels were built for their ufe, and thence called Chappels of Eafe. Thefe were ferv’d by fome inferior Curate, main* tain’d by the Redor of the Pari/h. ISut then the people were oblig’d to attend the Ordi¬ nances in the parochial Church, at the ftated Feftivals of Pafch, Whitfunday, Chriftmafs and others, fa) The parochial Church was ( a ) C: ft quis ettam 35 :.de Confecrat; Difi: ' C. 3 a'lfo ( 38 ) alfo called thcBaptlfmal^ or Mother&hurch. For underftanding the Reafon of which Defigna- tion, we mu ft remember, that the Rites of Baptifm, in the primitive Times, were per¬ formed by Dipping in Rivers, when the Con* verts were many^ and perfons come to Years; and perhaps had not the conveniences that are now in ufe.But afterward that cuftom went off, and the Water of Baptifm was put into Velfels called Fonts, from the original pra&ice of Bapti¬ zing in Fountains,* which were firft ere&ed in private Houfes, and during the Fury of per¬ fection tranfplanted to Defarts. WhenChri* ftianity got the countenance of civil Authors ty, Baprifteries were built in Cathedral and principal Churches. For tho Divine Service might be us’d in Rural Dependent Churches $ the Right of Sepulture, and Baptifm belong’d only to fome principal ones* called therefore Baptilmal Churches, or Eccleft AB 24. Sejff] 2. Pari: W.and M (c) AB 23. Ibid, (d) AB 1. Pari: 21. ]*: 6. AB 9. Pari, 1. Sejff] 1. Ch; 2, Stair Injlit: Lib ; 2. Tit: 8. § 35. (c ) D. AB 1. Pari; 21: civil C 4* J civil Titles, after the Minifteris provided with a legal Stipend, (a) The Church was to fix an Aliment upon the Patron, if reduc’d to poverty: (b) Even as by the civil Law manumitted Slaves were bound to maintain their former Mafters, that had not otherwife whereupon to live. ( c ) But this Point hath never been Sub Judice. ( d ) 6. No bencfic’d pejfon without confent of his Patron cou’d do any thing material, fuch as the granting of Fews, or letting of Tacks, for more than three years. Bui the Patron confenting thereto was not lyabie in Warran¬ dice. 7. The mainPriviledge that Patrons in joyed, was a power to prelent within a determined time an Incumbent to the Vacant Benefice: To whom, if a fit perfon, the Church be¬ hov’d to give Collation or Inftitution. ( e ) InPopifii times our Princes had the nominati¬ on to Bifhopiicks, and Abbacies ; And the Pope had the provifion. (f) Other Kings who had this Priviledge, failing to nominate within fix Months, the Pope got the free difpofal of the Benefice,* or he might refufe unfit perfons prefented, and put them to a new Nomination (z) Act 23. Sejffl 2. Act 26. Sejf: 4. Pari. IV. and M. (b' C. nobis 1 5 . Extr: de jure patronat : t . quicunque 16. ^.7. Duttren de S.Ecclef: Minift. & Benef: lib: 5. cap: 4. Bengalis de Benefic. adverba cum fuo reditu, tap: ^.p. i 5.N. 9. (c) l. 5. §. j 9. ff\ de agnofc. & Abend: liber (dj Stair In ft it: lib; 2 . Tit: 8. §35. (e) C. decernimus 16.^7. € illud de jure patronat: C. ex injinuatione Eod. (f) Aci 125. Pari: 7. “ja; 5, to to be expede within three Months. But our Law own’d no jus devolutum in favours of the Pope, to the prejudice of the Sovereign, who mighc have preferred at all times. ( a ) 8. Mr. Stlden (b) affects. That Lay Patrons once challeng'd the Right of Collation or In* veftiture, which they ufually referv’d in the Foundations; And upon every Vacancy coni ferr’d pofleffion of the Glebe, and Tithes, upon the new Intrant, by fome Symbol or Seafine. The late Bilhopof Worcefler (c) al¬ ledges that fome fuch thing was indeed aim d at by Patrons, to keep the Clergy in a foie Dependance upon themlelves, but never ob¬ tained: Tho the Pradice is often complained of in the Canons of the Church. But Sir George M‘fonz,ie (d) thinks that Patrons were in the Exercife of that priviledge, for fome Ages after Charles Martels Government : And that the Claufe with us, refcrving to them power to retain the Vacant Stipends of the Benefice, is a veftige of their old pretenfion. 9. Prefentation to a Benefice before it vak- ed, was not allowed : (e) Except where the Incumbent through Age and Bodily Infirmi¬ ties was render’d incapable to ferve the Cure ; In which cafe he us'd to get a Helper joyn’d to him. (/) Nor was a Patron found to ( a ) Act 8 5. Part-, r j . Ja. 3 . ( b ) Hift: of Tithes chap: 6. N. 3 . ( c ) Ecclef : cafes relating to the Rights and Duties of the parochial Clergy, pag: 1 62 and 163. ( d ) Obferv. on the jth. Aft 1 Pari: Ja: 6. ( c ) C.ult: Extr: deconcef: Prebend : D' Epeijfes de Benef: Ecclef: Tom. 4. Tit : 3 . N. 27. F. de. Royead Tit : de fire Patronat : Prolegotn: cap: 23. ( £ ) CarpMV:jus Con - lift or: lib: 1 . tit: 2. def, 1 5, N* j.&fejj: . have f 44 ) have power to grant a Prelentation to one^ and to another after his deceafe. (a) For if he the Patton might fubftitute one perfon to the Incumbent, he might fubftitute an hun¬ dred, and fo exclude all his Succeffors. But in the Court of Rome, it is an ordinary thing, to iftue forth feveral Bulls for one and the fame Benefice, even while it is full, called Gratia Exyettativ* ; which is a vile and abominable pra&ice. No Ecclefiaftick Patron cou‘d pre¬ lent himfelf to the Benefice. ( b ) Some require that the party preiented fhou’d have all the Canonical Qualities of a benefic’d perfon, from the very time that the Benefice vaked : Others diftinguilh betwixt a Right of Patron¬ age which by the Foundation carries power to prefent any fufficient perfon in general, and that whereby the Patron is tied up to one of luch or fuch a Quality, or Circumftances ; thinking it neceflary in the laft Cafe, for the prefented party to have the requifite Qualities when firft the Vacancie commenc'd, and fuffi¬ cient in the firft Cafe, that he be qualified at the time of the prefentation. ( c ) io. The time was when moft of the Burghs in Scotland had but one Minifter, who was un¬ der the influence of anothers Patronage too ; But at length the more confiderable have rail¬ ed Funds of Stipend to fecond Minifters, part- ( a ) 24 January 1677 . Stuart contra Nairn, (b) C. per nojlras 26. Extr: He jure patromt D' Eptijfes Ibid N. 25. Ben - gceusde Beneficiis ad verb : concejfa cap. ult : N. 2 & 3. G. Tho- lofdn : Syntag: part 2. lib: 17. C.4. N.9. Z »ef: adTit; X.dejure patronat: N 33. (c) F.deRoye Ibid. cap; 26. ■ >y C 45 ) , ly out of the common Good, and partly by the Contribution of the Inhabitants; Refer- ving ordinarily in the Erection the Patronages to themfelves. Which fecures againft the pre¬ tences of the Patron of the firft Minifter. (a) But the Patronage and power of prefenting a fecond Minifter, was found to accrefce to the Patron of the firft Minifter ; Albeit the fecond Minifters Stipend was a voluntary Contribu¬ tion of the Heretors : Seeing the fame was eftabliftied only by an Ad ofPresbytrie, which did not mention any Refervation of the pa¬ tronage, or that the Contributers did proteft for it, and there was nothing of cuftom or pofteflion to inftrud the meaning of parties. (t) When there are more Patrons to a Church than one, they prefent by turns. ( c ) And if one of three conjund Patrons fucceed to ano¬ ther, he muft prefent twice, where the third prefents but once. (J) Some alledge that by prefenting IrinJL Vice , or the three laft times, one of feveral conjund Patrons acquires aprep ferable Right exclufive of the reft. ( e ; But with us, that doth onlyoperate a pofteftory Right in a competition with other Patrons pro ea vice , without prejudice to the reft to declare their Right for the future. ( f ) n. It hath been difputed, if aproteftant (a) Stair Infit-.lib : 2. tit: 8.§. 27. (b) November 18. 1680 . Town of Had dingtoun contra the Earl of Haddingtaun , (c) C. u!t: de jure Patronat: in Clementin : D ’ EpeijJ'es dc Benef Ecclefz Tom Tit. 3. N. 9. (d) Zoef: ad Tit. X. de jure Patronat ; N. S4. (e) Hid: de Roj/e Ibid: caj). 16. (f) M' kenx.it S Obferv; on the 7 th, jiff. Pari: 1 . Ja: (j. Patron r 4« ) Patron ought to be allowed to exerce his Right of Patronage in a Popifh Country ? ‘Tis al- ledg‘d for the Affirmative, that Patronage Is not a perfonal, but a real Right, ordinarily an¬ nex’d to Lands, and confequently fhould fol¬ low them, without regard to the Quality of the perfon. And befides, the Prefentation is but a Servitude upon the Benefice, and not a Spiritual Title, (a) Nor doth the Prefentation properly give the Benefice without Inftitution from the Church upon the Letters of Prefen¬ tation • And in that the Spirituality doth real¬ ly confifh 2. The Church may refufe thefe prefented if they be not qualified ; So that the Patrons cannot, if they would, abufe their Right ; Nor can the Church receive any pre¬ judice, if the Ordinaries difcharge their Duty. Thefe who are for excluding Patrons profeffing the Reformed Religion, from the Right of prefenting to Popifh Benefices, do back their Opinion with thefeReafons. 1. Tho Patronage be not properly a thing Spiritual, ctis at leafi: mixt • or, as they fay, ) AB 1 . Pari: 21. Ja: 6. (b) Ibid: Mkenzie obferv: on the qth. AB Pari : j- Ja: 6. (c) siB 85. Pari: n. Ja: id- \ James Strachm a gain (l jean Forbes, and others the Vajfals of his Parfonage, • D .2 to ( 52 ) to the Liberty of the People in the Free plant¬ ing of Churches, and calling of Minifters : It was refcinded and taken awsy by the 39 th. A <5t Pari. 1649. In lieu whereof the Patrons got the Heretablc Right of the Tithes of their Be¬ nefices, that remained over and above the Mi- nifter’s Stipends; with the burden of future Provifions, and Augmentations, Tacks and Prorogations ; and Redeemable by the Here- tor at fix years purchafe. Patrons were reftored to the power of prefentation by the 9 th j. Pari. r. Sejl. Cb. 2. But the fame is now a- gain difcharged, and the calling of Minifters ordain‘d to be by the Proteftant Heretors and Elders of the Parifti : Who are to propofe the peifon called to the whole Congregation, to be Vpproven, or Difapproven by them, for Reafons to be cognofced by the Presbytrie. If a Call be not thus given within Six Months af¬ ter the Vacancy, the Presby try may plant )ure dc~ voluto; withour prejudice to call Minifters to Royal Burghs, by the Magiftrates, Town- Council, and Kirk-Seftion,* with whom if a part of the Parifh be in Landwart, the Here¬ tors and Liferenters thereof muft concurr. For which abolilhed Right of Prefentation, the Patron got 600 Merks, payable by the Town- Council for Burghs ,* and the Heretors and Liferenters in Country Parifhes effeiring to their Valuations two pans by Heretors, and a third by Liferenters, deducing the Patron's own proportion as an Heretor. Tithes alio not heretably difponed, were given to Patrons us a farther Recompense for the Right of Pre- , ' fencation ; ( 55 ) Mentation ; but with the burden of Tacks and all their natural burdens, and redeemable by the H eretors at fix Years purchafe after Valu¬ ation. (a) And this Benefit of the Tithes in lieu of the prefenration taken away, was ex¬ tended to the Patrons of all Parfonages and o- ther Benefices, with the Burden forefaid ; And farther, of two Minifters in one Parifii, if the Commiftion think fit : Providing the bensficed Minifter in pofTeffion continue fo, until the Patron provide a Legal Settlement upon him of a juft Stipend, (b) But it was found by the Lords of Commiftion, (c) That a Matron cou’d not claim the Superplus ofTithes, deducing the proportion pay’d to the Minifter: Where the wholeStipend was not pay'd out of thefeTithe? ; and alfo exceeded the value of them. A Pa¬ tron having in the year 1628 aflign’d an He- retor to a Tack of his own Tithes, and to all other Right which he the Patron had, or might have thereto in time coming ; The Patron was found oblig’d to communicate not only Tacks of Tithes and conventional Rights; but alfo his Right to the Tithes obtained by the Super¬ venient Acft of Parliament 1690. (J) Becaufe this is not the Cafe of a Supervenient Right dropping frorp the Clouds, which could never have been dream’d of; but the formal Confti- tution by Statute of an heretable Title to the (a') Acl -11 .Setf: r. P ark W. & M. (b) Act Sef. 4 Pari: W.& M. ( c) In the Cafe of Sir John Scot of Ancrurh, T- ; gainjl Sir Walter Riddel of that Ilk , and the other Hereto of Hunam. (d) 3 : December 1698. the Laird of Jilardyce a?.,insl the VifiQunt of Arbuthnet.^ * Tithes in favours of the Patron, Who before bad near the Equivalent materially, and in effeft by anticipating Tacks : And the Stile of jPrefentacions exprefly bore Aflignation to the Tithes, which implyed the Cedents pretence. Nor is it the cafe of a conjectural Accrefcence from the conflderation of the Onerous Caufe, or when only a particular Title, or any Right the Difponer a&ualiy hath at the time is made over : But where the accrefcing of future Hights was exprefly in view. 2. Thefe future jRights behov'dj mainly to be underflood of fucli as fell to the Patron by a fuperveening Taw. Becaufe the Ads againft the Dilapida¬ tion of Benefices, flood in the Patron's way, to hinder him from obtaining without a pub- 3ick Law, any other Right than Tacks of Tithes belonging ,to a Church-man. And feeing the parties had unknown Events under their con¬ flderation, there is no doubt, but, had the Pa¬ tron acquired Right to the Tithes by Succefli- 6n to feme remote Relation, or by the volun¬ tary Deed of fome pretender; fuch anAcquifi- tion would have come under the Aflignation, which yet is as cafual, and could be as little SPorefeen, as the Adt of Parliament 1690. 18. Tis a known Brocard among the Qlof- fers on the Canon Lav/ That 'Patrpnum fad • unt Dos , *s£dificatio3 Fundus. And according to the general Opinion of Interpreters, one and the fame Church may have feveral Pa¬ trons. As if one fhould build it, or but a corner of if * another beflow the Ground ; j a third fettle a Revenue for the Miniflers Maintenance: Maintenance : All which things, fay they, entitle one to a Right of Patronage. Yet fome deny, that Patronage is acquired by the giving of the Ground only. ( # ) But then all own, that even the Rebuilder of a demo- li/hed Church has a Title to the Patronage on’t. And as to the firft builder, that his Right falls, if acquir’d only by the building : But that if he alio had endowed the Church, he becomes a conjunct Patron with the Re¬ builder. ( b ) While the Parilh Minifter, in ancient times* fubfifted upon the free Oblati¬ ons of the people ; thqfe were then fo large, and confiderable, that fome perfons built Churches on their own Lands, to have a Share of them. Whence one of the Spanifi councils ( c ) held about the Year $70 forbids, with great Severity the confecration of Churches, built fub Tributafia Conditions , and not pro 'a n - &orttm Patrocinio. When we fay, that a Right of Patronage is acquir’d by Dotation, that is to be underftood of a 'competent Endowment: For he who bellows fomething that is not a lufficient maintenance for the beneficiary, doth not become Patron ; but is only lliled a benefactor. ( d ) But then leverals concurring and contributing at the tame time, tho un¬ equally, by whofe joint contribution a com¬ petent Endowment is made up, are under- flood to be conjunct Patrons. ( e) ( a ) Fr. dt Roys ad Tit X. dejure Patrondt. Prolsgom. Cap. 13. (b ) Ibid. Cap. 14. Zocf. adTit.X.de Jure Pa.ronat N. 6. (c) Coned. Brocar. 3. C. 6. ( d ) Garcia de Beneficiis, Tom, 1. P. 5, C, 9, tf\ 5 *, » ( c J Ibid, ^ ^ ^ ( 5s ) 19. The Emperor Zeno permitted the Foun¬ der# or Endowers of Benefices, to infert any Laws or Statutes in the Foundation Charters they pleas’d, ( a ) for Admjniftration of the Rents,- according to the Rule of Law, Quilt, bet ret Juts Legem dicere potefl tjliam velit . C b ) and tbefe Fundamental Laws did fometimes refpedt the perfon, on whom the Benefice might be confer’d, to, That he fliould be of fuch or fuch a Nation, Family, Condition or Quality, f c ) Which mu ft be obferv’d even in the cafe of a Lapfe, by the Superior, to whom, Jure Devoluto , the power of pre« fencing accrefceth. ( d ) 20, The Right of Patronage hath been fometimes fimply renounc’d by the Founder or Endower of a Church ; and fometimes on¬ ly referv’d as a Temporary Right for a limit¬ ed Degree of Kindred • which failing it ceas’d. From thence fome conclude, that Patronage is competent ipfo faffo, tho not ex- prefly referv’d, if not renounc’d in the Foun¬ dation Charter. { e ) But others (/) think an exprefs Refervation is necefifary : Becaufe Jus faironattts eft Servitus Libertati Ecclefi £ im~ fofita 1 and Servitudes are never prefum’d in Law. Thofe who contend, that Patronage fa ) /. 1 5". Cod. de SS. Ecde(iis. ( b ) l. 20. §. 1. j f. de Pa - Bis Dotal. ( c ) De Roye ad Tit. X. de Jure Patron. Cap. a 5. { d ) Zoef ad Tit. X. de Prebend & Dignitat. X. 22. (e 3 Garcia, Ibid. X. 62 : & de Roye ad Tit. de Jtir. Patron, prolegom Cap. 15. ( t) Bengam de Benefic.ad Verb, cum fuo Redit.Cap 4. P. 1 . §. 6: X. 4. Hope in the LeJJcr Pradicks, Mackenzie Obferv. on the £& 7. Parl,i . J. 6: h Is acquir’d iffo fatfo by the building or doting of a Church, tho not referved in the Founda* tion Evident, will by no means allow the fame to be a Servitude. Becaufe they alledge it was a priviledge freely introduc’d by the Church out of a principle of Gratitude, by way of Remuneration for pious Liberality. 2. Null* Servitus imponi potcftLoco Sacro, SanHo , & Reli&ofo. ( a ) O 1 but fay thefe of the other Opinion, at that rate, all Churches wou’d be under patronage, having been built and endow’d by fome body : And yet we find, that many are free. The Anfwer given is, that fome Patrons loft their Right non uteri* do% and by prefcription ; others renounc’d it at the Foundation. However we find Chur¬ ches before the Reformation to have been fo generally under patronage, that none were prelum’d free ; and the Popes Right as uni- verfal Patron was fuftain’d, when no body elfe could inftrud a Title to the patronage : As after the Extirpation of Popery, the King Jure Corona was accounted Patron, if another did not appear. For at the Reformation, as Hope ( b ) obferves, all patronages belonging to the Pope, were, by the Ad: of Parliament abolilhing his Authority in Scotland , eftablifh- ed in the Kings perfon : And thefe pertain-* ing to Bifhops, Abbots, and Priors, his Ma- jefty acquir’d Right thereto by mere cuftom, 21. All Rights of patronage were original- fa) L. 14 in fin: ff.de Servitut : de Roje Ibid: cap: 5. (b) Tr a click} tit ; Kirks ana Rinefices, !y . r 58 > ly of the fame kind and nature. But came at length to be diftinguiftied into Ecclefiaftick and Laick. The former are thofe belonging to Church-men as fuch, that is, upon the ac¬ count of the Ecclefiaftick Benefices they pof- fefs. For any Right of patronage a church¬ man enjoys tawjuam cjuilibett or Jure Her edit a- rio , is called Laick patronage. Under the Denomination of Ecclefiaftick patronage, I comprehend fuch as hath flowed from the King fince the Reformation, as come in place of the Pope. Prelates were not properly Pa¬ trons, with refpedt to their Menfal, or com¬ mon Churches, For in the former* ( which they planred as Diocefans, and (erved by Vicars ) they, as Titulars, got the Fruits of the Benefice, and the Incumbent but a Sti¬ pend j now a Right of patronage doth not carry the Rents, but a Ample Jus Prsefentandi : And in the latter, the Bifhop did not prefent, but confer, pleno jure , by collation and infti- tudon, a full Right to the Benefice ; whereas Ecclefiaftical patronage is properly a Right of prefentation to a Church within another? Di- ocy, where the ordinary of the place mu ft give collation. And therefore, when a Br Shop acquired the patronage of any Church within his own Diocy, it became free, and was confer’d by him plena jure ; fince he could Slot prefent to himfelf. But then, the perfon collated in that cafe was no Stipendiary, ( if his predeceflbrs were not fuch before the Bi- fhops W toe Roje ad tit ; dj jure Pat mat u j . .. C 59 ) iliops Right,*.) but had Right, as Parfbn or Vicar, to the full benefit of theFruics, except in fo far as reftri&ed by lawful Tacks. The Lords of Erection, after the Reformation, got frequently the Gift of patronages ingroffed in their charters of Church Lands, and tho the fame did not bearRighcs of patronage exprefly; yet they Jexerc’d them, and adied as Pattons. Which was quarrelled by the King, but the point of Right hath never been determined by a legal Decifion. 22. Laick patronages are fuch as the King difponed before the Reformation, or Laicks have founded fince. And even thefe require to be conftitute upon a Signature from the Sovereign, (a ) Lay*patronages were firft let up by Juftintin, upon which a bafe Mer^ chandize hath followed ; and nothing hath more defil’d the Houfe of God. ( b ) Some Laick patronages pertained to the King Jure \ Privato, qua Founder or Endower of tae Benefice, or as being purchafed from privare perfons; or as the pertinents of Lands or Ba¬ ronies fallen in his Majefties hands by Recogi nition, or Forfeiture, as the patronage of the provoftry of Lincluden by the Forfeiture of the Earl of Dougins, the patronage of the Col- ledge Church of Dumbar by the Forfeiture of the Earl of March, the patronage of the pro- vofrry of Kirkhuph by the Earl of Fife's ForfeiJ ture. Sir Thomas Hope ( c J is of Opinion, ( 3 ) Mackenzie Obferv. Ibid, (b) B Burnet* Hijt of the Rights of Primes , Chap, 4. ( c ) Pratt, Tit, of Kirks and Be - nefices, ■ » • that ■ ■ - (6 o ) _ _ that all Laick patronages in Scotia hd did once pertain to the King, and were transfer’d by him to the Subjects. In fortification whereof he alledges, r* That when King Malcom Kennture difponed all his Lands to his Subje&s, referving only the cafualities of Ward and Marriage, he difponed alfo to them, at the fame time, all patronages within the compafs of the Lands convey'd. And the rather, be- caufe all Bifliopricks, Priories, and Abbacies then in Scotland had been founded by King Malcom and his predecelfors : Whereby they had power to referve the patronage to them- felvcs, and to ere& fmall Benefices. 2. That all the Lands, Churches, and Tithes in Scot¬ land belong’d to the King during Paganifm. And whatever the Pope attain’d to, or became Matter of after Chriftianity got Footing, did flow from the King* qualified with fuch con* ditions and Relervations ashisMajefty thought fit. The patronage of all Bilhopricks belong’d to the King. The Chapter us’d indeed the Formality of Election: But ccu’d not pitch upon any, fave him. the King recommended, he always being an a&ual Minifter of the Church. The Ele&ion gave Right to the Spirituality of the- Benefice • Bnt the Tempo¬ rality was not conferr’d without a charter from the King, after confecration : For which the Bifliop confecrate behov'd to do Homage, and fwear the Oath of Allegiance before Intro- miffion. OjAll patronages formerly belonging (a ) /ict 1. Pari, zt,J. 6, <• to ( 6 1 ) to Biftiops, are now in the Queens perlbn, by the Suppreflion of that Order : And tho they were not Patrons of their own Menial Chur¬ ches, yet her Majefty is. She is alfo Patron of all common Churches, fince the Diffolution; except luch as were difponed by her Royal predeceflors to private perfons. As for Col- ledge Churches, Chaplainries, and Altarages, thefe are under the patronage of their partieu-r lar Founders, and their Succeffors: But the Queen is Patron of molt of the Colledge Chur¬ ches. Patrons of Provoftries, Prebendries, Chapiainries, and Altarages holding of the King by Infeftmenf, are allowed to prefent the lame to Burfars in Colledges at their plea- fure : ( a ) And declared Superiors quoad the Entry of Vaflals of the faid Benefices. ( b ) But this is not to be extended, in the Opinion of the Lord Dirletoun , ( c ) to fuch as are Pa¬ trons by fimple provifion in the Foundation, nor yet to Ecclefiaftick Patrons. ( d) Vet Sir James Stuart her Majefties Advocat, in his excellent Notes upon Dirletouns Doubts, will have theAdf comprehend Ecclefiaftick, as well as Laick patronage : The principal realon of the USt being, that Chaplains arc out of ufe. Tho, at the fame time, he wifely fuggelb the convenicncy of making an ASt of Parliament to clear all thefe Niceties, whereby property may be any wife incumber’d. The 29. Akl, ( a ) Aft 1 2 . Pari. i . Aft 158. Pari. 12. J. 6. ( b ) Aft 54: Pari: i:SeJf: c Ch: 2: ( c ) Deuhts^mi QueJUws in tbt Lturo, Title Altarage ( d ) Bid, Title Chaplainrj. . Vai l 1 r 6a > Tarl. ii. J. 6. doth except from the Annexa¬ tion, Lands belonging to benefices of Laick patronage ,• that is, fiich Laick patronages as were duly eftabliftied before the Reformation. fa) But yet Rights ofLaick patronage granted before the Year iy6i, were declared to fall within the compafs of the general Submiflion, and the Kings Decreet Arbitral, in fo far as concern’d a compleat Maintenance to the Mi- nifter, the Tiends of other Mens Lands, and his Majeflies Annuity ; and only the remanent Tithes thereof to pertain to the Laick Patrons in price, or rate, in all cafes where they were in pofleflion feven Years of fifteen im- mediatly preceeding the general Submiflion. (b) It was fuliy debated, but not decided, November 1677, ( c ) whether all the other patronages formerly belonging to Monaflries, fell under the Annexation 1^87? It was urg’d for their being annexd j That, by the firft Words of the 29. AEl ,1 1 -Pari. J, 6. the Abbacies, &c . and all profits or Emoluments whatfoever belonging to them were annex’d, and confer quently patronages : Efpecialiy conlidering, how much it was the Interefl of King and Parliament, to have thefe depend upon the Crown, for preventing the malign Influence v of private Schihnatick Patrons- 2, In the Redudion drawn by Sir Tbomm Hops* all Rights made to the Lords of Erection of patronages formerly pertaining to Monaflries, were crav’d ( a ) Mackenzie Obfcrv. upon the AB 7. Pari, j . J.6. (b) 'AB 19. Pari. 1: Charles 1 . (cj In the Cafe of Stuart agaitifl the Laird v] Waterteun, to _ . i J ( % ) to be reduc’d as contrary to the Ad of A n» nexation. Upon which Redudion the Eredi- on-Lords fubmitted their Rights to thefe pa¬ tronages, and the King, in his Decreet Arbi* tral, determin’d them to have only Right to the converted prices of the Feu-Mails of their Superiorities, &c. 3. It was alfo contended, that the patronages were annex’d by the 13. and 14. Ads of the firft Parliament, Cb. 1. To all which it was anfwer’d, That patrona¬ ges were never annex’d as parts and pendicles, but always per exprejftwt, as in the Annexati¬ on of the Abbey of Dumferiing. ( a J And it is abfurd to think, that when the general claufe in the Ad 1587 did fpecify the mean- eft things* as the Service of Tennents, it wou’d have omitted patronages that are of fo great confequence, had it been the defign of the Parliament to have thefe annex’d. 2. If thofe having Right to Ecclefiaftical patrona¬ ges had ever dreamed of their being annex'd, they had certainly crav'd a Diflolution in Parliament, which no perfon ever did. Nor were patronages annex’d by the 13. and 14. Ads of the Parliament 1633, feing thefe do not mention them exprefly, and they cannot come under the General of Fertinents, for the Reafons forefaid. Farther, to fhew that King Charles the Firft had determined nothing as to patronages belonging to Lords of Eredion, the 12. Ad of his forelaid Parliament doth bear thefe Words, Likeas al[o the remanent points ( a ) Aft 189; P rrl: 13; J-, i . (■ «4 -> ef our /aid Gommijfion anent the "Patronage of Kirks, &C. ate net yet begun to be treated. Anno 15-84, the firft Fruits of all Benefices, except Laick patronages, were allotted as a partial Fund for ellablifhing a Horfe Guard to the King. ( a ) 25. The Canonifts tell us of many things, wherein Ecclefiaftick and Laick patronage differ, i. They allow four Months to a Laick Patron to prelent in i ( b ) and fix Months to an Ecclefiaftick. ( c ) Which Diftindtion was once Law with us : ( d ) But by the Att 7. Pari. 1, J. 6. Laick Patrons were alio allowed fix Months. 2. If the Lay Patron prefent an unworthy perfon, he m-y pitch upon another; But an Ecclefiaftick, by lo doing, Forfeits his Right for that bout, and is not fufFered to ac» cumulate prefentation upon prefentation ; ignorance being not fo excufable in him as a Laick. ( e > And that was the Reafon for allowing a longer time to Ecclefiafticks, than to Laicks to prefent in, ( f ) But then feme think the Lay Patron fhould not vary more than once,- ( g ) others are of Opinion, that he may vary as oft as he will. ( h ) Our Law ( z ) Act 137: Pari: 8: J: 6: ( b ) C: cum propter 27: Extr: de jure P&tronat: C: un:%: 1: Extr: eod in 6: Duaren: (le\S: Ecclef: Mini ft: & Bcnef: Lib. 5: C: y, Carpxov: Jus Conjijl : Lib: 1; Tit: 2: Def: 1 5: Les OEvres d'EpeiJf'es de Bene fees Ecaefz ‘l\m: 4 Tit : y. N 7: ( C ) Nov: 123: C: j: §: 2: d: C: tin-. §: j. C: eamve 22: Extr: de juri Patronat: Duarer. lbisi.Carpx.ov: Ibid: d EpeiJJ’es: Ibid: (d ) Regiam May ft: Lib: 1 Cap: 2: ^ c ) Bengaus deBcneficiis ad Verb: cum juo Reditu. C; 4 Part: 1 : §: 7: N: 10: d Epeiffes: Ibid : N: 14: & sy. Garcia de Benej. ; Tom: 1: P' 5= C: 9: N: an: (f Zoef: ad Tit: X. de 'Jure Patronat: N: 45: ( g ) Arg: l : 89: §: 1: ff: de Reg Jurist Garcia. Ibid; N; 2 14; ( b ) Zee/; ibid; N\ 48. allowed allowed any Patron to alter his prefentation, and one being iound unfit to name anotherjand that as oft as the perfons prefented were re¬ jected : So be, all the prefentacions were with¬ in fix Months, For one prefentation within that time doth noc fo interrupt, as that he, the Patron, may prefent again within other fix Months. Unlefs thofe having Right to the Jus Devolutions } did hinder the prefented perfons Admiffion ,• \yho cannot pretend to any benefit by their own fault, (a) But then, thoa Lay Patron may again prefent after his firft Nominee is rejeded as inefficient • he cannot or himfeif recede from the firfi Nomination, f ^ ) 2* In the cafe of two prefented by an Ecclefiaftick Patron, the firft prefentation was preferable. But two perfons being prefented by a Laick Patron, the Biffiop had his Option to give collation to either of them. ( c) 4. The Pope might prejudge an Ecclefiaftick^ but not a Laick patronage • ( d ) That is, at any time before the prefentation fuljaverat aures or dinar iu ( e ) Patronage in cafu dubio # is preiumed to be Laick, and notEcclefiaftick: Becaufe, fay the Do&ors, we are not bom Clergy-men, butLaicks, and are ftill prefum’d to be fuch, while the Ecclefiaftical character is not mftruded. (/) Lay patronages frequent¬ ly turn Ecclefiaftical in procefs of time, either * ( a ) Mlkenzie Ibid: ( b ) De Roye ad Tit: X de iure Patrenat: Cap; 24. Zoef: Ibid. ( c ) C; «uUm L Extr: de jure Pair mat. Bengaus, Ibid: N. 9: ( a j nZ «4 ( o m%V{ rnt“m: c“t: 7: (e) iU £ accord- X 66 ) according to the Terms of the Donation ; or 6y the Lay Patrons making over to Churches his Lands and Efface with annex'd patronages. ■* 24* By the Canon Law, altho the Right of patronage tranfit cum Univerjitate > unlefs it be Ipsciaily excepted: ( a ) It cannot befeparat- ly foid, ( b ) as being Sfiritualitati Annexumy and not in Gommercio. Nay, fome are fo nice and fqueamifh in the matter, that they’ll not allow Lands to be fold any thing dearer, up* on the account of annexe patronage* ( c ) But with us patronages are bought and fold in the fame manner as any other Right. Some¬ times they are tranfinitted as annex’d to Lands in charters of Burghs, Baronies, orLordfbipsj and (omscimes by diftinCt Rights, and then they pafs without Infeftmenc as jura Incorpo - ralia. ( d ) Yea, not only is a Right of pa¬ tronage tranfmiffible by Difpofition without Infeftment ; but alfo it was found, that a per- fon, in whole favours one was ordained by a Decreet Arbitral to difpone fuch a Right, might effectually authorize by his confent as Patron the Deed of an Incumbent ; fo as his Succeffor in Office cou’d not juftly quarrel the fame. ( e ) ThisDecilion feem’d hard to my Lord Dirletoun , becaufe none can effectually confent as Patron, who cannot prefent ; and ( a ) C: ex Liter is 7. Extr: de jure Patronat: ( b ) C: quia Clerici 6: C; de jure 1 6: Extr : eod : ( c ) Z eef ad lit: X. de \ jure Patronat. N: 20: Bark of. Collect: Doff: in C: ex Literif de jure Patron : N: 2: ( d ) Stair Inftitut: Lib: 2: Tit: 8: §: 3 $: ( t ) July 6. 1 666: Parfon of Morwn againjt the Lairds of ■ Beirfoord and Beinfoun. J the I ( 67 ) the patronage might have been compriz'd from, or difpon’d by him who was ordained to denude. ’Tis true he was not lo denuded by the Decreet, but that nocwithflanding thereof, before obedience given, the patro¬ nage might have been compriz’d from him, or difponed to another* and that other,as having the more formal and compleat Right, would have been prefer’d. But there being no fuch competition, ic was not thought competent to a Minifter to reduce a Right granted by his predeceffor, upon that ground. In the Opi¬ nion of one of our greateft Lawyers, (a) a Right of patronage by the Foundation, being provided to one, and not to him and his Af- figneys, with a Quality, that he failing to prefent within a certain time, another might exerce the priviledge : The Patron infihute may difpone the patronage, or it may be ad¬ judg’d from him, notwichftanding the Subfti- tutioh. Yet Bill lo, as if the lingular Succef- for do not timeoufly prefent in the Terms of the Foundation, the Subftimte may. Where patronage is incorporate in the lame Charter with Lands, Seafin of the Land is fufficient, without neceffity to take fpecial Seafin of the patronage : As petty Cuffoms in the like cafe may be confiieute by a Charter, without Sea- fin. ( b ) A R ight of patronage being annexe to Lands, is tacitly carried by a Difpotition of thefe Lands j ( c ) unlefs it be therein fpecial- f a ) S: J: Stuart Qiieens ddvtcat: (b) July 5: 1 Gyi: Sheriff of Forreff contra Town of Selkirk: ( c ) D Epsijfes Tain: 4: Tit: 3; N; 1 7: Craig: Feud: Lib : 2: Ditg: 8, ly * » ( 68 .) Jv excepted: But unannex’d patronage is not fo convey’d, ( a ) Yet Barony and Benefice being nomina Univerfitatis , do carry patronage as well as Milns, or Salmond-Fifiiing l and that by Refignation, Appryfing, Adjudicati¬ on, Recognition, or Forfeiture. 25-. The Canoniffs hold, that a Patron may¬ be excluded from the ]us Vuefentandi, either for a time, or Jiwpliciter. The Grounds for a Temporary Exciufion of a Right of patronage, or rather a Sufpenfion of the Efifedt on e are, 1. An EcclefiafHcal Patron, by prefenting an infufficient perfon, lofes his Right for that bout. ( b ) z. Excommunication of any Pa¬ tron, or his falling into Herefy, makes his Right to ceafe, or fleep while he continues in that State. ( c ) And tho our Law hath tak¬ en away the civil Sting or Pains of Excom- : niunication : ( d ) It doth not allow Popi/h Patrons to difpofe of vacant Stipends for pious Ufes, but by Advice and Appointment of the j Presbytry. ( e ) If a Patron don’t apply I vacant Stipends to pious Ufes within the Pa- rifb, except they be vacant Stipends within the Synod of Argyle^ he forfeits to the Presby¬ tery, his Right of Adminiftration for that, and the next Vacancy. ( / ) Patronage is fim* fliciter or totally excluded by prefcription of I 4o- Years, (g) , . I 26. The Exception of Decennalis & Trien* nalis PofoJJio, was not relevant againft the Pa- I ( a ) Ibid : ( b ) De Roye: Ibid : Cap: 38: (c) Ibid* ( d ) W and M: Pari: Sejf-.i Cap: 28: ( C ) Ibid: Cap: 23; ( f ) Ibid: ( g ) D* Roye; Ibu \ Cap: 1 6. tron. C 69 ) cron, in refpech of the Claufe .in the Rule of Chancellary, Dummodo per eos ad tjuos Prafen- tatio pertinuitj prafentati fuerint. And by the ; Aft 61. Pari. 11. J. 6. no Laick infefc in Lands < with the Right of Patronage annex’d, could : be prejudg’d by any long Poifeffion of an Ec- clefiaftical Intruder, while the Lands were Wadfet : But he Redeeming ■ - — - -4 CHAP. V. The Bifiory of Ecclejiaftical Revenues , from the Commencement of Chr lfti unity , till CommrjJionj of Parliament were appointed for Planting of Churches > and Modifying Mmijiers Stipends* fP" g ^HE Chriftian Church poffefs'd no fix'd Revenues, until about the \ |j fourth Century ,• except fome .JsL. Lands, or rather Fields and Gar- dens in Rome, and the greater Ci* $iesj which upon DiopUfans Perfecution were f '■ feiz‘d, feiz’d, and Confifcated. For fuch as fiie had before, were very uncertain and precarious; nay, rather a kind of occaftonal fubhdies ga¬ thered from the exuberant Charity of Belie¬ ver : out of which Ecclefiaftical Perions drew only fo much as fuffic’d for a necdfary Ali¬ ment : what was over being carefully imploy- ed for Relief of the Poor, and fuch like Pious Ufes. The Diftr ibution and Management of this Stock-purfe of the Church, was hilt com¬ mitted to the Apcfties ; ( <* ) and £hen to Bifhops. C y ) , _ 2. The Emperor Conftantine the Great, tur¬ ning Chriftian, chang’d the Scene, and the Church put on a new Face \ l cannot fay a better, becaufe of the infuing Corruptions. He bellow’d many Gifts and Favours upon the Chriftians, and built them Churches, which he provided with Rents for an Honou¬ rable Maintenance of the Minifters. He re¬ funded all Laws and Edids to the prejudice of Chriftians X particularly fuch as hindred People to beftow Lands and Inheritances upon Churches S and ordained that they fhould fucceed to the Eftates of Martyrs, or Confef- fors that died without Heirs. Ccnflantines zeal did carry him to do every thing for the Ho¬ nour of the Chriftian Religion that he could think on. Nay, farther, as Mr. Milton ( c ) exprefleth it, he wasfo Liberal a Nurfing Fa¬ ther to the Church, that he either overlaid, ( a ) Ms 4. 34, 35. ( b ) Secmt. Hiji, Ecelef, lib: 7. pp, 35, ( « ) Vol, 2 1 of bis Works p. 760. C 72 ) orchoakvt it with his fondnefs in the Nurfing* This Serene and profperous Seafon the Church injoved, fuggefted Fears to many prudent Chriftian Fathers, that it might produce a de¬ cay of Piety and Vertue, which put them upon Difpucing the Lawfulnefs of accepting Lands and Poffeffions. Some alledged that the Exemples of our Saviour and his ApofBes bound them to contemn the World, and to live in poverty, expecting no Reward for their Labours on this fjde of Heaven. ( a ) O* thers conceived that Courfe to be but tempo¬ rary, affirming the time was come to Crown the long fuffering of the Church, with the Bleffings promifed in rhe tenth of Mark. ( b ) The fu ll Opinion furnished a Pretext to Julian the Apoftate, for his Revoking the Churches Priviledges, and taking awav their Indow-r ments. But his Edi&s were R ever fed by Jo¬ vian & Valent inian. 3. When the Church came to get Lands and Rents, and to be incumber’d with Civil Affairs, an Imperial Law ( c ) was made an¬ no 407, Exempting the Clergy from looking after their Caufes, and allowing the Biffiops to conftitute Advocars or Defenfors for their Churches and Poor ,* who might negotiate their Law Pleas and ocher Affairs. Thefe Advocats were called afcerwards in Scotland \ (a) L. Thomafjin la discipline dc l' Eglife touch ant les benefices part 1. liv. 4. chap. 1. & 2. ( b ) verf 29. & 30. ( c ) Cod. Theodof. Dc Epifcop , et Cleric t tit. 2. 1. 38. . • ■. ' The (.73-) TheBHhops Bailiffs, in England The Stewards, and in Franca the Vicedams. 4. The Bifhops liv’d then in a Collegiate manner with their Clergy ,* and had commu¬ nity of Goods : and the Clergy were called Canons, quia^fecundum certcs Canones vivebant. But about the year 472, we read of a Famous Divifion of tjie Rents of the Church into four ; parts t of which one was to go to the Bifhop, I another to the reft of the Clergy, a third to the Poor, and a fourth for the Fabrick. Which the Learned Bifhop of Sarutn fa) obferves to have taken place as a Rule univer- fally for many Ages, all over the Weftern Churches ,* except in Spain , where the Goods of the Church were Subjected to a Tripartite Divifion, and the Poor excluded from any Proportion : Tho I find no Veftige of this four-fold Partition in Scotland. The Canons, who got thus their Provifion diftinguifhed from the Bifhops Portion, continued fome little time after in a focial State, and profeffed |r. one Rule of Life, eating and Beeping in the fame Dorter and Refectory : but wearying of this, they chus’d to have their own Apart- ; ments, and to be Matters of their own Diet. \ In order to which the common Revenue was fubdivided and parcelled out among them. And they from that occafion got a new gene* ral Name of Pret>. -’■Icries, befide the particular Titles of Dean, Arch-deacon, Chanter, Sub- - chanter, &c. befiowed on them upon thq ( 3 ) Hift.tfthe Rights of Princes, A \ account ( ' ; : account of peculiar Offices : and the diftin& Localities affign’d for their Subfiftence, were in the general called frebends, and in particular D eanries, Arch-deaconries, Chanceries, &c. But then the Canons turn'd lefs vigilant in their Miniftry. and Remifs in Difcipline, ne¬ glected to Aflift in the Chair, and took up their Refidence where they pleas'd, tho never fo remote from the Cathedral or Collegiate Body : and thereby moft juftly procur'd them- felves to be filled fecular Canons. When much of the Revenue of the Bifhoprick came to confifl of Parifh Churches annex'd, thefe that fell to the Bifhops fhare> were called Menfal Churches, becaufe his Table was maintained out of the Rents of 'em : and fuch were termed common Churches, as were allotted for the common ufes, and benefit of the Chapter, and in planting whereof the Bifhop with his Chapter had an united InterefL 5. ft was long before the Weftern Church own'd any other Name fave that of Bifhop, as the diftinguifhing Character of him who had the principal Adminifiradon ; And when any Bifhop had Jurifdi&ion ever others, fhe called him the firft Bifhop. The Greeks inven¬ ted a great many new Words to exprefs the different Offices of the Ecclefiaftical State : Such as the honourable Tides of Arch-bifhop, Primate, and Patriarch. But in procefs of time, the Ramify Church did not only adopt thefe,* but alfo the topping Characters of Pope and Cardinal were introduc’d ; Whereof the ( 75 ) one now a days is thought little Inferior to the Royal Dignity, and the other above it. 6. When the Ruling Order of Bifhops was fiift let up in Scotland , is not agreed on all hands. This is certain they were but a flying party, or a Minijlerium vagum , called Epijccpi Scotorum , till Malcolm Kenmurds time, who a [- flgn’d them particular DifrriCfs, and Dmcefes. But in procefs of time an Ecclefiaftical Hierar¬ chy was eftabliftied among us, confifling of two Arch-bifhops of St. Andrews , and Gtafgow ; Whereof the former Riled Metropolitan and Primate of all Scotland , had under him eight Suffragan or Subordinate Bifhops of Dunkielt Aberdeen, Murray , Brechin , Dumblane , Rofs, Caithnefs , and Orkney , and for his Chancellor or Viccar, theBifhop of Edinburgh: The latter had within his Province only three Suffragans, of Galloway, Argyle the J(les. St. Andrews was made a Bifhoprick by Kenneth the Second ; and the Prelate thereof invefted with the Cha¬ racter of Arch-bifliop and Primate of Scotland, by Pope Sixtus the Fourth. King Ailex(mder the Firft gave great Things to the Church of St. Andrews , particularly the Curfus Afri, or Bears Rcah ; and erected their Lands in a Regality. Arch-bifhop "John Hamilton was bang’d at Stir¬ ling for Treafon, (a) and was the only Bifhop in this Kingdom that fuffered by way of Juftice. The Rents of this Bifhoprick for (ome years were conferfd upon che Earl of Mortoun , ( h ) in Recompence of the vaft Charges of his Em- ( a) 1570. (b) 1571. V V baffy to England, who to Legitimate his Title to chefe Rents, procur’d John Dorvglajs Prin¬ cipal of the new Colledge of St, Andr ws, to be admitted and inftalled Titular. King James the Sixth bellowed the Profits of the See of St. Andrews, after the death of Biihop Adam [on, upon the Duke of Lennox ; who continued to injoy the fame, till the Temporalities of Bi- fhopricks were reftored by the Parliament i6c65* and retained the Rents of the Priory till Bi- fhop Spot(wood procur’d them to be annexed to the Biihoprick. The Provoftry of Kirkbugh was united to it with fome Exceptions, by the Parliament 1621: The Diocefe of St. Andrews takes in all Fife»(hire} with fome parts of , the Shires of Perth, Angus, and Merns. KingC '.barks the Firft founded and indowed the Biihoprick of Edinburgh in the year 1635: And Dr. William Forbes was the firft Biihop thereof. David Lindfay hisSucceffor had like to have been facrific’d 10 the Fury ofa Rabble upon the firft readingofthe Book of Common prayer in Edinb. July 1657. The B. of Edinburgh was made (what the Biihop of Dunkeld had been formerly) Suffragan or Vicar to St. Andrews , and Conveener of the Eledlors, and fo the firft ordinary Biihop. His Diocefe comprehends the Shires of Edin¬ burgh, Linlithgow , and Berwick , the Conftabu- lary of Haddingtoun and Bailliarie of Lawderdale. King David founded the See of Dunkeld : And befto wed the Lands of Auchtertuil, withdivCrfe others, upon it. Biihop Carden acquir’d there¬ to the Town of Cramond , with the Lands ad¬ jacent ; For which he Exeambed the Lands of M ucblei Muchler and Cambo. Mr. Thomas Lawdet got the Bifliops Lands on the North- fide of Forth ere&ed incq the Barony of Dunkeld ; And thefe on the South into the Barony of Aherlady. Alexander Lind fay Brother to the Laird ofEve- lick was frighten'd by the threatned Cenfures of the Affemb’y of Glafgow into an abjuration of Epifcopacy, fubmitted to Presbyterian Go¬ vernment (a) after he had been Bifhop, and accepted the charge of a particular Paritfb. The Diocefe of Dunkeld contains fome parts of Angus and Weft- lothian , and the Weft pare of Berth- jhire. King Malcolm the Second in Commemoration of a Signal Vitftory over the Danes at Murthlack in Angus^ founded there a Bifhoprick: Which he indowed with Rents of the Lands thereabout, viz. Murtklackt Clo - vethy and Dunmeth. King David ( b ) tranflat- ed the See to. Aberdeen: And inrich ‘d it with the Lands of Old Aberdeen , Sclaty , Goull 3 Mccr- croftt Kurmundy, Mowexlacb} Clat , Talynffiine, Rayne , Dawyot , and their Churches ; With di* verfe others Lands. The Diocefe of Aberdeen extends, it felf through the whole Shire of Aber¬ deen , and moft part of Bamtf and Merns. Lef ly and Spdtfwood tell. That Malcolm the Third eredled the Bifhoprick of Murray* But Sir J. Dalrymple doth not allow it to be fo antient. Who was the firft Bifbop of Murray , we find not • But Binius founded the Colledge of Ca¬ nons, and Alexander built the Palace of Kined- dore. * When moft of our Scots Bifhops withdrew (a ) Ann* 1639. ( b,) Anno 1142. \ into r 78 j into Englarid, to avoid the Storm which threat- ned them : John Guthrie adher'd to his Bilhop- rick of Murray , till he was put from it, ?nd then retir’d to his antient Inheritance of Guthry , in Aligns^ where hedied duringthe Civil Wars. Trie Diocefe of Murray contains the Shires of Elgin and Nairnt befides part of Inverness and Barnjf-jhtres. The Bifliopricks of Brechin , Dum * hlaney and Rofs3 were all founded by King David. The Church of Kincaid was diffolv'd from Brechin in the year 1597, andereded in a feveral Parfonage, and the Patronage difpo- ned to Sir David Carnagy. The Diocefe of Brechin contains part of sfngus and Merns. Gilbert Earl of Strathern gave a third of his Lands to the See of DumbUne. iSifhop GchiU tree acquired to it a great part of the forefaid Lands of Strathern . The Chartulary or Writes of the Bilhoprick of Dumblans are not to be found. Sir James Dalrymple conjedures they have been carried overSea at the Reformation by George Thomfon , or iome other Churcht-man of that Diocefe. The Temporality and Spiri¬ tuality of the Abbey of Cor{rcgal3 and Priory of Monimusk was annex’d to this See in King James the Sixth’s twenty fecond Parliament. (a)The jftQiop was Dean of the Chappel Royal, annex’d to the See of Dumb lane by the Parlia¬ ment 162 1» Robert Leigbtoun was the greateft Ornament of this Riihoprick: In whom moft of the eminent Vercuesofthe Primitive jBifhops feem'd to be reviv’d. The Diocefe oiDumblane (*) 1617. ednfifts confifts of part of Perth and Stirling Shires, John Le/fy who wrote the Hiftory of our Na¬ tion, and had been once a Senator of the Col- ledge of Juftice, was the laft Popifh iJiftiop of Rojs. He was Embaftador from Queen Mary to the Queen of England ; and afterwards reti¬ red Abroad, whether probably he has carried the Writes of the Diocie. The Cathedral of Channery} where the Bifhops Seat is, was de- rholifhed at the Reformation ; But fome part of it is fince Rebuilt. T&e Jurifdi&ion of the Diocefe comprehends the Shires of Tayn} Cro¬ marty, and the mo ft part of Invernefs-fkire. Fern was annex'd to the Bifhoprick of Rofs in the year 1617. According to Lejly and Spotfoood, the Epifcopal See of Gaitbnefs was founded by King Malcolm the Third • But Sir James Daj- rymple makes that Foundation to be of a later date. The Story of the Caithnefs Bifhops is re¬ markable, for that fad and unexempled Tra¬ gedy acted upon Bilhop Adam, (a) Dornoch in Sutherland is the Bifhop of Caithnejds Seat ,• and his Diocie comprehends the Shires of Caithnefs and Sutherland. ’Tis becaufe Orkney was long fubjedt to the Norvegians , that we have no an- tient Accounts of that Bifhoprick. We find only four or five Bifhops there, before the Re¬ formation. Adam hothwel Bifhop ot OrkneyotiCQ depos’d for marrying Queen Mary to the Earl of Bothwcl , was the only Popifh Bifhop that imbrac’d the Reformation and continued in Office in Church and State. George Grahamt Bifhop of Orkney was mov‘d with the Cenfures > { a ) Anno ns;. of ■ ( 8o ) of the Aflembly of Glafeow to renounce Epif* copacy, and take up with Presbyterian Go¬ vernment. Bifhop Andrew Honyman being in Coach at Edinbulgh with Arch bi/hop Sharp in the year 1668, receiv’d a wound in his Arm by a Piftol Shot aim'd at the Arch-biihop by a perfon who fuffer’d Death for it. Buchanan in his Defcription of Orkney, fpeaks of a ftrange Teft that the Inhabitants put to their new Bi- fhops at their firft coming to them : Which is to drink up at one draught an antient large Cup or Goblet full • which they fay belonged to St. Magnus, who hrft taught them the Prin¬ ciples of the Chriftian Religion, He who performs it is counted a very Non-fuch of a Man • and they promife themfelves very plen® tifulCropts all his time. K.James the 4th. Qre&ed the Lands of the Bifhoprick of Orkney into a Re¬ gality, in the year 1490. The Diocefe confifts of all the Northern Iflesof Orkney and Shetland. Sir James Dalrymple informs that there was no _ Bifhop of Glajgow till the Reign of King Alex¬ ander. King David bellowed the Lands of Patrick upon that See. Robert Blackader was the firft Arch* bifhop thereof. As for the Story of St. Mungo , it favours too rank of the Legend. James Bethun the laft Popifh Bilhop being at¬ tainted of Treafon, fled to France in the year 1560, with all the Ornaments, Plate, and Papers of that Church, which he lodg'd in the hands of tb.z Car tbufians in Paris : To be reftor d when Scotland return'd to the Church of Rome. Robert Montgomery exchang’d his Bifhoprick with with the charge of a particular Parifh in f 8r J (a) The Shires of Dumbartoutti Renfrew, Air , Lanerk, with part of the Shires of Roxburgh , Wumfreis, Peebles , and Selkirk , made up the iDiocefe of Glafgow. St. Ninian is commonly called the firft Bifhop of Galloway or Candid Cafa : But fome think more probably that he was only a private Culdee , or at moft one of [the Epifcopi ~Scol>rum mentioned Chap. 2. N. 3. According to “bin James Dalrymple's Chronology, (h Cbriflianus is the firft Bilhop. The BilBop of Galloway was Vicar to the Arch bi&op of Glafgow , ( c ) and Conveener of the Electors a The Shire of Wigtoun , Stewartry of Kirkcu- brigbts Regality of Glenluce} and fome of Dum¬ friesshire^ are the conftituent parts of the Dio- cefe of Galloway, The Bilhoprick of Argyle was taken off the See of Dunkeld, about the year 1200 by Pope Clement the Third, at the moti- Ion of John Scot Biftiop of Dunkeld : And eredied in favours of one who could Speak and Preach 1 in the Irish Tongue to the People of the Pro¬ vince, who underftood no other Language. : Tne Seat was appointed at Lismore : And the i Diocefe is made up of Argyle, Lorn, Kintire 3 > Lochaber, and fome of the Well Ifles. Accor¬ ding to Bilhop Spotjwood's Account, the firft Seat of the Uilhop of the Ifles was in the Iflc i of M an: And when the Scots were diflodg’d 1 there, it was tranflated to Icolmkil. Otners difprove this. I fhall fay nothing of the Anri®, quities of that See, the Relations being fo 0) i>S7> (b) Collections concerning (hi Scottifl) Hijiory , p] 27], (c) Alt 2. Pari: 32. Ja. 6, *■ , ' V doubtful. . f 8a) doubtful, and different: .But only notice that the old Evidents of the Biffioprick were loft, and no Veftige remained to inftrud: how many Dignitaries were in it. Which oblig'd the Parliament 1617, to appoint the ^ifhops Chapter and Council to confift of the Parfon of Serhie as Dean, the Parfon of Rothjay as Sub. dean, and four Prebends, viz,, the Parlons of Kilmoir , Cumrie , Kdraiv , and Killean . The faid Parliament annex'd the Priory of Archat \ tan , with the Abbacy of Icoimkil , to this Bu fboprick. 7. It is own'd that Bifhops at firft lived with their Clergy about them in their proper Seats, or Cathedral Churches ; where the ftated Services, and publick Offices of Religion were only performed, and to which all the People of the Diocefe confidered as one Parifh refer¬ red, efpecially at the more folemn Seafons of Devotion ,* and that feme Presbyters uscd to be fent forth into the Remoter parts as Itinerant Preachers, for difpenfing of the Word and Sacraments to fuch as could not conveni¬ ently come to reap the Benefit thereof in the Epifcopal College. Nor is it controverted that the Inftitution of Rural Parifhesgotup, to the end Paftors might notice more particular¬ ly, the People committed to their immediate care. But then it is not fo clear when, or by whom, this was firft done. Some alcribe it to Pope Qionyfius about the year 270,* others. to Kuariiius about the vear 212. A third fort * w will not allow the Erection of PariOies to have been anv fingle Ad, but a. (low and gradual Work; ( ( 83 ) : ■ Work • the refult of fome confiderable time; and of federal Caufes. Telling us that tome times the miffionary Preachers found incou- ragement to lettle in a populous place, and by the liberal affiftance of the zealous Inhabi¬ tants, to raife up an Oratory, or Chappel for Divine Worffiip, with a little adjoyning Manfe. Sometimes Princes erected Conve- encies for Devotion a: their Country Houles, called Royal Free Chappels, with fufficient Revenues to Priefls to offlciat there. But more frequently Lords and great Men founded Churches upon their own Lands, for the ufe of their Families and Tennents : whereby the parifhes were of no Larger extent, thati the Founders Poffeffions. As thele came to be Divided among more Proprietars> the new Mailers obtain'd new Churches, with a pa¬ rochial Circuit commenfurate to their proper Eftate. Pretending frequently that ah their defign in the Matter was to fupply the Incon- veniencies of Difiance from, and difficult, accefs to the Ecclejia matrix, or the Original Parish Church, Thefe new Churches were therefore called Ecclejite fuccurfales , auxiliary Churches. But mu ft not be confounded with Chappels of Eafe : The former, and not tne Latter, being free, and independent upon the Mother Churches. ( a ) For a Chappel oi Eafe was ferv’d by fome Inferior Curate or Vicar, maintained at the Charge of the Reo» tor of the Pariffi. And thofe raiding within (a) fs.prtcifim} \6. qu, i, ii'» | " E z r 84 ) the Chappelry were bound to teftify their refpedt to the parochial Church, by partaking of the Divine Ordinances there, at Ea(ler, Chridmafs, whitfunday and other Feftivals, Some confiderable Heritors were alfo allowed to Ere£» ior Glafgow , and Mr. J^» MW for and i/e*. But vet the firft Ad: ot FnrUmen t chat 1 find for bounding the Minifterial Duty by diftin&Pa- rilhes is the Ad ioo, ml. 7. J: 6. king Char la the fir it gave Order for dividing the Town of Edinburgh into four diftind Pariihes, npon a Promife made in their Name, that they fhoiild provide each Parifh with two Minifters, and ioo VoW\d flerling yearly, witn a fufficient Dwelling-Hoiffe, for the ule of each Minifter, But thefe Panfbes are now increas'd to the Number of Eight, and every Minifters Stipend rais’d to 2500 Marks. 8. The Refolute Sufferings of Church- men under Heathen Perfecutiom rais'd their Cre¬ dit and filled the World with fuchTender- nefs, and Efteem for ’em, that every one ftrove to outdo one another in Ads ot Libe¬ rality towards them. And as tne Chrilhan Faith began to fpread, and get footing in particular Nations under the benign influence and Countenance of fecular Powers '< Churches were built by Converts for the preaching thereof, and for Divine Service, more or lets Magnificent according to the different Orders of Church-men they were defign’d for j and alfo indowed proportionally with Lands and Poffeffions, or lithes, or with botn, Cathe- F 3 - dyals C my drals were built for Bifbops • Collegiate Chur¬ ches for fecular Canons, to fing Mafs in ; Parifli Churches for preachingPriefts ; and in the wider Parifhes, Chappels for private De¬ votion. Chanterie* and Altarages were foun¬ ded in Cathedra! and Collegiate Churches for MaOifving j befides many (ingle Prebends up and down, here and there. To promote this pious Fervour, the EcclefiafticaJ Capons, al¬ lowed to fuch as had either indowed a Church, or built it, or given the Ground to build on, a power to prefent Minifters to fupply the Cure, and in joy the Benefice, cal¬ led the Right of Patronage. Which was ex« tended in favours of the Authors, and Indow«i ers of all other pious Foundations. Eutfome deny that Patronage is acquired by the giving of the Ground only. I have no Room for Forraign Inftanccs : There being fo many in our own Countrey, which fome time a day could vie and Compete with any in Europe for fine, and fumptuous Churches. I fhall begin with the Cathedrals ,♦ after I have defil'd the Reader to notice once for al), that when we fee many Churches in Scotland Bill retain the Name of Saints, we are not thence to conclude that fuch Churches were ere&ed by thele holy men, or in their time: But that in honour to their Memory, they were long after Deaicated to them, upon the ac¬ count of their being born> educated, or bu-? lied near fuch p laces. B. Sfotjwood , out of Boethius, tells us that Cr at Hi mb CratVinth (a) e reded in favours of the Chri- ftian Refugees under the iaft general Perfecu- tion, a ftately Church in the Ifle of Man, with fufficient Revenues, called by the Name of Sodorenfe Fanum, or the Temple of our Sa¬ viour ; and that the fame, while the Me of Man continued in the polfeffion of the Scots, was the Cathedral of the Bihop of the i;les, who is thence (tiled S odorenfis Epifcopus. But yet it is fcarce imaginable how a King o» the Scots could rear up a Cathedral there lot Strangers* while there was yet none upon the continent of Scotland near his own Palace. Lambertoun ( b ) finilhed the Cathedral of Sc. Andrews ; which was as Mr. S *ezfr ( c ) obferves probably the Biggefi in Chri\tendom , be¬ ing /even Foot longer, and two Foot broader than that of St. Peter at Rome, and for the height and imbellijhing of its Pillars and R oof, the beauty of its Stones, and the fymmetiy of its parts was one of the beft of the Got hick kind in the World. This Cathedral is now De moh (lied. John Acbaian Bilhop of Glafgow, built the Cathedral there : But it was not quite fimfhed till Wil¬ liam Babingtons time. When the Magsftrats once defign’d to pull it down,* to bund two or three Churches with the Materials on t > The Tadelmen conveen’d in Arms andoppos d them. B. S pot [wood fays that St. Nmian the firlt Bilhop of Galloway built a «■ hurch all ot white Stone, called St. Marlines after his (a) Intheyear 277, (b) Jn the year 13 (c)frt his Theatrum Semite. Grand r 88 J) Grand -Uncle the Bilhop of Tour's, and after¬ wards Whitehornx from whence the Bishop* of Galloway are ftiled Epifccpi Candida CaJ*. But Others difprove this Relation, and deny that St. Ninian was either the firft Bilhop of Galloway ; or yet in a capacity to ered: any fuch Church there. Mr. Thomas Lauder Bifhop of Dunkeld ', finifhed and dedicated the Church thereof in the year 145-4, and magnificently ador’d it Anno 1010. When Malcolm Kininmouth was Bilhop of Aberdeen , the Cathedral began to be built to the Memo¬ ry of St. Machar. Alexander Kininmouth caus’d demolifii that Church, as not being fufficiently Beautiful for a Cathedral, and laid the Foun¬ dation of one more magnificent* but did not live to finilh it. Henry Leigton much advanc’d, and beftow’d vaft Sums for the perfecting ofit. B. Lindfay Roof’d it, and Pav’d the Floor,* B. Vumbar Cieled it, and built the South Ifle ; And his Succeffor B. Stuart ereCted the Confi- ffory-houfe. This Cathedral that had been a matter of Nine Score Years in building, did not laft T wenty Years intire, when the Barons of Merns, in company with fome Aberdeens Men, demolifhed the Chancel, and f poll’d the Church of all its rich Utenfilsand Ornaments. Which being Shipp'd in order to be fold in Holland , funk, as my Author fays, not far from the Gridlentfs. The body of the Cathedral was preferv’d from Ruine by the Earl of Huntly. It is not certainly known By whom the Cathedral Church of Brechin was built. The Fabric k is pretty f 8? ) pretty handfom*but ou. firft Reformers demo- lifted the Chancel. Andr.B. of Murray founded the Cathedral Church of £/gm,oneof the rareft Monuments this Nation can bosft of: Which in length doth almoft equal St. Pauls in London , and furpafs it in breadtn. Who built the Ca¬ thedral of Dumblane I know not, bur Spotfwood lays, that Clemens , one of the Biftops thereof, reftor’d it when decayed ,• And Michael Ochil¬ tree another adorn’d it with rich Ornaments. Gilbert B. of Caithnejs Son to the Lord Vuffus, ere&ed the Cathedral there. I ftail not tell who built the Cathedral of Channery, the Seat of the Biftop of Rofs, becaufe I do not know? But our firft Reformers demolished it, and fome part on'c hath been fince Rebuilt, As for the Cathedral of Edinburgh , that vaft and magnificent Strmfture called St. Giles, it was of old a Collegia Church, and is now divided into four Paiish Churches. io. I advance from the Cathedrals, to CoK legiat Churches or Provoftries. Thofe were founded and liberally indowed by Princesand great Men. King James the Third founded the Chappel Rcyal of Stirling , confifting of Prebends and a Dean, whofe Office is annex’d to the Bishop of Dumblane. James the Fourth erefted the Provoltrie of Refialrig in Lothian. The Trinity coliedge Church in Edinburgh f was built by Mary, of Gueidres King James the Queen, who lies there intend. Kirkbugb in Sc. Andrews , was founded by the Earl of Fife. Dumbar in Lothian , by the Earl of March ; And . . , c go ) Carftorphtne bv John Forre/ler ^arrott of Car/} or* fhine, Dumbartoun in L ennox> by the Earl of Lennox. Lincluden in Nith/dale , by the Earl of JOowglafs. Chrichtoun in Lothian , by the Earl of Botkwel. Abemethy in Strathcrn , by the Earl of Angus. T ayn in Rofs, by the Earl of Refs. ^ Ainnihol in Carriffi, by Sir Gilbert Kennedy . M ethven in Strathern, by the Earl of Atbole . JDirletoun in Lothian , by Sir Walter Halyburtoun of Dirletoun. Lyunglafs in the M erfe, by the Earl of Hume . Seaton in Lothian , by the Lord Seaton. Kilmaures in Cunningham , by the Earl of Glencairn. And Rojlin in Lothian , famous for its curious Workmanship, by William Sinclair Earl of Orkney. There goes a Tradition con «• cerning the Chappel of Rojlin, That it appears all on Fire before the death of any of the Family of Rojlin, Many of the above-menti' oned Colledge Churches fell to the King by the Forefaulture of the Founders. Coliegiat Chur* ctaes began to be built after King Alexander the Third’s time, when the erecting of Monaftries was dilcouraged by the Popes ufurping the Right of Patronage. ThechiefChurch in great Towns was a Coliegiat Church ; As St. Giles in Edinburgh , &c. All the Coliegiat Churches within the Freedom of the Town of Edinburgh were gifted to that City by Queen M ary, the i ^th.oi March if 66, and the Grant was ratified by King Charles the Firft in the year 1636. 11. Thofe who cou'd not attain to the founding of Collegiate Churches, contented themfelves to found and endow Chappels, and Chappell ies, and Altarages, There are many Chappel- ( 9i ) Chappelries in Scotland , as the Chappel Roval at Halyroodhoufe , our Lady of Loretto7 s Chappel near to Mu[jtlburgb S. Katharins Chappel be- fide Edinburgh^ theCriftal Chappel at Dumfi-eis, &c. Mr. Thomas Lauder Bilhop of Dunkeld founded a Number of Chappels and Prebends; fome in his own Diocy, and others in Edin¬ burgh. The Town of Edinburgh, at the Re¬ formation, got a Grant of all’ Chappelries, Prebendries, and Altarages within their own Freedom. King Barnes 6 , in the Year 1 5-72, mortified to the Town of Brerhiny lor the ufes of their poor, all the Revenus belonging to any Chaplainrie or Altarage within the Cathedral Church of Brechin. But in a De¬ clarator at the Inftance of rhe Laird of Fmdourie againft the laid Town, (a) for declaring the Lands of the Chappelry of Coldbame to belong to him, as having Right by progrefs from the Chaplains of Coldhame : The Lords declar’d in his favours; in regard he was infeft upon the Kings Confirmation Charter, before any In-’ feftment taken by the Town upon their Gift of Mortification. 12. Having difmifs’d Cathedral and Colle¬ giate Churches and Chappelries ; I (hall, in the next place, give lome Inftances of the Foundations of Parilh Churches. It is report¬ ed, that one Rcgulus a Grecian having, in purfuance of Orders given him in a Vifion, put out to Sea in company with fome of his Collegues, carrying the Arm Bone, three ( a ) February 168-2, Fingers ( 9* J Fingers, and three Toes of the Apoftle S. ’'An¬ drew in a little Box. And after they had long fuffer’d under the horrid Storms of ill Weather, being call into that Port of Fife , now called S. Andrews , without any thing fav’d but the Relitfts : Hergu/lus King of the ViBs entertain’d them nobiy, and at their de¬ fire erected a Church, which to this day bears the Name of S. Rule from Regulus. Upon whom that Prince bellowed his own Palace with Earl of Athole3 Lord Brqcbin and Cortoquky. The Tithes of the united Parilhes of Dumbarnie , cPottieJ and Moncrief in Fertb Shire belong’d to the provofrry of S. Giles. The Parilh Churches of Sautry , Falas LempetldWj Weems , Kirkurd , Orme(lount and Gogar. were annex’d to the Trinity Colledge Church in Edinburgh . The Churches of Lin* tain , Duns , an&Gbirnfiie* with their Chappels, were united to the Collegiate Church of Pum- C 94 > bar. The Churches of Dalmahoys Haltoun , and Boningioun were annex’d to the Provoftry of Car ft orpbin. Some Parifh Churches were united to Colledges by their Founders. So James Kennedy Bilhop of Saint Andrews annexed the Churches of €«/n, Kembac k, Dininno , and Kilm meny to S. Salvators Goiledge founded by him. The Cure of thefe arifh Churches annex’d was fupplied by Vicar Incumbents. Who at their hrft Inditution had no fix’d Stipends, but only what the Parfons ( whom they did perfonate and reprefent ) was pleas'd to give, them, as a Reward for their Service: And were put in for a time, to ferve the Cure during the plealure of the Reprefentative Parlons. I call the Prelates of Cathedral and Collegiate Churches, Reprefentative Parfons, to diftin- guifh them from thofe who ferv’d the Cure themfelves in their own Parifir Churches, and enjoyed the full Rents thereof. Sometimes the Patrons of Churches, who were not qua¬ lified to ferve perfonally, and fome Parlons that had Pluralities, or found themfelves In¬ firm, I had aimed faid Lazy, got leave to of¬ ficiate by Subftitutes and Vicars. The Church finding Temporary Vicars inconvenient, oblig’d fuch as difcharg’d the Spiritual Care of Chur¬ ches by Deputies, to plant, for preventing Abufes, perpetual Vicars or Curates in them : So called, becaufe they continued during their Lifetime, and had Curam Animarum. 1 find a third and worfe kind of Hirelings had alfo crept into the Church in times of Ignorance and Superftition, under the Name oi Presbyte - ( 95 ) n coniuEUtiii that took Livings to Farm with* out any Titles Which practice was condemn’d as an enormous Abufe. (a) Sometimes only* the Patronage of Parifli Churches and Inferior Benefices, was mortified to Cathedrals, and Provoftries j to which the Prelates prefented Parfons, 14. When the Monks and Nuns got up,1 and began to draw together into Monaftries, they gain’d lo upon the minds of people by an outward (hew and prcfeffion of more than ordinary Stri&nefs and Holinefs of Life ,* that there was a general forwardnefs every where to make liberal provifion for them. Every body being poflefs’d with a fancy, that the prayers of fo many devout Men affembled in one place, would ftand them in great Head* parted cheerfully with their Lands, and Tithes to Monaftries : Others run into them, taking their Patrimony with ’em. Yea, that vain Opinion concerning the Merit of good Works, and Interceflion of Saints fo prevailed upon the Superftitious World • That our Kings, and Countreymen with their confent, frequently mortified Churches whereof they were Pa* trons, with all the Endowments of Lands and Tithes, to Religious Houfes. King David beftowed the Church of S. Cuthbert upon the Abbey of Halyroodbouje. King Alexander gave the Church of Lanerkt with the whole Lands, Tithes and Pertinents thereof, to the Abbacy of V ryburgh. William Lambertoun Biftiop of S. { a ) C. quQidam enrrmis 3; Extr, nt^r slots 'vices. Andrew; C 96 > 'Andrews gave unto the Priory there, the Churches of Dairjey , and Abercromby ; and procur’d to it from the King, the Church of Gordon in Mernis » Nicolaus B.of Dumb lane gave the half of the Church of Strowan to the Abbey of Inchctfrey, The Church of Kmcardin was cnnfer’d on the Abbacy of Qambtukenntztb i and the Church of Fifwic upon Coldinghame • K. Malcom 4. granted a Charter to the Monaftry of D umfermling of the Tithes of Perth. The Parijh Churches of Jttbefflanefoord and CraiU were annex d ro the Priory of Haddingtoun. Many Grants of this Nature are to be feen in old Charters. Nay, 28 Churches belong’d to the Monaftry of Paflys 36 to that of Kelfo ; and 52 to the Monaftry of Aberbrothock. In annexing of Churches with their Revenues to Abbacies, or Priories the King and Bifhops Confirmation was adhibited ; In regard their Jurifdi&ion, Rights and Cafualities were there¬ by impaired. Thefe annex’d Churches were ferved by Vicars put in by the Convent. Abbeys got fometimes the Patronage only of Churches mortified to them : And the Abbots prefented Parfons for fupplying of thefe. 1 y. Princes and great Men not fatisfied to enrich Religious Houfes alreadv founded, were adted and carried bv a itrange Zeal to ered new Monaftries, and Nuneries, and to endow them with Lands and Tithes: As the moft compendious way to Cve their Souls. I wave the many Religious Foundations made by Scots Men in other pares of Europe, particu- !arly in Germany, where, Buchanan (a ) telk tts> that Scots Men, even to his time, were Governours of thefe Monaftries : And only notice what hath been done of that Nature at home among our felves. Columba founded th© Monaftry of lcolmkil in Iona one of our Weftern Ifles; where the fcattered Monks werefirft ga¬ thered together under one Roof. This Mona¬ ftry, which borrows its Name from Celia Colum - ba, became famous in fucceeding Ages by the Royal Bounty of our Kings} and had a fort of Jurifdi&ion over the reft of theMonaftriesfor a long time.This was theBurial place of ourKings from Fergus 2. to MalcOm Kenmure , where 48 of 'em ly interLd. It was united to the Bi* ftioprick of the Ifles in the Year 1617. The Abbacy of Dtimfermling was founded by King Malcom 3, who lies buried there. In the Eredtion whereof certain Lands were referv’d to the Ksldees. At the general Diffolution it was firft given to Secretary Pitcairn , then to the Mafter of Gray , and laftly confer’d on Alex¬ ander Seaton, who by King James was made Earl of Dumferling. The Lordfhip of MujJeU burgh, a part of the Lands of that Abbey, was eredted in favours of the Lord Ehirlftane 5 and excepted from the general Annexation 1587. The Abbey of Coldinghame in the Merfe , which had once been plcnilhed with Virgins, was eredfced into a Priory by King Edgar » and into a Lordfhip in favours of Alex* tinder Hume by the Parliament 1606. King (a ) Mijl. Lib. 5, Alexander ' C 98 > ^Alexander thzFiift, Sirnamed IheFkrce, found¬ ed the Abbeys of Scoon in Gowrie, and S. 1 Colm, or Inchcolm in the Firth of Forth , and a Priory at S. Andrews in Fife. The Abbey of Scoon ( where the Fatal Marble Chair, the Coronation Seat of our Kings once flood ) was ereded into a Temporal Lord/hip in fa¬ vours of the Earl of Gowrie, upon his own Son the Commendators Refignation. But that Fa¬ mily being forfeited. Sir David Murray Comp¬ troller to K. James 6. was created Lord of Scoon , and then Vifcount of Stormonth. The printed Table of the unprinted Ads 1609 mentions the Eredion of S. Coins to the Lord S. Colm : But there is nothing of it in the Re- gifter. The Lord D own, whofe Succeflor is flow Earl of Murray , was Commendator of Inchcolm after the Reformation, and got the fame ereded in his favours. The Priory of S, Andrews was ereded to LudovickDukt of Leniicx Lord high Chamberlain, and Admiral of Scotland . But King Charles the Firft afterwards annex’d it to the Bifhoprick, And in time of Epifcopacy, it was the Primates Palace. K, "David, commonly Ailed Saint David, exceed¬ ed all others in his Immoderate Profufenefs upon Monaftries : Being juft fuch another Religious Spend-thrift as Ccnftantine the Great. He ereded and endowed the Abbeys of Jed - ktsrgh , Kelfo and M elrojs in levindale j New - hottle and Halyroodhoule in Lothian $ KinloJ[s in bAxrtay, Gambuskennetb in Stirling-Shut, Dun- drcnnanin Galloway, Holm in Cumberland : Be¬ sides two Monaihies at Neweajile ; and two - ", . ) Nunerics, ' ^ 77 / Nuneries, the one at Berwick, and the othfcf at Car tile. Whereby S, David, with what he bellowed on Bilhopricks, fo clip’d the Royal Revenue, and impoverilhed his Succeflbrs* that King Janies the Firft was ordinarly heard to fay of him /That be wm a fore Saint to the Crown* The Abbey of Jedburgh , except the Kirk Lands of Dalmeny, was ere&ed C a ) in a Temporal Lordihip to the Lord Hums , and afterwards to the Lord Roxburgh. The Abbey of Kelfo was bellow'd upon the Earl of Bothwel ; and he being forfeited, was annex’d to the Grown, But afterwards diffolv’d and ere&ed in favours of Roxburgh. Uelrofs was gifted to Ihomas Lord Winning, afterwards Earl of M< elrofj, and at length Earl of Haddingtoun. By whorh the Church Lands of Cavers , a part of the Abbacy, was difponed to William Dowglafs of Cavers. The Abbey of Newbottle was ere&ed , in a; Temporal Lordfhip with the Superiority of Prefiongrange to Mark Ker lord Newbottle% afterwards Earl of Lothian . . But M onkland befide Glafgow which belong’d to this Abbey was difponed to the Earl of Haddingtoun. Holy- roodboufe was ere&ed in favours of John THothwel, Son to Adam Biflaop of Orkriey , and is now her Majehies chief Palace in Scotland , Kinlojs in Murray ( formerly called Kilftos, from the plenty of Flowers there ) was made a Tem¬ poral Lordihip in favours of Mr .Edward Bruce Commendator of the Abbey : , Whole Son King Charles i. created Earl of Elgin $ and on his C a ) Atm 160C , Q z Grand ( 100 ) Grand Child King Charles 2. conferd the Title of Earl of Alisburty in England. Cambuskenneth was erected in a Temporality to John Earl of M arr. King Malcom 4. Sirnamed tbs Maiden founded the Abbey of Cowper in Angus , Sou- trey in Lothian , and the Priory of M amvel. C owpsr was ere&ed to the Lord Balmerino s fecond Son. and Manwsl to the Earl of Lithgoiv. King Wiliam ere, ( 1 *9 ) formerly held of the Church, are declared to belong to the King, and the Vaffals Heirs to be entered by Brieves out of the Chancellary,- without neceffity upon the Vaffals to renew their Rights from his Majeftie. Neither can his Majeftie quarrel the fame, being Con¬ firm^ by him, or his Predeceffors, for bygone Contravention of any Claufe or Condition in their Infefcments > nor for Diminution of the Rental, if it be not of the old Penny Mail, de liquido in Uquidum ; nor for Converlion of Victual into Silver Duty, or any other Caule : Except for Fallhood ,• or for not payment and performance in time coming, of the Duties and Services contained in their Infertments. This is the Subftance of the Ad. 2f. It may be alledg’d againft this Ad of Annexation j That the annexing of 1 opuh Benefices to the Crown, or converting them to civil and profane ufes, is a plain contra¬ vention of the Founders Will. But the Ad may be thus accounted for, i. Moil: of theie Mortifications were fraudulently elicited ^tom perfons impos’d on by ways and means of Prieftcraft $ and consequently null. ( a J 2. ’Tisthe publick Intereft, that. none make bad life of their property. ( b ) And fince nemo cavere foteft ne Leges in fuo Teftamento babcant lo¬ cum, ( c ) no Tettamenc againft Law or good manners is valid. ( d ) And therefore it is incumbent on the Orthodox Magiftrat, as ( a ) l: 53: f.de Regul: Juris: l: 15:/: de J urifi’Wwe. ( b ) §; nit: Inftitut: de bis qui fui wl tlieni juris. ( C ) li 55 : jf; de Le%*P; 1 , ( d ) U_ na;§: ( 120 ) iGo^sVicegerentjeo convert to fome honeft and neceffaryufe of fhe Republick, chat which was left for an unlawful ufe.UJSo did thePrinces and Cities of Germany at the Reformation^ defend¬ ed their practice by many Reafons extant at large in Sleidan. (Z>)But then one will fay, why were t^ey annex’d to the Crown ? The Reafon given for this in the A&, is, becaufe former Kings having impoverished theml'elves, by unjuftly and unprofitabjy mortifying a great part of their Revenue to the Secular and Re¬ gular Clergy ; the fame Should return to the Crown. From this it would feem confe- quential, that fuch Mortifications, as had been made by private perfons, Should have alfo return’d to them. But befides, that it would have been hard to find out the true Heirs of thefe Founders and Benefa&ors, after fo long 3 time : The Religious Houfes being dilfoiv’d, the whole Revenue did by Law fail to the King, as Founder General of them all medi¬ ately or immediately, who confirmed or con¬ sented to, or at leail connived at thefe Foun^ dations. 2.Thele Benefices had been originally - deflinate to maintain an Idolatrous and Super¬ fluous Woifhip, fuch as Maffifying for the Living and the Dead, Offices to charm Souls out of the PopiSh Prifon of Purgatory ; Invo¬ cation of Saints, and the conftant keeping up of Lights Night and Day for their Honour : Which doth appear from the Tenor of the ( a ) I: ds Adminijl: Rer: ad Civ it at: Pertinent: /: i<5: jf: de Ufu & Ufufnifiti Legato. ( b ) Comment ar: Lib: 1 1: amis x 5 3 7: & Lib ; 1 3; anno 1540* Foun- ( 1 21 ) Foundation Charters, that commonly bear fro Peccatis Eluendis , fro Anima , fro Redemptions Animat, in Remedium Anima Predeceforum, fro Salute i pro LuminaribusConfervandis , Now, that which belongs to a Falfe Religion comes under con^fcation. ( a ) 3. nJlius Junty ea (unt Domini Regis ; and thefe were fuch. For the o d Proprietars had no Right to them, after they were once difponed ; nor the Reli¬ gious Houfes after their Extin&ion. Albeit, where a Mortification is made, or a Legacy left to one Incapable at the time by a perfon who did not know fo much, it Ihould not fall to the King as caduciary, but remain with the Donor, orTeftators Heirs, {b ) fince the pro¬ perty was never transferred. (£ ) 2 6 Many new Erections of Church Lands and Tiends into Lordlhips and B ironies were made after the general Annexation; but with the burden of competent provifions to Mini* fters within thele Erections. Bifhops Lands only w'ere never eredled ; For that the King was refolv’d to re-eftablilh Epifcopacy : On the contrary, anno if 97, all Bifhopricks were ordained to be difponed to adl iial Minifters and Preachers. ( d ) But then fome Feus were fet before the Annexation ; fome common Chur¬ ches difponed by the King ; and fome Patro¬ nages with confent of the lawful Titular, and Ratified in Parliament ; The Caftle of S. An~ ( 2 ) /: 4: §: 1: & feqq: Cod : de Uareticis & Manichais, ( b ) l: y.fr: '& §: \:ff: de hi: qua fro non fcriptis habentur • h un: §: 2: & 3 : C- de Caduc: Tollend. f c ) Mackenzie Ob - (er-jion the AH 6 ; Park 1: (,b; 1 . (d; Aci 23 1; Park 1 5- 7= <*• ■ ' drew C *22 ) Ireivs was difponed to George Earl of Dumlar $ and the Lands of Lethetn and Monimail , with the patronage of the Church thereof, to Sir Robert Me foil of Mordicarnie : Ail which were fpecially excepted, fecur'd and confirm’d in the Act 1606 reftoring Biihops. 27. B. SpJtfwood tells us, that his Majeffy, upon fecond Thoughts, was forry for having pafs’d the general AcE of Annexation ,* and re¬ commended to his Son the Refcinding thereof as a vile and pernicious one.All Rights of Laick Patronage were excepted from it: Thar is fuch Lay Patronages as were lawfully conhiiute be¬ fore the Reformation ; arid not thefe the Ring had Right to as coming in p'ace of the Pope, and which he difponed to Laicks • For the latter are Bill accounted as they were origi¬ nally Ecclefiaftick Patronages. Provoftries and Prebendries of Collegiate Churches, Al¬ tarages and Chaplainries having been founded and doted by Noblemen and others for their own Eafe, and Spiritual Advantage ; they were thought to have more Interefi chan other Patron? in thefe Benefices, and therefore were allowed after theileformation to difpofe upon them for the Entertainment of Burfars in Coiiedges, without regard to the ufes they were originally deftinate to by the particular ' Foundations. ( a ) Thefe being unlawful in a Proteifant Countrey ; and the liberal Edu¬ cation of Youth a matter of general concern, • (2 ) A& 12; p arb, I; Aft 15S: ?*rl: 12; J: 6: Act 54; Pari; 1, Ch: 2. being ( 323 ") feeing at that time very much obftru&ed, and many a good Genius for Learning crufh'd, through the poverty of Parents not able fo maintain their Children at Schools or Col- ledges t It was judg’d the molt reaoy Expedi¬ ent for remedy of this Evil, to indulge Patrons of thefe kind of Benefices to preienc Burfars to them one after another; who might have Ru-ht to the whole Fruits and Profits thereof during their time. So that thefe Benefices were only fuppreft in fo far as concerned the Popilh Offices of Religion therein perform¬ ed Out of feme Collegiate Churches Paiio- n a*geS were ereaed. The Lord Chnchtom as Patron of the Parifh Church of Chrichlcun having, with confent of the ArchfBiihop of S. Andrew i * to whom Lochefuharret belong d as a* Menfal Church, founded the Collegiate Church of Ihrichtoun out of the Rents of theie Churches ,• referving to the Bifiiop the Patro¬ nage of the Prebends of Vogrie , Armjhun, MidJletoun , and two Clerks, that got their Benefices out of the Rents of the lupprelt Church of Locb^uharret. Ihefe Benefices were in the Year ijpo difilolv d from the Codedge Church, and erected into the Parfonage ox Borthwick by a Charter under the Great heal. This Ere&icn was ratified by the Parliament 1606 ,• and declar’d to be valid, tho not pro¬ ceeding upon dimiffion of the Prebendaries, and wanting the confent of the Lord Chnch* toun as Patron of the Collegiate Church : Re¬ ferving to the Prebendaries lettled before the Ere&ion, the Kents of their Benefices during 3 - their / 134 ) their Lifetime. The Bilhop of S. Andrews did aifo racjfte the forefaid Eredion in the Year X6cc>. Many Parifli Churches were united to Bifnopricks : As the Parfonage of Glajgow to the Biihoprick thereof ; (a) the Church of Mdgle to the Bifhoprick of Dunkeld • and the Church of Kilmochormuck to the Bifhoprick of A rgile . ( b ) 28. The provision of Minihers being migh¬ tily difappointed, and other Inconveniences happening by the numerous Eiedions of Church Lands and Tithes * The Parliament annuhed all fuch as were made after the Ad of Annexation 1587: Except parts of Church Lands already ereded in favours ot thefe who fince that time had been Nobiiitate, and fitten in Parliament as Temporal Lords. C c ) But in regard many others, for the more fecurity, had obtained Ratifications in Parliament of their poflerior Erections j ail fuch as were •granted and ratified fince the Ad of Annexa¬ tion 15-87, and not therein excepted, were refeinded and declared nuil by the 19P. API. 14. Pari . Ja. 6. This was very di (obliging to the Parties concerned and their Friends ,• and therefore to quiet their Minds, all Eredions of Benefices not being of Cure belonging to Bifhopricks were afteiward ratified and con¬ firmed : And the general Annexation Ad re¬ funded, in fo far as pie judicial to the Effete of bilhops. ( d ) But their Superiorities werp (a ) Pari : 18: J: 6: anno 160 6. ( b ) Pari: 23: J: 6: anno 1621. ( c ) A$ 1 19: P arl; 12; 6. ( d j A& a: lari: 18: J a: 6. ( 125 ) not exprefly reftored ; Only there is a Clatife in the 14* 1. Pari Ch 1. That the Kings being Superior to Vaflfals of Erections (hall be 6uc prejudice to Bifliops and their Chapters of their Rights of Superiorities. Nor did the Chapters recover their Temporalities til! the Year 1617; and then the Priory of S. Andrews that had been formerly difponed to the Duke of Lennox , and the Houfe of Hamiltoun , which the Marquis of Hamiltoun had got Right to, were excepted. ( a ) 29. I now return to let fee what came of the Thirds. They were difpos'd of by the Commiflion of Plat, till the Reftauration of Bifliops in the year 1606. who by the 2 Aft 18. Pari : Ja: 6. were ordained to maintain their Miniflers upon the Thirds according to the ordinary Affignations; And by the third Adi of the fame Parliament, to give up fuffi- cient Rentals of their Benefices within a year to the Clerk Regifter, under the pain of so 00 Merks ,• That Miniflers might be the more allured of their Stipends to be appointed forth thereof. Miniflers payment out of the Thirds turn’d to very fmall account, far of two Valu¬ ations that were made, the one was fo inconfi- derable, and low, that their proportion came to juft nothing ; And the other in the year fho fomething more tolerable, was lb hardly made effe&ual, through the oppoftcion of perfons interelfcd, that all the Miniflers got by it was fpent in purfuing payment. So that fa) Ati 2. Park 22, Ja: 6, many' . , C 12(5 ) many chus'd rather to drop their pretenfions^ than to vex themfelves in vain with a tedious and expenfive Procefs. This allowance out of the Thirds, was to continue till they were competently provided out of the Teinds. (a) But the Thirds happening to be exdnguifiied, partly by the Reftitution of Bifhops, who got Right to their own Thirds; And partly by the Erection of Abbacies and Priories, &c. into tempoal Lordlhips, in which the Thirds were difcharg'd in Favours of the Lords of Ere&ion, they planting the Churches: That Fond could no longer ferve for a provifion to Minifters. Therefore Commifiions of Parliament were appointed to plant Churchesj and modifie Sti¬ pends out of the Teinds: Which turn'd the Books of Afiumption in defuetude ,* tho they Bill continue uleful for clearing the old Ren¬ tals of Benefices. 50 Having thus carried my Difcourfe con¬ cerning Ecclefiaftical Revenues down this length ; The Hiftory of Tithes would require to be more particularly confidered : But that is referv’d to the fecond part of this Book. I (hall therefore now fet my felf to treat of the Temporality of Benefices. And the propereft way cliar I can at prefent imagine of perform¬ ing this, will be to explain, 1. How Titlesto Benefices are acquir’d by Ecckfiifticks • And when they commence to take Effect. 2. What way they are extinguifhed, and when they ceafe to have effect. 3. To treat of Rights to (a) jef 10. Pari: i. Ja: BeneV ( 127 ) Benefices that may be acquire! from Benefici¬ aries. 4 Of Rights acquirable by Beneficiaries. 5. To confider benefic’d perfons in the triple capacity of Subjedis, Superiors, and Vaffals; And to fliew what is due to* and by them, in t’nefe different refpedb. Of which I fiiali difcourle in order as diftindfly as I can. CHAP. Vi. Bow Titles to benefices are acquired by Eccle - • (iafiickj? And when they commence to ta^e Effetf} Where alfo of Azwats* AN Ecclefiaftick doth acquire the Title to a Benefice by fome certain For¬ mality of Inveftiture from a perfon having Right to confer the fame. Bifhops were ele^fed by the Chap¬ ter of the See they were defign’d for, upon a write from the King called A Conge d' Eflire , That is a power to eledt, who yet were de¬ termin’d as to the perfon by his Majefties Re^ commendatory Letter. The Chapters EledHon being return’d, the King granted firft a Patent to the perfon eledied, carrying a Right to the Revenue, which pafs’d through all the Seals: And then a Mandat to three Biftiops at leaft for his Confecration, which pifs’d only the Great Seal per Jaltum. ( a ) If a Bilhop was (a) A iff i, Psrl; 22. 7s: 6. % translated ( 138 ) tranflated from one Diocefe to another, hs needed not to be confecrated of new again: For Confecration is an indelible Charader," that needs not to be renewed ( a ) The For¬ mality of Admiffion to inferior Benefices of Cure is by Collation, and Inftitution, unlefs where the Biffiop himfelf as Patron confers fleno jure; In which cafe Prefentation and Collation are the fame. Now when the Go¬ vernment of the Church is in the hands of Presbyters, the A& of Ordination and Admif¬ fion by the Pres 6y trie ferves for all. In Bend- fices that are not of Cure, fuch as Prebendaries or Chaplainries, Prefentation was fufficient without the Ceremony of Collation' or Infti- tution. 2. The Title to an Ecclefiafiick Office is of a quite different nature from all other civil Rights. Since thefe are the Stronger, when given for an Onerous Caufe, as an equivalent price,* Whereas all contracts for gain in the difpofing of the other, go under the odious character of Simoniack Pa&ions, and the parties are punilhed as guilty of Simony. For this Crime is more exrenfive than the fin of Simon Ma^us, from whom the name is borrowed. It was but rare during the firit three Centuries of the Chriftian Church: The Temporal Ad« vantages of the Clergy being then lels tempting to ambitious Spirits, (b) But turned more fre¬ quent afterwards, as the condition of the fa) Hughs Parfons Law, cha: j. (b) Thomajp.n l* difciflmt de V EgHfe part-.z. liv ; 3 . cheip; u, 3 . 4 u * ^ t • M> ? Church ( i*9 ) Church was bettered and exalted, with all the circumftances of Profperity, Riches, and Grandure. But Thomafsin (#?) obferves Simo - niacal Pa&ions to have been more common in the Weftern Church, and more authoriz’d in the Eaft. The Apoftolical Canons condemn as Simony the purchafing of Ecclefiaftical Dig? nities, whether by Money or Favour, or the influence of Secular Powers, (b) }Peter Damian diftinguiflseth three forts of Simony, One com¬ mitted by the hand in making of Prefents, munus a manu ; another- by the Tongue in undeferved Praifes and Flatteries, munus a lin¬ gua i A third by Officious Services, munus ab obfauio. ( c ) And ’tis a more heinous Fault with him to compafs an Ecclefiaftick Dignity by Services done to Princes and great Men, than by open traffick in Money. (4) Some of the Fathers look’d upon Si;w>»^as a Herefy, if not the Sin againft the HolyGhoft. (e) . j.The going to Rome pi making Applications to the Pope for getting Benefices in Scotland is interpreted Barratry with us,* To be tryed be¬ fore the Juftices or Lords of Seffion, and puni- fhed by Baniffimenc and Infamy. (/) And James Arc-bilhop of Glafgow was depriv’d after the Reformation for going Pari: a r. <■*/>::. (cj Macktnm, Ibid: §• 31 {d) ibid, ceived C I3J > , Cefved any thing from haul, but on the con¬ trary he lodg’d and intertain’d him. And the Prophet Abijab was fo for from accepting the Queen'sPrefenr, that he lent her away witha fevere Reprimand, and the mortifying predi- <&ion of the death of her Son. 6. I need not travel out ot our own Coiln* try to find Inftances of S lmonyi which have fometimes been covered with very thin pre¬ tences. Wirnefs, That Richmanf who to elude the Canons, wager'd a great Sum of Money with King antes the Fifth, that he (hould not b‘e prefei’d to the firft vacant Benefice • And thereby got himieif made Abbot of Holy-rood* hbufe. and then Bishop of Ro/s. 7. All Benefices Ihouldbe vacant beforetbey are filled: (a) That there may be no Vctum captanda worth alien# • and the Provision Ihould mencion modum vacandi. ( b ) But the Pope took upOri him to confer Beneficia vacatura ex plenitudine pote/latii. To annul which Provifi* ons, the Aff 86. farl. ns Ja. 3. was made. A Gift of a Benefice in thir Terms, when the lame (hall happen to vake, is ip fo jure null, (e) And a Prefentation being made to one, and to another after his deceafe • The Subfticution was found illegal and unwarrantable, (dj AU beit a Prelentacion to two perfons conjun&iy, (a) Tot: tit: de ctncejf. pr abend-. & Ecclef: nondum vac: F. d(Royey ad tit ; de jure Patron: Prolegom-, cap: 23. Bengauf , de Benefic: ad verb : concept cap: 1. Pr: N. 3 . (b) Arg. C. Pres - * lyteri d-ft. .24. Mackenzie Obfcrv: on the Act i.parl ; 21. Ja: 6. » ') Pope Maj: Prat-, ('d; 24 Jamtdry 1677. itwart c»n< . tra Nairn. I 2 and : K CA/tA*. CAO r . C *33 ) and to the Surviver, would be fufiained. By the twenty eighty Rule of the Roman Chancel- lary, Tantum temporh po(l vacationem beneficii effluere debet quantum /ufficit ill am ad notitiam j urn- mi pontijicis pervenire. Which Rule the Lords fuftained for the Reafon of it, without regard to the Lawgiver. And therefore Mr. William Melvil Commendator oiTungland, his Provision to the Abbacy of Kilwinning, upon the death of the Commendator thereof, was found null: For that his Predeceflor died at Five a Clock in the Afternoon of that day on which the Gift was dated,* So that it was not probable the King could know fo foon of the Vacancy, (a) 8. The fitft Years Rent of Benefices called jinndts , us’d heretofore to be applyed to pious and publick Ufcs ; but at length were claim’d by the Pope as his property. Some fay John 22,others that Boniface 9. was the firft who pre¬ tended to annex them as a fix’d Cafuality to the See of Rome : But Vclydort Virgil (b) runs their Original much higher. Annats were condemn’d and abolifhed by the Council of Bafily and the Pragmatick San&ion 5 but in a manner reftored by the Concordat. They could not be exa&ed in Scotland without the Kings confent* who got the fifth Penny ; and lometimes the Parliament difpos’d of ’em. ( c ) For even in the time of Popery, the abfolute Authority of the Reman See was much limited by our Parliaments In matters fa) Spotfwood Pratt: Title Kirk-Men and Kirk-Patrimutf ( b) De invent, Berm, Uh 8; Cap. a. l c ) J0 4: Pari; 3: Si¥nr. ~ ' touching touching upon the Regale, The firft Fruits and fifth Penny of Benefices were allotted in the Year 15-84 for eftabliCbing aHorfeGuard to the King, (a) which is now paid out of the Excife. But Minifters provided to Bene* fices under Prelacies were thereafter declared free from Payment of thefe firft Fruits, and fifth Penny j ( b ) And ’tis now long fince •ny fuch Exatftion was in Scotland. In England the Sovereigns pretence to the firft Fruits was always kept up from the 26. Year of King Henry the Eight’s Reign: Till of late, that Queen Anne out of her Princely Gompaflion upon the mean condition of the inferior and poorer fort of her Englifh Clergy, was graci- oufly pleas’d to pafs from it in their favours. 9. Annats with us being out of Doors, a be- nefic’d perfon has Right to the whole Years Kent, if he enter before Whit fun Jay • and to no part of it, if he be traniported or depos’d. But he gets the half Year, if his Entry, or Tranfportation, or Depofition be after Whit - fun Jay, before Michaelmafs ; and the whole, if he be traniported or depos’d after Michaelmafs, C c ) But a tranfported Minifter was found to have no Right to a Terms Stipend before his Collation, though after his Prefentation, air beit he preach’d once before that Term: Hav** mg got the Stipend of the Church he was traniported from. ( J, ) (t) J£l 137: Par! : 8:7: 61 ( b ) All 16: Pari: n: 7: o. (c) Stair Injlit: Lib : 2: Tit : 8: §133: July 24: 1662 : tveyms contra Cunninghams. ( d ) December is: i6j6. #$/« Itagi of Glafgovo contra Here ton of Jedburgh Parifh . I? G H A P$ ( m ) CHAP. VII. What way 7 itles to Benefices are extingttifi)* ed j and when they ceafi to have 'tiff eft} H E Cation Law doth make Bene¬ fices to vake mdny ways : But chiefly by the Incumbents Deceafe; ( a ) or Deprivation',* orRefigna- tion 3 ( b ) or by his being pro¬ vided to two incompatible Benefices', whereof the firfr becomes void upon his attaining pof- feffion of the fecond. ( c ) The legal group'd# of Deprivation with us are fet down in the i;2. and 133. Aits, Pari. 8 , Aits 28. and 32* Pari . 1 1. J.6. As to Resignations, fome were made referving to the Refigner the Fruits of the Benefice by way of Penfiori. V/hich me¬ thod was condemned by the Canon Law; and yet the Popifh Prelates at'the Refoimati-. on finding >h'ern fie ivtis going to be turn’d out, did demit their Benefices referving their own Liferents. Whereby the Benefices carpe to be ntgledled, fince they who ihould have ferv’d the Cure had nothing for their Pains. To correct this- abufe, ali fuch Contracts were Annulled by Authority of Parliament. And it wa§ declared, that no provifion thereafter to ( s ) Bengattt d- Bcnefic : ad Verb: C oncejfa: C; i: §: 8: N; 2: F: 'dc Roye ad Tit: de jure Patron: Pr’olegom: Cap: 23. . ( b ) ibid: Bengans, Ibid; §; 9; N; i. &(• ( C ) Ibid', §: 3. N; 3; &>pe May. Pratt, - • • ' any ( Itf ) anv Prelacy not vacant by the pofleffors De- ceafs. Forfeiture, or (imple Dimiffion, (hould be valid. (*) The Stipend of a Mimfter fufpended doth not vake : The bulpenfion be¬ ing only interpret to be ab Officio, non Better ^ 2 The time was, when the Goods of the infe¬ rior Clergy did at their Death fall asCaduciary to the Biftop ; and in like manner they did meddle with his, when he came to die. Covar* rttvias(c)doth infinuate,that the-Bilhops of Spain muft have the Royal Aflent,, before they can difpofe in Teh ament of their Ecclefiathcal Revenues; or dying Unteftate can be fuc* deeded therein by their lawful Heirs. And it was long a cuftom even in Scotland , that the King fucceeded as Executor to Bifhops : Which William Landel Bi/hop ot S. Andrews got difcharg’d by King David Bruce ; with liberty granted to Prelates freely to difpoie of their Goods by Teflament, and to their neareft o«. Kin to fucceed them ab Inteftato. The benefit of which priviledge he himfelf firft enjoyed. Now by our Law Prelates, that is, all bene- ficed perfons may have Heirs, and Heirlbip- Moveable. ( d ) Tho the Aft of Parliament (e) be only exprefsas to Barons, Gentlemen and Freeholders. 3. Benefic’d perfons have not only a Right to the profits of the "Benefice during their In- (a) AS r. P^rl: 9: J: 6. ( b) 3uly i6:j66i: Ker centra Parijk ofCarideri. ( c ) In Cap: cum in Officns de Le¬ ft am: N: o. ( d ) Stair Inflit : Lib: 3: Tit : 5: §■' 9' Mackenzie Obferv: tn the 54: M, 7; Park J: y November 28: 1623: fjg mtr& MusUnzit, (c) d, Aft 54. * - ‘ " cumbency '( 136 . ) cumbency, and a power of Adminiftration,’ or doing Deeds effectual after their Death, or remove: But alfo when they are gone, their Wives, Bairns, or neareft of Kin, get a por* tion called the Ann, Which, from the Ex¬ ample of the Saxon Reformed Church, King James 6. introduc’d here by a Letter to the General Aflembly ratified by them. This Ann is now determined to be half a Years Stipend or Rent of the Benefice, over and above what was due to the Defun#. That is, if he fur- vivq Wbitfunday, the one haif of that Year is due for his Incumbency, and the other as Ann : And if he die after Michaelmafs , the half of the next Year * goes for the Ann. (a) But yet a Minifter having ferv’d the Cure till Whit f unday 3 was found to have no Right to that half Years Stipend ; in regard he did not take the Teft before the firft of January 1682, as all in publick Office were appointed to do : ( h ) Albeit had he died before January 1682, his Representatives would have had Right thereto as Ann. > The Ann is equally divided betwixt the Reli# and the Children ; or failing thefe, betwixt her and the neareft of Kin. ( c ) If there be neither- Wife nor Children, it belongs to the neareft of Kin, ( d ) and extends to the Rent of the Glebe, if there be no new Intrant, ( a ) AB 1 3 . Pari. 1 *Se£ 3. C h. 2. ( b ) February 1685: Hume centre^ Galbraith. . ( c) Stair Jnjiit. Lib. 2. Tit. 8. §. 34. Mackenzie Qbferv. on the 4. AB, 3. Parl.^Mary. ( &) July 6. 1 66s Golvil contra Lord Balmcrinoch. June 24. 1663, §srim,zeonr contra Executors of Murray, 0. " (a) other- C 137 ) (a) otherwife not. For if there be an In¬ trant, both Manfe and Glebe belong to him; and neither ot ’em fall under the Ann s unlefs the Glebe was fown by the Defun6b and the Cropt upon the Ground at the Intrants Entry. ( b ) An Ann will be due, not only upon the Death of Bilhops and Minifters 5 but of any other beneficed perfon ; tho not upon a vo- luncar Renunciation of the .Benefice. C e ) It needs no confirmation, (d) Neither can it be difponed to Strangers by the Pefun C FI A P. C >38 ) CHAP. VIII. Concerning Rights to Benefices that may be acquired fiont Beneficiaries . BY the Canon and Civil Laws, th? Patrimony of the Church is not alie¬ nable. (a) Except, x. For pay- rrient of the neceifary Debts of the Church contracted for upholding the Fabrick, and for the Defence of theChri- Oian Religion againft the Inful ts and Machi¬ nations of Hereticks or Infidels. 2. For $ pious Cau(e, as to maintain the ftarving poor, or to Ranfom Chriftian Captives from Infidels* 3. For the greater Good of the Churches where the Lands are not other wife fo improvable. ( b ) And becauie Ecclefiafiicks finding them- felves but Adminiftratprs or naked Liferenters, plight have poffibly been tempted and pre¬ vailed upon, by the Influence of Friends and Kinfmen, to dilapidate their Benefices, to the prejudice of Succeffors i their management £nd power of difpofing was, by the Canon Lawj put pnder the Check of fome Limitati^ ons. For no Prelate, whether Regular or Secular, could do any thing material, without confent of his Convent or Chapter, and alfo ( a ) C„ Sine Exceptions, 52. Cauf.12. Qu.i. C. nulli lice at S- Extr. de Rib. Ecclcf. nm alien, l, 14. C. M SS, Ecclefas* i b ) GiojJ] in Gw/, ja, a; g C *39 •? etf the Patrom if there was one ; ( a) nor in¬ ferior Beneficiary, without content of his Patron. Ana even Deeds done with co tent as faid is, werely-b e to certain Rcftriftions of time, and an Onerous Caufe aod to be performed with foleran Formalities, v 2. Ail Ecclefiatiical perfons entring to Be¬ nefices at the Kin^s Prefen ration,1 were ordain¬ ed to find Caution, before 'expecting of the Signature, to leave the Benefices in as good cafe as they found them. ( b ) Minifters are exprefly difchargxl to dilapidate their Bene¬ fices, by fetting them in Feu or Tack, with Diminution of the Rental paid at their Entry^ under the pain of Deprivation ; befidts the Nullity of the Right. > C c) Arid Rights of that nature granted by Prelates are alfo null! ( d) To eipde which, the benefic’d perfoii did not giye down of the Number of the Rental Boils but converted them to Money at very inconfiderable prices. For obviating whereof, iuch Converfions of Vi&uai Rent into Money below the true value was prohi¬ bited. ■ (e ) But the price that the Bolli gave the time of the Converlion is only confider- ed : Since both Parties took the hazaid of the tiling and falling thereof,- And the Sum men¬ tioned in the Cortverfion is prcfumed to be the true value, unlcfs it can be proven, that the Victual then fold at higher prices. ( / J The dilmembring any part of a Benefice i , ■ * ■ ’ ‘ . ( a ) Craig Feu dor. Lib. i.Dicg. i. ( b) Aft n. Fart, to, J. 6 ( c ) Aft ioi. Pari. 7 J.6. ( d ) Aft it. Part. jo. 7. 6. ( e) Ibidem. ( f) Mackenzie Obferv. on the 11. Afy iS>. Pari. 7, 6. ' JF ( *4° ) is declared a Dilapidation, (a) But Unce all that Law requires of a Beneficiary is, that he do not prejudge his Succeffors, by leaving the Benefice under a lefs Rental and Value than he found at his Entry : His granting of Rights accotding to the Original Rental, or Feu Duty at his Admiffion to the Benefice, will not be conflru&ed a Diminution \ tho the fame has been irnproven Sc augmented during his own Incumbency. So it was found no Dilapidati¬ on in a Bifbop, to paL from Certification ob^ tained by him in an Improbation againft his VafTais, and to give a new Charter for the old Feu Duty. {b ) S. G. Mackenzie is of Opini¬ on, ( c ) that fuch a new Right ought to be fuftained, tho made by the SuccelTor of him who obtained the Certification 5 and that, for the fame Reafon, Rights flowing from bene- fic’d psrfoRs after Reduction obtained by them ok non folutam Canoncm* are good and un- quarreilable. But it wou’d feem, that Bilhops could neither dilapidate their Benefices dire&- ly, nor yet indire&ly, by omitting lawful De¬ fences in a Procefs • and that therefore Com* petent and Omitted was not relevant againft their Succeffors. g. No Ecciefiafiick flaould grant any Right to his Benefice, till once he is compleatly in- vefted in his Office. And by the ifi Aft, 22. VarL J. 6. A Bifliop had no Right to the ( a ) Act 3. Par. 18. J. 6. ( b ) 27. January 1676, L-'Jhoy of Caithness contra Imcs, ( c ) O bferv. on the 1 o 1 . AS , P*rL 7.J. 6. Temporality c *41 ) Tepfnorality, tiil after his Confecration. Yet it would feem that Bifhops eledfc. and Bifhops poftulat us’d to difpone or fet long Tacks of their Kirk- Lands ,• fince they are Difcharg’d to do fo by the 77. Aft, 9. Pari, Queen Ma - ry. And Bifhops ele&, Exercent ea qua funt jurifdiftionii • fed non ea qua funt Ordinls. ( a) 4 Becaufe the Popifh Clergy at the Refor¬ mation were put from their Benefices ; They were declar’d free of Warrandice, except from their own Deeds, or Rights granted by them, of? or concerning their Temporalities, annexed to the Crown by the General An¬ nexation r 5-87, ( b ) which was done only in majorem cautelam.For by the common law they could not have been reached for eviction proceeding upon a fupervenient Statute, ( c ) And nothing can infer Evi&ion or Recourfe, but what had a Caufe anterior to the Warran¬ dice. The Lois or Gain by all cafual Super- veniencies being the Purchafers ; unlefs where the Contrary is expreft. Church-men fhould warrand all Rights made for onerous Caufes by themlelves, or their PredecefTors in Office to him w ho is in pofilffion by vertno thereof. The Bilhop and Chapter are con- jundtly lyable to warrand Deeds done by him with their confent : But the Bilhop alohe, without the Chapter is nor. Nor is a Patron bound to warrand Rights granted by the ( a ) Greg. ThtloJ. Syntag. jur Part 2. lib. 15. cap. it. N. 23. Mackenzie Ob few. on the 77. Aft. ( b ) yift 29. and no. Pari. 11. J, 6. ( C ) Mackenzie on the faid tg. 40. Beneficed ( *4* > . Beheficed perfon with his Confent. Church*? Lands being difponed with abfblute Warran¬ dice, the Difponer was found obiidged to Warrand from an after defignarion of a Glebe : tho it was alledg'd that. the fame was evi&ed kx natura ret , and not ex defetfu juris. But no Recourfe was allowed againit him upon a. Defignarion for liotfe and Cows .Grafs to the Minifter, conform to the 2t AM, ^d SeJJ. of King Charles the idt ftiif Parliament, . ( a ) The Reafon of the Difparity was, bec&ufe the AB 21 was a> Supervenient Law, and de¬ clared to be Effectual from the year 1649, only as to Manles, and nde as to Horfe or Kines Grafs. But then fince the Retrefpedl is not e* prefly in favours of Glebes, it would feetn that they alfo fhould have been determin’d by the common Law. . . f. Rignts of Benefices acquired from Bene¬ ficiaries are either abfolute, a <»d perpetual, or temporary. The Latter is constitute by Tacks or Penfibns ,* The other by Ddpofici- On or Adjudication ; and both by Poifeffion, I begin with abfolute Rights. fa) Dirlettn Det'f. is. July 1 669. SECTION ( *43 ) SECTION I. OfDifpofitiotis a&d F eiis granted by Tied? affiefy of the Temporality of their B eue- fii.es* ADifpofition of Church- Lands is a volun¬ tary Alienation thereof, to be holdeti of the Difponer, or of his Superior, either Feu, or Ward, or Slsnch, .and con¬ taining ordinarly a Precept for Infeftment > both the ways of A me , and De me : The one bale, and the other publick. But a publick Ipfefrment in Lands to be holden of the Dif- poners Superior, is null until it be Confirm’d! by the Superior, (a) Nor will a bafe Inteft- ment without Confirmation exclude Record nition, or the cafuaiities of Ward, Non-en¬ try and Liferent Lfcheat, falling to the Supe¬ rior by the Difponer’s Death and Rebellion; And in a Competition upon Several Gonar-i mations, the laic Right full Confirm’d will be prefer’d. 2. All Feus of Church-Lands before the year if $8 ( when the Reformation began) rot Confirm’d, either by the King or the Pope, arc declared null. ,( b) Noras if rhe Popes Confirmation had been ever naceffary by any pofitive Law with us. He us*d indeed (%) Jtf 66. Pari. 5, J. 6. { h ) Sa 7! psn\ g, J. 6 to c 144 y to Confirm Rights made of Church- Lands: But that was a Privilege he had ufurped, as pre¬ tending to theuniyerfal Superiority & Patron¬ age of ail Benefices *and to the foie Right of be¬ llowing them, contrary tolheir own Canon- Law. ( a ) For Feus of Cnurch-lands prior to the Reformation, were and are ralid with* out any fuch Confirmation# The AH 7. Pari. 9. J. 6. being only made to obviate the Di¬ lapidation of Benefices, which was frequent about the time of the Aboliftiing of Popery. It wouM appear from the Narrative of the 190 AH, 1;. Part. J. 6 . That we had no an- tient Statute or Conftitution, requiring either King or Popes Confirmation to Ecclefiaftick Feus : But the neceflity of the King’s Con¬ firmation is cjear from R . Majeftatem , Lib. 2. Cap. 2;. for fuch Lands are de Eleemofyna Re¬ gis, and prefumed to have been given by our Kings for praying for them, and therefore ftiouid not be inverted to another ufe without,^ their confent. \Vhich Priviledge the Pope in his arbitrary manner, did afterward alfume to himfelf. 3. By an AH of Secret Council, September 10. 1 *>6 1 , and the *. AH, Pari. 1. J. 6. The feeking Confirmations from Rome , was Dif- charg’d under the pain of Barratry. And in Queen Maries tenth Parliament 1*64, the Queens Confirmation of Infeftments given fince the 8 of March s 5^8, is declared Equi-i valent to the Popes in former times 3 and his fa) C, mn liceat Papa qU. a. Confirmations C'M 45 ) . Confirmations after that year, are declared Invalid. By the 7. A8y 9. Pari. J, 6. all Feus of Church-lands, not confirm’d by the King, are null by way of Exception, .But this Aft •was afterwards reftridted and qualifyed by the 187. AB% Pari, 13. J. 6. which allows no fuch Feu-Infeftment granted by Prelats of old, and Authoriz’d by the confent of King James the fifth , or any of his PredeceiTors under the Privy Seal, to be quarrelled for want of Con¬ firmation. Tho the Ads of Parliament be only exprefs as to the Confirmation of Feus ,* Long Tacks for three Nineteen years ( as Balfour 5n his Pratticks obferves ) are efteem’d Alie¬ nations, and fiiouid be confirm’d. Yet in re¬ gard the Ads only require the Confirmation of ChurcfioLands, The Lords inclined to think, that Feus of Salmond-Fifiiing needed no Confirmation. ( a ) And found an Infeft- ment in an Office of Forreftry, whether h ol¬ den Feu, or Ward, with a Duty out of the whole Lands of an Abbacy, to be valid with* out Confirmation. ( b ) Nor was the Cir- cumftance that the Duties of the Office ajfe&ed the Lands , thought material. Seing a Conftitu- tion of Thirlage upon the Lands of the Ab¬ bey, to a forreign Mi In for a Thirled Duty, would not have been Null for want of Con¬ firmation. And yet at this Rate, the Abbot might have eluded the Law, and exhaufted the Benefice. I find it not decided, whe- ( a ) Mackenzies Qbfetnj, on Jet 7. Pari. 9. J. 6, , ( b ) \a r.ustrj 20, 1 666 f Lord Rentoun contra Feuers of Coldinghame, % " ' slier C 146 3 ther Tnfeftments of Church- Lands holdeii Ward need Confirmation or not ; Nor lhall I interpole my Judgement in the point : But Sir Robert Spotfwood fays, ( a ) That Confir¬ mation of Kirk-Lands is only mean’d of Feu- Lands. The Charter of Confirmation was not probative, except the confirm’d Charter was produc’d • and if the Confirmation was granted by the Popes Legate, or any Com- miffioner ; the Commiflion behov’d alfo to be produc’d. ( b ) Procefs was fuftained in a Removing from Church- Lands, upon a Seafin confirm^ after the Warning, but before the ; Summonds.| ( c ) Whether a Law re¬ quiring Confirmation to Feus of Ecclefiaftick Benefices, was abfolutely neceffary before or fince the Reformation, or not : There was » good reafon for it about the time of the Re- I formation, when the Popifh Clergy forefeeing clearly that their own Intereft in thefe Bene¬ fices could not laft or ftand long, did prodi¬ gally Feu them out to their Friends. 4N0 Prelate could Feu out any part of his Be¬ nefice without confenc of the Chapter or Con¬ vent,* at leaf! of the in oft part of the Members befide the Setter, (d) Whereof fuch as had two Benefices had two Votes. ( e ) But perfons fub- fcribing as Members of the Chapter, are pre¬ fum’d in Law to be Members, and alfo the ( a ) I'rat. Title , Confirmation of Kirk-lands. ( b ) Ibid. C c) Ibid, (d) Craig Feud. Lib. 1. Dieg. ir. Stair J/iftit. lib. 2. tit. S. §: 17. ( c ) Craig ibid. 'Mackenzie Qbfirv.jn the 2 Agtt 22, Fad, J. 6, Majority, J C *47 3 Majority', unlefs the contrary is proven : And this Majority is to be calculated without re- fped to Minors, or Abfents our of the Coun- trey. ( a ) And it there be no Chapter or Convent, the Prelats Deed is fufficiently for¬ mal, having the common Seal of the Convent appended with the King’s Confirmation. ( h) For of old the Appending of the common Seal did ferve for the Chapters confent, that be* Sng never done but at a foiemn A Meeting when the Members were capitulariteir congregate A all prelent, and the plurality confenting. But at length to obviat Fraud and Forgery, to which Deeds only Seal’d were obnoxious ^ Subfcribing was enjoyned by Aft of Parlia¬ ment. ( c ) Y et it continued the peculiar Priviledge of the A&h-bi&op and Chapter of St. Andrews, that their Seal did fupply their Subscription, (d ) The Canon Law requi¬ red a ChapterlyConvention to theAuthorizing of a Pielats Deed ^ as if emendicata et feparatim impetrata, did not import a Con- lent. But this is not only tacitely difpens’d with by our Cuftoni, as Craig ( e ) oblerves % but even by an exprefs Statute. ( f ) Nay,3 farther ,* an Inftrument of Refignation of a part of a Benefice was fuftained, tho of a date pollerior to feme of the Subscriptions in the Procuratorie. (g ) But no Subscription b)>’ any fa) Stair ibid, Mackenzie ibid. ( b ) Craig ibid . ( c ) Craig ibid. ( d) Act 3. Pari. 18. Act 8. Pari. 19. J. c. ( e ) L’d>. 1. Feud. Dieg. n. ( f ) Act 3. pari. iS. J* / ( g J Nev, i(?, ifa 4. Hope mm Minitfer irA^wll. 6lt CHS J of thefe Confenters will avail, if obtained aFv ter the death or deprivation of the principal Granter of the Right, or of any of the other Subfcribers. For they cannot be faid to con¬ fent who are not alive, and in Office together at the time, and where many fubfcribe fepai irately as Confenters, the laft confent is drawn back to the fir ft. (a) And therefore if a Prelate having granted a Right in Favours of one, without the Majority of his Chapter fubfcrib* ing, (hall change his mind, and difpcne the fame thing again to another with a full Chap- terly confent ; The fecond Right will be pre¬ ferred: Altho the firft came afterward to be perfe Some think fuch a Feudal Contract would be ipjb \ure null, as if it had been done by a Minor having Curators, without their confent ; Q, thers aliedge the contrary, and that as a Minor may without confent of his Curators make his condition better, and contra# profitably, fo may a Church-man without confent of his Chapter or Patron. I lhall not be pofitive in the Matter, becaufe the Learned Gratis a non- liquet, tho he feems to incline moft to the latter Opinion. ( b J 10. The King grants Infeftments upon Re- Agnation, periculo petentis , who gets no* farther Right than the Refigoer had. But an Infefc- ment of Kirk-lands by vertue of a Charter fub- fcrived by an Abbot, with confent of his Con¬ vent, proceeding upon Refignation without a a fpeciai Reddendo , and only relative to the for¬ mer Infeftment, was fuftained. ( c) For the King and Kirkmen are in a different cafe; and things pafs not His Ma jellies hand ex cert a / ci - entia. ir. Bidiops were allowed to Feu out their Ward-lands, when they were barren, to a competent avail ,• That is, for the retoured Duty at leaft, Aft 9. Pari: 23. Ja- 6. But this (a) Mackenzie Ob few. on the i z. Acl i.Varl.Ja: 6. (b) Craig Ibid- )c) January j 7, 1 666, Lord Rent gun contra the Feugrs of Coldivghftvt, Statute i *52 zs Statute was Temporary; For under the I aft Eftablifbment, Bifhops could neither Feu not Tax their Ward-lands. Both thefe being lookj ed upon as Deeds of Dilapidation. SECT. II. Of Tacky granted hy HLc cleft aftichy of the Temporality of their Benefices . AT A C K is a Contrail of Location,1 whereby one grants a Right to the Ufe or Profits of any thing during a determined time to another; For payment of a certain Hire, called, Hhe Hack-duty. We term the Granter of the Tack the Setter , and the Receiver the Tackjman. 2. The granting of Tacks or Leafes by Ec- clefiafticks to Secular Perfons, was once a rare thing : For when the Clergy lived in eommu-. nity, they cultivated their Lands with their own Hands, (a) But at length Tacks by Clergy men of the Rents of their Benefices turn’d fo frequent, and withal fo pernicious to the State ot the Church • That Laws were made for regulating and reltridling that practice. Which required to the Validity of thefe Tacks, that they be not fet with diminution of the Rentaljfpay’d at the Setter’sEntry /whether for fewer Bolls, or at an undervalued price; That 1 v ' v , ( a ) Bengteus jlc Benejiciis ctd.verb: cutn.fuo Rcd.tu cap. 3. §. 13. N. !,_/• . * r J . '• ' r • ' 1 . T -% -• • the _ ( *5? ) the Major part atleafl of the Chapter, or Con2 ventual Brethren confent, if the Deed is granted by a Prelate ; and if by an inferior beneficed perfon, that the Patrons confent be interpofed ; and the other circumftantial So¬ lemnities obferved as in the cafe of Feus. Be- caufe it might have been pretendedj Thac however Beneficiaries were tied up from leffen-j ing the fix^ and conflant Rent of their Bene¬ fices by Tacks, to run after their time ; yet the Cafuaiities of the Benefice fell not under the Prohibition. By the jiff 22. Pari: Ja: 6 . Tacks let thereafter by Bifhops of their Quota of Teftaments, and other Cafuaiities, are null, and no longer effectual than during the Setters Lifetime. A Bifliop cannot fee a new Tack before the old one is expired, more than a Right to the Benefice can be conveyed while its fall. For the beneficed perfon fo long as the Tack Hands, has only Right to the Tacta duty, (a) Sir John JSUs bet (b) Hates the Que- Hion, Whether Bilhops finding Handing Tacks of their benefice at their Entry, may fet new Tacks after expiring thereof: The benefit be-1 ing the fame by the New Tacks as by the for¬ mer ? But Sir James Stuart ( c ) thinks the cafe is noc the fame, and that they might by the like Reafon prorogate the old Tacks : But the A whether a Commifli- on to fet Tacks granted to a Parfon by his Patron, were fufficient to authorize Tacks made by the Parfon for longer than three Years. It was alledg’d, that no Commiflion from the Pstron could have that EfFeft, more than he could Renunce the benefit of the Ad: of Parliament, and leave the Parfon to him® felf. In regard, as Curators cannot authorize their Minors by Commiflion : So neither can the Patron, as Curator Cccltfia^ fo authorize ( 2 ) C: 20: Extr: de Jure Patron at: Mackenzie Obferv: on the joo: 14: Pari: J: 6. ( b ) d: -A& 200. (c) 6: 1666: Parfon of Morum cojttra the Lairds of Barf or d an,. Beinjleun. , the Beneficiary’. And the Law requiring his confent to the Deeds of the Incumbent, was not calculated fo much for the Patrons pri¬ vate Intereft, as for the Good and Advantage of the Benefice. As it is not necelfary for the Patron to be confenting at the fubfcrib- ing of the Tack; but his confent may be ad¬ hibited either before or after : So it is fufhci- ent, that this fubfequent confent be either Ex- prefs, by fubfcribing the Tack ; or Tacite, by Deeds of Homologation; For a Patrons con¬ fent was infer’d from his accepting a Right to the Tack: ( a ) Alcho this be authorizing in Rem fuam. A Tack made by a Parfon for more than three Years, was fuftained asfuffi- ciently authorized by the confent of one as Patron, in whole favours another was decern¬ ed to denude himfelf of the Right of Patro¬ nage • fo as the fucceeding Minifter could not quarrel the fame. (&) But prejudice to any deriving Right from the perfon ordained to denude, to claim preference as to the Patro¬ nage : I he Decreet being only the ground of a perlonal Action againft him for denuding. Tacks fet by inferior beneficed perfons for more than three Years without the Patrons confent, wou'd feem by the Aft 200. Pari. 14. jr. 6. to be firnply null : Yet fuch were found valid as to three Years. ( e ) As Tacks of Burrow Rents ( tho declar’d null by the 3 6. (* ) January 19: i66g: Earl of Athol e contra Robert [on of v.iovoi.n, ( o ) In the forefaid Cafe of the Parfon of Mormn / f-wrds of Bar ford and Beinjlom, ( c ) July 18: *66$- 7 ohnjl om contra Ho tedoim. Aft* C *5® ) rJ&, ?. Tarl. J. 4. if fet for a longer time than three Years ) fhould be fuftained, if reftridl- ed 10 three Years, (a) 5-. Ail Tacks muft exprefs the Contraders Names, Tack Duty, Ifh and Entry. But the want of an exprefs time of Entry vitiats not the Tack : For in fuch a cafe the Entry is underftood to be from the Date, or the next Term. ( b ) A Tack wanting a Duty is null quoad fingular Succeffors. ( c ) And Craig is of Opinion, that a Tack fet by a Prelate, tho for a Duty, is null, if the fame be aflign'd to the Tackfman. ( J ) But yet a Tack bearing a Difcharge of the Duty was found valid : Altho the Difcharge would not fecure at the Hands of a fingular Succeffor ; but would on¬ ly operate againft the Setter and his Heirs. ( e ) Since all Tacks muft have an Ifh, if they be fet to a determined time ; and that being elaps’d, to continue during the not payment of a Sum, or performance of a Deed : They are only effe&ual for the definite fpace expreft. A Tack during pleafure lafts no longer than the Setters Lifetime ; Quia ‘voiuntat morte extinguitur . { g ) But may be revoked fooner, if the Setter think fit. A beneficed perfon who fets a Tack to begin after the Ifh of a former, if he died medio tempore ; the fecond ( a ) Mackenzie Ohftrv: on the [aid 3 6: dft. ( b ) Decent » her 4: 1629: Qliphant contra Peebles: Stair InJiit'.Lib: 2: Tit: 9; §: 30. ( c ) Ibid : §: 29. (d ) Feud: Lib: 2: Dieg: 10. { e ) January 31: 162 7-.-, Rofs contra Blair. . ( f ) Craig , Ibid. ( g ) Spttjwood Pratt ; Title Tech, tier ctri x of Murray tmtrx the Tutor of Sanquhar. Tack ^ . ... ( *59 ) Tack would be null : The Entry on’t being confer’d in tempus indebitum after the Setters Deceafe, when he could have no Right, (a) For as Tacks fet by benefic’d perfons, who are not in titulo the time of the Entry, are void and null : So the Entry cannot ‘ begin either after their Deceafe, Dimiffion, or De¬ privation, fo as to oblige SuccelTors to Rand thereto; but only while they are in polfeffion. 6. Tacks before they are clothed with pof- fefiion, are only confidered in Law as other perfonal Rights ,* and are not efFedual again# lingular SuccelTors. But Tacks granted by benefic’d perfons are real Rights without pof- feffion, and will defend their SuccelTors in Office. ( b } For thefe are not properly lini gular Succeffors ; fince they do not acquire or purchafe, but SuccelTors Titulo bntverfali ; not unlike fingle Incorporations, who are tied by their PredecdTors Deeds s Or perhaps the Reafon is, becaufe Beneficiaries are but Adminiftrators, and it is the Church that lets. 7* Some Tacks are called Rentals,' as being the Conftitution of fix’d Rents. The Tackf- man is term’d Ren taller,. to whom the Here- tor indulges the priviledge of a kindly Ten* nent, or whole PredecclTors have been anci¬ ent Poffeffors and kindly Tennents. Pie pays a Graffusn, or Tome Acknowledgment at his Entry. Rentals run longer than ordinary ^ Ta) June iS.- i62^£>im^r Turwr, (b) Dsrfa turn Dvj,bjst s Mackenzie Infiit : Lib : 2: Tit ; 6: ( b ) Craig: Feud : Lib: 2: Dieg: 9. ( c ) Acf 68: Pari: 11: J: 6: Mackenzie Ob- ferv: on the j 'aid Aet. (d) March 13: 1632. Ahannay of Kirkdale contra Alton: Mackenzie , Ibid. SECT. II r: Of Ecclefiaslical Penfiovs. f A N Ecclefiaftical Penfion is a certain Por- il tion, or yearly Rent payable for a time, out of anothers Benefice. The Word "Penfion comes from fender e : Either becaule it formally depends upon theBenefice, as a jus ujusfruttus upon the Property ,* or quod (iatis Temforibus fendi foleat. 2. The Origine of Ecclefiaftical Penfions is not fo very clear ; But they feem to have been introduc’d at firft, as a mean of Subfif- tence to Incumbents, who through Sicknefs or Infirmities of old Age were turn’d unable to Officiat. Forfuch were allowed to refign their Benefices, referving to themfelves Penfi* ons out of 'em, as they might Live upon finite ably ( 16l ) ably to their former Character. As Church? men afterwards turn’d more Degenerate, and Benefices became Merchandize* Refigna- sions and Penfions upon more trivial Reafons were Suftained. When two Benefices were excambed, the greater or fatter benefice was burden'd with a Penfion in favours of the lei— fer, to adjuft and make them Equal. If the ’ Right to a Senefice was contravened, it was made lawful to compound the Matter by im- pofing a Penfion upon the Senefice in favours of the Competitor. 5. The Pope that great Ufurper of Ecclefi- sftical Rights, pretending to the (ole Power of burdening Penefiees with Penfions, did ex- erce it fo frequently, and arbitrarily in favours of fuch as gave him Money ; that the increafing of Simoniacal Penfions turn’d a Grievance here intolerable. For Remedy whereof, K. "James ift. relerv’dto himfelfthe Cognition of Pfnfions obtain’d at Roms., (a") And by the 4 Jet, 1 Pari. J. No Penfion could be purchafed out of any Penefice with¬ out content of the Polfelfor. EccefiafHcal Penfions Authoriz’d by Decreets or Pofleffion, were not prejudg’d by the generalAnnexation. ( b) And thofe granted out of Prelacies, not Authoriz’d by Decreet or SPolfetfion in the Prelats Life, and before the Act of Annexati¬ on were Null, f c ) Put yet PofTeffion of a part of the Penfion, though only for a Term ( a ) Aft j, Pari. i. J. j. in the Edition of the black Afts • f b ) Aft 29. Pari. ir. ]. 6. (c) Aft 137. pari. iz. J. 6. 1 1 / before C 162 3 before that Aft was found relevant to fuftaffli the whole. fa) The Lord Virletoun ( b ) Rates it as a Difputable Point, if a Bifhop will be perfonally lyable, or at leaf! if his Rents be atfedable for the bygones of an Annual- rent, payable out of the Bilhoprick to a pious Caufe ; which had fallen due, and run on in his Predeceffors time ? Her Majefties Ad¬ vocate Opinion f c J is, that the Bygones of a fimple Penfion will not affed the BHhops Succeffors • And he doubts if a Bifhop can grant a Penfion really affeding the Lands or Teinds of the Bilhoprick. Penfions granted by Church-men Ihould be fpecial as to the Tenents names, and Duties. ( d ) 4. By the Canon Law, Penfions affeding benefices of Cure, Exthguuntur morte grav antis , that they may not ly as a Difcouraging bur¬ den upon the next Intrant. And with us Bilhops could not burden their Benefices with Penfions for a longer time than their Right lalted ; that the Succeffors might not fuffer prejudice by any Deed of theirs. ( e ) But Liferent Penfions given by Benefic’d perfons, are not only due during their Life, but after their Deceafe out of their Ann. ( f ) y. We obferve this Difference betwixt Secular Penfions granted by Laicks, and Ec- clefiaftick Penfions granted by Church-men: (a) December 17. 1628, Chalmers contra L Craigievar. ( b ) Doubts title Bfhops Debts. ( c ) Notes upon the Doubts . \ a ) Mackenzie Obferv. on the 29 AH. 11 Pari. J. 6. P. 23:. ( s) Act 3. Pari. 18. J. 6 f f ) February 28. i6i83 Bairns of the Bijbop of Galloway centra Coxoper, That C 163 ) That the Former without Infefement thereooj arc but of the nature of Affignations, produ*- cing perfonal Action againft theGranter, and tiis Heirs ; and ineffedual againft Angular Succeflors. ( a ) Or againft the the Terce of the Conftituents Relid. ( b ) Put Ecclefla- ftickPenfions clothed with Pofteffion, or De¬ creets conform in the Conftituents Life, are valid againft their Succeflors in Office. ( c ) So a Penfion granted by a Biffiop,with a pow¬ er to aflign etiam in articula mortis , was fu- ftain’d in favours of an Afligney after the firffc Penfioners death, againft the fucceeding Biffiop, ( d) But not where neither the Affignation was Intimate, nor poffeffion attained by the Afligney before the Cedents Death. ( POffeffion is the detaining or keeping fome- thing by our (elves, or others, for our n.. Bwr] .u e behoof. Commonly di- fhngmflied into Natural and Civil Poffeflion : Whereof the former is Real, and the latter prelum d. Without nicely diving into the Nature of Poffeflion, to &ew wherein it con- L 3 -fifrs. C 166 ) flfta, dQwit is begun, continued, interrupt¬ ed and loft : I fhall content my felf to enquire into the Point of Right arifing from it, which is fufficient for my purpofe. *'■ 2. ’Tis the great priviledge of Poffeftiori,’ that no perfon is to be turn’d out on’t, but by Oder of Law,* or oblig’d to anfwer for Fruits bona fide confumed. Poffeffion is not only an ordinary ground of Prefcription, whereby the property of the thing poffefs'd, or fome other Right or Claim is acquired to one, and loft to another: But alfo *tis fufficient to exclude fuch as have no good Right ,* and is favourable in dubio. v In a word, the Advantage by Poffeffi- On is fo confiderable, that Men call it ( by way of Proverb) eleven Points of the Law, and better than an ill Charter. Seven Years lawful and uninterrupted Poffeffion affords the benefit of a Poffeffory Judgment. Which fecures the Party from being difpoffefs’d, till his Right be reduced. 3. Fourty Years feofieflion induceth Pre* fcription, whereby the abfolute Right and Property of the thing poffefs’d is acquir’d arid eftabiifhed, without a Title in Moveables 3 (a) and with any colourable one in Heretage : Againft ChurchrMen as well as others. Pre¬ fcription likewife cuts off all Obje&ions againft the Validity of long Tacks, and Liferent Rights, (b) Nay, the Negative Prefcription of Freedom is an effectual Security to the 5 i > £ y * . 1 * • > i u * % . : . • * (a) December 7: 1633: Parijhioners of ^berfcherder contra Par 1 fit oners of Gemrie, ( b ) Stair Infill: Lib: 2: lit: x 2: $ U. , - • " r- - - - ' ‘ heretable ( 1^7 ) fieretable pofleflor of Lands, againft vvhatfo- ever Rights might affed the fame, though conceived in favours of the poor:As a Mortifi¬ cation toaHofpital having Overfeers annually chofen ; (a) or any other pious Ufe. U11- lefs the Hofpital be founded to Orphans and Minors ; againft which Prefcripcion doth not run. ( b ) This long Prefcription is reckoned de die in diem, per tempus continuum • without any Abatement orConfideration of the time, when by Surceafe of Juftice there can be noProcels : (c ) And there is little queftion with us de bo¬ na fide , in a fourty Years Poflefsor. ( d ) 4. But our Law hath introduc’d ieveral fhort Prefcriptions calculated according to the Nature of the Right. Minifters Stipends in particular prefcribe quoad modum probandi, if not purlued within five Years: So that after that time, they muft be proven to be refting unpayed by the Debitors Oath or by Writ. (O The Lords found, that a Mortification becoming a part of a Stipend did thus pre¬ fcribe. Cf) But the Ad 1 669. doth only concern the prefcription of Mimfters Stipends: As being in effed Alimentary, and prefumed not to ly over long unpaid. And was not extended to Tiends due to Bilhops, or other Titulars. ( g ) ( a) June 30: 1671: Beadmen of the Magdalen Chappel Againft Dry (dale. • b ) December 29. 1691: Thomas Fijber Thtfaurer of Heriots Hofpital againft Hepburn of Beirford. ( c ) Intheforefaid Cafe of the Headmen of Magdalen Chappel and Dry f dale . ( d ) Stair Intt it: Lib: 2; Tit: 12. § u. (e) JB: 9: Pari: 2: Seff: 1: Ch: 2. ( f ) Mackenzie Obfcr-v. on the [aid Jci 9. ( g / March 20: a (?S 5 : Hamilton againft Hemes c a a if 1 c 1 68 ) CHAP. IX. Of Rights to Benefices acquirable by Bene* ficidrjes. A V I N G fpoken to Rights ac" qairable by bene field perfons ; it remains that I treat of Rights they may acquire. When the State of the Church became fix’d and fenc’d by Civil Laws, Lands and other Polfefsions were confer^ upon the Clergy ; fome by way of Feu, others by Mortification. Some Rights again they acquir’d by Tacks, and others by Poffefsion. SECTION I. Of Feus, Mortifications , and Tack} granted to Ecclefi a flicks. SO M E are of Opinion, that a Clergy* Man is incapable by his Character to be a Feu-Vallal. (a ) But according to Law, he may purchale Feus as well as other Men* ( b ) The Point is more difputable in the cafe of particular Monks, who acquire on- ( a } Zufuis. ( b ) Craig, Lib ; i: Fetid-. Dieg; 14, • . •• ly ( 1 6$ > ly to their Monaftry,- and cannot ferve as Vaffals. The Dodors are not all of a Mind about the Queftion, if a Monk may be a Feu- er. The more general Opinion is, that he cannot fucceed as Heir to an old Feu,- but may acquire Feudum Novum. With us Monks were underftood as civilly dead : And fo neP ther capable to enjoy Feus by Succefsion nor Purchaie. When they fell to Heirs, the Right of Succefsion accreic’d to the next Agnat • and new Feus difponed to them return’d to the Difponer, (a) 2. ’Tis the Gon/edure of fome, that Mor- tifications were fo called, becaufe they are held as fait by the Clergy, as what is put within the Gripes of dead Men. But others look upon that Term as improper, judging thefe pious Endowments fliould rather8 go under the Name otVivifications : Seing Church Men or Religious Incorporations are not con- hdered to die ; and therefore property ac- quir d by them Vmifictur, & nulli amflim mu - unom fubmtttitur. Mortifications pay no other Keiilendo thin Preces & Lacbrimas, or the like. , ) And are notfubjett to Non-entry ( c ) Z DeaarhyofhervC^ality Urging" ’from tne Hearn of a Vaffal. Church Men alfn vSedgel andrFandS W'th fome Particular Pri- viiedges and Exemptions whereby Princes and Superiors found themfelves fo nearly j ‘°rhie Matt rr of Int£rcrr’ that accord* ■ g to the Laws of Frame, and Spain, and 5 ». (b) s>airIf ,:Ui: «■ fome C *7° ) ' fome other places, no Mortification is effe&u* al, without confem of the Prince. As to our Conftitution, there is no doubt but Superiors will be fliy to accept Refignations from their ValTals upon Grants of Mortification, in fa¬ vours of a Community, or for the ufe of the poor: As being in effedi a giving up of their Cafualities. Nay, Craig is of Opinion, that, upon an Adjudication at the Inftance of an Incorporation againft their Debtors Lands, the Superior cannot be oblig’d to receive the Incorporation for a Years Rent. And my Lord Stair feems to be of the fame Mind, (a) But withal propofes a very proper Expedient for falving the Intereft of all Parties, viz,. That the Incorporation fisould affign their Debt to fome perfon in Truft, to whom and his Heirs theDebtorsLands might be adjudg’d for the behoof of the Incorporation ; and that the Seaiin fhould exprefs the Truft. By this means the Incorporations Debt would be made eftecftual ,• and the Superior might have his Cafualities upon the Death, Negledt, or Delinquency of theTruftee. Albeit mortified Lands do not fall in Non-entry, and there is no neceflity for renewing of the Infeftment : Yet the Right is never compleat, till In- fefcment once be taken upon the Mortificati¬ on. To which a pofterior Deed with the firft Infefcment will be prefer’d. ( b ) 3. I don’t obferve much difference in Tacks granted to Benefic’d Perions, from thofe made ( a ) Ivftit: Lib: 2: Tit: 1: § 41 . (b ) February 1682; Laird qfFiti(iout't£4$?:u$ the Town of Brechin. " * by ( 171 ) by them: Save that, i. When the Granter Is a Laick, they are not under fuch Reftri&ions, nor require fuch Formalines as the other, z. A Laick having fet two Tacks of Lands, the one to begin at the expiring of the otfr.r ; the fecond Tackiman may remove the firft when his Tack is run out, altho the Setter be dead before that time. But fuch a Tack fee by an Ecclefiaftick of his Benefice, would be null : Becaufe the Entry is made to commence at a time when the Setters Right expir’d. ( a ) ( a ) June 18: 1629: Dumbar centra, Turner. SECT. II. How Be clefiafl i cly acquire Rights to Benefices by Prfiejfion ? HAVING formerly in my curt way de¬ fin’d & divided common Poffeffion, and glanc’d at the main Rights and Effe&s on’t: That which here falls under Difquifition, is the peculiar Priviledge and Advantage that Church-men in particular have by it. 1. Polfeflion to Churchmen is often loco lituli , and a fufficient Right: Becaufe thefe being converfantmofily about Divine Matters, are fuppofed to be ignorant and carelefs of their Rights which go not to Heirs, but dye with themfelves ,• befides that they may be daily loll between hands in the change of In-. trams. Crp) t rants. So, in Poffdlory Judgements they need not found upon a Title, as Laicks are oblig’d to do ; But are fecure till Reduction by ieven years polfeffion only, (a) And 15 years polfeffion is equivalent to a Title, ac¬ cording to the Rule of Chancery, Decernnalis & triennalis pojj' jsio babetur pro titul9i even in caufafal/i. Upon which account Prebendars were alfoilzied from the Certification in an Improbation, for not produ<5tion of their Fro- vifions. (b) But this thirteen years Polfeffion amounts to no more than a prefumptiveTitle, when Churchmen have no extant Right, and goes off by a clear contrary Probation. For if their Title can be found, the Polfeffion will be afcrib’d to, and regulated by it. And tho ir cannot be taken away by Certification for not production, or not abiding by ; It may be excluded by a 6etter Right, or improven by pofitive Probation; And any Exception or Nullity may be proponed againft the fame when produc’d. So, an Infeftment of Annu- alrent mortify ’d by the King to the Chappel Royal, was found extinguilhed by a volunta¬ ry Redemption thereof upon payment; Not- witiiftanding of thirteen years polfeffion there¬ after: In regard the Right mortified had a Reverfion in the bofomoff (c) The Defig- fa) Hrvm her 25:. 1 66$. Peter ctntra NLitchelfon.July 1 8. 1671. Earl of Hume contra L. ofKi/law. December 6. 1672. Veatch contra Weatherlie . ( b ) Hope Improbation, Bijbop of Gap.} say contra the prebendaries tf the Chappel-Royal. (c) July i x. 1676, Bijbop of Dumb! am contra Kinloch, nation \ nation of Temporal Lands for a Glibe, where there was Churchlands befide, was reduc’d upon the 161 Aft, Farl: 13. Jai 6; Albeit the Minifter as Poffeffor dectnnalis & triennalis7 had a prefumptive Title : In regard the true Title by the Deflgnation was produc'd, (a) A Right of Annuity granted to a Minifter out of theRents of aColledge by two of fevenMafters thereof was found Null ; Albeit the Recei¬ ver had been decennalis & triennalis Pofleffor : In refpedf it was not fubfcrib’d by the Majo¬ rity of the Mafters. (b) A Minifter who had been thirteen years in poffeflion of calling Peits,^ by a Right exprefly precarious, was debar’d from that Priviledge at the Inftance of the Heretor. ( c ) Another was not preferd upon the account of fo many years poffeflion of Vicarage Teinds to the Titular or Tackf- man • where the Minifter's Title being a De¬ creet of Locality ,did not include the Tithes in Queftion. ( d ) But yet a Minifter having been thirteen years in peaceable poffefsion of a certain Stipend, was not reftritfted to lefs by the Decreet of Locality ,• unlefs it had been proven that he or his Predeceffors had own’d the Decreet as the Title of their poffefsion ; C e ) Albeit the Debate was with a lingular Succeffor • who, feing a Decreet of Locality (a) February 6. 1678. Lord Forret cooitra 'Mathers. (b) February 1684. Barkley contra Provost and Mefters of the Old Col ledge of St. Andrews. ( c) Mackenzie Obferv. on the 29 1 1 Parl:Js: 6. ( d) February 2,4. 16S1. Lefley contra Minifer of Glenmuck. (e) November 28: 1616. Semple a~ gainjl hit Parishioners. was t *74 y . was in bona fide , one would think, to purchafe wthouc inquiring farther. It may be asked here, if absolute Rights granted to Church¬ men can alter thirteen years poiTefsion be qualified, or elided by extrinfick correlative Reverfions, or Obligations ? Sir George Mac - kenz.ie (a) doubts ; but the Lord Stair (b) is clear they cannot. 2. There is another Rule of Ghancellary^ concerning the Effect of Triennial poiTefsion; And that is, triennalis pacificus pofSeJJor beneficii e(l inde Jecurur. Which is not fo to be under- ftood. as it three years poiTefsion afforded the benefit of a PolfelTory Judgement. ( c ) The meaning being only this. That the In¬ cumbent’s Right to a Benefice after ; years peaceable and uninterrupted poiTefsion, cannot be quarrelled during hisLifetime by any other Candidate or competing Churchman.(^) Nay, fo favourable and effe&ual is poiTefsion to Churchmen, that an a&ual Minifies ferving the Cure at a Church, and which he had continued to do for eighteen years before, was .prefer'd to another having a prior Gift of prefentation to the fame Benefice, and obtain'd Letters conform in his favours, (e) This Rule about the three years poiTefsion, is the thiry third of the Rowan Chancellary ; but the other concerning thirteen years poiTefsion, is not to be found there. (a) Ibid, ( b ) InVx.it: lib: 2. tit: 8. §< 12. 1629. Marfial conxra L. of Drumkilbo. tit: 1 §.27<5 ) in regard the Popifh Clergy at the Reformati¬ on turning delperate, did either fend Abroad the Rights of their Benefices, or fupprefs and deftroy them ; Partly out of malice to the Orthodox Clergy, and partly to gratify inte« refifed Laicks : It was declar’d by an A £t of Sederunt 1 6. of December 1612, That ten years polfefsion before the Reformation, or Thirty thereafter, fiiould bcalufficient Right to Churchmen,- Or to the King coming in their place by the general A& of Annexation 1^87, So, Lands were infer'd to be Churchlands from Thirty years Poflfefsion by Churchmen of a certain Duty forth thereof: Altho another had been Immemorial poflfefifor of that Land as Part and Pertinent of his own Barony ; And inftru&ed by a Reverfion produc’d, that fome one of his PredeceiTors had exprefly Wadfet the fame. ( a ) ( t ) July 1616. L. of Kerfe antra M. Andrew Reid, CHAP. X. B etteficed Verfons confidered a? Subje&s 3 and what they are liable to in that Capacity. ’rT^IS duty Subje&s t0 contribute to the Support of the Government and Security of the Nation, by JL payment of Taxations and pu- blick Burdens, Impofed for that end by King and Parliament, or a Convention of Eftates. 2. In j . . C *77 ) - 2. In Former times Church-men pretended Exemption from thefe, as not being liable to ferve the publick with their Goods, but only with their Prayers and Tears. ‘Philip dugujl King of France , made once his Application to the Clergy of Reims for a Subfidy to pay his Troops. They flood upon their Priviledge and excus’d themfelves from the Contribution: bat affured the King they would Affift him frecibus et lachrimis. That wife King, without ihewing any Refentment preft the thing no farther. But foon after the Lands of the Chapter of Reims , being Invaded by Enemiesy the Canons Implored the King^s Prote&ion, who made anfwer that he would alfo inters cede for them with his prayers, as they had lerved him on a like occafion ; Accordingly be wrote to the Enemy, praying them to fpare the Patrimony of the Chnrch. But they who were not accuftomed co give way to ther King’s prayers, but only to the Force of his Arms, had no refped to the Letter. Therr the Clergy of Reims being fenfible of thein Fault, promifed ( if the King would help them out of that Strait ) not only to be affif- ting to him with their prayers, but alfo with their Money,when he/hould have to do there¬ with. The King immediately took Arms and Relieved the Church. ( a ) Z. Ecclefiafticks alledg’d for their Immuni¬ ty from Taxes, i. That ouc Saviour doth allert it. ( b ) 2. Jojepb excepted the Priefts 0) Thmajjinpart 4: lib. 3, chap. 24: N. 3. (b) 17.26, M - Lands p ( 178 ) Lands in Egypt from Vharachs Cefs. ( a ) But they were Juft brought over to a common Conformity by the (pecious pretext of Holy Wars; and induced to lay out the Tenth of their Revenues to promote Expeditions to the Holy Land. 4. That which in the beginning was very extraordinary turn’d afterwards into a Cu- llorn ; and ’twas no wonder that Princes finding the beft portions of their Dominions fallen intoChurch-mens hands, indeavoured to affert their Prerogative over thefe in Subjec¬ ting them to the like Services and Duties as their other Lands were liable to. The deems pap ales & (aladi?ue came to be frequently im- pofed and the Pope and King together of¬ ten raifed them. Sometimes the Pope, for his own private Ends, or to advance fome Ec- ciefiaftick intrigue required them, and if re- fuled, the Nation was lure to be inter- dided ; till which Interdiction was taken off no Church Ordinance durff be Adminiftred! That Taxations and Impofitions might be the more equally raifed off the Clergy, the Pope in the Jveign oi king James the third, fent Cardinal Bagimont to Scotland in quality of Le¬ gal, who called before him all the Beneficed perlons, to give up the Value of their Bene¬ fices upon Oath ; and made a {landing Ren- talot 5em, called Bagimont s Roll: which be¬ came the Authentick and conftant Rule for Taxing Ecclefiafticks ; and ferved to dired ( 3 } Gtncf, 47. fhe ' ( l?9 ) the Pope in Selling of Benefices to fuch as apS ply d to him for chat end. But afterward u pon new Informations, the Court of Rome as d to make higher Valuations ; To prevent which, a:I Benefices were Ordained' to be Taxed conform to Vagimonts Roll, and no higher. C <* ) John Duke of Albany obtained of che Pope, an Impofition laid upon the Pre- lats, according to the Value of their refpeftive Salaries 10 the Senators of the Colledge of Juftice, The Clergy refilling to acquieice, appeal d to Rome, and Gavin Dam- tar Bifhop of Aberdeen was appointed to pro¬ secute the Appeal. But the Controverfie droDt npon the Seflions being made to confift of j4 Ordinary Lords, half Spiritual, and half Tem- n°iv ’n-and r'e Prchdent a Prdat, which of Spiritual and Temporal Lords of Sellion was fuppreft, and all Ordained to be lemporal by the 26 AS of the tarliamenl I O4O. _ f. But at length, becaufe in fatrimmialibm Clergy-men ought 10 be lookt upon as Laiclis ehey were not only made liable for Tenths upon extraordinary occafions; and firft Fruits and Annats to the Pope ; and the fifth Penrw b! SubieJed o u the Ki,lg: BW alf0 Came » be Subjected to ah emergent Impofitions laid tion of A£ll °f Parlian!ent»°r Conven- no* Lftatesfor the common Defence of the Conn tremor other pubiick Exigences. Q)pn\y A 3 ^ 44‘ Parl • 6‘ 3 . ( b ) Act 9. p6rl £ , al7h/7r ’• M- *J- 00 'i.plrit 0/?. i, Jft of Cunvcntitn 4 August 1665. 2 she . ( iBo ) the Chappel Royal by Ad of privy Council in January 1^84, and Minifters Stipends by the 162 Ad, 13 Pari. J.6. were declared free of Taxation. But yet by the Ads of Convention 1665, and 1667, Parlonages and Vicarages Belonging to Minifters ferving the Cure, were burdened with the publick Impofitions, in fo far as they exceeded the proportion appointed by Ad of Parliament for a modified Stipend, And all Minfters having Stipend or Benefices,, and even unplanced pariih Churches, were once made liable in Pole-Money. ( a ) 6. The old way of Levying Subfidies in Scot* JandfWas by Taxation according to the Retour9 andTaxt- Rolls : whereofthe Clergy payed the half 5 as having befidesth tTithes the 4 th part of the wholeLand of theNation in their pofTeffion, and being only LiierenteiSiSc notProprietars of their Benefices. Church-lands ereded into Temporal Lordfhips, were Taxed frequently as before the Eredion. But the Retours of the weftern Heretors being higher than in o- ther Shires,* and the Rents of Prelates and their Vafirafs much Impaired by Valuations of Teinds, and Minifters Stipends : There was a new Valuation of this Kingdom made in the year 1660 ; wherein the whole Land-rent was given up as then pofteft, according to> which Rental all Subfidies are now raifed by way of Cefs, Subfidies given in Parliament for ^general and publick ufe cannot be other* V. I ( a ) IV. and M, Pari, 1. Sejf, 4. Cap> g, wife C ) wife applied. ( a ) But here it may be quefK- oned if they be debit a fundi , affe&ing Angular Succeflors ? The Roman Law allowed the Fisk atacite hypotheck in Lands for Taxes, and Tribute-Money. ( b ) Which could not be evacuat or difappointed by any Padion be- itwixt private Parties. ( c ) With us all Subfi- dies laid on by the Parliament, are exprefly declared in the particular Adis, impelling them to be real, and to affedl the Ground ; confe- quently Angular Succellors. But an impofiti- by Authority of Tarliament, without inch a Claufe for poynding the Ground, doth not leem to be debitum fundii but only to afFedt the Intromettors andperfons having Right the time it was laid on. ( d ) Cefs was ordained to bear Annualrent after Ax Moneths from its Sailing due. ( e ) 7. Bifhopricks and Abbeys in France are li- able to*® droit de Gite , a kind of free Quarters to the King, and Forreign Embaifadors upon the Road. I have not obferved any thing like this to have been in Scotland in time of Popery * fave that the Monafteries were fome times ex¬ prefly obliged to lodge and Entertain the Bi- Ihops OLicials, with four or five Horfes when ^yrT±,:!,’eiryearly To“r thro“Sh the pi- S 3 \ Q; f ParJ‘ 2-Ja 4 'Mackenzie Obferv. on the faid contrail / ^ibuf,cttuf ?W- ™l hypothec* tacit. Zrt* ( A fi ProPter public pen/itat. ( c) L. 42 .£ de Q ’ ?Uy 1 i<5(54? Grakamc of Hilton contra the Hcrctmofaackmanmn, Stair Inftitut. lib; 2, Tit. 6. §. 20 { s ) Aft 2, Sejf. 2. Pari. 1. Ja.y. M 3 3. The C 182 ) §: The Kings Trumpeters pretending to an Allowance of j 00 Merks from every Bifliop as well as Temporal Lord, upon their obtain** ing the Dignity of Lords of Parliament and the Bifhop of Caitbnefs being Chaig’d by ge¬ neral Letters to pay conform,- he Suipended u- pon this Reafon, that albeit fome of the Bi- jhops by way of Gratification might have gi¬ ven the Trumpeters what they thought fit at their Entry, it couldnot induce a Burden upon the Order, no fuch thing being impos’d by Law or Cufiom. And the Lords found the BilBop liable, if the payment of 100 Merks was made by Bilhops at their Entry, as an or¬ dinary uniform and conflant fix’d Duty ; but no otherwife. ( a ) 9. For the better provifion of Univerfities, Fifty Found was Ordained to be payed out of every 1000 Merks of Bilhops Rents, and 40 Lib. or Six per cent out of every Thoufand Merks of Minifters Stipends yearly, for Five years commencing from the year 1664 inclu~ Jive. ( b ) " ‘ / ( a ) June S. 1681, The King's Trumpeters contra the Bi« flop of Gait brief s. ( b ) Cfj. 2C F art. 1. Seff. y. Cap. 241 Jk l' > w • \ > ~ ‘ ‘ • * ' J CHAP. C i83 > CHAP. XL Beneficed Vtrfons confidered as Superiors, and Vajfels i &nd the Nature of Ecclejiajli* cal Superiority explained. W hat hath been the F ate of it in Scotland, and hoiv Dif of ed of f nee the Reformation ? THE Poffeffions of the Old Romans were allodial : But Superiority and Vaffalage were Introduc’d by the Feudal Law. Such as had the Plenum Dominium granted Rights to others for performing fome Service, or pay¬ ment of fome Duty. The Granter of thefe Rights we cal! the Superior, and the Receiver his Vaffal. The Right tranfrnitted by the Su¬ perior is term’d Dominium utile , and the Right Retain’d Dominium dire£tum% for which the Su¬ perior lliould be Infeft in the Lands difponed. Except when the Queen is Superior, who is Infeft jure corona; in all the Lands oi Scotland. 2. There hath been Lands held of the Church, by all the different holdings of Ward, Feu, and Blench. Many forreign Princes held their Lands as Vaffals of particular Chur"* ches. The Arch*bi!hop ot Trondeim or Dron~ theirn , formerly called Trondcn , who is the Metropolitan of Norway, did once pretend that the Crown of Norway was held of his Chu rch , ( 1 84 ) Church. And the Pi trice of Antioch did Ho* mage to the Patriarch for bis Principality. More as the half of the Rent of Scotland was poffeft as Benefices before the Reformation : and a confiderable part of that confifted of Su¬ periorities. g. By the 29 Aclt Pari. ir. Ja. 6. where Lands and Teinds are fet in Feu together for a joynt'duty, the King is Superior of the "Whole Tenendry, Stock and Teind ,• But has only Nine parts of the Common Duty, and the Church the Tenth* The Superiorities al¬ io of all Lands and others Difponsd or let in Tack, and of Burrows of Regality and Baro¬ ny, Heretable Bailliaries, and Stewartries, formerly held of the Church, are declared to belong to the King ,• and the Vaflals Heirs to be Enter'd by Brieves out of the Chancellary ; Without neceffity upon the V&ffals to renew their Rights from his Majefty. Neither can his Majefty quarrel the fame, being Confirm'd by him or his PredecelTors, for bygone con¬ travention of any Claufe or Condition in their Infefcments ,• nor for Diminution of the Rental, if it be not of the old Penny* mail de liquido in liquidum ; nor for converfion of Victual into Silver-duty, or any other caufe, except for Falfehood, or for not payment, and performance in timecoming, of the Duties and Services contained in their Infeftments. This was carefully provided, for the Secu¬ rity of Vaflals and Feuars of Churchdands, a-' gairift the King who is declar’d their Superior, and was a powerful party. When the Act 1 "c - **''**' 1 - cautions , ( 1 8j > cautions that the King fhall not quarrel the Vafiais Rights, fave only fora Diminution of the old Penny-mail de liquido in liquidum, that is, Feus being granted about the time of the Reformation for high, and renewed again for lefs Feu duties i the Feu fhould not be quefti- oned, if it was not below the old Rental, Tho the Feu-duty were lefs than was once payed. The Lands and Lordlhip of lorphichen , are ex¬ prefly excepted from the general Annexation 1^87 • and yet is a Queftion prefently Jub ju - dice, if Temple Lands be Church-Lands > {a) The Lord Jhirleftane , whole Succef or is now Earl of Lauderdale , having got the Lordfhip of Mufdebur^h ereded. in his Favours, by King James the fixth,and excepted from the gene¬ ral Annexation 1587 * The Lands of Eafter and Wefter Rails being a part of that Lord¬ fhip, were found to hold of the Earl, not- withftanding chat the general Surrender was Subfcribed by one of his Predeceffors ; and the Ad of Annexation 163;, doth annex Church' lands without exception of Mujsle- Burgh. ( b ) In regard the Laid Ad refpeds only thefe annexed bv the general Ad 1^87 : Adusfleburgh, that was before fpecially excepted, not being exprtfly included therein. Nam pajieriores leges ad priores pertinent , ni(i contraries Jint. L. 28. ff. de legibus . 4. Upon the Submiflion by the Lords cf (a) In the cafe betmxt the Laird of Juchlojjin , and fame Vaffals in Temple-lands, (b) 14 February 1705, Maitland againjl Brand. £ red ion* ( 1 86 ) Eredfion, and other Titulars in Fdruary i 628J | by the 14 Atty 1 Pari. £h, r. The Superiori¬ ties of all Ecclefiaflical Benefices, with the Cafualiries thereof, not difponed before the Commiffion of Surrender dated 17 January 16*7, and in time coming are declared to per¬ tain to the King referving to the Lords, and Titulars of Erection who lubfcribed the Sur¬ render, the Feu-duties till redeem’d by His Majefiy at Ten years Purchafe, and upon pay* meat to them of 1000 Merks for each Chaf* der, or 100 Merks of Feu-duty, or Hundreth Merks worth of all other ccnflant Rent of the laid Superiorities ; not being naked Service of Vaifals. Whereas Feu-duties in common Commerce give a higher price than Land. His Majefty was not only made Superior to the Eredioo. Lords, but even to all the Vaflals of the eredted Benefices,who were allowed to hold of the King if they pleas’d. And by an Ad of Exchequer, (a) all was to be rec¬ kon’d Superiority, whereof the Titulars of Erection, had not the property in their perfon before the Erediion, nor acquired the fame thereafter with poffeffion proceeding the general Surrender. 5*. Tho the Feu duties be exprelly referved to fuch as fubi’cribed the Surrender, yet in r e- fpe<5t that cannot be known or made appear after fo long a time, the Titulars Acknow¬ ledgement of the Kings Right, either expref- (a) February i. 1634. iy C *87 ) ly or by Deeds of Homologation • is equiva¬ lent as if he had fublcribed ( a ) 6. Becaufe in the Submiffion, and the laid jAth Ad, the Feu Mails and Farms are only referv’d to the Lords of Eredion during the not Redemption ; Some doubt ( b) if uncec that Rdervation, the Gafuaiities cf Superio¬ rity ^ particularly Lfcheat a no Nori*entry be comprehended; Since inclufio unius would ieem to be exclufio alterius. Y et the Lords of Seffion found Surrenderee to have Right to theCafu- alities of Superiority, till they were redeem d by the King.(c) And the 50 Aft, 1 Farl\ C£; 2. ordains the Vaffais to make payment of the Feu-Farms and Duties contain’d in their In- fefcments, to the Lords of Eredion ; So long as the prices modify fd by the Gommifsion.ac- cording to the Ad of Parliament 16;; are unpay’d. However, they were found not to have Right to Arage and Carriage ; (d) Ti»at being naked fervice of Vaiiaisi Noi can they purfue Redutfion of chofe Feus without con- courfe of the King's Advocat, having his Ma- jeflies fpecial Warrand tor that LfFed. (f) But they may purfue Exhibitions againft the Vaf- fals for clearing what Feu Duties they pay. To whom no abatement was allowed of their Feu Duty, upon account that tire Lands by ( a ) 27. June 1(562. Wat fin contra Ellies. Stair Inftit : lib : 2 t;t: , §. ix. ( b) Mackenzie Obferv: on the 14. Act, x. Pari- ch: r. (c) fitly 24. 163 2. Rule contra L. Billie. |d ) In the fore] aid Cafe of Watfon againft L. E .Hit. ( c) Mackenzie Ibid-, June 24.. 1664. L. Prcfmn cm Natha¬ niel Ebred; . Calamity c 1 88 ) Calamity of War were render’d defolate, and laid wafte for fome years : In refpeCt the Feu Duty was fmall • and they might have gain’d as much in other years, as was loft during the Devaluation, (a) 7. The Lord* of Erection by the faid 14 tb. A 4: 1595. ( £>) Att 12: Pari; 1; Aft 158: P (trl: L 2: J: C, ( c ) Aft 54: Pari; j: C h: 2. * ; he abovementioned effeft of Entering ValTals. ] fet the Laick Patron, as preemptive Supeti- I )r» cannot purfue Redudfions. nor claim the Liferent Efcheat, or any other profits of the Superiority s All which fall and belong to the Titular the true Superior; unlefs the Vailal cannot fhew who is the true Superior, (a) The forefaid A, (b) January 20: 16 98: Dottgiajs againft the Biftops VaJJal, ( c ) February 1; Inter eofdem, fence ( 197 ) fence is proponed,'but not yet Advifed, That Temple Lands were Church Lands and came within the Verge of the general Annexation ic87. So that the Purfuer could have no In ter eft to call for Production of the Rights °f i ^Albeit Ecclefiafticks have aWolute Right to the Rents of their Benefices during their Incumbency, and as Tutors can-do all ju and neceffarv ACts of Adminiftration, luch d$ the entring of Vaffals and other Deeds allow¬ ed by Law : They cannot put their Benehces in a worfe cafe than they found them in at their Entry, by changing the Vaffals Holding, or otherwife. But all the Kings Vaffals, whe¬ ther Prelates or Barons, were allowed tor the better Improvement of their Ward Lancs when they were barren, to fubfet the fame m Feu to a competent Avail, that is, for the Retoured Duty ; fo as the Sub-Vafsal, upon falling of the Ward, fhould only be ly able to the King for his Feu Duty, (a ) This Pri- viledge of Feuing out Ward Lands was again indulg’d to Bilhops, ( b ) Bat thefe Statures were only Temporary : For Bdhops under the laft Eftablilhment could not Feu their Ward Lands. ( c ) And yet it would feem, that Feuing doth afford a more conftanr Rent to the Church, than the Cafuality of Ward that feldom falleth , and when it doch fall, is gift¬ ed and dilpon d by theTitulars for the time to (a) MB 71: Pari: l4:J: 2: MB 9I: Bari- 6: J: 4 (£) ? 9: Pari: 13: J. 6. ( c ) Mackenzie Okftrv: on the JaM MB MB N 3 their ( >98 ) . their own private ufe, without any benefit to their Succefsors : Whereas, bv a competent yearly Feu Duty, the State of the Benefice is augmented and bettered ,* and there is lefs occafion for applying Church Rents to parti« cular Ufes. As the forefaid Ads were only calculated to a certain time, and not to be perpetually binding : So they were no War- rand to Bilhops to Tax their Ward Lands for a certain Duty ; that being contrary to the Intereft of the Church, and alfo of the King, who would thereby be debarr'd from his Right to the Ward and Marriage fede vacante . And therefore the Conffitution of the Taxt Ward of the Lands of Blebo by the Arch-Bifiiop of S. Andrews , was reduc’d at the Inftance of his Succetfor. (a) Albeit the Biihop might have granted effedually Gifts ofW’ard, Non-entry, and Liferent Efcheat falling to him during his Incumbency, even for Years after his Death, or Removal ; and alfo Gifts of Gommiffariot, or Bailliary, to continue during the Receivers Lifetime: And it would feem, that Taxt Ward is a more fix’d Rent than the Cafuality of Common and Black Ward. But if benefi- ced perfons were allowed to Tax their Cafua- lities of Ward and Marriage, by the fame Rea- fori, they might difpofe upon their Cafualities before they fall, and Tax the other ordinary Galualities of Non-entry, Recognition, Ef¬ cheat, &c. and fo quite dilapidate the Bene¬ fices. Nor was the iucceeding Bifhops Accep- ( a ) March ia: 1684. tance ( '99 3 r . ,, tance of payment of the Taxt Duty fuftaind as an Homologation to hinder him to reduce the Charter. In regard he could claim no more, till that was was taken out of the way by a Redudion. ( b ) # 1 6 The Superior, by his Domimum Direttum, has not only a Title to Homage and tome Servile Performances from his Valsal : But al- fo to the payment of the Duty contained m the Reddendo of the Vafsals Charter, and to fome Cafualities. The ordinary Reddendo in Infeftments of Eredion is a Blench-duty, and befides to pay to the Minifter the Stipend therein mentioned ; Of which the He re tor who buys his Tithes by vertue of the Kings Decreet Arbitral, was bound to relieve the Titular of Eredion. Vreces & Lachrima zxq all the Reddendo for mortify’d Lands, which are Bolden in puram Eleemofynam. Superiors have different Cafualities according to the diffe¬ rent Holdings : But fome are common to all Holdings ; As Non-entry, Relief, and Lite- rent-Efcheat. Mortifications are not iubject to Non- entry, and require no Renovation of the Infefcment. Relief is an acknowledge¬ ment pay’d by the Vafsal at his Entry, for relieving his Lands out of the Superiors hands. The Entry of Heirs in Lands holden of Churchmen muft be expede in the ordinary manner, either by Service and Retour, or by Precepts of Clare Conjlat : Except the Vafsals of Church Lands in Orkney and Zetland , not ( a ) Inter e»f dew. exceed- ( 200 ) exceeding 20. Pound of Valuation, who bruik by the Udal Right without Renovation of their Infeftments. fa) Which Udal Right requires no Title in Writ for the Enjoyment of Lands and Hsretages, but onlv to be able to inftrudt Pofseffion as Heretors by Witnefses. ( y ) But yet an Infeftment to a perfon as Heir to her Father by vertue of a Charter up¬ on her own Refignacion was fufbined, and the Charter found equivalent to a Precept of Clare Confiat. ( c ) 17. By the 52. Act, Pari. 4. J. 5*. the Life- rent Efcheat of Valfals, that have continued Year and Day at the Horn, belong to their immediate Superiors; except in cafe ofTrea- fon and Le(e Majefty, when it falls to the King. Which was extended againft beneficed perfons, by the 49. Act, ;• Pari . J . 6. Yet the Statute doth not clear, whether the Cafuality of their Liferent fiiould fall as vacant Stipends to the Patron, or others having Right to them; or to the King. But Minifters Efcheat, both Single and Liferent, belong to her Majefty : ( d ) Who will have Right to the Stipend, al- tho paid out of the Tithes of Lands holden of another Superior. • (e) A Tack of Tiends for many Nineteen Years, exceeding the longelt Life of any Man, will fall under the Liferent Efcheat, altho there be no formal Conftitution fa) IV: & M: Far!: Seff: i: C: 3 2 . ( b ) Stair lifHt: Lib: Tit: 2: § 1 r. (l) January 20: j 666: Lord Rentoiin (ontra Feuers of Goldinghame . ( d ) Stair Inflit: Lib : Z: Tit-. 2: § 40; March 2 S: 162$; Fletcher contra Irvin. ( e ) Ibid. or C 201 ) of a Liferent.(* )But where any Tack of Lands or Tithes contain federal Liferents, theRebel* own- Liferent only, falls within the compafs of his Efcheat. r(b) fu. 1 8. The Manfes and Glebes cf Mimliers are more Allodial, than Feudal ; having no ex- prefs Holding or Reddendo. And by the ;o.A<5t of the Parliament 1641, the Commiffion was impower’d to affign the Feu Duties of Parfons and Vicars Glebes to the Minister ferving the Cure But tho Alanfes and Giebes cannot continue under any private Holding, being given to Minifters by Adts of Parliament; we confider them as hoiden of the King in Morti¬ fication. ( c) . . 19. Sometimes the Property and Superiori¬ ty of Lands are both Heretable, and come to be Confolidate and Confounded in one perion. When the Property accrefceth to the Superior, there’s ordinarily no necefltty of a new In- feftment : For the Seafin of the Superiority carries the Property, if there be no other Pro- prietar. But it is not fo in Ecclefiafhck bene¬ fices, which are only confer d on perfons for their Lifetime, whofe Liferent Rights and Provifions doth entitle them to the Rents and Cafualities no longer than they live. And therefore an Heretor of Lands holding of a Prebend of the Priory of Crail, coming chere- ( a ) 5: Title Tacks J: 6. ( C ) Ibid. y. Stuarts Notes upon Dirletouns Doubts f of Tiends. ( b ) AH 15: Part-. 22. March 28: 1 <5 2 S : Fletcher contra Irvin: Stair after ( 202 J after to be Prebend , gave in a Petition to the Lords ot Seflion, craving a Warrand to the Dire&cr of the Chancellary, to give out Pre¬ cept and Charges to the Sheriff of the Shire to infefc him in thefe Lands : Which was granted, feing it could prejudge no body, (a) ( a ) June 21: 1634.. 7 he End of the Fir ft Part, > A M i> C 205 ) TREATISE O F Church-Lands, and Tithes: PART II. CHAP. I. Concerning Churches , and Church-Yards. O D the Sovereign LORD and Author of all we poffefs and enjoy, doth challenge fome part of ourLandsfor Churches, and Habitations to his Minifters : And for their SubfiftenceaCom- petency of our Rents, or Incomes ,• commonly thought to be the Tithes. But many Princes, and great Perfon- ages not content that the Church fhould have thefe ( 204 ) thefe only, did out of a Principle oF pious Zeal, richly indow Her with Lands and other PofTeflions alio. From hence came our di- ftindion of the Temporality and Spirituality of Benefices. Having hitherto treated of the former* we fhall now handle the Spirituality, comprehending Churches , and Church-Yards, Manfes , Glebes , and Tithes ; Of which lam to Difcourfe in order as they ly. i. Churches are publick Houfes eredfed for Divine Worfhip and Service, and for preaching the Word of GOD. Some thinking it a mean and derogatory thing to confine or circumfcribe the WorOaip of GOD within Walls made with Hands, they would have no' Churches among them, but perform’d the Sa¬ cred Rites in the open Air : As if the World it feif only, were a fufficient Temple for the Author of Nature. But the Generality of Man-kind have gone into the PradHce offet- ting Churches apart for Divine Service. A- bout the Origine whereof there is much diffe¬ rence of Opinion among the Learned,* which I fhall not take painy to decide. Pagans as well as Jews had their Temples, whereof fome for the Curiofity and Magnificence of Fabrick, were efleem’d the Worlds Wonder. The Primitive Chriftians during the firft three Centuries, while they wanted the Counte¬ nance of Secular Powers, were forc’d to take up with Church-Yards, in Bead of Churches,* and to lerve the Living GOD among the Dead. They got afterwards into Churches, but were turn'd out of 'em by the fury of Dio- ( 205 1 clefian'i Perfecution ,• and Reftor’d by Conftan - tine the Great. In whofe time not only were the Heathen Temples converted into Ghriftian Churches; But alfo many new and Magnifi¬ cent ones ere<5ted, for the Ufe of fiich as pt o- fefs’d the Chriftian Religion. Conftantim and other Princes had Portable Churches which they carried about, and made ufe of in their Travels and Warlike Expeditions, (a) The Fancy of building fine Churches, was as much humoured in Scotland as any where, and as early too. {Vid.Ratt j.Chap 8. 2. An antient way of founding Churches, was this ; The founders made their Applica¬ tion to the Bifhop of the Diocefe, who came to the place where the Altar was to be fet, and faid a Prayer ; Then took up one of the Stones, which, having cut a Crofs upon it, he laid with his own Hands upon the Ground- Work. That being done, the Work-men re¬ ceiving a Signal, proceeded to build. As the Building was got finilhed, and the Chuich indowed, and not till then, it behoov’d to be Confecrated by the .Bifiiop : ^ea, in fome cafes Re-confecration was us’d* 'viz,, if the Church happen’d to be burnt down,- or polluted by Murder, Fornication, or Adultery therein committed. The Romanics do at this day fuperftitioully corfecrate their Churches, and Churcb-utenfils, by various Rites and Ce¬ remonies, by Holy Water, Unctions, and (s ) Bnmffltm: de jure EccJeJiaJUcn Hi: a. cap: a. N. 4. Sprinkling ( 20 6 5 fprinklingof Afhes, and Exorcifms ; Butthere are no fuch Confecra cions with us. Having treated in another place (Vid. Tart i. Gbap. N. 8. dr feepj.junft. Chap. %.N. 9. 18. & (eejej.) of the feveral kinds of Churches; all I ftiall do here, is only to oblerve, that the Pope behov’d to authorize the Ere&ion of a Cathedral-church, (a) And in order thereto, us’d to appoint certain perfons to inquire if the thing might be done, without incroach- ing upon anothers Right, and if it tended to promote Divine Worfliip. So, upon the Ap¬ plication of Bricius Biihop*1 of Murray to Pope Innocent for the Erection of the Trinity-church of Spyny into a Cathedral for himfelf, and his Succeffors in that See ; Commiflion was given to the Bifhops of St. Andrews and Brechin, and the Abbot of Lindors , to make Trial if the Glory of GOD might be advanc’d, and no body prejudg'd by fuch an Ere<5tion : And u- pon their Report the Papal Authority was in¬ terpos’d to Legitimate the fame, (b) TheBi- fhops content was fought to the founding of other publick Churches.fc ) Collegiat-Churches were ordinarly ere&ed out of feveral Parifli- Churches united for that Effect : And vvhere thefe belong'd to different Patrons, all their confents behov’d to be obtain'd. So, the 'LovdChrichtoun Patron of the Church of Cbricb - toun , being defireous to found a Collegiate- ( a ) Bengalis de btneficiis ad verba cum fuo Reditu, ex. Part 1. §. 2. N. 2. ( b ) C hartuli Moravienf. ( c ) C„ nem 9. de cfnfecrati diftinif, j„ - . , Church, C 267 ) Church, confifting of a Provolh nine Preben¬ daries, and two Clerks out of the Rents of Cbrichtoun and Locbyubarret , a Menfal-church belonging to the Arch-bifhop of St. Andrews : The Biihop’s confent was procur’d, with a Refervation to himfelf of the Patronage of the Prebendaries and Clerks that hfad their Patri¬ mony out of the Rents of the Church of Locbejuharret. It Was Lawful to any Body to have an Oratory in his Houle, or upon his Ground, for the Ufe of his Family • Provid¬ ing Mafs was not therein celebrated. ( a) For to the Celebration of Mafs the Bifliops leave was required* And leldom refus’d if there was juft Caufe for it, as the Remotenefs of the Parifh-church. ( b) - 4. Such was the Favour (hown to Churches, that if any perfon began to build one, he, or his Heirs, might have been compeH’d to finilh it. (c) Great Reverence hath alfo been given to Churches. The Et biopick Chriftians held it unlawful to enter a Church with covered Feet. Churches by the Canon-Law were San&uaries ,* but have not had that Priviledge in Scotland hnce the abolilhing of Popery. Ac¬ cording to the Civil and Canon-Laws, it was Sacriledge to fteal any of the Sacred Imple¬ ments or Furniture out of the Church. But we have no Statute againft that formal Crime of Sacriledge, and yet fofarconfider Church¬ es as Places to which a more than ordinary (a) C.umcuique 33. Ibid. ( b ) C. Clerics; 34, etc. Ji ouic etim 3 5. Ibid. ( c ) Nsw, j 3 1. op; 7. refped ( 20 8 ) refped is due, thatToefc orMurther, or Mu¬ tilation commited therein, is more feverely punched, rhan any of the like Crimes com¬ mitted elft-where, (a) y. About the fifth Century a fourth part of the Rents of the Church was generally fee apart for the*Fabrick. But now fince the di- ftindion of Parifhes, all Churches, except the Kings, and thofe de menfa Epi[copiJ are to be repaired 6y the Patron out of the vacant Stipends. ( b ) And where thefe faill, the burden of Building and Repairing the Chutch doth ly upon the Heretors: Who mull ftent themfelves for thateifed. But the Patron or fn- trometter with the Parfonage-Tiihes is bound to uphold the Quire ; and to pay the Third of the Stent impos'd, where the Quire is not diftindly known from the reft of the Body of the Church, (c) If the Heretors refufe, being required by theMinifter and Kirk-Seflion, to meet and ftent themfelves for Repairing the Church • The Lords of Seflion, upon a Bill given in bv the Minifter, will grant Warrand to him and his Kirk- Seflion, to conveen at a certain day for crying what Sum will repair the Church, and to ftent the Heretors propor¬ tionally, and appoint a Collector to uplift. To the making of which Stent-Roll the Here¬ tors mull be warn’d. Therefore, Horning u- pon an Ad of a Kirk-Seflion for Scent, was found null ope exceptions : The Parifbioners not ( a ) Mackenzie Grim : Part i. Tit : 19. §, n. ( b ) Act 18. Pari: 1. Ja: 7 . (c) Penult Nivember 1628. The Kirk, of Selkirk contra Stuart. being f 209 J • ■ being cited, nor confentg. ( a ) But the I*6rds fuftained a Charge againft an Heretor for his proportion of a Stent impos'd for Re¬ paration of the Church • albeit he was not prefent at the laying on of the Stent : And that becaufe of the laft Acf of the third Parlia¬ ment of King James the Sixth. ( b ) 6. Some have vented an Opinion, That fuch as have only Lands in the Parifh, and their Refidence elfe-where, are not oblig’d to contribute for repairing of the Church, as not having any Benefit there by the Minifter s Preaching, or adminiftration of Ordinances. ( c ) Others think, that Foreigners, or Out- dwellers, having Lands in the Parifli, are to be charg’d with repairing the Shell of the Church,* But not to pay any proportion for theBells, Seats, or Ornaments. Neither of which Opinions can be alio wed. For the diftindlon of the Latter is groundlefs, and without Foun¬ dation in Law. And as to the Former, it can as little hold : For all who have Lands in a Parifh are confidered as Parithioners, without refpeft to their Refidence, as to all Parochial Burdens, which are proportioned to the Va¬ luation of every Heretors Lands in the Parifb, and not to his Quality, or to his Lands in o- ther Pari&es. 2. All the Lands of a Parilh may perhaps belong to a forreign Heretor : would it not then be ridiculous to impofe che Burden of repairing the Church upon poor (a) 23. June 162$. Fifcount tf Stormont contra his V» f* fals. (b) Spot] vtood Prat: Title , Kirk-men and Kirk-patrimony. (q) Carpzov.jus confiftor: lib; 2, tit ; 2, Def: 340. O . Xsuents * ( 210 ) Tenents ? And fince Heretors that are Out- dwellers, may not only come to the Church, and reap Spiritual Advantage by the Word and Sacraments, as their Tenents do in their Head ,• But alfo'may fit and vote in the Parifh- meetings: ’Tis highly reafonable that they bsar a proportionable burden with the other Heretors that refide there. But thol make no diftindtion betwixt Out-dwelling and Indwel¬ ling Heretors ; Tbefe ought to be liable in the firft place, who have bought their ownTithes, as having moft Advantage by the Benefice, whereof the Rents, as I have hinted, (<*/ were once liable to thefe Reparations, (b) 7. I muft not leave the Church without no¬ ticing the Seats in it, appointed for the Eale and Accomodation of the Parilhioners while they are hearing Sermon, and joining in pub* lick Worfhip. Some of ’em are built and re¬ paired at the general Charge of the Pariih • In which all have a common Intereft: But they may be difpos’d of by the Kirk-Seflion in Favours of Parilhioners, according to their Ranks and Qualities. ( c ) There are other Seats which particular Heretors have built for theirown ufe, with confent of the Kirk-feflionj or which they have prefcrib’d a Right to by Fourty years polYeflion, as part and pertinent of their Lands. Of thefe the Minifter and his Seffion cannot difpofe : But they are carried under a Difpofuion of the Lands. That is, (a) Vid: Sup: N. 5. (b) Mackenzie Obferv: on the 54. jfcf. Pari; 3. J*'- 6. (c) Dsgge Parf ms Ctunfelltr , shap. 12. when C 2 1 1 ) when an Herecor difpones his whole Lands in a Pariih, the Seat in the Church polls G’d by him as pare a pertinent, doth go with the Lands to the Purchalsr. But a partial Acqui- ficion doth not carry a partial Incereft in the Seat. And a perfon who oruik’d his Lands and Seat in the Church by diliind Rights, having dilpon’d the Lands with Parts and Pertinents to one, and afterwards the Seat to another,* the Obtainerof che particular Right was prefer’d to the Seat : Aibeit the Difpon- ers Author and his Predeceilbrs for many years had poflfefs’d thatSeatas Parc and perti¬ nent of the Land dTponed. ( a ) Nor, was Fourty years poiLilion of a Seat in the Quire of a Church found fufficient to defend the PoiTefTor, in a Removing at the Inftance of one deriving Righc from the Patron. Albeit the Seat had been built by che PoifelTor’s Au¬ thor, and bore his Name and Arms. In re¬ gard it was alledg’d chat the Purfuer not only pay’d a confiderable proportion ofcheMini- fter’s Stipend, whereof che Defender pay'd none, nor had any Arable-Land in the Parifh: But alio the Purfuer’s Author was Patron of the Church, and as Superior of che Pariih, had obtain’d Certification in an Improbacion againft all Rights to the Church or Lands, And whacever Title the Name and Arms upon the Seat might give co cne Timber-work on’t, they could not affe3 the Area of che Quire, as ( a ) 23. November 1698, Alexander Wilkifott againft Jtht Litbgow. i . o 2 be:n* ( 212 ) being the Patron's Property, (a) 'In the Ci¬ ty of Edinburgh the difpofal of all the Church- feats, is ordered by the Town-Council, and the Rents appropriate as a partial Fund for payment of the Minifters Stipends. 8. The Heretorsare bound to pay for, and are Rated in the property of the Bells, Books, Utenfils, and Ornaments of the Church : But the Minifter and Kirk-Seflion, to whofe cu- ftody they are committed, may purfuefor any of them that are abfiradted or taken away. A charge for a Stent impos'd for buying of Bells to a Church within a Royal Burgh, was fu- ftained againfl: the Landwart.Heretors, and even againfl: fuch of ’em as did exprefly oppolethe Stenting. Albeit the Burgefles and Indwellers would have more Advantage by the Bells. But the Titular and thofe having Right to the Tithes, were not found lyable for the Third of the Burden, as in Reparati¬ on of the Church, (b) 9, Every one muft have feme way to the Church ,* But cannot pretend to any fpecial way as the neareft through anothers Land, without proving immemorial poffeffion of fuch a Gate or paffage : yet no Title of pof¬ feffion needs to be qualified, or condefcended on. fc) A perlon was allowed to conjoyn his Predeceffors poffeffion of a Road to the (a) Sir William Winning againfl Sir Thomas Young of Reft* hank, and Joujfy of Wejl -pans* i b) February 15. 1641, Pa* Fifk of Inner keithing contra Lady Rofytf). (c) June 27.1623, Neilfon contra Sheriff of Calloway, Church f 213 ) Church through his own Lands, to make up immemorial polfefiion of the Servitude of chat Road through thefe Lands, after they were difponed to afingular Succeffor. (a) Becaufe the Road in controverfy was not a private Road, but via vicinalis fecured to all perfons by pur blick Law ; and Kirk roads are not tied up to the ftrid Rules of Law, efpecialiy where the Servitude is inoxia utilitatis , and of little prejudice to the Servient-ground. 10. Some in old time, efpecialiy the Mar¬ tyrs us’d to be Interr’d in the Porch or Ides of the Church, for a memento of Mortality to o- thers. And as Superdition grew under Gre¬ gory the Great, The Romanics began to bury in the very Body of the Church ; that the Friends of the Defund coming there for pu- blick Worihip, might by the fight of his Grave be put in mind, to fend up prayers for him. ’Tis with us the Cuftorn to this day, to allow the Corps of fome Perfons of Note and dif- tindion to ly in the Church ; either for a reafon of more Security to the Carcafe from being violated by Radi and wicked hands ; or as a piece of Deference to the Merit, or qua¬ lity of the Defund: ; or perhaps on both thefe accounts. For which a certain Acknow¬ ledgement is payed to the Poor, called in an¬ cient time Jyrr.bolum anima , or fecur.ia (epulcb- ralis. Thefe belide their particular Tombs or Grave-Bones and Ornaments of their Body, have fometimes Coats of Arms, Penons, and ether Enfigns of Honour bang’d up for their (a) Weems of Bogie agamf White ofBenmehy. O 3 Memory: f 2T4 ) Memory : whereof the Property remains v- the Executors • and to them aSlio ivjuriarutn, find for Dainmages is competent againft fuch as p'efums to break, deface or take them a- way. 1 don’t altogether difapprove the laying the Bones of fome Eminent Perfons in the Church .* But it was the Opinion of Jojefb Hall Bifhop of Norwich, That GOD’S Houfe was not a meet Repofiroiy for the Bodies of the greateil Saints. Tho fome be Interred in the Church, the moft common Burying is in the Church-yard. 1 1- The Church-yard is that Spot of Ground within which the Church Bands. Fourty Paces about greater, and 50 about letter Churches was the determined Extent of it by the Canon Law, and much the fame refped Was due the Church-yards, as to Churches : , for both were Sanduaries. ( a ) But tho fince the Reformation we don’t own them as Sanc¬ tuaries : Our Law allows to Church-yards and Churches equal Priviledges in many things, as the holding of Courts within Chur¬ ches or Church yards was unlawful ,• ( b ) The railing of Tumults or Frays within Chur¬ ches or Church yards during Divine Service, is punidied with the lofs of Moveables. ( c ) And Manflmghter there, doth make the Com¬ mitters Liferent Efcheat fall to the King, im¬ mediately after Declarator. ( d ) Though in (2) C.Jlcut antiquitus 17. qtt. 4. (b) AB 86. quoniam a a chi amenta, (c) AB 27. Pari. 11. la. 6. (d) AB 1 s 8 - Pari. 12. Ja. 6. Ordinary C 2I5 ) Ordinary cafes the Liferent Efcheat doth not fall,till the Rebellion is Year and Day old t & then it is due to the refpedive Superior. The keeping of Fairs or Mercats within Churches or Church yards, was once Difcharged under the pain of Efcheating the Goods, (a) But now thefe \ds as to Mercats in Church-yards are in Jejuetudet ( b ) 12. The Church-yard is Fenced with Dikes partly for Ornament, and partly as a Prefer- vative to the dead Bodies, from being Digg d up and Devour’d by Beafts. The building and repairing of Churches, and Church-yard Dikes was once referred to the privy Council. ( c ) But now the Parifhioners, that is the Heretors, muft build and repair the Church* yard Dikes with Stone and Mortar two Elns high, with fufficient Stiles and Entries; and the Lords of Seffion are to dired Letters of Horning againft them for that Effed. ( <0 iX. The Minifterhas Right during his In¬ cumbency to the Church-yard, ( e ) and may (hear the Grais on?c for the ufe of his Horfe or Kine, and may hinder others : But cannot cut the Trees growing there ; Tho there is Adion competent to him againft thofe who do cut them. ( f) If there fhould be a Coal found in the Church-yard, I think the / ( a ) Ac 7 83 Pari, 6, Ja. 4. AB 70. Pari. 6. J#.6. ( b ) Mackenzie Obferv. on the 83 AB 6. Pari fa. 4. ( c ) AB 76. Pari. 9. Mary, (d) AB 232. Pari. 15. fa. 6. (e) Degge Parfons Counfellour, part 1. Chap. 12. (f) Ibid. me 1 C 216 ) fame could not be wrought by the MinifterJ or the Patron, or yet by the Heretors. Se- ing that would not only fpoil the Ornament of the Church-yard ; but alfo Invert the ufe on?t : which can no more be done, than it can be fold. Now Church-yards or places deftinated for burying, are not in commerdo ; and fo can neither be Feued, nor fet in Tack. C a) • y (a) Craig Feud. lib. 1. Dieg. 13. CHAP. II. Of Manfes 9 and Glebes. CONVALLUS King of Scotland, for the accommodation of Minifters, firft appointed Dwelling-places to them at their relpedive Churches, ( now called Manfes , quia ibi nut¬ rient ) with a little portion of Land, which we term their Glebe, quafi Gleba Terr*, And in after times, many Houles and Lands were Mortified to the forefaid ufes of Manfe and Glebe. Becaufe Church-men took ofeen upon them to fet their Manfes and Glebes in Feu, or long Tack ; an Ad of Parliament was made, Difcharging that pernicious pradice. (a) Yet an Heretor to whom a Vicars Glebe , 1 ■ . ■ ~ .1 ' ’ j - (a.) Aft 79. Pari. 9. Mary, had ( 217 ) had been Feued a year before that Statute^ was allowed, a proportional Relief off the reft of the Heretors of Church-Lands within the Parifh. ( a ) All Parfons and Vicars Manfes with four Acres of Glebe neareft to the Church, were excepted from the general An*- nexation 5 and appointed for the Minifter to ferve the cure. ( b ) 2. What courfe was afterward taken for providing Minifters with Glebes and Manfes, is (hewed in the two following Se&ions, where they are (eparately treated of. Only I muft here add C what farther is common to both ) That Minifters hold their Manfe and Glebe of none but the King. ( c ) 3. In the time of Prelacy, Manfes and Glebes were defign’d by the Bifhop, or Minifters appointed by him, with two or three difcreec Men of the Parifh. ( d ) Yea, a Ddignation made by two of three Minifters only named by the Bifhop, was approver], in regard no weighty reafon of prejudice in the Matter was inftrudled. ( e ) And a Nottars Inftrument of Defignation upon a Warrand from the 2?ifhop and Presbytrie was thought fufficienc as a Seafin, tho not fubfcribed by the Mini¬ fters who Defign’d : But a Teftificat under their hands, was Ordained to be produc’d before Extract. ( f ) But now when Presby- (a) February 12. 1635, Cock contra Panjhioners of Auch- tergovan. (b) Acl 29. Pari. 11. J a. 6. (c) March 28. 1628, Fletcher contra Irvine , Stair Inftitut. lib: 2. tit. 2 §. 40. ( d) Ad 2 1 - Sejf. 3. Pari. 1. th. 2. ( t) Feburuary 7. 1 668, Minifter of Cockburns-path contra his Parishioners. { f ) December 17. 1664, iVatfon contra P-aterfon, tery r 318 ) te ry fways, that is done by the Presbytrie. The Minifter, or a Procurator in his Name takes Inftruments upon the Defignation in the hands of a Nottar, or of the Clerk of the Presbytrie. And upon a Petition given in by the Minifter to rheLords of Seffion,with the Ad of Defignation &Inftrument,* they will in- terpofe their Authority, for Removing the He- retors and Pofteftors of the Lands defign’d in the terms of the Ad 48. P art .3. Ja. 6. So, Mr. Coline Lind [ay Minifter at Kilbrandan in Seill , having lately ( a ) apply’d to the Lords by a fiill, Reprefenting that the conjund Pref- by tries of ArgyU and Lorn , had defign’d a Le¬ gal Glebe to him and his Succeffors in Office, together with Grafs for a Horfe and two Kine, prefently pofteffed by fuch and fuch pei foris ; wherein the Moderator gave him Infefcment in prefence of the Presbytrie ,* u- pon which he took Inftruments in the hands of the Clerk thereof,* and that the faidPof- feflors refufed to give way to his Pofleffion : Warrand was granted for Letters of Horning to Charge them to Remove within 10 Day*. 4. The Proprietars of the Lands defign'd, muft get Relief pro rata off the Reft of the Heretors of Church-Lands within the Parifti, if the Defignation was out of Church-Lands ; { b ) not being old Glebes or Manfes of Parions or Vicars. For there is no Relief competent to the Feuars orTackfmen of thefe, when lefed by a Defignation out of their Pro- la) February 9. 1705. (b) Aft 1991 Pari. 18. "Ja. 6. portion. ( 219 ) portion, except only againiHuch as have Feus of ocher parts of the faia old Glebe oc Manfe. ( * ) When the Donation is of Temporal Lands, the reft of the Heretors of Temporal Lands are to contribute proporti¬ onally for Relief thereof. ( ^ ) By the AS ?i. Pori. 1644, Church-Lands Mor. tified to Univerfities Schools, or Hofpitais, could not be defign’d for Manfe or Glebe ; but fuch being Mortified to a Colledge, and afterward Feued for a fmall Duty, was found liable as other Chureh-Lands. ( c) S. George Mackenzie thinks that was a circumftantiate cafe and doubts if it fiiould be a Precedent for Church-Lands mortified to Colledges^ and remaining with them. ( d) This ..Relief competent to thefe out of whofe Lands Defignations are made, tho confhcute by Aft of Parliament, was found, not to be debmm fundi , affc&ing Angular Succeffors, but only to burden the Heretors for the. time. ( e ) Becaufe albeit the foiefaid Adion of Relief is competent againft them, upon the account of Church-Lands they poflefs : yet the lame is only perfonal. Yea, a purfuit for Relief not being commenc’d till eight or nine years after the Defignation ; thefe that were Here¬ tors when it was made, were not found liable to pay Annualrent for the Sum decerned from (a) Stair In fit. lib. 2. tit 2 §. 40. (b) 4% 31. Pari. 1644 Stair ibid, (c) February n ■ 1*35, Cock contra Pa- rithoners of A 'uchtergovan • (d O bferv. on the 199 , 4. Pari. Ja. 6. (d ) June 24. i57S> cmtra Ha~ mUton. ' . ( 220 ) the time of the Defignation : feing ufura dc- bentur only ex paffo, vel mora ; and the Here* tors had bona fide polfels’d their own Lands, and made fruttus fuos. (a) Albeit the Noti¬ on of Relief imports to be relieved of all Dammage, under which the Intereft of Mo¬ ney is commonly comprehended. For non eft damnum quod quis fud culpa jentit j and here the Party might blame himfelf for not requi¬ ring payment immediately after the Dehgna- ' tion. (a) Dir let on Decif: 352. Stenhoufe contra Heretors of Tweed- moor , 7 June 1676. SECTION. I. / Of Mint fas Manfe s. TH E Parfon or Viccars Manfe neareft to the Church was appropriate to the Mi- nifter ferving the Cure there, fa) And thofe provided to Cathedral or Abbey Churches, where there was no Parfon or Viccars Manfe formerly, are to have one within the Precindl of the Cathedral or Abbey; unlefs the Prelate or Feuar Appoint them with another as good and commodious. ( b ) Yet if the Incumbent be not fettled in an Abbey or Cathedral Church, but in fome other, where no Parfon ( a ) Aft 48: Pari; 3: J; 6. ( b ) Aft 1 16; Purl: 12: J: 6. or C 221 ) or Vicars Manfe hath been, or where it was burnt cafa fortuito, he cannot claim a Houle to be defign’d lor his ufe, though Handing up^ on Church Land. ( a ) But the Heretors muft build a fufficient Manfe not exceeding 1000 Pounds nor under yoo Merks of value. ( b) Or the Minifter may build one to himfelf, and get Repetition off them for what he truly ex^ pends in the building, not exceeding the fore- faid Quota of 1000 Pounds. ( c ) ’Tisufual to al¬ low half an Acre of Ground for the Manfe and Yard. 2. By the 8. AM* 21. Pari J 6. all Bilhops and other Ecclefiafticks were ordained to build and repair their Houfes and Manfes, and for fulfering them to decay, their Executors were lyable to the Succeffors, and thofe to the Exe¬ cutors for Expenfes of Reparation made. But now, where there is a competent Manfe al¬ ready, the Heretors muft repair it once fuffi*. ciently at the Minifters Entry, who is to up¬ hold the fame during his Incumbency ; and they out of the vacant Stipend in time of Vat cancy of the Church. ( d) A Minifter having, conform to an Ad of the Provincial AlTembly 1642, paid a certain Sum to the Relift of his Predecefibr imployed by him in repairing the Manfe ,• By which Ad, the payer was ordain¬ ed to have Repetition off his Succeflor : The Lords found that Ad to be no fufficient War^ l r ( a ) February ir: 1631.' Minifter of Innerkeithing contra "John Ker. ( b ) Aft. 21: Siff: 3: Pari: Ch: 2. (c ) January S: 1670: Chartres contra Parishioners of Curry, ( d ) Aft ai: Park 1; Sejjf: 3; C h; ?, rand ( 222 ) rand tocaufe the fucceediogMinifter reimburfe the intrant Minifter. (a) The Building or Reparation of the Manle affe&s not fingular Succeffors. ( b ) Nor are Liferenters fubjedt to any part of the Burden of Building. ( c J Albeit where Liferented Land is adjudg’d, the Liferent is Bated to a certain proportion of the Property, according to the value on’c, and Age of the Liferenter. But poflibly a Life- renter by prefervation wou’d be dealt with as anHeretor in this as in fome other Cafes. ( d ) And the ordinary Liferenters are not lyable to build Manfes, they are bound to repair them, which requires lefs Expenfe, and cannot ad¬ mit of Delay. As the Minifter may build, fo be may repair his own Manfe upon the Expen- les of the Heretors and Liferenters, who are refpedlively lyable to reimburfe him of what he truly and profitably gives out that way : Unlefs they offer’d to contribute their own Materials, and he refus’d them. ( e ) g. Churchmens Manfes are not a'ienable, nor can they be fet in long Tack. ( f) H«bi~ tatio enim alii Ha bit an da } ex Jure Civili dari non foteji. (g ) And Domus Faroe biales ad Secular em XJjum non fojjunt transferri. ( h ) ( a ) January 1682: Mr. John Philp contra Mr: George Mo~ rifon ( b ) January 8: 1670: Chartres contra Parijhioner: of Curry. ( c ) Nov: 14: 1679: Minifter ef contra the Laird and Lady Bemftoun. ( d ) Mackenzie O bfterv. on She 48: Pari: 3: J: 6. ( e ) Ibid, (f) Att 72: Pari : , (g) / 8: ft: de UCu & Habitation, (a) Bruns- man: demure Ecclejtaftuo, Lib; 2; Cap; 3: N> 5. SECT. ( 223 3 SECT. II. Of Mimfiers Glebes . AMinifters Glebe fhould confift of Four Acres of Arable Land, or 16 Sums Grafs, where there is no Arable, but Pafture Ground ,• to be defign’d in the firft place out of the neareft Lands belonging Par- Ions, Vicars, Abbots, or Priors ,• and if there be none fuch, out of Bifhops, Friers, or any other Church Lands within the Parifh : ( a ) As Chaplainries, and Prebendries. And it was found, that this Order fhould be exa&ly obferv’d. ( b ) Therefore the Defignation of a Glebe out of Abbots Land was reduc’d, be- caufe there were Parfons Lands in the Parifh, though Feued, and Houfes built thereon : From which the Feuers were ordained either to remove, or furnifh another Glebe to the Minifter. ( c ) Another Defignation was re- feinded, for that it was Temporal Lands, and paft by Church Lauds : Albeit the Minifter, as Decennalii & Jriennalii ?o(feffor, had a Pre* fumptive Title, in refpeft the Defignation his true Title was produc’d. ( d) But yet Sir G. Mackenzie oblerves, ( e ) that Bifhops Lands ( a ) i6i: Pari; 13 :Ja: 6. ( b ) July 13: 1636: Halyuurton contra Paterfon. ( c ) July 23: 1629: Nairn con¬ tra Bofroal. ( d ) February 6: 1678: Lord Forret contra fathers, (e ) Mackenzie QfrferV; on tf?$ j0 48 ;l'arl; 3 : J: 6, were ( 224 ) were defign’d before Abbots Lands : In regard that Bishops had more Intereft in the Cure. A Defignation of a Glebe was fuftained, albe¬ it Four Acres precifely were not meafured and marked out, but guefs’d at : In regard the fame did import, that the PolfeiTors Servants hindred to meafure in the Terms of the Atft of Parliament ; without farther neceflity upon the Minifter to prove the Impediment others ways than by the Defignation it felf. Nor was Improbation thereof admitted by way of Exception: Seing that wou’d lay a Preparative of pernicious Confequence to Minifters, (a) The defigning of Church Lands neareft to the Manfe for a Glebe, is partly in favours of the Minifter for his Eafe and Conveniency, part¬ ly to obviate Partiality in pitching upon any Heretors Lands out of prejudice. And there-* fore a Defignation was found null at the In- ftance of an Heretor, whofe Lands defign’d were remoter than others from the Manfe. ( b ) But a Defignation was fuftained and ap- proven, tho there was fufficiency of Church Land nearer- to the Manfe ; Seing that was inclos’d as a part of the Kings Park. ( c) z. When there is no Arable Land adjacent to the Church, the Minifter fhould in place of the Four Acres have 16 Soums Grafs out of the neareft and moft commodious Pafture Church Lands defign’d for his Glebe. ( d ) According to the Order in the Aft i6i% Pari. i%.J. 6. f (a ) July 5: \6i6: L: of Kerfe contra Reid Minifter. ( b ) Mackenzie, Ibid. ( c ) February 13: 1629: La: Dumfermling contra Mack gill Minifler there. ( d ) Aft 7; Pari: 1 8:7: 6. And ( 22J ) And farther, a Horfe and two Kines Grafs, over and above the Glebe : ( a ) Even tho the Glebe fuffice for Grafs to two Kine and a Horfe, befide the Four Acres ,• (& ) to be defign’d as the Glebe out of Church Lands, and with Relief to the Party diftrefs’d. And if there be no Church Land near the Manfe, or only Arable Ground, the Heretors of the adjacent Land are to pay theMinifter 20 Pound yearly for his Grafs, and to be relieved as faid is. ( c ) 3. No Incorporate Acres in Town or Vil¬ lage, where the Heretor hath Houfes and Gar¬ dens are to be defign’d for Glebes, if he give other Lands neareft to the Church : And no Minifters in Royal Burghs have Right to Glebes ; d. Aft. 21. unlefs the Parities be partly in Landwart, and partly in Town. ( d ) A Mi- nifter to whofe Church another is annex’d,has Right to both the Glebes defign’d before the Unions (e)as well as toboth Stipends formerly paid to the Minifters of thefe Parilhes : Seing the Church cannot be prejudg’d by the Union. But one wou’d think, that a Minifter of two United Churches, whereof one hath a legal Glebe already defign’d, and the other hath no Glebe, or one that is not fufficient, hath no Title to require another Glebe to be defign'd for him ,• or to feek an Additional Defignation to make up the deficient Glebe: That he may ( a ) AB 21: Pari: 1: Srjf: 3: Ch : 2: ( b ) Mackenzie Oh - few: on the 7; AB, 18: Pari: J: 6. ( c ) Ail 21: Scf. 3: Pari: 1: Ch: 2. ( d ) Stair Inflit: Lib: 2: Tit : 2: § 40. ( c ) January a 2; 1631: Rough Miniflsr of Imurktithing contra Ker. P have ( 2 26 ) have a competent Glebe for every Church. No more than he wou’d be allow’d an Aug¬ mentation of Stipend, when the United Sti¬ pends, or any one of 'em do make up the le¬ gal Quantity. A Glebe was found to carry Right to a Proportion of Common Pafturage due to the Church Land out of which it was defign'd. ( a ) ( a ) February 2: 1630: Hamilton contra Tweedie. CHAP. III. The Hi ft or ie of Tithes . TITHES are a certain proportion of our Goods, and Rents, that is due for maintaining of Divine Service. A Subjed that hath ever afforded plenty and variety of Debate through moft Ages of the Chriftian World. My projed is to make it fome better under- ftood than generally hitherto it hath been : And the firff Rep in order to this, fhall be to give as diftind an Hiftorical Account on’t as I can. 1. Tithes were voluntary pay'd by Abra¬ ham , vow’d by Jacob , and the payment of 'em preferibed and qualified in Mofts s Law,* which the Heathens fometimes in their Pradice co¬ pied after. But when or where the payment of Tidies ftrfi: began under the Gofpel Dif- penlation I cannot tell : Only w.$‘re lure it was C 927 ) was not before the 400 Year of GOD. For no Ti' hes could be pay'd in France before the Converfion of Clovis their firft Chriftian King. Nay, Craig is of their Opinion, who write that Pope Boniface the Eight introduc'd the payment of Tithes in France* Vocato in partem ■pradde ipfo Rege : Without whofe confenr the Impofition would never have gone through. (aj The Saxons were not fubje&ed to the payment of Tithes, till upon their imbracing the Faith in the Reign of CL the Great, about the year 780. ( b ) Nor thole of Tolland be¬ fore the Reign of Miciflaus the Firft. (c) And the Tragedy of Knout the Fourth is a cruel E- vidence that there was no Warrand for pay¬ ment of ’em in Danemark before the year 108 r. (d) In Hungary I meet with no \eftige of Tithes till the year 1047. (e) Nor in Bavaria before the year 537. ( f ) The Englifh date their Converfion to Chriftianicy only from Augufline the Monk his Million and Expedi¬ tion into England, about the year 600: And Alfred was the lirfl: who pafs'd a Law for the payment of Tithes there, (g) There being many Evidences that Etbehvolpb' s Charter is a Fo gery. In Ireland . it was in King Henry the Secondof England his time, that a Canon was fa) Feud: lib : i Dieg : 13. ( b ) C rantzii Metropol: lib ; 2. cap: 8. (c) Cromerus cic Reb: Poloni* lib: 3 John Herbert, Uijl: Polon: lib ■ 2. cap • 1. ( d ) Jo: Meurfii Hifi: Dan’i£ lib: 4. Saxo Grammati . Hi ft: lib : 1 1. C rantzii Daria, lib: 4. cap: 3 7. (e ) Vid: Aajentin: Annul: Boiorum, lib: 5. p. 429. ( f ) Ibid; lib* 3 194, ( g ) B. Burnet's Hifi: of the Rights of Princes , chaps: P 2 made ( 22 8 ) made in a Council at Ca/siles njt\ ordering Tithes to be pay'd to Parifh* churches, (a) Thofe who ftand up for the moft antient pay¬ ment of Tithes in Scotland , I mean Lejly and Spotfwood , do not alledge an Inftance of it be¬ fore Ccnvallus , or Congallm the Second, as o- thers call him, who. they fay, appointed the Tenth of all Corns, Fruits, and Herbs, to be¬ long to the Church. And the Learned Graig (b) will have the Cuftom of Tithing among us to be much of a date with the famous Late- ran Council in the year 1179. If thefe In- ftances were not (ufficient, I could alledge the pra&ice of fome other Nations, where my Reading has carry ‘d me,for farther intruding that there was no certain payment of Tithes before the fourth Century. Origine ( c ) indeed argues from the Example of Mo(es' s Law, that the Tenths fhould be offer'd to the Priefls un¬ der the Gofpel. But according to Hertn. Gi- gas, Conjiantlne the Great was the firft who commanded the payment of 'em. Yea, the Learned Bifliop of Sarum (d) fays, That Ft fin began, and Charles the Great fettled the pay¬ ment of Tithes, and other Princes generally followed their Example. 2. When at firft Tithes were demanded and brought into the Church, it was pretended. That they were to be diftributed among the poor,* and while Chriftians were in the Cha¬ ritable Humour, the thing was foon yield¬ ed : But afterward the poor were put off ( a ) Vid; Gyretld: lib: de Hybtrnia Expugnata cap: 34'. Have- den in He?ir: 2. ( b ) Ibid* ( c ) HiVJil; J, in Nym. (d) Hi ft; of the Rights of Princes, chap: 4. did C S 29 ) with a Third of ’em ; arid even that in the end did dwindle into nothing, by the Clergies mo¬ nopolizing all tothemfelves. Not content with the Predical- tithes in joined by Mofes’sLaw, Perfonal.tithescame tobeexa&ed.And towards the expiring of the Twelfth Century, Tithe was claimed for Hunting, Fifliing, Honey, Trade, and the Commerce of Whores. Nay, the very Alms of the poor fays Spanbeim , («) was fcarce exempted from Tithing. 3. In the Roman Diocele before the diftinc- tion of Parilhes, the difpofal of Tithes, as of other Church-revenues, was challeng'd by the Bilhop: Who made the dividend according to his Difcretion, and difpos’d of the Clergy as he thought fit • fending them fometimes to one place, and fometimes to another. But the Burden growing too great for him at length, the Paftoral Care was divided into Pariflies ; and the Teinds of each Farifh fet for a provifion to their particular fix’d Minifter. Having formerly obferv'd how and when the Paroehial-divifion came to be intro¬ duc’d; (b) and alfo explain’d the Nature of Mother-churches, and thofe called Ecdcfi bs Succurjales : ( c ) It remains for us to fhew what Right they had to Tithes. The Ecclefia Matrix was founded Jure communi in the Right of all Tithes within it's Territory, (d ) Where a new Church was ere&ed with the priviledge of a Parochial one, and independent on the for¬ mer ; The Redlors of both had Right to the (a) Oper Theolog:Par:\ .Ob few: in Cap: 2 7 . Lsvit-Jn fin: (b) Vid: part 1 .chap. 5, N ■ 7. (c) Fid: Ibid: & ohap: 5. U. 2 6. ( d) C. de decitnus iS.qu: 1. P 3 Tiches ( 1?0 ) Tithes within their refpe$ive Bounds or Pre* cin&s. (a) In the cafe of t-happels ere&ed in Parifhes without a Parochial-priviledge, and lerv'd by Vicars putin by the Parfon of the Mother-church for his own affiffance, and for the Accommodation of his Parithioners ; The Tithes ipfo jure belong’d to the Parfon ,* (b) That is the Tithe of Corn And for the Vicars Subfiffance an inferior Tithe of other annual Increafe was ordinary fet apart. Which gave occafion to the diftin&ion of Parfonage and Vicarage Tithe. But then fometimes the Vicar got even a proportion of the parfonage tithe for his allowance ; and fometimes a modified Stipend. Thofe other Vicars whofe bufinefs was to officiat in Parifti-churches annex'd to Cathedral and Collegiat-churches, and Mona- ffries, were maintained after the fame fafhion : The Parfonage-tithe being due to the Ecclefia- ftick or Conventual Body. Our Learned An¬ tiquary Sir James Dalrymple oblerves no men¬ tion in the Charters before King David's time of Perfona or Vicarius. (c) But in a Provincial Council held in Scotland anno 122$, under Pope Honorius the Third ( of the Statutes whereof there is a Copy extant in the Chartulary of Aberdeen ) ( d) we find Tithes ordained to be pay'd, its ad yuos pertinere nojcuntur , i. e. perfo - nis & vicariis. Nay, The intrometting with fa) C.ad audicnti am 3 Extr: de Ecclef: adificand. rod repay. ,• Bengetu de bemficris ad verbum Militia (b) C.Ec- clefi* & duo fequentes 16. qu: j. Bengeus lb: N. 32. (c) Col - lebiion: concerning the Scott ifh Hijlcry, page 228, (d)cap: 35. Tithes (230 . Tithes without Tacks from them, or their Farmers was once declared a point ofDictay. (a) The Parochial-right of Tithes is now e- vacuated by the late Ads of Parliament, ( b ) which confer on Patrons all the Teinds of their Benefices, not heretably difponed, with the burdens affecting the fame. 4. Graig ( c ) is pofitive that the firft pay¬ ment of Tithes among us, was meerly the effeft of Epifcopal Tyranny, introduc’d about the twelfth Century ,• and fettled with that Oppofition and Relucftancy, that the Biftiop of Orkney loft his Life in the Quarrel. As Piety and Charity decay’d, the Divine Right of Tithes began to be afterted in the Councils of the Church, and thefe C ouncil-decrees were at length tranferib’d in the Body of the Canon Law : For the Clergy were extreme loath to own the Original of Tithes to Hu¬ man^ Laws, which are alterable. y. But the Pope as univerfal Bifiiop, pre- • tending a Sovereign Right to all the Revenues of the Church, took upon him to alienate Tithes to Monaftries at Random. Nor hath his Holinefs flood to fell them to Lay- men: For all the Tithes in Italy , and moft of thefe in Spain , are either appropriate by him to Monks ; or feued to fecular Princes and Laicks. He was once pleased to gratify our King James the Fifth with the Tithes of all the Parl'onages (a) / Itij.Parl : 2 ."Jut: 4* ( b ) Ati 23' Self: z.juntf: Ati.26.Sejf; 4, Pari ; W, & M. (c) Feud; lib; i.Dtig: 13^ within; C 232 ) Within this Kingdom for a year, (a) And not only did heaflume che difpofingof Tithesthat were in the hands of Church-men • but even of fuch as Infidels poffefs‘d: So Urban the Se¬ cond gave to Peter of Arragon and hisSouldiers, the Tithes ofall Lands he fhould recover from the Saracens. 6. As he difpos'd of Tithes freely without Controul, he alfo granted Difpenfations from payment of ’em, to fuch and fuch Religious Orders as he thought fit to have intirely de¬ pending upon the See of Rome: And particu¬ larly to the Ci/lercians , Hofpitalers, and Temp¬ lars, as to poffeflions they had before the La - teran Council. We have in another place (b) Hiftorically defcrib’d the C iftertian-Order, and fhew’d how they came to be lo priviledg’d : And becaufe fome poffibly may have the cu- riofity to know as much concerning the Hof - ptalers, and Templars • I (hall furnilh my Rea¬ der with the Hiftory of ’em. ( a ) Buchannan Hi ft: L it: ( b) Part 1. chap: 2. N. 8. The Hiftory of the Hofpitalers, * or Knights of St . John. THE Cuftom of Vifiting pretended Holy Places did early enough obtain. From the time that Helen the Mother of Con • famine the Great did beat the Hoof to J eru- Jalem. . „ . C 233 ) [alem, (a) Her fteps were traced by many' both Men and Women, notwithftanding the great Dangers that attended fuch a Journey. Among others, Peter the Hermite towards the end of the eleventh Century perform’d that peace of Ambulatory Devotion. Who Ob- fervingthe Dilirefled Condition of the Chri¬ ftian lnhabi:ants in Jerufaiemy by the Oppref- fion of Infidels that were then Matters of the City : concerted with Simeon the Patriarch how to recover it out ot their hands. Being back’d with Letters from the Patriarch to Pope Urban 2, and the Princes of the Wett he made his Applications to each of thefe fo effedually, and Reprefented fo feelingly the faid pofture of the Chriftian Affairs at Jerufalem • that in a little time he got him- felf, in conjundion with Godfrey of BoviUon D. of Lorrain at the Head of a Numerous Ar- mie. Levied out of all the Regions in Europe Italy excepted. The.defign, as they gave out* was to eradicate Pagan Superttition, and fet up a Chriftian Government in the Holy Land Jerufalem in the year 1099, fell in their hands, and Godfrey was cholen King thereof, which was much owing to the Valour of the Hofpitalers , who Signaliz'd themfelves at the Siege of that City, and for their Reward got Vaft Pofieflions fettled upon them by Godfrey , and Baldwin his Succeftor. 2. Thefe Hofpitalers were at firft fome Merchants of Melphis in the Kingdom of ( a) In they eao' 326. Naples , ( 234 )' Naples , Traders in the Levant, who a little before Godfreys Expedition procur’d leave from the Caliph of Egypt, to build in )cruf alerts aHoufe for themfdves ; and their Countrey men that fliould travel in Pilgrimage thither,* on paying a yearly Tribute. After which a Church was ereded in Honour of St. John , and an Holpital for the Sick , whence they took the Name of Hofpitalers. They bound themfdves to the ordinary vows of obedi¬ ence, chaftity and poverty ,• and farther, to Defend Pilgrims againft the Hoftilities of Sa¬ racens, They turn’d a Military order, remar¬ kable for their black Habit, and a Crofs of . white waxed Cloth with eight Points : Into which Order many perfons of Quality lifted themfelves ,• and inftead of Hofpitalers, chofe to be called Knights of St. John. They were rooted and expelled out of Syria at a time, when no Afliftance could be had from the Weftern Princes, who had Game enough at Home, and were deeply ingag'd in inte- ftjne Broils. Then they poftefs’d themfelves of Rhodes : which the Turks recovered out of their Hands in the year 1522. 3. The Emperor Charles 5 th. in the year if 30, dealt and prevailed with them to ac¬ cept of the Ifle of Malta for their Refidence : where they have long been a Fence' and co¬ ver to Chriftendom from the Turks. Solyman in the year 15 '66, thought to reduce and ex¬ tirpate them by a mighty Naval Force ; which after the Expenfive Fatigue of Four Moneths War, were neceffitate to return rc inf e Eld. Princes have heaped Riches upon theie C 235 ”) thefe Knights, and the Popes granted them vaft Priviledges, and Immunities, whereof an Exemption from pavment of Tithes was one. But after the European World began to be fenfible of the grofs Cheats put upon them by the fpecious pretence of Groi/ades, and to give over thefe vain Defigns, the Credit and Intereft of the Hofpiralers decay'd, except in fuch places as were mod expos’d to War. 4. In this Religious Order there are Knights, Noble by four Defcents. Chaplains, and lerving Brotheis of many different Nati¬ ons. The princip 1 Convent or Hofpital is at prefent in Malta ; whereof the grand Ma¬ iler of the Oi der is Head, and Soveraign of the Ifland. In all Forreign Provinces where they have any Revenues belonging to them, there is a gteat Prior, whole Jurifdittion is called a Commandery or Precept cry. He from time to time holds Provincial Chapters ,• and muft Account for what he does, and Receives, to the main Body of the Order in Malta. The chief Commanderies are for Knights, fuch was the Preceptory of T crphichen. There are others for Chaplains. A Commandery of Jultice, is that which is bellowed upon one according to his long Banding ; Commanderies of Favour, are iuch as the great Mailer or Prior has the Diipofing of virtute officii. The Priors chufe the great Mailer, who is only Subjedl to the Pope in Spirituals ,• but owns the King of Spain as his Prote&or, to whom he prelenrs a Falcon every year. The Hofpicalers came in® to Scotland in the Reign of King David. The Preceptors C 236 ) Preceptors of this Order nad Right to the Fore* feitures of their own Tenents. The Gover- nours of Hofpitals appointed for poor Perfons, or Invalides, were alfo called Preceptors ; as the Preceptors of the Hofpitals of St. Anthonie in Leith , St. Leonards befide the Borroiv-muire , St. Thomas at the Foot Leitb-wvnd, St. Lau¬ rence near to Haddingtoun, and Ednetn in the isAerfe. The Vifitors of Hofpitals are to be appointed by her Majefty. (a) And A&ions for bringing Patrons and others, to Compt for their imromillions with the Rents of them, are interned at the Chancellors Inftance. C b ) (a^ Aci ion Yarl. 7. Ja. 5, fb) Mackenzie Ohferv. on the 27 Aft. 2 Pari. Ja. j. The Hi fiery of the Templars . Where it is Debated if Ecrnple*1 Lands were Churchm Lands, and fell under the Att of Annexa*. it on, 15 87; THE Order of Templars was fet up at Je - rujalem about the fame time, and upon much what the fame occafion that gave rife to the Hofpitalers. Frequent Incur- f ons being made into Godfreys Kingdom by S a- racens9 Turks and Egyptians , and the Roads leading to Jerufalem infefted by Robbers ,* lo as .Travellers were much expos'd to Danger : nine generous Knights ( a ) undertook the (*) Aim 1 1 1 s. Defence , ( 237 ) Defence or the Sacred Sepulchre, and to clear the High-ways, that Pilgrims and Paflengers might fafely come and go thither without Hazard or Interruption. 2. They propos’d at the beginning to live after the mode of Regular Canons, fubjec- ting themfelves to the Vows of Celebacy, and obedience to the Patriarch of j Umiak™. This was done in the year 1118 ,• and (hey were called Templars, becaufe they had a- partments allotted for them by Baldwin King of Jerufalem , in his Palace near to the Temple. Thefe Templars fubfifted for nine years, by the Liberality of the King, Patm arch, and other Ecclefiaftick Prelats. But the Order was confirmed by the Synod of X roye en cbatnfaigne under Pope Honorius i dy C a) and got a particular Set of Rules, and a white Habit affigned them in token of their Inno¬ cence, To which Eugene 3^, added a red Crofs > ( b ) to fignify their readinefs to fpend their Blood in Defence of the Holy Land. Among the Templars as well as the Hofpitalers there were Knights, Priefts or Chaplains, and Fratres Minores or Sewientes : and thefe Priefts had Benefices. The Tem¬ plars ufed to be Interrd with their hands and Feet laid a crols ; and their Standart was partly white, partly black ; importing peace or favour to Rich as efpoufed the Intereft of Chrift, and Terror to his Enemies. They ftri<5i!y for lometime adhered to the Rules of {■*) Anns iij8; (b) /inns 1140, f their C 2?8 ) their Itlftitution, and "hereby exceedingly mul¬ tiplied, and grew in Credit and Wealth. Nay, as Matthew Paris relates, became richer -than Kings. This we’ll find lefs reafon to think flrange ot, when we confider that people in thofe days, fo p ffeb’d with a Supe;ftitious Opinion concerning the Merit of a Pilgri¬ mage to ? erufalem , as if it had been half way to Heaven, may be eafily thought to have been frank enough to Reward and Gratify fuch as afforded them fafe Condud, and De¬ fended the Holy Places. Princes alfo, and great Men who enter’d into this fam’d Older of Templars brought their Treafures and Pof- feffions with them. 5. But while the Templars fwim’d in afflu* ence and profperity. they turn’d infolent, and infupportable. They difclaimed the Su¬ periority of the Patriarch of Jerujalem , their Founder and Benefador, and would own on¬ ly the Popes Supremacy, who for Reafons of State cajoled them with many Priviledges, fuch as an Exemption from their Obedience to the Patriarch, and from payment ot Tithes; and always interpos’d in their behalf, to get Juftice done them in their civil Affairs, They prov’d very ungrateful by open Ads of Ho- Itilicy and Maiice to the Hofpitalers ; who had been kind and bountiful to them at their poor beginning Nor did the Hofpitalers fail, as occafion offer'd to wreck their Revenge upon the Templars. 4. I omit for Brevities fake, the particular Relation of the Warlick Expeditions of the Templars ( 23 9 ) Templars againft Turks , Arabians, Saracens , and Egyptians ; as not being neceffary to my purpofe. But I cannot forget the bold An- fwer given by Otto de S. Amando Mafler of the Temple, to Saladin, who having (a ) taken him Prifoner, offered to Exchange him for his own Grand-Child that was a Captive in the Chriftians hands. It fhall not be fo, quoth the proud Mafter of the Temple, for our way is only toRanfom with the Sword: And therefore he chus'd rather to die under Con¬ finement, than come off by the precarious method of an Exchange. 5. Maugre what Refinance the Hofpitalers and Templars could make, Saladin , ( b ) by the force of his Arms, poffefs’d himfelf of Je- rufalem . To Retrieve which Lofs, and to Humble that Victorious Infidel, The decima Saladin# were Impos’d by the Pope and Chri- ftian Princes. 6. The Templars having degenerated into Luxury, intemperance and effeminacy, they diffolved in a fad Tragedy. The Order after it had ftood a matter of 184 years, being ge¬ neral y cut off in a cruel manner, through all the Chriftian World ( except in Germany , where it was only Suppress'd ) by the contrivance of Pope dement th , and Philip the Fair King of France. Who, being highly offended at the Templars, for that he fufpe&ed them concerned in the Tumults that arofe about Debafing the Coyn ; and having (a) Aunt 1 1 So. (b) Ann* 1187- - awo alfo a Defign to render himfelf Mailer of^ their Riches and Pofleflions, by his Moyen and Intereft got Clement advanc’d to the Pon¬ tifical Chair, upon his previoufly ingaging un¬ der Secrecy to abolilh that Order of Knights. Their Ruine was Commenc’d in the year 1507, by the French King who Seiz'd all fuch as were in his Kingdom, andConfifcated their Eftates. The like Cruelty was practis'd in o- ther Countries. 7. The Pope, that he might effe&cally Gratifie his Patron and Benefactor, Suppreft the Order of Templars, ( a ) in the Council of Vienne, (where he was perfonally prelent) not 6v way of Definite Sentence, fed per viam provijionis apoftolic a, irrefragabili & perpetuo va- litura janttione. And all their Lands and Goods were Declared to fall under the Dif- pofal of the Holy See. A great part whereof by Advice of the Council was conferred upon the Knighrs of St. John of Jerufa/em . I fay that only a great part of the Temple-Lands were bellowed in favours of the Holpitak $ becaufe that Council decree referves the Goods belonging to the Templars in Caflde, Arragon, "Portugal, and Majorca ; and fecular Princes applyed much of ’em to their own ule as bona 'vacantia . Yea fcarce were the Templars Goods annex’d to the Hofpitalers, any where without paying of great Sums. Their Pofleffions in Gaflilc were Confiscated, thole in Atragon transferred to the Knights of Callatrava , and many retained by the Knights (a) Amo 1312. themfelvesi ( 24* ) ' ‘ r themfelves. Spain did not allow of the De¬ cree of the Council of Vienne. In Portugal their Lands were appropriated to a new Order of Knight-hood then eredled. 8. Thefe unhappy Knights Templars con¬ demned by the Fatal Sentence of the Synod of Vienne , were generally Perfecuted with Fire and Sword for the fpace of feven years-, from the 1307, to the 1314* But in fome places they efcaped Death : as in England fome of ’em enter’d into the Married State ; and in Germany they were admitted into other Or¬ ders. 9. Some fay their Crimes brought DeftrudH- on upon them. But whatever was the caule on’t, Authors agree that none of thefe ill things laid to their Charge were proven a- gainft them. If they were Innocent, it can¬ not be denyed but that the Pope of Rome , for all his pretence to Infallibility ,and thefe of the Synod of Vienne have been either partial, or impos’d upon. If they were Guilty, and truly Criminal, that doth argue, every thing not to be Religious, which the Church of Rome calls fo. 10. The Templars came into Scotland, in the Reign of King David , where they fiourifhed to chat Degree, that there were few Parities wherein they had not fome Lands, > The Prior of the Order refided at Torphicben » Their Priefts or Chaplains had Benefices, apd were Minifters of the Churches of Tulloch 9 \ Aboyn} Incbanan and Mary Coulter. The Ho- fpital of St, Germans in Lothian belong’d to • . v;. |he ( 242 ^ the Templars : But was Diffolved in the year 1494, and the moft of its Revenue beftowed by K. James 4 th. upon the Kings Colledge of Aberdeen. Sir James Sandilands the laft Pre¬ ceptor of X orpkichen made Refignation ad per* petuam retnanentiam , in Queen Marys hands, of all the Temple-Lards in Scotland, who Feued them out again to him for 11000 Crowns, and the yearly Duty of 500 Merks, in Augmentation of her Highnefs Rental. The Temple-Lands being Ere&ed in favours of J ames Lord lorphichen ; he Difponed them all for 10000 Merks , to james Tennent of Lynhoufe, and Mr. Robert Williamfon Writer in 'Edinburgh, except the Lands of lorphichen and Lifloun , lying within the refpe&ive Shires of Edinburgh and Linlithgow, thofe of Dennie in Stirling. Shire, Ihan^bortcun in the Shire of Lanerk, Balintrodo in Edinburgh- Shire, and M/;»,,whohaving rais’d a Redu&ion and Imprcbarion of the Rights of the Poffeffors* It was alledg’d for the De¬ fenders, they were not bound to produce their Evidents to the Purfuer, becaufe Temple-Lands were Church-Lands, and con- fequently fell under the ACt of Annexation 1587, and that they were Church-Lands was contended upon thefe Grounds* 1. The Templars were an Ecclefiaftick Or¬ der inhituted by the Patriarch of Jerufalem for a pious Ufe, fubjeft to the 7ria Vota Subftantialia Religionis, Poverty, Chaftity, and Obedience, which were at firft adminiftrat to them by the Patriarch. 2. They had Priefts among them, and have been reckon’d Eccle- fiafticks by Divines, Canons, and Canonifls. 3. They enjoyed the priviledges of Church¬ men, being exempted from Civil Jurifdi&ion. 4. The Order had its Confirmation from a Council of the Church, who prefcribed them Rules and Habit, to which the Pope added a Red Crofs to be worn by the Knights and Priefts. Pope Clement the 9. in his Epiftle to the King of France ( a ) expoftulates with him, for having imprifon’d the Templar Sub¬ jects of the Church ab/que medior and feiz’d their Effaces, which did not belong to the Secular Power. And the Doctors of the Sor- ( a ) OBober 27: J307. q2 m C 244 ) bon , by their Refolve, (a) Declare, Thatihofe who are lifted for 'he Defence of the Faith , and have wade Vrofeffmn of a Religion eftablifhed by the Church s ought to pafs among the Religious , and en¬ joy the Benefit of Exemption ; and 'their Eftatcs (Itould be rejerved to the Ends for which they were conferred on them. Nor would the Pope fufFer King Philips Procefs to go on againll the Tem¬ plars, tiil once the King had put fome of the principal of ’em in the Hands of his Legates. The Pope alfo referved to himfelf to judge the Great Mailer of the Temple, and the Mafters or Heads of the Order in France , and beyond Seas. At length, by the Pope in a Council of the Church, the Order was fuppreil, and their Eftates difpos’d of. It was Anfwered for Auchlojfn , 1. The Templars coniiantly pafs cl for a Military Or¬ der, and were improperly called EcclefialHcks; being originally militate, not for any fingular Spiritual Perfection, fuch as Devotion or Charity, but for Guarding the High Roads with Force of Arms ,• whereby they were ex¬ ercis'd in Blood and Violence: And no more Ecclefiailicks, than the Popes Guards, or other Princes who engag’d in the Holy Wars, or even the Souldiers that ferved under them in thefe Expeditions, who all wore the Badge of the Red Crois, and received from the Pope the Red Standart. Neither were their Vows like rhofe of the Religieux : For their Vow of Cha- fiity did not tie them up to a fingle Life, but ( a ) March 24: 1308. implied ( 245 .) implied only Continence, which might have been obferved in a Married State,- Obedience with them, was only Submiffion to the Ma¬ iler of the Order,- and their Poverty, a meer Reftri&ion not to acquire without a Difpen- fation front the Grand Maher, a thing as often granted as required, (a) Farther, the being tied to Vows, was not the main end of their Inftitution ,- but fome thing accedens prater ?ta~ turam. Albeit they made their firft Vows in the Hands of the Patriarch of Jerufalem , as Vows in thefe days us’d to be made in the Hands of Church Men } they were not for that Ecclefiafticks : Such a Ceremony being on¬ ly us’d for the more Solemnity, and in order to obtain the Patriarchs Benedi&ion. 2. T.ho this Order had Priefts belonging to it, that doth no more make it Eccleliaftick, than the Order of the Garter can be reckon’d a Reli¬ gious one, from their having S. George for . Patron, and a Prelate for Chancellor, and Regifter ; Befides a Dean and Canons, and Twenty Six poor Knights to pray for the Or¬ der. 4s to the Opinion of Canonifts; Thisiu general is to be obferv’d, that where they be¬ long to a Countrey or Older much devoted to the Church of Romey they are ufually fway d to think the Military Orders of Knighthood to be Ecclefiaftical : And thofe who are more free, and lefs depending upon that Church, incline to the Opinion, that thefe Orders are Secular. 3. The Do&ors, who generally al- ( a ) Carleval; de Judiciis, Tit: 1: Difp: 2: Serf: 3: M40 6. Q 3 low ( 246 . J low them Privilegium Fori , are very far From granting, that they were a Religious Order: { a ) This Exemption was the EfFed: of their Grea'nefs, and the Indulgence of the Church of Rome ; but did not alter the Dehgn or Cha¬ racter of ctee Order from Secular to Ecclefiaflick. 4. The Templars were feveral Years inflitute before they were confirmed, or received any Rule or Habit from the Council of hoyes, As to the extraordinary power the Pope did arro¬ gate to himfeif, in the Trial, Suppreflion and Difpofal of the Goods of the templars,* it will amount to no Argument with any who are in the ieafl converfant in the Fliftory of thefe times ; wherein there was nothing civil exempted from the ambitious Pretenfions of thefe Fontifs. And yec in this Matter the Pope proceeded by his own Confeffion, with¬ out obferving the Forms of Law or Juflice : Which, if theTemplars had beenanEcciefiaflick Order the Pope and Council would never have confefs’d. ' For it is but coo well known, with how much Arrogance they prerend to difpofe of Ecclefi flick Orders and their Revenues. However this Decree, after all, was no where made effectual to the Knights of S. Jehn% without payment of great Sums. And the Application of the Temple Lands in their favours was fo qualified, as it might not pre* judge the Rights of Princes. As to the Judg¬ ment of the Coiiedge of Paris • There is no doubt, but this Order having a Refemblance ( a ) Carl tv ah Ibid. C 247 ) of a Religious one, did plead an Exemption both from the Secular Jurifdi&ion, and from the ordinary Jurifdidion of the Church ,* and were only fubjed to the great Mafter : By whom their Benefices were conferred pleno jure , and their Vows difpensd with. Nay, farther, Mariana obferves, that fometimes the Order proceeded to depofe their xMafter, to accept of his Refignation, and to chufe a new one, without the Popes Licence or Confirma¬ tion. Tis alio to be ofeferv d, that the Do¬ ctors of the Sorbon do not call the Templars Religious, but only fay, they ought to pafs amongft the Religious. As to the Refolution concerning the Application of the Goods of the Templars to the ends for which they were at firft conferred on them : That doth not de¬ termine, if the Goods were Ecclefiaftick or not ,• but was a Check upon the Avarice and Revenge of Philip the Fair. j. ’Tis obfervd in a Manufcript fuppos’d to be Sir John Nif- bets, that, in Solemn Proceffions, or Meetings of Parliament and Convention of Eftates, the Preceptors of thefe Orders were ranked with the Laity ; and as fuch were Tax’d in order to the payment of publick Burdens • nor were their Lands comprehended in the Ads touch¬ ing the Affumption of the Thirds of Benefice?. And albeit they had Churches, whereof they were the proper Patrons, to which my Lord T orphichen pays yet a confiderable Stipend : Yet that did not make them Ecclefiaftick. In the forefaid Redudion and Improbation, this point alfo fell under Debate, if, upon the Sup« . r 24 8 ; Suppofition that Temple Lands had been ori¬ ginally Church Benefices ,* They be not excepted in the Act 17 87, and if that general Exception be taken away by the Adts 1633 and 1661. It was alledg’d for the Purfuer, That efto they had been Church Lands from the begin* rting ; Yet the Order being fupprefsd 200 Years before the Reformation, the Adi of Annexation made upon that occafion does not’ comprehend Temple Lands, which had fallen to the Crown long before, not upon the general Account of Reforming the Errors of the Church of Rome • but becaufe Croifades, and the end for which the Order of Templars was inffituted, the affording Reception and fafe Conduct to Pilgrims at Jerujalem , Was of a long time ceas’d. 2. Tho Temple Lands fell under the Adi of Annexation, they were again excepted from it exprefly in a Claufe concerning the Lands and Lordfhip of 7orphi- cben, which was not taken away by the general Adi 16; 3. Since Mud non agebatur to take a- way the ipecial Exceptions i but only to ex¬ tend the Adi 15:87 that only concerned Bene¬ fices then poffefs’d by Church Men, to the Right and Superiority of all Lands eredted be¬ fore or after the General Annexation. And ihefe Refervations being in a Solemn Adi full 40 Years before the 1633, mufl yet fubfift, unlefs they had been exprefly refeinded. 3. ’Tis true the Adi 1633 mentions the Superio¬ rities belonging to whatfoever Abbacies, Pri¬ ories, Prioreffes., and Preceptories: But that v"‘~ ■ ■ “ f ‘ - • ' 4 is C 249 ) is to be taken in a proper Senfe, fo as not to be underftood of Commendams or Precepto- ries pertaining to Military Orders 3 thele be¬ ing but a Refemblance of Benefices. And for clearing that thefe Ads do only concern the Benefices of Churches, Abbey s» Convents, or Hofpitals ; The Ad 15 87 narrates, 'that our Sovereign Lord perfectly undemanding the greatefi part of bis proper Rent to have been given away to Abbeys^ Monafiries , and others of the Clergy , j for Caufes found to be neither profitable nor necejjary • It is meet and expedient for the King, to have Re* courfe to his own Patrimony : 'Therefore His Maje %, fly and Eflates unite to the Crown all Landsi &C. which then pertained to Arch-Bifhops , Bifhops , Abbots j Priors , PrioreJJes , or other Prelates , Eccle - fiaflick or Beneficed Per/ons of what ever Eflate, and to Abbacies , Convents and Cloiflers of what ever Or del of Friers, Nuns, Monks, Or Channons. And albeit the Ad: 1633 adds the Word Pre- ceptcries, yet it plainly relates to the Ad: 1 $87, and concerns the fame Siibjed, with this Ex- tenfion only, That whereas the Ad: 1 s 87 was confined to Benefices in the Pofieffion of Church Men at that time • The Ad 1633 doth annex all Lordfhips ereded before or af¬ ter the Ad. And the Additional Word Pre - ceptories is only to be underftood of Ecclefia- ftick Preceptories. I return from this Digteflion, which per¬ haps is carried too far, to profecute my Dif- courfe concerning Tithes. A / C 250 ) A Continuation of the Hitfory of Tithes, TO fecure the Papal Grants of Alienation and Exemption, from being called in ‘Queilion upon the account of the Di¬ vine Right of Tithes; The School men main¬ tain’d a competency out of them to be due de jure divino ; but that the particular Quantity of a Tenth was of Ecclefiaftica) Inftitution. 2. The Pope having ufurped fuch a bound- lefs Liberty of appropriating Tithes to Mona- ftiies, or oiherways difpofing of them at his pleafure, and granting Exemptions to feve- rals of his Creatures and Favouritesfrom pay¬ ing Tithes for their own Lands, to the great prejudice of the Parochial Miniftry • Our Law to exclude thefe his unjuft pretences ,* made it criminal to t 'ke a Right of Tithes from any f;»ve the Parfbns or Vicars, or their Farmers. (a) For the Kings and Parliaments of Scotland have been aiway Zealous in maintaining the Regale and Rights of the Church againft all Romiih Ufurpation. But at the fame time 'Iithes in this Country were frequently mor¬ tified to Cathedral and Collegiat churches, Chappels, Monaftries and Nunneries, by the Founders and benefactors. To thefe alfo Pa¬ ri fh- churches with their Tithes were often an^ nex’d by the ^atrons3* fo that the Prelates of ( a ) 2. J*;4. ^ / Churches C 251 ) Churches and Monaftries had Right to two kinds of Tithes,- One belonging to them (im¬ ply by Mortification from Laymen; Another to them only as Parfons of Parifiies. This leads me unawares to inquire how and when Tithes came firfl into the hands of Laicks ? 3. This is certain, that Laymen in joyed Tithes, and difpofed of them freely for feveral Ages under Chriftianity. But the Learned are extremely divided in their Sentiments a- bout the Origine of Infeudations of Tithes. Some extravagantly will have them to be more ancient than the Church it feif: Becaule C ice- ro and other Pagan Authors mention Tithes to have been railed by the Romans out of their Provinces. Ocher place their Beginning un¬ der Philip Augufl, in the time of the Holy War. A third fort derive it from Charles Mar¬ tel. Without Banding to difpute which of thefe are moil in the Right, I fiiall content my felf to notice (till [ get more Light) That in a . Council (a) held 1078. under Pope Gre- gery the Seventh, by an exp ( h) who go about to excufe. the Matter, turn over the blame of the ill confequencesof Martel's Ufur- pation of the Tithes, upon the Avarice and Impiety of his Captains. They alledge that Prince meant no more than only to apply the ( a ) Ibid: cap: < , N-. 3 . ( l> ) Traits t such ant l' origine des difmes, (hap; 6. feci. 5. . Fruits C 254 ) Fruits of the Tithes for payment of his Souldi- ers during the War : But that thefe Gentlemen, loath to part with fo fweet a Bit, indeavoured to perpetuate the Injoyment to their Families: Notwithstanding all indeavours of Carloman and Pepin to the contrary. 6. Pepin, for that he could not get the Chutch altogether reponed to their former Right, becaufe of Intefline Wars : He oblig’d the Laick poffeffors of Ecclefiaftick Benefices to take Leafesor precarious Feus of them from Church-men for payment of both Ninths and Tenths, or double Tithes ; and with all to be at the Expenfe of repairing the Churches, (a) Wherein he was followed by Cbarlestho, Great, who ratified the Obligement to pay that dou¬ ble Tithe of a Ninth and Tenth: But put it in the Option of the Ecclefiafticks to renew the Leafesor not • and ordained thofe Laick Be¬ neficiaries called Mcdietarii from their dividing the Rents with the Church, and getting half of the Fruits for cultivating a piece of Church Land, to pay the Tithe of their own propor¬ tion to their proper Minifter. Charles the Great having conquered much of Germany , he fettled Epifcopal Sees there, and indowed them with vaft Revenues. Particularly he ap¬ pointed a Tithe to be payed out of all his own Revenue, and out of all Forefauhures. ( b) And I rind mention in fome of our old Char- tuiaries of the lecond Tithes of the Cafuali- ( a ) Thomajfm la diffline de V Eglife ; part 3 , lit: 3. c'ap: st.N. 6. (bj Jrm 789. C. 17. ties f 235 ) ties of Ward, Relief, Marriage, Fines, Ef- cheats, and Un-laws of Courts. That Great Prince did by another Law ( a ) appropriate the Tithes to the Parifh-church. 7. But tho Charles the Great made many Laws for the payment of Tithes, which are extant in his Capitulars. Yet in after Ages Princes and others dispos’d of their Tithes as they pleas’d ; and commonly to Nunneries and Monaftries : Thinking that a Corpora¬ tion of Prayers would be more effedual than the Devotion of a fingle Prieft, to draw down Mercies and Bleffings upon the Benefador. Our Kings and great Men did appropriate Churches with their Tithes, not only to Mo¬ naftries but even to Bifliopricks ,• and for main¬ taining the Fabrick of Cathedrals, and of Wax-candles therein. Many Rights of Tithes in Favours alfo of Lay-men are to be feen in the Chartularies of Abbacies. 8. The Clergy hath us’d mighty Endeavours to get the Tithes out of Lay-hands • Nor have frequent Bullsfrom Rome been wanting for that effed. And for incouraging all Men to give Liberally to the Church,* and withal, to re¬ move any Objedion that might arife from Church-mens dilapidating or giving away the Church-revenues, many Canonical Decrees were made againft conveyances of Tithes to Laymen. Buc the firft effedual Law that came from Rome; for hindring them to pafs from hand to hand in common Commerce, was the fa) Arm 804* C. 3, famous ( 25 6 ) famousCanonProhibemus 19 .Extr.de decimis) made in the Council of Lateran , under Alexander the Third in the year 1179. Whereby Laicks wich-holding Tithes on the peril of their Souls, are difcharg'd to make them over to Lay-men, and the Receiver that does not re- iiore them to the Church, is not to have Chriftian Burial. 9. Our Law has fo far gone in with the Canons, That Tithes ( which we call the proper patrimony of the Church, (a ) and Spirituality of Benefices) could not fince the Lateran Council be fet in few, or long Tack, before King Charles's Decreet Arbitral upon the Surrender: And therefore were not annex'd to the Crown by the 29 Aft, ir Pari. Ja. 6th. But left with the Church as formerly. I con- fefs the 189 Ad: of that fame Kings 1$ Pari. bears, The Teinds of the Lordjhip of Dumferm- ling to be annex* d to the Crown , according to the "Tenor of the AEl of Annexation 15" 87, whereby all the Tcinds of the Remanent Kirk-lands and Prela¬ cies of the Kingdom are annex d. But that Qaufe is not Authentick, and feems ( as Sir George Mackenzie thinks) (A3 to have been in- fert through miftake, contary to the Defign of the Ad:. 10. Decima inclufa, nuncjuam antea Jeparatse, which for a long time beyond the Memory of Man, have always gone along confolidate with the Stock, were ever underlfood and ( a ) jict 10. Pari: 1, Ja, 6. ( b) Obferv; on the 29. AEl 11. Park Ja-. 6. N. 7. . t fuftained ( 257 ) fuftained in our Law, as an Exception with¬ out the Verge of the Canons prohibition. Be- caufe thefe are prefunfd to have been feued out by Church-men as Proprietars of both Stock and Teind, before the L ateran Council. But yet by vthe general Ad of Annexation *5^7, whereLands are feued cum decimis in- clufis, and a joy nt Duty pay’d for Stock and Teind ; The Titual r or Church-man is tohave the Tenth thereof, and the King the other nine parts, with the intire Superiority. 1 1. The Teinds were not annex’d to the Crown with the Temporality of Benefices ; yet after the Thirds were found an ineffectual provfion for the whole Miniftry : The King was frequently importun’d and prevail’d with to ered them into Parfonages, and give the Patronage to fonie Predion-Lord, who ordi- narly got lacks of the Teinds from the Mi- rnders they prefented. Commiflions of Par¬ liament were alio named from time to time for planting of Churches, and modifying Sti¬ pends out of the Teinds : And the firft of that kmd appointed by the % Atl, 22 Parl.Ja. 6 . with power to call before them all Patrons, lackl-men of Teinds, and ocher pretenders thereto; and to examine their Titles, andaf- ign out oi the Teinds of every Pariili to their Minilters, being uncompetentiy provided, psrpecual Local-ftipends, not under five Chap ders of Vidual, or yoo Merks, where the Fruits of the Benefice might affor’d it ; nor above 1000 Merksor to Chalders of Vidual • beiide Manfe and Glebe. ' And torecompence R .. perfons ( 2,-8 ) perfons lefed therein, by prorogation of their Tacks, or otherways, as they, the Commiffi- oners thought fir. They were alio authoriz’d to unite or dilunite Churches when that fiiould be found convenient. But not to meddle with any Miniders already fecured in joo Merks, or five Chalders of Victual, or more of Stipend, tho exceeding the forefaid higheft Quantity of rooo Merks, or ten Chalders. That Commiffion expiring at Lambafs 1618, while many Churches retrnined unprovided of fucable Stipends, and Incouragement for Minifters: Another was appointed in the year 1621, much in the Terms of the former^ with farther powers to eredt and provide new Churches, tranfplant others to more cornmo* dious Situations, and modifie Stipends with¬ out being dinted to a determined Quota. But not to alter or meddle with any Church let- tied by the former Commiffion. (a) 1 j. King Charles the FIrli at his coming to the Throne, being fenfible of the great addi¬ tion that might have been made to the Crown Revenue, by the fappreffing of Popifh Bene* fices, had not his Father ralhly gifted them away: Hein the year 162^, the find of his Reign, ftrongly attacked the Erections with a Revocation the mod ample thacever was made, of all Deeds done in prejudice of the Crown, particularly of all Erediions of Church-lands, Teinds, Patronages, and Adts of Parlia¬ ment rati ying the fame. Erections were (9) M 5, Park 33* 7a, 6. i$. Ere&ions ( =59 > ■- . , granted both before and after the Act of Annexation. Thefe granted before pro¬ ceeded upon the Dimiffjon and Renonati¬ on of the Ecclefiafhck Titulars, and were quarrelled upon the following Groundsof Nul- ncy. r. Thefe Titulars being naked Liferen- ters, had no power to refign, and RefignatN ons mfavortm were null • As alfo,all Rights to' i relacies, before they fell vacant, by the Pof- ielfors deceafe. Forfeiture or fimple Dimiffion. 2. The King being only Patron and not Su¬ perior, had no power to to accept fuch Refig- nations, but only to prefent a new Titular. And as his Mafeftie could not fede vacant & have ereded thefe Benefices dire&ly into Tem¬ poral Lordjhips, cjuia feds vacante nihil innovan - dumi neither could that be done indire&ly upon the Titular’s Refignation. , Alienati¬ ons or Rights of Benefices by Church-men to the cnorm Lefion of their Succefifors, og whereby the Benefice is put in a woife State than at the Titular's Entry, are null. 4. All Lands unjuflly taken from the Church fhould be refrored, and the King by his Coronation* ™h vvas b°und to maintain the Rights and Liberties on’c. y. The Thirds of all Benefi¬ ces were to have been imployed for Miniflers Stipends till the Church came to the full pof- lefhon of their proper Patrimony the Tithes. Erections granted after the A6t of Annexation were impugn’d, particularly upon this Topick, Inat the annex’d Property could not be dif* * . a previous DiiTolution in Par¬ liament j And his Majefiie might reduce Alie- R z nations ( 2 6o ) nations made by his Predeceflbrs to the E- norm Lefion of the Grown ,• Kings in that ca fe being always confidered as Minors, and the Parliament in place of Tutors to them. The Royal Revocation is fometimes emitted by way of Proclamation, and the Parliament ra¬ tifies it; (a) Sometimes by way of Iriftrument. (b) But ordinarly it pa lies fir it under the Pri¬ vy Seal, and then is confirm’d in Parliament ; after which manner this Revocation was ex- psde. ( c ) 1 3 • This Revocation made a great noife, and was thought to have been partly the Oc« cafion of the Troubles that followed in that Prince’s Reign. All the PofTdi'ors of Tithes and Church-lands grudg’d at it; the Earls of Kinnoul , Marr , Melrofs Roxburgh, and Mortoun% declar’d openly againftit; the Earls of Huntly} Marjhal, and Nit bf dale, were for it. His Ma- jefty called up the diiTenting Lords to a Con¬ ference at London, where he told them that a ' Revocation was not a Novelty, but competent to him Jure Rcgni , according to the antient Law and Cuftom of his Kingdom of Scotland ; that no prejudice was intended thereby to any perfon in fatrimonialtbus fundii ,* that publick Imereft required to pals from Church-revenues, and other Mens Tithes ; that every one foouid have the buying of their own Tithes ; and that Vraffi!s of Church-lands iliould hold of the King. The Nobility anfwered unanimoufly that Revocations were a Grievance to the Na- ( a ) Aft yi: Pari : 4:?: 4, ( b ) Aft 'jo.Parl: 6. Ja. y. ( c ) Aft 9, P *rl; n53 3. tion. ( i6i ) a,ncl hat in Law be taken from them without Com- peniation. Some days were fpent in the De. the Rlng pet fifling in his Refoive ° u ,?em either=to part with their Rights be Mv'vh6" hTuhe$’for 3 reafonable 'O %d.by the Heretots, and to relign their p -nonties of Church-lands, refering them- OrVelV°|h,S^0ya,1 B°Unty 83ve Commif- fion to the Earls of Rothes and Lithgow, to go up w.th an Addrefs to the King, and ay the Gnevance and h*rd/hip of the Cafe before him. It was no fooner noifed at London that ley were putting forward to deliver the then/fT ; bu! the K-tng’s Letters came to flop nev frP;OCneed,n8 in tlleir intended Jour¬ ney Which they receiv’d as they were upon the Spur at Stamford, and obeyed, by tarrvW fentre„n fcdcL?rderS’ The Petition' wa! lent up to Sir William Alexander of Mtnflrey, R 3 then ( 2*2 ) then Secretary of State, and afterwards Earl of Stirling, by whom it was prefented to the King. His Maiefiy dilrelilhing it, as of Strain too high for Subje&s and Petitioners^ forbad them to fee his Face. Bur being pacified in a little time by the Interpofition of the Secreta¬ ry, and the Eirl of A dome it h : They obtained leaye to come up to Cout t upon acknowledg¬ ment of their Error, and were again received into Favour. At their firff Audience, the King faid (alluding to their Youth) that they bad been treated like fo many young Does , whom the old ones, finding themfelves hotly purfued, and in hazard of being taken, cun- , rtingly expofe to the Hunter’s Fury, to fave their own Carcafes. With chat he difmifs’d them, and remitted to Secretary Alexander, and the Earl of Monteitb , to hear and confer with them upon the Grounds of their Commiffion. , By whom, after frequent meetings, they were brought to approve of the Revocation, with a Quality,* To confent that Minifters fiaould have Stipends out of the Teinds of their own Parifh • And the King an Annual Penfion out of all Teinds,* And promifed ro ufe their Interefls and Indeavours in Scotland for bring¬ ing thefe things about, according to his Ma- jellies defire. if. The King pleas’d at length with thefe Compliance?, and Relclutions* reftri&ed the Generality of his Revocation to Alienations of the Crown ' and . .Ecclefiaftick Revenue, made contrary to Law. For Ridding his Subje&s of their Fears and j^aloufiesj and that they might not , . ' C 2^3 ) pot be put to unnecellary Charges, in repair¬ ing to Court to Treat with him, he was pleas’d to grant Commiifion to fome of the Nobility, Gentry and Clergy to deal with thofe who* had any Right to Church Lands, Teinds, Pa¬ tronages, and others falling within the com- pafsof the Revocation,Concerning whatfho^d be done and given by, and to them ,• and to make Ads thereupon, which his Majefty promifed in V vrbo Principis to Ratifie and Ap¬ prove in the firft Parliament j But not to con*; elude finally in any point, without previoufly acquainting his Majefty theiewith. i6.The faidCommiftion(to which JamesPrim- rofe^nd James Law were appointed foie Clerks) conveen’d and fate at Edinburgh from January to the laft day of June 1627, During which time, they made a confiderable progrefs in the bufinefs committed to their care. They or¬ dained a conftant Annuity to be paid to the King out of all Teinds, except thofe belong¬ ing co Bilhops, Minifters, Colledges, Hofpi- tals, and other pious Ufes,* that is S?x Merks of every Hundred of Teind payable in Money* and out of every Teind Boll of the beft Wheat Ten Shilling; of the beft Bear, Eight Shilling of Oars, Meal, Peafe, and Rye, Six -hilling* and where Oats will not render above half Meal, ThreeShilling. And where the A^idu- al was of inferior Goodnefs, his M, jellies An¬ nuity to be modified proportionally. ( a ) Where there is no Valuation,* they appointed % ( a ) May 29: i6z 7. the ( 2(?4 } the Annuity to be uplifted according to the fifth part of the current Rent. ( a ) Thefe Ads were Ratified in Parliament, ( b) 17. The Kings Annuity, not being annex’d to the Crown, was difpon’d by the King to James Livingfioun one of his Bed Chamber, in Security and Satisfaction of sooco Pounds Ster¬ ling ; which he Tranladed with the Earl of Loudoun. But that Right having taken little Effect during the Troubles,* The Earl, at the Ileftoration, got a Commiffion from King Charles 2, to fell every Man his own Annuity, and to compone for bygones,* and to value Tithes, that the Annuity might be known. Who was to di'pone with content of two of the Lords of Exchequer, and the Difpcfition to be Regiflrate in their Books, for intruding what was received. Many bought their An¬ nuities by vertue of that Commiffion, which was renewed in favours of James Earl of Lou - dotm after his Fathers Death. He proceeded therein, till a Stop came from the King in the Year 1674, with a Proclamation difcharging all Annuity preceeding the Year 1660 : And lince then, we have heard no more on’t. 18. Having fufficiently fpoken to what fol¬ lowed on the Ad of Commiffion, in relation to the Kings Annuity : I ffiall fhortly relate what more they did, in purfuance of the Ti uft committed to them. They referred theCcm- poficion to be paid for the Feu Duties and o- ther conliant Rent of Superiority to the ( a ) March 23: 163 1. ( b ) Act 15; Park 1; Q h: 1. King, ( 265 ) King, ( a ) and found, that all Superiorities of Eredions fhould be refign’d to his Majefly freelv. ( b ) The Teinds pertaining to the City of Edinburgh , were by the Kings Letter ordained to continue in the fame State they were in before the Revocation, which was Ratified by the Commiffion. ( c ) 19. The Parties concerned having acqui- efc'd in the Determinations of the Commiffi¬ on • That all Matters of Difference might be the more calmly and fpeedily ad/uffed ,* Four SubmifTions to the King were fucceflively (drawn. One by the molt of the Lords of E- rcdtion, Titulars, Tackfmen, and others hav¬ ing or pretending Right to the Temporality or Spirituality of Benefices, and the Here tors defiring to buy their own Teinds, containing a Procuratory of Refignation in the Kings Hands, ad perpetuam remanentiam , of their Rights to Superiorities ; referring to his Ma- jefty the Compofition to be given to them for the Feu Duties and other conftant Rent there¬ of : And for refigning their Rights to Teinds, except the Teinds of their own Lands j refer¬ ring to his Majefty to determine the Rate and Quantity of the Teinds fubmitted. zo. None, withlefsreafon, conceived great¬ er Fears of the Kings Revocation than the Bi- (hops. Who therefore fent up Adam Balknden Bifhop of Dumblane, and Mr.j^» Adaxwel one of the Min lifers of Edinburgh, to reprelent to his Ma jell y their Apprehenfions, that the Com* ( a ) May 29: 16:7. (b) "June 29. 1627. her -8; 1627. ( c ) Uo’vcm- miflion C 2 66 s), ' miffion of Surrenders would undo the Church. They cou’d not be fatisfied, how the Teinds, that, in the A& of Annexation, were particu¬ larly referved as the Patrimony of the Church, fliouid be fold and difponed to the Heretors. Whereupon the King endeavoured to clear them in the matter, by a Letter ex¬ plaining the Commiftion, and his own good Intentions to have Churches fupply’d, that were not already fufficiently provided; the Crown Revenue increas’d ; and to give every Heretor his own Tithes upon reasonable Terms: Withal he chid them for their want of Chari? ty, and groundlefs Fears. The Bifhops and the reft of the Clergy finding the King bent upon the thing, were at length induc’d to make a Submiffion of all their Teinds, where¬ of they were not then in Pofteffion, by draw* ing the Teind, or uplifting Rental Bolls ; leaving the Herei.ors, who were lyable in thefe Teinds, to Submit themfelves as to the Kings Annuity. 21. Some few Titulars having fhifted to fubfcribe the firft General Submiffion, upon pretence, that the Bdhops and Clergy had not done it ; They, after the Bifhops Example, fubfcribed a third feparate Submiifion of all their Rights to other Mens Teinds. 22,. Tne Commiffioners of the Royal Bur¬ rows made a fourth Submiifion, in Name of their federal Burghs, of all their Rights to Teinds. 2 That the King might determine the Matters iubmicted the more equally, and with the ( 2^7 5 the lefs Expen fe to the Subjefl; Warrand was given to the Commiffion to appoint snb- lommiffioners in each Prcsbytry, to be chofen bv the Moderator and Brethren thereof, tor trying the real worth of Lands in Stock and Teind, and the juft and conftant value of Teinds where the fame had been drawn by a Titular or Tackfman, not being Heretor for feven Years of fifteen proceeding tbe le- condof February 1629. Before whom Actions were purfued at the Inftance of the Heietpis, or Procurator Fifcal, in cafe o^ their negie<5t. Appeals from them were difeufs’d and their Reports allowed or difa'ilowed, only by the Commiffion. But Heretors having deponed upon the value of their Teinds before the Sub^commiffion, were not bound to give their Oath again upon the matter before the Cony, miffion? The Procedure of the Sub-commil- fioners ( as that of the Judices Pedanei among the Romans ) was regulated by a Formula ot Iniundions. Five of ’em were a Quorum 5 they cou’d not admit Wicneffes not worth 100 Pound of free Gear 5 nor more than 10 for each Room • When either the Purfuer or De¬ fender was to make ufe of theTenent orServant of his adverfe Party as a Witnefs, the Moirer was bound to produce him \ In a conjunct Probation, they were to lay mob weight up¬ on the cleared Depofitions, without reipedt to the Number ; Depofitions behov’d to be fubferib’d by the plurality ot the Sub’comroil- fion, and the Clerk ; Citations within the Pres by try were to be upon Ten Days, and ( 268 ) without it upon Twenty, and upon Sixty, if the Party was out of the Kingdom. Such as had Incereft to compear before the Sub-com- mifiion, were fafe from perfonal Diligence, for Eight Days before, and as long after the Diet of heir Compearance. Fourty Yeats payment of Rental Bolls was a Banding Rule, where no body oppos’d it. The Clerk and Procura¬ tor Fifcals Wages were paid out of the Kings Anrmiry. 24. The King, after the Lights he got from the Proceedings of the Commiffion and $ub- commillion, being well and ripely advifed in the Matters fubmitted : Upon the 2. of Septem¬ ber 1 629. pronounc’d four diftinft Decreets Arbitral. The Decreet upon the firft and ge¬ neral Surrender modified 1000 in Satisfaction of each 100 Merks ofFeuDuty, oriooMerks worth of all other conftant Rents of Superiori¬ ty, not being naked Service of Vaifals: De¬ ducing off the faids Feu Duties and other con¬ ftant Rent, the Blench Duties contained in the Infefcmems of Ere&ion, for which no Ac« knowledgment was to be paid. And thefe Feu Duties and other conftant Rent to be retain¬ ed by the Submitters, till his Majefly make payment to them of the faid Sums $ determin¬ ed the Teind to be the fifth part of the con¬ ftant Rent, where the fame is valued joyntly, with the Stock, and that where thefe are (et for diftinCt Duries, the Heretor fhould get Dedu&ion of a fifth part of the true Rent of his Teind ; ( hence called, The Kings Eafe ) and allowed the Teinds, when valued, to be bought C 269 ) bought at Nine Years Purchafe, where the Seller has the Herecable Right ,* and if but a Temporary one, the price to be rul’d by the Number of Years to run, or Quality of the Right. And referr’d to the Commiffioners of Valuation to give down of the ordinary price to Heretors having already ftanding Tacks or other Rights of their own Teinds, accord¬ ing to the Nature and Duration thereof. \ The Submitters, for making the thing effectu¬ al, were ordained to grant and fubfcribe Rights to the Teinds of other Mens Lands be¬ longing to them in favours of his Majefty ; but only to be lyable in Warrandice from Deeds done by themfelves, or their Predeceffors whom they reprefenced as Heirs ; nor were they to warrand from their own Deeds in fa¬ vours of any prefent PoiTeffor of the Tiends, condefcended on by them to the Kings Advo- cat, or the Commiffion Clerk. TheSubmiffion was not to prejudge the Surrenderee in the leaft, as to any Action of Warrandice compe¬ tent to them againft their Authorsjthey allow¬ ing, in the firit end thereof, what they fhall receive by vertueof the Decreet Arbitral, Tne Deduction of a fifth part of what is proven to be the yearly value of the Teinds, when the Stock and they are feparatly fet, is allow¬ ed for adjufting the fame to the conftant Rent Gommunibus AnnU : For the Popilh Clergy had generally racked their Teind, that was fe: in Tack for valued Duty or Rental Bolls. ( a ) fa ) Strir Inftifi Lib) a; Tit: 8: § 14. This ( 2 70 ) This Decreet narrates, that the King had a fpecia! Intereftinthe Tithes ofEre&ed Bene¬ fices ,• and therefore a part of the price, or va¬ lued Du^y, ffiouid be apply’d to his Majefties Ufe. 2y. Upon the fecond Surrender made by the Clergy, and the fourth for the Burrows ; The King gave his Decreet in the fame Terms with the former, in fo far as concerned the Quo- ta% withouc any mention of a price in order to buying. And the fecond Decreet doth farther, make it unlawful to the Submitters and their Succeflors in Office, to fer Tacks, or make any other Difpofnion of their Sub¬ mitted Teinds, except for payment of the Quota determined in the Decreet ; which fhouid be tranfmitted entire in quannty and quality to their Succeilors, without any alte¬ ration or diminution. 26. The Decreet upon the third Submiffion runs in the fame ffrain, with that pronounced upon the firfl: general Submiffion, as to the Quantity and Price of the Teind. 27. The feveral Ciaufes in the above-men¬ tioned Decreets concerning Church-Superio¬ rities, and the valuing and buying of Teinds, with the relative A DflTolu-- tionof Parliament. 2. Tho King Charles zd died in February 1685-, the Commiffion then Handing, continued to fit and Adi as formerly, . till a New One was named by the fucceding Parliament, held by the D. of Qusensberry* 3. The Commiffion cannot be faid to expire, unlefs either the Adi for it had been exprefly Temporary, or Refcinded by a pofterior Sta^ tute, or the Work perfedled for which the Commiffion was eredted : neither of which can be pretended. And it is hardly fafe to ii- mite an Adt of Parliament, even as to its Indu¬ rance without a fpecial Warrand of Pariiaj merit. CHAP. IV. By what Law Tithes are Due; rr^HE Method I deflgn to purfue in I clearing up the xVlyfterious 5ub» jed of Tithes, is, 1. To difeufs that more Learned than ufeful Queftion, by what Law Tithes are due . 2. Io explain the feveral kinds of Tithes. The different Rights of Tithes their Nature, and how they are acquired, and loft. 4. The Burdens aftedling Tithes! c How Rights of Tithes are made effedlu’al by payment. 6. Becaufe Tithes are the common ~ 2 Pond C 276 ) Fond of Minifters Provifion ; the Latter whereof is Modified and Ailocat, and the former valued and {old by Decreets of the Commiflion ; and points of Right from thence emerging are determined by the Lords of Sef- iion : 1 (hall firft treat of A&ions before the Commiflion ; and then handle fuch as fall under the Cognizance of the Lords of SeL lion. 1. The Generality of the Canonifts and Clergy, efpecially the Englifh DivineSj are of Opinion, that Tithesj even as to the propor¬ tion of a Tenth part are due de jure Divino. To find the fir ft Inft station whereof, they run back to Adam, pretending that the Law of Tithes was firft given to him ,* and that Abel was an Honeft Payer of Tithes, and Cain was not. They tell us that the Patriarchs, Abra¬ ham and Jacob payed Tithes by Revelation ; the Heathens by Tradition, and the Light of Nature*aod that the Jews had a written Com¬ mand for it. They confefs the Ceremonial part in Tithes under the Law, fuch as the reftraining them to one Tribe, and the Modes and Circumftances of Tithing, being peculiar to the Mofaick Difpenfation wasAboiilbed by CHRIST ,* but contend that Tithes are mo¬ ral as to the Quota i and in fo far eftablifhed and approved by our Saviour, and His Apo» ftles. If we Objedt that the payment of Tithes is no where Commanded in the New Tejhment. The Anfvver given is, 1. That was for preventing all occafion of Offence to the Jews whofe Priefts were then in pofteffion of f of the Tithes ; and Matters were fuffereda while to run in the old Channel, till the whole Jewifh polity was decently buried. 2. Since the World knew there was a Divine Law for 1 ithes • our LORD was only to de»* clare who had Right to receive them : Nor; was there any neceflity to make a new Law about them, fince Chriftians in thefe daysgave more than a Tenth freely. 5. The State of the Church then under Pertecution, wou’d not admit of a regular payment of Tithes. Farther ,* for evincing this Divine Right of Tithes, there ufeth to be adduc’d a (warm of Citations and Authorities out of the Councils, and antient Fathers, befides the Decrees of Popes, and Conftitutions of Chriftian Princes, particularly the Capitulars 'of Charles the Great, which are the Canons of Councils turn’d into civil Sanctions by the Stamp of Imperial Authority. Thefe jure divino*s allow no Subftrach'on in their Decimal Arithmetic^ nay, cannot be reconcil’d to the compeniing of Tithes, by payment to the Clergy of a Sti¬ pend or any other equivalent : As if that were to be wifer than GOD himfclf, who required Tithes in their kind, and not in Money • that there might be the greater Sympathy betwixt Pallor and People, by mutual partaking in times of Plenty, and fuf- fering in Extremities. They pretend not on¬ ly to giveusaReafon why GOD,who requires a Seventh part of our Time, is content with lefs of our Subfiance • for that fome pains and Induftry is bellowed upon the one, and ' * •* S3 ' not ( 278 ) Slot upon the other : But alfo affign myftical and political Reafons for devoting the Tenth, rather than any other proportion of our Goods. They difcover ftrange Myfteries in the Number Tew, and run out into the Mathema- cal Powers of it, with a great deal of fuch like Stuff too irkfom to repeat. To give this Opinion the deeper Impreffion we are inter- tained with Stories of Perfons whom Divine Vengeance purfued for refufing payment of their Tithes. Such as St. Eucbirius Vifion concerning Charles Martel , the Tragical end of the French Leutardus , and the Tale of Au~ gu/line the Monk, with the Parfon of Compton in Oxford Shire. K. Henry 8th of England is brought for an Jnftance of one whom a Curfe followed in the Extinction of his Family, and the melting away of his Treafure, for having meddled with the Tithes. Nay, fome are pleas’d to remit us for a Leffon* herein to the Very Brutes : For v£lian ( a ) Relates, fay they, that fome kind of Beafls in Africa al¬ ways divided their Prey in Eleven parts, and eat only Ten of ’em, referving the Eleventh as a kind of Tithe. Others are fo high upon’r, as to tell us that no Argument can be adduc'd again ft the Morality of lithing • hut what wou’d militate or ftrick againft the Morality of the Sabbath. The time was when this Doctrine had fuch effect upon many, and made them fo nicely careful in payment of £heir Tithes, that at their Death in lieu of any H : . * • • * „ . > fa) BiNatitm mimlim L, 4. Cap, 53. ( i V 1. .1 ,w 77.'"'..;. ■ Tithes C 279 ) Tithes forgotten, they left fome Legacy to the Parifh* Pried, called Soul-jhot. 2. A Learned Divine of our own Coun¬ trey, ( a ) has gone another and fhorter way to Work, for maintaining the Churches pre- tenfion to the Tithes. Thefe having once been Devoted and fet a part for Divine Ser¬ vice, fays he, The taking them away, and the applying them to another ufe, is like what Ananias and Sapphira did with the Price of the Land. The School- men who have dufc Divini¬ ty with Didin&ions, and many other Divines and La wyers of no fmall Note* maintain that fome part of our Goods is due by Divine Right toward the Maintenance of the Cler¬ gy ; but that the Proportion may be Deter* mined by Humane pofitive Law, according to the Sircum fiances of Times and Perfons. This Opinion is calculated to our Meridian, and Jumps with the Analogy of our Law. (*) Nor will it appear unreafonable to any who confider that the Pried- hood being chang’d, there is alfo a change of the Law. ( c ) Our Saviour having Inftitute a New Form of Miniftry, appointed alfo a New Way of providing NecelTaries to His Miniders ; That is, only in the general terms of 'they who preach the Gofpel [ hould live by the Gojpel , (a) D. Forbes Theolog. M oral, part 3. Lib. 8. Cap: 2. Ft, 1 3, (b) Craig Feud. Lib. 1. Dieg. 1$. Stair Inftitut. Lib . a. Tit. 8, §,4; Mackenzie Inti it ut-, lib, zt Tii, jo. (q) Hckr, 7. 12. a »£ ( 2$0 ) anH tb/ywU Serve at the Altar, fbeuU participate cf that which is offer d upon the Altar. 2. Abra¬ ham s payment of Tithes to Melchifedech was partly a piece of Homage to him, as King of Salem y partly to Require the feafonable Pre- ienrot Bread and Wine, that Melchifedech foi-ought With him io R- frefli Abraham's Army : and Jacob f Vow was a Free-will-Offering, not Jounced on any precedent Tie. The payment of I ithes by Pagans to their Heathen fdnnes; was not the effftf of any Natural In- ainid ; but only a Cuftom borrowed from the And as^ for the Law, concerning the payment of Lithes among the Jewsi that was only calculate to their particular Conftituti- on, being a Theocracy • where the (hare pay- t0 their KinS. was re- ! b/.,GOP ,n a Charier from Heaven to htrnfdf, and his immediate Officers, the Fruits arid Lcvites } who had not as our Church- men the Charge of Souls, hut were vafflv r? "u,meroul:. aLnd more fertile than our Land. . 3. Tithes were clearly Ceremoni¬ al, not being given to the Levitts, til! once they LOrn enr °fe»d , a f ^Offering to the (.a) ,Ant only upon the account ot the Levitical and Ceremonial Service of the Tabernacle. { b ) Which being now inter- rupted among the jews, they themfelves pay no Tithes, tho they have dill Rabbles and DcHors or the.r Law, beeaufe they have no Levitt, - nor Temple, riot Altar. And then a farther conft- w it. 24, 28. (b) 'did. V. 24, 28. ' 'V . 'v ' t v ' deration \ ( a& .) deration for beftowing of Tithes upon the TPriefts and Levites^ that holds not in the cafe of a Golpel-Miniftry, was, for that they were excluded from all other part, and Inheritance in the Land. ( a ) Whereby they loft a Twelfth of Property, for a Tenth of An¬ nual Increafe* 4. As for the private Reafon- ings of Qrigine , Ambroje , Auguftiney and Some others of the Fathers, they are of no Auhori- ty, except in fo far as they are founded in Scripture TejUmony. Nor is it good Arguing with us to draw certain Conclufions as to the Right of Tithes, from Canons of the Church, or the Conftitutions of particular Princes. For what hath a provincial Council of one Nati¬ on to do with another ? or what Authority Can the Imperials of the old French Empire have in Scotland ? or what Force can there be in the Popes Decrees with us, who have Cba- ken off the Reman Yoke, but in fo far as they are twifted with our own civil Law ? Espe¬ cially feing by exprefs Statutes, This King¬ dom js declared to be Subjeft only to the Kings Laws^Sc to no Laws of other Counrries. ( If ) Moreover, we and many other Nations contradidl the Canon Law in Cuftoms and Practice, touching the Clergies maintenance ; and without regard to it, have by municipal Statutes Subjected Tithes to civil Titles. Few or no Tithes are payed to the Church in Italy. ( c J Only in Venice they pay all their (3) Ibid. 'U. 20, 24. (b) Ja. 1. Pari 3. cap. 48. J a. A Pari. 6. cap. 79. (c) Sir Edvard Sandy s Europe fpeculum ■ Edit. Hag. Com. 1629. fag. 144. Thomajjin la Difciplinc deP Zglife part 4. liv, 3. chap. 1, N. 13, ' perfonaj ( 282 ) perform! Tithes when at the point of Death. CO As few Tithes are payed in Spain, (b j Where moft of ’em are Feued to Laymen. We find no mention of Tithes in the Ethiopick Church, (e) Nor in the Eaft Countrey. ( d ) The Northern Nations were not eafily brought to pay Tithes. Particularly the Danes continued for a long time fo averfe from it, that they betrayed and murder’d their Prince Knmt 4th, for only going about to Impofe the payment of Tithes. ( e ) And we had a Bnnop in Orkney, who was Sacrific’d to the Fury of a Mob for his Rigorous exa&ion of Tithes. The Book of DifcipJine alfo 1560, f / J Reprefen ts it as a thing moft reafonabie that every one have the difpofal of his own "I ithes, [0 be he give fatisfadfion to the 0>prch of what fhaU be put upon him. y. In 010ft places where any thing hath been pay.;d in name of lithe, the Quota hath varied, and hath been fometimes the Eighth, T -■velvth, Twenty, Thirty, or any other part according to Municipal Cuftoms. (g ) So the l-sirtans to outdo their Enemies of Crotona did cop iterate the Ninth part of their booty to A- p So. ( h ) The Egyptian Priefis had the Third pare Ot the Revenue of that Kingdom.In France py the Laws of Charles the Great, and Lt-wis U) lb A (!>) Burnt Hifi. of the Right of Princes, chap 4. p.id.i. {(.) Daman a Goes De /Ethiopian moribus. (d) Tho- Z**n'Jbid' 1,7*) CT‘tZ: Dani'a ub- 4. tap. 37: Meurjii H‘>- Dan. lib. 4. (r) Head 5. (g) Rebuff de dccimis £•4. Carpzov Jurifpr. Conjlit. lib. tit, 8. dejin. 12*. 1 3 • (0/ jaji,~n. jtiifi. lib , 29, chap, 3, U dsbonnair ( 28? ) le dehonnair two Tithes were payable, that is both a Ninth and a Tenth by the Laick Prf- feffors of Ecclefiaftick Benefices, (a) In Ger - many they have a cuftom of paying Certas menfuras pro Decimis five Coloni aliejuid collegerint five non. ( b) By the Laws of Swedland and Gothland Decimarum Tertiam partem (ufcipit Pref- hyttr, et de reliquis ditabus partibus capit Ecclefia tertiam partem. ( c ) And with us much Tithe is confolidate with the Stock, called Decima tnchtftf ; and all other Tithe may be valued • and mod of it may be bought, (d) The Di¬ vine Right of Tithes being fufficiendy confu¬ ted : I remit fuch as defire an Anfwer, to Dotftor Forbes's Argument for leaving them to the Church, to what is advanc’d, Part i. Chap . 5. N. 4. I laid, the Clergy according to the Schoolmen and others, have a Title by Di¬ vine Right to a Competency of our Goods for their Aliment ,* But if they be otherways fufficiendy provided for, as in Churches where Stipends are modified to Minifters ; they have no Divine Warrand to claim any thing by way of Tithe, fince the Gofpel Reafon ceaf- eth. But tho I joyn with thofe who think that the payment of Tithes may be refiritfed and qualified by particular Laws and Cuftoms • I would not be understood jtp favour their Opinion, who hold Tithes to be mere Alms, and not due to the Minifters of the Golpel ( a ) ThomaJJin part 3 . liV: 3 . chap: 2. N. 3. ( b, Seldcn HiB-.oflkhes ehap: 7. N. 8. (c) Ibid. (dj M \o.Parh *•&/; 2. W. and M, 4ft 34, Sejf, 4, Ibid, , C 284 j by any Parochial-right ; but that in cafe of his Mai ve, fat, on they may be difpos'd of by the Heretor at pleafure. For this is abundant- of ‘thefe" Chbryhe . MafttWaSM0thefe !hinSs-wllich»byabufing his Wh VhF NaT’ 16 ™ok'd froni Nanmttn. Which Expreffion mud be confidered only as an Extravagant Flight of an over-heated laty. ncal vein. * y ( a) Co»Jid:for removing Hirelings out of the Church. CHAP. V. The fever al fads of Tithes Explained. ITHES have been varioufly divided by thefe who have ‘handled this Subject, according to the different views they had of it. But I think . *or fhmndiions fake, they may 6e divided into Tithes under the Law, and Iithes under the Gofpel. 2. Under the Law, befides the firft Fruits, % , ras to Levites, and the J ithe of that to the Priefts, called Decima De- c\marumi r 2 so c'marum , or the Tithe of the Tithe. A fecond Tithe was taken out of the Peoples nine parts, and fpent the firft two Years at the Temple in Feafts ; not unlike the Agap# of the Primitive Chriftians. The Rabbins make alfo mention of the poor Mans Tithe, which every third Year was to be beftowed at home within their own Gates upon the poor and Levites. But whether that was in place of the Tithe for Feafts, as Mr. Selden thinks, or, according to the Opinion of others, a third extraordinary Tithe diftind from both the Levites Tithe and it ,* they’re wifer than I can tell. Tithes under the Gofpel may be confi- der’d not improperly under the Notion of or¬ dinary and extraordinary Tithes. The latter were an improper kind of Tithes impos’d by the Pope pro re natd to lerve a turn of fome publick Exigence of Church or State • as for carrying on a Holy War againft Infidels or He- reticks* Such were the Decimte Papules , and the Vecitn# Saladina. Some Grants of Tithes of this kind in favours of our Kings are extant in Fordons Hiftory. I find mention in fome of our old Papers of Second Tithes • and thefe I think may not improperly be brought under the Denomination of extraordinary Tithes. The Bifhops of Aberdeen were infeft in the lecond Tithes of all Cafualities of Ward and Relief of Lands holden of the King within the Shires of Aberdeen and Bam ff; and the raifing thereof being uneafy and troublefom, 1$. William Elpbin/loun obtained from King yamet 4. an equivalent Compenfation for the lame out C ) out of the Rents of the neareft, and moft con¬ tiguous of thefe Lands during the Ward. The Biftiop of Brechin alfo got Right in the Year !°, c.h„e f"co"d Jithesof the Kings Cafua- lines of Ward, Relief, Marriage, Fines Ef- cheats, and Unlaws of Juliice Courts,* Cham¬ berlain and Sheriff Courts, in the Shire of Kincardine &C. 4. Ordinary and proper Tithes are divided either with refpetf: to the SubjeftTithable or the perfons payable to. Tithes with refpeci to the Subject Tithable are commonly divided into Perfonal, Predial, and mixt Tithes. 5> • Perfonal Tithes arife out of a Mans free Gain by his Trade or perfonal Induflry $ Ex- penfes being firft deduced : And are due at the Years end to the Pari/h Church where the pei fon lives, and partakes of the Divine Ordi¬ nances. (a) But at Venice they haveacuftom of paying their perfonal Tithes once for all in Articulo Mortis. ( b ) Charles the Great is the firft whom I obferve to have appointed by a pubiick Law, (c) That all perfons fhould pay the Tithe of their Labour, now calied 7 he Perfonal lithe. Ic were vain for me to trace the Canonifts in their Subtilizing, when they tell us, that he who has Houles in feveral PariChes,and refide fomecimes in one and fome- times in another, muft pay the perfonal Tithe ( a ) Zoef in Decretal ; Lib : y.Tit : 30: Cap: 1; N: I2; Cap: 3; W 63 ‘CaniJ; de Decimis , > ap: 2: N: 2. ( b ; Rebuff: de De- cimis,§l: iy.N; 52: A; M onet: Breviar ; aim Auff; 'de Decim' Ca?. 7:pi 478, ( c) Amo 789; G; 17. where where his principal Dwelling is: (a) And that if upon the Confines of two Parities. he pays a perfonal Tithe to each of ’em. (b ) And if it be doubtful what Pariih the Parties Houfe belongs to, the Situation of the Door determines the matter. ( c ) And where there are two Doors, that is confidered as the Pan ill where the principal or Fore-Door is fix’d. ( d) I fay it were fo much Labour thrown away, to infift and dwell upon thefe or the like unprofitable Niceties, which fwell the Writings of the Do&ors. Efpecially fince perfonal Tithes take no place in our Cuftora. C e ) And more than that have every where gone into Defuetude. (/ J But yet 40 Years payment to the Vicar of a certain Duty by Weavers out of each Loom in the Parifli' tho a kind of perfonal T ithe was fuftained to make them liable for the fame in all time there¬ after. ( g ) 6. Real or Predial Tithes are fuch as are payable out of the natural Fruits cr Produ& of the Ground or Water. ( h ) Of this kind are the Tithes of Corn, Wine, Fifli, and liv¬ ing Creatures, &c . which are due perceptU (taiim FruHibui to the Parifh Church where the Fruits are gathered; and that off the . f * l Rei)ujf Ibid: 6: N; 2: Monet: Ibid: Cap • p. ( b ) Ibid: Rebuff: Ibid: N: 3. ( c ) Ibid: N: 4 (d ) Url N: Arg- /; 44: ff: de Religief & l: 10: ff.de Statu Hominum < ' ) Stair Injilt. Lib: A Tit: 8: § 6; ( ; Carpzov Cmf.fi. Lib-. Tit: S-Def .3 N: Ca«if: de Deem: Iff? 3- ( g ) November 29:1678: Birme contra E • ef NithQ.f'. end hi* TmrUs. ( h ) Stair Inftit: lib: 2 ; Tit : 8: §5. ' whole .( 238 ) whole Head, without any Confederation or Allowance of the Expenfes of Reaping or Cultivating, (a ) Aliho this would feem fcarce confident with thefe Principles of Law, Non intelliguntur Vrufius nifi dechtftis Expends, ( b ) Nec Lucrum intelligitur nifi omni Damno de - dufto. ( c ) The Reafon pretended by theCa- nonifts, why, as co the Deduction of Expen¬ fes, it is otherwile in Perfonal than in Predial Tithes • is, becaufe GOD Almighty, in the Old Teftament, referved to himfelf the one, and not the other. ( d ) 7. As for mixt Tithes, the third Member of the common Divifion, by which they mean fuch as are payable out of the Induftrial Pro¬ fits of Lands, there feems to be no neceflity of admitting the fame as contradiftind to the other two. For I find no Ground for it in the Canon Law, which ( O only mentions two forts of Tithes, Predial and Perfonal. And if the Concurrence of perfonal Induflry towards the produ&ion of Tithable Fruits did afford the Denomination of mixt Tithes ; then all Predial Tithes would be fuch. For removing all Ambiguity of this nature, thefe ought properly to be termed perfonal Tithes, , that arife from what is gained meeriy by per- ( a ) C: cum Homines 7: Extr: de Decimis ; Canif: de Decim: Cap: 2: N: 2: Cap: 7: N- 1: Rebuff: 1 1: N: 3: Zoef. in De¬ cretal: Lib: 3: Tit: 30 :Cap: 1: N: 12. ( b ) l:)6:§ ult-.ff: de Petit: Hared it: /: 7: princip: jf; Soluto Matrimonio. ( c ) /: 30: jf: pro Socio. ( d) Canif: Ibid: H: 3: Barbof: de Offic: & Potejl: Parochi , Cap ; 28: § 1: N: 37: &• 38. ( c ) C: 20: Extr: de Decimis & »lj etcher e.j r as9 ) ional Induftry ,• and all others fliould go under the name of predial or real Tithes, that hu¬ mane pains or induftry doth but partly concur to make way for. (a) Tithes, with refpetft to the perfons pay¬ able to, are divided into Parfonage and Vica¬ rage Tithes. For undemanding thisDifiin&i- °n, it is fit to notice, that the Teind due to the Parifh Minifter was at firft only the Tithe of growing Corn. But when Parilb Churches fell to be annex’d and appropriated by Morris fications, or otherwife, to Cathedral and Col¬ legiate Churches and Monaftries, and plurali¬ ty of Benefices carne in play,- ifee Cure of thefe Churches came to be iiipplied by Vicar- Incumbents. Whofe Stipends, in the begin¬ ning, were nothing but what the Parfons were pleas d to give. But that proving very incon- lideraMe, a new method was fallen upon to fet off the Tithes of the Annual Increafe Corn excepted, for the Vicars better provision Hence arofe the Difference betwixt Parfonage and Vicarage Tithes. Under Parfonage Tithes called Deem* Garbales , or Teind Sheaves or the great Teind, I comprehend only the Tithe of Corn. Becaufe the true Charatferiftick of rarlonage is, that it was introduc'd by pofitive Law, and is the fame in all places, liable to no Alteration or Extindion by Prefcripcion or long Cuff om. Whereas it can be made appear by Decifions not a few, j Tnat all ocher n2 * fnet: Ibid: Pl l6?: Barbof: Com- Do & or: in Lib * r.&crttsUTitiwir'Wsi. (b) Fid: inf. Chap: &SeB: C 390 ) TeindableSubje&s in Scotland have been found to be local : And either introduc’d, or modifi¬ ed or taken offby Prefcription. It is confefs’d, that Tithes of another kind than Corn have been fometimes paid to Parfons and to Rifiiops. But thefe were not payed to them cjud Parfons, but as having the Title of Vicars confolidate in their perfon. For as in fome places there never was any Vicar: So in others there was, but the Parfonage and Vicarage are now fwal- lowed up in one Titular. If it be objected, thac fince two Ads of Parliament were made, for obliging each Man having a Plough of Eight Oxen to Sow at leaft a Firlot of Wheat, half a Firlot of Peafe, and 40 Beans yearly, under the pains of Fen Shilling: (a) It would fesm, that Corn in thofe days could not be confidered as the Subjed of the great Teind, there being fo little Sowing. My Anfwer is. That thefe Ads do not argue a Scarcity of Corn, but only of fome particular Grains ,* for not Sowing whereof, even at this day, fome Country People have their own political Reafons. Parfonage then is the Tithe of Corn, which is due to the Parfon. Parfons are they who poffefs Parochial Benefices by their own immediate Right, whereas the Vi¬ cars Title is deriv’d from another. Parfons again are either fuch as we properly call fo, for performing the Sacred Fundion them- felves, the predial Tithes of whofe Parilh are not appropriate to any other Benefice, but in ( a ) Ja:i: Pari; 5: C ap; 81 j J: 2: Pari: 14: C; 81. their ( ) , . their own poffeffion ; or Repreientatlve Pas> Tons, if I may fpeak fo, who iupply the Cure by the help of Vicars. Of this latter kind are the Prelates of Churches and Monaftries : So called from the refpedt and preference they get in their Chapters and Convents, 9. Vicarage, or the fmall Tithe which be¬ longs to the Vicar, came in by no pofitive Law, but only by Cuftom : ( a ) And by Cu¬ ff om it is modified, and taken off. The Rea- fon has been, becaufe Vicars at firft called limple Stipendiary Vicars, were only put in for a time to (erve the Cure during the Parfons pleafure • and frequently upon the account o£ his Infirmity, and perhaps Lazinefs : So that when the parfon found himfelfin a Conditi¬ on or Humour to officiats the Vicar was re¬ mov'd, and the Stipend expir’d with his Ser¬ vice. But at length, cb majus bonum Eccleji £s perpetual Vicars were fettled with Curd Anima - rum. In Parilhes, according as all or moft of the Increafe v/as Corn, the Vicarage was in- tirely or partly founded inTeind Sheaves. In thofe where the pafture Ground was more confiderable, the Vicarage was the Teind of the product thereof. And as that differ’d in different places: So it afforded a different Vi¬ carage Tithe. In fome Parifhes no Vicarage is paid, as where moft of the Land is laboured, and the proper Subjetft of Vicarage inconfide* rable. In many parts the Tithe oi Eggs, Fruit, Lint and Hemp is paid. The VicaragS ( a ) Epeijfes de; Bfitefiees Etclejiaft ; Tit: 19; Stcf:y, N; 6. X 2 c« C 292 ) of Salt and a perfonal Teind Duty For every Loom in theparifb was fuftained upon 40 Years pofleflion. ( a ) Yea, in different places of the fame Parifh there was found Diverficy of Vicarage. In forne Lands thereof the Tithe of Lamb and Wool was paid,* iri others Hay, Gheefe and Geefe was the Vicarage, and in no part of it any Vicarage of Cows. ( b) In fome Parilhes again, and not in others, the Tithe-Fifh is claim’d as Vicarage. 10. Hopein his larger Pradicks divides Teinds into Civil, and Ecclefiaftick. By the latter he means fuch as the Parfon or Vicar may lay Claim to, and. by the former the Kings Teind of Minerals, and thofe Teinds that are Feued with the Stock, now called Decinue Incluf*. 11* The common Tax formerly paid ro the French King in old time, as the Learned B. of Samm ( c ) obferves, was the Tenth Part, which came to be called the Ninths after the Churcfi had the Tithes. (J) The fame Cu- ftom was alfo receiv’d in Germany and other places. It was the Share which the Roman Emperors referv’d out of Mines. ( e ) And Samuel, ( f ) when he is expofmg the Severi¬ ties of Monarchy, infinuates, that this was alfo the Claim of the Kings of the Eaft. 12. Decima Inclufa are Teinds which have been always within the Memory of Man Feu- C a ) November 29: 1678: Birnil contra E: tf Nithfdalet ( b ) 'July 7: 1677: Parfon of Preflonhaugh contra his Parifhio - ners. ( c ) Hifi: of the Rights of princes, Chap-, 4. ( d ) Mezeray Hiji. ( e ) l; 3: Cod: de Metal/, ( f ) i Samuel 3: 1 Si 16. ed f 293 J ed promifcuoufiy with the Stock for a joint Duty, and differ from ordinary Teinds in many Priviledges and Specialities. ( a ) Our Decim £ Incluja are much the fame with the Decim* Infeudat * in the Canon Law. But all Decim* Infeudat# are not efbem’d Inclufx with us For thefe are in the common cafe of other Teinds, if it can be proven, that the Stock and they were once diftindfc and feparate. So in a cafe betwixt Monimusk and Vitfoddels. ( b ) Teinds tranfmittcd by Jnfeftment under the Delignation of Decim a lndufa, were found not to have the Priviiedge of fuchj in regard diftindfc Reddendo s were paid for Stock andTeind: Al- tho a different Duty happens frequently to be paid in Lands of the fame Holding. 13. There is another kind of Tithes which are now priviledg'd with us, that they cannot be bought or fold, viz,. Thole that were once in the perfon of the Heretor, and referv’d by him, when he Feued out his Lands. C c ) ( a ) Vid: inf: Chap: 6:pr. ( b ) July 13: 1678, ( C ) W; & M; Pari: Stjf; 4; C; 24. T 5 CHAP. ( 294 ) CHAP. VI. Of the different Sights of Tithes 5 their Na- ture^ and how they are acquired, and extingw/fjcd. H E Council of Lateran held under Pope Alexander 3 in the Year 117$ difcharged rhe Feuing out of Tithes in thefe Terms, Trohibemus m Laid r ^ DecimM cum Animarum Juarum peri- ■culo detmentes • in alios Laicos pojfmt aliquo modo transferre. Si quis vero receperit, & Ecclejta non reddiderit , Chrijtiand Sepultura prinjetur. Cano- nifts differ in explaining this Law. Some would have the meaning to be, that Tithes, t>)o acquired before that Council, are not af- terwaids to be tranfmitted from one Layman to another. As if the Canon were only De¬ claratory of a Laicks utter Incapacity of en¬ joying Tithes at any time, (a) Sir G. Mac* kenzie takes it alio in this Senfe. ( b ) And . therefor wonders, why our Cuftom reftridls the Effect of the Canonical Sanction to In- feudacions fince the Lateran Council • think¬ ing the Miflake lay in concluding that be- pufe Laicks, by that Decree, were declared incapable of Feudal Tithes, therefore they (a ) Rebuff, de thcimis, ^ 10: N: 23: Barbof: in C: cum Apff'djc; 7;N; 5, (b_) Obf try; on tkt 2 were capable of em before. Others more probably think it imports only a Prohibition to grant new Feus of Tithes in favours of La- icks, without prejudice to former Infeudati- ons: And that the Inftnuation in the Canon concerning Laymens poffefling Tithes before, with the Danger of their Souls, is only to be underttood either of fuch as had made them- felves Matters of Tithes without any Shadow of Title ; or did not pay their Feu Duty to the Church. ( a ) And this Opinion is fitted to the Analogy of our Law. A third fort labour to amule us with a Reconciling Dittindtion of Jus Percipiendi , and Fructus Decim arum ,* as if the latter, and not the foimer, might lawful¬ ly pafs into Lay Hands, but the Learned ThomaJJin ( b ) feems to be Non Liquet in the Matter. Craig ( c ) thinks the Dittimftion ufelefs as to us, who have no Feus of Tithes extant of a Date anterior to the Lateran Coun¬ cil. From which time, our Law never allow¬ ed theFeuing of Tithes, till that Rational In¬ novation introduced by King Charles theFirtt: Neither would Immemorial Potteflion of them as Feudal have made a valid Right. 2. But fometimes the Churchmen being ?roprietars of both Stock and Teind, Feued tiem out together for a joint Duty. And tlefe we call Decim # Incluja, which none can irltrudt to have been ever feparated from the (s ) Covarrwv, V trior. Rejol. Lib, I. Cap. 17. N. 5. merf. tlim fame ant f de Decim. Cap. 13. N. 5. Selden Wft. of Tithes, N. 4. Chap. 7 . N. 2. ( b ) La Difcipihie del’Eglife, Liv, 3 , C 3 , N, 7, ( c ) Feud, Lib, j . Dieg. 1 3 . Stock. „ r 295 a Stock. Such was the Privilege of D«,W clui£, that the King himfelf could not grant new Chatters effeaually, with that Claufe. («)They were info far confidered asnoTeinds mat a Claufe in a Charter cum Dcoimis Inclufc was thought to imply, that Laicks might prelcribe a Right to thefe included Tithes • They could not be valued, nor fubiedted to any legal Burden of Minifters Stipend, or the like ; tho there was not Sufficiency of other Teinds in the Pariffi. But in regard the 29. Mt 11. Pari. Ja. 6. ordains, that where ofock and Teind are Feued together for a common Duty, Nine Parts thereof belong to cne King as Temporality, and the Tenth to the Chu^h as Spirituality, in Contemplation oi the Teind : It was found, ( b ) That an Heretor, notwithftanding his Right cum Deri - mis Inclufis , ftiould be liable to the Minifterfor the Tenth Part of the Feu Duty, and have Her lie* a gain ft the Titular pro tanto. And yet if a Fieu were granted of Lands and Teinds for payment of a certain Duty, and the Titular or Eccieliaftick having Right to the Superiority mould difpone the fame, or Nine Parts of the Feu Duty, referving the Tenth to himfelf • that Tenth could never be underftood as Teind fo as to be liable to a Stipend, more than thi other Nine Parts. 3. Since the Surrender and the Royal D- creecs Arbitral, Tithes generally pafs in fie Lib- 2- Tlt- S-§ to, ( b ) Mirth 1/84. Here! or s of luUiailan agaivjl {.olvil, . * - ' • ■ fme . C 297 ) fame manner as the Stock bv Infeftment. And that either to Univerfal or Singular Succeffors. Tithes are in Non entry, as well as Lands from the Death of the Perfon laft Veft and Seafed in the Heretable Right of ’em, till his Heir be entered. But fince they were never Re¬ toured, the Non-entry Duty, in the Opinion of Sir Ja> Stuart, (a) Ibouid be the Feu Du* ty, where the Holding is Feu, and the Fifth of the Retour of the Property, if it be Blench. The Entry of Heirs is expede by Precepts of Clare Conflat or by Service upon Brieves out of the Chancellary. And tho thefe Brieves bear only a Warrand to enquire, de tjuiiut Terris & Annuls Reditibus the Defun<5fc died ?*- Jlitus; yet an Heir, by vertue thereof, maybe lpecially Serv’d to one in Tithes: For the Terms of the Brieve arc not to be fo ftri&ly and captioufly obferv’d. ( b ) 4. For undemanding how Rights of Tithes are tranfmitted to Singular Succeffors ,• I /hall divide them into Legal, and Conventional Yn^er fbe former l comprehend, i. That Right of Tithes, which, by the com¬ mon Law, belongs to the Parifh Minifter. 2. Thofe Tithes given to Patrons in lieu of their abohihed Right of Prefentation. Convention nal Rights are either Heretable and Abfo- lute, or Temporary. The latter are confti- tute by Tacks, the other by Difpofition or Adjudication : And both by Poileffion. Of the Members of which Diviiion and Sub- Di- ( a ) Notes upon Dirletons Doubts , Title Tcinds. (b) Ibid. vifion. vifioft, we fhal! treac in fo many diftindt Se&ions. SECTION I. What Right of Tithes is competent to the Varijh Minitier ? WE are Commanded to Honour the LORD with our Subfiance. ( a ) And fince He in whom all Fulnefs dwells, flandeth not in need of our Goodnefs Himfelf, ( b ) thofe His more immediate Servants, who ferve at the Altar, and preach the Gclpel, are declar'd as His Receivers, to have Right to home part of our Temporal Things, in order to their Maintenance. ( c) Lor this End and Ufe the Tithe hath gene* rally been fet a part. And that the Diftribu- tion might be rno e equal : It was found convenient to appropriat to each Minifter, the Tithes of his own Paiilh< Which was con¬ firm’d in that Provincial Council held in Scet~ land in the year 112$, (d) under Pope Hcnorius the %d.(e) By this Method the greater portion of Tithes fell juftly to his fhare, who had the wider Parifb, and confequently the more .weighty Charge. (a) Prov, 3.9. (b) P faint 16. 2. (c) 1 Corinth: 9.11, ,Ji r3> H" (d) 35‘ (0 Fide Supra cap: 3: Pr: Hunt-, 3 d. 2. Thus* ( 299 ) 2. Thus, the Parish Minifter came to have a prefumptive Right, by the common Law, to all the Tithes within his Parifii, ( a ) Even to the Tithes of Novalia. ( b ) Which Tithe was in a manner Ratified by the 102 Aci% 7arl. 7. Ja. 6. Ordaining all Benefices under Prelacies, to be provided only in favours of adfcual Minifters. So that the Varochm qua Minifter might have effedually purfued pay¬ ment, without any farther inftrudfion • un- lefs a better Title were produced by one com- pearing for his Intereft. ( c ) I don't diftin- guilh with fome, betwixt the jus percipkndit and the Verceptio fruiluum : For the firft would become an empty and an elufory Right in the Tarocbus , if to his prejudice, and without his confent, the prefent Fruits of the Teinds could be fafely poflefs’d by others. The Doctors carry this Prefumption of the Tarochus , having Right to the Tithes within his own Diftridt, fo far, that if another were Difpoflefs’d of ’em by him, they don’t allow the Party to be fummarly Reftored according to the Brocard Spoliatus ante omnia reffituendus • unlefs he juftify his former Pofteffion by pro¬ ving that he had then a good Right in bis perfon. ( d ) And although ordinarly the King’s Gift be fufficient againft any that /hew (a) C. cum co'ntingat 29. C. quotiiam 13. X. de Decimis Bruneman , de jure Ecclejithico lib. 2 cap. 6. n. u. (b) Ibid n. 9. Cartif. de dtcimts cap. 1 n 1. (c) Rebuff, de cojigrua partione 11 . 10. & feyu. Barbof. de Offic. ptteft. Varoch. cap. 28. §. 2. w. 8, & 9. (d) Ibid, n, % & fay, Covarr, var. Refol, lib. i, cap. 17, n. 6 , not ( 300 ) not a better Title ; his Majefty being the common Author and Fountain of Rights * yet the fame in Favours of one of the "Prebends of the Chappel-Royal, and a Decreet conform, with Collation and Inftitution, was not fu- flained to carry the Right of Teinds from the Minifters Tackfman, although he produ¬ ced no other Title but his Tack • unlefs ei¬ ther a Mortification of thefe Teinds to the Chappel- Royal, or Poifeffion were intruded. (a ) Vicarage Teinds as well as Parfonage, de jure communi debentur P<*r$c/&0,unIefs Prefcrip- tion of Freedom be proven* or a better Right m fome other made appear, without neceffity upon the Mimfier to Infirud PoflMfion, but only his pr^fentation and admiffion to that Church, wirh a Decreet conform. { b ) And prefen ta don to a Church which is a Parfon¬ age, doth intide the Minifter to the Teinds, though not prefented to be Re&or or Parfon! So a prefentation to a Church that was a Prebend' u of the Collegiat Church of Dumbar, and to the Teinds thereof, was fuftain’d to give the Mini/ter the fame Right, as if he had been exprefly prefented to be Prebendary. (c) But this preemptive Title of the Minifter was Excluded by a clear Right to the Teinds m the Heretors own Perfon. f d) (») June 27. 166$. Ferguftn contra Stuart of Aftig. (I January i4. 1674 Jobttjloun contra Stuart. (c) Dirleu De/iA'2‘ ,D?lzsl1 COntr* N ovetnb net oj Carngall F*brmry 4- 1CB1, Robertfon contra Arbutl 3.1 f ( 301 ) It appears from what hath been fait!, thac regularly all Teinds belonged to the In¬ cumbent. Who if a Parfon, had Right to the Parfonage-Teind, and to the Vicarage if a Vicar : unlefs he was Limited by a Decreet of Modification or Locality ; or that another could fliew a better Right. Yea, Difcharges to an Heretor of his Tithes by the Minifter who was once Titular, after he was turn’d a Stipendiary, was fuftained for an Exonerati¬ on to the Heretor as to the years payed ; and only to make him lyable to the Tackfman, for other years conform to that ufe of pay¬ ment! till Citation or Inhibition. ( a ) But ule of payment to a Minifter, having Right by Affignation to the whole Parfonage-Teinds of a Barony, relative and conform to a De¬ creet of Locality, wherein three Chalders of Visual only was appointed to be payed to him furth thereof, did not Defend the Here* tor from being lyable in payment of the Super- plus-Teind to the true Titular. ( b ) 4. Perjona & Vicarius were not Nomina juris here, before King David's Reign, as hath been already Obferved. f c) But at length our Law came to acknowledge the Parochial Right of Tithes fo far* that it was made a Crime to take Tacks of them from others than the Parfon, or Vicar, or their Farmers. ( d ) But now the Parochial Right is refolv’d (a) 19. January 1669. E. of Athol contra Robertfon of Strowan. (b) 24. November 1699. Sir William Bruce a- gainft Sir David Jj-mt, (cj €hfipt 3. I'r, n, 3. (d) Ati 72 Pari. 2, J a, 4. into , ... ( 3°* ) into a naked Power of retaining Pofleffion of the Benefice, till the Patron obtain a juft Stipend legally fettl'd upon him. (a) Which Carries me to the other Legal Right of Tithes lately granted in Favours of Patrons. i (a) M 23. Sejf. 2. Par, tP. and M. SECT. If. What Right to Tithes is competent to Pa* trons > THE Powers and Privileges of Patron were formerly very Confiderable : he had the Difpofal of the Fruits of the vacant Benefice ,* and the Prelentation of Incumbents, whofe Deeds of Importance re¬ lating to the Benefice, were not Legal with¬ out his Confent. Thefe ordinarly at their Entry uled to convey therr Parochial Right of tfae Tnhes hy way of Tack to the Patron for ulfX£d S“Pends far vt/ichin the Value : and what Remained over the modifyed Stipend was fo much clear Gain to Him. * . 2* But ^ow Prefentations are Refunded, m lreu whereof Patrons have got Right by Law, to all the Teinds of their Benefices, not Heritably Difponed, wirh the burden of 1 acks, and the ordinary Impofitions for Mi- nf »eJs. rov^lons and Augmentations ,• even oi Maintenance to two Minifters in one Pa- rilh ( 3°3 rifli, if the Commiffion pleafe : and Redeem¬ able by the Heretors at fix years Purchale af¬ ter Valuation. But the Minifter benefic’d is not to be Difpoflefs’d until the Patron obtain a juft Stipend legally fettled upon him. ( a ) So that the old Broeard Decim# debentur Taro - cho , is in a manner inverted to the Tune of Decima debentur Patrono. By the Aft of Parlia¬ ment 15-95, C b ) Gifts of Patronage from the King, without Confcnt of the Benefic’d Perfon, are Declar’d Null. But now by the Afts of Parliament 169c, and 169;, all .Mi- nifters are made Stipendaries, and the Teinds of the Benefice exprefly ftated in the Patron ; with the burden of a Stipend to the Minifter. Who though once a Titular is allowed, but a jus retentionis et hypothec# , till Redeemd by the Patron ; Not unlike the Lords of Ereftion their Title to the Feu-duties. For as thefe cannot of themfelves purfue Reduction of their Vaffals Feus : So Procefs was not fuftain’d at the Inftance of a Quondam Parfon for reducing the Kings Gift of Patronage upon the Aft 1*95, as being Null for want of his the Incumbents confent. ( c ) The Minifter of Heunam being provided by a Decreet of Locality with a Stipend, partly out of the JParfonage,and partly out of theVicarage.Tithes of his Parifh • and Sir John Scot of Ancrum ha¬ ving purfued a Valuation of the Vicarage a* (a) Act 23: Sejf: i. Junft Aft 26: Sejf: 4.' Pari: W and M: (b) Aft 172: Par : 13: Ja ; 6. (0 The Minijler of Afskirk againfi Sir Gilbert Eliot. gainft gain# Sir Walter Riddel oi that Ilk, and the ei¬ ther Heretors, to the EfFedfc he as Patron might have the Excrefce, afrer deduaion of what was payed to the Minifter : The Lords of Commilfion found that he was not in the cafe of the Aa of Parliament. Since the Mi- nifters whole Stipend was not payable out of the Vicarage-Teinds, and they were not luf- ficient to make it up. Teind fifti taken irx alto man were found Valuable, and lyable to be fold at the Inftance of the Heretor of the Ground where the Boars landed, againft the Batron of the Parifli, who laid Claim to them by vertue of the faid late A 6t. (a ) For the Patrons Right to the Teinds, and the Heretors Right to buy them at fix years Purchafe, are reciprocal, and of the like extent. A Difpo- lition by a Patron to an Heretor of a Tack of his own Tithes, with all other Right he had thereto, or might have at any time thereafter - was found to carry, not only Tacks of Tithes and conventional Rights, but alfo the Benefite of the Supervenient Aft of Parlia¬ ment 1690, ( b ) In the cafe of Lands alto¬ gether^ Difmembred from one Parilh, and Annex’d to another ,* the Patron of the latter will no doubt have Right to the free Tithes of the Lands Annex’d. But if the Annexati¬ on be only quoad cur am animarum j and the (a) 22 July 1702, Sir James Hall of Dung! afs again ft the Moderator of the Presbytrie of Dumbarf ord Alexander Hayfrc* (b) 3: December 169S. Laird of Adardyee again ft the Vif- oiunt of Arbuthnet, Heretors Heretors of the Annex’d Lands continue to pay Stipend out of chJr Tithes, to the Minifter of the former Parifh : It would feem that the Patron thereof may pretend to the Superplus-Tithes of the Difmembred Lands. SECT, III, Of Her et able *nd Akfolute Rights of Tithes. TITHES, although they be diftinft Rights from Lands, are either alienated ex- prefly; or tacitely by Prefumptions and Inferences. Teinds are tacitely alienated and conveyed under a Wifes provifion to the lerce of all Lands and Heretages. (a) But a Husband having Obliged himfelf to Infeft his Wire in all Lands and Heretages Conqueft during the Marriage ; her Right was found not to Extend to Lands and Teinds, whereof the Husband purchafed an Abfolute and He* liable Right, two years after he had acquired Tacks of the fame jiante Matrimonio ; Except in fo far as the yearly Profite by the Here- table Right exceeded that of the Tack. ( h ) Teinds were found to be carried by a Dilpo- fition of Lands, not mentioning the Teinds; becaufe it contained an Affignation to the (a) 13: February 1618: Lady Dumfermling contra the Earl her Hon. (b) 12; March 1628; Inter Eofdem. U Tenents Tenents Tacks, which bore a Joint-duty for Stock and Teind, and an Obligement to pay the Minifters Stipend out of the Teind. (a) A Buyer or Comprifer from one having Right to Lands cum decimis inclujis , will have Right to the Teinds,though not exprefly men* tioned in the Difpofition or Compryfing: But this would not hold in the cafe of common Teinds. For although Servitudes and Rights of Annualrent, and other Burdens upon Lands are Extinguifhed confujione or confolidatione , as foon as they come in the perfon of the He* retor : Yet by one’s acquiring Right to the Teinds of his own Lands, they are not fo confounded with the Stock, as that the Lands being thereafter Difpon’d or Comprys’d, without mention of the Teinds ,* the Buyer or Compryfer fhould have Right to thefe. For where Lands and Teinds are PoffefTed diverfo jure , the Latter are not of the Nature of a Servitude, 2. A Difpofition of Teinds for Onerous Caufes to a Creditor, to be bruiked by him till he wascompleatly payed of a Debt therein con- defcended onandfpecified, conform to which he attain’d poifefhon of the Teinds, by receiv¬ ing payment, and granting Subaltern Rights thereof, was not found a modus habilis of Con¬ veyance, or a fufficient Title to maintain the Creditor in his poffeffion againft a Angular SucceiTbr; Or to defend him in a Spuilzie af¬ ter inhibition: But only a psrfon&l Security (a) February 27; 1^72; Sctf cWr/t M airhead. againft C 3°7 ) againft the Granter. The Right not being fet by way of Tack for a certain and definite time, or ocherwife to make it real, (a) When Tithes are conveyed with all Title the Dif* poner hath, had, or fhall acquire thereto; Supervenient Rights acquired either by Sta¬ tute or private Tranfadion accrejcunt fucceflorL O) Warrandice or an Obligement to make up the Subjed difponed in cafe of Evidion, is a common Claufe in Difpofitions, fometimes expreft; and fometimes implied, as when the Right is granted for an Onerous Caufe. In either of which Cafes, if the Difpofition im-» port an abfolute Right, the Difponer cannot cloth himfelf with any pofterior Title that would infer abfolute Warrandice againft him, if in the perfon of another. Becaufe jus Ju - ferveniens authors , doth acrefce to his Angular Succeffor ,- even when the Right granted by the Author is reduc’d before acquiring of the other. But if only a particular Right be dif¬ poned, or any Right the Difponer hath at the time,- He the Difponer, may make ufe of an after acquired Right to elide the former. And if he then difporie the pofterior Right to a third Party for an Onerous Caufe, that An¬ gular Succeftor may exclude him to whom the firft Difpofition was made, albeit it contain Warrandice from the common Author’s Fad and Deed. ( c ) Warrandice is never extent, (a) March 27. 1628. Loral Blantyre contra Parijhioners of Bothwel. ( b) December 3. 1698. the Laird ofjllardice a, gamfi the Vij count of Jrbuthnet. ( g ) Jprfjiy, 1664. Dow - giafs CQfltVfl L, of Wtddtfburn. P 2 ded f 308 ded to Diftrefs or Evidion by fubfequent Sta^ tutes of which PurchalTers muff take their hazard, (a) Therefore no Procefs was fuftai- ned upon a Claufe of Warrandice in a Difpo- finonof Teinds for relief of a porterior Impo- fition of Stipend to a Minified) But a perfon being provided to a certain quantity of yearly Rent out of the Teinds of fome Lands, which Were afterwards appointed by Law to be the Subject of a Stipend » The Granter of the An¬ nuity was found lyable to make up the De¬ ficiency of the Fund. (V) X. An Obligement to difpone is in feveral Cafes efieemed equivalent to a Difpofition. But yet an Obligement to difpone Tithes for a certain price contain’d in a mutualContrad, was found not to carry the Right to theTithes in favours of a fingular Succeffor; unlefs he would either pay the price, or prove it to be payed ; notwithftanding of Fourty years poffeffion by vertue of the Contra#, (d) Be- cauie an Obligement to difpone is no Difpo- fiiion, nor can make a T itle for Prefcription • more than a Bond to grant a Charter and Sea- fine can lupply thefe : Hie fame being neither a Decreet : nor a compleat Right. And farther, whoever founds upon a mutual ContradLeither by v/ay of Adion or Exception, muft fay that , I2,' l6<^7' ^atfon contra Law. July i. j6i6 f*/v ^uchinUul contra L. of Innes. ( b ) March 27. 1634. Lady Dumfermlmg contra the Earl her Son (c) Inly 28 >63 S. W; C,rdnf, centra Leri Crdrefi her sL. fhune 1697. Hume of Lmt h: l againjl Hume of Wedderburn ( d ) llufco ^ I7°4* °f fallow ay againjl Mackgujfoek of the , _ f 3°9 ) the Counter-part of it is fatisfied. But pay¬ ment of the price in this Cafe being inftru#- ed,the Party in whofe favours the Obligement to difpone is conceived, might exclude the Granter, or any representing him upon the common ground of fruftra petis epuod mox es rejiituturus. It was alledg’d for theperfon ha¬ ving Right to the Obligement to difpone, i. That he, as a lingular Succeffor, was not bound for the price, that being his Authors Debt. 2. The party obliged to difpone a f- fign d the price, and the A/Iigney purfued for it» which argues that the Cedent look'd upon himfelf as denuded of the Right of the Tithes. The Obligement to pay the price was pre¬ ferred • And Prefcription hath the fame ef- as payment. 4. If the Obligement to ditpone had been contraveen’d by the Gran- ters denuding himfelf of the Teinds in favours of another, the Contract cloth’d with pofleffi- on would have excluded that other : And he could not have founded upon the not payment °n 1 P”ce> as being jus tertii to him. But all thele Defences were repell’d. Becaufe, 1. agit ex contrabiu^ debet prius implere con- traaum, 2. It is not to the purpofe, that the price was affign’d and purfued for. For who¬ ever fells by way of Contra# has two Reme¬ dies, viz. Either they can purfue for theprice, or recover the thing it felf by vertue of their own Title, unlefs the other Party can make appear that the price is payed, or Security ac¬ cepted for it. One Parties Obligement in a mutual Contra# cannot prefcrive, while the 3 other ( 3to ) other doth ftatid. For as an Exception can¬ not prefcribe, fo long as the Adion is cur- lent t So neither can a Reply, fo long as the Exception is competent. The power of dif- poning and intereft to receive the price as well as the Right to the Teinds, and Obliga¬ tion to pay, might indeed divide, the one going to the Heir, and the other to Execu¬ tors. But that is not fufficient to make them feparatly prefcribe, or the one prefcribe, and the other fubfift. For the parts of a Contrad are thus far infeparably conneded, that im¬ plement of the one cannot be fought, without performance of the other. SECT. IV. Concerning Tacly of Tithes. TA C K S May not only be fet of Lands, but a'.fo of Tithes, or any thing that is ufc ful, or yields Profit. As Prelates’ whether Monaftick or Ecclefiaflick, were un- capable, before the Reformation, to Feu out theii Teinds. So neither could they grant long Tacks, for thefe were accounted Alienations. (a) And tochegranting offhortTacks, thecon- ient of the plurality of the Members of the Chapter, or Convent befide the Setter behov’d to be adhibited. Therefore a Tack of Teinds iubicribd by the Provo/1 of Lincludtn , and the (a) Balfour P ratt; Craig , Lib; 2; Dt'cg; I0, equal ( 311 ) equal half of the Chapter, was found null, in regard the Provoft, as the dire# and princi¬ pal Setter, could not be reckon’d to make up the Quorum of the Chapter, whofe Confenc to the Provoft’s Deed, Ihould have been tefti-- fied by the Subfcriptions of a Majority befide himfelf. ( a ) But then the want of the Sub¬ fcriptions of fuch perfons of the Chapter* as Were either out of the Countrey, or Minors not paft Fourteen Years of Age, was not judg’d a Nullity in the forefaid Tack ,• albeit thefe enjoyed their own fhare of the Patrimo¬ ny of the Benefice, and were the moft part of the Chapter, if the plurality of the reft were confenting : Nor is it needful for any of the Chapter to confent, if all of ’em be Minors. ( b) It is fufficient to the V alidity of a Prelates Deed, that perfons, as Members of the Chap¬ ter or Convent, are fubfcribing to it, without neceflity either to inftrud: their Admiflion, or to fhew by the Erection- Charter, that Sub* fcribers are at leaft the Majority. But this admits of contrary Probation : For a Tack being only fubfcrib’d by the Provoft of a Col- legiatChurch, and three of the Prebends, was found null, as wanting the Confent of moft part of the Chapter : In refped the fame was proven to have confifted of eight perfons be- fide the Provoft, by produftion of provifions given to eight Subaltern Prebends, and of fome Feus or Rights fet 6y the Provoft wi.th ( a ) M arch 14: 1622: L • Drumlanrig againfi M axwsl of Hills, ( b ) Eodem die inter eofdem. their ( 312 ) their Cenfent, without neceffity of producing the Foundation-Charter, (a.) The neceflicy of a Chapterly Confent to the Deeds of Pre» lares, was carried fo far, that the Deanry of the Cathedral Church of Aberdeen being mor* tify’d to die Colledge, Tacks of the Rents on’t fet by the Principal and Members, without Confent of the Bifhop and his Cathedral Chap¬ ter was found null. Becaufe, by the Mortifi¬ cation of the Deanry and Rents thereof to the Colledge, the Dignity was not extind, but the Colledge came in place of the Dean ,• and their Deeds requit’d the Confent of the Chap¬ ter, as the Deans did formerly. ( b ) 2, As nothing could be done by a Prelate without the Concurrence of the moft part of his Chapter: So neither could the particular Members of the Chapter do any thing in their particular Benefices, without him and the Majority of the Chapter confenting. But the Confent of the new Chapter of St. Andrew* ereded by the fecond Ad of the Parliament 1617, was not found necefiary to a Tack of Teinds fet by a Member thereof in his proper Patrimony, not belonging to the Bifiioprick. Becaufe the Ad appoints only a fpeciai Chap¬ ter for -authorizing the Billiops Deeds by their Confent: Which could not be extended to in- fer a neceffity of the like Confent by the Bi¬ fhop and his Chapter to Deeds done by a Member of the Chapter, where fuch a Con- ( a ) June 24: v6jy. Inter eofdem. ( b ) Mayth 16- 1620- Cell edge of Aberdeen centra Menzies. fent C J3 1 3 ) fent was not neceflfary before that A&. For fome of that Chapter might have their own proper Chapter, or might poflefs Benefices pertaining to the prefentation of Laick Pa* trons : And fo no Confent would be requifite in thefe cafes, but of their own Patrons or Chapter. ( a ) As I oblerv’d in another place, ( b ) the Votes are to be reckon’d according to the Number of Benefices, and not of the Benefi¬ ciaries ; the Chapter Members need not to be Chapterly conveen’d, but their Confent will be good though feparatly obtain’d, if before the Death or Deprivation of the principal Granter of the Right ,• the Seal of the Bifhop and Chapter of St. Andrews doth Band for their Subfcription ,• and in all Cafes, where there is no Chapter or Convent, the common Seal, with the Kings Confirmation, is all the Solem¬ nity required to the Prelates Deed. 4. By the common Law, benefic’d perfons might have granted Leafes or Tacks, concurren - tilsus his qua in jure requiruntur , for as many Years as they pleas’d: But now they are bound up and reftrain’d by A vide Part 1. eh. o. beSt. 2. N. 4. f. Tacks of Teinds are either Conventional or- Judicial Under Judicial Tacks I compre* hend thefe fet by Order of the Commiffion of the Church, which were not liable to be Hinted to the courfe of time preferib’d by the 4. Atf, Pari. 22. Ja. 6. Conventional Tacks were the only habile way of tranfmitting Teinds of old, and are yet the ordinary way. 6n *he Ter™ of Entry and Ifli in Ticks mult be exprefs’d and certain. If the time of Tntry is not fpecified, its underftood to be from the Date of the Tack. Jacks without a definite Ilh are null; (/) Therefore Sub- ( a ) 4 : Park 2 2 ; j unit: Jcl 15; Pari: 2 3 . ja. (b ) Vqo nr ^ a]rds ° Bei/f°rci *»d Beinptrn. (f ) July iT 1688: Ojivald contra Rtfs, ^ ' J >- Tacks ( 3*5 ) Tacks of Teinds granted by the principal Tackf- men to the Heretors for the Annualrent of borrowed Money, as rhe Tack Duty during a certain Number of Years, and thereafter ay and till Re- payment of the Money, was found null as to Singular SuccelTors, except for par¬ ticular Years therein-fpecified. (a) Euc Tacks in Wadfets are valid without a definite Ilh, » viz During the not Redemption • and in Prorogations Tacks of Teinds to begin after the Ifii of the former, though the Titular be in the interim denuded. Becaufe the Wadfet is grant¬ ed with the Burden of the Back-Tack, which is in Corpore Juris, and is only a Reftridtion of the Wadfet Right ; and Prorogations are even by Authority of Parliament. ( b ) 7. A Tack without a particular Duty is null quoad Singular SuccelTors. ( c ) One who had a Tack of his own Teinds having obliged him- felf to warrand an Infeftment in his Lands free of all Teind except the Tack Duty, upon which Infeftment and PolTeffion followed ,• and having afterwards afiign d the Tack for an One¬ rous Caufe : The Obligement to warrand was found equivalent upon the matter to a Sub- Tack, or an Affignation to the Tack* and therefore the Receiver was prefer’d to the po- fterior Afligney. ( d) But yet an Obligement to difpone Tithes for a certain price contain’d in a mutual Contra# was not found to make a (a ) July 8: Montgomery contra Parishioners of ‘Kirk, jnichael. ( b ) Dirlettun Doubts and Qitc ft ions in Lap, Title Back-Tacks. ( c ) Stair Jnjlit: L ib: 2: Tit ; 9; § 29. ( d ) March 20; 1629: L; Finmouth contra Weems ; Tide f 31 6 ) Z' '• That ;the Bond was exorbitant, and the Burgh lefed thereby. 2. That the Tack was null, as granted by the Setter indu- ftrtoully to prejudge his SuccelTor, after the Setter had a clear profped of promotion to tne See of St. Andrews then vacant. 2. The Entjy of the Tack, was confer’d in tempus inba- hle after theBifhopsTranflation, and fo might be quarrel d by his SuccelTor. ( * ) The Rea- ions oftheDecifion were, 1. Albeit Magi- gihrats of Royal Burghs cannot alienate their Freedom and Priviledges effentially conftitut- ing them a Burgh, without Confent of Par¬ liament .* Yet they have the free and full Ad- miniftraeion of aii Affairs thereof Succeed¬ ing Magiftrats may indeed purfue them for Damages by Malveifation, or Mifmanage- ( a ) February 9 : 1704: E: of Galloway contra Mackgufock i675= Colledge of Aberdeen contra ihenE Nort he sk and others, (c j November , 685. Arch. Bijbop of St. Andrews againft the Magiftrats of Glajfow. ment ; ( 3*7 > ment : But cannot annul their Deeds in fa¬ vours of a Third Party, which would cut off all Commerce and Tranfa&ion with Burghs. 2. It was Jus Tertii to the Town, and only competent to the fucceeding Bilhop to quarrel the Tack upon thefe Nullities. 8. The Contra&ers Names are a neceftary Subftantial in a Tack, which fhould be clearly exprefs’d. Albeit Tacks are flrittifwsi juris , they will go to Heirs, even without a Service, when Heirs are not therein mentioned. It was Debated ( a ) though not Decided, If a Tack of Teinds fet to a perfon and his Heirs in particular Lands, would belong to his Heirs whatfoever, when thefe lands are fold by, or Adjudg’d from him ? But there feems to be good Reafon, why in fuch a cafe the Tack fhould pafs to Heirs whatfoever. For the Qualification in Favours of Heirs in fuch or fuch Lands, is only defign’d to clear the Fiars intention as to the perfons he defires to fuc- ceed him in the Right of the Tithes : And no Limitation or Claufe irritant, inferring the Lofs of them upon his being denuded of the Lands. A formal Tack in Writ containing the Subjeft fet, Contradlers Names, Tack-duty, Ifh.and Entry diftin&ly therein exprefs'd, and cloth’d with Poffeflion, will Defend the Te- nent againft Purchafers, and a Superior as to Liferent Efcheats; but not againft the Supe¬ rior of a Ward.Vaflal, claiming the Ward and (a) Betwixt the Duke of Lauderdale and the E. of TtseddaU January 23. 1678. Non- . . ( 3'8 J Non-entries ; though he be oblidged to con* tinue the Tenent in Poffeffion till the next Term of Wbitfunday, (a ) 9. Beneficed perfons csnnot effedually fet iiew Tacks till the Old be expyr’d • and if they fee Tacks to begin after the Iff of the former, and die in the Interval before the time of Entry by the laft Tack, the fame is "U'l- f t) ,No Tutor nor Tutor’s Factor may taxe a lack to his own behove of the Teinds of the Minors Lands: and if he do, the fame wrll accrefce to the Minor. But fuch a Tack of Teinds where the Lands were Liferented by the lackfman s Wife, was fuftain’d for her Lifetime. ( c ) 10. A Tack of Teinds was Elided, and un- derftood to be paff from by after payment of more than the Tack-duty : although that was alleadged to have been done by way of Gratification. ( d ) And the accepting of a New one, differing in the Subltantfals of ac 9 Durance, and commence- “enrVr?m a former, and beginning before the Iff thereof, is underftood to be an Inno- vanon and palling from the other, though Ratified in the laft Tack : as being incom- patffle therewith, unlefs there be aifo a Pro- vifion to bruick by either of the Tacks. ( e ) Cffufes irritant in Tacks are not ordinariy r‘ Par'?\Ja ■ 4‘ lb) June 18. 1629. Dm. ZrTf uL7er-f. [Clr 28 Manh l6’2- L^y Mphmr* Murray of Sit’ V L November 9. 1677. Rutherfoord contra d r fS lrl‘T M 2 5 JamarJ ‘678, Duke of Lauder- mt centra the E, of Twe duals. purgeable purgeable after they are once incurred. But where the irritancy in a Tack of Teinds was incurr’d through a probable ground of igno¬ rance, the Party was allowed to purge at the Barr by payment of the Tack-duty and Dam- mages. ( a ) Obje&ions and Nullities againft Tacks of Teinds, are excluded by Prefcripti- on. ( b ) ix. Short Tacks cannot be afiigned, if not exprefly granted in Favours of Perfons and their Aflignies : But Liferent Tacks may. ( c ) And fall under the Affigneys Angle Elcheat. Not as if an Affignation altered the Nature of the Subject afligned, by making that mo¬ veable, which before was Heretable : But becaufe an Afligney has not the Right for his own Life-time, but only while the Cedent lives, who may die before him. 12. Some Tithes are Tax’d by Rentals to fo many Bolls yearly, either exprefly, or ta- citely by long ufe of payment, from which a Rental is prefum’d. Exprels Rentals are fometimes formally perfe£ted by a Writ under the Teind-mafters hand. Sometimes they r only Recorded by way of memorandum in his Book : and then make Faith againft the Ti¬ tular and his Heirs ; ( d ) but not againft Angular Succeffors. ( e ) Rentals are cacitely (a) July 14. 1675. Co Hedge of Aberdeen agmnfl the Earl of Northcsk. (b) July 7. 1677. Farfon of Prefiombaugb a~ gain ft his Parifhioners. July 14. 1675. Old Colledge of Aber¬ deen againft the E. of Northeik and others, (c) July 16. 1672. Dujf contra Fouler, (d) Stair Injlitut . lib. 2. tit, 9. §. 18. (<) July 5- 1 625. Aytom centra Tenents. interrupted C 330 ) interrupted by contrary ufe of payment, or exprefly by taking Tacks for a definite time. 13. If a Tackfman of Tithes continue qui¬ etly to poflefs after the Tack is out, he will have the Benefite of Tacit relocation, which is to be Subject only to the former Tack.dury, till interrupted by Citation or Inhibition. Simple ufe of payment infers Tacit relocation, and Defends till interruption. ( a ) For in that cafe a verbal Tack is prefum’d. Tacit relocation, though introduc’d from a prefum’d Confent, is fo far eftablilhed by Law, that payment of a (mail Teind duty to a Minifter after he was denuded of his Right to the Tithes was luftain'd, both as an intire Exo¬ neration for years pay’d, and as a Rule to the Titular in exa&ing of the Teind till interrup¬ tion. ( b ) And Tacit relocation upon a Tack fet by a Benefic’d perfon, was allowed as a good Title to purfue according to former pof- feflion for the Teinds of more years than the Benefic’d perfon could fet. (c) But Tacit relocation being only a prefumptive continu¬ ation of the Right, it was found to be taken away by an exprefs inconfiftent Deed of the Setter, Homologating another perfons Right, although no interruption was us’d againfl the Tackfman. ( d ) Nor doth our Law diftin- guiih betwixt natural or immediate, and ci- (a) 18. November 1676. Shell contrta Parijhioners of Pre- Slounhmgh. (b) January 19. 1669. E. of Athol contra Ko» lertfon of Strowan. (c) January 16. 1663. E. of Errol con¬ tra the lements of Uric, (d) July 18. 1671. °f Hume contra L. Ry/lawt , VH C 32* ) , til Pofieffion. ( * ) And therefore to prevent the Surprize, and Difappointment of Titular® and Tacklmen we indulge Tacit relocation* not only to immediate and natural Poffeffors, but alfo to Tackfmen of Teinds. And if it were otherwife, the Confequence would be Dangerous : fince what then could hinder Titulars and old Tackfmen of Teinds to con- teen all Heretors, whole Tacks and Sub- Tacks of their own Teinds are long ago fe- cretly expyr’d for the full Value, thirty nine years backward ; their Tehnents of Stock and Teind joyntly, being ordinarly the na¬ tural PoflelTors. The continuing then to up¬ lift accuftomed Teind-duties, being fuch a Poffeffion as the Nature of the Subjedf, at ieaft the common ufe thereof* doth admit, it muft furnifls the Benefice of Tacit relocation* There be two Decifions, 12 December 1621, L. Lag Contra Varijbiiners of LintOun , and 6 March i6;2, Lady Lauri/toun azainji her Ten - Which feem at firft view to Clafli with what I have advanc’d ; But they proceed upon Specialities : For in the former the Tackfmans taking a new Tack to commence a year &fter the lfii of the firft, without com¬ prehending the intermediate year under De¬ bate, was a Tacit palling from Tacit reloca¬ tion s and in the Latter, the Sub-Tennents 'palfing by the Tackfman, and paying his Rent to the Principal Setter, was a perfona! . (») Dtttmbtr t, 1628. Whiteftrd tint r a Jehnjlom. X , Objection ( 322 ) Objere- Icribe,* Others maintain. That though the Right of thele cannot prefcribe, the Quota may; (d) And the Bilhop of Worcester {e) tells ( a ) C. nihil prodeft 2. C. a t cedent cs 11, C. audit is 1 C. cum ex officii 1 6. Extr: de prefcription: bus. ( b ) Covarruv: ' var: vefol : lib : 1. cap : 17. N. 6. Barbos: de officio & potett: paroch: cap: 28. § 2. N. 48 & 49. (c ) Ibid: N 51. ( d } Traite touchcmt l * origint des dixmes & /’ obligation de les payer, feff: 29. ( e ) Ecclejiaflical Cafes relatmg to the Rights and Duties of the Parochial Clergy, pag ; 2 1 8 and 219. US, C 33° ) us, That the Evglifh Judges fell once upon the Knack of diftinguifiiing betwixt DecimamGar- iam, and Decimas Garbarum , finding that the Lord of a Mannour might prefcribe a Right to the former, but not to the latter. Some think that Laicks may prefcribe an Immunity from paying Tithes out of his own Lands, by immemorial poffeffion of Freedom^ but that a Right to ocher Mens Tithes, as a thing more unfavourable, cannot be fo acquired. ( a ) Others contend, that Lay-men cannot pre* fcribe an utter Exemption from payment of Tithes, but only as to the Quantity, and mo* dus decimandi • Yet that Prefciiption both qua¬ lifies the payment, and determines the not payment in favoursof Ecclefiafticks, ( b ) Some again are as pofitive. That neither Laick nor Clergy-man can prefcribe an Immunity from payment of Tithes even by 1000 years, un- lefs againft a Lay_man to whom they were feued before the Lateran Council, (c) Others there be who diftinguilh nicely betwixt Cu- ftom and Prefci iption. (d) And Lxflly, Thofe who after t that prefer! ption of a Right to the great Teinds carries the fmaller as an Accef- lory ,• If at the beginning of the prefeription fmali Teinds were payed, and no other per- fon during the Currency receiv’d them. ( e ) ( a) Canijtus de decimis cap: 17.N. 16- fb) Hughs par ~ fans Law, chap: 25 c ) Rebuff de deemis Qu^etf: 13. N. 5 S'* ( Covarruv: ( i ) Stair Injlit: lib: 2. tit; 12. § 2t & 22. ( g) Ibid. and and Nullities againft tacks are excluded by PrefcriDtion. ( a ) And polfeffion of a part of Teinds in a Tack is fufficient to confirm the ! Tack as to the whole. ( b ) A Tack of Tithes fet to a Laick hy a benefic’d perfon foi feve- ral Lifetimes, and nineteen Years before the j A# of Parliament 1621, was luftain’d upon the account cf Prefcription, whereof the run- 1 ning was not found to be hindered by the Setters Lifetime, akho non vakbat agere. f c ) A Right of Tithes acquired by the pofitive Prescription, is hill but a Right of Tithes, and liable to the common Burden of Minifters* Provifions and Augmentations ; For even the Commiffion’s Decreet of Sale for a juft price doth not fecure againft thefe. Two perfons having entered into a mutual Contra#, whereby the one was oblig’d to difpone fome Tithes to the other, for a certain price to be paid by him: It was found,that theObligemenc .to pay the price could not preferibe, while the Obligcment to difpone was current. ( d) But yet Prefcription was fuftain d againft one of the Parties in a Contra# of Marriage, as to his Jus perfetjuendi Solutionem Doth , altho In¬ terruption was us’d, and Decreet obtain’d by the other upon the Obligement to imploy the (a) July 7: 1677: The Parfon of Prejltunhaxgh contra hit Parishioners* July 14: 1675: Old Colledge of Aberdeen againft the Earl of Northesk and others. ( b ) Spotfwood da Pofejjione, Lady Merchiftoun contra Laird of fVrightfhoufeti Stair Ibid: Tit: 1: § 13- ( c) February 1685: Pat erf on againft thi Htritm of NevhfiV, ( d ) Fid; fupr: Chap: 6i 3» Money *334 \ Money upon Land for the Heirs mentioned in the Contract ( a ) Becaufe the Objection of Non-payment of the Tocher was competent to rhe perfon pavabie to, when Execution was fought againft him for imploying thereof, and being omitted, it was probable, that the Mo¬ ney was paid. i x. Prefcription of a Right to Tithes is not to be extended to the Tithes of Novalia : ( b ) That is, he who prefcribes a Right to the Tithes of aii the Arable Land in any Parifh cannot thereby pretend to the Tithes of fueh as afterward happens to be brought in and la- bou; ed. For PfeSfcriptiones certorutn furiutn ds frafentt, von extendumur ad fututa confimilia. And befides that Prefcription is a Priviiedge which ought to be ft ri when the Visual is of inferior goodnefs : This Annui¬ ty 1 lay, is a Legal Burden upon all Teinds except Vecima inclufa, and thofe belonging to Bbhops,. Miniders, Colledges, Hofpdals, and other pious ufes. ( „ J Sir. G. Mackenzie, v ) ay s, it was found to be Debitum fundi . becaufe the 15 Aid of Parliament 1655, gave the King Right to bygone and future Annui¬ ties. But yet this Annuity feems to be no more Debitum fundi, than Tithes themfelves are. For when our Law defign’s to make any^ thing Debitum fundi, and to Oblige lingu¬ lar Succeffors, it ules exprefly to be Declar’d that lingular Succeffors lhall be lyable. As to 1 ^ 1 ^at'll r* Char. 1. (b) Obferv* on the faid the C 339 -) the Claufe in the Stature, Ordaining payment to his Majeftie, of Annuity for years paft, and to come ; That muft be under flood in a habile fenfe, io as to make Intrometters only with the Teinds of bygone years lyable for bygone Annuities, The Surrenderers did not fubmit the Tithes of their own Property : and yet thefe were lyable to the Annuity ; which was payable whether the Teinds were fold or not ; ( a ) And out of Unvalued as well as Valued Teinds. C b ) When the Tithes were only valued, the Titular was bound for it ,* and the Heretor after a Sale* ( c ) And where Tithes payed to Burrows for maintaining of Minifters, Regents of Col- ledges, SchooLmafters, and Hofpitals, exceed¬ ed what was Expended for thefe pious Ufes • the Burrows were obliged to fatisfie the Kings Annuity out of the Superplus, (d) When any Titular acquired Right to the Annuity of his Tithes, the Right of Annuity became ex- tinft : Quia res (ua nemini (ervit. And there¬ fore a Diipofuion of Tithes, from one having aifo Right to the Annuity, was found to carry the Tithes free of Annuity, aitho the fame was not exprelt in the Difpofition. ( e ) 4. Miniilers Stipends and Augmentations are another Legal Burden, and the main one, to which Teinds are liable : againlt which no Right or Title whaifoever can Secure. (a) del 17 of the faid Parliament (b) del 1 5. Ibid. (c) 16 March *632. (d.1 Direct; upon the Burrows Sub - miff on. (c) Forrefler of Logie aga.nst iVordie op Cambuf- barren and his Tenants. Y 2 And And the truth is, till once the Parifti Minifter is fufficiently provided, no perfon can fafely buy his own Teinds. For they are always fubjedt to be evided for that end, by the com¬ mon Law, and our Cuftom ,• even after the Heretor has bought ’em : unlefs there be free Teind in the Titulars hand, in which cafe he muft relieve the Heretor ; (a) tho that could not be required of a Tackf- man. (b ) Nor is a Tack of Teinds or a Pen¬ sion out of ’em to be AfFe&ed with the Mi- lifters provifion, fo long as the Titular has any free Teind within the Parilh. Sometimes the Commiffion declares Heretors free of all farther Augmentation, as when a great Sti¬ pend is impofed for the Minifter. ?• Where all the Teinds of a Pariffi were under Tack, and the Tack-duty lefs than did fuffice to make up the Minifters Stipend • the Commiffion usd to raife the Tack-duties • and to recompence the Tackfmen, for the Lofs and prejudice fuftained by the Burden impofed, were impower’d to Renew or Pro¬ rogate their Tacks even to a longer time than the Titular himfelf could have fet by Law. ( c ) A Decreet of Prorogation requires nei* ther Summonds nor Execution for its War- rand. In the year 1649, the Burden of Aug- mentadons being caft upon diverfe Tackfmen, of Teinds without any Recompence made to them in confideration thereof, and Prorogati- (a) February 8. and 15. i<543, Ccs -rjcf 4. Far l, 22. Ja. 6, fb) January 27. j 635. ons ons in Favours of others, having been loft du¬ ring the Troubles : the Commilfion i66r, were Authoriz'd to grant Recompence and Prorogation to thefe Tackfmen, according to the Rule prefcribed by the Commiffion 1617* the Titulars being always cited thereto, (a ) Sir Robert Hepburn of Keith, who was both 1 a- tron of the Parifh-Church, and T- ackiman ot his own Teinds being Decerned in 16 fo to pay to the Minifter an Augmentation ot br lib. 12 Bolls, 2 Firlots of Visual, pver and above the former Tack-duty, he got a Pioro- gation of ten 19 years added to his Tac , to begin at expiring thereof. ( b ) Sir . Robert Hepburn of Myrtoun , who had Tacks of his own Teinds, from the Chanter and Sub-chanter ot Murray , with Confent of the Bifhop, Dean and Chapter, having freely given off a Manie and Glebe to the Church of Ktnlofs with an Augmentation of the Old Stipend, got three Liferents, and three Nineteen years added to his Tacks, f O An Augmentation being impos'd in Favours of the Minifter of Aberlady of a Boil, 5 Firlots of Vi&ual, and 16 lib. ot Money upon the Earl of H addin gtouns Teinds within that Parifh, 19 Bolls, and 14; Itb. upon the Lord Elibank?s , 28 Bolls, and 145 lib. upon the Lord Gosfoord's, and if Bolls, and 104 lib. upon the Teinds of the Laird of huffnzs : In contemplation whereof, all ot (a) Act 61. Pari. i. Char. 2. (b) Hepburn of Keith flgainft Caldervoood. 1662. y 1 ' / 5 February 1662. (0 26 February 'em ( 342 ) em got Prorogations for the fame fpace of five Nineteen years of their Tacks of the Par- fonage Teind, and (even Nineteen years of their Tacks of the Vicarage • altho their Proportions of the Augmentation differ’d. (a) A .Bill reclaiming againft the forefaid Augmentation made to the Minifter of Afor- lady, being given in to the Commiflion by the- Patron, Reprefenting that the Minifter had already Nine Chalders of Victual, which is more than the Legal quota of Stipend, and that the Augmentation was defign’d but as a Blind to furnifti fome colourable pretence for a Prorogation of the Heretors Tacks, where- by . not only he as Patron would be prejudg’d, but alfo the fucceeding Minifters cut off, from the Right to them as Parfons after expynng of the Tacks ,• and craving a flop to the Decreet till he faw the Procefs and was heard to debate why no Augmenta¬ tion could be granted : The defire of the Petition was refused, in regard no part of the Augmentation was impos'd upon the Patron nor any (efficient Intereft produced by him to hinder the Augmentation. ( b ) Many others who at prefent, for Brevities fake, (hall be namelefs, obtained alfo Prorogations of their acks, in Recompence of Augmentations, and new Proviiions to Minifters impos’d u- pon ^em. In the cafe of Augmentations and other Burdens fuftained by Titulars, the Com- 3 ?]uly nbK3° Ju!J l673> Mackgie Minifter at Aberlftdy Againft his Parijlieners, J miffions ( 345 ) miffions 1661] and x66h got Power to Aug¬ ment proportionally, the Rates for Valuing and buying of Teinds, appointed by the Par¬ liament 1633. 6. Teinds not Heretably Difponed belong now to Patrons in Lieu of their former Right olprefenting Minifters : but with the Burden of Tacksf and Minifters Provifions or Augmentations • even of two Minifters in one Parifh if the Commiffion think fit. r a) 7. Tithes according to the Canon Law muft be payed off the whole Head before exacting of Cefs or Tribute-Money. ( b ) But in Scotland } free Teinds pay Cefs as well as the Land. The Teinds of the Partfti of Lilliesleaf being valued by the Commiffioners of Supplie, at 12^7 lib. 13 fh. 4 d. accor¬ ding to which Valuation, the Earl cf Roxburgh as Titular was Cefs’d for the fame ; and le- veral of the Heretors having obtain d Decreets of Valuation and Sale ; the Earl purfued them for his Relief of the Cels, and publick Burdens impos’d upon thefe Teinds fince the Sale. 8. Conventional Burdens affe&ing Teinds are Penfions, Annuities, Thirlage, and the like. I have cleared up the Nature of Penfi¬ ons, Fart 1. chap. 8. Sett. 3. As for Annui¬ ties, if the Teinds out of which the fame is payable, come to be evicted by a Superveni¬ ent Decreet of Locality in Favours of a Mini- h) JB 23. Srtf. 2. M 16. Stf 4- Parl- w- and M* (b) C. cum non Jit 3 3 verf. Statuimus Extr. de dccimis Carpzov. Jurifpvud. tonftfi. lib. 1. tit. 8. def. 136. w. 1. Z oet, in decretal . lib, 3, tit. 3. cap. 1. n* 12, ifler. The Perfon Iyable to Warrand the An¬ nuity, mu ft make it up out of fome other Fund. ( a ) And a Lady being provided to lome ieinds which her Husband was Obliged to make worth fo much of yearly Rent to her and two Chalders of Visual out of thefe Teincs being aftigned by the Commiflion to the Mimfter : The Husbands Heir was de- CLernflt^make up the Rental diminiCKd by the Minifters Provifion ,• albeit the Teinds continued to be of the fame Value as before • fince they were Iefs worth to her. ( b ) For a Claufe obliging to uphold the Rental, would be effedual for Relief, not only in the cafe of eviction in jure , but alfo in the cafe of evi&i- on cafu fertuito by Inundation, Devaftation or the like. ( c ) 9 9. Thirl age is impofed on Tithes, either taciteJy or exprefly. Tacitely, as when an Abbot by a Claufe in his Charter, aftri&ed owma zranct, which was found to extend to the Teinds then belonging to the Abbot ,• fo as to Thirl e them, unlefs a Feu-duty were payed, both for Stock and Teind. (d) But this Exception of the Teind will not hold in Miins belonging to Chuch-men. ( e ) For as Thirlage is more eafily fuftain’d againft Church-Lands than others : ( f) So it is al¬ fo more eafily conflitute in Favours of Church- 7Ju r9 Junen \691' Huwe °f UnthiU of ■ Weaderburn. (b) *8 July i^ 5. Lady Cardrofs contra Lord Cardrojs her Son. (c) Stair Jnftit. lib. a. tit , & ibid. tit. 7. §. I7. (') jbid ; - - • 9 7. iC6$. Feaich contra Duncan 3. 9 4^ (cl) (f) Ibid, §, 16, December Milns. C 345 ) Milns. Thirlage of Land to another Man’s Miln, doth not infer a Thirlage of the Teind thereof acquired afterwards by the Heretor who Thirled the Lands. ( a ) For the pofte^ rior acquifition was not intended to add any Benefit to him who had the Right of Thir¬ lage, and to Subjed the Purchafer to a heavi¬ er Servitude. Nor was it regarded that the reft of theHeretors of the Lands aftrided did grind their Teinds at the Thirle.Min : Since their voluntar Deed could not put a Tye upon others. Nor was long PolTeffion in molendino regio, of receiving Multures for all Corns of a Barony promilcuoufly without exception of Teind, found to bring the Teind under a Thirlage, Except fuch as tholed Fire and Water there. ( b ) For albeit long PolTeffion may fuffice to Thirle the Kings own Barony ,• yet other mens Rights of their Lands and Teinds can not be Thirled without their Conferrt. But 40 years payment of Multure, conform to a Claufe in a Charter aftriding omnia gran a cre- feentia without exception of Teind • was fuftained relevant to fubjed the Teind to a Thirlage. ( c ) 10. Having difeufs’d the dinerent Rights of Tithes, and the Burdens affe&ing them : we ftiall jhew in the nixt place, how they are made EfFedual by payment. (a) 3»iy January 8. January 21. 7. 163 y. tL. of Jnnervpeik contra Hainiltouit. (b) 1662. Stuart contra Feuars of Aberledno, (c) 1681. Gritrfon contra Gordon. CHAP. VIII. C 346 J CHAP. VIII. Concerning the payment of Teinds. NOTHING hath been the Subjeft of more Difference and Contenti¬ on in this Land, than the payment of Tithes. The rtfufing to pay them bath produced many trouble- iome and vexatious Law .Suits. And the Seve- nty and Rudenefs in exading them, hath oc- cafion d much Pike and Animofity : Which lometimes broke out into open Ads of Malice of Revenge. David Straitouni as Bifhop Spotf- wood ( a ) relates, being offended at the Ri* gorous Exadion of Teind Fi lh • gave Order to his Servants to caft every Tenth Fifh they took into the Sea, that the Church might go and receive it where the Stock was taken. Tut fome wicked Caithnes-^Azn are reported for the like caufes to have carried their Re- lentment farther againft their Bifhop Adam • whom they bumf in his own .Houfe, after they had firft fcourg’d him, and killed his ! Chamber-Boy. In handling the payment of ■Tithes,' we fhall firft fpeak to the Subject Tith- able. 2. The manner of payment. 3. The perfons to whom Tithes are payable. And 4. By whom, •: ( a ) Bifi’.of the Church of Scotland, Page 66. SECTION C 347 ) SECTION I. Of what things Tithes are due } THE Clergy not contenting themfelves with the Predial Tithes enjoin’d by Mo- Jes Law, Perfonal Tithes came to be exacted ; and about the end of the Twelfth Century Tithe was claim’d for Hunting, Ho¬ ney, Trade, not excepting the Commerce of Whores; and if Spanhem may be credited, ( Chalk : Bu£ *t?he fa£* time f Aouid come to the Lands and carry off their Teind after it is drawn; and to the Hereto* Barn, to receive valued Bolls. As a Penfioner of Coals mult come to the Coal-hill and receive them, and a Penfioner of Visual to the Barn_door ,• From whence they mull tranfport their Coals or Corn to their appointed place upon their own Charges, (a ) The Tithe of Fift Oiouldle pay’d at the Water-fide. But the caufing throw every tenth Fifl, into the Sea, to put the Teinders to feek their Due where the Stock was taken, (b) was an Aftion favouring more of Malice than Juftice. ° tb > SECT. III. Of the Perfoas to whom Tithes are fat able. INtormor°pP?Pe7 *,he PariftPrieftas Rec- ,ri ,i fli. !11(l a preemptive Title it nr the T rhes ofhis Parift(<0 I call oueut t P y-n Prifum?tive Title> becaufe he- quently I Churches were apnrcDriate m Monaftnes and Nunneries, &c. Whereby the ( a ) Fid-.fupr: Chap: 6. fee, f. J# Convents C 163 } Convents claim’d the Parfonage.tithes, and feed Vicars to ferve in their Room. Who in fome piaces had aftigned for their Mainte¬ nance a fmal pecuniary Stipend, in others the fmaller Tithes, and in fome places a Share of the greater Tithes. In that Provincial Coun¬ cil held in Scotland under Pope Honorius the Third, (a) Tithes were ordained to be pay'd its ad cjiios pertinerc ttofcuntuT } 1. e. Ptr(onis & Vicariis. 2. According to the Canon Law, Perlonal Tithes are to be pay’d to the Minifter of the Parifh where the Party lives ; And Predial* tithes belong to the Incumbent where the Fruits are reaped (&) And therefore Tirhe-fifti is not due to the Minifter of the Parifti where the Owners 5c Filhers dwell ; But to^him in whole Bounds the Fifties are taken ; That is, where the Boats ly, or from whence they go for ta¬ king, and whither they return for unloading the Fifti. (c) I am informed, that by antienc Guftom, the Herring-boats all along theCoaft fide of Ea/l- Lothian and Merfe, pay the whole Teind to the Parifti Minifter of the Ownerof the Boats, when thefe boats land within his Parifti ; and Half-teind when they land elfe- where, and the other Half to the Minifter within whofe Precintft they land. But pay no Teind upon the account of Docking and ly¬ ing in another Parifti : That being a Privilege for which the Mafter of the Ground receives ( a ) Cap: 3 5. ( b ) Vid : fufr: chap: 5. N. 5 & 6. ( c ) - Sir lames Stuart's Notes upon Divletoun s Doubts, Title, Teind - ten ten Shilling for Anchorage. And this practice iecms not unreafonable ; for if Filhers fliould be allowed to pay their Tithe where they Bock their Boats, it were eafie for them to Iruftrate the Stipends of their own Minifters at their pleafure, by laying their Boats where they can make tne befi: Bargain. 3* The Doctors tell of a Cuftom fome- vyhere received, to pay the Tithe of Milk to tnat pariOi where it is Milked, and of Cheefe Where it is rnade,and of the Brood where they are brought forth. ( a ) But where the Tithe or Milk is payed, there is nothing due for Cheefe made of the other Nine Parts on’t • and where the Cheefe hath been tithed, no Tithe is to be payed for the Milk. ( b ) Be-' caufe idem non debet bis decimari. The Tithe of Animals is due to the Parifh-Church where they feed. And if they be Summer’d in one, and Winter’d in another Parilh ; or if they feed all the day long in one, and ly during the night in another, in either cafe both pa- rilnes may claim an equal fhare of the Tithes. ( ‘ > 4* But now Tithes not Keretably Difponed are given to. Patrons to compenfe the Refcin- ding of their Rights of preienting Miniflers, but with the Burden of Tacks, and the natu¬ ral Burdens affeding Teinds, even of two (a) Rebuff' q 6. Barlof, de offc. ct potcjl. Parochi cap. 28 § 1 v is. G. Tbolof: fyntag: jur: Part x lib. 2 cap: 25. n 2. (b) Degge Par fans Comfellor Part 2. chap: 6. Shepherd Par - !om guide chap: 5. (c) Rebuff ibid: n. iS^.&fcqq: G. Mid. Barboj: ibid ; Degge ibid: Shepherd ibid: chap: 7 4 Miniiters r 3«s ) Minifters in one parifh, if the Commiflion think fit. So that the ancient Right of the Tarochus to the Teinds of his own Parifh, is now refolved into a Right of Security upon the Patrons Title for a competent modified Stipend. $ . Since the Reformation and Suppreffion of Monaftries the Tithes of other mens Lands, which once belonged to them, are now partly payable to Titulars of Ere&ion, or to their Tackfmen ,• and partly confounded with the Stock, the Heretors having bought them, ei* ther voluntarly, or by Order of the High Commiflion, conform to King Charles the firft’s Decreet arbitral. Other Tithes are pay¬ ed to Burghs Royal for the maintenance of their Minifters, Colledges, or Hofpitals. 6. It is an important Queftion whether he who has Right to receive the Tithes of one kind of Fruits out of Lards, may claim the Tithes of another kind as Surrcgatim, when the Land is fown with other Seed, or impro- ven to a different ufe, by being turn’d from Corn to Grafs, or from Grafs to Corn* It Would leem that he may according to the Canon Law. ( a ) But in order to fet the Matter in a clearer Light, let us confider the different Cafes of One having Right to both Parfonage and Vicarage Tithes, and where they belong to difiinm Efcheat contra Tenents. A a 2 _ . judg’d C 372 ) judg’d fufficient to afloilzie Tenents, that they had paid, though after Citation, a common Duty for Stock and Teind without Diftin<9i< on, as they had formerly done for feveral Years. ( a ) Yea, payment of a joint Duty for one Year only, by Tenents to their Ma¬ tter, as they had been in ufe to do before to his Author their former Mafter, even after In¬ hibition execute particularly againft them- felves ; was found to have been made bona fi¬ de. ( b ) And the Reafon is obvious, ’caufe Tenents who are liable to an undiftinguifhed Duty for Stock and Teind, cannot know how to divide it proportionally, and what they fiiould referve in their own Hands for the Teind. But then, if the Teind were valued apart from the Stock, the Tenents would be liable, and not the Matter,* unlefs he incromet therewith, (c) This priviledge of Tenents paying a joint Duty to their Mafter for Stock and Teind, doth only fecure and defend them againft Titulars. For they are liable as others to the Minifter for his Stipend, when payable out of the Teinds. So, one who had taken from an Heretor for a certain Silver Duty, a Tack of the Grafs of fome Lands, whereof the great and fmall Tithes, by the Plantation 1618, were made liable to the Minifter for a proportion of his Stipend, was found oblig’d to pay to him that proportion ; the Minifter ( a } March 21: 1628: Murrtty contra Intrometters with Teinds. (b) December 13: 1627: Hepburn contra Tenents of 'Eairnifiat, ( q ) Stair: Jnflit Lib; 2; Tit; 8; $ 30: Lib : 4: Tit : 24: § U proving. f 373 J proving, that the Tackfman poffeft the Land the Year contravened ; and that the fmall Tithes of the Sheep paftured thereon, and in- trometted with by him, did extend to fo much. And that albeit the Tackfman had paid his Duty to the Heretor, who had Right to thefe Teinds before the Minifters Charge. But the Tackfman had his Relief againlt the Here¬ tor, ( a j 4. Merchants purchafing, before the Tithe is drawn a whole Crop for a juft price or Onerous Caufe, will find themfelves liable for the Teind : ( b ) If the Crop was upon the Ground at the time either Unfhorn, or in Sheaves and btucks. And that altho they pa y the price before any Diligence is us’d againft them at the Inftance of the Teind Mafter. ( c ) Becaufe every one is oblig’d to know, that regularity there is a Tithe due out of the Pro¬ duce of Lands. Mean time I think, that one who buys io many Bolls of Victual, efpecially in publick Mercat, or out of the Barn Yard, tho thefe were the whole Growth of that Year ,• he would have fome plaufible pretence to plead an Exemption from payment of a Teind, viz,. That he was not bound to know, but the Teind was drawn. And this feems to be my Lord Stairs meaning, when (d) he fays, that Merchants buying for a frice} will not be liable for the Teind. S. Simon Degge ( e ) diftinguifti- C a ) February 19: 1629: Kirk contra Gil thrift, (b) Mac- kenzie Inftit : Lib : 2-' Tit : 10. ( C ) Jane 24: 1662 : Fernor againft Allan, (d) Ibid. (O Par font Gsunfellor } Part 2: Chap- 4. A a 3 eth t l .. < 374 ) eth much to this purpofe in the cafe of Tithes pf Wood. Where the Owner of a Wood, fays he, tells the whole together, or parcels it out, and the Buyers cut it, they muft pay the Tithe : But if the Owner of the Wood cut it himfelf, and then fell it by parcels; it feems reafonable, that he fhould be liable for the Tithe. As for the payment of Tithe-Fifh, the fame varies much according to the different Cuftoms of Places. An Alledgeance upon Im¬ memorial Guffom of payment by the Buyers and Intrometters with Fiihes taken and flain within the Ifles of Scotland , was indeed fuftain. ed relevant to make them them ly able* (a) The like Culfom of Merchants being in ufe pall Memory of Man to farisfy for the Teind of Fifh bought frefli in Boat*fulls, at the firft Hand from Filhers in the Ifles where they were taken ; was found fufficient to make them anfvver as Intrometters. ( b This would insinuate, that thefe were free who bought not upon the place where the Fiflies were taken, or did not buy them frefli, but at the fecond Hand, alter they had been faked by others. \ f* The Pope, by the Canon Law, is not bound to pay Tithes, unlefs of Real Rent be¬ longing to him before his Advancement to the infallible Chair, ( c ) And he ailumes a dif- (a ) February 15.1631. Bryce, Semple and S chaw, Tackf- men °J !M of the lf.es, Brown. ( b ) December 1 y66-/' B/feh °f the If, iar.tr a Hamilton Merchant m Edin~ Ul& • \c) ^4, hionet, Brc-viar. cim. slucl. dt Deumis, P. 197. penfing ( 375 ) rn,., t penfing power as to the payment of Tithes by others. The Canonifts are fore put to it, to reconcile this practice with their Opinion of the Divine Right of Tithes : So that fome of 'em are forc’d to acknowledge, that his Holi- nels can only do fo, when there is a Compe¬ tency befide for the Minifters maintenance. ( at Thisdifpenfing prerogative hath been often exerced in favours of Monks, for procuring and fecuring their immediate Dependance up¬ on the See of Rome. Pops Vajchal 2. exempted all Religious Orders from paying Tithes out of Lands Laboured by themfelves, or at their Charges. ( b) Bv which it was thought, at that time, the Parifh Churches would fuffer no great Lofs, Religious Orders being not very numerous, and unable of themfelves to Cultivate much Ground. But when they af¬ terward increas’d, the priviledge was reftri&* ed by Hadrian 4. to the Ciftertians,HofpitaIers, and Templars. And as to the other Religieux , he only declared them free from Tithes of their Gardens, or Animalia qua nutriuntur , or Novalia , whereof themfelves were at the Pains or Expcnfe of Manuring. By Novalia we * mean Lands recently Ploughed up, and made Arable, which, time out: of mind, had lyen Wild and Unlaboured. ( c ) Adrians Decree is not extant, but we have it confirmed by Alexander 3. in the Year 1170, ( d ) But the ( a ) Barbof. de Officio & Poteffate Parochi, Part 3 . Cap. 28. § 3. N. 13. (b) Decret. P. 2. Cauf. 16. \.C Decimas 47. C c) C . quid per Novale 21 Extr. de Verb, Sigpificat* ( d ) Q, ex parte tua 10 & C; feq, Extr, de Deeim . Im- Immunity in favours of the Ciftertians, Hofpi. talers and Templars was thus qualified and ex¬ plained by Innocent 3. in the General Council ot Lateran I2iy, thac it Ihould not be extend¬ ed to Acquirenda, but only to fuch Poffeflions as they had before that General Council, (a) And they mult prove that former Right if they plead upon it : Nam qui /e fundat in urn- fore, bac proban debet. (6) But yet Probation of immemorial Pofleflion is fufficient ( c ) And an Alledgeance that the Abbots of Cam. bmkfnnttb had receiv’d a certain Duty out of Glebe- Land yearly for thirty Years together was found relevant per [e, without any other Qualification to infer that the fame was Church-Land. ( d ) 6. This Exemption from Tithing in favours of thefe three Orders is perfonal by the Canon •Law, and not communicable to Tenents and euars. ( e ) Yea it is only competent to the Rehguux themfdves, when they Labour their own Lands : For they pay’d Tithes like other Men when, as Tenents, the} Occupied the Lands of others, (f) This priviiedge was once extended here to Lords of£re<3ion, Feu- ars and other Singular SuccelTbrs. And Lands Laboured by an Lleretor himfelf were found C a ) C pm. Ext. de Beams. ( b ) Retuff. Quff. r 4. N n\ 7 , j c^arrav- Refol Lit: i: Cap 17. N. 5 (d ) July 5:1626. Laird of Kerfe againfl Mr. Andrew Reid, (t ' TnX-' de Dmmis de Dtcim‘ %*/?• 14. N. 48. {’ CnDcC:mf S?*' 6 N- ‘O&n BartvJ Collect . Doil. i?, i f f DfC *td T/tr 3° C licet 1 1. N t. & 2. ( f ) C- Dilech IAH 'Nde Scim- Gan^ lbld< Bfftoj. Ibid, in d.c di. Teind- Teind-free, in refpedt they once pertain d to the Abbacy of Newbotile, that was of the t.| Ur- tUn Order. ( a) But then. Immunity of Sin¬ gular Succeffors is again brought under Debate in a Procefs juft now depending before tne Seffion. Sir George Mackenzie ( b ) is dear, that not only thefe are perfonal privileges, which fhou’id not defeend to Lords of fcaectt- on • but alfo infinuates, that the Decilion be¬ twixt Crawford and Preflongrange has nor been well dig efted. And farther tells, that Temple Lands with us enjoyed not the Exemption from Tithing. A French Author ( c ) is of Opini¬ on that this Exemption was never granted, but Salvo Jure of any particular Church that might be concern'd. And cites for this the C, dudum 3 r. Ext. de Decimis , where the Knights of bt. John were condemned to pay Tithes to the Church, altho they had a Gift of Immu¬ nity from the King and Queen of Hungary c on- firmed by the Pope. Nay farther, he alierts, that fuch a priviledge to the Monks was to be no longer effedual after they grew Rich, and the Church had need of the Tithes j and that the Title of Poverty, by which only they could claim a Share of thefe, ceafing, they return to the Church as the true Owner. But our Law never calls in Queftion the Heretor of Lands once legally exempted : Nor yet iuch as are infeft cum Decimis lnclujis. (a). July is- 1664. Crawford againfi Laird of Pr eft on. ■ ranee . ( b > oWerv: on the xq.Jil, 11 Pari J <5- (c) > - j-- t\: — gf £ obligation de les grange. Trait e touch ant i’Origine des D times, Payer. „ . .... ( 378 ) of Exemption from pay-’ meni of Tithes, is not to be extended accord- ng to the Canon Law to Novalia afterwards daI"dSeangai:n(fl1heASrbeing 3 Sing“'-ityTn o! cues againit the Canons, odious in it fe'f ro h»P ,ydlCIa u° another .• and confequsntlv As for the r' " thS moft re(,riae in explicating the Senfe whereof Inter'. preters are fo nonpluft and vex’d ; the Aran’ mem or Summary would indeed feem to In finuate, that the Conceffion of a priviledee TkheS>. c°mprehends^ Novatia- 15ut the Text runs quite in odier : can only be underftood as to the Inmnrt Parochial Right to Tithes founded in' the Dif* pofition of common Law (c) which l „ 1 ly C% dwOnpffi0r • {d) For we c“n‘ LrZni Zalti ** >* 8. Minifiers pay no Tithes for their Glebes . mort;^ede-thfehdNSn d byDLjw’ « voluntarily yl EJor yet Purchafers of Glebe- ,un els ufe ot payment be inftrudfed. (») irteiit of Tith fp0u;n,uUfficient'y t0 pay- toes. W elhould next confider what Cap. *8 <5 5 bJ J • i e offia0 & Poteffate Parochi F .?•.» 3*"- iG.vidt Covarruv. Ibid ( A \ i j’ Adlioij C 379 ) AcTion and Procefes ot Law is competent a- bout them. And that is either Aaion extraor¬ dinary before the Commiffion for Plantation of Churches, and Valuation of Teinds: Or ordinary Action before the Lords of Seflion. We fhali begin with the former. CHAP. IX. Of Atfions before the Commiffion for Plants lion of Churches , and Valuation of Teinds* HE Commiffion is a Severeign Court appointed by Adi ot Parliament, . i n v _ Da it; £> r* with a Parliamentary Power, to Determine in fome Extraordinary Matters :Such as the Modifying and Localling Stipends to Minifters ; Valuing and Selling of Tithes $ Eredting or Tranfplanting Chur¬ ches ; Uniting, Annexing, Dividing, and Difmembring Parifhes. All thefe I defign to Treat of : But that I may proceed the more diftindtly, I (ball previoufly Explain the Na¬ ture and Formalities of that Supreme Judica-. SECTION I. C 380) section I. The Nature 0} the Commi(jl0„ 5 and the Form of Frocef, before that Court. THOR Determining fome neceifary Points r inlrnf^' ,above ^e Jurifeti on of Ordinary Judges, and yet fre¬ quently fell out to be Decided while no Par¬ liament was fiitmg: Commiffioners have been appointed by the Parliament, from time to time, for judging in fuch cafes, with a l™lia“ mentary Power and to continue until a new Set were named. Their Decreets cannot b^ Reduced or Suspended by the Lords of Seffil on, b^aufe of the Paramount Authority m»Lare Cl01£d With> (a) But the Com-’ m'ffion 1 66 if was exprefly Impowered to al¬ ter and Annuli all unjuft and exorbitant De. creets pronounced by the Commiflion in the years 1649, and i6fo, in Favours of Mini- llers for their Stipends, or for Dividing U- Tymr A T,eh ‘"I’ 3nd buildin§ °f Churches. csar1"*'*; 2. Summonds rais’d before the Commiflion CL O M 39. earl. ■},. c. (l) M 6l pM. t. have f 381 ) have but one Diet, and may be Executed by any Perfon, as Sheriff in that part, as well as by a Meffenger, and upon fuch an Executi¬ on the Party if Apprehended perfonally will beholden as Confeft. (a) All Diets are with continuation of Days. No A&ion deeps here, becaufe of the uncertain fitting of the Judges. Perfons called only pro interejje dy¬ ing pendente proceflu ; the Aftion needs not to be transferred againft their Heirs. O ) It was Ordained by the Commiflion, 4 th April 1627, that all Procurators compearing before thetn&ould have written Mandats, Regiftrat in the Commiflion Books : but this has gone in defttetuJc. Nevertheless Decreet given upon an Advocat’s conlent, not Subfcrib’d by him is null. ( c ) . 2. The method of Probation here is iome- thing Angular, and now much altered from what it was. Formerly, though a conjun& Probation was ofcenallowed ,* ( as when the Heretor had Tacks of his own Teinds for pay¬ ment of a Silver Duty, (d) Yet in many cafes, one of the Parties was allowed the Prerogative of Probation, that it was prefer¬ red to the leading of Probation, which they much contended for. The Titular or Tackf- man us’d to get it upon inftrudting Poffefiion for feven years of fifteen before the year 1628, or Immemorial Pcffeflion of drawing the (a) 10 July 1643. (*>) 29 January 1673. Cotkbur * $f Ry/law contra E. of Hume, (c) July lo. 166 4. (d) Mackenzie Inftit. lik, 2. tit, 19, Oirferv. upon the 19. Aft, i Pari. C h. j, — . j Teipd; _ C 584 ) Teind; or twenty years Pofleffioti of uplifting Rental f>ohs of a certain Quantity and Quality. ( a ) When the Titular had the foie Proba¬ tion the Heretor could not lead any Pro6a- tios. of the Stock, except for Certification. 7 hat is where a Diet was aflignd to the Ti¬ tular having the Prerogative, for proving the drawn Teind, the Heretor was ordinary al¬ lowed to cake the fame day to prove the Stock with Certification, that if the Titular did fuc- cumb in his Probation, the Heretors Probati¬ on of the Stock fhould be admitted. Which upon the event of the Titulars failing to prove, was accordinly done ; and the Atb part Declared to be the Teind whereof he got down a filth as the Kings Eafe. And the Ti¬ tular was feciuded from all manner of after¬ probation. ( b ) So a Titular claiming tho Prerogative upon feven years Poffeffion of fif¬ teen before tiie 1628. got a day for proving thereof j and the Heretor that fame day to prove the Value of his Teind, in cafe the Ti¬ tular did not prove his Aileadgeance of Pof¬ Mion ,* and the Titular having failed to make his point good : The Lords declared conform to the Heretors probation of the Value. ( c ) In fome cafes the Commiffioners found themfelves Impowered to moderate the quantity of Teind, proven by the Titular as having the Prerogative. ( d ) U) Ibid (b) 14 February 1643. (c) 29 Jamurp 1673. C ockburn of RjJIajp the E. of Hume, (d) 19 y*nu*ry 1631. 4. Buc ( 383 ) a. But now in all cafes the Heretor has A joint Probation. ( a ) He may refer the Worth of the Teind to the Titulars Oath be¬ fore Witneffes be received, but not after : ( b ) And the Titular may prove the Teind Value by his Oath. C c ) If the Heretor has given his Oath of Verity, the Titular can ufe no other Probation ,* only he may get him Re-examined upon new Interrogators. ( d ) But though Stock and Teind, great and fmall be jointly Valued by the Heretors Oath ,• yet if the Vicarage pertain to the Minifter, he may prove the Value on’t otherway s if he pleafe. And the Quantity fo proven will be deduced off the fifth part contained in the Deponents Oath, (e ) All conjunct Proba-; tion of Stock and Teind not bearing the pre¬ sent, as well as the conftant Rent in time coming is null. C f) Tho Parties cited be¬ fore the Commiffion have but one diet for their Compearance ,• two diets are allowed for probation. But if the Term be circumduced againft a Party for not taking out, and Ex¬ ecuting the fil'd Diligence, he will not get a fecond. ( g ) However Diligence may be Extracted after elapfing of the Diet before the Term be circumduced at the Inftance of the other Party. ( b ) 5\ The Clerk of Commiflion in former times (a) W. and M. Pari, I. Sejf. 2. cap. 30. (b) 24 Fe¬ bruary 1643. (c) 14 January , and 29 April 1629. (d) 27 July 1634. (e) 27 July 1634. ( f ) January 19. 1631. (g) February ao. 1643 (hj Ntvmbtr 22. 1634. ( 3^4 ) usd to mark the M .mbers of every f eJtriitit, and co infert their Names in Decreets: But this hath gone in defuetude. A Decreet of Com- Biiflion ufes not to be Exrra&ed till another Diet of Sederunt be elapfed after pronouncing. And if within that time any reclaiming Bill be offer’d, that Bill muft alfo be firft read be- fore Decreet is given our. 6. This much I thought fit to premife con¬ cerning the Nature of the Commiffion Court, and the Form of Procefs before it in general : the peculiar ffeps of Formality in particular A&ions, ftiali be Obferved in their proper places. Our next Bufinefs is to confider the Method obferv’d in modelling of Minifters Stipends, before we touch upon Valuation of Jeinds : becaufe by the Submiffiom, De¬ creets Arbitral and feveral A4 > being look’d upon in our Law as no Tithes' and not affedlable by Minifters. Nothing5 can be valued but the Free Tithe, over and above what is allocat for maintenance of Mi¬ nifters, and other Pious ufes. And the He¬ re tor is only lyable to the Titular or Tackf- man for the valued Duty of that Superplus. ( a ) 1 1. The Teind.mafter after Valuation is not bound topafs from his formerRightorPoffeflfion in Favours of the Heretor, or other Obtainer of the Valuation, till he get real Security by Int feftment for the valued Bolls, or Silver-duty. ( b ) But this I never knew required. And the Reafon poftibly is, for fear of Provoking the Heretor not to reft in the Valuation, but to purfue a Sale ; which certainly he would chufe to do, rather than give Infeftment in his Lands for the Titulars valued Duty. The Term of payment of this valued Duty is be¬ twixt Yule and (Sandlentafs : ( c ) and valu* ed Bolls are to be delivered according to Lin¬ lithgow Meafure. ( d) 12. ^ The Commiilion is impowered to Rectify former unequal Vaulations : But fuch as were lawfully led agsinft all Parties having Intereft, and allowed, could not be drawn in queftion upon pretence of enorm lefion at the Inftance of the Minifter not be- ing Titular, or at the Inftance of the Kings (a) v#? 17 and 19. Parl.\6^ (b) Augufl 6.16^0. of CommiJJioti Junlf. jicl 1 7. par. 1633. Mackenzie Inflit. lib. 2* ttt. 10. C c) 23 March 1631. (d) 29, May 1627. Advocat f 405 ) Advocat for his Annuity ; unlefs Collufion betwixt the Titular and Heretor, or the Pro- curatorJifcal and them, be mftrudted j which is prefumed prafumptione juris & de jura , when the Valuation is led with a diminution of the third of the current Rent, to be proven by the Parties Oaths. ( a ) Albeit ordinary Venditions with us are not reduceabie upon the Head of Lefion ultra dimidium. But the Claufe in the Ads of Parliament, making this Collufion probable by Oath of Parties, was not found Exclufive of other probation. ( b ) A Valuation of the Tithes of the Land- wart Parifla of Perth was reduc’d at the In¬ ftance of the Magiftrats as Patrons of the Church, and Titulars of the Tithes,^ againlt the Heretors, upon this Reafon, that it was^ a Third within the real worth of the Tithes, the time of deducing thereof. ( c ) A Redudr on of a Valuation of Tithes is fuftain’d at the Inftance of the Heretor as well as Titulars, or Minifters ; if the Valuation craved to be reduc’d was not carried on at the Heretors own Inftance. ( d ) Witnefles. adduced in a Procefs of Valuation were Ordained to be Re¬ examined, becaufe they had not diftinguilhed betwixt Infield and Outfield Acres. ( e ). (a) AS 19. Var. 1. Ch. 1. AS 6 1. Par. 1. AS 1$. Par. 2. Sejf. 3. Ch. 2. AS 28. Far. 1. Ja. 7. AS 22. Sc[f. 2. Ibid. AS 30. Sef. 2. Par. IV and M. lb) Jan. uary 1672. Meldrum agamft Tolquhon. fc) February 15* 1662. (d) 19 February 1673. (e) 24 Jsily 1667. Wil. liam Chirnlavs againjl E. of Hume. 1 \7 \ C c 3 Shw A * 1V2 C 406 ) SECT. IV. Concerning Miens of Valuation and Sale of Tithes. J BY King Charles the firft’s Decreet Arbitral, and the 17 Alt, Par. i and to the Titular for the Principal l66*' ^hum *f that M againft Hume cf after C 4 °7 -) after expiring of the temporary Right. Tho Nine years purchafe be the fix’d Heretabie price of ordinary Tithes 1 Yet thofe that were given to Patrons, as not having been Heretably Difponed, in lieu of the Right of presenting Minifters taken from them, are re¬ deemable by the Heretors at fix years puchale after a Valuation, (a) The reafon of the Difparity is obvious ; Patrons came eafily by thefe Tithes, and therefore Ihould the more eafily part with ’em. 2. ThoSe who buy their own Tithes are only obliged to pay for fo much as is free Tithe, over and above what is appropriat to Minifters and pious Ufes : But mud relieve the Titulars of the Kings Annuity and Mini¬ fters Stipends fro rata. ( b ) Dedudion of the ordinary Price fhould be given to Heretors having already Handing Tacks, or other Rights of their Tithes, according to the Na¬ ture and duration thereof, (c ) But yet one who had Tacks of his own Tithes purfuing a Sale, was Decern’d to pay the whole Price to the Titular at the Ifh of the Tack. ( A ) The Price of Tithes fhould be payed at IVbit- funday preceeding the Cropt, with Annualrent from that Term. ( e ) 3 By an Old Praftique of the Commilfion, ( f j It was found that the Titular might put the Heretor after Valuation to condefcend (a) AB 23. Sef. 2. Par. IV, . and M* fo) Decreet Arbi¬ tral* (c) Ibid . (d) 27 February 1637. (c) 3° Mven- ber 16^1. ( f ) 23 Manh j 6 31 . whether , t (4CB5 . whether or not he wouid buy • and if he refus’d, he and his Succeffors were to be cut off from the Benefit of Purchafing thefe Tithes thereafter. But this I never found Obferved. 4. Heretois formerly us’d alfo to be Ex¬ cluded ^from acquiring their Tithes, if they imbrac’d not the Benefit within two or three years. Heretors tho under Minority by the Adt 17, Par. 1 6;;, had only Liberty to buy their Tithes within two years of Expeding the Valuation ,* unlefs the Titular was Mi¬ nor, or orherways impeded to fell : In which cafe the Heretor offering to buy within that fpace, was allowed to buy at any time imme¬ diately after Removal of the Impediment. By the API 61, Par. 1. Char. 2. and the 28 Ati* SeJJ . Ibid. It was competent to Here¬ tors to buy within three years after Valuati¬ on : And Minors whofe Tutors negleded the Buying of their Tithes in due time, were allowed an A&ion of Sale for two years after their Majority. By the Aft Iy. SeJJ. 3. Par. 7., Char. 2. and the Aft 28. Par. 1. Ja. 7. Hereto, rs had accefs to buy their Tithes with- in three years after the refpedtive Dates of thefe Afts. But yet a Titular of Tithes having promis d to fell them to the Heretor, was Decern’d by the Lords of Seffion to perform, albeit the time for Buying of Tithes had e- Lipied. ( a ) The Commiffion 1^90, put He* (3) February 1682. Cranford of Ardmillan arainft the Lord Bargtmy. a retors ( 409 ) , retors under no Refhidtion of time in Buying of their 7ithes. ( a ) y. Where Lands are Liferented, the He- retor purchafmg his Tithes, muftgive the Life- renter the Leading and Drawing tor payment of the valued Duty. ( b ) 6. 7ho all Tithes indifcriminarely may now be valued: (t) Yet feverals are of that Nature that they cannot be bought. Herein our pre¬ sent Conftitudon doth vary a litde from for¬ mer Practice. The common Benefit allowed to Heretors of Buying their own Tithes was once not competent for any poffefs’d by Ec< clefiaftical Titulars, the time of the Surren-i der : unlefs when under Tack in the Hands of others. In which cafe it was Determin'd by King Cbarlei the firft’s Letter, that Here¬ tors ftiould have the Buying of their Tithes fet by Bilhops, or Beneficed Perfons to Tackf- men ; Or might purchale the Tacks, if the Beneficed Perfon refus’d to do it. For he was allowed the Prerogative of buying for the ufe of the Church. And then notwith- ftanding the Heretors fo buying his Tithes ; it was intire to the Ecclefiaftick Titular to claim at the Ilh of the Tack, the Benefit of the A& of Parliament, ( d ) And of the Refervation in the Clergies Submiflion * whereby the Tithes in their Poffeffion were exeemsd from Buying or Valuing. But now (a) ASt 30. Scjff-2 Par. W. and M. (b) Acts 17. and 19, Par. 1633. (c) Act 30; SeJJ't 2, Par. W* and M. (d ) Act 17. Par, 1633. the C 410 ) the Regulation is, that no Tithes can be bought that are either poffeft by Minifters for their Stipends ; ( a j Or belong to the Queen by the Aboliftiing of Prelacy, fo long as they remain Undifponed ,* Or that are appropriate to Colleges, Hofpitals, or other pious Ufes ,• Or that once pertained to the Heretor, who Difpon'd the Lands without, or Referving the Tithes. ( b ) The Reafon of this laft Exception is plain : For an He- retor who^ having Stock and Tithe in his own Perfon, Feued only the Lands, fhould no more be Oblig’d to Sell his Tirhes, than a Superior his Feu.duties, or an Heretor any Right of Property referv’d by him when he fold his Lands. 7. It was lately contraverted, if the Tithe of Fifties taken in alto Mari , might be valued and bought at the inftanee of the Heretor of the Ground where the Boats landed ? It was alledged for the Negative ; that the Act of Parliament provides only for the Valuation of the Tithes of Lands,* And the Tithe of Fifties could not be called the Tithe of the Lands where they were unloaded. For, 1. The Stock which anfwers to that Tithe is not at all Predial, or maintained by the Strength of the He re tor’s Ground ,* Nor yet is it the Product of his Tenents Induftry ,* And being exa&ed of all Strangers, could not be called the He- record Tithe. 2. All the Title the Heretor ( a ) A& 30. 2 ,P*rl: IV, & M. ( b ) J8 24. $ef: 4, Ibid . C 4:1 ) had, was only a Right to the Harbour and Port; Which carries the benefit of the Cu- ftom, but no Right to Fifih imported, more than to the Property of a Loading of Eaft-lndia Ware. Nay, he could not fet Tacks of the Fifii of the Sea as being accidental, and the Sea juris ‘publics, wherein he could not hinder his Tenents to fifh without oppreffion. But yet it was found that thefe Tithes might be valued and bought, (a) for thefe Reafons. 1. The Teind-filh is not valued as taken inaltomari% more than the Cuftom of Goods is due, while the Ship is out at Sea. But as Cuflom for thefe is due upon the landing of the Ship : So the Teind Fifh is exacted when the Boats come to Shore, by vertue of their Landing, And therefore the Heretor had Intereft to value the fame, as well as the Vicarage-teind of any o- ther Goods upon his Ground; But this is not fimply upon the account that he furnifhed the Boats with a Harbour. For as the Teind be¬ comes due ipfo memento , that the Boats land upon any part of his Ground, albeit there were no Harbour: So the Heretor has Right to feek the fame valued. Cudom and Teind again, are different Cafualities, confident to¬ gether : So as the Heretor may both value the Teind and exadt the Guftom. Nor are any other imported Goods fave Fifh lyable to a Teind. 2. That which may be fet in Tack ( a ) 12. July 1709. Sir Junes Hall of Dunglafs agxinjt the Moderator of the Prtsbytry of Dumb*rt Lord dloxnnder Hay, &f‘ C 41* ) for a certain Duty, may be valued and bought: And it’s the ordinary cuftom throughout the Coaft.fide, for every Boat to pay, lome two, fome four, fonie fix pounds Scots, fome lefs and fome more yearly^ for the Teind.fifla com - minibus annis, one year with another. 3. Al¬ beit the Heretor of the Ground where the Boats land had no Right to the Stock of the Fifti, he may value the Teind. For he hath no Right to the Stock of his Tenents Goods, and yet hath a good Intereft to purfue a Valu¬ ation of the Vicarage.teind. 4. Ids no rele¬ vant Objeftion againft the valuing of Teind*- Fifh that the fame is cafual and uncertain; For all Vicarage.tithes are fuch for the moft part, and yet may be valued;Yea,/*##j retis is valu¬ able. j. If the Teind-filh ffoould be allocac to the Minifter as a part of his modified Sti¬ pend, they behov’d to be valued : Ocherways there could be no clear Locality,- And the Heretors of the Parifii could not know how far the modified Stipend is fatisfied, and what Free-teind they have to buy. . 8. Albeit a Sale ofTithes purfued upon the Aft of Parliament is only competent before the Commiffion : Yet a putfuit upon a pro¬ mile or conventional Obligation to fell Tithes was fuftained before the Lords of Seffion, who ordain’d them to be fold at the Rate pre- fcrib’d in the Aft of Parliament ; and remit¬ ted to one of their Number to determine the price? (a ) Since the valuing and felling of (a) February 1682. Crawfurd of Ardmillan again ji the Lord Bargany, Tithes ( 4*3 ) Tithes is much the general Intereftof the Na¬ tion ,* And yet but little progrefs is therein made through the unfrequent fitting of the Commiffion, to which Court the Determina¬ tion in thefe Matters is thirled : It were not amifs that the Parliament would authorize the Lords of Sefiion to value and (ell Tithes ; E» fpecially feing the rate and price of them are already fix’d and determin’d by Law. SECT, V. Of Aftions for Uniting, or Annexing and Dividing Pariflj-Churches, for Ereffing of new Churches , and altering the Situation of others: AS Jufiinian for Reafons of State did con¬ join feveral Magiftracies and Jurifdi&i- ons: (a) So Ecclefiaftick Benefices have been frequently united upon Motives of Convenience and Advantage to the Church. As when two Churches ly fo near together, and theBounds of theirParifhes are fo narrow, that one perfon may conveniently fupply the Cure in both ,• Or, when 6oth Stipends are but a competent Maintenance to one Minifter. By the Canon Law the Pops only could Con- fa) Nov; 8, 24, ay, 26, 27, a 8, 2 9, folidate C 4* 4 ) folidate two Bifhopricks or larger Benefices into one : ( a ) But the conjoyning of Parifti- Churches was permitted to the ordinary, ( b ) with confent of his Chapter, (c) The Pope us’d frequently to unite Parfonages and other inferior Benefices to Bifhopricks, upon pretext of their rneannefs : Which Benefices at the Reformation were ordained to be provided again with particular Minifters, whereof the Rents and Stipends were relerv’d in the Gifts and Previ lions of the Titular Bilhops then made. The Canon Law doth not allow the uniting of Benefices lying within different Diocefes. ( d ) Nor of Benefices Pacronate, either with others of that kind, or with Free Benefices, (e) 2. Scotjmcn went frequently to Rome to get Benefices united, whereby much of the Nati¬ ons Stock was exhaufted and carried thither. This oblig'd the Parliament to difcharge all Union of Benefices, and declare the purchafi* ing thereof Treafon. (f) But now the Unit¬ ing of Parilhes is allowed, and the Commiffi- ©n are the proper and foie Judges thereto. By the Union of two whole Parilhes, fometimes one of the Churches is fupprefs’d, and the o- ther declared to be the common Church for all the Parilhioners within the united Bounds. ( a ) C. quod tranfltticnem 4. Extr: de cfficio Legati : C.de- ( imasinfm : 16. qu. 1. ( b J C.Jicut unire 8, Ext : de ExceJJi- kus prcdatorum. ( c) C.dudum l . de rebus Eccleji/e non ahe- nandis in 6. (d) Bengtus de beneficiis ad «f Roff, (<} ) M 3, parl. 22. J*: 6i And r 4t£ ) And the Patron of the greater Benefice to be the firft Prefenter. ( a ) Becaule the leffer be¬ ing always annex’d to the greater, that re¬ mains the Principal and Mother Church. < b) But if one was fullered to prefenr thrice fuc- ceffively without being queftion’d, he acquir¬ ed thereby a Pofiefforv Title to prefent for the next time aTo : THo the other Patron might have declar’d his Right for the future, (c) According to the Canon Law, no Tem¬ porary Union of Benefices could be made, as during apy perfons Life. ( d) For, Dum agi- tur de caufis faennda Unionist maxime C avert dum eft ne ferjona magis quam EccUfue favor atten- datur. ( e ) 5. Sometimes a larger Parifii isdifmembred of fome Lands, to make up another. And thele are often annex’d quoad cur am animarum only: As the Lands of New haven are united to the Parifii of North- Leith , and yet pay Sti¬ pend to the Weft-church at Edinburgh. Such Annexation transferrs only curam animarum , when there is not as much Free.teind of the Lands behind, as will compenfe the Minifters lols in his Stipend by the Difmembration. But if there be, then the disjoin’d Lands be¬ come a Subject aflfe&able by a Stipend to the Incumbent whofe Parifii they're annex d to. ( a ) Mackenzie Ob fir v: on the faid Aft. ( b ) Arg. C. re - colentes 3. Ext-, de Jiatu mtnachorum. ( c) Mackenzie Obfirv; cn the 7 Aft 1. Pari ; Ja : 6. ( d ) Bengaus de benefic : ad vt- cabulum qu/edam cap: 3 §. 2. N. 8. e ) Arg: cap: 1 .verfi maxime ne plus favijfi per font Ext; ne fide vac: aliq: intiov: Bengaus Ibid: N. 7. (a) Lands . ? 4*7 ) . , (a) Lands are frequently diffolv’d from one Parifh and annex’d to another, upon the ac¬ count of a nearer and more eafie accefs to the Church. So, Them as Elphingfton of (Salderbal obtain’d his Lands of Carjie difmembred from the Parifii of St. Tinian ; In refpedt of their diftance from the Church, and the Ways be¬ ing Impaflible through Mofs, Sea-tides, and broken Bridges : And got them annex’d to the Parifh of Airtb. ( b ) Mr. yohn Malcom of BaU bedie got his Lands disjoin’d from the Parifh of Aucbterdiran, and annex’d to Ballin^rie, upon his Petition and an A in regard it did not bear, that he was fummoned, and the reft of the Heretors confented, that the two Chur¬ ches might be re-united in one. ( d ) An Eredion of fome Lands into a Pari/h by the ( a ) February 22: 1671* ( b ) in "July 1673. ( c) & frtciptiBUf § Jitut duo 16: 1%: 1. ( d } July 24: 1667. D d i Pres- ( 420 ) Presbytery was reduc’d fummarly upon a Sup¬ plication, as being ip(o facto null : ( a ) For the Presbytery has no power to ere&, but only to reprefent the Conveniency thereof to the Commiflion. Orders for building of new Churches have fometimes been obtain’d from the Commiflion, upon a Biil given in to them, with the Presbyteries Recommendation ,• and fometimes upon Report of a Vifitation ap¬ pointed by themfelves. Mr. James Row Mi- nifter at the United Kirks of Strowan and Mo - vivaird having purfu d his Parifliioners for building him a Church ; The Lords of Com- miflion ( b ) recommended to the Bifhop of Bumblane to conlider the Situation of the Pa^ ri(h, and where it might be built moft conve* niently. Upon whofe Report, the Church was ordain’d to be ere&ed at Enoch , to ferve both Parifhes, and the Heretors to flent them¬ felves for that effect : With Certification, if it were not built betwixt and Whit f unday 1668 1 the prefent Church of Strowan (hould be the common Church for both Parilhes ; and pub- lick Worfhip was appointed to be perform’d in the mean time as formerly. y. Where a Church is found to be incom- modioufly feated, an Order of Commiflion may be got, upon Application of the Parilhio- ners, or the majority and moft conliderable of 'em, for fetting up another in a more proper place about the middle of the Parifh» and de¬ claring the fame, when built, to be the only ( a ) January 22; 1662, (b) January 29: 1667. Church ( 42* ) Church of the Parilh : They giving Security for building the new Church as good as the former; whereof no Expenfe fhould be laid upon thofe of the Parifli, who exprefs’d their Diffent from the Tranfplanting, byProtefling againft it. ( a ) The Parilh Church of OchiU trie being Tranfported as Incommodious to fundry of the Heretors, and a Locality fettled to the Minifter with a Glebe, Manfe, and Grafs adjacent to the new Church; The Lord Stair was declared Patron, and the Glebe given to Cunninghame of Brounhill , in lieu of his Right of Patronage of the fuppreft Church of Barnvile. (If) A Warrand obtain’d for chang¬ ing the Seat of the Church of Hafffadean was relcinded, and counter Orders given to de- molifti the Church, and tranfport the Materi¬ als to a more proper place near Bruxholm , for building it there de novo. In regard the firft Remove was made only to gratifie fome par¬ ticular perfons, and found incommodious to molt of the Parifhioners : Which was attefted by the ArchBifhop of Glajgow. And Letters were ordain’d to be iffued out at the Inftance of Sir William Vurves the Church-Solicitor, for charging the Heretors to meet and ftenc themfelves, and name a Colle&or. ( e ) 6. Sometimes Parilh Churches are Ere&ed, Tranfplanted, United, and Divided, by the Parliament. As the North Church of Leith (a) February 12: 1673: Lord Bargany contra Cathcart of Carleton and Boid ofFinkel. '(b) “July 19: 1673. ( c ) July 25: 1666: Duke and But chefs of Buccleugh againft Scot of Haj- ckefters and others* D d ? was C 422 7 was ere&ed into a PariSh Church by the i8* Pari. J. 6: ( a ) And the Church of BaVintrae by his 22. Pari. ( b) The Church of Gullant was translated to 'Dirletoun by the Parliament 1612. Sometimes the Parliament, upon Ap¬ plication made to them, refer’d the Determi¬ nation abfolutely to the Commiffion : As was done with the Petitions of the Parishioners of Rofeneatb , defiring their Church to be tranf- ported out of the ISle of Rofeneatb to the Lands of Ardinconnel , as a more convenient place ; of John Earl of Wigt ount and other Parishioners of the PariSh of Leinzie, craving the Seat of their Church might be chang’d from the weft end of the PariSh. to fome more commodious part near the middle ; and of John Lord Hay of Tefter, and the poffelTors of the Lands of Rodonno , for declaring thefe Lands to be a part of the Parifh of Lyns , and for a Warrand to the faid Lord Hay to build a Church upon the moft convenient place of his Lands of Rodonno or Megget , for Serving the Inhabitants at fuch times as they might be hindered by Storm from coming to the Church of Lyns $ and of the Mmifter of Chrifls-Kirk at Udney , defiring to be Sufficiently provided with a constant Local Stipend. (33: Keith contra Gray and Carmichael, But C 436 ) But afterward ( a ) it was found, that the Wadfetcer, as deriving Right from the princi¬ pal Tackftnen, was not liable to pay the whole Tack Duty to the Parfon, but only that pro¬ portion which the Wadfet Lands were in ufe to pay before the Tack of Rental Bolls ,• the taking whereof, without Inhibition us’d, was no Interruption of old ufe of payment againft him the Wadfetter, albeit it was fufficient a- gainft the principal Tackfman himfelf. But then the Heretor, Appryfer or Wadfetter di- ftrefs’d gets a proportional Relief off the reft • and Tenents an intire Relief off their Mafter. 6. Though when a Stipend is only modifi¬ ed out of the Tithes of a Parifh, ’tis a Burden affedting the whole : Yet when the Tithes of certain Lands are allocat for payment of it, Intrometters only with thefe Tithes are liable. ( b ) And the Minifter has no Title to any Tithes without the Bounds of his Locality. ( c ) But yet a Minifter was not bound up by a Decreet of Locality never own’d by him or hisPredeceffors, from feeking a larger Stipend out of the Tithes of his Parifh conform to thirteen Years peaceable poffeflion. ( d ) A Charge upon a Decreet of Locality for three Chalders of Vidtual was fuftained to the Mini¬ fter, although no Victual was payed in the Parifh. ( e ) And a Stipend being local’d up- ft ( a ) July 23: i(53 3. ^nter "focm. ( b ) Stair I*flit: Lib: 2: Tit: 8 § 30. ( c ) Arg\ Dec : January 19: x66g : Earl ef /tthole contra Robertfon of St rowan, ( d ) Hov em¬ ber 1676: Semple contra his Parishioners. ( e ) jiikman Min.Jler at DalwcUingtoun againft Cunninghams */ Milcraig. on on a Tackfman of Tithes, a fingular Succeffor to the Right of ’em was found liable in pay¬ ment. (a) A Minifter having charg’d for payment of the Bolls contained in his Decreet of Locality, the Debtor was ordained to de¬ pone upon the prices he got i Albeit1 he had offered theFiars, by way of Inftrument, with¬ in fevendays after the Charge,* and produced Receipts of the Charger and . his Predeceffors for inftrutfting, that they were not in ufe to uplift the Bolls in ipfis corporihus. ( b ) It be¬ ing highly unreasonable, to oblige a Minifter to accept the Fiars, who buyes Visual himfelf at Mercat Rates. But a Minifter haying ac¬ cepted a Precept for his Stipend-Bolls from the Titular of the Tithes upon an He* retor of the Parifb, who entered in payment after the ordinary time of delivering the Sti¬ pend was paft, but did not Satisfy the whole ; and the Titular having upon a Charge made Offer of the remaining Boils under Form of Inftrument, which the Minifter refus’d : He the Titular was only found liable according to the Fiars. ( c ) 7. The Bolls in a Minifters Decreet of mo* dification or Locality fliould be payed con¬ form to Linlithgow Meafure, if no Meafure be therein (pecified : Unlefs the Minifter hath been thirteen Years in Poffeflion of uplifting according to another Meafure ; or the modi* (a) Inter eofdem. (b) February 21: 1699 Houifon Minifter of Inverask againft Sir William Sharp. ( c ) Februa¬ ry 7:1 70 j: Liver Minifter at Mertwu againft Halt hurt 0 an of Newaains. „ . fied C 428 .) fied Stipend would fall fliort of the Quantity* in the Ad of Parliament by Linlithgow Mea- fure. For in fuch a Cafe the Lords found, that the Minifter ought to be pay’d conform to the Meafure of the Shire, within which the Parilh lay. ( a J 8. Where, in Infeftments of Eredion, the Reddendo is a Blench Duty, and fo much befide for Stipend to the Minifter, fuch a Stipend is not Debitum Fundi , feing the Reddendo relates not to Lands, but to Teinds, which are only a Benefit arifing out of the Lands, and fo no more affeds the Ground than Teinds do. 9. Minifters are fometimes oblig’d to purfue not only for payment of their Stipends ,• but even for the Sum that is modified for Commu¬ nion Elements. To pay which the Heretors are liable, tho the Communion be not admi- niftrated. ( b ) But according to Sir George Mackenzie , (c) it ftiould bergiven to the Poor in that Cafe, and not to the Minifter. Yet he has then the Application. So a Minifter purfuing for payment of a Sum modified in his Decreet of Locality for Communion Ele¬ ments obtain’d Decreet upon an Offer to put it in the Poors Box of the Parilh. ( d ) 10. Simple Stipendiary Minifters are thofe within Burgh, who having no Landwart Pa¬ rilh, or being only fecond Minifters where the firft have the Tithes, are maintain’d upon Gifts and Mortifications - ora voluntary Con- fa) June 27: 1667: Minifter of Dalrymple contra Earl of Cnjfilf. ( b ) Att 54: Pari: 3 :J: 6. ( c ) Obferv: on the fmd Ah, (d) November 29; 1679: Birnie contra Earl of Nithfdale. tribution ( 459 ) tribution of the Inhabitants ; or Annuities laid upon them by Order of Parliament, ac¬ cording to the proportion of Houfe Rent they pay. Stranger-Inhabitants within Burgh who are not Burgeffes, but have Advantage by the Miniftry, may beftented for Stipend, But all Members of the Colledge of Juftice are priviledg’d. ( a ) The priviledges and Im¬ munities of the Colledge of Juftice are of a Date with the Inftitution thereof, and have been fince ratified by many Ads of Parlia¬ ment ,* particularly by the only Ad of Queen Mary s fecond Parliament, which teems to have been conveen’d for that foie end. Their fpecial priviledges within the Town of Edin¬ burgh, and Liberties thereof, were declared by the Lords of Seffion in foro contentiofi : ( b ) Among which the Immunity from payment of Annuity for the Minifters Stipends is exprefiy reckon’d. And upon that Decreet of Decla¬ rator an Ad of Sederunt was made. A Burgh was found to have no power to ftent their He- retors for any part of a fecond Minifters Sti¬ pend, not due by Law, Confent of Party, or Prefcription. (c) The priviledge of Dtcenna- iis & Triennalis Fofeffio was not found compe¬ tent to the Minifters of Edinburgh , upon thir¬ teen Years payment of an Annuity, efieiring to Six of the Hundred of the Rents of the Houfes,* albeit the faid Annuity was deftin’d by Ad of Parliament as the Fund of their Sti- ( a ) JR 27 6: Pari: 1 5.* J*: 6: Mackenzie Obferv: on the faid ( b ) February 23; 1687. f c ) July 22; 1 d>68: Febru* try 1; 1669: Boftoal contra Town of Kirkaldie. pends t ( 43<> ). petids: In regard they neither had Right thereto Jure Ccrnmuni3 but only ex Provifione Homin'! S ; nor was it payed to themfelves, but to the Town for their behoof. And it might have been applved to another ufe : Since the' Minifters Provifion was not rcftri&ed to the Annuity ; but the Town was liable to them for fuch a Sum yearly, which, tho no Annui¬ ty were recovered off the Inhabitants, behov’d to be made up out of the Common Good, (a) An Heretor who oblig’d himielf to pay the Minifters whole Stipend, and to relieve another thereof, was only found liable lor the propor¬ tion of Stipend payable to the Minifter the time of the Obligement, and not for pofteri- or Augmentations. (£) ii. Minifters heretofore were in ufe to procure Decreets conform upon Decreets of Locality obtained by their Predeceffors ; which piece of Diligence being found unneceffary, inconvenient, and chargeable : An A Mini Her of Elgin contra his Parishioners. Duty. C 442 ) Duty, when the Subjed of Vicarage is ampli¬ fied ,• is to Sub/ed the Heretor againft all Law i’the World, to the payment of a double Tithe out of the fame Subjed, the one to the Vicar, and the other to the Parfon. If for liquidating the bygones of Parfonage Tithes, the whole Rent fhould be reckon’d, deducing only the Vicarage Dury, and fo the Parfon get the Benefit of the Heretors im¬ provement by Grafs-rooms ,• albeit he had no Title to any Tithe out of that Subjed : then by the lame Parity of Reafon the Tables being turn’d, and the cafe ftated of an He¬ retor who had obtained his Parfonage Tithe, valued at the time when little of his Ground was Laboured ,• and long after improved his Rent by Tilling and Sowing : the Titular of the Vicarage might require the fifth part of the whole ImprovenRent, deducing the old Parfonage Duty. The liquid price of bygone Teind* bolls is the Sheriff bars, (a ) 7. A Spuilzie is the taking away, or med¬ dling with Moveables in anothers Poffeffion without the Perfons Confent or Order of Law. Which the Committer is bound to Re- ftore cum omni caufa ; and with the Violent Profits, that is fuch as the Injured Party might poflibly have made thereof, to be eftimate by his Oath in litem according to pretium af~ feffionis . So that it differs from wrongous In* tromiffion,which is but a general Adion com- (a) 14 July 1704. Bothwd of Qlenurft antra Porterfield of Ctmmiftoun and bis Ttntnts . petent petcnt for recovery of Goods to the Owner, when he wants a more fpecial Title to call the Poffeffor in quefiion, again!!: whom the Conclufion is only to make him lyabie to Re- ftore the thing with the natural Fruits on't, at leaft in fo far as he was literatus thereby if bona fide Poffeffor ; together with Dam- mages when the Poffeftion is fraudulent* An Action for wrongous Intromilfion with Teinds, was fuftained againft one who had a Warrand from the Gommiffion-court for what he did, Impowering him to Intromet upon finding Caution to pay the Quantity the Teinds fhould be valued at j and notwith- ftanding the Teinds were valued, and the Va¬ luation approven by the Commiffion, without refpedt: thereto, the Defender was Decerned according to the Prices and Quantity pro¬ ven. In regard the Purfuer had not fubmit- ted, and fo could not be tied by the Ad of Commiffion ,• and the Defender fought that Warrand upon his own Peril and Hazard. 8. A Spuilzie of Teinds is competent when the Teind-mafter who drew the Teind the year immediately preceeding, or us’d Inhibi¬ tion, is either debarred by Force, or dilap- pointed by anothers having Intrometted with the fame. ( b ) There is place for a Spuilzie in Parfonage-Tithes, altho the Teind- mafter was not hindered to draw the Teind, (a) July 31. 16] 2> Douglafs contr » L . Ednem. ( b ) Stdir Iuftit. Lib, 2, Tit, 81 §, 23, lib, 4. tit, 24. §. ** if if he was in immediate Poffeflioni and the Pofteftor did not feparate the Tithe from the Stock, and preferve it in the terms of the A& of Parliament. ( a) But a Spuilzie of Vica¬ rage is no otherwife competent, than if the Teindmafter was both immediately in Poftefli- on of Drawing thereof, and debarr’d by the Poffeffor or other Intromettor. (b) A Spuil- zie is not infer’d by Intromiflion with Ren- taled or Valued Temd. ( c ) Nor yet by meddling with any Teind, if the Tiche.maf- ter was not in Pofteftion of drawing Teind the former year. In which cafe he cannot claim violent Profits, but only the accufftm- ed Duty till Interruption by Citation or Inhi¬ bition. ( d j *Tis no relevant Exception againft a Spuilzie of Teinds at hisinftance who a&ed as Teind-mafter for a preceeding Crop, that the laft years Teinding cannot be called* pofteftion of the prefent Teind ,• And the Maxim Spoliatus ante omnia reftituendus holds only where there is Spolium ejujdem corporis. For this Alleadgeance was proponed and Re¬ pelled in the cafe of the Lady Rentcun againft her Son. ( e ) And he who is in pofteftion of the Tithes of a part of Land, by virtue of a Title to the whole, may purfue a Spuilzie of the Teinds of the whole : For polfeflion of a part, in this cafe, induces pofteftion of the whole. ( f ) Tenents who pay a fa) 48 9. Par. 22. Ja. 6. (b) Stair ibid. §. 12. (c) 43 March 1621. Gordon contra L. Garlics. (d) January 19. 1669. E. oj 4t hoi contra 'Robert fan of St reman, (c) July 7, 1639. ( f ) Balfour Prat . joint- C 44? ) joint-Duty for Stock and Teind, intrometcing with the Teinds after Inhibition ferv’d, the prices muft be proven by Witneffes, and not by the Pu! fuers Oath as in Spuilzies. (a) Nor yet can the Jur amentum in litem , be ob¬ truded fegainft any Hereror for fimply med¬ dling after Inhibition with the whole Growth of Lands in his own natural pofleffion with¬ out feparating the Teind from the Stock : aitho in that cafe he is liable for a Spuilzie of Teinds ; that is for the true Value of them, without regard to what was ufually payed before Inhibition. But if the poiTeffor fhould Forcibly hinder the Tithe.mafter from draw¬ ing the Teind, by virtue of a Decreet upon the back of an Inhibition : he behov’d to fubmit to the Teind-mafters Oath in. litem. As the Teind-mafter behov’d to give way to his Oath, for violently drawing the Teind af¬ ter Inhibition without a judicial Sentence. (*> * 9. The proper Defences in A<5Hons of Tithes may be founded, 1. Upon a progrefs of Infeftments in the Lands, cum Decimis inclufti nunefuam antea feparatis , which fecures the Heretor from payment : unlefs it can be made appear that the Stock and Tithe were once feparate. ( c ) 2. Upon a legal priviledge of Exemption from payment : fuch as is competent to Minifters Glebes by A Fid. fupra. Chap. 6 SeH. 5. N. ia (d) lbid.N. 9. (c) Ibid, N. 3. U ) MM- X. 4. &e, ceed. ( 447 ) ceed, and the Validity of ’em depend upoli feveral Formalities that Wicneffes are neither fup pos’d to know, nor allowed to prove. And for that fame Reafon the Tenure of Letters of Horning, Executions and Indor- fations thereof are not admitted to be proven by the Lubrick Teftimony of Witneffes. (a) For it is not enough that Witneffes may re¬ member that there was fuch a Decreet ; fince they cannot be pofitive, at leaft ought not to trufted if the fame was formal. 2. If the Tenure of Decreets were allowed to be made up, how eafily might an Extra# be preten¬ ded of one that never was, and be (hewed to feveral perfons, and perhaps a Copie on’t be taken. Upon which the Tenure by a Procefs may be offer’d to be made up : whereby the way would be pav’d to Fraud and Forgery. But yet in the cafe of Mr. George Douglafs againft the Heretors of Birfe. ( b ) The Lords admitted the Tenure of a Decreet of Prorogation of a Tack of Teinds by the Commiffion of Plat to be proven. It is true to admit eafily and promifcuoufly the Tenures of Decreets to be proven, might expofe the Securities of the Nation, by ma¬ king up of falfe or null Deeds that way : And on the other hand to allow no Remedy where Writs are Deftroyed by hidden Acci¬ dents is againft all Reafon. Therefore in proving Tenures of Decreets, the Libel is not fuftained untill Parties are heard, both as to (a) AS 94. P*r. 6. 7*. 6. (b) December 1704. the . C 448 ) the Caufes AmiJJionis> and pregnancy of Ad¬ minicles ,* whereas in other cafes they ar allowed to prove as they beft can. 2. As to the Objedion againft proving the Tenure of judicial Writs, viz. that thefe contain So* lemnicies by Omiffion whereof the Deed is intire! y null : It is certain that even Bonds and Difpolitions require Solemnities, fuch as the Deiignacion of Writers Name and Witnef- Irs. And Seafines confitt of many Solemn Eifenrial Circumftances ; and yet Declara¬ tors for proving the Tenure of thefe Writs have been often fuftained. Now judicial Ads are no lefs liable to Accidents than other Writs ,• which is the only Caufe for allowing to make up Tenures. So that tho for prevent ting Forgery, the Lords require more preg¬ nant Caufes Amijfionis, and written Admi¬ nicles in a Procefs for making up the Tenure of a Decreet : the proving thereof can by no Law be fimply refus’d. It is true that hath been fometimes done, but moftly in the Decreets of Appryfing, which are odious Di¬ ligences, and the lefs Aurhentick, as being led before Meffengers, SherfFs in that part, and compos’d of the Melfengers Execution, and Atteftation of a Nottar. And yet a purfute for making up the Tenure of a Com? pryfing was fuftaincd, where the Adminicles were very pregnant, and the Executions ex¬ tant and intire. ( a ) Therefore when the 1 (a) Dirletm Decif, 24 June 1675, Hirnie contra Montgtm Writ, j Caufes f 44 9 ) Caufes AmiJJlonis of a Decreet is pregnantly inftruded, and the Adminicles remove all Sufpicion of the never Exiftence of the Writ 5 qua in efie debent in ejje prafumuntttr. As to the AH 94. Tar. 6. Ja. 6. Difcharging ProcefleS for proving the Tenure of Letters of Horning, Executions, and Indorfations thereof* the fame concerns a fpecial cafe of the Executions ofLetters ofHorning andDenuhciation never judiciallyproduced.In a purfute for a fifth part of the Rent as the value of bygone Teinds, i and for the ip/a corpora thereafter, a Defence was fuftained upon a Decreet of Valuation, to reftrid the Claim to the valued Eolls there- incontained. Albeit the Decreet it felf was not produced : but only a Decreet at the Furfuers Authors InftanCe for payment of the bygones of the valued Duty, narrating and founded upon the Decreet of Valuation; Which Decreet for the valued Duty was pro¬ duced and made ule of by thePurfuer for fup- poFting his Title. ( a ) n.Payment of thePrice ofTithes in a Decreet of Sale may be purfued before the Seffion.And albeit by Ad of the Commiifion. (b) The price of Tithes (hould be payed at Whit {unday preceeding the Crop, with Annualrent from that Term : The Lords of Selfion found thac a Decreet of the Commiflion, Ordaining the Titular to fell Teinds upon payment of a certain price, did not debar him from (a) T4 July 1702. Bothwtl of Glencorfe again]} Porterjield tf Comittoun and his Tenin-s. (d) 30 Novembsr i6ji. F f y thefe thefe Teinds till the price was payed, or of¬ fer’d and consign’d upon refafal ,* and that he was not bound to Accept the Annualrenf thereof in fatisfaffcion of the Teind. ( a ) A Sale of Tithes can only be purfued upon th>; Aa of Parliament before the Commifiioa, But the Lords of Selfion fuftaind themfelves Judges in a Proces upon a promife to fell Tithes, and Ordained them to be Sold at Nine Years Purchase s and referr'd to one of their Number, to Calcmat and Determine the Price. ( b ) And perhaps it were the Na¬ tions Interefl,that all Procefs for Va’uing ana Sailing of Tithes were competent before the Seflion. j . . " • (’•») 24 February 1 66g> E. of Khtcar din againfi Laird of Rofyth. (b) February 1682. Craufurd of Ardmdlan againfi the Lord Bargany . 1. F I N I S. vis T c * ) INDEX A ABBOTS, the Office and Bufinefs of Abbots, and the feveral kinds of them l7, 18. 19. ABERBROTHOCK. 8. 96, 100. ABERDEEN. Bifhoprick 77 Cathedral 88. ABERNETHIE 99* Te ACCkESCENDI JUS 304307. ACOLYTES 23,24. ACTIONS competent before the Seffion for Minifters 423 & feqq. for Tithes, 435 & few- and fome times the Privy Council hath interpoLd to fequeilrate them for prevcntingof quarrels 435. ALLODIALS . poffieffions of the old Romans Allodial 183 lyiiniflers Gltbes and Manfes more Allodial than Feudal 201. ALTARAGE: 29, 3 s, 86. ANDREW ( S ): Inftitution of the Order of S. Andrew 92. ANDREWS ( S). Priorie 20,11,76,96, 98: A Bilkoprick 7 5* 76 Cathedral 87. ANN ofMiniffers, Bilbops, and other Bcnefic’d perfons 135 136 137. ANN ATS, 132*133,179. ANNEXATION, the Aft xj 87. abridg'd ii7,n8:Qbje- £tions againftit anfwered 1 1 9 120 1 2iProvol\ries andPre- bendries of collegiat Churches, Altarages and Chap- lainries not underftood to fall under the Annexation: 1 94- ANNUALS: ground Annuals withinBurgh thePatrifno- ny of the Black and Grayfriers 14. ANNUITIES out of Tithes evided by fup.ervenient Provifions to Mmilter$,343>344, the Kings Annuity out of ( ) oftheTeinds 163,264, 338, 339* _ , » AN flOCH.the Prince thereof did Homage to the Patri- arch: 184. ARCHATTAN: 9,82, 102. ARCHBISHOPS: 26. • . , ARCH-DEACONS their Office 28 if they be prplats 34 Archdeaconrie of Lothian 28. ARCH-PRIEST S Ibid. ARGYLE Bilhoprick 8r. AUGUSTINE (S ) refufd univerfal Legacies in favours of his Church from any that had Parents or Children 107 and would not increafe the Revenue thereof by 'ffiiprpingjioj. AUGUSTINIANS: fee Canons regular. AURELIUS Bilhop of Carthage reftored a Mortificati- ‘ on in favours of his Church to the Granter upon the unexpected Birth of a Son, 10 7. B BAGIMONTS roll, 178, 179- BALMERINOCH n. BARRATRY 129 144. BEAWLY 9 102. , BFNEDICTINS, their Founder, and Houfes m Scotland: ' 8 The DiftinCtion betwixt them and Cifterians:- 1 o. BENEFICES and Beneficed Perfons ( SetClergy, Churches: Dilapidation ): why and when the Patrimony of the Church was called Benefices 2. 104 Divifion of thefe in¬ to Regular and Secular Ibid, into Titles and Commerr* dams 3. into thofe of cure and fince cures, 3 4. What is the temporality and the fpiriruality, and the extent of them 2 204 why fome Benefices are called great or confi- ftorial,4 How Popilh Benefices were difpof d of at the Reformation. 1 16,1 17, How Titles to Benefices are ac¬ quired by Ecclefiafiicks 127 & feqq and when they Com¬ mence to take effedl ? 132, i3 3 : how they are extingui- ihed i34^and when they ceafe to have effe& 135 Succelfion to benefic’d Perfons in their privateEftate i&zd.Cautions to be obfervedbybeneficiaries ingrantingRights of theirBene fices 138139 140 half of the Rent of Scotland polfelT’d as benefices 184. BERNARDINES: 10. BXSIiOPS,how longBilhops here were only called Epif- - - - ’ ' copi eopi Scotortlm,and who was the firft Bifhop inScotland? 7, 75. Biftxops Eleft poftulate and confecrat explained 26 Bilhops Eleft, and poftulate difcharged to dilpofe upon their Benefices 1 4 1 Paftoral Staff, Mitre and Ring Symbols of theEpifcopal Charge 26 27. Bilhops loft their Civil Jurifaiftion at the Reformation. 27 Bilhops Bailiffs 72 Malcolm Kenmuir firft aftigned to Bilhops par¬ ticular Diocefes.75 , An account of Ecclefiaftical Hie¬ rarchy in Scotland confifiing of two Aich-bifhops and twelve Bilhops, with the foundation and extent of their refpe&ive Diocefes; and fome things remarkable concer¬ ning their State and Indowments,and particular Bilhops. 75 76 77 78 79 80. Bilhops Lands never erttted and why 121. Some exceptions, id &122 Bilhops Chapters reco¬ ver their temporalities, with fome Exceptions hj,E- leftion and Confeciation of Bilhops 127, 128 the fate of Bilhops 'I ithes 272: BLANTYRE 20. BOTHAN (S) 10?. BRECHIN Bifhoprick 78 93 Cathedral 88 Revenues of Chaplanries and Altarages mortified to the Town 91. BRIG1DA or S. Bride the firft profefled Nun in Scot¬ land 2 1» BUCHANAN Commendator of Corfregal 116. BURDENS affefting Tithes 3 37 dr feqq. BURGHS Royal 117. C CAMBUSKENNETH96 98 100. CANONS 27 different kinds of them. 30 why the Cler¬ gy were fo called. 73. They had at firft Community of Goods with theBilhop;afterward theygot their provifions in common divided from the Bilhops portion, and at lenth each got his own particular Prebend aftigned him 73 74 why called fecular Lanons ? Ibid. CANONS regular wherein they differ from Monks 14. CAPUCHINS 14 16. CARDINALS 25. CARMELITES 12 and 16. CARSTORPHIM 90,93. CARTHUSEor Charter-houfe 103. CARTHUSIANS 9 103. CAITHNESS. Bilhoprick79 Cathedral 89. CATHEDRALS. Ratio nominis 27 building of Cathe¬ drals 85, 86,87,8 8,89. CESS CESS (See Taxation ) Subfidiesare now railed by way of Ceis iSo and ordained to bear Annualrent after fix Months 1 8 r Iffree Teind payCefs? 343. CHANCELER of an Ecclefiaftical Chapter 30. CHANERY. Cathedral 8 9. j CHANTERS and Chanteries 29, 8 6. ry CH APPELSandChappelries .derivation of the Word Chap* pel 36 Chappels of cafe 37 ,8 3 Free Chappels 38. Pri¬ vate Chappels 39 84 building of Chappels 8690 91, CHAPPEL-Royal of Stirling 89 free of Taxation 180. CHAPTERS Epifcopal 27 31 3 = - CATHEDRAL and Collegiat Chapters institute 33 the power of Chapters'during a Vacancy of the Prelats office 149 150. CHARTERS when firft granted to Churchmen 196. CHRICHTOUN 90. . CHURCHES: Parilh Churches either diftinft Benefices or united to other Benefices 3 5 the diftln&ion of Menial and common Churches 35 3674 How Minifters in menfal Churches were provided in time of Prelacy and how now? ( 35 and 3d 3 85 386 Baptifmal °r Mother Churches 38.83. ; Churches built/«£ tributaria conditiont 5 5, Churches are not fuppofed to be built by the Saints whole Names they bear 8 6 building of Pariih Churches 9 1,92* 93 Annexation of Pariih Churches with their Endowments to Cathedral and Collegiat Churches and Colleges, 93 94* andtoMo- naftries and Nunries 9?, 9(5. what Churches are?204. the feveral kinds of ’em Bid. & 205 aod.The founding and Confecration of ’em 205 by whole Authority Churches are erefted aod 207. Favour and Reverence Ihown to Churches 207. Reparation of Churches 208,209,2 10, Seats of the Church 210, 21 1, Bells, Books, Utcnfiis and Orna¬ ments of the Church 212 a way to the Church ibid, and 213. Burying in the Church ibid. Erc&ion of Churches 419 420 421422. tranfplanting of Churches 420421 CHURCH-YARDS 2x4.215. | CIS i ER1 IANS 10 ij 375 376. CLERGY ( See Bcnifices and benefited Perjont ,Minifiers .) the primitive Chriftian Clergy had no fix'd Indowments i. ' Their ( ) The Jr Riches and Power In Scotland r0y CLIWY; the Congregation of CJuny whence fprunff o' when xnititute? with an eftimate of the greatntfs thereof ir. I2$. CheefFca . "OLDINGH AME: 8: 12:9697. .OLLATION and INSTITUTION thereof jo. COLLEDGE ofjuftice.-their Priviledges 429 an ImnnfT tion on Prejats for Sallaries to the Senators of the Col ledge of Jultice 17 9: COLLEDGES 1x7. COLLLGIAT churclcs 3a 8« 89,9o, the mtu f G“d- 33= COLUMBA 6, 97. COM MEN DAMS: the nature, rife and Diftinftion of Gommendams and Commendators 2: 4. wherein rU™ «T from Titles and Titulars Yo,nmendato% Abbots 18 Commendators appointed in the room of Po pdh^Benefic^ries 116 and transformed toLords of Ere&i- COMMISSARS 27. COMAHSSrON5 of PARUAMSNT appointed to plant Churches and modify Stipends cut of the Teinds r,«- COMMISSION of Surrenders their Powers, and whae they did 263 264 .265. Sub-commiflioners appointed in every Presbytery with Initru&ions 267 268 ^ a COMMiSSitON for Plantation of Churchs and Valuati- onof Tithes, what Powers they had 271. the Commit on 1690 full inforce 274 Decreets ofCommillion onlv reduceable upon grounds of iniquity, even after the Pan, (laments appointing them were refunded declaratore 272. the nature of the Commiflion Court 270 mA theform ofProccfs before it lbid.fr faq 379 3So md COMMUNl° SONORUM betwint Bilhops andthcir COMMUNION ELEMENTS: what Sum ufcs to bo modified for them 389. Aftion for them 428. CONFIRMATION oflnfcftments in Church-lands r4- «44 14S 146. extended to long Tacks, but not to Feus of S&U Salmond-fifhing bt an Infeftment in an Office, or Confti- tfition of Thirlage 14?. not decided it Infeftments of Church-lands holden ward need Confirmation Ibid . Spotf- woods opinion 146. CONGREGATION, the Lords of the Congregation no. CONTRACTS import of a mutual Contract touching the Difpofition of Tithes fora price 308 309 3 10. CONVENIENT^ 108; COUPER 11, 100: CROSREGAL 78,101,116. CROWN-RENT foreleflend by religious Foundations and Prorifions no. CULROSS 11 10 1. D DAVID ( K ) a fore Saint to the Crown 98,98. DEANS their Office, and feveral kinds 28. DECREETS, the Kings Decreet Arbitral upon the firft general Submiffion 268 269 upon the fecond and third 270. all three ratified In Parliament Ibid. DEFENCES: in Aftions for Tithes 445446. DEFENSORS or ADVOCATS conftitute by Bifhops for negotiating their judicial and extrajudicial Affairs 72 DEIRE ti 102. DIGNITY ECCLESIASTIC AL what it is? and the fe¬ veral kinds of it 24 & feqq. Jurifdidion and precedency of Dignitaries how regulated 30 DILAPIDATION of Benefices ( See Benefices ) 138139 , 140. DIRGE 30. DIRLETOUN 90. DISPOSITIONS of Tithes, (See Feus ) tacit 305,306 ex- prefs /W.&307 Import of an Obligementto Difpone.308 309 315 vid. 66, 67. DOMINICANS 12 13. DOMINIUM plenum utile & direftum 183. DRONTHEIM.-Archbifhop thereof his Pretence to the Superiority of the Crown of Norway 183. DRYBURGH n,95>i°i. DUMBAR 32,89,93. DUMBARTOUN 9°. DUMBLANE Bifhoprick78 Cathedral 89. DUMFERMLING 8 20 96 97 112. DUNDRENNAN 11 98 100. PUNGJ.ASS90. I • / DUNKELD Bifhoprick 76, 1 24 Cathedral 88, r \ „ ~ n r , • ' v; • ( • E ECCLES 103, ■ EDINBURGH Bifhoprick 76 Cathedral 89 pofleflions of the Black and Gray-friers difpon’d to the 1 own of Edinburgh 14 and alfo Collegiat Churches 90 and Chap- pelries, Prebendries and Altarages 91 Arch-deaconry of Lothian gifted to that Good-town 28, divided into Parifhes 85. ELGIN Cathedral 89. ELQUHOW 103. ENTRY of Heirs 199,297. ERECTION of Benefices into Lordfhips 11 6, 117 1 18,121,124. ESCHEAT Liferent 200. EXEMPTION from payment of Tithes 375,376, 377a 378.445,446. EXORCISTS 24. F FERN 11, 102. FEUS what they are I43, Cautions and Solemnities to be Obferv’d in granting of them by Prelats 146,147 148 and by the Subaltern Members of the Chapter 149 etiam inrenovatione feudi 148 inferior Ecclefiafticks grant Feus with confent of their Patrons 150 if Church-men without their proper Confenters may better the Condition of their Benefice 151 Feuing of Ward-lands Ibid. 197 198 if the Clergy may purchafe Feus ? c68 if Monks may ? 169 Feuing out of Tithes 2 5 6, 1 94 ,295. different Opinions about the origin of Infeudation of Tithes 251, 252 Martels Ufurpations confidered Ibid. Sc 253. FORFEITURE 3 22. FRANCISCANS 12,13, r4. FRIERS, how diftinguifh’d from Monks ? 12, their different Orders, Ibid. A Proof of their Honefty af¬ ter Floudorvn Fight 107. G GERMANY* Scots-men Governours of Monaflries there 96, 97. Church-men have the greateft Eftates 104. GILBERTINES 22. GITE ( Le dnit de ) 18 i. G g GALLOWAY, GALLOWAY, Bilboprick 8 r. GIELS r S ) 90,93. GLASGOW, Arch-Bifhoprick, 32, 80, 124. Cathedral 87; GLEBES, ( S« Manfes, Minijlers) 223,224, 225, 226. GLENLUCE, n, io». GOSPEL, the Voice of it in Scotland before the Refor¬ mation could not be heard for the Noife of Hammers and Trowels in building Cathedrals, and Religious Houfes, 104. GRATIS Expect ativ a 44. H HADDINTOUN 96, ror. HOLY-RUD-HOUSE, ao, 90, 98, 99- HOLM 98. HOLYWOOD xi, 102. HOJ'PITALS 236. HOSPIT ALERS, very Inftrumental in the Conqueft of Jerufalem, 233. Their Original, Ibid. And Profef- fion, 234. Called Knights of St. John, Roored out of Syria , Poffefs’d and Difpoflefs’d of Rhodes, Ibid. Malta their prefent Refidence, Ibid. Exeem d from Tithing, 2.3.5 , 37 $> 376. Their Credit norfo great as formerly, and when they came into Scotland, Ibid. Their Grand- Mafter owns the King of Spain as his Protestor, llnd. ICOLMKIL, 6, 8, 82,97, 102. JEDBURGH, 20,98,99. JESUITS, 15, 1 6. INCHAFFRAY, 96, 101. INFETMENTS, upon Refignation granted by the King in a different cafe from the like granted by Church¬ men, 1 5 1. if there be Necefsity of New lnfeftment when the Property and Superiority come to be Con- folidate. 201. IRRITANCIES, in Tacks of Tithes, 318. JUS SUPERVENIENS, 53, 54. nd. 43°. K KELDEES or CULDEES, who they were, whence fo called, their Chara&er, 5,7. flout Oppofersof Popilh Innovations. When Suppreft, Ibid, by whom Suc¬ ceeded 8. KELSp, 11, ao, 96,98,99, JULMARES, ( ) KILMARES, 90. KILWINNING, iot. „ KINGS-EASE, 268, 3 96, 397- theReafon of it, 2, 69, KINLOSS, 98,99, nS* KIRKHEUGH, 76, 89. L LESMAHAGO, 9, ao. LINCLUDEN, 22,90, 103. LINDORES, 100. M MACHLINE, 11, 20. MAGNUS { S ) Cup. 80. MANSES ( See Glebes, Ministers ) 2fo, 221, 222. MANWEL, 100. MARY- ISLE, ( S) 20, 102. MASS permitted to Monks by Pope Gregory, 1 7. MAY ( the Ifle of) 20. MELROSS, 11, 20, 98, 99. METHVIN, 90. METROPOLITANS, 2 6. MINIMS, 14. MINISTERS. ( See Benefices, Manfes, Glebes, Churches, Pa. tronage, Stipends) fecond Minifters in Burghs ando- ther Stipendiaries how provided ? 44, 4?, 3 9-?» 418. how the Calling of Minifters is now Ordered ? 52. Benefices within 200 Merks, and all inferior to Prelacies Ordain’d to be Difponed to Orthodox Mi¬ nifters, whereof fome provided to Prelacies, 113* Manfes and Glebes appointed to them by Congallus , 21 6 cannot be Feued or Set in long Tack, Ibid. Excepted from the general Annexation, 217. how defign’d, Ibid, and 218. Relief competent to Propri- etars of Lands defign’d. Ibid, and 219. what Lands cannot be defign’d ? Ibid, to what Churches Jure Com . wuni Tithes belong ? 229,362, 363, 364. The Ori¬ ginal, Nature, and Extent of the Parochial Right to the Tithes, 298. & feqq* 231, 250. evacuated by by the late del in Favours of Patrons, Ibid, and 3°*, 365- MINISTRIES, the Benefices of the Trinity-Friers, 15, MINNIE OLE, 90, ^XTtro Gg; MONKS MONKS and MONASTRIES. who were the firft Monks, $. when and by whom they were firft ga¬ thered into Monaftries 6 the Keldean-Mornttries 7. how many different Orders of Monks and Friers in Chriftendom ? 8. wherein the Monks and Canons regular differ. 14. the Regular Polity of Monks 16, 17, 18, 19, 20, 2 1 » Riches heaped upon Monaftries, Parifh-Churches, and Patronages Annex’d to them, 9 6. a ftrange Humour in building of Monaftries, 97- et their Arts in hooking in Riches to them- felves r 06, 107. Monks and Nuns Portions appro¬ priate to the King, and by him Difponed to Lords of Erettion if 3. MONIMUSK 20, 78, 103. MORTIFK ATIONS, why fo called ? 169. fubjeft only to the Reddendo of Preces & Lachrima, or fo, and not to Non-entry, Ikid and 199. Infeftment u- pon the Kings Charter of Confirmation preferr’d to a prior Mortification without Infeftment, 91, 170. No Mortification fuftain’d in many places Abroad with¬ out confent of the Prince 169. Our Cuftom as to Mortifications in Favours of a Community 170. MUNGO ( 5 ) 80, joi. MURRAY Bifhoprick 17* NEW ABBEY n, roi. ! NEWBOTTLE. n, 98, 99* NINIANS (S ) 88, ioa. NON-ENTRY 199, 297. NORTHBERWICK 101. NOVALIA, what they are 37 $. Prefcription of a Right to Tithes not extended to thofe of Novalia, 334.Nor yet is a Priviledge of Exemption from payment of Tithes extended to thefe, 378. But the Parochial Right 'jure Communi doth reach them, . 299. NUNS & NUNNERIES. The firft Inftitution of Nuns, 2r. where they had their Convents in Scotland? 21, 22. their Portions appropriate to the King, and Dif- pon’d to Lords of Ere&ion 113. O OBITS 39> 3 s'- ORATORIES '( ) ORATORIES 39, 84- . ORDERS Eccleliaftical Minor 33, Greater 24] ORKNEY, Biflioprick 79> So. P PAISLEY, it, 96, 100, 10 1. PARLIAMENT. Erettion, Tranfplantmg, Uniting and dividing of Parishes by the Parliament 421, 42a. particular References in thefe Matters from the Par¬ liament ro the Commillion. Ibid. PARISHES, their Original, and Inftitution, 82,83,843 85. Union of Paiilhes 4i3>419» 421- Dilmembring of Lands from one Parilh, and Annexing rhem t» another 416, 417 Reduftion of Difmembrations, ibid and 418 Divifton of Parilhes 421 . PARSONS and PARSONAGES, ( See Payment ) p4> 290. No mention of Parl'ons or Vicars before King David's time 230, 301. Parfonages erefted out of Coilegiat Churches 123. United to Bilhopricks, 124. what is Parfonage Tithe ? 289, 290 how the Bygones thereof lhould be liquidated ? 440, 441. PATRIARCHS 25, 26. PATRONS and PATRONAGE. (See Prefentation) Patronage when, and how introduced ? 39, 40, 86. great Deference Ihow’n to Patrons 40. u hac Right they have to Vacant Stipends ? Ibid and 41,47, 49, 50. to the Tithes of the Parilh, 42, 52, 53, 54, 302, 303,304. they lhould be Alimented if reduc’d to Po¬ verty 42. and the Incumbents Deed lhould have their Content, ibid . A Minifters Deed Authoriz’d by the Confent of one as Patron, to whom a Peifon was obliged to Difpone the Right of Patronage, 66, 67 , 3 14. they challeng’d not only the Right of Piefenta- tion 42. but alfo pretended once to that of Colla¬ tion and Inveftiture 43. Patrons of fecond Minifters 44, 45. what Intitles one to a Right of Patronage ? 54, 55. Patrons allowed to Infert what Laws they pleas’d in their Foundation-Charters, 56 If Patron¬ age is competent ipfo fatto, cho not exprelly Relcrv’d in the Foundation ? 5 6. if Patronage be a Servitude, ibid, and 57. the Pope before the Reformation, and the Ring after prefumed Patron, where another did not appear, ibid . The Nature ' and Fate of Eccleliaftical Patronag Patronage with us 58 Laick patronage 59, 60, 61 , 62. 1x8, Hi. if all Patronages formerly belonging to Monaffries as well as Laick-patronages be excepted from the genera/ Annexation? 62, 63. wherein £c- clefiaftick and Laick-patronage differ ? 50, 6 4, 6 5. Rights of Patronage how Tranfmitted by Angular Titles 66, 67. and how by Succeflion 69, 70. the cafe of a Right of Patronage, provided to one with a Quality that he failing to prefent within a certain time, another might exerce the priviledge 67. Pa¬ tronage how Excluded ? 68, 69. Patronage of Parifti- Churches and inferior Benefices Mortified to Cathedral and Collegiat Churches 95. to Monaffries 96 Patrons not bound to Warrand Rights granted by Benefi‘d perfons with their confent 141. Patronage of Parfon- ages given to Lords of Errettion 257. when Churches belonging to different Patrons came to be united, they prefented by turns 415. and the Parron of the greater Benefice allowed to be the firft Prefenter, PAYMENT of TITHES, The Subjeft of much diffe¬ rence here, 3 46 CK t of what things Tithes are pay’d? 347. Et Seqq. Neither the beft nor the worff of the Fruit fhould be given for them, 353. How the Tithe of Bees, Fowls, Milns, Mines, and Quarries is pay’d ? 3 34 One that has right to the Ipfa Corpora of Parfon- age-Tithes muff have them in Palca, and out of the Grouth of the Ground, Ibid. And there is no Tithe if there be a Total Sterility or no Crop, 3 55. Ufe of Payment imports a verbal Tack and Tacite-Relo- cation, Ibid. Interruption of drawing the Teind or paying a valued Duty by ufe of payment, 357,358. Valued Teind-bolls may be fatisfiedin Coins bf a For¬ ein Grouth, Ibid. According to what meafure? 3 56. Sheriff-fiars the liquid price for Bygones, Ibid. Valued Teind-duty not debiturn fundi, 356. When Tithes fhould be pay’d, 359,360, 361. And yrhere, Ibid, and 362. Payment of Tithes to the Partchus, Ibid. 363, 364. To Titulars of £re£tion, and their Tackf-men, 365 If he who has right to the Tithes of one kind, may claim thofe of another Product as /«w- gatum ? Ibid and 366, 367. Vid. 336, 337. Executors of a Liferenter who farm a Lands referving the Teind , and died before Martinmafs after drawing, Or of an Heretor whofet his Lands for Third and Teind, and dyed before Separation ,or of any Titular of Teinds dy¬ ing before Michaebnafs, will have right to the whole Teind of that year, Ibid, and 368. Who are lyable to pay Tithes, Ibid, and 3 69, 370, 371, 372, 373,374. Payment of Tithes difpcns‘d with by Princes, 369. And by Popes, 374. 375 If the Exemption in fa¬ vours of the C itfertians, Hospitalers, and Templars , was 2 perfonai Priviledge 376, 377. Claufes qualifying Ex¬ emptions, Ibid. A Priviledge of Exemption not ex¬ tended to Novali*, 378. Fid 334, 299. Minifters pay pay no Tithes for their Glebes, nor yet the Purcha£ ers of Glebe-land, 378. PEEBLES, 102. PENSIONS Bcclefiaftical defined and derived 160. O- rigine thereof,- Ibid, and 16 1. Penfions a Grievance here. Ibid What required to the Validity of a Penfion Ibid What Penfions were not prejudged by the general Annexation, Ibid. The Effect of pofleflion of a part of a Penfion, Ibid. How far Penfions granted by Bifhops are effe&ual againft their Succeflors, 162. Penfions granted by Church-men fhould fpecify the Tenents Names and Duties, Ibid, For how long they could be granted. Difference betwixt Secular and Ecclefiaftick Penfions, Ibid, and 163, 164. Who fhould be cited te the obtaining a Decreet conform upon a Penfion? Ibid. Penfions granted by the Queen not arreftable, and the Remedy for making them effe&ual, Ibid. Where Penfions fhould be delivered, Ibid. Executor of aPenfionerout of Teinds dyingbefore Harveft has no right to any part of that years Penfion, \6$. PETER-PENCE, And Peter's Patrimony, 24. PITTENWEEM, 20. PLAT. The Commiflion of Plat appointed, iij. Who difpos’d of the Thirds till the Reftauration of Bi¬ fhops, ras1. PLUSCARTY, 9, 102. POINDIN(j, Of Tithes unwarrantable, 43 6. POPE, His proud Titles, 24. Pretended Right from Confimtine confidered, Ibid and 25. His Authority abolilhed in Scotland in. He only by the Canon Law could Confolidate two Bilhopricks or larger Benc¬ hes, 4 1 4. PORT- PORTMOLLOCK, 20. POSSESION (See Prefcription) defin’d and divided, 1 65. Priviledges of Pofleflion, 1 66, 1 7 1 . A Pofleffory Judge¬ ment, >66, 172, 323 Upon Infefcment, 3 24 Upon Pofleflion by Tack, 325,326, 327. Not effectual a- againft Debit a Fundi , nor without a Title, Ibid Deceit- nalis & Irienndis Pofleflion 172, 173, 174 Not com¬ petent to Minifters within Burgh, 429* 7 riennalis Pa- cificus poffejfor beneficii eft inde fecurttt, 174 Rules of the Reman Chancery concerning Pofleflion how far effectual in Scotland ? 175, Superiorities of Parromte Benefices not Redeemable from Minifters that have been ten years in Pofleflion, Ibid. The Effeft of 40 years Pofleflion. 166 Or of long Pofleflion, 175, 176. Poffejfor bona fide facit jruftus percept os & confump- tot fuos, 328. PREBENDS and PREBENDARIES, 27, 73, 74. The different kinds of ’em, 30, 31. PRECARI/E LITERS, 108. PRECEPTORS and PRECEPTORIES or COMMAN- DER1ES, thefeveral kinds of ’em, 235 Preceptors of the Hofpitalers had right to the Forfeitures of their ownTenents, 236. Preceptors of Hofpitals, Ibid. PRELACIES and PRELATS, 34. PREMONTRE, 11 PRESCRIPTION, ( See PoJfeJJton) of 40 years, 166, 167, 175. Minifters Stipends preferibe in five years quoad tnodum frobandi,i6’j. How extenfive that P efcription is ? Ibid The Cafe of an Heretor purfu’d after 5 years for refounding the proportion of Stipend due by o- thers and uplifted by him, 433, 434. Different O- pinions concerning the Prefcription of Tithes, 328, 329, 330. The pofitive and negative Prefcription explain‘d, 331. No negative Prefcription of Parlon- age-Tithes except as to bygone Teind-duties preceed- ing 40 years, Ibid. Butthey preferibe by the pofitive Prefcription, 332. Which extends to long Tacks, to make them unquarrellable during their tim e,Ibid. And 333. A right of Tithes acquired by Prefcription ftill lyable to the ordinary Teind-burdens, Ibid Prefcrip¬ tion of a right to Tithes not extended to Novalia , 334. Vid. 299, 378. Both the negative and pofitive Pre¬ fcription take place iu Vicarage, Void, and 335* ^ Pre„ Prefcription of a right to Tithesfof one fort doth car¬ ry right to thofe of a new product ? 336 Vid.366, 367. Or if the Right of the Titular of the Tithes of Filh taken in a certain Bay will take effect, when the Fifties leaving their old Haunt are filhed up in fome other Creik ? Ibid, and 337. PRESENTATION to a Benefice (See Patrons, Miniflers,'} What it is ? 42. Prefentation to a Benefice before it vake, 43. Prefentation to one, and to another after his deceafe, 44. None can prefent himfelf, Ibid. At what time the Party prefented Ihould have the Requi- fite Canonical Qualities ? Ibid. How Prefenting is . exerc'd when there are feveral Patrons ? 45. The Ef¬ fect of prefenting trim t vice by one of more Patrons, Ibid, and 175. If Prefentation by a Proteftant Pa¬ tron is allowed in a Popifli Country, or e contra by a Papift: in a Proteftant Place ? 45, 4 6, 47. To whom Prefentations were directed, Ibid. And within what time? 42, 48. The Effeft of the jus devolution, 45, 43, 48. The Reafons of it, 49. Effett of Prefenta¬ tion, 50,5:1. Effeftual tho the Patron’s right come afterward to be reduc’d, Ibid. The Right of Prefen¬ tation refcinded, Ibid, and 52. Reftored, Ibid . And again difcharged, Ibid% What is given to Patrons in lieu thereof ? Ibid. PRIMATS and PATRIARCHS. Differenced. 26. PRIORS and PRIORIES. Different kinds of Priors, 19, 20. ^Priories Dependent and Independent, Ibidi Seculariz d Priors, 21. PROCESSION-PENCE. 29,3 s, PROROGATION of Tacks. 340, 34r, 34-. PROVOSTS Of Collegiat-churches. 21, 32. 34. Their Deeds require the Patron s Confent: Tho Regularite r the Patron may act without their Concurrence, 150, R REDDENDO S In Charters. 199. REFORMATION. Occafion thereof, no. The firft •Step (herein, 1 11. Several of the Popilh Clergy turn’d Profelytes, 112. REGALITIES. Wherein Ecclefiaftick and Laick Rega¬ lities differ? 104, 105. H fi REGULZE ( ) REGUL.T CANCELLARIAB, i7?; REGULUS, His Expedition and Succefs with the Re. licks of St. Andrew. 91. RELOCATION Tacit. (See lacks ) 320, 321, 322. 355, 4 3<>.' RENTALS. 1 S9> 3*9, 3 REVENUES ECCLESIASTICAL. None fix’d till a- bout the fourth Century. 70, 7r. How Liberal a Nurfing Father the Church found in C onftantme the Great ? 7i. Lawfulnefs of accepting Lands and Pof- felTions by Church-men difpured, 72. Julians Pre¬ text for robbing the Church, Ibid . His Edifts Re¬ vers’d, Ibid. A fourfold and tripartite Divifion of the Rent of the Church, 73, Communio Bomrrum be¬ twixt the Bifhop and his C’ergy, Ibid. The Bifhop’s Portion diftinguilhec from theirs, and theirs divided among themfelves, Ibid and 74. Liberality towards Church-men, 8 y. W herein Ecclefiaftical Indowments an Scotland confifted ? 105. Arts us‘d by Ecclefiafticks and Regulars to Rook People of their Eftates, 1 06, 107. The fad Confequences of the Riches of Eccle- fiafticks, 108, 109. REVOCATIONS Royal how Emitted, 2 60. King Charles the firft’s Revocation, and the Grounds of it, 258, 259. Perlons and Reafons for and againR it, 260, 261. Reduction and Improbation thereon, and the Confequence of it, 2 61 , 262. ROSS, Billioprick, 78, 79. $ SACRIST or VESTRY-KEEPER. 30.’ SALE of Tithes formerly ftinted to a certain time, 272, 408. But no time prefcribed by the Commiflion 1690. 273, 408. After Citation in a Sale the Purfu- er’s Tithes folely cannot be Allocat for the Minifter, -73» 39°; Price of Tithes, 269, 406, Deduftions thereof given, and when payable, 407. The Titular may keep poiTdrion of his Tithes till he get his Mo¬ ney, 449. Liferenters have the leading of Tithes purchafs‘d by the Heretor for payment of the valued Duty, 409. What Tithes might not have been for¬ merly bought ? Ibid, And what now ? 410, If the Tith© Tithe of Fifties taken in Alto Mari may be valued and bought at the inftance of the Heretor of the Ground where the Boats land P 410,411,412. Lords of Seflion Judges competent in a Procefs for Sale of Tithes upon a promiie to fell. Ibid and 450. Pay¬ ment of the price of Tithes purfueu before them 449. SHIPS. St. Augufime refus’d to increafe the Revenues of his Church by a Stock in Shipping. 105. SIMONY. What it is, when and where raoft practis'd? 128, 129. Puniftiment of it, 130. Objections inju- fhfication of it anfwered, Ibid, and 1 31. Inftancesof it at home, Ibid. An Incumbents S imoniacal Paction with the Patron, whereby a fufficient Maintenance is not referv’d, 41 , 47, 130. SPULZiE. 442, Ot Tithes, 443, 444, 44$. STIPENDS of Minifters ( See Ptfsefsion, Prescription, ) The Minimum 500 Merks or live Chalders of Victual; and the Summum 1000 Merks or ten Chalders 257. The leaft Stipend made 800 Merks or eight Chalders, 271. When lets Stipends may be modified? 385. Minifters in Menfal Churches have now, tho not for¬ merly, the benefit of the high Stipend, 35, 3d, 385, 3 86. Stipends a Burden upon Teinds, 339. How Stipends are provided to Minifters within Burgh that have no Landwart Parifli ? 44, 45, 395, 428. Col- ledge ofjuftice free of Annuity impofed for Stipends. 429 Who may be ftented for it, Ibid. Herard Would not have Minifters purfue for their Stipend, 423. Stipends provided by the common Law, 424, By Decreets of the Commiffion, Ibid. Modifications of Stipend, 387, 388. Voluntary Contracts for modi¬ fied Stipend ratified by the Commilfion, Ibid. 206389. Action for modified Stipends before the SciTion, 424, 425. Localities, and how impofed, 340, 390, 391, 392> 393 > 394- Action for making them effectual before the Lords ofSeftion, 426,427. According to what Meafure Stipend-bolls fhould be payed ? Ibid. Stipends not Debita Fundi, 428. Summar Diligence and general Letters allowed to Minifters for their Stipends, 430. Actions for them, Advocations from inferior Courts, and Sufpenfions, 431 A Minifters Stipend Ihould be payed altho he be Rich, 432. The Quakers Pica, Ibid . Hh 2 STYLJU STYLITEES (Simon) or of the Pillar, 6. SUBMISSIONS, 2 65, 2 66. SUBSIDIES ( See Taxation) SUPERINTENDANTS appointed, 8?. SUPERIORS and SUPERIORITIES, 183, 184. Ec- clefiaftical Superiorities declared to belong to the King. 1 18, 1 19, 184, 186, 2 6$. Without prejudice to the Rights of Bilhops, 125, 192. But now their Superi¬ orities belong to the King, Ibid. Favour ihow‘n to their Email Vaffals, 193. Some Exceptions from the Kings Right, 185. Feu-duties referv'd till redeem‘d at ten years purchafe, 186, 268. And alfo the Cafua- lities of Superioritie, but not the naked fervice of Vaffals,, 1 87. Lords of Erection may till Redemp¬ tion purfue Exhibitions againft the Vaffals, but not Reductions without Concourfe of the Queens Advo- cat, Ibid. If they have alfo Retention of Feu-duties of their own Property? 188,189. If ever any of the Feu-duties were redeemcd ? 190. Annexation of Su¬ periorities to the Crown, Ibid. Flow that was endea¬ voured to be eluded, Ibid. 6c 191. Superiorities of Be¬ nefices under Patronage redeemable by the Queen, with fonre Exceptions, 193. Patrons of Provoftries and Prebendries of Collegiat-churches, Altarages, and Chaplainries declared Superiors to the entring of the Vaffals of their Benefices, 194,195. Minifters Man- fes and Glebes confidered as holden of the King. 201. T TACKS and TACKS-MEN. ( Sec Grajfums , Rentals, Relocation-tacit , Prorogation , ) Definition of a Tack 152. Granting of Tacks by Ecclefiafticks, once a rare thing, turn’d at length too frequent, Ibid. Caution and Solemnities requifit to the Validity of Tacks, Ibid. 153, 154,310,311,312,313. How long Tacks ' may be Set by Church-men ? 154, 155, 156, 314. EffeCt of thofe let for a longer fpace than Law allows, J 5 > , r 57, 314. If a Patron can Authorize the Setting of Tacks by Commiliion ? 156, 157. The Patron may confent either tacitly or exprelly, and before or after the Deed, Ibid. A perfon having only an Obligement in his Favours to difpone the Patronage effectually, confents as Patron, Ibid, 314. The Effentials of a Tack, Tack, i$S, 314, 31?, 3 J6> 1}7- Tacks granted by Be* nefic’d perfons effe&ual without Poffeflion againffc fmgular Succelfors, 159. vid. 317. Difference be¬ twixt Tacks granted by Benefic’d perfons and thofc made to them, 170, 171. Judicial and Conventional Tacks of Tithes, 314- An Obligement to Warrant! from payment of Tithes found equivalent to a Tack of ’em, 31?. vid. 308,309,66,67. Tack-duties af¬ fect conjunct Tackfmen in Jolidum according to their Intromiflion, 316. Tack of Tithes to a Town by a Bilhop after he had a view of Promotion to another See, Ibid. Tranfmiflion of Tacks of Tithes by Suc- ceffxon, 317. Benefic’d perfons cannot fet New Tacks till the former be expir’d, 3 18. Tacks fet by a Tutor of his Minors Tithes to his own behoof, Ibid How Tacks are underftood to be innovat and paft from ? Ibid Claufes irritant in Tacks, Ibid. If Tacks may be Afiign‘d ? 319- Our Law is very Indulgent Co Te- nents, 371,372- TAXATION and SUBSIDIES. ( See Ctfs ) Church, men once pretended an Exemption from Taxes, 177. A pleafant Pafl'age betwixt Philip -duguft, and the Cleigy of Reims, Ibid. How the Ciergy 'were brought over to a common Conformity ? 178. Particular In- ftances of Taxation impos’d upon them according to Bagimonts Roll, I'bid> 179 Chappel-Royal and Mini¬ fies Stipends free of Taxation, 180. Old way of raifing SubfidieS by Taxation ; and why it was alter¬ ed ? Ibid. Subfidies given in Parliament, not to be inverted to another ule. Ibid . If they be Deb it a Fundi ? 181- TEMPLARS. When, and upon what Occafion the Order was fet up ? 236, 237. Ratio Nominis , ibid. How Interred ? ibid. Their Stand art, ibid, became Richer thanKings, and how? 238 Their Degeneracy ibid 239. Their Deftruthon and the Occafion of it* and how their Lands and Goods were difpos'd on ? ibui 240, 241, 242. when they came into Scotland? ibid. The Beneficeis of the Priefts of this Order, 241. If J emple-Lands were Church Lands, and fell under the Aft of Annexation ? 243. et Seqq. TENURE of DECREETS. If the fame can be made up and proven ? 446,447,448, 449, THE* C ) T'urQATTRER of an Ecclefiaftical Chapter, 30. # THIRDS of Benefices appointed for Mmifters Stipends Tfn the firft place, and tie huperplus to go to the ufe of the Government, 1.4, Allumptio,. of! ht.ds lid Mimfters made nut much of their Right to the Thirds. “as. How the Thirds were extmguiihed ? TITHES ( S“ Vdtatim, Salt, Tims, Miniftm, PMrrn, ^h^UerFe'ued^rt Late’can Council. as«- The Privtledges thereoLJt^ Difference from Dili™ **"***£■ 185 What Papules & Saludtna impos d, 178, 39 5 , p Tithes afe, aa6. None payed b-tore the fourth Ccn iirv 4 27 218 The payment of I ithes came to * Deighc by Degrees iM 347- c«to Opmion as to fhe firft payment of ’em among us, ibid Tithes not tkhtondinTrhe pretended Divine R.ght o ’em ah. bv the Pope to Monaftries, and lola to ^ay men ibid. Difpenfations granted from payment. 232. E»jrss*3£SsS SSrsitts 's*- -gg handled, s/-> kinds of Tj*-»£ the Law, 284- Tithes under the Gofpe! I Ex x 285. Ordinary, 286. Perfonal Tithes, >?“> “7 . . , dill Tithes ibid. a88. Mixt Tithes, ibid. Original of the Difiinftion betwixt Parfonage ^nd V^ag III Civil and Ecclefiaftical Tithes, Conventional Rights of Tithes, 297. Tithes Debitum Fundi, 370. ,« r Com- TITUTLARS of Benefices diftinguiind tr m mendators, and whence fo called ? 3- TRINITY Colledge Church, 89, 93’ TRWMfETERs!’ Their pretence tQ 100 Mirks from ( ) every Bifliop and Temporal Lord of Parliament, 182'. V VACANT Stipends, how and by whom difpos’d 6f 4°, 41, 47, 49> 5°- VALOMBRE The Monks of Valombre whence fprung by whom introduced into Scttlsnd , and whatHcufes were pla ted with them, 9. VALUATION of Tithes, The Rate at which they are Valuable, 268, 39 <5, 397. Grounds of Reducing and Rctlifymg Valuations, 271, 396, 4or 404, 405. Par- fonage and Vicarage, when diftinct Benefices feparat- Jy Valued, 271, 397. And then the Parfonage is the fifth of the Corn-rent, calculate with refpect to Seven Years preceeding, 397, 367. Whereof the Heretor getsfome Deduction upon the Account oflnduftrial and Coftly Improvements. 398. What Tithes might have been Valued formerly ? 403. All are now Valu¬ able, 273, 4o3. Purfuers of a Valuation may have War rand to Lead their own Tithes during the De¬ pendence ; But this expires after a Proteftation for not Infilling, 274, 402. Old Rentals Ordained to Itand for a Valuation, 399. At whofe Inftance Va¬ luations are fuffained ; and who mull be therein Clted * 4°°, 4° 1. If one having a Tack of his own 1 ithes can get them to be valued ? ibid. Valua- tions of Confent, 402. The Teind-Mafter may feek Infeftment for his Valued Duty ; but this Seldom none, and why ? 404. Valued bolls to be delivered conform to Linlithgow Meafure, ibid Liquidation of nygone Tithes, 440, 441. The Lords of Seffion De¬ cern tor thefe when Valued conform to Decreets of V aluation ; but not as to years preceeding the Va¬ luation, 44 6. UDAL Right, 200. VICARS and VICARAGE. ( See Payment ) The Ori¬ ginal Infhtution and feveral Kinds of Vicars, 94, 289, 290,291. What is Vicarage, ibid. 292,247 348 uo 3 *°’ 5*r> 3 52- Purfuers for Vicarage mull prove for- mer ule of payment, 351. How Bygones of Vica- inTS&P1* be L>'be^ed and Liquidated ? 440, 44x UNIVFR Kc fam9 ^lth °U' BifhoPs Bailiffs 73.' UNIVERSITIES, so Lib, out of every joo Merks of Bi« Bifhops Rents* aftd 40 Lib. ©ut of every 100 Mtrh' of Minifters Stipends impos’d in Favours of Univer- fities, 182. . Y . VOWS Peculiar to particular Orders, 16, 11. The ge. neral Vows, 16, 17. WARD LANDS. Feuingof etn, 151, 197, 198. Tax- ing of 'em, ibid. WARRANDICE of Rights to Benefices or Church- Lands, 141, H2- Warrandice by the Surrenderee of their Rights ro other Mens Tithes, 2 69. Warran¬ dice in Ordinary pifpofitions of Tithes, 307,308. In : Rights of Annuity out of ^em, 343. . - WRONGOUS INTROMISSION, 442, 443. FINIS. ERRATA. PAge 6. Line Read fifth Century, p. to. 1. 8. t. ton- ceiving a juft p. 100. 1. pen. r. Black Bosk , p. 188. 1. 30! r. the thing p. 222. 1. 10. r. by refervation. p. 229. 1. ao. r .fet off. p. 259. 1 12 dele to. p. 286. 1 , pen. r. rejldes. p. 299. 1. 4. r whith Title, p. 325* 1. ult. r. cannot. p. 329. 1. 13. r. the Priviledge. p. 335. 1. n. r. 40 years, p, 447. 1. 1 !• r. to be trufted. Advertifement. THere is to be Sold at John Vallangts Shop on the North Side of the Street, a little above the Crofs of Edinburgh , A Methodical Treatife concerning Bills of Exchange. Wherein is an Account of the Rife and frogrefs of Exchange ; the Nature and Kinds of it Explained ; the prevailing Cuftom of Merchants Illu- ftrated and Confirmed from Civil Law, The Authority of Lawyers and Writers Ancient and Modern, Forem Statutes and Sentences of Courts, A£ts of Parliament, and Dccifions of the Lords of Seffion ; and all curi¬ ous and ufeful Cafes, Queftions and Controverfies touching Bills fairly Stated and Difcufs'd, according to the Analogy of the Scots Law. By William Dm* ^.dvQcat. Supplement to the INDEX. ROSLIN 9°* SANDEL ii, J°a* SAUTREY ioo. . SCOON 98* SEATON 90. SOUL-SEAT 11, 10a* STRAPHILLAN 103. TAYN 90. TREFONTANY 8, 103 * TUNGLAND II> 10a. URQUHART *0. WHITHORN. Pnwy ll> I02» Cathedral 88, V" ,K V _/ -I . „ «-£ ' * 1 f, 1 1 I « t « v> ''//A / f f M-l V. ,' ^1 t~.,t-u U f rV,t' ''i"i) J<> {y VS1>. :w.t w~ **-^0, <£ ^ ,-> ! ■ #• ' \ V , if J t « 4 ' jTi i' a. r L ^ * ^w-v. - <;p»i A/a,. ■iv z*c?r‘ K ^ /■ m^- r U^-aa ^YVSM.. ^ ^ ' r< ^ tLx^cJ^-U, I I ¥ ; ' i# ; I '“M * ^ *L (i^ '. I a yL^ - ^>vVW>4ut*< *' t UW' *5-vi ^V^A^vVrt. II • J vi'Vvv/ jifylrt^+fiC r$L /iax. Ca^SvUa^ d|vU' 1=- fV^'*-'^ R.G'^'k. , (( _'-■ k •-<* »y» •i