WHAT ARE TEINDS? 
 
 AN ACCOUNT OF 
 
 THE HISTORY OF TITHES 
 
 IN SCOTLAND 
 
 BY 
 
 WILLIAM GEORGE BLACK 
 
 J OF ' THE PAROCHIAL ECCLESIASTICAL LAW OF SCOTLAND ' 
 
 EDINBURGH 
 WILLIAM GREEN & SONS 
 
 LAW PUBLISHERS 
 1893
 
 STACK 
 ANNEX 
 
 TO- 
 
 DEDICATED TO 
 SIR JAMES KING, 
 
 I5ART., LI,.D.
 
 PREFACE 
 
 Ix the following chapters an attempt has been made to 
 indicate the historical development of the law of tithes 
 in Scotland. On this subject there has been a good 
 deal of misunderstanding, at which no one can be sur- 
 prised who has attempted to grapple with the intrica- 
 cies and anomalies of parochial ecclesiastical law. By 
 tracing the law of tithe-paying from its first civic enact- 
 ment under Charlemagne, through English practice, 
 down to the time of its introduction into Scotland by 
 King David, an opportunity is afforded of gaining a 
 clearer idea of the history of the matter ; and so far as 
 was possible I have avoided the use of the technical 
 expressions with which this subject is superabundantly 
 supplied, and which go far to make any account of 
 Teind Court procedure unintelligible to all but prac- 
 titioners in that court. 
 
 The words Teind and Tithe have the same meaning, 
 and describe the tenth part of the annual produce of 
 the soil cultivated by man, or of the profits of his 
 industry, set aside for the maintenance of teachers of
 
 PREFACE 
 
 religion, but ' Teind ' is used in Scotland more fre- 
 quently than ' Tithe.' 
 
 I am indebted to Mr. Wm. C. Bishop, W.S., for 
 courteously perusing the proofs of the summary, in 
 Chapter V., of the present position of Teinds in Scot- 
 land. The responsibility for the book as a whole, 
 however, is entirely upon myself. 
 
 WILLIAM GEORGE BLACK. 
 
 SS WEST REGENT STREET, 
 GLASGOW, May 1893.
 
 CONTENTS 
 
 CHAPTER I 
 
 I'AGK 
 
 The Civil Institution of Tithes in Europe, .... i-io 
 
 CHAPTER II 
 
 Tithes in England, 970 to 1066, 11-20 
 
 CHAPTER III 
 Tithes in Scotland before the Reformation : 1058 to 1560, 21-41 
 
 CHAPTER IV 
 
 Tithes in Scotland during the Reformation Period and 
 
 subsequently: 1560101628, 42-65 
 
 CHAPTER V 
 Teinds in the Present Day, 66-91 
 
 CHAPTER VI 
 The Survival of the Old Church, 92-110
 
 WHAT ARE TEINDS? 
 
 AN ACCOUNT OF THE HISTORY OF 
 TITHES IN SCOTLAND 
 
 CHAPTER I 
 
 THE CIVIL INSTITUTION OF TITHES IN EUROPE 
 
 THE theory of the legal devotion of one-tenth of the pro- 
 duce of man's cultivation of the soil to the maintenance of 
 religion and of its servants owes its origin to the Jews, but 
 for its recognition in the Christian civil law we must look to 
 the reign of Charlemagne. There is scarcely any other subject 
 which more effectually illustrates the rise of the Church of 
 Rome, or which can be less understood without recourse to 
 the pages of history, than tithes. From 476, when the Western 
 Empire ended, and Constantinople, instead of Rome, became 
 the nominal capital of the nominal successors of Augustus, 
 the Church steadily became more and more a political as well 
 as a religious power. Her progress was irregular, for the 
 character of her Popes varied ; but it never ceased. In the 
 absence of Caesar, the heir of St. Peter became with every 
 century more markedly the chief man in Rome. The Church, 
 A
 
 THE CIVIL INSTITUTION OF 
 
 whatever her faults, was fulfilling her mission in sending 
 missionaries to the heathen, and in succouring the poor at 
 home. Such demands upon the Church's purse necessitated 
 the creation of sufficient revenues, but they were long defective. 
 Bit by bit estates were given her, or were acquired by purchase ; 
 but the attention of the clergy was directed, not unnaturally, 
 to the restoration of the Levitical doctrine of the religion 
 which they taught a restoration which would have brought 
 into the treasury a more or less regular income from tithes. 
 They are frequently referred to in the early history of the 
 Church, but no trace of enforcement under even ecclesiastical 
 penalties is found earlier than the Council of Rouen in 630. 
 Their payment as a religious duty was certainly recognised not 
 long after 567, the date of the second Council of Tours, and 
 had been taught on Scriptural analogy by St. Augustine and 
 St. Jerome, and positively by Caesarius, Archbishop of Aries, 
 503-544. To enforce the collection of tithes was, however, 
 in the nature of things impossible when there was no power 
 other than the Pope's to see to the payment, and his authority 
 as yet was quite inadequate to the task. 
 
 It is therefore to the time when Charlemagne rescued Rome 
 from the fear of the Lombards, and was welcomed by Hadrian 
 as the deliverer of both Church and people, that we have to 
 look for the dawn of a real civil connection between the 
 Church and the State; and accordingly it is from an ordinance 
 made by Charlemagne as King of the Franks, in a general 
 assembly of his Estates, spiritual and temporal, in 778-779, 
 that any outline of the history of tithes must start. The 
 ordinance was in the following terms : ' Concerning tithes, it 
 is ordained that every man give his tithe, and that they be dis- 
 pensed according to the bishop's commandment.' 
 
 A Capitular for Saxony in 789 appointed tithes to be paid 
 out of all public property, and that all men, ' whether noble, 
 or gentle, or of lower degree,' should ' give according to God's 
 commandment, to the churches and priests, of their substance
 
 TITHES IN EUROPE 
 
 and labour : as God has given to each Christian, so ought he 
 to repay a part to God.' A Capitular of 800 made the pay- 
 ment of tithes universal within the fiscal domain of the whole 
 Frankish kingdom. 1 
 
 From the year last mentioned dates the rise of the Church 
 as Catholic. When on Christmas Day, 800, Leo in. placed the 
 crown on the German king's head in the basilica of St. Peter 
 at Rome, as he knelt before the high altar, with the words, 
 ' Karolo Augusto a Deo coronato magno et pacifico imperatori 
 vita et victoria,' then, as has been truly said, ' modern history 
 begins.' 
 
 Henceforward the political and religious unity of the world 
 was, at least in theory, an accomplished fact. The Holy 
 Roman Church and the Holy Roman Empire were but two 
 aspects of one idea. The spiritual aspect of the Visible 
 Church was represented by the Pope, the political by the 
 Emperor. It was an attractive idea which rules all mediaeval 
 history, and for a time it was not only a metaphysical con- 
 ception, but a fact. To the people the Catholicity of the 
 Christian Church was embodied in the twin powers of 
 Emperor and Pope, each equal, each exercising in his sphere 
 the authority and dignity without which the one could not 
 be universal emperor nor the other universal priest. 2 
 
 To Charlemagne and Leo the apparent realisation of a 
 universal Empire and Church, of which one was the world- 
 monarch and the other the world-priest, was personally 
 advantageous. Henceforth the cause of Charlemagne must 
 be the cause of Christendom ; to be his enemy was to be in 
 schism ; henceforth, too, the rights of the Church were the 
 
 1 Selborne, Ancient Facts and Fictions concerning Churches and Tithes, 
 
 PP- 5. 51- 
 
 2 ' As they could not imagine, nor value if they had imagined, a com- 
 munion of the saints without its expression in a Visible Church, so in 
 matters temporal they recognised no brotherhood of spirit without the 
 bonds of form, no universal humanity save in the image of a universal 
 State. ' Bryce, The Holy Roman Empire, p. 98.
 
 THE CIVIL INSTITUTION OF 
 
 Tights which the world would enforce. Each was the comple- 
 ment of the other. The empire of Charlemagne was no longer 
 a collection of states won by the sword of his fathers or of him- 
 self; it was the empire of the Christian world. The diocese 
 of the Bishop of Rome, on the other hand, was no longer 
 southern Italy, but the broad realms over which the sword of 
 the Emperor waved. From this time onwards, therefore, we 
 may say the civil law superseded any merely spiritual admoni- 
 tions as to the payment of tithes. Their payment was no 
 longer a religious duty alone it was a legal obligation, 
 enforceable by the laws of the civil head of Christendom. 
 
 When this mediaeval theory is understood, the history 
 of tithes becomes comprehensible. Much ingenuity has 
 been wasted on considerations whether they were due jure 
 divino or not; and although Selden expressly disavows any 
 intention of dealing with such controversial questions, many 
 curious pieces of misguided ingenuity will be found in his 
 citations. 1 For us it will be sufficient that, until five years 
 after Charlemagne, as Patricius Romanorum, freed Rome from 
 the fear of King Desiderius of Lombardy, there was no civil 
 law in Christendom as to payment of tithes ; and until 800, 
 the same year in which he became Roman Emperor, the law 
 did not apply to the whole of his dominions. Thenceforward, 
 apart from any ecclesiastical theories, the payment of tithes 
 was part of the law of the Christian world. 
 
 In 829 the payment of tithes was made enforceable by dis- 
 traint both by the Emperor Louis the Simple and by Lothair 
 for Lombardy. The means for dealing with defaulters was, 
 first, by priestly admonition ; then (in the words of Lord 
 Selborne) by exclusion from the Church ; then by the inter- 
 vention of the civil power and the infliction of fines ; then by 
 a sort of interdict against defaulters' houses ; and last, if the 
 
 1 For some 'cabalistic and doting curiosities,' as Selden well styles 
 them, see Historic of Tithes (1618 ed.), pp. 7, 8. 
 
 2 Selborne, p. 54.
 
 TITHES IN EUROPE 5 
 
 use of all those means failed to produce the desired effect, by 
 bringing the offenders in custody before the imperial or royal 
 courts. 
 
 It will have been noted that Charlemagne directed the 
 tithes to be paid to the bishops. There were then no parishes 
 in our modern sense, and at all events it had long been the 
 practice of the Church that the funds contributed for the 
 support of religion should be distributed by the bishop who 
 was recognised as entitled to receive them. 
 
 Such funds were, according to Roman custom from at least 
 the time of Pope Gelasius, 501, divided into four portions. 
 One the bishop retained for himself and those who were depen- 
 dent upon his hospitality ; a second portion was distributed 
 by him among his clergy ; a third was administered for the 
 benefit of the poor and strangers, and the fourth went towards 
 maintaining the fabric of the churches. In 80 1 a quadri- 
 partite division was established for Lombardy by Charlemagne, 
 and it was adopted generally in Gaul and in Germany ; in 
 Spain, however, the bishop took one-third of the whole fund, 
 at the same time himself undertaking the repair of the 
 churches at least from A.D. 516, the date of the Council of 
 Tarragona ; and there are evidences that in some districts of 
 France and the Low Countries in the ninth century (exclusive, 
 however, of the metropolitan diocese of Paris and of Orleans) 
 tithes were divided into three portions, one going to the 
 Church, one to the poor, and one to the priests. 1 
 
 In each bishopric there were generally several Mother 
 Churches or Baptismal Churches, known under that name 
 because, as Lord Selborne (who calls the districts attached 
 to such churches and their dependent chapels, 'subdioceses') 
 has observed, 2 such a church contained a baptistery where 
 alone, except in cases of emergency, baptism could be 
 
 1 As to the revenues of the episcopal treasuries and their distribution 
 on the Continent in mediaeval times, see Selborne, pp. 27-45. 
 
 2 Ibid. p. 57.
 
 THE CIVIL INSTITUTION OF 
 
 administered. To the bishop the tithes were originally pay- 
 able, but it was not long until questions arose between the 
 bishop and such churches as to the right of the former to 
 receive all the revenue and himself administer it. Even in 
 Charlemagne's times the ordinance of 778-9 seems to have 
 required modification, for by his Capitular de villis in 800, 
 while guarding the rights of the bishops, he provided that 
 'if by gifts of kings or other good and God-fearing men, any- 
 thing from which the older churches had been accustomed 
 to receive tithes, under ancient titles, should have been 
 granted to bishoprics or monasteries, the earlier gift or 
 devotion should continue in force, and the tithes should be 
 paid by those in possession of the land.' * 
 
 One of the most serious obstacles to the continuance of the 
 ancient system of payment of tithes to the bishop was the 
 founding by private donors of private chapels, which, as wealth 
 increased and zeal for religion spread, were erected upon the 
 donor's own lands, and endowed either with lands and their 
 revenues or with the tithes of certain lands. The localising 
 of tithes was a thing virtually unknown. Payment of tithe 
 was both a religious and a civil duty, but it was not a local 
 duty until lay-founders led the way by their arbitrary appro- 
 priations. The priests of such chapels were in a different 
 position from the mission priests sent out by bishops to 
 stations and paid by the bishops. The preachers under the 
 bishop had no distinct parochial position. It was different 
 when lay-founders took to appointing local priests. Against 
 all the canon law, foundations in which the lay patron retained 
 the property of the chapel became common ; and curious 
 scandals arose, such as the division of a church among co-heirs 
 of such a founder; and the unseemly spectacle of three or 
 four priests, the nominees of the three or four co-proprietors, 
 struggling round a single altar, was not unknown. Charle- 
 magne in 804 allowed any man to build a church on his own 
 1 Selborne, p. 62.
 
 TITHES IN EUROPE 
 
 ground, with the bishop's consent, but provided that this 
 should not interfere with the right of the older churches to 
 receive their tithes. Such a law shows that the bishops' 
 pretensions to receive the whole tithe had not been well 
 received. Public opinion is generally ahead of statute law in 
 matters of social or religious reform, and in all probability the 
 development of local districts is most effectually illustrated 
 by the necessity which immediately arose of modifying 
 Charlemagne's rule as to payment of bishops. By 816 the 
 parochial system had grown, for by the ordinances of the 
 Council of Aix-la-Chapelle it was required that priests should 
 not be appointed or removed by lay-founders without the 
 bishop's authority. While this jealousy was shown for the 
 bishop's authority, it is impossible not to see that the ordi- 
 nance recognised the necessity of not limiting the zeal of lay- 
 founders, if only the conditions of ordinary episcopal super- 
 vision were preserved. Each church was to have a manse 
 attached, and the tithes arising within new townships in 
 which new churches were founded might be granted to those 
 churches. This is virtually the birth of the parochial system ; 
 but, although in theory the parish priest has had a right to 
 local tithes from an early date, in practice, as we shall see, it 
 was made very difficult for him to get them. 
 
 Parishes were bound to come, sooner or later ; and it was 
 comparatively early in the modern history of the Church, as 
 we have seen, when the parish priests, or presentees of the 
 lay-founders of chapels with arbitrary appropriations of tithes, 
 were admitted to have a right to such tithes as were derivable 
 from the township in which the chapel stood. But such 
 priests had two enemies. On the one hand, the monastic 
 orders were constantly invading the rights of the churches 
 which were normally founded by or in connection with the 
 diocesan system. On the other, the laymen sometimes, 
 instead of paying their tithes to the local priest, made gifts of 
 churches and tithes either to monasteries or to bishops, on
 
 8 THE CIVIL INSTITUTION OF 
 
 condition of receiving back the tithes as vassals of such 
 bishops. Neither monks nor laymen might, canonically, 
 hold tithes, which were the heritage of the diocesan clergy ; 
 and a synod of bishops met at St. Denis, near Paris, in 
 997, to endeavour to get back tithes that were improperly 
 held. But Abbo, Abbot of Fleury, 1 offered a strenuous 
 resistance; the mob broke in, and the synod separated in 
 confusion." 
 
 Such disputes between the two branches of the Church 
 did not tend to make it easier to deal with laymen. The 
 monastic orders were glad to receive gifts of tithes, on such 
 terms as might be agreed upon, and to defend both the right 
 of the donor to present them and of their houses to receive 
 them. 
 
 The bishops, not to be outdone, were willing, while they 
 insisted on the tithes nominally being their own, to return 
 them to the layman under favourable conditions of feudal 
 tenure. There was great restlessness in the mediaeval Church : 
 the monastic orders blamed the greed of the bishops ; the 
 bishops turned their finger to the vows of poverty which the 
 monks professed, and then pointed to the great demesnes 
 and large revenues of those 'poor sheep of Christ's flock.' 
 Between them the Church seemed likely to lose much of 
 her tithes, by the compacts she made with laymen as to 
 the terms upon which tithes might be paid or even retained 
 or collected by laymen. 
 
 At the Lateran Council of 1078 the possession of tithes by 
 
 1 Selborne, p. 65. 
 
 2 Again, as the orders settled down and acquired lands they advanced 
 claims to immunity from payment of tithe for such lands. Hadrian IV. , 
 who ascended the papal throne in 1154, limited such exemptions, which 
 were a fertile source of dispute, to the Cistercians, Templars, and 
 Hospitallers; and the Lateran Council of 1215 still further confined it 
 to lands acquired prior to that date. The exemptions were chiefly 
 limited, however, in practice to the Templars and Hospitallers. Selden, 
 pp. 121, 122. See infra, pp. 30, 31.
 
 TITHES IN EUROPE 
 
 laymen, whether received from bishops or kings or any other 
 person, was declared to be sacrilege, and their restoration was 
 demanded. The canon was admirable in its comprehensive- 
 ness, but the number of Councils in mediaeval times shows 
 how very little binding effect most of their canons had upon 
 the Christian world in general ; this canon, at least, was un- 
 workable, and Pope Urban n. in his turn found it necessary, 
 for the sake of peace and to avoid scandal, to, confirm the 
 holding of tithes by lay persons as such rights then existed, 
 but he prohibited the creation of such rights in future with- 
 out the bishop's consent. The Council of Poictiers in noo 
 denounced the action of bishops who created such feudal 
 holdings ; Alexander in., confirming a canon of the Council 
 of Tours in 1163, decreed that any bishop granting tithes to a 
 layman should be deposed ; and at last, at the third Lateran 
 Council, in 1179, we come to a canon which was intended 
 emphatically to end the matter. 
 
 The time was not unsuitable. Here again we pass a mile- 
 stone in the Church's highway through history. In 779 the 
 Church was leaning on the arm of the State. The year 800 
 saw the recognition of the absolute equality of Pope and 
 Emperor, each in his sphere. But much happened in the 
 three hundred and fifty years which followed. The Empire 
 had fallen among Charlemagne's sons, had risen afresh under 
 Otto, and had been degraded by Henry iv. It is in the very 
 year that followed the Emperor's penance at Canossa that the 
 second Lateran Council declared in unambiguous terms the 
 Church's position towards laymen. The third Council only 
 takes up the tale when it provides, ' We forbid laymen, 
 detaining tithes at their soul's peril, to transfer the title to 
 them, by any means, to others ; and if any one shall receive, 
 and not restore them to the Church, let him be deprived of 
 Christian burial.' l 
 
 The Church had grown strong while the Empire had 
 1 Selborne, p. 68.
 
 io THE CIVIL INSTITUTION OF TITHES IN EUROPE 
 
 wavered. The Pope now claimed an authority over the 
 Emperor which Charlemagne might with ease have asserted 
 over the Pope. In the see-saw of history the clergy and the 
 laity had changed places. The Church called in the aid of 
 the Emperor to ensure payment of ecclesiastical revenue to 
 her bishops ; the successors of those bishops are now restrained 
 by an ecclesiastical Council from having any dealings as to 
 such revenues with laymen. 
 
 Before the end of the twelfth century the right of parish 
 churches on the Continent to tithes was so general that ' the 
 burden of proof was thrown upon those claiming against 
 them.' l 
 
 It is not necessary that we should follow further the history 
 of Continental tithes. We have seen their development, from 
 the days when a merely religious duty of paying them was 
 known, to their legal enforcement We have pointed out 
 that their payment was in the early, days of the Empire due 
 only to the bishops, and that the delimiting of parishes and 
 the recognition of a local priest's right to local teinds were 
 matters which it took some centuries to determine. 
 
 1 Selborne, p. 93.
 
 CHAPTER II 
 
 TITHES IN ENGLAND, 970 TO IO66 
 
 ENGLAND was the first country outside of what was to be the 
 Holy Roman Empire of Charlemagne which became Christian 
 as a country. Before the end of the seventh century its 
 conquest by Christianity was complete, and it was only a 
 question of time when the observance of payment of tithe 
 would become in England, as in the Empire, a civil as well as 
 a religious duty. In England too, as on the Continent, 
 bishoprics long preceded parishes ; and how those bishoprics 
 were determined is an interesting proof of the fact that, 
 despite changes of the most revolutionary kind, England 
 in her political and religious policy has preserved territorial 
 boundaries, and specially designated districts, with marked 
 conservatism. The limits of a diocese in early times 
 answered commonly to those of a kingdom or principality. 
 ' The supremacy of Kent at the beginning of the conversion,' 
 says Freeman, 1 'the supremacy of Northumberland at the 
 stage when Christianity was first preached to the northern 
 English (627), is still shown to this day in the metropolitan 
 position of Canterbury, the city of the Bretwalda yEthelberht, 
 and of York, the city of the Bretwalda Eadwine.' Indeed, the 
 place-names of England are a very museum of historical 
 relics if only we take them the right way. 
 
 For the same reasons which led us to pass very rapidly 
 
 1 Nqrman Conquest, i. p. 29.
 
 TITHES IN ENGLAND 
 
 over the history of the tithes on the Continent prior to 
 Charlemagne, we may pass almost unnoticed the alleged re- 
 cognition of the legality of payment of tithes prior to the reign 
 of the English Charlemagne, Edgar the Peaceful. Precepts, 
 however, ascribed to Archbishop Theodore, but at all events 
 written after 690, direct ' that no priest is bound to pay tithes,' 
 ' that local custom in regard to gifts to the Church should be 
 observed,' and ' that it is not lawful to give tithes except to 
 the poor, and strangers or laymen to their own churches' 
 (siri laid suas ad ecclesias).' 1 
 
 Considering that there were many Englishmen at the Court 
 of Charlemagne, and that the communication between the 
 Emperor's Court and England was constant for centuries, it 
 is probable that the duty of paying tithe was well understood 
 from an early period. But there was no civil law as to the 
 appropriation of tithes before Edgar's reign, when for seventeen 
 years there was almost unbroken peace over the whole island. 
 Three years before that pageant en the Dee which seems to 
 be beyond historic doubt when eight vassal kings rowed 
 the king's barge under the walls of Chester and which so 
 admirably typified the unity and peace of his kingdom, 
 Edgar (in 970) enacted, by the first article of his ecclesi- 
 astical ordinance made at Andover, 'That God's churches 
 be entitled to every right ; and that every tithe be rendered 
 to the old minster to which the district belongs ; and be 
 so paid, both from a thane's in-land (i.e. land in the lord's 
 hands), and from geneat-land (/>. land granted out for 
 service), so as the plough traverses it.' 
 
 The second article qualifies this right. 'But if there be 
 any thane who on his bocland (i.e. his private estate) has a 
 church at which there is a burial-place, let him give the third 
 part of his own tithe to his church. If any one have a church 
 at which there is not a burial-place, then, of the nine parts, 
 let him give to his priest what he will ; and let every church- 
 1 Selbome, p. 107.
 
 TITHES IN ENGLAND 13 
 
 scot go to the old minster, according to every free health ; 
 and let plough-alms be paid when it shall be fifteen days over 
 Easter.' 
 
 The third runs thus : ' And let a tithe of every young be 
 paid by Pentecost ; and of the fruits of the earth by the 
 equinox, and every church-scot by Martinmass, on peril of 
 the full "wite" which the doom-book specifies; and if any 
 one will not then pay the tithe, as we have ordained, let the 
 king's reeve go thereto, and the bishop's, and the mass-priest 
 of the minster, and take by force a tenth part for the minster 
 to which it is due ; and assign to him the ninth part ; and let 
 the eight parts be divided into two, and let the landlord take 
 possession of half, half the bishop ; be it a king's man, be it 
 a thane's.' l 
 
 The foundation of churches and the appointment of priests 
 by lay-founders led to this abuse, that when the cure became 
 vacant it was not necessarily filled up. The tithes in the 
 meantime might well remain in the founder's hands, for the 
 bishop had no power to interfere. At the third Lateran 
 Council, however (1179-80), at which four English bishops 
 were present, 2 it was settled that upon the lapse of private 
 patronage the right to appoint devolved upon the bishop. 
 This direction was not, of course, binding by the law of 
 England ; but it was gradually adopted, and with it the 
 modern parochial system became established. 3 
 
 As with Charlemagne the Empire was at its greatest before 
 it sank in disorder, so with Edgar the unity of England 
 passed away for many a day ; but Canute who was cer- 
 tainly the greatest legislator prior to the Conquest re- 
 enacted Edgar's law about tithe, with other laws, about 
 1018-21. The troubles which overtook England between 
 975 and 1020, a period of forty-five years, prevented any- 
 thing like the development of ecclesiastical and parochial 
 
 1 Thorpe's Ancient Laws, 1840, i. pp. 263-5. 
 
 2 Selden, p. 388. 3 Selborne, p. 295.
 
 14 TITHES IN ENGLAND 
 
 government which might have been expected. England 
 started well on its progress as a Christian Power; but the 
 troubles with invaders who were but half-Christian, and the 
 weakness of the native kings, prevented any steady or civil 
 recognition of ecclesiastical territorial divisions, much less of 
 a strict law of tithes. The laws of both Edgar and Canute, 
 however, are valuable, not only for what they say, but for 
 what they do not say. When Edgar provides for a certain 
 portion of the tithes being paid to the manorial church, it is 
 sufficiently clear that there were not only baptismal churches, 
 but churches of a semi-parochial character upon manors, and 
 that there had been doubts as to the right of tithe-payers to 
 withhold any portion of their tithe from the bishop's church 
 and devote it to dependent chapels. 
 
 Parochia was acquiring a new meaning just as it had done 
 on the Continent. The evidence that in England, as abroad, 
 it had originally meant a diocese and nothing more, is, as 
 Selden says, 1 very obvious both in Latin and in Saxon. Two 
 instances will perhaps suffice (in Selden's words) : 'It is related,' 
 he says, ' of King Cenwalh [660] that he divided Provinciam 
 in dims Parochia, when he made a new Bishoprique at Win- 
 chester that was taken out of the Diocese of Dorchester. 
 And in the Council of Hertford held under Theodore, Arch- 
 bishop of Canterburie, one canon is Ut nullus Episcoparum 
 Parochiam alterins invadat sed contentus sit gubernatione credits 
 sibi plebis? 
 
 Yet districts had been assigned to local churches for the 
 convenience of both priests and people, although there was 
 no obligation on the people to confine their devotion or their 
 gifts to the church which happened to be near their residence, 
 nor did the clergy of the districts reside within their districts. 
 Their general place of abode was the bishop's house, and their 
 maintenance was from the fund apportioned out of the tithe 
 payable to the baptismal church for the service of which they 
 1 Selden, p. 257.
 
 TITHES IN ENGLAND 15 
 
 were ordained. The appearance of the priests in public, 
 indeed, from Bede's account, was in early times very rare; 
 ' so rarely were they seen abroad that whenever any of them 
 were espied in the country, the people used presently to flock 
 about him, and with all reverence humbly to beseech his 
 Benison, either by signing them with the Crosse, or in holy 
 prayers for them ; and with all earnestness of attention they 
 heard what he preached. How long this communitie in every 
 Diocese between the bishop and the attending clergie con- 
 tinued, fully appears not. But, that it was not out of use till 
 past more then c yeers after Augustine's comming, that is till 
 past DCC years from Christ, may be conjectured out of those 
 testimonies of Bede which extend as farre.' Thus Selden. 
 
 The early Church, then, was essentially non-parochial. It 
 was not, however, so purely an Episcopal Church as that of 
 the primitive Church in Italy. The theory of the Church was 
 the same, but the rise of the orders early introduced a new 
 element into the English Church's economy. To discuss the 
 relative position of the secular clergy and of the regular 
 clergy l would be foreign to the purpose of this summary, but 
 it is necessary that it should be remembered that there were 
 two monastic movements in the Church. 
 
 1 The words Secular and Regular have so entirely changed their mean- 
 ing that it is necessary to remind the reader that the Secular clergy were 
 the clergy pertaining to the Episcopate, or non-monastic ; the Regular 
 clergy were the members of the religious orders who lived under special 
 regulations of the founders. Thus, to take a modern illustration, the officers 
 of the Salvation Army from a mediaeval point of view might be regarded 
 as Regulars, while the Archbishop of Canterbury is certainly one of the 
 Secular clergy. The word Regular in ecclesiastical phraseology has, in 
 fact, made a complete somersault. 
 
 We have perhaps an illustration of the distaste of the Secular clergy for 
 the Regulars in one of the Exempla of Jacques de Vitry, Bishop of Acre, 
 1214, when he tells of two brothers, one of whom was brought up in a 
 monastery and the other in the world. When the two attained majority, 
 ' plures civillationes et dolos scivit claustralis et multo magis maliciosus 
 fuit quam qui in seculo remansit.' (Exempla, ed. by Crane, 1890, p. 19.)
 
 16 TITHES IN ENGLAND 
 
 Augustine, the apostle of English Christianity, was a monk, 
 but of the system of primitive monasticism ; and Gregory's 
 directions to him were that, although trained as a monk, he 
 ought not to live separately from his clergy, but should 
 institute an English Church conforming so far as possible to 
 the administration of the early Church. Augustine, therefore, 
 did not found a Benedictine monastery, but collected around 
 him a college for clergy, the germ of the chapter of Canter- 
 bury Cathedral, although subsequently to Dunstan's time its 
 organisation was altered. 
 
 The monasteries were, as we have seen, the residences of 
 the clergy; and all priests, whether in colleges or in monasteries, 
 were directly under the bishop of the parochia. Some of the 
 houses which were known as monasteries were scarcely more 
 than asylums, places of retirement, as Stubbs says, for worn- 
 out statesmen and for public functionaries kings, queens, 
 and ealdormen, ' whose forced seclusion gave to their retreats 
 somewhat of the character of reformatories.' l Some of them 
 in Bede's time were already too rich and full of abuses, calling 
 even in the eighth century for a reform which separated, at 
 least nominally, the secular from the monastic clerks. In the 
 history of some there are traces of the hereditary descent of 
 the priesthood. 2 Some were certainly houses where both men 
 and women were received. The early monastic houses were, 
 indeed, very different from those of the Benedictines which 
 Dunstan found at Ghent during his exile ; and although he 
 
 1 Stubbs, Constitutional History of England, i. p. 257. 
 
 2 ' Either clerical celibacy was unknown, or the successive heads of the 
 monasteries must have delayed ordination until they became fathers and 
 mothers of families large enough to continue the succession ' (Stubbs, i. 
 p. 256). There is no ambiguity as to the conditions upon which Abbot 
 Headda left his monastery to the See of Winchester : ' quod mei heredes 
 in mea genealogia in ecclesiastico gradu de virili sexu percipiant, quamdiu 
 in mea prosapia tarn sapiens et praesciens inveniri potest qui rite et 
 monastice ecclesiasticam normam regere queat et nunquam potestati lai- 
 corum subdetur ' (Cod. Dipl. clxix). Theodore forbade such succession.
 
 TITHES IN ENGLAND 17 
 
 does not seem to have himself been a violent partisan of 
 the new order of things, it was in his time that the regular 
 clergy began to assert their superiority, if not their independ- 
 ence of the secular clergy. Without digression upon the 
 matter it is important to bear in mind that the second 
 monastic movement was very different from the first, be- 
 cause it was the independence of the new monastic houses 
 which was undoubtedly responsible for many of the arbitrary 
 appropriations of tithes to which reference will afterwards be 
 made. The monks in succeeding generations taught a some- 
 what free doctrine as to parochial liability to pay tithes, so 
 long as tithes were paid to some ecclesiastical body, and 
 reaped the reward of their liberal doctrines in appropriations 
 to their own foundations. Such teaching was abhorrent to the 
 secular clergy. 
 
 The so-called laws of Edward the Confessor direct the 
 payment of not only prgedial, but personal tithes to the Church, 
 but Lord Selborne considers the MS. apocryphal, ' and not to 
 be relied upon for any historical purpose.' 1 
 
 In the laws of William the Conqueror, however, we indirectly 
 find the growth of parishes illustrated, for he provides that if 
 a cathedral, or a monastery, or other religious house (cenobium 
 vel quczcunque religiosorum ecclesia) is violated, the forfeiture 
 will be 100 shillings; if 'a mother parish church ' (matrix 
 ecclesia parochialis), twenty shillings ; if a chapel, ten shillings. 
 This mother parish church, as Lord Selborne says, can only 
 be Edgar's church with a burial ground. By the end of the 
 twelfth century, there was a general presumption that every 
 parish church was endowed with its own tithes, if they could 
 not be proved to have been appropriated to a particular 
 monastery, but such endowments were never made by any 
 general law. The endowment was the result of custom. No 
 law ever restricted local tithes to a local church up to the end of 
 the twelfth century. The obligation to pay tithes was indeed 
 1 Selborne, p. 302. 
 B
 
 1 8 TITHES IN ENGLAND 
 
 universal, but where they should be paid was a matter for the 
 payer's choice. Thus in the Chronicle of Battle Abbey, written 
 about 1176, the Chronicler says : 
 
 ' As it was permitted up to that time [the foundation of the 
 Abbey in 1066] for every one to pay his tithe where, or to 
 whomsoever he would, many of those who resided in the 
 neighbourhood assigned theirs to the Abbey in perpetuity, and 
 these, being confirmed by episcopal authority, remain payable 
 to the Abbey until this day.' Other instances of a century 
 later, 1279, are cited by Selden, p. 357, and Selborne, p. 308. 
 In 1371 Ludlow, one of King Edward m.'s Judges of Assize, 
 said, ' Anciently every man might grant the tithe of his land 
 to any church that he pleased.' 1 
 
 If a lord could grant his tithes to any church, it is clear he 
 might endow his own church, and this brings us to the crux of 
 most writers on tithes, the ' arbitrary appropriations ' of which 
 Selden speaks. In the nature of things nothing seems more 
 reasonable or more natural than that a lord of a manor should 
 appropriate his tithes definitely to his own church. No doubt, 
 ecclesiastically, the consent of the bishop may have been 
 necessary to this ; but the founder had it in his power to make 
 his bargain with the bishop before he undertook to erect his 
 church. There was thus, as Lord Selborne has said, two 
 minds to the contract ; and, once made, there was no reason 
 why the carrying out of the bargain should not have been 
 insisted upon by the founder, and the parish in its first eccle- 
 siastical form grew out of the manor. As time passed on, and 
 churches increased, the ecclesiastical district became practically 
 identical with the ancient township ; it is the ancient vicus or 
 
 1 The stages of progress may be stated thus : 690, Ina, king of 
 Wessex, imposes penalties on those who fight in several secular buildings, 
 which he names, or in a mynstre (minster), or monastery ; evidently there 
 was no other recognised public church. 970, Edgar speaks of the ' old 
 minster,' and the manorial church. 1066, we have (i) William's ' minster,' 
 (2) the mother parish church, originally manorial, (3) chapels afterwards 
 to develop into local parish churches.
 
 TITHES IN ENGLAND 19 
 
 tun-scipe regarded ecclesiastically. Many of the townships 
 were too small to support a separate church and priest, so one 
 parish might contain several townships, ' but the fact of a 
 township lying partly in one parish and partly in another, 
 without being very uncommon, is rare enough,' says Bishop 
 Stubbs, ' to be exceptional, and may generally be accounted 
 for by more recent history.' l 
 
 We have seen how the civil obligation to pay tithes, in- 
 stituted by Charlemagne, was recognised in England as the 
 circumstances of the time permitted ; that bishoprics, as on the 
 Continent, long preceded parishes ; that parishes were the 
 result of the widening out of the Church's work, that the tithes, 
 which originally were payable to bishops, were gradually ap- 
 propriated to the clergy of such parishes, and it has been in- 
 dicated that while the early Church was got into shape by the 
 secular clergy, there was, subsequent to the time of Dunstan, a 
 marked advance of the new regular clergy, who were not paro- 
 chial or necessarily diocesan, and whose interest it was for 
 the benefit of their religious houses to encourage appropriation 
 of tithes either to parochial churches or to themselves, for 
 religious purposes which might be parochial or which might 
 not. 2 It is not necessary that the history of tithes in England 
 should detain us longer, for it was at the point, reached about 
 the time of the Norman Conquest, that the religious system 
 then developed, or in course of development, was imported 
 
 1 Constitutional History, \. p. 260. 
 
 2 We find instances of churches which were both parochial and 
 monastic. Thus Dunster church in Somersetshire was, after 1499, 
 double, one church being used by the vicar of the parish, and the other by 
 the neighbouring priory of Benedictines. The Benedictine portion is 
 now in ruins. Again Davington Priory was originally two churches under 
 one roof, the western portion being the church of the Benedictine Sisters 
 of Davington, the eastern portion, that of the vicar of the parish. In this 
 case, it is the parochial portion of the building which has long been dis- 
 troyed. Sherborne Minster was also partly monastic, partly parochial. 
 See Notes and Queries, 8 th S. iii.'pp. 257-8.
 
 TITHES IN ENGLAND 
 
 into Scotland by Queen Margaret, the niece of the Confessor, 
 and the many English gentlemen who followed the Atheling 
 and his sister to the court of Malcolm Canmore. The change 
 in the history of Scotland at this point is, indeed, from a social 
 point of view, startling, for when we read of St. Margaret and 
 of Turgot, it is difficult to believe that the Queen's immediate 
 predecessor on the Scottish throne was the Lady Macbeth of 
 Shakespeare.
 
 CHAPTER III 
 
 TITHES IN SCOTLAND BEFORE THE REFORMATION : 
 1058-1560 
 
 WE have now traced the development of the civil recognition 
 of the religious obligation to pay tithes, and the growth of the 
 parochial idea. 
 
 We have seen how the influence of Charlemagne, whose 
 adviser was so generally the English Alcuin, reacted upon 
 England, even under Danish kings. The English Church 
 passed through three stages, the early monastic, the almost 
 purely secular, and the secular and new monastic. It was in 
 the first that the Christian Church in England began ; it was 
 in the second that Edgar gave his law as to tithes ; it was in 
 the third that the Conqueror re-enacted the laws of his Saxon 
 predecessors. 
 
 Where does the Scottish law custom of tithes-paying 
 begin ? 
 
 Sir John Connell says that 'the existence of tithes in 
 Scotland, prior to the time of David i., and their establish- 
 ment during the reign of that monarch, are fully proved.' This 
 statement is perhaps rather too general. 
 
 It is true that grants were made to religious houses at a 
 very early date. So early as the ninth century Cyric (the 
 1 Grig ' of Connell, whose name is perpetuated in Cyruskirk= 
 Eccles Grig) transferred the privileges of Dunkeld, which itself 
 had succeeded Abernethy, the heir of lona, to the church of 
 St. Andrews, and the historical Macbeth and his queen (1040- 
 1058) were among the benefactors of the Culdee priory of
 
 TITHES IN SCOTLAND 
 
 Lochleven ; such grants were numerous. It is also true that 
 the first Scottish parish, that of Ednam in Roxburghshire, was 
 created by Thor the Long, in the reign of William i., King 
 David's brother and predecessor, and that tithes are referred 
 to in a document of David's reign, as having been given to 
 the chapel of Stirling by Alexander, to which we shall again 
 refer; but one swallow does not make a spring ; the establish- 
 ment at Ednam was exceptional, and the tithes of Alexander's 
 times seem to have been a royal gift and nothing more. 
 
 There is no proof that tithes, or anything like the payment 
 of tithes, was ordinarily recognised as a civil obligation for 
 long after the time of Alexander. He and his brothers, 
 brought up under the influence of an English mother and of a 
 very English court, were early acquainted with the practice of 
 England ; but Scotland was in no condition, in Alexander's 
 time, to render the obligation of general tithe-paying possible. 
 Nor was it in David's reign. 
 
 Connell speaks of the ' existence of tithes in Scotland] 
 and his words might lead the reader to suppose that Alex- 
 ander was King of Scotland in the sense in which the later 
 Stuarts were kings ; but this, of course, he was not. Up to the ac- 
 cession of David, while the royal authority extended practically 
 as far north as the Spey, 1 the country between the Forth, the 
 Tay, and the central ridge of the Grampian range was the real 
 home and centre of Alban. David was Prince of Cumbria, and 
 with his accession Southern Scotland began to develop, but 
 even in his time the Lord of Galloway was rather an ally than 
 a vassal, and was indeed married to a natural daughter of 
 Henry i. of England, David's brother-in-law. The kingdom 
 of the Isles was under the Scandinavian crown. All, there- 
 fore, that remains of Connell's statement which can be his- 
 torically affirmed, is that Alexander, while king of a portion 
 of modern Scotland, recognised the duty of paying tithes in 
 certain instances. Even had he wished to make tithes obli- 
 1 Robertson, Scotland under her Early Kings, i. p. 232.
 
 BEFORE THE REFORMATION 
 
 gatory, he could not have done so ; and looking at the eccle- 
 siastical difficulties between the Culdees and the Anglican 
 Church in the reign of David, it is not doubtful that that 
 sovereign only established the payment of tithes to the extent 
 of making grants of land under burden of tithes, or of making 
 grants of tithes, or confirming such grants to the houses of the 
 clergy who derived their orders from the English Church, not 
 that he regarded such tithes as payable, as a matter of course, 
 for the maintenance of the ordinary or parochial clergy, which, 
 at least at the beginning of his reign, would have meant the 
 endowment of the Culdees, with their non-canonical Easter, 
 distinctive tonsure, and tribal rather than territorial basis a 
 thing very far from his intentions. Tithe-paying, as the English 
 Church of the time understood it, too, was utterly foreign to 
 the Culdee theory of church maintenance. 
 
 The state of things in St. Andrews at David's accession 
 will illustrate this. The college of Kilrimont, or St. Andrews, 
 was served by a prior and twelve Culdees, of whom five never 
 officiated at the altar. The remaining seven seem to have had 
 each his chapel, and the offerings at each chapel were divided 
 into seven, one going to the bishop, one to the hospital the 
 invariable appendage of a Culdee monastery and the five lay- 
 Culdees (if we may so call them) received the rest, on condition 
 of maintaining pilgrims when the hospital, which held six, was 
 full. The Culdee houses were nearly always made up of 
 members of the same family, the leading one of the neighbour- 
 hood, or that of the founder, and in this case they seem to 
 have been connected with the Comyns. 1 
 
 King David's reforming work was as thorough as it was 
 speedy, and the Culdee Church was practically superseded by 
 his efforts, 2 but for the reasons we have given, it is in the 
 
 1 Robertson, pp. i. 337-339- 
 
 2 Strangely enough, one Culdee house, that of Kirkheugh, survived, 
 with prior and twelve prebendaries, at the time of the Reformation. 
 Robertson, i. p. 344.
 
 24 TITHES IN SCOTLAND 
 
 highest degree improbable that in his time the establishment 
 of tithes can be 'fully proved.' He led the way, and the 
 Church was glad to follow. It would probably be correct to 
 say that from and after the reign of King David, when 
 feudalism burst into flower, in Scotland with more speed than 
 probably in any other country, the duty of paying tithes was 
 generally recognised, and the law of England as to tithe- 
 granting and tithe-collecting was by the influence of the clergy 
 under the new church discipline as rapidly as possible intro- 
 duced into the practice of Scotland. In David's principality 
 of Cumbria the work was easier for him than elsewhere, 
 because the Culdees seem never to have been established 
 south of the Forth, and therefore it was natural that in that 
 fertile land the foundation and endowment of ecclesiastical 
 houses were speedier than elsewhere. How far David was from 
 associating churches specially with their localities is shown by 
 his gift of the patronage of the Priory of May in the Forth to 
 the Monastery of Reading in England. Alexander in. re- 
 acquired the right of purchase. The See of Dunblane, on the 
 other hand, long nominally enjoyed the lordships of Appleby, 
 Troclyngham, Congere, and Malemath, though the bishop's 
 rights would have been somewhat difficulty to enforce in later 
 years. We take up, in fact, in David's reign, the theory of 
 tithes as it existed at the court of his granduncle, Edward the 
 Confessor. Tithe-paying is regarded as a duty, but certainly the 
 maxim, declines debentur parocho, was not understood by David 
 or his predecessors, or was regarded only as a maxim, not as 
 a precept to be acted upon, for long afterwards. 
 
 As a specimen of King David's grants, we may take 
 the gift to the Priory of St. Andrews of the church of St. 
 Mary of Haddington, with all the chapels, lands, rights, and 
 customs belonging to it within the shire of Haddington, free 
 from the King, the thane, and all who held of the King or the 
 freeholders of the shire. The tithes were attached to the 
 Kirktown, which was also donated, the effect being that they
 
 BEFORE THE REFORM A TION 
 
 might be alienated from the church by the Persona who held 
 the Kirktown. Aberdeen bishopric received ' the whole vill 
 of old Aberdeen, and the church of the Kirktown, with the 
 shire of Clat, the shire of Tulinestyn, the shire of Rayn, and 
 the shire of Daviot, with their pertinents and churches, and 
 the tithes of the rents of the thanages and escheats within the 
 sheriffdoms of Aberdeen and Banff.' * There is no trace of 
 parishes here ; the favoured church was usually endowed 
 evidently with thanages equal to the early English shire, a 
 district reckoned at twelve townships, and eight-and-forty 
 ploughlands, or davochs. But it may be that in the 
 thanages we have the germ of the parish. It should perhaps 
 be noted that the word Kirktown in succeeding centuries 
 ceased to mean the township belonging to the minster, and 
 carrying tithes, and as a designation was transferred to the 
 carucate or half-carucates of land made over as glebe to a 
 vicarage. 2 
 
 David had enough to do in dividing the country into 
 bishoprics without seeking to secure a compulsory recognition 
 of parishes. He found four bishoprics, those of Glasgow, St. 
 Andrews, Dunkeld, and Moray, but in two of them the old 
 abbacies had become appanages of the royal family. 3 He 
 left behind him five new bishoprics, viz., Dunblane, Brechin, 
 Aberdeen, Ross, and Caithness, but of some of them the 
 chapter must have been little more than nominal. 4 Dunblane 
 and Brechin were probably formed out of the remains of the 
 old Pictish bishopric of Abernethy. 
 
 As illustrating the want of sufficient geographical bound- 
 aries to church lands, the case of the Crags of Gorgie may 
 be referred to. Ethelred, one of the sons of Malcolm Can- 
 more, towards the end of the eleventh century, presented the 
 church and lands of St. Cuthbert's, Hales, or Colinton, to 
 the Dunfermline Abbey, or rather to its predecessor the Church 
 
 1 Robertson, Historical Essays, pp. 126, 127. 2 Ibid. p. 128. 
 5 Robertson, Early Kings, i. p. 334. 4 Skene, Celtic Scotland, ii. p. 397.
 
 26 TITHES IN SCOTLAND 
 
 of the Holy Trinity. David I., who was a younger brother of 
 Ethelred, about 1128, presented the church and lands of St. 
 Cuthbert's, Edinburgh, with other churches and lands, to the 
 Abbey of Holyrood. Within a century later a vigorous dis- 
 pute arose between Dunfermline Abbey and the rector of 
 Hales acting together, and the abbot of Holyrood, as to the 
 teinds of the Craggs of Gorgie, which the one claimed to be 
 in the lands of St. Cuthbert, Hales, and the other of St. Cuth- 
 bert's, Edinburgh. The dispute was compromised under the 
 authority of the abbot of Lindores and the prior of St. 
 Andrews, acting 'with the mandate of the Pope,' Dunferm- 
 line renouncing its rights to the teinds in question, on condi- 
 tion that ' for the sake of peace ' Holyrood should give each 
 year one bezant, or two shillings at Martinmas, towards pro- 
 viding lights in the church of St. Cuthbert at Hales. Probably 
 the sum to be thus paid was about equal to the surrendered 
 teinds. 1 
 
 There is one good historical definition of tithes, more or 
 less parochial, in early times which should not be omitted. A 
 dispute arose between the royal chapel of Stirling Castle and 
 the parish church of Eccles, within which the Castle stood, 
 and it was decided, in presence of King David, apud castellutn 
 puellarum, not in an ecclesiastical tribunal. Evidence was 
 given that when King Alexander dedicated the Castle chapel 
 he granted to it the tithes of his demesnes in the soke of 
 Stirling whether they should increase or decrease. The lords 
 decided ' that the parish church of Eccles ought to have all 
 the tithes paid by the Hurdmen and Bonds and Gresmen with 
 the other dues which they owe to the church ; and that who- 
 ever died, whether of the demesne lands, or of the parish, 
 their bodies should lie in the parish cemetery, with such 
 things as the dead ought to have with them to the church ; 
 unless by chance any of the burghers die there suddenly . . . 
 
 1 ' The Teinds De Craggis et Gorging by the Rev. W. Lockhart, 
 Proceedings of the Socy. of Antiq. of Scotland, vol. xxi. pp. 275 et seq.
 
 BEFORE THE REFORMATION 27 
 
 and if the demesnes shall increase by grubbing out of wood 
 or breaking up of land not tilled before, the chapel shall have 
 the tithes . . . and if the number of men of the demesne in- 
 crease, the tithes of them and of all who cultivate it shall go 
 to the chapel ; and the parish church shall have their bodies.' 1 
 This anxious delimitation of the parish rights was, however, of 
 course, due to the proximity of the royal chapel, and its care- 
 ful organisation must have been merely an islet in a sea of 
 irregular ecclesiastical constitutions. It was only with regard 
 to parishes under the shadow and protection of royal castles 
 that such regulations as are above cited could be made, and 
 I cannot regard the case as illustrating ordinary knowledge of 
 parochial requirements. On the contrary, the parish of Eccles 
 seems to me to have been exceptional and remarkable to the 
 men of David's time, hence the solemn council to decide as to 
 what Alexander exactly meant by his royal gift more Anglicano 
 of tithes. 
 
 By the end of the reign of William the Lion, David's 
 grandson, the powers of a Scottish king had been greatly 
 consolidated. The general payment of tithes was enforced 
 throughout the kingdom. William founded the monastery of 
 Arbroath, dedicating it to Thomas a Becket, with whose con- 
 tests with the English king his own career had been so 
 strangely associated, and gave it ' Aberbrothoc with the whole 
 shire,' and various miscellaneous endowments such as a net's 
 fishing in Tay, called Stok, and one in the North Esk ; a salt- 
 work in the Carse of Stirling ; the ferryboat of Montrose, with 
 its land ; and the patronage and tithes of at least twenty-two 
 churches. 2 
 
 The Abbey of Inchaffray was endowed by its charter of 
 1200 with five churches, and with the tithe of the founder 
 (the Earl of Fife), kain, and rents of wheat, meal, malt, cheese, 
 and all provisions used year by year in his court, tithe of 
 
 1 Innes, Early Scottish History, p. 16. - Ibid. p. 146.
 
 28 TITHES IN SCOTLAND 
 
 all fish brought into his kitchen, tithe of his hunting, and tithe 
 of the profits of his courts of justice. 1 
 
 William tried to improve the sees of Aberdeen and Moray, 
 but Brechin and Dunblane still remained little more than 
 nominal bishoprics for the Church lands were in the hands of 
 laymen. 
 
 The term parish, which, as we have seen, at first meant a 
 bishopric, in Scotland came to mean first the territory of 
 a baptismal church, the ' minster ' of England, and sub- 
 sequently, by the middle of the thirteenth century, a parish 
 in its modern signification, more or less, the words parochia 
 et parochiani being used much in their present sense ; - and 
 the district of the mother church, which Selborne calls a 
 sub-diocese, was known as Plebania. 3 
 
 A map illustrating the state of the Church in the reign of 
 David i. is given by Skene; 4 the bishopric of Caithness, how- 
 ever, which is there shown, he admits to have had ' little 
 reality,' 5 as Caithness was in the possession of the Norwegian 
 Earl of Orkney, 6 and there is no doubt that the development 
 of parishes followed the same lines in Scotland as in England, 
 arising out of the bishoprics, with their baptismal churches. 
 Probably more rapidly than in England came monasteries and 
 manorial churches, both forces tending towards decentralisa- 
 tion ; and it should not be forgotten that while the Culdee 
 Church was reformed it was not entirely suppressed, and in 
 
 1 Innes, Early Scottish Histoty, p. 209. - Ibid. p. 2. 
 
 3 ' Of this kind was Stobo, with its four subordinate parishes of Brough- 
 ton, Dawie, Drummelyier, and Tweedsmuir, where the parson was styled 
 Dean, and was, it would seem, in very early times, hereditary, like some 
 of the heads of the regular convents.' Regist. Glasg. ; Innes, Early Scot- 
 tish History, p. 3, note. 
 
 4 Celtic Scotland, vol. ii., facing p. 418. 5 Ibid. p. 383. 
 
 6 Many appropriations of churches, etc., by David, in which the 
 authority of the bishops as in the early English Church will be found in 
 Council's work. See as to his many pious foundations, Bellesheim's 
 History of the Catholic Church in Scotland.
 
 BEFORE THE REFORMATION 29 
 
 every group of Culdee cells there was the germ of parochial 
 organisation. The actual mapping-out of parishes was a very 
 slow thing the work of centuries. 
 
 That the duty of paying tithes was understood generally in 
 the reign of Alexander n. is illustrated in the report of the 
 murder of Adam, bishop of Caithness, who it appears was 
 over rigorous in exacting tithes ; but as the bonders of Caith- 
 ness's chief grievance was that Adam at the instigation of a 
 monk named Serlo had doubled his exactions, we also learn 
 from this incident what lax notions the clergy entertained 
 as to what was their legal due. 1 
 
 In the time of Alexander in. the great religious houses 
 usually gave one-third of the tithes to the vicars. 2 In his 
 reign the ancient kingdom of the Isles was made over to the 
 Scottish Crown, with the patronage of the bishopric, reserving 
 the ecclesiastical rights of the Archbishop of Drontheim. 3 
 
 How soon Scotland might have settled down into a rich, 
 well-governed, well-taught nation, another England, a survival 
 of the kingdom of Edgar reappearing north of the Forth, with 
 most of its nobility of Anglo-Saxon origin, we can only specu- 
 late; history shows us how speedily the Wars of the Succes- 
 sion threw our land back into semi-barbarism. When regular 
 warfare between England and Scotland began to render settled 
 life in the Lowlands impossible, the Anglo-Saxon nobles retired, 
 and Norman England received again the descendants of the 
 men who had followed the fortunes of the Atheling and Queen- 
 Margaret. The native lords regained in large measure the 
 position they had lost under the firm rule of Malcolm Can- 
 more and his sons. 
 
 Scotland presents for many centuries a melancholy picture, 
 not only as regards her politics, but also in respect to her 
 ecclesiastical organisation. 
 
 There was much litigation between the various religious 
 foundations as to tithes and lands to which they had acquired 
 
 1 Robertson, ii. pp. 18, 19. " Ibid. p. 138. 3 Ibid. p. 105.
 
 30 TITHES IN SCOTLAND 
 
 rights. Such disputes were generally settled by Rome, except 
 in the case of the abbots of Melrose, Dryburgh, Jedburgh, 
 and Kelso, who established a rule that when any dif- 
 ference arose between two of the monasteries, the other 
 two should act as arbiters, and thus save the cost of Roman 
 litigation. 1 The Culdees, such as survived, took small part 
 in the suits, which were generally waged between a bishop 
 and a religious order. As in England, the regular clergy had 
 become very powerful ; and their doctrine as regarded tithes 
 was so loose as to call down the censure of Innocent iv. 
 in 1250, who calls those who, like the Dominicans and 
 Franciscans, taught that tithes might be disposed of in 
 charity as a man pleased, isti novi magistri et pradicatores 
 qui decent ct predicant contra Novum et Vetus Testamentum. 
 The Council of Verona condemned this teaching in 1340, 
 and in England, one William Russell, a Franciscan, who 
 preached the pernicious doctrine which was supposed, 
 rightly, to be most to the benefit of the begging friars was 
 condemned in Convocation, and ordered to recant on a fixed 
 day at Paul's Cross ; he fled the kingdom, and was pro- 
 nounced a heretic, and his opinions were condemned by both 
 Oxford and Cambridge Universities. 2 
 
 1 Innes, Early Scottish History, p. 115. 
 
 Of the ordinary or orthodox teaching as to tithes in the Middle Ages, 
 Selden gives the following curious example from ' a Penitential Mode for 
 Direction of Priests in Auricular Confession, and written (as my Copie is) 
 about Henrie the sixth, the Priests examination and advise upon the 
 point of Tithing is thus expressed : " Hast thou truly doo thy Tithings 
 and Ofirings to God and to holichirch? thou shall understande that at the 
 beginning of the worlde, whan ther was but oo man, that is to say, Adam, 
 God chargyd him that he sholde truly of al maner thyng give God the 
 x th parte, and bad hym that he sholde teche his children to doo the same 
 maner, and so forthe al men into the worldis ende. And forasmuch as 
 ther was that tyme no man to receive it of hem in the name of holichirche, 
 and God wolde not that thei sholde have but ix parties. Therefor he 
 commandid hem that of every thyng the Tithe parte should be brent. I
 
 BEFORE THE REFORMATION 31 
 
 When they did not teach that tithe was merely charity, 
 the Orders took up the other position, that as being the poor 
 of Christ's flock, they were not liable in payment of tithes for 
 such lands as they had come to possess. Ultimately the 
 exception was limited to the Cistercians, Knights Templar, 
 and Knights Hospitallers, and but a limited exception was 
 allowed to other Orders in respect of such lands novalia 
 as they might themselves have brought under cultivation, so 
 long as the land remained in their hands ; but tithe became 
 payable if such lands were leased. It was by the influence of 
 monasticism that in Scotland, as Innes says, ' the goodly 
 framework of a parochial establishment was shipwrecked 
 when scarcely formed.' x A useful list of religious Orders in 
 Scotland is given at the end of Spotswood's History, the 
 distinction between monks and friars should be noted it 
 was the begging friars who were most objectionable to the 
 laymen of the Middle Ages. 
 
 The possessions of the excepted Orders, particularly of 
 the Knights Hospitallers or Knights of St. John of Jerusalem, 
 tended very much to run in family lines, which almost remind 
 us of the hereditary semi-laic, semi-clerical establishment of 
 the Culdees. 
 
 An evidence of the close connection between the head of 
 
 fynd that afterward Adam had two sonnes, Caime and Abell, Abell 
 tithed truly and of the best. Caym tythed falsely and of the werst : at 
 last the fals Tyther Cayme slough Abell his brother, for he blamyd hym 
 and seyd that he tythed evel, wherefor our Lord God accursid Caym and 
 al the erth in his werk. So ye mow se that fals tything was the cause of 
 the first manslaughter that ever was, and it was cause that God cursid the 
 erthe," it is literally transcribed as I find it ; that writing of Cayme, or 
 Cain, is ordinarie in the moniments of that age, as you may find in Wick- 
 leves works, Waldensis his Doctrinal, and others of like nature.' Tithes, 
 1618 ed., pp. 169, 170. Such teaching was probably as common in 
 Scotland as in England. 
 
 1 Early Scottish History, p. 17 ; see also Scotch Legal Antiquities, 
 pp. 162 et seq.
 
 32 TITHES IN SCOTLAND 
 
 the Order of St. John and the Livingston family of Torphichen 
 is incidentally afforded by a tack of certain Temple lands 
 granted in 1461 by Frere Henry of Levyngstoune, 'Knight 
 Commander of the Order of Saint John of Jerusalem, within 
 the kingdom of Scotland,' to his ' derraste cusings William of 
 Levyngstone and Alisiandre of Levyngstoune, sonnys til 
 umquhile our derraste brothir William of Levyngstone of 
 Balcastell.' * 
 
 Although the monasteries succeeded in attaching to them- 
 selves the tithes which in early days were paid to the bap- 
 tismal church, as they grew richer they felt it a great injustice 
 when, although indirectly, they in turn were required to con- 
 tribute to the civil power. With the sanction of Pope 
 Alexander vi., the religious houses in England however 
 were required to contribute towards the cost of a crusade. 
 They resisted. ' Such a demand was unheard of,' they said. 
 1 Hitherto the laymen had paid tithes to the Church. Now 
 churchmen, et inviti, against their will, were to furnish money 
 for knights and men-at-arms.' But their resistance was over- 
 come by the stratagem of Peter de Egilbanke, Bishop of 
 Hereford. On his suggestion the Pope borrowed the ne- 
 cessary money from Italian merchants, and granted them 
 powers of distraint upon the abbeys which had claimed 
 exemption. 2 
 
 The Pope from time to time demanded payment of one- 
 tenth of the revenues of the Scottish religious houses a 
 species of tithe, but rather of tithes of rents than of the pro- 
 duce of the soil alone, which tithes are; and he even granted 
 this tenth for a time to the service of the King of England. 
 Such exactions were very unpalatable to the Scottish kings, 
 
 1 See 'Notice of an Original Tack of Temple Lands,' by Joseph Bain, 
 F.S.A.Scot., Proceedings of the Society of Antiquaries of Scotland, xvii. 
 pp. 312 et seq. 
 
 3 Froude, ' Annals of an English Abbey ' (St. Albans). Short Studies, 
 1888, iii. pp. 46, 47.
 
 BEFORE THE REFORMATION 33 
 
 who preferred to have the produce of taxes on monasteries 
 themselves, and who were never friendly to the interference 
 of foreign legates in their affairs. 
 
 It would be tedious, and here scarcely profitable, to follow 
 step by step the growth of the Church in Scotland. It grew 
 with the king's power, but it did not fall with the king's 
 weakness. While the fortunes of the State rose and fell with 
 the firm reigns or the long minorities, the Church, on the 
 whole, progressed steadily without one backward step. Her 
 good fortune was, indeed, her curse, for with her increasing 
 wealth came the abuses which have accompanied ecclesias- 
 tical wealth in all ages. The tendency of a wealthy and 
 luxurious corporation is to draw within itself persons who are 
 ambitious of enjoying the benefits of wealth ; and the Church 
 suffered her fold to be entered, not by men possessed only by 
 a holy desire for religion, but by those who saw the easiest and 
 quickest way to political eminence was through the Church, 
 and who, as statesmen, regarded the means of their rise rather 
 as a political than as a religious organisation. We must not 
 forget, also, that so late as the reign of William the Lion 
 there were lay-holders of many rich Church lands on the 
 old Culdaic foundations ; so that the idea of holding Church 
 lands was never unfamiliar to the Scottish aristocracy. Be- 
 tween the two sets of ideas, that of the political Church- 
 man and that of the semi-clerical layman, the Church as a 
 corporation took a middle course. She reconciled the latter 
 to the idea of owning the Church's superiority by giving him 
 the right to draw the real profits ; and she made the path of 
 the clerical politician the more easy by making it, so far as 
 possible, the interest of such feudal lords to support those 
 who spoke in the nation's councils in the name of the Church, 
 rather than oppose them. 
 
 The country, when with its increasing civilisation and its 
 wealthy Church it gradually settled into parishes, had, at 
 least in name, the cures served by rectors, who drew the 
 C
 
 34 TITHES IN SCOTLAND 
 
 decima garbages, or teinds of corn or wheat, barley, oats, 
 pease, etc., but more often by vicars, the substitutes and 
 servants of the great churches which owned the tithes, who 
 drew the lesser teinds of lamb, wool, niilk, flax, cheese, and 
 eggs. Personal teinds from the fruits of personal industry, 
 profits of commerce, wages of labour, etc., were scarcely 
 known in Scotland. One doubtful instance occurs in the 
 case of Birnie v. Brown, Nov. 29, 1678 (M. Diet. 11,000), 
 where the Court decerned for a yearly sum out of each weaver's 
 loom, and for the salt made in the parish. 1 From a presump- 
 tion that personal tithes had not been paid at the time of a man's 
 death arose the custom, sanctioned by canon, of mortuaries 
 payable in beasts, which existed in England up to 21 H. vin. 
 The mortuary was presented with the body at the burial, as a 
 satisfaction for omission to pay personal tithes, and the custom 
 was styled corse-present. Selden says he has seen a justifica- 
 tion, in the Eyre of Derby of 4 Edw. in., to an action of 
 trespass brought by Thomas of Goustill against the parson 
 of Whitwell for taking a horse, in which the parson pleads 
 that it was the horse of one I. Leyer, his parishioner, who 
 had died. 2 Personal tithes, no doubt, where, as in Venice, 
 there were no pnedial tithes, were exactable ; but for obvious 
 reasons praedial tithes were in the Middle Ages much pre- 
 ferable to a non-enforceable income-tax, culminating in a 
 
 1 The tithe paid by Abraham to Melchisedek, on which all canonists 
 found, is described as follows : ' And he gave him a tenth of all. ' 
 What the 'all' was has been copiously considered, but common sense 
 would suggest that it was the 'all' he had captured, i.e. it was personal 
 teind. This view was taken in England, for The Story of Genesis 
 and the Exodus, the Early English song written about 1250, tells how 
 Abraham gave 'of alle if begete,' i.e. of his spoils or winnings. Early 
 English Text Society ed., line 896. Milton long afterwards finds 
 it necessary to give the same reading : ' Abraham on the other side 
 honours him with the tenth of all, that is to say (for he took not sure his 
 whole estate with him to that war), of the spoils.' The Likeliest Afeans 
 to remove Hirelings out of the Church. 
 
 2 Selden, p. 287.
 
 BEFORE THE REFORMATION 35 
 
 death-duty, which the demand for personal tithes really 
 amounted to. 
 
 Buchanan's statement that in Scotland the rector or parson 
 originally did the whole duty of the benefice, and drew the 
 whole teinds, great and small, and that it was owing to the 
 practice of annexing churches, with their teinds, to a monastery 
 that the institution of the vicar began, 1 is obviously incorrect, 
 because it proceeds, as is usual with legal writers, on the 
 assumption that Scotland's ecclesiastical organisation started 
 parochially, and that there was an Arcadian time when 
 every parson drew all the tithes of his parish from willing 
 parishioners, and without any fear of monastery or bishop. 
 This is mere dreaming, for, as we have seen, the diocese, as 
 in England, long preceded local organisation, and groups of 
 thaneships long preceded districts with ecclesiastical bound- 
 aries. The rector, indeed, who drew all his tithes at any 
 time and locally, must have been a rara avis in terra, and only 
 did so, probably, because he was either the younger son of 
 some great family, or was under the special protection of 
 some lay lord who was strong enough to see that the rector 
 got what the heritors conceded that the law allowed him. 
 The privileges of the clergy were cruelly restricted by the 
 annexation of tithes to monasteries ; but, on the other hand, 
 it was by the churches founded by lay patrons and con- 
 veyed to such monasteries, and by churches founded by the 
 monasteries themselves, that the local organisation of parishes 
 developed. 
 
 The right of the local clergyman to receive the teinds was 
 no doubt theoretically recognised, as for instance in a bull of 
 Gregory ix. in 1230, which confirmed the right of the Monas- 
 tery of Dryburgh to the Church of Golyn ' when it shall be 
 vacant' i.e. reserving the right of the then incumbent; but 
 the difficulty of the local clergyman was generally to get his 
 teinds. It is clear that when Golyn became vacant the new 
 1 Law of Teinds, p. 9.
 
 TITHES IN SCOTLAND 
 
 priest would have no teinds ; he would require to receive a 
 salary from Dryburgh. The local clergy were in fact, through- 
 out Scotland, stipendiaries, or, in other words, curates-in- 
 charge, who only received as salary what they might bargain 
 for. 
 
 It will no doubt be observed that we have said nothing 
 about the establishment of tithes by law in Scotland. 
 
 The explanation of this is to be found in the altered 
 position of the Church, when settled in Scotland under 
 David, to what it had been either in Germany in the time of 
 Charlemagne, or in England under Edgar. 
 
 The Church was now standing by herself, and as far as 
 possible resisted any State interference with her ' rights,' 
 among which that of collecting teinds was undoubtedly 
 included. It was sufficient for the Church that the right had 
 been enunciated by the canonists, and that the sovereigns of 
 Scotland recognised the pious duty, and were ready, if neces- 
 sary, to assist in enforcing it ; but to have asked the State to 
 make by Act of Parliament the collection of tithes lawful 
 would have seemed to the Churchmen of Hildebrand's school 
 an extraordinary and superfluous request. 
 
 There was probably another reason for the State's early 
 reticence as to tithes. The Papacy and the Scottish Crown 
 were on terms of somewhat constrained friendship. The 
 sovereigns of Scotland rather dealt with the clergy as re- 
 gards tithes on the basis of custom and use and wont than 
 otherwise. 
 
 That this use and wont included the right of bishops, or 
 judges appointed by the Pope, to exercise a jurisdiction in 
 relation to teinds was generally admitted, and is sufficiently 
 proved by numerous cases. 1 In 1319, it is true, the civil 
 rights of the Rector of Kinross regarding some lands, a servi- 
 tude of pasturage, and a fishing in Lochleven, were decided 
 
 1 See Connell On Tithes, i. pp. 131-136.
 
 BEFORE THE REFORMATION 
 
 37 
 
 on in presence of a justiciar of the King ; but the general 
 ecclesiastical jurisdiction of Rome seems undisturbed. 
 
 In 1406, in the first parliament of James i., ' to the honour 
 of God and halie Kirk, it is statute and ordained, that the 
 halie Kirke joyis and bruke, and the ministers of it, their aulde 
 privileges and freedomes ; and that no man let (hinder) them 
 to set their landes and teindes, under the paine that may follow 
 be spiritual law or temporal.' This, however, is not a law 
 establishing tithes and the application of them when paid, 
 like that of Edgar in England, but a general confirmation of 
 the Church's rights, with a special authority to do what we shall 
 hereafter see was the cause of much of the difficulty attend- 
 ing the subject, i.e. to set or let out the right to draw teinds. 
 
 The ecclesiastical organisation of Scotland prior to the 
 Reformation was something like this : There were thirteen 
 bishoprics. The Archbishop of St. Andrews, whose chapter 
 arose out of a Culdee settlement, had eight suffragans : Dun- 
 keld, of which the original chapter was Culdaic; Aberdeen, 
 Moray, Brechin, also originally Culdaic ; Dunblane, the only 
 bishopric founded by a subject ; Ross, Caithness, and the 
 Orkney Islands originally a Norwegian diocese and under 
 the episcopal superintendence of the Archbishops of Dron- 
 theim till the reign of James in. The Archbishop of Glasgow, 
 whose see was (as a bishopric) of almost mythical antiquity, 
 had three suffragans : Galloway, a very ancient bishopric arising 
 from the Church of St. Ninian ; Argyle, at one time part of 
 the see of Dunkeld (which retained lona at the time of the 
 foundation of the Argyle bishopric) ; and the Isles, which arose 
 out of the old bishopric of Man and the Western Isles a see 
 under that of Drontheim but which ultimately took shape as 
 bishopric of the Hebrides, including Bute and Arran, with the 
 bishop's seat at lona, which had passed away from Dunkeld. 
 
 The chapters of St. Andrews, Dunblane, Galloway, and 
 the Isles were at one period or another composed of regulars, 
 but other bishoprics probably had similar chapters. Gener-
 
 TITHES IN SCOTLAND 
 
 ally the chapter of each cathedral consisted of certain secular 
 or parochial clergymen holding benefices within the diocese, 
 canons deriving their title from their prebenda or living, and 
 other clerics who held office in the cathedral. The churches 
 of the diocese whose fruits, tithes, lands, or gifts were appro- 
 priated to the maintenance of the bishop were styled mensal 
 churches ; x those whose fruits went to the support of the 
 prebendaries, common churches. When a parish minister, as 
 sometimes, though infrequently, happened, drew his whole 
 tithes himself, he was called persona ecclesitf. A priest whose 
 right came through the chapter was called in England parson 
 imparsonee ; he drew the rectorial or great tithes, and the 
 lesser tithes were drawn by his vicar, who served the cure of 
 the parish, with the title of vicarius pensionarius. 
 
 The revenues of a bishopric were derived from the lands 
 held by the see, and known as the temporality ; and from 
 tithes and ecclesiastical dues, which were termed the 
 spirituality. It was only a share of the spirituality which fell 
 to the minister who served the cure, and perhaps the follow- 
 ing table will illustrate more clearly the different rights of 
 parties : 
 
 A cathedral, or monastery, drew all temporalities. 
 A cathedral, or monastery, or rector, drew all the decima 
 bladi or great tithes (or the rector received a share, 
 while the cathedral or monastery drew the rest). 
 The vicar drew the decimcs foeni, or small tithes, and per- 
 sonal offerings subject, however, to arrangement with 
 the cathedral, or monastery, or rector, if it was thought 
 the vicar was getting too much. 
 
 In addition to the cathedrals, there grew up collections of 
 secular clergy in what were known as collegiate churches, which 
 were never richly endowed, and which only maintained their 
 
 1 The Bishops of Argyle had no mensal churches, and instead received 
 the teinds of particular lands in each parish. This was known as the 
 bishop's quarter. Elliot, Teind Court Procedure, p. 34.
 
 BEFORE THE REFORMATION 39 
 
 prebendaries and collegiate churches. There were thirty-eight 
 such colleges ; the last founded before the Reformation was 
 that of Biggar, in 1545; and it received, among other gifts, the 
 patronage of the church of Thankerton, with the rents, fruits, 
 and emoluments, from Lord Fleming, to whom the Abbey of 
 Kelso had surrendered its rights, and the perpetual vicarage 
 of the parish church of Dunrod in the stewartry of Kirkcud- 
 bright from the Abbey of Holyrood. Of such miscellaneous 
 endowments were the riches of cathedrals, of monasteries, 
 and of collegiate churches alike composed. Sometimes a 
 kind of tithe called can and conveth is referred to. Can 
 subsists in the word cain or kain fowl, i.e. a reek hen, or hen 
 payable from every house where a chimney smoked. Conveth 
 seems originally to have been a due collected by a feudal lord 
 from his vassal. Innes cites a grant by Malcolm iv. to the 
 canons of Scone, whose church had recently been burnt, 
 from every plough belonging to their church, ' for their 
 conveth at the Feast of All Saints, a cow and two swine, and 
 four clamni of meal, and ten thraves of oats, and ten hens and 
 two hundred eggs, and ten bunches of candles, and four 
 nummatus of soap, and twenty half malse of cheese.' : 
 
 Where the churches and tithes were in the possession of a 
 monastery, they were dealt with by the Order according to 
 their rules and the canon law. The Abbey of Kelso was 
 probably the richest of all such foundations. Such great 
 institutions were of course formidable rivals to the bishoprics, 
 and they afforded the most tempting spoil to laymen, in so 
 far as their endowments could be received in commendam. 
 Thence, as we shall see, arose the lordships of Erections, 
 which were merely great religious lordships converted into 
 civil lordships. 
 
 1 Scotch Legal Antiquities, pp. 204-5. TIie lecture on 'The Old 
 Church ' gives the clearest and most comprehensive view of the Scottish 
 Establishment prior to the Reformation with which I am acquainted, and 
 I have made frequent use of it iri this chapter.
 
 40 TITHES IN SCOTLAND 
 
 We have no means of knowing when Scotland was gener- 
 ally covered with parishes, but the work was not complete in 
 1581, for by c. 100 of that year it is provided that 'every 
 paroch kirk, and sameikil (so much) bounds as shall be found 
 to be a sufficient and competent parochin theirfoir, shall have 
 their awn pastor,' etc. 1 
 
 What, then, was the position of the Church in Scotland 
 when the Reformation burst ? 
 
 We have seen that the Culdees did not exact tithes, but 
 owned lands, possibly in family and hereditary groups ; that 
 those lands were attached to the churches or monasteries 
 which, under the reformation carried out by David I., took 
 the place of the Culdees' establishments ; that the duty of 
 tithe-paying was recognised under David and his immediate 
 successors ; that when lands were given to a monastery, the 
 tithes of the lands were usually bestowed with them, but not 
 necessarily so ; that when the king gave grants to his nobles, 
 it was usually under burden of payment of tithes ; that tithes 
 were not exigible parochially, except where the cure was 
 served by a rector ; that in the great majority of cases the 
 tithes of parishes were drawn by monasteries, or clergy of 
 monasteries, who gave the vicar who served the cure such sum 
 as might be agreed upon. In Scotland, at the date of the 
 Reformation, there were 940 parishes, and of these 262 were 
 patronate, i.e. the patronage was in the hands of laymen, 
 whose presentees, as rectors, nominally had right to the whole 
 parochial teinds, but often by arrangement left a large portion 
 of them in the hands of their patrons ; and the remaining 678 
 were patrimonial, i.e. the patronage and teinds were in the 
 hands of bishops or monasteries, who from the time of 
 Alexander in. usually allotted one-third of the teinds to the 
 vicars. The rich clergy were very rich ; the parochial clergy, 
 unless they were sons of noble families, were very poor. 
 
 1 Connell, i. p. 210.
 
 BEFORE THE REFORMATION 41 
 
 Prior to the Reformation the ipsa corpora of teinds was 
 usually drawn, unless by usage or agreement a fixed number 
 of bolls of victual was accepted annually in place of the 
 teinds being actually drawn. 
 
 Perhaps, before leaving the pre-Reformation period, it may 
 be remarked that, although parochial churches are frequently 
 referred to in the records, too much is not to be understood 
 by the term church. The stone churches were, very few. 
 The chancel of the church of Dollar, in Clackmannanshire, 
 was praised in 1336, but it was constructed of hewn oak; at 
 the same date the chancel of Edrom, in the Merse, was 
 thatched with straw. The Reformation storm is not respon- 
 sible for the destruction of our parish churches, for such 
 as existed were, for the most part, built of unsubstantial 
 materials, and hence easily fell into decay. It was, too, the 
 army of Henry of England that was responsible for the ruin 
 of Melrose, Kelso, Dryburgh, Jedburgh, Eccles, Newbattle, 
 Holyrood, and Haddington. 1 
 
 1 Quarterly Review, vol. Ixxxv., art. by Joseph Robertson, pp. 146-7.
 
 CHAPTER IV 
 
 TITHES IN SCOTLAND DURING THE REFORMATION 
 PERIOD AND SUBSEQUENTLY: 1560-1628 
 
 WHAT Machiavelli wrote of the ecclesiastical principalities of 
 Italy in the beginning, may be applied to Scotland in the 
 end, of the sixteenth century. The greatest difficulty, he says, 
 is to get into possession, ' because they are gained either by 
 fortune or virtue, but kept without either, being supported by 
 ancient statutes universally received in the Christian Church, 
 which are of such power and dignity they do keep their prince 
 in his dignity, let his conversation or conduct be what it will.' 
 ' These,' he continues with a cynicism which scarcely veiled 
 the truth, ' are the only persons who have lands and do not 
 defend them ; subjects, and do not govern them ; and yet 
 their lands are not takjen from them, though they never defend 
 them ; nor their subjects dissatisfied, though they never regard 
 them ; so that their principalities are the happiest and most 
 secure in the world by being managed by a supernatural 
 power, above the wisdom and contrivance of man ' ( The 
 Prince, chap, xi). 1 
 
 1 As regards the 'subjects,' however, the tenants and vassals of the 
 great abbeys of Scotland had, as Sir Walter Scott points out, ' many 
 advantages over those of the lay barons, who were harassed by constant 
 military duty, until they became desperate and lost all relish for the arts 
 of peace. The vassals of the Church, on the other hand, were only liable 
 to be called to arms on general occasions, and at other times were per- 
 mitted in comparative quiet to possess their farms and feus. They, of
 
 TITHES IN SCOTLAND DURING REFORMATION 43 
 
 Before the Reformation came it had been long foreseen. 
 The wealth of the upper clergy, whose lands covered half 
 Scotland, brought plentiful abuses in its train, and the poverty 
 of the vicars and of the curates contrasted strangely with the 
 magnificence of their superiors. Too much weight must not 
 be placed on the verses which satirically describe the clergy, 
 because the abuses of the Church have at all times afforded 
 material for satire ; but the words put into the mouth of 
 Duncan Laidens alias Makgregouris (who was beheaded i6th 
 June 1552) are as interesting in their way as those of Piers 
 Plowman on the same subject. Thus run three verses of his 
 Legacy : 
 
 To my Curate, negligence I resign, 
 
 Therewith his parishioners for to teach ; 
 
 Another gift I leave him as condign, 
 
 Sloth with ignorance, seldom for to preach, 
 The souls he commits for to bleach 
 
 In purgatory till they be washen clean, 
 
 Pure religion thereby for to sustain. 
 
 To the Vicar I leave diligence and cure 
 To take the utmost cloth and the kirk cow 1 
 
 More than to put the corpse in sepulture ; 
 Have poor widow six grice and a sow, 
 He will have one to fill his belly fou. 
 
 His thought is more upon the Pasch fines 
 
 Than the souls in purgatory that pines. 
 
 Coppression the Parson I leave until (unto) 
 
 Poor men's corn to hold upon the rig 
 Till he get the teynd all whole at his will, 
 
 course, exhibited superior skill in everything that related to the cultivation 
 of the soil, and were, therefore, both wealthier and better informed than 
 the military retainers of the restless chiefs and nobles in their neighbour- 
 hood.' The Monastery, chap. i. 
 
 1 For burial dues, see supra, p. 34, for similar demands in England in 
 lieu of hypothetically unpaid personal tithes.
 
 44 TITHES IN SCOTLAND DURING THE 
 
 Suppose the bairns their bread should go thig (beg), 
 
 His purpose is no kirks for to big : 
 So fair a bairn teme God has him sendin, 
 These seven years the choir will ly unmenden. ' * 
 
 Those verses graphically illustrate the ordinary heritor's 
 view of things before the Reformation. The parson who has 
 nominal charge of the parish insists on his teinds of the 
 crops, whoever suffers, while he fails to carry out what was 
 then his legal obligation, to maintain the choir of the village 
 church ; his vicar is as particular about the vicarage teinds or 
 their equivalent, which he seizes when a poor man dies ; and 
 the curate, who should preach, is too lazy to do his work. 
 Such was the state of rural Scotland, and it was a state which, 
 as Froude says of the Reformation in England under 
 Wycliffe, ' begot in the mind of the people indignation at 
 lies and injustice, and the revival of earnestness was accom- 
 panied with a furious spirit of political revolt.' 
 
 That the Church was thoroughly rotten at the time of the 
 Reformation is sufficiently clear if we confine our attention to 
 the statutes of her diocesan and other councils, without regard 
 to the accusations of the Reformers. That such regulations 
 should have been necessary speak for themselves. Thus, 
 Archbishop Foreman (Archbishop in 1514), in a synod at St. 
 Andrews, sanctions statutes sternly censuring clerical non- 
 residence and concubinage, ordering that chapels which are 
 not sufficiently endowed should be closed ; that those who 
 have the cure of souls are only to have their faculties renewed 
 after examination ; that beneficed clergy are themselves to 
 administer the sacraments to their parishioners, and to dis- 
 miss their substitutes; and that all rectors, vicars, curates, and 
 
 Cf. Langlands : 
 
 For the tithing of a duck, 
 Or an apple or an aie (egg), 
 
 They make men swere upon a boke, 
 Thus they fouler Christes faie.
 
 REFORMATION PERIOD AND SUBSEQUENTLY 45 
 
 chaplains are to be present in propria persona in their 
 churches on Sundays. 1 
 
 A Provincial Council of Clergy at Edinburgh in 1549, pre- 
 sided over by Archbishop Hamilton, passed many laws to the 
 same effect forbidding, especially, concubinage by the clergy; 
 the promotion of clergymen's illegitimate children to benefices ; 
 the wearing of yellow, green, and other unbecoming garments; 
 ordering the inspection of monasteries ; condemning the 
 practice of deans receiving bribes to hush up offences ; enjoin- 
 ing rectors of parishes to preach at least four times a year ; 
 strictly enjoining residence on all beneficed and pensioned 
 clergy ; providing for an examination of all parochial clergy 
 on account of the known want of qualification of many, and 
 for an income of at least ^20 annually to all vicars. 
 
 In January 1552 another Provincial Council met, also in 
 Edinburgh ; and among other matters it forbade the alienation 
 or letting on long lease of Church property, with the view of 
 enriching the friends and relations of the clergy, and the con- 
 sequent impoverishment of the successors to the benefices. 
 
 The years between 1546 (when Cardinal Beaton was 
 murdered) and 1553 were the breathing-time of the Church, 
 and the statutes of the two Edinburgh Councils show that the 
 Church was desirous of putting her house in order; but it was 
 too late. Not that those in high places always sympathised 
 with reform, as is shown by the curious memorial submitted by 
 Aberdeen chapter to their bishop, in which, after begging him 
 to cause his diocesan clergy to reform their lives, and to pro- 
 vide for at least one sermon before the beginning of Lent, and 
 one more between that and Easter in every parish church, 
 they appeal to the bishop himself to show a good and edifying 
 example, particularly by breaking off an illicit connection by 
 which he is 'greatly slandered.' 
 
 This is indeed, as the Catholic historian of the Church says, 
 
 1 Bellesheim, Catholic Church in Scotland, ii. pp. 119-124.
 
 46 TITHES IN SCOTLAND DURING THE 
 
 4 a convincing and melancholy testimony to the decay of moral 
 and religious discipline in the Scottish Church, and to her 
 urgent need of reform.' 1 
 
 A Provincial Council held in Edinburgh in 1559 enacted 
 inter alia that archbishops and bishops should not collate 
 their sons to benefices in their own churches such colla- 
 tion should be ipso facto void and null ; that prelates who 
 marry their daughters to barons or landed gentry having less 
 than ;ioo of rental should not give them portions from the 
 patrimony of the Church 2 an abuse satirised by Sir David 
 Lindsay in his Three Estates ; s feuing or leasing out Church 
 lands is prohibited ; but the greater tithes, when not collected 
 by the clergy for themselves, may be leased to farmers and 
 labourers on the glebe at a moderate sum. 4 This was the last 
 Provincial Council of the Church before the Reformation. 
 
 From the words of the clergy themselves we can best judge 
 of the abuses of the day. We see the parish clergy ignorant, 
 neglectful, with small or irregular stipends ; while the higher 
 clergy live in luxury, wear gorgeous apparel, promote their 
 sons to benefices, and give the husbands of their daughters 
 portions of the Church's patrimony, and feu or lease out 
 Church lands to their own profit, while the parochial churches 
 suffer. Such was the state of the Church in Scotland at the 
 time of the Reformation. Any one who imagines that the 
 country was neatly mapped out into parishes, each with its 
 presentee drawing a comfortable stipend, and that on the burst- 
 ing of the storm the lords rushed into the Church's vineyard, 
 trampling it down and leaving a waste where once had been 
 a garden, is entirely mistaken. The appropriation of tithes 
 and ecclesiastical lands by the laity was one of the most 
 
 1 Bellesheim, ii. p. 240. - Ibid. p. 245. 
 
 3 That Prelatis dochtouris of this natioun 
 Ar maryit with sic superfluitie, 
 They will nocht spair to gif twa thowsand pound 
 With their dochtouris to ane nobill man. 
 
 4 Bellesheim, ii. pp. 249-50.
 
 REFORMATION PERIOD AND SUBSEQUENTLY 47 
 
 flagrant scandals of the Reformation ; but the Church had 
 familiarised the nobles to the idea of holding benefices on the 
 easiest terms. James, Duke of Ross, brother to King James iv., 
 was only twenty-one when he was made Archbishop of St. 
 Andrews. He died in 1503, and the see was kept vacant for 
 six years until Alexander Stuart, a natural son of King James iv., 
 was twenty-two ; shortly afterwards Pope Julius n. conferred 
 on him the Abbey of Dumfermline and priory of Coldingham 
 in commendam. The ecclesiastical position of such a prince 
 was nominal : he died fighting by his father's side at Flodden. 
 James v. is said to have threatened the bishops of his time 
 that unless they reformed their lives he would send some of 
 them to be dealt with by his uncle Henry vin. ; and in his 
 last Parliament, that of 1541, he warned Churchmen that it 
 was their disorderly lives which brought the Church into con- 
 tempt. 1 Yet James's own natural children held as infants 
 many abbeys in commendam. The Regent Arran's illegitimate 
 brother, John Hamilton, became Abbot of Dunkeld; and in 
 July 1547 the Regent wrote to the Pope urging that another 
 brother, James, should be made Archbishop of Glasgow, with a 
 grant from the revenues of that see of ^100 to still two other 
 brothers, David and Claud. A son of the Earl of Huntly 
 became Bishop of Aberdeen; a son of the Earl of Lennox 
 was Bishop of Caithness when only twenty years of age. 
 Pope Paul in., when appointing Robert Reid to be Bishop of 
 Orkney, charged the revenues of the see with a pension of 
 ^20 to a youthful cleric of fourteen, and another of 80 marks 
 to an illegitimate son of James v., also a cleric, who had not 
 yet attained the maturity of eight years ! 2 
 
 Although the Reformation did not take regular steps until 
 1560, there had of course been loud mutterings long before, 
 almost contemporaneously with the suppression of the 
 monasteries in England ; and among the charges against John 
 
 1 Bellesheim, ii. p. 161. ' Ibid. pp. 196-7.
 
 48 TITHES IN SCOTLAND DURING THE 
 
 Rough and John Knox in 1545 we find there was one that 
 they had taught ' that tithes by God's law do not appertain 
 necessarily to Churchmen.' Spotswood, who tells the tale, 
 adds : ' This last article I would not omit, because it is alleged 
 by those that penned the story. Whether it was a point of 
 John Rough's preaching or not, I cannot say ; but for John 
 Knox, it is clear by his sermons and writings still extant that 
 he held it a point of high sacrilege to rob and spoil the Church 
 of tithes. It is true that many in these times, offended with 
 the extortion of Churchmen, did hold that tithes belonged not 
 to the Church by any divine right ; and knowing that this 
 opinion would find easie passage among the people, as also 
 serve to abridge the means and power of Churchmen, they 
 were the more ready to deliver such doctrines ; but this was 
 done rather out of passion than judgment.' l 
 
 When John Knox framed his Constitution for the Reformed 
 Church in January 1560, he certainly did not forget the tithe 
 and the Church property, which he appears to have fondly be- 
 lieved would pass from the Catholic Church to that of the 
 Reformer. He did not suggest that every minister should 
 receive the same stipend, for, if so, with the unequal de- 
 mands ' one would suffer penury and another superfluity.' 
 'Therefore we judge [fifth head] that every Minister should 
 have sufficient wherewith to keep an house, and be sustained 
 honestly in all things necessary, forth of the Rents of the 
 Church which he serveth, conform to his quality and the 
 necessity of time : wherein it is thought that every Minister 
 shall have forty bolls meal, and twenty bolls malt, with mony 
 to buy other provision to his house, and serve his other 
 necessities ; the modification whereof is to be referred to the 
 judgment of the Church ; which shall be made every year 
 at the chusing of the Elders and Deacons ; providing always, 
 that there be advanced to every Minister provision for a 
 quarter of a year beforehand of all things.' 2 
 
 1 Spotswood, History, p. 86. 2 Ibid. p. 157.
 
 REFORMATION PERIOD AND SUBSEQUENTLY 49 
 
 There is no ambiguity about the sixth head, ' Of the Rents 
 and Patrimony of the Church,' which may be cited in full : 
 
 The Sixth Head, of the Rents and Patrimony of the Church. 
 
 ' Two sorts of men; that is, the Preachers of the Word and 
 the Poor, besides the Schools, must be sustained upon the 
 rents of the Church ; wherefore it would be considered how 
 and of what the same is to be raised. For to our grief we 
 hear that some Gentlemen are now more rigorous in exacting 
 the Tithes and other duties, paid before to the Church, than 
 ever the Papists were, and so the tyranny of Priests is turned 
 into the tyranny of Lords and Lairds. For this we require, 
 that the Gentlemen, Barons, Lords, Earls, and others be con- 
 tent to live upon their own Rents, and suffer the Church to be 
 restored to her right and liberty, that by her restitution the 
 poor that heretofore have been oppressed may now receive 
 some comfort and relaxation. 
 
 'It is a thing most reasonable that every man have the 
 use of his own Tithes, providing that he answer the Deacons 
 and Treasurer of the Church of that which shall be reason- 
 ably appointed unto him, and that the uppermost cloth, the 
 Corpresent, the Clerkmail, the Pasche-offerings, Tith-ale, and 
 other the like exactions be discharged for ever. And be- 
 cause not only the Ministers, but also the Poor and Schools 
 must be sustained upon the Tithes, we think it more expedi- 
 ent, that Deacons and common Treasurers of the Church be 
 appointed to receive the whole Rents appertaining thereto, 
 than the Ministers themselves, and that commandment may 
 be given that no man either receive or intromit with any- 
 thing belonging to the sustentation of the foresaid persons, 
 but such as shall be appointed thereto by the Church. 
 
 ' If any shall think this prejudicial to those that profess 
 
 the Tithes by virtue of leases, we would have them know 
 
 that unjust possession is no possession before God ; and that 
 
 those of whom they acquired their right were thieves and 
 
 D
 
 co TITHES IN SCOTLAND DURING THE 
 
 murtherers, and had no power to alienate the Patrimony and 
 common good of the Church : yet do we wish recompence to 
 be made to such as have debursed sums of money to these 
 unjust possessors, so that the same had not been given of late 
 in prejudice of the Church, or no collusion used. For which 
 purpose we think it expedient, that whosoever have the 
 tithes of any Church in part or whole, be warned to produce 
 his right, that, cognition being taken thereof, a reasonable re- 
 compence may be given them, before the years that are to run, 
 the profits of years past deduced and considered, so that the 
 Church in end may receive her liberty and freedom. 
 
 ' The Tithes that we think must be lifted for the use of the 
 Church, are the Tithes of Hay, Hemp, Lint, Cheese, Fish, Calf, 
 Veal, Lamb, Wool, and all sorts of Corn. But because these 
 will not suffice to discharge the necessaries of the Church, we 
 think that all things dotate to hospitality in times past, with 
 all annual rents both to Burgh and Land, pertaining to Priests, 
 Chanteries, Colleges, Chaplanries, and Friers of all orders, to 
 the sisters of the Seynes, and all other of that sort, be retained 
 to the use of the Church or Churches within the Towns or 
 Parishes where they were founded : likewise the whole 
 revenues of the Temporalities of Bishops, Deans, and Arch- 
 deacons ; with all rents of lands pertaining to Cathedral 
 Churches, which must be applied to the entertainment of Super- 
 intendents and Universities. And farther, we think that Mer- 
 chants and Craftsmen in free Burghs, who have nothing to do 
 with manuring the ground, ought to make some provision in 
 their cities and towns and dwelling-places for the support of 
 the Church, and necessities thereof. 
 
 ' The Ministers, and failing of them the Readers, must be re- 
 stored to their Manses and Gleibs, without which they cannot 
 serve nor attend their Flocks ; and where any Gleib exceedeth 
 six acres of land, that which is more shall remain with the 
 possessor till farther order be taken.' l 
 
 1 Spots wood, pp. 164, 165.
 
 RE FORM A TION PERIOD AND S UBSEQ UENTL Y 5 1 
 
 ' Whence he took that device of annual Deacons for collect- 
 ing and dispensing the Church-rents,' says Spotswood, ' I can- 
 not say. A Noble man being ask'd his judgment thereof, 
 answered that it was a devout imagination, wherewith John 
 Knox did greatly offend ; yet was it no better than a dream, 
 for it could never have taken effect. The Churchmen that 
 went before had been provident enough in these matters, and 
 good it had been for these that succeeded to have kept fast 
 that which they found established to their hand, as the Arch- 
 bishop of S. Andrews did at the same time advise them. For 
 he imploying John Brand, a Monk of Halyrudhouse (who 
 served many years after Minister at the Canongate), to go 
 unto John Knox, willed him to say from him, that albeit he 
 had innovated many things, and made Reformation of the Doc- 
 trine of the Church, whereof he could not deny but there was 
 some reason ; yet he should do wisely to retain the old Policy 
 which had been the work of many Ages, or then put a better 
 in place thereof, before he did shake the other. " Our High- 
 land-men," he said, " have a custome, when they will break 
 young Colts, to fasten them by the head with strong tethers, 
 one of which they keep ever fast till the beast be thoroughly 
 made. The multitude, that Beast with many heads, would just 
 be so dealt with. Master Knox, I know,esteemeth me an enemy; 
 but tell him from me he shall find it true that I speak." ' 1 
 
 The archbishop was right. Although many nobles signed 
 the Book of Policy, it was with a significant addendum, ' That 
 the Bishops, Abbots, Priors, and other beneficed men who had 
 joyned themselves to the Religion should enjoy the Rents of 
 their Benefices during their lives, they sustaining the Ministers 
 for their parts, as was prescribed in the said Book.' 
 
 This was as devout an imagination as Knox's ; while the 
 ink was drying on the signatures, the Church was as rapidly 
 as possible getting rid of her possessions to Churchmen's 
 
 1 Spotswood, p. 174. See also Carlyle, Heroes and Hero- Worship 
 
 ' Knox.' . : . :
 
 52 TITHES IN SCOTLAND DURING THE 
 
 friends and kinsmen, and of the very signatories the great 
 majority, getting into their hands such possessions, forgot their 
 adhesion to Knox's device for collecting Church rents, and 
 kept a firm hold of what they got, thus turning, as the his- 
 torian of the time says, ' greater enemies in that point of 
 Church Patrimony than were the Papists or any other what- 
 soever.' 1 The Confession of Faith was adopted by the 
 Assembly of the Estates at Edinburgh in August 1660, and 
 here the formal history of the Reformation may be said to 
 begin. There were, however, many of the Romish clergy 
 attending the Assembly who voted for the adoption of the Con- 
 fession, and it was long after this ere the Catholic Church could 
 be said to be disestablished, or her clergy to be disendowed. 
 
 In 1 66 1 the Crown, however, took a share in the work 
 of annexing the benefices of the weakened Church. The 
 revenues of the Crown were found insufficient to maintain 
 the Court of Queen Mary, who had now returned from France ; 
 and as an easy way of raising funds the prelates of the 
 weakened Church were called before the Council and asked 
 to make a suitable contribution from their benefices. As it 
 was only by the Queen's favour that the prelates could hope 
 for any revenue at all, looking at the Reformers' attitude, 
 they were scarcely in a position to refuse, and with great 
 reluctance agreed to allow the Queen to appoint collectors 
 to gather one-third of their whole revenues, to be disposed 
 of at the Queen's pleasure, the prelates on the other hand 
 being secured in the remaining two-thirds. 
 
 The Assembly of 1564 presented a petition to the Queen 
 that some provisions should be made for the ministers, ' and 
 their livings assigned them in the places where they served, 
 oral least in the parts next adjacent ;' that benefices which 
 had become vacant since March 1558 should be filled ; 'that 
 no Bishoprick, Abbacy, Priory, Deanry, Provostry, or other 
 Benefice having more churches than one annexed thereto, 
 1 Spotswood, p. 175.
 
 REFORMATION PERIOD AND SUBSEQUENTLY 53 
 
 should be disponed in time coming to any one man, but 
 that the churches thereof being dissolved, the same should 
 be provided to several persons, so as every man having 
 charge may serve at his own church according to his voca- 
 tion ' and as to teinds, ' that some order should be divised 
 for the relief of the poor labourers of the ground who are 
 oppressed in their Tithes by Leases set over their heads, and 
 they thereby forced to take unreasonable conditions.' 
 
 The Queen answered that she did not see her way to ' de- 
 fraud herself of so great a part of the Patrimony of the Crown 
 as to put Patronages of Benefices forth of her own hands, 
 seeing the publick necessities of the Crown did require a 
 great part of the Rents to be still retained. Notwithstanding, 
 Her Majesty was pleased that her own necessity being sup- 
 plied, after it should be considered what might be a reason- 
 able sustentation to the Ministers, a special assignation should 
 be made to them forth of the nearest and most commodious 
 places, wherewith Her Majesty should not intermeddle, but 
 suffer the same to come to their use.' As regarded the 
 trouble caused by the exactions of those who had leased the 
 right to tithe land, the Queen's answer is included in a 
 general phrase that Her Highness promised to do therein 
 as the Estates convened in Parliament should appoint. 1 
 
 The Assembly replied that as to the Queen's offer to 
 provide for the ministers when her own necessities were 
 supplied, ' That good order did require Ministers first to be 
 provided, Schools for instructing the youth maintained, the 
 fabrick of Churches repaired and upheld, and the poor and 
 indigent members of Christ sustained ; all which ought to 
 be furnished out of the Tithes, which are the proper Patri- 
 mony of the Church. These things done, if any thing were 
 remaining, that Her Majesty and Council might use it as they 
 should think expedient.' 2 
 
 At James's baptism in 1566 the rite was celebrated by the 
 1 Spotswood, pp. 190, 191. 2 Ibid. p. 193.
 
 54 TITHES IN SCOTLAND DURING THE 
 
 Archbishop of St. Andrews and the Bishops of Dunkeld, 
 Dunblane, and Ross and other Romish clergy, and about 
 the same time the Crown restored to the archbishop his 
 former jurisdiction in confirming executors, collating to 
 benefices, etc. The General Assembly took this greatly to 
 heart, but it does not appear that the archbishop attempted 
 to exercise the restored functions ; 1 and to meet the ministers' 
 constant complaints the Court offered them a sum out of the 
 teinds which were collected. By an Act of the Privy Council, 
 therefore, in that year, all benefices not exceeding 300 merks 
 Scots or ;i6, is. 4|d. sterling annually were assigned to 
 such persons as the General Assembly should appoint ; and by 
 another Act a portion of the rents of such other benefices as 
 should amount to the sum of ^10,000 Scots and 400 chalders 
 of victual were appropriated for the general support of the 
 ministry. 2 This was 'accepted under protestation that the 
 same should not prejudice their right to the Tithes, nor be 
 accompted as a satisfaction for the same.' 'For these they 
 held to be the proper Patrimony of the Church,' continues 
 Spotswood, 'and so justly belonging thereto, as that they 
 ought not to be paid to any others, under whatsoever colour or 
 pretext. But this protestation availed not, only it sheweth 
 what was the judgment of the Church in that time concerning 
 Tithes.' 3 
 
 The marriage of Mary and Bothwell was celebrated on 
 i5th May 1567 4 by Adam, Bishop of Orkney, after the 
 manner of the Reformed Church ; and it was the same bishop 
 who crowned the infant James at Stirling, when John Knox 
 preached the sermon. 5 In the same year, among the Articles 
 agreed to by the Assembly and the few noblemen who 
 accepted the invitation to join with the Assembly were the 
 following : 
 
 ' That until the perfect order might be taken for restoring 
 
 1 Spotswood, p. 198. - Connell, i. p. 154. 
 
 3 Spotswood, p. 199-200. 4 Ibid. p. 203. 5 Ibid. p. 211.
 
 REFORMATION PERIOD AND SUBSEQUENTLY 55 
 
 Patrimony of the Church, the Act of Assignation of the 
 thirds of Benefices for the sustentation of the Ministry should 
 be put in due execution. That in first lawful Parliament 
 which should be kept, or sooner if occasion might serve, the 
 Church of Christ within this kingdom should be fully restored 
 unto the Patrimony belonging to the same. ... It was farther 
 agreed that in the next Parliament, or otherwise at the first 
 occasion, order should be taken for the ease of the labourers 
 of the ground in the payment of their Tithes, and that the 
 same should not be disponed to any others without their 
 advice and consent.' 1 
 
 This was very well in theory, but a significant comment 
 upon it is that one of the rewards given to Kirkcaldy 
 of Grange for his pursuit of Bothwell was the gift of the 
 Priory of Pittenweem. 2 One of the petitions to the Regent 
 in 1568 from the Church asks 'that remedy might be pro- 
 vided against the chapping and changing of Benefices, diminu- 
 tion of rentals, and selling of Tithes in long Leases to the 
 defrauding of ministers and their successors.' 3 
 
 By the Act 1567, c. 10, the complaints of the clergy were 
 to some extent acknowledged, for that Act narrates that 
 ' ministers had been long defrauded of their stipends, swa (so) 
 that they are becummin in great poverty and necessity,' and 
 enacts that 'the haill thirds of the haill benefices of this 
 realme sail now instantlie and in all times to cum, first be 
 payed to the ministers ... ay and quhill the kirk come to 
 the full possession of their proper patrimonie quhilk is the 
 teinds.' 4 The Assembly was authorised to appoint collectors 
 to uplift the thirds, and immediately did so. 
 
 The thirds of the teinds were thus collected, until in 1573 
 the Regent Morton procured the consent of the Church to 
 their collection by the Crown, under promises of more liberal 
 provisions to the clergy, and that the stipend of each parish 
 
 1 Spotswood, pp. 209, 2IO. - Ibid. p. 213. 
 
 3 Ibid. p. 228. 4 Connell, i. p. 156.
 
 56 TITHES IN SCOTLAND DURING THE 
 
 should be paid out of its own teinds. The Commission of 
 Platt was appointed to modify stipends, but its proceedings 
 were very unsatisfactory to the ministers, whose financial 
 position was in no way improved by the new arrangement. 
 
 Year after year they made their complaint, but little or 
 nothing was done to help them. Worse than all, they saw 
 the patrimony of the Church disappearing before their eyes 
 during the king's minority. The form of bestowing benefices 
 on laymen as commendators was abandoned, and those who 
 had acquired 'rights' to religious houses and their endow- 
 ments obtained from the king jure corona grants as Lords of 
 Erection. Such grants were under burden of payment of 
 the thirds, or of providing suitable stipends for ministers ; but 
 to exact those beneficial provisions was a hard and sometimes 
 an impossible task. Many churches were left without pro- 
 vision, and were abandoned by the ministers. It appears 
 that in 1596 there were about four hundred parish kirks 
 destitute of ministers ' by and attour the kirks of Argyll and 
 the Isles.' i 
 
 When in 1587 James vi. attained majority, an Act was 
 passed (c. 29) to annex to the Crown the whole lands of the 
 beneficed clergy. It proceeded on the narrative that much of 
 the clergy's lands had been given to the Church by the Crown, 
 and that it was necessary for the exigencies of the State, and to 
 avoid the imposition of taxes, that all Church lands should be 
 held in future by the Crown. It is not quite clear whether 
 teinds were intended to be excepted from this appropriation 
 or not, but it is almost certain that they were excluded. In 
 1592 a new Act to the same effect was passed, for the king 
 had continued his ruinous habit of making Erections of Church 
 benefices to those who were only too ready to take all they 
 could get. It will be remembered that in 1592 the Presbyterian 
 form of government was established by Parliament ; and a 
 commission was appointed to deal with the burning question 
 1 Connell, i. p. 161.
 
 REFORMATION PERIOD AND SUBSEQUENTLY 57 
 
 of ministers' stipends, but nothing was done. 1 In 1596 the 
 General Assembly proposed a plan by which every clergyman 
 should be provided for from the teinds of his own parish, but 
 nothing came of it. 
 
 All this time the tithes of the old Church lived on, although 
 in altered circumstances, Presbyterians in many cases holding 
 the nominal rank of the 'dignified clergy' of the olden time. 
 When in 1606 James succeeded in restoring bishops who 
 should really discharge episcopal functions as they were 
 understood in England, he discharged their benefices of 
 the payment of thirds to the collectors, making it obligatory 
 upon the bishops, however, ' to maintain the ministers serving 
 at the cure of the kirks of their saids bishopricks, upon the 
 readiest of their said thriddes, according to the ordinar 
 assignations made, or reasonablie to be made thereanent.' 2 
 This was not a satisfactory state of things, but up to 1617 
 the clergy had to get on as best they could upon what they 
 could extract from the fund made up by the thirds of the 
 tithes as collected. 
 
 When in 1617 James came back from England to visit his 
 elder kingdom, its ecclesiastical position was somewhat extra- 
 ordinary. The suppression of the Catholic Church in 1560, 
 six years before he was born, had been confirmed by the 
 Parliament of 1592, when he was twenty-six; yet he had been 
 baptized by a Catholic Archbishop of St. Andrews, and his 
 queen, though the daughter of rigid Lutherans, had been 
 received into the Catholic Church by Father Abercromby 
 about 1600. The period of the Reformation in Scotland is 
 almost exactly covered by his life of fifty-nine years ; that the 
 avowed Presbyterianism of the people took so long to settle 
 itself was largely due to his want of real dependence upon any 
 particular form of Church government. In England he was so 
 persuaded of the appropriateness of the kind of episcopacy of 
 which he approved, that it is not at all surprising that he 
 1 Connell, i. p. 177. 2 Ibid. i. p. 178.
 
 58 TITHES IN SCOTLAND DURING THE 
 
 should have thought fit to remodel the Scottish Church on 
 similar lines ; but that he can have imagined that by taking in 
 hand the virtually civil offices of the Scottish bishops which 
 still existed, and having the holders of them consecrated by 
 English bishops, he had succeeded, seems to show an extra- 
 ordinary confusion of ideas. As Father Bellesheim observes, 
 the so-called Scottish prelates being in the eyes of the Roman 
 and the English Church simply laymen, ' the result of this 
 singular proceeding, of course, was that whereas Anglicanism 
 recognises as essential the three ordeis of bishop, priest, and 
 deacon, the unfortunate Church of Scotland had to content 
 herself with the episcopate alone.' In other words, when 
 James came to Scotland in 1617 the country was covered 
 by Presbyterian parishes, and yet possessed certain nonde- 
 script bishops who were not Romish, nor Anglican, nor 
 Presbyterian. James brought with him to admire his work 
 the Bishop of Ely, and Laud, the future archbishop, and it 
 is to be hoped they understood it. 1 
 
 It was to the Scottish Church of this anomalous kind that 
 the great benefits of a reform of the law of teinds was con- 
 ferred, Parliament in 1617 appointing a Commission, which 
 numbered eight prelates, with power, ' out of the teinds of 
 every parochin to appoint and assigne at their discretions, 
 ane perpetual local stipend to the ministers present and to 
 come.' It is really from this date that the maxim decimce 
 debentur parocho the tithes belong to the parish can be 
 said to be recognised in Scotland. Theoretically it had been 
 admitted for centuries, but as a matter of practice it had been 
 little known during the subsistence of the Catholic Church, 
 and was entirely ignored by the civil power from 1560. The 
 clergy, now, were no longer to receive certain stipends out of 
 a general fund formed of such Thirds as could be collected 
 
 1 As to the 'Tulchan' bishops see Carlyle's Oliver Cromwell, 1871 ed., 
 i. p. 36. Laud found in Scotland 'no religion at all.' Wharton's Laud 
 (1695), cited by Carlyle, ibid. p. 37.
 
 REFORMATION PERIOD AND SUBSEQUENTLY 59 
 
 and were not otherwise required, but were definitely to obtain 
 from the tithes of their own parishes such sums as might be 
 fixed by the Commission. The minimum stipend was fixed at 
 five chalders (16 bolls=i chalder) of victual, i.e. corn or meal, 
 or 500 merks, ,27, 155. 6jd. sterling, 'or proportionally 
 part of victual and part thereof in money, according as the 
 fruits and rents of the Kirk may yield and afford, and as the 
 said Commissioners shall think expedient.' 1 The Commis- 
 sioners were not to meddle with any stipends that were 
 already above the minimum. The maximum stipend was fixed 
 at eight chalders of victual, or 800 merks, ^44, 93. sterling. 
 
 This Commission was very welcome to the clergy, but its 
 powers expired at Lammas 1618. A new Commission was 
 appointed in 1621, but it seems never to have acted. James 
 died in 1625, and the record of his work for the Church of 
 Scotland is meagre and confusing enough. 
 
 Meantime, it has to be observed that the disastrous practice 
 of leasing out tithes went on quite as commonly in the early 
 days of the Reformation as in the latter days of Catholicism, 
 and by ministers who happened to be in right of their teinds 
 as titulars just as openly as by the bishops. The practice was 
 strictly prohibited by Acts 1581, c. 101, and 1585, c. n. 
 Tacks were, however, conditionally recognised by Acts 1594, 
 c. 203; 1617, c. 4; 1621, c. 15. 
 
 Several curious instances of such tacks are given by 
 Connell, 2 as in the cases of the parishes of Glassary, Auchter- 
 arder, Birse, etc., secured in the remaining two-thirds for life, 
 and relieved of the maintenance of any of the ministers of the 
 Reformed Church. 3 
 
 An interesting glimpse of the fortunes of a post-Reformation 
 parsonage and its teinds is given in the case of Duffv. The 
 Earl of Seafield, Nov. 9, 1883, n R. 126. 
 
 The parish of Keith, in the bishopric of Moray, fell into the 
 
 1 Connell, i. pp. 184-5. 2 Ibid - * P- I 9- 
 
 3 Spotswood, p. 183.
 
 60 TITHES IN SCOTLAND DURING THE 
 
 hands of James vi. on the death of the Bishop of Moray, and 
 was erected into a parsonage by the king in 1590, confirmed 
 by a special Act of Parliament in 1592. In 1601 the minister 
 of Keith granted a tack of the teinds to Lord Saltoun for 
 nineteen years for a teind duty of 500 merks for parsonage 
 teinds and ,10 for vicarage. In 1609 an Act of Parliament 
 was passed containing a ratification of Lord Saltoun's title, 
 and, taking into account the great services of his family, it 
 declared ' the tack of teinds and the rights of parsonages to 
 be good and sufficient lawful and valid rights for bruiking of 
 the teind sheaves and other sheaves during the lifetime and 
 space contained in the said tacks, and for bruiking the rights 
 of patronage in all time coming.' In 1612 Lord Saltoun 
 assigned the tack to Lord Ochiltree. In 1618 the Commis- 
 sioners appointed under the Act 1617, ch. 3, to see that churches 
 had ministers and that ministers had stipends (it had nothing 
 to do with the valuation of teinds), proceeded to inquire into 
 the state of Keith. There were two churches in the parish, 
 the parish church proper and the kirk of Grange. The Com- 
 missioners called upon those interested in the teinds of Keith 
 to produce their titles. There appeared the Bishop of Aber- 
 deen, who was also minister of Keith parish ; and the Bishop 
 of Moray, in whose diocese the parish was, and who appeared 
 in name and as procurator for the minister of Grange. The 
 two bishops declared that, although Grange was not a ' paroche 
 kirk bot allenarlie ane pendicle of the paroche kirk of Keythe,' 
 yet for many years it had been provided with a separate 
 minister, and that, ' in respect of ye gritnes of ye charge of ye 
 cure and function of ye said haill parochine of Keythe,' the 
 arrangement should be adhered to, and a suitable stipend 
 should be provided for the minister of Grange. Lord Ochil- 
 tree also appeared, and produced the tack to Lord Saltoun, 
 which Lord Saltoun had conveyed to him. He renounced 
 his right as tacksman of the vicarage benefice, and in respect 
 of that renunciation asked a prolongation of his tack, which
 
 REFORMATION PERIOD AND SUBSEQUENTLY 61 
 
 indeed had then but two years to run. The Commissioners, 
 with great care, then divided the parish and apportioned the 
 stipend, giving the minister of Keith the vicarage teinds above 
 renounced, to the extent of 400 merks, and 700 merks of 
 parsonage teinds, while to the minister of Grange they gave 
 vicarage teinds to the amount of 300 merks, and 300 merks 
 from the parsonage teinds. So far Lord Ochiltree had fared 
 badly. He had renounced his vicarage teinds, and had been 
 made liable in parsonage teinds to the amount of 1000 merks, 
 whereas his rent for the tack of the whole teinds, parsonage 
 and vicarage, was only 500 merks. However, the bargain was 
 no one-sided one, for Lord Ochiltree received a very liberal 
 prolongation of his tack from the date it would expire, i.e. 
 1620, for ten terms of nineteen years, bringing it down to 1810. 
 
 In 1646 Lord Ochiltree granted a sub-tack of the teinds to 
 Gordon of Park. 
 
 Two years later Gordon of Park found himself in this 
 position : he was tacksman of the teinds of Kempcairn in 
 Kilsyth and proprietor of the lands of Park, paying teind for 
 a portion of those lands called Ordiquhill to Ogilvie of Kemp- 
 cairn, while Ogilvie of Kempcairn had no right to the teinds 
 of his lands of Kempcairn, which Gordon drew, but drew 
 the teinds of Gordon's lands of Ordiquhill in the Park estate. 
 So the two proprietors by contract of excambion exchanged 
 their teind-rights, so that each should draw the teinds of his 
 own lands. 1 It is a curious and instructive case. 
 
 In October 1625 King Charles i. endeavoured to save as 
 much as possible for the Crown, and issued a general revoca- 
 tion of James i.'s grants of vacant Church benefices and of 
 brevi manu usurpations after the Reformation, and in 1626 
 followed this by an action of reduction of all grants and claims 
 inconsistent with the Act of Annexation of 1587. The king's 
 
 1 The teinds of Ordiquhill had been acquired on tack, likewise, from 
 the parson of Fordyce in 1604 for a period of thirty years ; the tack was 
 ultimately prorogated for a period of 203 years.
 
 62 TITHES IN SCOTLAND DURING THE 
 
 procedure caused great alarm, and in November 1626 a 
 petition was presented to the king by the nobles, which sets 
 forth that many of them or their predecessors, for ' faithful and 
 memorable service ' when the Crown ' was endangered by the 
 joyned counsallis, forces, and fraud of Popische potentats 
 and rebellious subjects, tending to subversioun of religioune 
 and State,' had received grants of lands, teinds, etc., some of 
 which were granted by, and others ratified in, Parliament; that 
 the petitioners are ' not without causs affrighted at the large 
 extent of your Majesties revocationes ; ' that they have no fear 
 of their title, but beg the king to cause the actions of reduction 
 to be stopped, and either to hold a Parliament, or to appoint 
 ' ane competent nomber of best experienced counsellours, pre- 
 lates, judges, and lawiers and pairties interest in the bissines, 
 to conveene and treate of all that may concern your Maiestie 
 profeite and patrimonie, and your subjectis lawfull sureties.' 
 
 To this the king, whose main object seems to have been to 
 receive a sufficient personal grant on tolerably easy terms 
 from those who enjoyed the Scottish benefices, agreed, and 
 in January 1627 appointed a Commission probably at the 
 time intended solely in the interests of the Crown, and to 
 force on the general submission of the doubtful rights which 
 the king had threatened to challenge, of which the lordships 
 of erections and other teind-rights were among the most 
 important. He directed the Commissioners to treat with 
 such persons as might be willing to treat as to erections and 
 temporalities of benefices, feu-duties, ' or uthir certaine rents 
 of silvir or victual of the said temporalities, teynds, and 
 patronages of the said benefices ; ' as to what should be given 
 them for their ' pretended rights,' or for their holding on terms 
 of new arranged with the Crown ; as to the establishment 
 of 'a certain patrimonie to the Crowne, therewith to 'remain 
 in all time coming,' the endowing of ministers, dividing 
 parishes, and establishing manses. The Commissioners 
 found the information .before them very insufficient to enable
 
 REFORMATION PERIOD AND SUBSEQUENTLY 63 
 
 them to deal with so large a subject, and they issued a pro- 
 clamation to the presbyteries directing them to institute an 
 inquiry into the state and worth of the teinds in each parish 
 within its bounds a proceeding which caused much alarm to 
 the holders of the rights of titularity of teinds, whose oppres- 
 sive action had been long resented by both ministers and 
 heritors. 'This proclamation,' said Lord Justice-Clerk Hope 
 in Dunlop, etc. v. Commissioners of Woods and Forests, June 
 2, 1858, 20 D. p. 1032, in a case in which the original 
 papers were reprinted, and from which this account of King 
 Charles's inquiry is largely drawn, ' was very rapidly and 
 extensively acted upon in most parts of Scotland, with a 
 celerity quite remarkable in those days, but accounted for by 
 the deep interest which the parties to whom the inquiry was 
 committed had personally in the matter. No instance is 
 known in those days, and with the then difficulty of com- 
 munication, in which the same rapidity of action took place.' 
 
 But the Commissioners had no authority to compel those with 
 whom they were empowered to treat to agree to their terms, 
 and they stopped short in the end of June 1627, referring the 
 whole matter back to. the king, their only decision being that 
 the king ought to receive a constant rent and duty paid out 
 of the whole teinds of the kingdom. The appointment of 
 the Commissioners had its uses, however, for their inquiries 
 frightened many titulars into voluntary submission to the 
 Commissioners. 
 
 Matters took a new turn by the submission of the various 
 questions which had been raised as to teinds by (i) lords 
 of erection, titulars and heritors ; (2) bishops and clergy ; 
 (3) burghs enjoying grants for pious uses (ministers, schools, 
 colleges, and hospitals); and (4) tacksmen of the teinds 
 to the Crown for decision ; the king accepted the submis- 
 sion, and appointed in September 1628 the Commissioners 
 of 1627 to proceed with the Commission with new and 
 additional powers. The general scheme of the inquiry and
 
 64 TITHES IN SCOTLAND DURING THE 
 
 submission was (i) to prevent the teinds being drawn in kind 
 from the heritors ; (2) to enable those liable in payment of 
 teinds to purchase them at a fixed price ; (3) to allot competent 
 stipends to parochial clergy, and to relieve the holders of 
 teinds from any claims at their instance, or of the patrons 
 directly against the teinds ; (4) to arrange a plan for a valua- 
 tion of each heritor's teinds, which was intended to be universal 
 over the kingdom, and to secure a fixed revenue to the king 
 out of the teinds which would yield larger funds than the 
 Church was supposed to require a royal tax, also, which 
 might fittingly be paid by those who were confirmed in rights 
 which, more or less, were of questionable character. (Lord 
 Justice-Clerk Hope, ut supra.) 
 
 The Commissioners were authorised to appoint sub- 
 commissioners for valuation purposes, and in practice sub- 
 commissioners were directed generally to presbyteries. 
 
 The decrees of the king following upon the submission may 
 be briefly summarised : 
 
 As regards teinds held by (i) lords of erection, titulars, and 
 heritors, and (2) tacksmen, the rate of teind was fixed at 'the 
 fifih part of the constant rent 1 which each land payeth in 
 stock and teinds where the same are valued jointly.' 
 
 When the stock and teinds were valued separately, it was for 
 the Commissioners to make the proper valuation. From the 
 sum they arrived at, a fifth was to be deducted for the provi- 
 
 1 Mr. Elliot observes : ' One-fifth of the rent for teind. This is shown 
 to have been a fair equivalent for the tenth of the produce when, as was 
 usual at the time, the rent consisted of teind and third i.e. the tenant 
 paid (i) the teind and (2) a third of the remainder of the produce of his 
 farm in name of rent. Thus the rent of a piece of ground, the product of 
 which was TOO bolls, is computed at 10 bolls to meet the titular's claim 
 and 30 bolls for stock to meet the landowner's claim. These together 
 amount to 40 bolls, one-fifth of which is 8 bolls as the valued teind. By 
 the other method the teind of 100 bolls is 10 bolls, from which deduct 
 one-fifth for the king's ease; the valued teind duty remains 8 bolls.' 
 Teind Court Procedure, p. 24, footnote 3.
 
 REFORMATION PERIOD AND SUBSEQUENTLY 65 
 
 sion to the Crown, which King Charles had so constantly in 
 view, and which now went by the name of 'the King's-ease.' 
 Nine years' purchase of the sum which remained was the price 
 at which a heritor might purchase the teinds from a titular, 
 or tacksman, under burden of stipend and King's-ease. 
 
 The terms upon which the bishops' teinds were to be valued 
 need not concern us here ; the arrangement with those having 
 right to them was a special one. On the final abolition of 
 Episcopacy in 1689 they were appropriated by the Crown, 
 and cannot be purchased except upon special terms. 
 
 Teinds held by burghs were to be estimated on similar 
 terms to those held by titulars and tacksmen. 1 
 
 Teinds held for pious uses could not be compulsorily 
 purchased. The decreets were ratified by Parliament in 
 1630; subsequent Commissions were appointed in 1629, 
 1663, 1641, 1644, 1647, 1649. From 1649 to 1660, during 
 the Commonwealth, Commissioners were appointed who were 
 called 'Commissioners for visiting universities and appointing 
 maintenance for ministers.' From 1660 to 1700 the business 
 of valuation was not so vigorously proceeded with ; the Com- 
 mission was renewed in 1693. Shortly after the Union the 
 business of the former Parliamentary Commissioners was 
 transferred to the judges of the Court of Session, as Commis- 
 sioners for Plantation of Kirks and Valuation of Teinds. 
 
 1 To avoid details unnecessary to the study of the general development 
 of the law of tithes, town stipends and burgh teinds are not dealt with 
 here. See Teind Court Procedtire, pp. 15, 23, 25.
 
 CHAPTER V 
 
 TEINDS IN THE PRESENT DAY 
 
 WE have now traced the gradual development of the law of 
 tithes. Originally an ecclesiastical duty alone, the payment 
 of tithes was recognised as a civil obligation under Charle- 
 magne, and the laws he made were adopted in England. 
 Both on the Continent and in England the Church derived 
 great benefit from the sanction given by the State to the 
 collection of a portion of the year's produce as a contribution 
 to the maintenance of the clergy. With the development of 
 the pretensions of the Papacy, the Church, however, ceased 
 to depend upon civil rulers for the observance of the duty ; 
 and when tithes were introduced into Scotland it was at a 
 stage when the Church felt strong enough to require their 
 payment as a thing recognised by the universal custom of 
 Christendom. The Church law which Queen Margaret and 
 her son David i. introduced into the Scotland of their day 
 was that of Edward the Confessor ; and it was necessary to its 
 adoption here that it should be acknowledged, not primarily 
 as an English observance, but as one which the whole world 
 owned as binding upon it. There was nothing illegal in the 
 Culdaic system ; it was irregular according to the rules which 
 were held binding in England, but it was ancient, it was 
 associated intimately with the fortunes of powerful families, 
 and it was familiar to the people. The innovations from the 
 south could not well have been forced upon the nation such 
 as it was; the part David played was that of the reformer only.
 
 TEINDS IN THE PRESENT DA Y 67 
 
 He remodelled existing institutions in so thorough a manner 
 upon an Anglican model that the change he accomplished well 
 deserves to be known as the First Reformation ; but he did so 
 purely as an ecclesiastical statesman who was a true son of 
 the Church, not as a law-giver. The Culdaic tribal system, 
 excellent in many things, had many defects some of them 
 almost incident to clan government ; and David may well have 
 thought that by his work in restricting the existing institutions, 
 and in introducing not only the regular government of dioceses 
 but the monastic orders in their second Anglican form, he was 
 doing much not only to forward religion an object always 
 very dear to him, but to settle the country. Every gift of land 
 to bishop or monastery meant so much the more territory safe 
 from occupation by the territorial subject-lords, who were 
 always the chief dangers of a Scottish king. It was a great 
 protection to such a sovereign, both as ecclesiastical reformer 
 and politician, to work out his remedial measures for Church 
 and State, not under any law of his own devising, but with the 
 sanction of laws which knew no national limits, and which 
 were accepted as obligatory by all who looked to Rome as the 
 seat of Christ's Vicegerent. On the other hand, the Anglican 
 Church as introduced into Scotland was distinctly an intruder, 
 and willingly welcomed the protection of the king, as Leo 
 had welcomed Charlemagne or John xn. had welcomed Otto, 
 and acknowledged his authority as readily as it owned his 
 piety. 
 
 Under David's successors, until the Wars of the Succession, 
 things went well enough, although the Crown for one system 
 of tribal churches had for the most part only substituted 
 another. Nothing is so permanent as a corporation; and 
 while a family might rise to great power in one of its sons, 
 and sink with another, most of the monasteries went steadily 
 on in prosperity. During the wars of Wallace and Bruce, and 
 the long minorities of the Stuarts, this was very evident; and 
 when James v. died the Church had for long been independent
 
 68 TEINDS IN THE PRESENT DA Y 
 
 of civil authority, and lived under a law of her own, too strong 
 to need aid from the uncertain and brief power of any king. 
 Power and wealth brought their own abuses, and during the 
 long and troublous times of the Second Reformation the 
 Church and her lands and her tithes fell a prey to the civil 
 power she had generally, though not consistently, ignored. 
 
 The Church of the Reformers had no David at its head. 
 There was no bold reconstruction of the old Church on new 
 lines save in Knox's brain. The Culdees had been re- 
 organised; the Church of Beaton was simply submerged; and 
 all the Reformers saved was from the wreckage that floated 
 on the surface of a turbulent river. 
 
 That in the long-run the tithes, or a portion of them, were 
 saved to the Church on a business plan does not seem to 
 have been in any way due to Charles i.'s desire to assist the 
 Church. His motive in carrying out the systematic valuations 
 of teinds was to secure a provision to himself by the tax or 
 burden called King's-annuity, and was as unconcealed as was 
 his grandmother's bold demand to the prelates of her day to 
 surrender one-third of their benefices for her privy purse. 
 The history of the King's-annuity may be told in a few words. 
 It was fixed in 1627. Charles subsequently assigned it to 
 James Livingstone, Groom of his Bedchamber, in security of 
 a debt of ; 10,000. It came by-and-by into the hands of the 
 Earl of Loudoun, and in 1674 it was stopped by royal warrant. 1 
 It is still allowed as a deduction from the price of teinds in 
 actions of valuation and sale, but it is purely fictitious. 
 
 Out of Charles's selfish legislation came much good both to 
 the Church which collected and the heritors who paid teinds. 
 The clergy were secured in payment of stipends by those being 
 localled, or fixed upon the teinds of the localities where they 
 served their cures ; and the heritors were afforded a ready 
 way, if they pleased, of ridding themselves of the payment of 
 teinds, otherwise than to ministers with such localled stipends, 
 1 See Stair's Institutions, bk. ii. tit. viii. 13.
 
 TEINDS IN THE PRESENT DA Y 69 
 
 by purchasing their teinds after valuation at fixed rates. Thus 
 the tithes once again came under the direct recognition of the 
 civil authority of the sovereign, as in the days of Charlemagne 
 and of Edgar. 
 
 At the present day all lands in Scotland are liable in pay- 
 ment of teind except (i) glebes (even though feued), (2) lands 
 held by heritors with titles which bear to be decimis inclusis, 
 (3) lands of which the heritors have purchased the teinds 
 (except as regards existing stipends), and (4) Crown lands 
 but Crown lands, if sold to subjects, become liable for teinds, 
 and teind-paying lands continue to be liable for teinds when 
 purchased by the Crown. 
 
 All teinds in Scotland belong (i) to the Crown, which draws 
 the bishops' teinds, or (2) to burghs for pious uses, or (3) to 
 universities, or (4) to titulars, or (5) to tacksmen, or (6) to 
 patrons, or (7) to the proprietors of lands who have purchased 
 their teinds or who hold their lands under titles cum decimis 
 inclusis, or (8) to parish clergymen to whom they have been 
 surrendered, and who hold them, as they hold their manses, 
 for life. 
 
 All teinds may be valued by the Commissioners of Teinds 
 on the application of (i) the heritor liable in payment, or (2) 
 the person entitled to receive the teind, or (3) the minister of 
 the parish in which the teind-bearing land is situated. 
 
 Bishops' teinds, teinds held by burghs for pious purposes, 
 or by universities, cannot be compulsorily purchased. Teinds 
 in the possession of (i) titulars or tacksmen may be bought 
 at nine years' purchase, and (2) teinds in the possession of 
 patrons at six years' purchase, in each case allowance being 
 made in the purchasing heritor's favour for King's-annuity. 
 Bishops' teinds (3) are sold by the Crown at such price as 
 the Commissioners of Woods and Forests may fix, from 
 eighteen to eleven years' purchase. 1 
 
 The right of patrons as titulars of teinds has been acquired 
 1 Or less. The price depends on the probabilities of allocation.
 
 70 TEINDS IN THE PRESENT DA Y 
 
 in a curious way. After the Reformation, the patron of a 
 parish, who had at that time no right to teinds, was entitled 
 (and specially by the Act 1612, c. i) to make arrangements with 
 the minister as to how much of the teinds the minister should 
 draw, he taking the rest. In Acts of 1649, 1662, and 1690, 
 relative to patronage, the patron's right to such teinds as are 
 otherwise owned is, subject to the minister's stipend, expressly 
 recognised. This right is qua patron, and was given as a 
 compensation in 1649, when patronage was abolished; patron- 
 age was restored, but the patron kept the titularity of teinds 
 he had acquired, and he keeps it still. This is one of the 
 singular anomalies of the law of teinds. 
 
 Much of the difficulty which undoubtedly attends this 
 branch of law has been due to popular confusion of teind and 
 stipend. It is quite common to hear it said, in answer to an 
 inquiry as to what teind means, that teinds are the contribu- 
 tions of the land-owning classes to the upkeep of the Church 
 of Scotland. However true this once may have been, it is 
 not true now ; for whether the Church existed or did not exist, 
 teinds would continue to be paid, and stipend is rather an 
 inseparable burden on teinds than teind an equivalent term 
 for stipend, which it has never been since the Reformation, 
 and seldom was before that time. 
 
 The law may be more clearly stated thus : Teinds are a 
 property which, with certain exceptions, may be sold like feu- 
 duties, but, unlike other property, are subject to the chance, 
 at intervals of not less than twenty years, of the amount 
 receivable by those owning them being affected by the Court 
 of Teinds allowing the minister of the parish an increase or 
 augmentation of his stipend from such teinds. 
 
 Teinds are not a burden on lands. As Lord President 
 Inglis said in Duff v. The Earl of Seafield, Nov. 9, 1883, n 
 R., at p. 141 : ' Some confusion in argument is always intro- 
 duced by looking upon teinds as a burden upon lands. Teinds 
 are not a burden upon lands. They are a separate estate ;
 
 TEINDS IN THE PRESENT DAY 71 
 
 although, it may be added, a separate estate liable to diminu- 
 tion, contingent on certain circumstances of a nature more or 
 less essentially periodic/ Stair gives his definition as follows : 
 as ' of a burden affecting lands, and the profits thereof, and 
 being also a distinct right from the lands.^ 
 
 The stipend is an inherent burden on the teinds. Lord 
 Robertson, in the case of Prestonkirk, observed : ' The rule 
 derinuz debentur parocha never took place with us in its full 
 extent ; but all our lawyers lay it down that teinds, in what- 
 ever hands they may be, or under whatever title they may 
 be possessed, are never held as absolute property, but are at 
 all times subject to the burden of a suitable provision to the 
 minister. This burden inhceret ossibus, and is in the eye of 
 law perfectly inseparable from the teinds. This I consider as 
 a fundamental proposition in the law of teinds. It is laid 
 down as such by all our lawyers. It is a proposition which 
 is universally true, and which admits of no exception nor no 
 limitation whatever.' 
 
 The position of matters can best be understood by taking 
 the case of a minister who wishes to have his stipend aug- 
 mented. The procedure he must take is as follows : He 
 must first ascertain that twenty years have elapsed from the 
 year when the last augmentation was granted. He then has 
 a Summons prepared in an action of augmentation, modifi- 
 cation, and locality against the heritors of the parish, the 
 titulars or tacksmen of the teinds, and all others having or 
 pretending to have an interest in the teinds of the parish, 
 and the moderator and clerk of the presbytery in which the 
 parish is included ; and in this Summons is set forth all the 
 circumstances which the minister thinks are likely to induce 
 the Court to grant a suitable augmentation. He lodges a 
 note of the stipend he then is drawing, mentioning how much 
 is paid in money and how much in victual, what species of 
 victual and the mode of measurement, and amount received 
 1 Institutions, bk. ii. tit. viii.
 
 72 TEINDS IN THE PRESENT DA Y 
 
 by him for Communion elements, and also a rental of the 
 parish, showing each heritor's rental The accuracy of this 
 rental may be admitted or it may not. If it is not questioned, 
 or when it has been adjusted and the Court allow an augmen- 
 tation, the amount of the stipend, including the augmentation, 
 is next fixed this is the Modification and the process is re- 
 mitted to the Lord Ordinary to fix the Locality or scheme 
 under which the stipend so modified or appointed shall be 
 paid. The heritors then elect a Common Agent, whose busi- 
 ness it is to ascertain the amount of the free or surplus teind 
 in the parish upon which the augmentation falls to be appor- 
 tioned or localled. If a heritor has had his teinds valued, then 
 in no case can he be called upon to pay more than the amount 
 of that value ; if he has purchased his teinds, he is liable up to 
 the amount of the annual value as fixed at the valuation which 
 preceded that sale, and for no more ; but a heritor may pur* 
 chase from the titular without a valuation, in which case the 
 teinds will have as yet no fixed value ; a titular, however, can- 
 not be compelled to sell except at a price arrived at after a 
 valuation. The amount of the teind so long as unvalued is 
 taken at one-fifth of the land rent or arable value. A heritor 
 who has purchased his valued teinds may surrender them in 
 favour of the parish minister ; by so doing, he frees himself 
 and his lands from liability for any augmentation of stipend 
 in future ; the minister by this surrender becomes titular 
 of these teinds. In preparing a scheme of locality the teinds 
 to be first stated are (i) those which the minister holds in 
 virtue of such surrender. There fall next (2) to be exhausted 
 the teinds in the hands of the titular of the teinds, which 
 includes the patron qua titular, teinds under tack being post- 
 poned to teinds to which the heritor has not even a temporary 
 right; if those two are exhausted, the teinds (3) held by 
 heritable title, acquired by purchase from the Crown or 
 other titular, are liable ; upon their exhaustion the bishops' 
 teinds (4) held by the Crown are liable, but if such teinds
 
 TEJNDS IN THE PRESENT DA Y 73 
 
 have been sold, the purchaser falls into the third rank, that 
 of heritable proprietors, and his teinds would be allocated 
 upon for stipend before those which still belonged to the 
 Crown. Assuming that all the other classes are exhausted, 
 then (5) the teinds belonging to Colleges, and lastly (6) teinds 
 appropriated to pious uses, including teinds granted to the 
 Deans of the Chapel-Royal, are localled upon. Out of 880 
 teind-producing parishes, the teinds of 476 have been ex- 
 hausted by augmentations ; l this means that in those 476 
 parishes the minister's stipend can never be increased from 
 the landowners, and, on the other hand, that under no cir- 
 cumstances (except by valuation of such part of the teinds 
 as might have been exhausted when unvalued) could the land- 
 owners' burdens be reduced, because there is no surplus teind 
 to be wiped out 
 
 Stipends nearly always have been reckoned by computation 
 of victual. A brief recapitulation of the provisions of post- 
 Reformation law relative to stipends may not be out of place. 
 
 By the Act 1617 the Commissioners under the Act were 
 authorised to modify at their discretion a local stipend to 
 all parish ministers who had incomes below 500 merks, 
 j^2j, 155. 6fd., besides a manse and glebe, so as to 
 approximately raise their stipend to ^55, us. id-, or 
 1000 merks. Clergymen receiving more than 500 merks were 
 excluded from this augmentation, but the Act applied to 
 parishes up to its date unprovided with minister and stipend. 
 In 1621, as we have seen, another body of similar Commis- 
 sioners was appointed, but it does not seem to have acted 
 It had powers to increase all stipends at discretion except such 
 as had been fixed by the Commission of 1617. 
 
 Matters remained in this unsatisfactory position until King 
 Charles's Commission of 1627, the Commissioners under 
 
 1 See as to augmentation of stipend, Elliot, Teind Court Procedure, 
 p. 2 (footnote), p. 67, et uq. ; Buchanan on Tands, p. 257 ; Juridical 
 Styles, vL p. 241.
 
 74 TEINDS IN THE PRESENT DA Y 
 
 which were ' to make sufficient provision for those churches 
 wheirof the teynds sail be reserved, and disposed as afoirsaid, 
 if the saids churches be not already sufficientlie provydit, and 
 for providing their ministers with sufficient local stipends and 
 fees.' This was ratified by the Act 1633, an d the minimum 
 of ministers' stipends fixed, generally, at eight chalders of 
 victual or 8000 merks. Of numerous subsequent Acts it may 
 be sufficient to say that their object was distinctly to ensure 
 the augmentation of ministers' stipends to eight chalders of 
 victual or three chalders victually, and money for the other 
 five. No maximum being fixed by the Act 1633, the statutory 
 maximum of 1617 has been held to be revoked ; and in 1720 
 the Lords of Council and Session, who had become in 1707 the 
 permanent Commissioners on Teinds, augmented the stipend 
 of a clergyman to 1200 merks, although in 1650 it had been 
 fixed at 800 merks. Augmentations still continue to be granted 
 from time to time, provided (i) that there is a surplus or 
 free teind in the parish, and (2) that twenty years have elapsed 
 from the date of the final interlocutor authorising the last 
 modification. By means of augmentation the teinds of 476 
 parishes out of 880 teind-producing parishes have been (1893) 
 exhausted. 1 The mode of calculating a minister's stipend at 
 augmentations by victual is archaic and clumsy, and causes 
 frequent misunderstanding. 
 
 When teinds were liable to be taken or drawn in kind, the 
 annoyance caused by the delay of a titular to come promptly 
 to the field and remove his share of the harvest must have 
 been a prolific cause of heart-burning, for the crop could not 
 be stacked till it was teinded. By Act 1606 a heritor was 
 entitled, when fifteen days had elapsed after cutting his corn, 
 to call upon the titular to teind the corn within eight days 
 if he failed to do so, the heritors might ' teynd and stack the 
 same themselves.' By Act 1612, c. 5, the fifteen days of 
 waiting were reduced to eight. Five years later the titular's 
 1 Elliot, p. 2, note 3.
 
 TEINDS IN THE PRESENT DAY 75 
 
 days of grace were limited to four days after the expiry of the 
 eight days, but the heritor was obliged to protect from cattle 
 the corn he teinded for the backward titular for eight days 
 on the field. 1 
 
 But the custom of compounding for teinding in kind was 
 not unusual. The heritor and the titular agreed that so many 
 bolls, hence called rental bolls, should represent the teinds, 
 and this much simplified tithe-paying wherever an agreement 
 was come to. After the valuations introduced in Charles i.'s 
 reign, teinding in kind fell into desuetude ; but Mr. Elliot men- 
 tions that, strangely enough, one small piece of land he knows 
 of has been teinded in recent years. 2 This is an unexpected 
 glimpse in the end of the nineteenth century of what, even 
 four hundred years ago, was felt to be an anachronism. 
 
 The value of the victual in which a parish minister's 
 stipend is usually, or in great measure, calculated is ascer- 
 tained by the fiars prices, which are struck every year by the 
 sheriff of each county. Take it that the minister's stipend is 
 fixed at ' such a quantity of victual, half meal, half barley, 
 in imperial weight and measure, as shall be equal to twenty 
 chalders of the late standard weight and measure of Scotland, 
 payable in money according to the highest fiars 3 prices of the 
 county annually, and that for stipend,' with perhaps ^"10 'for 
 furnishing Communion elements.' This involves annually a 
 fresh calculation of the stipend, as fiars prices vary, and then 
 the calculated sum has to be collected from the parties liable 
 
 1 Connell, i. pp. 204-5. ~ Elliot, p. 10. 
 
 3 ' Fiars are the prices of grain in the different counties, fixed by the 
 sheriffs respectively in the month of February, with the assistance of juries. 
 The form of striking the fiars is prescribed by Acts of Sederunt of 21 Dec. 
 1723 and 29 Feb. 1728. A jury must be called, and evidence laid before 
 them of the prices of the different grains raised in the county ; and the 
 prices fixed by the jury, and sanctioned by the judge, are termed the fiars 
 of that year in which they are struck, and regulate the prices of all grain 
 stipulated to be sold at the fiars prices.' Bell's Dictionary of the Law of 
 Scotland, ed. by Geo. Watson, 1890, p. 458.
 
 76 TEINDS IN THE PRESENT DA Y 
 
 in payment of teinds in such proportions as their teinds have 
 been allocated upon in the minister's action of augmentation, 
 modification, and locality when his stipend is fixed. It does 
 not fall within the plan of this sketch of the historical law of 
 tithes to discuss stipends or the calculations upon which they 
 are arrived at in detail ; 1 but it may be allowed the writer to 
 observe that he entirely concurs in the view of the Clerk of the 
 Court of Teinds, that future augmentations of stipend should 
 be awarded in sterling money and not in victual, and that 
 some means should be arrived at for converting permanently 
 the present victual stipends into sterling money, perhaps on an 
 estimate based on the average stipend as fixed or deduced 
 from fiars prices for seven years previous to such conversion. 
 Nothing can be said in defence of the present system. 
 
 The income of the clergy has, in many cases, been greatly 
 increased by the feuing of glebes under the provisions of the 
 Glebe Lands (Scotland) Act, 1866, but such feuing is not 
 overlooked when an augmentation is applied for. Additions to 
 stipends from funds provided by Parliament under the Act 50 
 Geo. in. c. 84, or other Acts, or the stipends of ministers of 
 quoad sacra parishes, do not fall under our consideration, as 
 they are virtually independent of teinds ; but it may be noted 
 that by 7 and 8 Viet. c. 44 the stipend of ministers of quoad 
 sacra parishes is not to be less than ^100 a year, or seven 
 chalders of oatmeal, where there is a manse, or ^120 a year, 
 or eight and a quarter chalders, where there is no manse. 
 
 A clergyman of a landward parish is at present entitled to 
 the following endowments, or privileges : 
 
 (i) He receives out of the teinds of the parish such stipend 
 as the Court of Teinds has localled on the parish teinds. 
 A minister's right to the temporalities of his benefice, viz., 
 the manse, glebe, and minister's grass, emerges with his admis- 
 sion to the benefice ; his right to the spirituality the stipend 
 is subject to the claims of a deceasing minister's next-of-kin. 
 1 See Elliot,. Teind Papers, pp. 25, et seq.
 
 TEINDS IN THE PRESENT DAY 77 
 
 The term ' induction ' is frequently used to describe the 
 entrance of a minister upon his cure, but the recent decision 
 of the First Division of the Court of Session in Hastie v. 
 Murtrie, supra, puts the matter in a clear light. ' Induction,' 
 observed the Lord President, ' is not a nomen juris, neither is 
 it a vox signata, in the existing ecclesiastical law of Scotland. 
 By the canon law, which was the ecclesiastical law of Scotland 
 prior to the Reformation, induction was the legal name of a 
 ceremony by which, after collation by the bishop of the diocese, 
 some inferior ecclesiastical person gave the presentee actual 
 and corporal possession of the church and benefice, under 
 mandate from the bishop, by the use of certain symbols, 
 which it is needless to enumerate. The ceremony was formal 
 and imposing, and necessary to complete the presentee's title 
 to the benefice. During the two comparatively short periods 
 in the iyth century when the National Protestant Church of 
 Scotland was governed by bishops, induction had again a fixed 
 and technical meaning, and was the name for a somewhat 
 similar ceremonial conducted under the authority of the bishop, 
 which consisted in the inferior clergy of the diocese, after col- 
 lation by the bishop, carrying the collated presentee into the 
 church and placing him in the pulpit, or in some other con- 
 spicuous part of the church, and there delivering to him the 
 keys of the church. But with the ceremony the name of 
 induction as a nom en juris has perished. There is no use of 
 the name in any of the numerous statutes relating to the settle- 
 ment of ministers under Presbyterian Church government. 
 In the earliest of these statutes (1567, c. 7) it is provided "that 
 the examination and admission of ministers be only in the 
 power of the Kirk." By the Act of 1592, c. 116, Presbyteries 
 are "bound and astricted to receive and admitt quhatsumever 
 qualified minister presented," etc. The Act of 1690 simply 
 revived the Act of 1592. By the Act 10 Anne, c. 12, restoring 
 patronage, the Presbytery is "bound to receive and admit such 
 qualified person or persons, minister or ministers, as shall be
 
 78 TEINDS IN THE PRESENT DA Y 
 
 presented." The Aberdeen Act, 1843 (6 and 7 Viet. c. 61), 
 bears in its title to be an Act respecting the admission of 
 ministers, and by 3 Presbyteries are directed to " admit and 
 receive into the benefice." Lastly, in the Act 37 and 38 Viet. 
 c. 82, abolishing patronage, and giving the appointment of 
 ministers to congregations, it is enacted ( 3) that " the courts 
 of the Church are hereby declared to have the right to decide 
 finally and conclusively upon the appointment, admission, and 
 settlement in any church and parish of any person as minister 
 thereof." As to the form of admission to the benefice, the 
 Church courts are left at perfect liberty to exercise their own 
 discretion. But it is clear they could not use, and never have 
 used, the old ceremonial of induction.' ' It may be true,' the 
 Lord President continued, ' that the old name of the ceremony 
 of induction still lingers in the common speech of the country, 
 and may be used popularly even in the proceedings of Church 
 courts as an equivalent of " admission to a benefice." It is 
 remarkable, however, that in the earlier authoritative or quasi- 
 authoritative Church documents, as distinguished from Acts of 
 Parliament, the term " induction " entirely disappeared. In the 
 First and Second Books of Discipline, in Pardovan's Collections, 
 in Principal Hill's View of the Constitution of the Church of 
 Scotland, " admission of ministers " and not " induction " is the 
 phrase used. But what is the act of admitting a minister to a 
 benefice, and what is its effect ? There is no actus solemnis 
 apart from ordination. By the imposition of the hands of the 
 Presbytery, the candidate is admitted and set apart to the 
 office of the holy ministry. If he has been already ordained 
 the fact is minuted. What follows is not a ceremony at all, 
 but merely a recognition of the new minister as a member of 
 Presbytery in his capacity of minister of the benefice to which 
 be has been presented or elected.' * 
 
 1 ' Institution was formerly given by the presiding Presbyter delivering 
 to the newly ordained pastor the pulpit Bible, and by putting into his 
 hands the key of the church and the bell-strings. This was done at the
 
 TEINDS IN THE PRESENT DA Y 79 
 
 His enjoyment of the benefices of both classes is in its 
 nature absolute, qualified only by the condition of dutifully 
 serving the cure to which the benefices are attached. Resig- 
 nation, deposition, or transportation may terminate his tenure 
 as well as death ; he is not, then, strictly even a liferenter 
 (but he may be enrolled on a valuation roll as such in respect 
 of his manse and glebe). 
 
 It is the duty of the minister to preserve his benefices for 
 his successors in the cure, but even his cession of any of his 
 rights enjoyed as minister will not affect those who come after 
 him. The minister of Falkland gave up, with concurrence of 
 the Presbytery, his manse and glebe (in 1650) for' an annual 
 payment ; but in 1793 tne Court found one of the ministers of 
 Falkland entitled to a manse and glebe (Minister of Falkland 
 v.Johnstoti, 1793, M. 5155 ; see also Panmure v. Presbytery 
 of Brechin (Brechin), Dec. 12, 1855, 18 D. 197). 
 
 To this rule there is one exception : where the minister has 
 accepted 20 Scots in place of ' minister's grass,' the bargain 
 cannot afterwards be recalled (Minister of Dollar v. Duke of 
 Argyll, 1807, M., Glebe, App. 7). 
 
 No minister can hold a plurality of benefices (Act 1584, c, 
 132) ; a cure consisting of parishes united in one parish does 
 not constitute plurality. 
 
 Thirteen years' uninterrupted peaceable possession by an in- 
 cumbent of a subject as his benefice, or a part of it, supports 
 a presumptive right in his favour to continuance of possession 
 without a written title. This is the rule of Decennalis et 
 Triennalis Possessio, as recognised by the law of Scotland. 
 
 close of the service, as appears, for example, from the following extract 
 from the Records of the Presbytery of Perth in 1700 : " The moderator 
 having closed the action with prayer and praise, give the said Mr. C. in- 
 stitution by delivering him the kirk Bible, key of the kirk doors, and bell- 
 strings ; whereupon Mr. C. for his part, and J. B., elder, in name of the 
 rest of the elders and parishioners, asked and took instruments in the 
 clerk's hands." ' Sprott, Worship and Offices of the Church of Scotland 
 (1882), p. 215.
 
 8o TEINDS IN THE PRESENT DA Y 
 
 Seven years' possession by a minister also enables him 
 without a title to retain, qua ecclesiastic, possession of a sub- 
 ject. A judgment following on such possession is regarded as 
 in nature and effect merely possessory, while in the case of 
 thirteen years' possession the judgment amounts to a discer- 
 niture that the subject so possessed belongs to and forms part 
 of the benefice, and to this effect operates as a written title of 
 property in the subject. 
 
 Stipend is subject, by the Act 1669, c. 9, to a quinquennial 
 prescription, unless proved by writ or oath. A right to stipend 
 is acquired by uninterrupted payment for forty years to the 
 occupant of a cure of stipend (Boswell v. Town of Kirkcaldy, 
 1668, M. 10,890; Minister of Eyemouth v. Officers of State, 
 1756, M. 15,677; Baird v. Minister of Polmont, July 3, 
 1832, 10 S. 752). 
 
 Before a second minister can obtain a modification or aug- 
 mentation of stipend there must be either a special agreement 
 on the part of the heritors that his stipend be payable out of 
 the teinds, or his appointment qua parish minister must be one 
 made by the Parliamentary Commissioners or the Teind 
 Court (Falkirk case, Dec. 31, 1707, Connell, Parishes, p. 121 ; 
 Elgin, 1714, ibid. 129; Old Machar, ibid. 131; Culross, 
 ibid. 133; Marshall v. Town of Kirkcaldy, 1738, M. 14,795 > 
 Fairnie v. Heritors of Dunfermline, M. 14,796; Inveraray 
 case, Connell, 146 ; Buist v. Cheape (St. Andrews), June 5, 
 1822, S.T., 23; Magistrates of Haddington v. Kennedy, Mar. 
 15, 1859, 21 D. 734). 
 
 A minister's stipend is attachable for debt. No portion of 
 it is alimentary, but a minister will be allowed to keep enough 
 to make an alimentary provision sufficient to enable him to 
 discharge the duties of the cure, even against creditors 
 (Minister of Linton v. Creditors, 136, cited in Smith v. Earl 
 of Moray (Petty), Dec. 13, 1815, F.C. ; A. B., Petitioner, 
 Nov. 26, 1823, 2 S. 526; A. B. v. Sloan, June 30, 1824, 3 S. 
 195; Learmonth v. Paterson, Jan. 21, 1858, 20 D. 418). A
 
 TEINDS IN THE PRESENT DAY 81 
 
 minister who was assistant and successor to a parish minister 
 had emoluments of ^"106 a year, and debts amounting to 
 ;iioo. He applied for cessio, and it was held by the First 
 Division of the Court of Session that he was entitled to the 
 benefit of cessio on his assigning ^20 a year to his creditors. 
 Lord Shand, however, observed that if the minister applied 
 for his discharge, it might be fairly argued that, in view of his 
 income being certainly increased in the event 'of his sur- 
 viving the present parish minister, a larger sum on his death 
 should be provided (Simpson v. Jack, Nov. 23, 1888, 16 R. 
 ISO- 
 
 Income-tax is payable upon all stipend, even if a portion of 
 it is applied to the salary of an assistant, although the 52nd 
 section of the Income-Tax Act of 1853 provides that, in 
 assessing the tax on any minister, it shall be lawful to deduct 
 from his profits any sums of money paid or expenses incurred 
 by him ' necessarily in the performance of his duty.' It was 
 held that this provision applied only to expenses incurred by 
 a minister in the personal performance of his duty, and did 
 not apply to a sum of money contributed by a minister, who 
 from his age required the services of an assistant, to make up 
 that assistant's salary to a certain fixed sum, the rest of which 
 was raised by the congregation (Lothian v. Macrae (Hawick), 
 Dec. 12, 1884, 12 R. 336). 
 
 A minister's right to stipend terminates with his death, deposi- 
 tion, resignation, or transportation to another charge. If the 
 interest in the benefice ceases before i5th May (Whitsunday), 
 he receives no part of the stipend of the year's crop ; if be- 
 tween 1 5th May and 2gth September (Michaelmas) he re- 
 ceives one-half; if after 2Qth September he receives the whole 
 stipend (Stair, ii. 8, 33; Erskine, ii. 10, 54). While the right 
 to stipend by ministers is regulated by these terms, as the 
 stipend periodically accruing (except when modified in money) 
 is derived from the year's crop when reaped, so the year's 
 stipend does not become exigible. This is because theo- 
 F
 
 82 TEINDS IN THE PRESENT DA Y 
 
 retically the stipend has no existence until the arrival of the 
 latter term. 
 
 In cases where an assistant and successor has been 
 appointed to a parish minister, he succeeds, on the removal 
 of the incumbent, to the enjoyment of the benefice without 
 fresh induction. In the other cases above mentioned vacant 
 stipend may be found due. 
 
 A proprietor who has a bare superiority over lands, or one 
 who has a security right over lands, on which no possession 
 has followed, and who has not intromitted with the fruits, is 
 not liable for minister's stipend (Jackson v. Cochrane (Cupar- 
 Fife), Feb. 27, 1873, i: Mac. 475), for it is intromission with 
 crop that renders a proprietor liable for stipend (see Lord 
 Cowan in University of Glasgow v. Pollok, May 27, 1868, 
 
 6 Mac. 884). 
 
 A Presbyter^' may legally admit and ordain a minister of the 
 Church of Scotland, and thereby entitle him to stipend, with- 
 out his taking any oath of allegiance, abjuration, or making 
 any declaration in lieu thereof, or subscribing ' the assurance ' 
 (Bell v. Presbytery of Meigle (Persie, q.s.}, July 20, 1869, 
 
 7 Mac. 1083). 
 
 Minister's Ann or Annat is the half-year's stipend payable 
 for the vacant half-year after the death of a minister, and to 
 which his family or nearest of kin have right. This provision 
 for ministers' relatives was of German origin. In Saxony, in 
 the end of the sixteenth century, the custom was to allow the 
 widow and children of a minister a grace of a half-year's salary; 
 in other parts to allow a year's grace ; and to secure this, the 
 church, in many places, was kept vacant for the year, and the 
 cure served by a neighbour. King James vi. is said to have 
 made ann the subject of a letter to the General Assembly in 
 1595. The letter is lost. The Act passed by the Assembly 
 on June 28, 1595, is as follows: 'Anent the Act made in 
 favour of the Executors of ministers, the Assembly and 
 brethren foresaid for cleiring thereof declares, if the minister
 
 TEINDS IN THE PRESENT DA Y 83 
 
 die after Michaelmas, quiafruges separatee sunt a solo, that his 
 executors sail fall that yeir's rent and the half of the nixt.' It 
 is pointed out by the Lord President (Inglis), in giving judg- 
 ment in the case of St. John's, Edinburgh, that the Act in 
 favour of the minister's executors referred to is the Act 1571, 
 c. 41 an Act in favour of ecclesiastics who fall fighting 
 against the king's enemies, giving them and their nearest of 
 kin, not only the fruits on the ground, with the ann thereafter, 
 but also the next presentation to the benefice. ' That Act is 
 intended for a different Church and clergy,' said the Lord 
 President, 'and for very different circumstances altogether, 
 and there is not much light to be got from it. We find King 
 James vi., however, taking the matter up again after the re- 
 establishment of Episcopacy.' This appears from the Peter- 
 head case, of 1626. ' In a double poinding at the instance of 
 the Earl Marischal, who was charged by the relict and bairns 
 of the deceased minister of Peterhead, who was incumbent 
 and served the cure, and who died before the feast of Michael- 
 mas anno 1623, and who was on the other part charged by 
 the new entrant minister for the stipend of the year 1624; to 
 the which stipend for the whole year the said entrant minister 
 craved the only right, and alleged that he ought to be answered 
 thereof for both the terms of Whitsunday and Martinmas that 
 year, in respect he served the cure that whole year ; and the 
 relict and bairns of the deceased minister claiming right to the 
 half of that year's stipend, by reason of an Act and Statute of 
 the Kirk, introduced in favour of the relicts and bairns of 
 deceased prelates and ministers, which appoints the duties of 
 the half of the profits of the prelacy and siclike of the stipend 
 for the year subsequent next after the decease of the incum- 
 bent, to pertain to the relict and bairns of the said deceased 
 incumbent, and the other half to pertain only to the entrant : 
 The Lords having seen and considered an ordinance and Act 
 made by the bishops which had relation to a letter of the 
 deceased King James tending and written for that same effect,
 
 84 TEINDS IN THE PRESENT DA Y 
 
 and which was engrossed in the said Act, and which Act was 
 produced by the said entrant minister ; by the which Act it 
 was found that when the prelate dies before the Michaelmas, 
 and after the Whitsunday, that his relict and heirs shall 
 have that year's profits and rents of the benefice, both the 
 Whitsunday and Martinmas terms thereof that year, and 
 nothing of the year subsequent ; and if the prelate die 
 after the Michaelmas, that his relict and heirs shall have 
 right to the half of the profits and rents of the subsequent 
 year beside, and attain the whole rents of that year when he 
 dies,' the Court gave effect to the Act (The Earl Marischal 
 v. The Relict and Bairns of the Minister of Peterhead, July 19, 
 1626, i Br. Sup. 36). The case of Eairky's Executors (July 
 5, 1662), M. 472, is inconsistent with this, but the guiding 
 statute is the Act 1672, c. 13. It provides, ' that in all cases 
 hereafter the ami shall be an half-year's rent of the benefice 
 or stipend over and above what is due to the defunct for his 
 incumbency, which is now settled to be thus, viz. : If the 
 incumbent survive Whitsunday, there shall belong to them 
 for their incumbency the half of that year's stipend or benefice, 
 and for the ann the other half; and if the incumbent survive 
 Michaelmas he shall have right to that whole year's rent for 
 his incumbency, and for his ann shall have the half-year's rent 
 of the following year ; and that the executors shall have right 
 thereto without necessity or expenses of a confirmation,' 
 Payments of stipend and ann under the Act 1672 are not 
 affected by the Apportionment Act, 1870, 33 and 34 Viet. c. 35 
 (Latta (Erasers Trustee) v. Edinburgh Ecclesiastical Commis- 
 sioners (St. John's, Edinburgh), Nov. 30, 1877, rev. judgment 
 of Lord Ordinary (Curriehill), 5 R. 266). It was provided in 
 an agreement between the parish minister of Penicuik and his 
 assistant and successor that the former should ' surrender ' to 
 the latter ,^165 of the annual income derivable from the 
 benefice of said parish, payable half-yearly at Martinmas and 
 Whitsunday. The minister died on 2Qth April 1887, un ~
 
 TEINDS IN THE PRESENT DA Y 85 
 
 married. The First Division of the Court of Session held 
 that under the agreement the minister's executor was not 
 bound to pay the assistant for his services between the pre- 
 vious Martinmas and that day, the stipend for that period 
 being payable to the minister's next-of-kin, as annat, and there 
 having been no personal obligation upon him and his repre- 
 sentatives to make any payment (Dow v. Imrie (Penicuik), 
 July 15, 1887, 14 R. 928). 
 
 By 50 Geo. in. c. 54, executors or personal representatives 
 of ministers whose stipends are augmented to ^150 under 
 the Act are entitled, 16, to one half-yearly moiety of the 
 augmentation to be so granted in name of ann, over and 
 above the stipend due to the deceased minister, in the same 
 manner as in ordinary stipends : and the Barons of Exchequer 
 are empowered to grant precepts for payment of this ann to 
 those having right thereto, on their receipt, without confirma- 
 tion or making up any other titles. The Act 5 Geo. iv. c. 90 
 (June 2 1, 1824), as to churches in the Highlands, provides, 24, 
 that the widow or nearest of kin of a minister of a church under 
 the Act shall be entitled to the same payments as those of the 
 parochial clergy. 
 
 When a minister leaves a widow and children, one-half of 
 the ann is payable to the widow and one-half to the children, 
 who share per capita (Children of Macdermit, 1747, M. 464); 
 when there are no children, one-half falls to the widow and 
 one-half to the minister's nearest of kin ; when there is no 
 widow, but children, they take all. If there be neither widow 
 nor children, the nearest of kin take the ann. 
 
 Ann is not included in the inventory of a deceased minister's 
 estate for confirmation (Act 1672). Ann is given the minister 
 ' on such conditions that it can never form part of his 
 executry estate, for it is never in bonis of the defunct ; but that 
 only enhances the value of the gift, for his widow and children 
 will always have a claim to it preferable to the claims of his 
 creditors' (Lord President (Inglis), Lattas case, supra, 1272).
 
 86 TEINDS IN THE PRESENT DA Y 
 
 (2) A minister of a landward, or landward-burghal, 
 parish enjoys, so long as he fills the cure, the liferent of a 
 manse, the size and comforts of which are not readily deter- 
 minable by any standard save that of Lord Kinloch (Heritors 
 of Insch v. Storie, Dec. 18, 1869, 8 Mac. 369), that 'the 
 manse of the minister should be the dwelling-house of a 
 gentleman.' The manse should have a stance of an acre, 
 stable, barn, byre, garden, etc. The up-keep and repair of 
 the manse is a burden upon the heritors, unless the manse has 
 been declared 'free.' The minister is entitled to have a 
 garden wall. That a minister may let his manse for a short 
 period was decided in the case of Aberdour, where the 
 minister for several years had let his manse furnished for two 
 months in summer while he took his family to another part of 
 the country for change of air. The duties of the parish were 
 discharged by a substitute who did not reside in the manse, 
 and the minister came occasionally to preach on Sundays. 
 The heritors having raised an action against the minister, 
 concluding for declarator that he had no right to let the 
 manse, and for interdict against his doing so, the Court 
 held that, as the letting of the manse did not injure it, 
 the heritors had no interest or title to interfere (Heritors of 
 Aberdour v. Roddick, Dec. 14, 1871, 10 Mac. 221). The 
 Lord Justice-Clerk (Moncreiff) observed : ' I do not think 
 the heritors have any title to insist in this declarator, apart 
 from their interest as liable to maintain the building. They 
 are not proprietors of the manse. Neither are they, in 
 any sense, the trustees of the property. In virtue of their 
 resulting obligation they have a title to see that the property 
 is duly administered with a view to its being kept in repair. 
 But they have nothing more ; they have no right beyond this 
 to interfere in any way with the minister's possession or 
 administration. Their right in the church and churchyard 
 stands on an entirely different footing, for as regards them the 
 minister has no patrimonial interest in either, and the heritors
 
 TEINDS IN THE PRESENT DA Y 87 
 
 have the property as administrators-in-trust. But a minister's 
 right to his manse and glebe is entirely otherwise. He is 
 more than occupant He represents and administers for the 
 series of incumbents who are collectively the proprietors. He 
 cannot affect the interest of his successors ; but subject to this 
 condition he has all the rights of a proprietor, at least so far 
 as necessary for the complete enjoyment of the subject for the 
 period of his incumbency. . . . His right is precisely of the 
 same kind as his right to the glebe. I give no opinion as to 
 how far the minister can virtually alienate the manse during 
 his incumbency, or let it for a prolonged term to his own 
 exclusion. I can conceive cases in which this might not 
 be an unreasonable exercise of his power. I can also con- 
 ceive cases in which it would be entirely inadmissible.' 
 
 (3) He is entitled to a glebe of at least four acres of arable 
 ground, or sixteen soums of pasture land, and to minister's grass, 
 i.e. land sufficient to provide grazing for two milk cows and a 
 horse. He does not appear to be entitled to ask for a wall 
 round the glebe from the heritors. He may lease his glebe 
 under certain conditions, or feu it (29 and 30 Viet c. 71). 
 
 (4) He is not liable in payment of poor-rates. See Hogg 
 v. Parochial Board of Auchtermuchty, June 22, 1880, 7 R. 986. 
 
 (5) He receives from S to ^"20 annually for providing 
 Communion elements. If the minister fails to administer the 
 sacrament at least once annually, or does not expend the 
 whole sum, the balance ought to be applied to pious purposes, 
 e.g. the relief of the poor, and the heritors may compel the 
 minister to apply it (Heritors of Abdie v. Corsan, 1713, 
 M. 2490; Heritors of Strathmiglo v. Gillespie, 1742, M. 2491). 
 When there are no surplus teinds the Court will not award a 
 sum against the heritors. If a party voluntarily undertakes to 
 supply Communion elements, his liability is only for so much 
 as may be required, although by a custom for a term of years 
 a greater quantity may have been provided (Buchanan v. 
 Magistrates of D unbar (Dunbar), Feb. 26, 1869, 6 S.L.R. 381).
 
 88 TEINDS IN THE PRESENT DA Y 
 
 The heritors provide the Communion vessels, etc. By the 
 Act 1617, c. 6, it was provided that all parish churches should 
 be provided (i) with basins and lavoirs for the administration 
 of the sacrament of Baptism, and (2) cups, tables, and table- 
 cloths for Communion. These were to be provided between 
 June 1617 and February 1618 by the parishioners, usually 
 understood here to mean heritors. The vessels, etc., were 
 committed to the charge of the pa-rish minister; he, his heirs 
 and executors, are answerable for their loss or profanation 
 (Hamilton v. Minister of Cambuslang, 1752, M. 10,570). 
 
 (6) A clergyman who is also a Dean of the Chapel-Royal 
 receives a share of the teinds of the Chapel-Royal of Stirling. 
 
 While from time to time reference has beea made to 
 vicarage or lesser tithes, the reader's attention in the preceding 
 pages has been chiefly directed to rectorial or greater tithes. 
 Vicarage tithes, indeed, continued to be paid after the Reforma- 
 tion, and are still calculable when they are traced; but the 
 right to them is lost by disuse for forty years, while the right 
 to parsonage or rectorial teinds is not lost by desuetude. 
 Whales were teinded among vicarage tithes, and certain salmon- 
 fishings have been held to be subject to valuation. 1 
 
 Berwickshire fish teinds were commuted by the Act 27 and 
 28 Viet. c. 23, and a similar claim as regards Leith by 55 and 
 56 Viet. c. 177. Vicarage teinds seem to have been generally, 
 if not always, local; so that the canon rule decima debentur 
 parocho applied more really than in the case of the parsonage 
 teinds. While teinds were defined by the canonists to be of 
 three classes personal, as of profits of personal industry ; 
 pradial, as of the natural fruits of the ground or water ; and 
 mixed, the industrial fruits of the ground only we have noted 
 supra (p. 34) that personal teinds are very rarely mentioned 
 
 1 Elliot, Teind Court Procedure, p. 76.
 
 TEJNDS IN THE PRESENT DA Y 
 
 in Scottish records. Stair says : ' Our custom alloweth of no 
 personal teinds ' (Institutions, bk. ii. tit. viii. 6). 
 
 In concluding this account of teinds, it will be noticed 
 that had the valuations introduced by Charles i. been carried 
 out all over the kingdom, the position of parties would have 
 been very different from what it now is. At the present day 
 there may be in one parish : (i) lands not liable in payment of 
 teinds, as held under titles aim dccimis indusis ; (2) lands of 
 which the teinds were valued in the reign of Charles i., and 
 then purchased, and lands of which the teinds were valued at 
 any time from 1627, but have not been purchased; (3) lands of 
 which the teinds were, say, last year valued and purchased on 
 calculations based on a very different rental ; (4) lands of 
 which the teinds have never been valued. It is highly desir- 
 able that the valuation of all teinds should be completed as 
 speedily as possible, whether they are purchased or not. Until 
 such a valuation is made, it is quite impossible to say what the 
 value of the teinds of Scotland is. It is, perhaps, little sur- 
 prising that there should be much popular misconception as 
 to when tithes are payable. They are not universal over 
 Scotland in the sense that all lands are in the same position 
 as regards tithe-paying. They are not of fixed or equal pro- 
 portions relatively to the rental of lands or their productive- 
 ness. In some parishes the teinds are exhausted, in others 
 they are not. There is, in short, no possibility of laying down 
 any general proposition relative to teinds which will be at 
 once adequate and easily intelligible. When we look at the 
 payment of tithes as conceived by the Early Christian Church, 
 on the one hand, and on the other the complicated machinery 
 which in Scotland to-day is supposed to work out results 
 similar, as regards the maintenance of clergy, to those sought 
 to be obtained by that primitive Church, something little 
 short of despair seizes the mind of any one who attempts to 
 explain the historical relationship of the one to the other. 
 Without historical inquiry the modern law of teinds is incom-
 
 90 TEINDS IN THE PRESENT DA Y 
 
 prehensible, and even with the aid of history it requires 
 patience and some study to arrive at an explanation of the 
 curious anomalies with which that law presents us. If the 
 writer has succeeded in at least providing the students of 
 ecclesiastical history and of historical law with a lantern along 
 a very obscure and dusky passage, his object will have been 
 achieved, although he may warn them that no lantern will 
 render personal investigation, and much careful picking of 
 footsteps, unnecessary. 1 
 
 1 The following books will be found useful by those who desire to 
 pursue the study of teinds further. The editions named are those which 
 have been used by the author : 
 
 Bellesheim, Alphonse, History of the Catholic Church in Scotland, 
 
 ii. 1887, iii. 1889. 
 Buchanan, Wm., Treatise on the Law of Scotland on the subject of 
 
 Teinds or Tit 'lies, 1863. 
 
 Bryce, Jas., The Holy Roman Empire (7th eel.), 1880. 
 Connell, Sir John, A Treatise on the Law of Scotland respecting Tithes, 
 
 1815. 
 Elliot, Nenion : (i) Teinds or Tithes and Procedure in the Court of 
 
 Teinds in Scot/and, 1893 5 ( 2 ) Teind Papers, 1874. 
 Freeman, Edw. A., History of the Norman Conquest tn England (2nd 
 
 ed.), 1870, vol. i. 
 Froude, J. A., 'Annals of an English Abbey, ' in Short Studies on Great 
 
 Subjects, vol. iii., 1 888. 
 
 Innes, Cosmo, Origines. Parochiales Scotiit, 1851-55. 
 ,, ,, Lectures on Scotch Legal Antiquities, 1872. 
 
 ,, ,, Sketches of Early Scotch History, 1861. 
 
 Kirkvvood, Anderson, 'On the Law of Teinds in Scotland,' Art. in 
 
 Journal of Jurisprudence, vol. xvi., 1872. 
 Milton, John, Considerations touching the likeliest means to remove 
 
 Hirelings out of the Church, wherein is also Discourse of Tithes, 
 
 etc. 
 
 Robertson, E. William, Scotland under her Early Kings, 2 vols., 1862. 
 ,, ,, Historical Essays in connection with the Lan,/, 
 
 the Church, etc., 1877. 
 Robertson, Jos., 'Scottish Abbeys and Cathedrals,' Art. in Quarterly 
 
 Review, Ixxxv., 1849.
 
 TEINDS IN THE PRESENT DAY gi 
 
 Selborne, Earl of, Ancient Facts and Fictions concerning Churches and 
 
 Tithes, 1888. 
 
 Selden, John, The Historic of Tithes, 1618. 
 
 Skene, W. F., Celtic Scotland, vol. ii. ' Church and Ctilture? 1877. 
 Stair, Lord, Institutions of the Law of Scotland, ed. by J. S. More, 
 
 1832. 
 Story, Rev. R. H., D.D., The Church of Scotland Past and Present, 
 
 N.D. 
 Spotswood, J., History of the Church and State in Scotland (4th ed. ), 
 
 1677. 
 
 Stubbs, Bishop, Constitutional History of England, 3 vols., 1 880. 
 Thorpe, B., Ancient Laws and Institutes of England, vol. i., 1840,
 
 CHAPTER VI 
 
 THE SURVIVAL OF THE OLD CHURCH 
 
 THE differing characteristics of the three kingdoms are curi- 
 ously illustrated by the effect of the Reformation in each. 
 In England, the form taken by the Reformed Church is 
 frequently called Episcopalian not in itself a good term, for 
 the Church of Rome was Episcopalian too, but significant of 
 the fact that of two forms of Church government denying the 
 supremacy of the Roman pontiff the English nation preferred 
 that which provided for diocesan superintendence by bishops. 
 In Scotland the national preference for the Presbyterian form 
 was as markedly shown, for the occasional intervals of Epis- 
 copal government in Scotland were as meaningless as was the 
 interval of Presbyterianism in England. The non-Episcopacy 
 of the Protectorate days serves as a convenient contrast to the 
 Episcopacy which with that exception is uninterrupted from 
 the reign of Elizabeth to that of Victoria. The non-Presby- 
 terianism of James vi. and Charles i. in like manner, but the 
 clearer marks out the Presbyterianism of Scotland from Mary's 
 reign till now. In Ireland the Church of Rome sat firm, but 
 was Reformed within herself, and the Episcopal Church, which 
 the Government long recognised, was as little the Church of 
 the people as a whole as was the vigorous Presbyterian Church 
 of Antrim and the north. 
 
 Now that Ireland, like the United States, has no Established 
 Church, she completes the circle of contrasts. In England,
 
 THE SURVIVAL OF THE OLD CHURCH 93 
 
 the Presbyterians and Roman Catholics are dissenters; in 
 Scotland, the Roman Catholics and Episcopalians are dis- 
 senters ; in Ireland, Presbyterians, Episcopalians, and Roman 
 Catholics are all on the same level, but, practically, Presby- 
 terians and Episcopalians are, as regards the bulk of the 
 population, dissenters there. Thus the effect of the Reforma- 
 tion in the three countries is seen in each in a different way. 
 As the peoples of the three kingdoms are different, so are the 
 forms of their religion. 
 
 In large measure the ultimate adoption of one mode of 
 Church government over another was political. To the 
 Englishman the Church of Henry vin., of Edward vi., of 
 Elizabeth, was a symbol of political protest against the notion 
 that any but Englishmen should bear rule in England ; in 
 Scotland Presbyterianism meant as clearly that no English 
 custom favoured by the later Stuarts should overcome the 
 Scottish preference for the early Church of the Reformers ; and 
 in Ireland, during centuries, the Church of Rome, recruited 
 from the ranks of the Irish peasantry, stood out to Ireland's 
 wandering sons as the only truly national thing left to Erin. 
 Thus, looked at from the lowest point of view, the Church of 
 each country was its political symbol. It is still so in Ireland ; 
 Presbyterianism is still so in Scotland; and if it is not so in 
 England, it is because England, the largest and richest partner 
 of the concern, has grown so contented, or so forgetful, as to 
 fail to recall how in the old days the history of the Protestant 
 Church and her own were identical. 
 
 Reflections such as these are suggested by the perusal of 
 the History of the Catholic Church in Scotland, by Dr. 
 Bellesheim, Canon of Aix-la-Chapelle, which has been trans- 
 lated into English by Father Oswald Hunter-Blair, and to 
 which frequent reference has been made in the preceding 
 chapters. 
 
 It is of great service to have the facts relative to the old Scot- 
 tish Church clearly and succinctly stated from the Catholic point
 
 94 THE SURVIVAL OF THE OLD CHURCH 
 
 of view, especially by one who is so far removed from Scottish 
 environment as to be able to view Scottish politics and Scottish 
 sects from a point which is comparatively neutral. Canon 
 Bellesheim's History may with profit be read in company with 
 Principal Lee's Lectures on the History of the Church of Scotland, 
 from the period of Queen Mary's arrival in Scotland till her ab- 
 dication. To read the Canon's work, one would scarcely sup- 
 pose that a vigorous established Presbyterian Church was in 
 existence from 1560, although in that year the Articles of the 
 Confession were ratified by the three Estates ; while the reader 
 will seek in vain in the pages of many Presbyterian writers for 
 any hint that during Mary's brief tenure of actual power the 
 Pope was so little conscious of there having been a religious 
 revolution in Scotland, that in 1562 he urged Mary to send 
 bishops and an ambassador from Scotland to join in the de- 
 liberation of the Council of Trent. 1 This does not indicate 
 that the historians of either party are wilfully partial to their 
 own Church, or unfair to the other, but that Presbyterian and 
 Catholic alike stick each to his appointed task, and conse- 
 quently that in the work of the former the rapid rise of the 
 Reformed Church stands out as the salient feature of the age, 
 while in that of the latter it is the tenacity of the hold of the 
 Catholic Church in Scotland which rivets the attention. One 
 must welcome all the light possible about this puzzling chapter 
 of Scottish religious history. Which was the Church of 
 Scotland in King James's childhood depended entirely upon 
 the mental standpoint of the Scotsmen of the day. Un- 
 doubtedly the Articles were ratified in 1560, but they were 
 not recorded among the Acts of Parliament for some 
 years afterwards. Again, among the members of Parliament 
 who attended, and did not oppose the adoption of the 
 
 1 The Pope had in the previous year sent Mary the Golden Rose, with a 
 letter in which the Holy Father speaks of the Queen as of one ' who, like 
 a most fair rose among thorns, diffuses far and wide the sweet odour of her 
 /aith and good works.'
 
 THE SURVIVAL OF THE OLD CHURCH 95 
 
 Protestant confession, were very many of the leading Roman 
 Catholic ecclesiastics of high rank. Their action is truly 
 inexplicable, except upon the somewhat risky grounds sug- 
 gested by Bellesheim, that they did not regard the Parliament 
 as a legal one, the Estates having met without the Queen's 
 writ. In that case they might surely have stayed away, or 
 (like four of their number) they might as a precautionary 
 measure have voted against the adoption of the new Articles. 
 ' Considering that the manifesto of the Reformers was laid 
 before the Parliament on August 5th/ says Bellesheim, 'and 
 that the debate was not opened until the lyth, there would 
 seem to have been amply sufficient time, not only to have 
 studied this document, but to have prepared an effectual 
 rejoinder to it.' The clergy apparently did not believe that 
 the crisis was serious, or else they were so thoroughly satisfied 
 with the prospect of retaining their livings for their lifetime 
 without the necessity of undertaking any clerical labour, as to 
 lean, politically, rather to the side of the Reformers, which 
 afforded them the greatest chance of enjoying ease without 
 work. This seems borne out by the answer of Mary herself 
 to Nicholas Goudanus, the Papal Nuncio, who visited Scot- 
 land in 1562, when he spoke of the Papal letters he was 
 instructed to deliver to the Scottish bishops, that the Nuncio 
 could only deliver them safely to the Bishop of Ross, who was 
 President of the Court of Session. Ultimately, all the letters 
 were handed to the Queen's private secretary. The Nuncio, 
 under such circumstances, was scarcely likely to be favourably 
 impressed by the clergy ; and in his narrative he mentions 
 how * one day, close to the place where I lodged, three priests 
 publicly abjured the Catholic faith; and another time, 
 while I was there, one of the principal superintendents, a 
 doctor of theology and a monk, then about seventy years of 
 age, was openly married.' 
 
 In 1564 the Pope, still loftily ignoring that anything had 
 happened to make his advice absurd, urged the Queen to
 
 96 THE SURVIVAL OF THE OLD CHURCH 
 
 dismiss all heretics from high offices of State, and desired the 
 two metropolitans of Scotland to see that the Tridentine 
 decrees were duly enforced, which it was manifestly impossible 
 they could be, for the Archbishop of St. Andrews was in 
 prison and he of Glasgow in exile. Yet Mary's marriage 
 with Darnley was celebrated according to the ritual of the 
 Roman Church ; James vi. was baptized at Stirling according 
 to the same ritual. Indeed, James himself, while he was 
 King of Scots, was believed not to be wholly without leaning to 
 the Church of Rome ; but two excellent reasons told strongly 
 against any open encouragment of that Church, the first being 
 his desire to remain on the most friendly terms with Queen 
 Elizabeth, and the other (as appears from a contemporary 
 estimate of his character which Father Hunter-Blair translates 
 in the appendix to vol. m. of Bellesheim's History] that he 
 feared his title to the throne, and the prolongation of his 
 reign, 'would be in the greatest jeopardy were the Supreme 
 Pontiff to be restored to his former rights over the Church, 
 and, as it were, to a share in the government of the realm, the 
 King being deprived of his ecclesiastical jurisdiction, that is 
 of half the powers he now enjoys ; and this, he believes, would 
 certainly follow, if he suffers the Catholics to grow and 
 increase in numbers.' It does not appear nowadays that it 
 would have made much difference had King James declared 
 himself a Catholic. The Reformation had been too sweeping 
 in its character to admit of being stopped by King James's 
 displeasure. When it is considered how little effect the pre- 
 latic preferences of that King in his English clays or of King 
 Charles had upon the Scottish Church, it may safely be averred 
 that the Roman Catholic form of religion, even if supported 
 by the king, had little chance of being established again. 
 No doubt there were very many in Scotland who were sincere 
 Catholics long after the days of Knox. The religion of a 
 nation is not changed in a day. The men of the Reformation 
 had all been educated under the Catholic Church, and their
 
 THE SURVIVAL OF THE OLD CHURCH 97 
 
 orders were those of that Church. The Reformation in its 
 inception, further, may be said, like most popular movements, 
 to have come forth from the lower middle classes, or, more 
 correctly, the upper lower classes. They were the class who 
 contributed to the ordinary priesthood. The Church itself 
 had long been conscious of the abuses in her midst, and so 
 far as good resolutions went the leaders of the Church were 
 determined on reform. Practical reform was, however, hope- 
 less, because the nominal holders of so many Church offices 
 were, as we have seen, laymen, bastards, or favourites of kings, 
 men who monopolised the richest revenues and left the inferior 
 offices badly paid or neglected. This was all very clear to the 
 men who entered the priesthood. At that time, and for six 
 hundred years previously, the only entrance to political life 
 for a man who was not a noble was through the Church. It 
 was almost the only liberal profession, and it monopolised 
 the intellect of the age. By this monopoly the clergy controlled 
 the politics of the kingdom. The nobles avenged themselves 
 by taking clerical offices in many cases, so as the better to 
 qualify for political influences, or to command the revenues 
 which would further political ends; and as for the hungry 
 sheep they looked up and were not fed. The rotten state 
 of the Church was very visible to two out of three social 
 classes. The nobles saw in the Church an institution mono- 
 polising political power and with great revenues. The middle 
 class, particularly those of it who entered the Church, saw 
 that the intrusion of the nobility and the conversion of a 
 sacred into a secular organisation made all true development 
 of religious zeal or any adequate reforms of the Church 
 impossible. The Reformation was therefore joyfully hailed by 
 the two classes for very different reasons. The nobles saw 
 politics emancipated from the skirts of the monk, and saw 
 too the possibility of sharing in the division of the Church's 
 patrimony which was almost inevitable ; the loyal clergy, on 
 the other hand, the men who groaned under the miserable 
 G
 
 98 THE SURVIVAL OF THE OLD CHURCH 
 
 mismanagement and apathy which characterised the Church 
 during the long minorities of the Scottish kings and the 
 disorders of their brief majorities, with gladness welcomed the 
 light from over the sea which made religion once more a 
 living thing in the land. No doubt both classes were deceived 
 in each other. The politician did not look for the pious zeal 
 for religion and education which distinguished Knox and 
 his followers; nor, on the other hand, did. the clergy expect 
 that the nobles who had expressed solicitude for reformation 
 were to appropriate the Church's revenues. Still, both classes 
 knew what the Reformation was, or what each meant it to be, 
 and had each too strong an interest in furthering its triumph to 
 permit of allowing its enemies to reassert themselves. The 
 politicians bore as well as they could the scoldings of the 
 clergy 'old priest writ large,' indeed comforted by their 
 political emancipation, and the clergy, poverty-stricken and 
 robbed though they knew the Church to be, counted that as 
 little compared with the purity of administration and sim- 
 plicity of worship which were the certain inheritance of God's 
 people in Scotland. But there was a third great class, the 
 men and women who lived in quiet villages in distant 
 counties, to whom politics had no meaning, to whom the 
 Church was all the intellectual life they knew, who had been 
 baptized by priests and married by priests, and hoped to 
 receive the last communion from priestly hands. News 
 travelled slowly in those days, and that there should be con- 
 fusion of tongues in Edinburgh, or a battle lost near Glasgow, 
 was no reason why, in the islands of Argyll or the hills of 
 Aberdeenshire, the priest should be sent packing. The 
 Reformation in Scotland, no doubt, was nominally accom- 
 plished with some rapidity, so far as the State qua State was 
 concerned ; but it took a long time before the Presbyterian 
 form of worship actually replaced the Roman Catholic form 
 in the country places. A change of Church government so 
 vital did not come into operation with the swiftness of a
 
 THE SURVIVAL OF THE OLD CHURCH 99 
 
 modern Act of Parliament creating a school board in each 
 parish or a council in each county. Not, indeed, that even 
 those are fair subjects for comparison ; for after all they are 
 purely civil changes, whereas the change wrought by the 
 Reformation, so far as country folks went, was mainly that of 
 doctrine and ritual, and in many places the people were con- 
 tent enough with the old ways. 
 
 We may pass by the record of the Church of Rome in 
 Scotland, from James's succession to the English throne to the 
 time of Queen Anne, without remark. No period of Scotland's 
 religious history is so well known. The persecutions of 
 Covenanters, the rabbling of curates, the see-saw of Presby- 
 terianism and Episcopacy bear the most momentous evidence 
 to the fact that Scotland had at least turned her back upon 
 Rome. There were still many noble families who remained 
 Catholic still more who were but Protestants in name ; but 
 the country was undoubtedly lost to the Pope. The hierarchy 
 ceased to be ; Propaganda did not intermit interest in Scottish 
 affairs, but it was the interest taken in a heathen land. 
 Emissaries were from time to time despatched from Italy to 
 report upon the state of things political and religious in 
 Scotland ; and with no little danger to themselves for each 
 priest's head meant a high reward they gave in their per- 
 fectly frank and thoroughly honest reports on the desperate 
 state of the realm of the Stuarts ; Rome has ever been well 
 informed. 
 
 In the first yearsof the eighteenth century the Roman Catholic 
 form of religion was almost extinct in Scotland. Masters were 
 forbidden to employ Catholics even in domestic service, and the 
 hunt for priests was vigilant and unceasing, five hundred marks 
 being offered by the Privy Council to any one apprehending a 
 priest. A return of ' Popish parents and their children in various 
 districts of Scotland, as given in to the Lords of the Privy 
 Council and to the Commission of the General Assembly, 1701 
 to 1705 ' (Maitland Club publications) assigns 160 Catholics to
 
 ioo THE SURVIVAL OF THE OLD CHURCH 
 
 Edinburgh, five to Leith, twelve to Glasgow, and twenty to 
 Perth. In the Highlands and Islands, however, things were 
 different. South Uist and Barra, Canna, Rum, and Muck 
 were entirely Popish. In Knoydart and Moray there were 
 only four Protestants, in Arisaig, Moydart, and Glengarry but 
 one. In all there were about 4500 Catholics, with six priests, 
 while there were only five Protestant ministers, in the whole 
 bounds of Skye Presbytery. The Jacobite rising of 1715 
 caused the few Catholics of the North to be subjected to 
 fresh sufferings ; but Bishop Nicholson, who, dressed as a 
 layman, discharged with great difficulty and danger the duties 
 of Scottish vicar-apostolic, was able to found the little seminary 
 of Scalan, on the Braes of Glenlivat, a secluded spot, only 
 accessible by a bridle-path. In 1730, while the report to 
 Propaganda was that the increase in the number of Catholics 
 was considerable, it is mentioned with grief that persecution is 
 so rife that the people are often by force and blows compelled 
 to enter the Protestant churches. Bishop Macdonald in 1745 
 knew the state of the Highlands very much better than the 
 Continental advisers of Prince Charles, and when the prince 
 landed, he urged him to return at once to France. The Prince 
 refused to desert the followers who gathered to greet him, and 
 the disapproving prelate was carried to Glenfinnan to bless the 
 royal standard. Of course, the defeat of Culloden was signal 
 for a fresh persecution of the Catholics. The bishop fled to 
 France, but returned four years later under the pseudonym of 
 ' Mr. Brown ' to continue his ministrations as best he could. 
 The vineyard had indeed been well-nigh destroyed. Besides 
 the Highlanders who fell in battle, a thousand had been trans- 
 ported to America, the Catholic chapels were destroyed, the 
 little seminary at Scalan plundered, and the missals and vest- 
 ments publicly burned. Nor did the fever soon cease. In 
 1755 'Mr. Brown' was arrested, and on ist March 1756 the 
 High Court of Justiciary at Edinburgh, in punishment for his 
 refusal to ' purge himself of Popery,' sentenced him to banish-
 
 THE SURVIVAL OF THE OLD CHURCH 101 
 
 ment for life under pain of death if he returned to Scotland. 
 This seems to have been the end of the matter ; he was never 
 again out of Scotland, he was not kept in prison, but quietly 
 discharged his episcopal functions in the Highlands until his 
 death seventeen years afterwards. 1 In 1770 the Catholics of 
 South Uist were subjected to such active interference, however, 
 that Bishop Hay raised subscriptions to defray the cost of 
 transporting the entire people to America ; and in 1802 the 
 same prelate thought the best thing to do with the Catholics 
 who had formed the 'Glengarry Fencibles,' on their being 
 disbanded, was to procure their settlement in Canada. In 
 1800 the number of Catholic churches in Scotland was twelve, 
 with three bishops and forty priests. During the first quarter 
 of this century an enormous increase in the number of ad- 
 herents took place. The 1000 Catholics of Edinburgh and 
 Leith of 1800 had become 14,000 in 1829, and similar 
 increases had taken place all over the country. The great 
 modern development of the Roman Church did not, however, 
 begin until the Catholic Emancipation Act was passed in 1829. 
 It cannot be said it was the wish of Scotland that the Act 
 should pass, when we read that 18,000 persons in Edinburgh 
 and 37,000 in Glasgow petitioned against it ; but Sir Walter 
 Scott, Dr. Chalmers, Lords Jeffrey and Cockburn were on the 
 side of religious freedom and tolerance. With one bound the 
 Church sprang forward, although its great increase of members 
 is due principally to the huge influx of Irishmen to Glasgow 
 and the towns of the West of Scotland. 
 
 1 Glengarry and Barra figure in Dr. Bellesheim's pages in strange dis- 
 proportion to their modern importance. There was, however, even in the 
 bitter times of 1675, a Catholic school in each place the only Catholic 
 schools in the Highlands. It is grimly suggestive of the Pope's real know- 
 ledge of Scotland to read that ' Propaganda would appear to have been 
 disposed at first to insist on Catholic children being sent to those schools 
 from all parts of Scotland' ! Minster, the prefect of the then Catholic 
 Mission, however, assured the Cardinals that Catholic parents would as 
 soon send their children to Jamaica as to the island of Barra. Perhaps 
 then the maps were searched for that lonely place.
 
 102 THE SURVIVAL OF THE OLD CHURCH 
 
 With the restoration of the hierarchy in 1878 the present 
 history of the Church ends. The restoration seems to have 
 been due in great measure to the attitude of the Episcopal 
 Church in Scotland, regarding which Dr. Bellesheim is remark- 
 ably frank : 
 
 ' It was on the members of this body that the erection of a 
 true ecclesiastical hierarchy might be expected to make the 
 most forcible impression. Their numbers amounted to some 
 55,000, nearly all belonging to the better classes, and in con- 
 sequence possessed of considerable influence. A section of 
 the body was known to approximate both in doctrine and in 
 ritual observance to the forms of the Catholic Church ; and it 
 seemed as though before long there would be but one point 
 of difference between Catholics and themselves namely, the 
 obedience which the former rendered and the latter refused 
 to the Holy See. Under these circumstances the revival of a 
 national hierarchy was greatly to be desired ; and indeed, if 
 they retained any longer than was absolutely necessary eccle- 
 siastical designations borrowed from heathen countries, 1 the 
 effect, especially on recent converts, could not be but highly 
 detrimental, and might lead to consequences whose extent it 
 was impossible to foresee ' (vol. iv. pp. 301, 302). 
 
 We have now rapidly surveyed the history of the Roman 
 Catholic Church in Scotland since it ceased to be the Church 
 of the people. It is interesting, however, to inquire what 
 remained of its ecclesiastical order in the parishes of Scotland. 
 What did the Reformed Church keep of the elaborate parochial 
 system which had been developed by the most diplomatic and 
 far-sighted Church the world has ever known ? The Reformers 
 did not raze the tablets. Sometimes people speak as if they 
 
 1 The titles of the bishops in partibus iiifidelium were strange. Bishop 
 Chisholm was Bishop of Diocaesarea ; Bishop Macdonald was Bishop of 
 Acryndela ; Bishop Gray was Bishop of Hypsopolis, and Bishop Lynch of 
 Arcadiopolis. Eretria, Castabala, Parium, Anazarba, and Diana are 
 amongst the simplest titles.
 
 THE SURVIVAL OF THE OLD CHURCH 103 
 
 did. They did not map out fresh parishes, or destroy the 
 parochial institutions ; on the contrary, they took the Church 
 as it was, and endeavoured with as little change as possible to 
 modify the parochial system as it was in the pre-Reformation 
 days into the system now familiar to us. A Presbytery re- 
 placed a bishop, a Synod an archbishop, and government 
 by individuals gave place to government by committees. It is, 
 however, when we wander into the domain of parochial eccle- 
 siastical law that we find how few and slight, comparatively, 
 were the changes made on that law by the Reformation a 
 subject, however, so large that we can only lightly touch upon 
 it here. 
 
 The Reformation, with all its noise, made, as we have seen, 
 little difference in the quiet country places ; it made scarcely 
 any upon the parochial law of the Church, even though the 
 Church lost more than two-thirds of her endowments, and for 
 years was crippled by her great needs. The law, so far as 
 regarded the maintenance of the church and manse, knew 
 little change. What change there was was due to the Church's 
 poverty, which could not well contest the claims of the heritors 
 or landowners to ownership of the Church lands, since those 
 landowners were required to provide the money for its build- 
 ings and their repair. The old days when the minister was 
 solemnly ' inducted ' into his church, and received the Bible 
 and the church keys as signs of his authority, passed away ; 
 the kirk-session took charge of the order of divine service, 
 and the grumbling landowners kept the keys ; the minister 
 became (what he is now) merely a ministrant in an edifice 
 over which he has no shadow of control. 
 
 Wretched churches, many of them, must have been those in 
 which the preachers of the Reformation and of the century 
 following met their flocks. They were small, often thatched, 
 but seldom water-tight, with earthen floors, and windows 
 which as a rule were not glazed and had to be closed in case 
 of stormy weather. The men of the congregation stood
 
 104 THE SURVIVAL OF THE OLD CHURCH 
 
 about as they best might, the women brought their ' creepies ' 
 with them, or squatted on the floor with their plaids over their 
 heads. The children played and ran about the church when 
 they escaped their elders' eye, for more often than not the 
 building was their week-day school-room, with which they 
 were but too familiar. There were few pews in Scottish 
 Churches until the middle of the seventeenth century, for up 
 to the time of frequent and long sermons no seats were needed. 
 When the Holy Communion was partaken of, forms were placed 
 in the church ; or if the space was insufficient, the sacrament 
 was celebrated in the graveyard. Two of the most significant 
 changes in the ritual after the Reformation were of course the 
 tendering of the wine, as well as of the bread, to the people, 
 and that all partook sitting reverently together; those were 
 matters of ceremonial not without their influence on the 
 economy of the Church, but outside the Church the old laws 
 of the parish still guided the people. Generation has passed 
 after generation into forgetfulness, but those laws some of 
 them little fitted for modern days still regulate parish affairs. 
 The Legislature has now and again stepped in to alter this or 
 that ancient custom, to reduce the law as to the repair of 
 churches and manses to something like order, as by the 
 Ecclesiastical Buildings Act of 1868 a task but partially 
 successful or to place the control of the parish school in new 
 hands, as by the Education Act of 1871 ; but as a rule the 
 parochial ecclesiastical law of Scotland still rests on the law 
 of the pre-Reformation Church of Scotland, and it is not sur- 
 prising that some of it should seem out of date. The Church 
 government by Kirk-sessions, Presbyteries, Synods, and 
 Assembly is simple, and not liable to much misunderstanding. 
 But when we turn to the position of the Church and the 
 minister in their relation to the parishioners, the matter is not 
 so clear. 
 
 In every parish we find a church. Who pays for the main- 
 tenance of that church ? The answer would usually be the
 
 THE SURVIVAL OF THE OLD CHURCH 105 
 
 heritors, i.e. the proprietors of land in the parish. But this 
 would depend, to begin with, on what kind of parish the 
 church is situated in. In a parish quoad sacra (that is, a 
 parish which has parochial boundaries only for ecclesiastical 
 purposes, and not for civil purposes, such as education, relief 
 of the poor, etc.) there is no burden on the heritor to maintain 
 the church. That 'must be done by the congregation. But 
 every quoad sacra parish is part of a larger and older parish, 
 quoad omnia, and for the maintenance of its church every 
 heritor is liable. 
 
 But how and to what extent is the heritor liable? He 
 pays assessments, it will be answered, on the valuation of his 
 lands within the parish. True, but there may be two ways of 
 assessing heritors ; they may be assessed on the ' valued rent,' 
 a computation of values in Scots money which originated 
 during the Protectorate, or they may be assessed on the ' real 
 rent,' i.e. the rent as appearing from the valuation roll of the 
 year of assessment. The amounts are, of course, ridiculously 
 different, but the sum actually obtained is not in any way 
 affected by the methods of computation. When an assessment 
 is imposed on the 'valued rent,' it is imposed at the rate of so 
 many shillings sterling per pounds Scots ; when it is imposed 
 on the real rent, it is imposed at the rate of so many pence 
 per pound sterling. When an assessment may and when an 
 assessment must be imposed on either the one scale or the 
 other, are matters depending purely on circumstances such 
 as whether the church was built and the seats therein allo- 
 cated among valued rent heritors prior to 1868. The law 
 of the subject must be extricated from dozens of contra- 
 dictory cases. 
 
 When we have arrived at this, that the Church must be 
 maintained (in a rural district at least) by the heritors on the 
 real or the valued rent-roll, we may safely affirm that the 
 Church is the property of the heritors. This is established 
 law. But what of the churchyard ? Of course it is also under
 
 106 THE SURVIVAL OF THE OLD CHURCH 
 
 the heritors' control ? Before that question can be answered, 
 we must know whether the churchyard was in use before the 
 year 1560 or not. If it was, then the heritors are absolute 
 proprietors of the churchyard in a fiduciary character for the 
 parish. If it is a churchyard of later date, then there is also 
 a ^watt-ownership in the families for whose burial-places 
 certain lots have been apportioned ; and it is not clear that the 
 kirk-session have not also a voice in the matter, while in the 
 case of a churchyard attached to a landward burghal parish 
 the burgh magistrates also are not without jurisdiction. 
 
 From the church and the graveyard we pass on to the 
 manse. Every parish has not a manse. A minister of a 
 burghal parish is not entitled to one, neither is the minister of 
 a parish quoad sacra. A minister of a country or landward 
 parish is undoubtedly entitled to a manse ; and by reading 
 one Act of Parliament into another, and by a long series of 
 decisions, the minister of a burghal landward parish has also 
 secured his right to a manse. 
 
 We shall assume we are dealing with a country manse. 
 Are the heritors liable for its upkeep ? If they are liable for 
 the church, they must be liable for the manse, it might be 
 answered, for the manse is a pertinent of the church ; there 
 may be a church without a manse, but there can scarcely be a 
 manse without a church. But the law has something to say 
 about the manse as distinguished from the church. It may 
 be a ' free manse.' If the heritors put the manse in a perfect 
 state of repair, they are entitled to call upon the Presbytery to 
 inspect the manse ; and if the Presbytery is satisfied with the 
 thoroughness of the work, the heritors are declared to be free 
 from liability for the upkeep of the manse during their 
 minister's incumbency. This is a delicate matter, for ministers 
 are, as a rule, not very desirous of having a ' free manse,' when 
 otherwise all the repairs would require to be paid for by the 
 heritors. On the other hand, if the manse becomes 'free,' 
 the heritors have an uncomfortable feeling that were the cure
 
 THE SURVIVAL OF THE OLD CHURCH 107 
 
 to become vacant by the ' call ' of their minister to another 
 parish, or by his death, the whole work of repair might require 
 to be done over again, with the risk added that, the occupant 
 of the ' free ' manse having spent as little of his own money 
 as he could, the probable state of the building would cause 
 serious outlay to be incurred. 
 
 The imposition of heritors' assessments for the upkeep of 
 church and manse is not at present entirely satisfactory. The 
 system is full of anomalies, and is not devoid of abuses. The 
 church is open to all the parish, for there are no seat rents 
 (except in quoad sacra churches) ; the liability of the heritors 
 for ecclesiastical assessments is independent of whether they 
 go to the parish church or not. From time to time unpleasant 
 scenes occur when dissenters refuse to pay those rates ; and 
 nothing is gained to the dignity of the National Church by petty 
 squabbles about a few shillings for the amount of the assess- 
 ment is seldom a matter of much moment. Ecclesiastical assess- 
 ments are irregular. They are not imposed annually, but only 
 when the heritors (who themselves impose the assessment) 
 are satisfied that money must be raised. The amount is 
 generally inconsiderable if one regards the value of the heritor's 
 property ; and we never heard of a case where liability for 
 such occasional assessments in the least affected the selling 
 value of a property, or a purchaser's intention to buy. The 
 desirableness of amending the incidence of ecclesiastical 
 assessments is, however, scarcely questionable. 
 
 We have said above that no seat rents are chargeable 
 except in quoad sacra parishes. This is perhaps sometimes 
 forgotten, and parishioners are charged for their sittings. 
 This is entirely against the law. There were no pews prior 
 to the Reformation. The area of the church was free to the 
 parishioners. By-and-bye permission was given to heritors 
 to put up fixed seats or galleries or lofts in the church, so 
 that particular persons or corporations should have comfort- 
 able accommodation. It is clear the kirk-session had nothing
 
 io8 THE SURVIVAL OF THE OLD CHURCH 
 
 to do with the matter by law, for only the heritors can autho- 
 rise or forbid alterations in the sacred edifice; but as a matter 
 of convenience the kirk-session sometimes represented the 
 heritors and gave the required leave. The appearance of a 
 church with odd boards or pews here and there must have 
 been very unseemly, and the next step was for the heritors to 
 seat the entire church. Then the sittings thus provided were 
 allocated amongst the heritors of the parish, so that each had 
 seats for himself, his family, his tenants, and his servants 
 Thus every class of person in a rural parish was provided for. 
 The heritors' right to this accommodation is a matter of fixed 
 law. How seat rents crept in, it is, however, not difficult to 
 see. When the area of a church was once allocated, no 
 reallocation was possible (this is still the law) until a new 
 church was erected ; but heritors died, lands changed hands, 
 one man had no room for his tenants, another had too 
 much, and the space of A. was taken by B. for hire. Cor- 
 porations had far more sittings than they used, and even 
 within recent times the occupiers have been charged with 
 seat rents. Again, here and there a hamlet swelled into a 
 large village, and artisans who were not heritors, nor servants, 
 nor tenants, properly speaking, of heritors, required seats. 
 Dissent was always causing little breaks in a congregation ; 
 the seats of the Auld Lichts were vacant in the parish church : 
 what was to prevent the kirk-session turning an honest penny 
 by letting those vacant seats to the artisans who (it was 
 assumed) had no vested right to free seats? All this was 
 totally wrong. Seat rents in parish churches are not legally 
 chargeable, and never have been. Nor is the right of a heritor 
 to his seat a right of exclusive occupancy, like his right to 
 interment in the family burial-place in the graveyard. He 
 has a right to accommodation only ; if he does not use all the 
 sittings allocated to him, they are free to any other parishioner. 
 No heritor is entitled to let his seat for his own benefit ; no 
 kirk -session is entitled to let sittings ; no heritor or kirk-
 
 THE SURVIVAL OF THE OLD CHURCH 109 
 
 session can sell sittings ; and yet all those things have been 
 done. One corporation till a few years ago used to spend the 
 money it received as seat rent on an annual jovial supper ! But 
 magistrates in burghal parishes may legally let their allocated 
 sittings if they apply the money to defraying the cost of church 
 repairs ; and heritors may sometimes even let their seats else- 
 where if the rent is applied to the support of the poor, or to 
 some other appropriate pious use within the parish. Such are 
 the whims of the law; but we see that except in quoad sacra 
 parishes, where pew rents are, by statute, leviable, the law is 
 as it was before the Reformation, i.e. the area is free to all the 
 parish for religious purposes, pews or no pews, whatever local 
 custom may say to the contrary. The minister is paid by the 
 stipend localled or charged upon the parish teinds, the church 
 is maintained by the heritors, the relief of the poor is provided 
 for by statute or by church-door collections ; the church is for 
 the people to worship in, free to all who can find room in it. 
 
 The above observations refer to landward or rural parishes 
 only. In cities the difficulties attending the survival of the 
 old parochial system are quite different. It is an essential of 
 proper parochial government that the church and manse of a 
 parish should be within that parish. The Roman Catholic 
 Church in its ' missionary districts ' (so it terms its parishes in 
 Scotland), whenever it erects a church, builds adjoining it a 
 house for clergy ; and the priest lives there because he 
 may be sent for at any moment. This is the true ideal of 
 parochial government, for the people of a city have as much 
 right to the comforting words of their minister as have 
 rural parishioners. The custom of the Presbyterian city 
 minister makes this too often impossible. He has no manse, 
 and therefore has to provide himself with a house, and unfor- 
 tunately he too often finds it outside the boundaries of his 
 parish. The parishioners may or may not have a missionary 
 in their midst. It is not too much to say that when clergymen 
 undertake to serve the cure of a city parish they should live
 
 i io THE SURVIVAL OF THE OLD CHURCH 
 
 amongst its people ; if a clergyman cannot fulfil his duties, he 
 should not accept the charge of a parish. What the clergy of 
 the Roman Catholic Church can do, the clergy of the Protes- 
 tant Church of Scotland should be able to do. The law of the 
 Church prior to the Reformation as to parochial residence was 
 sometimes transgressed owing to the attractions of neighbour- 
 ing religious houses and their cultivated society; but it was over 
 and over again repeated by diocesan synod and by bishop 
 that a priest must reside in his parish. This is still the law of 
 Scotland. There is little wonder that the Roman Catholic 
 Church, with its ministering servants resident among the 
 people, ever ready to afford them the consolations of religion, 
 is making strides in our great cities. 1 
 
 The task of recapitulating the numerous instances in which 
 pre-Reformation law or custom still regulate the parochial 
 ecclesiastical law of Scotland is one which cannot be accom- 
 plished in a chapter. The Church in Scotland and the law 
 relative to it have made several easily marked and easily 
 known changes since allegiance to Rome was thrown off; but 
 the broad rules which the Roman Church prescribed for the 
 maintenance of the clergy by tithes and the ecclesiastical 
 administration of the parish have proved as permanent as that 
 Church herself, despite all the vicissitudes through which they 
 have passed since the Roman Catholic ecclesiastics of 1560 
 gave their vote for the Reformation which they so little under- 
 stood ; and where parish law is now different from what it was 
 then, the history of the divergence is not difficult to trace. 
 
 1 ' Parish priests are bound at least jure ecclesiastico, and that sub 
 gravi to reside in their parishes. . . . The duty of residence, which is 
 particularly urgent during contagious diseases, comprises not only the 
 obligation of physical dwelling in the parish, but also,' etc. Elements 
 of[ Roman Catholic] Ecclesiastical Law, by S. B. Smith, D.D., 1887, 
 i. pp. 438-9.
 
 By the Same Author, Recently Published. 
 
 A Handbook of the Parochial Ecclesiastical 
 Law of Scotland. 
 
 2nd Edition, 8vo, 8s. 
 
 ' The work has stood the test of constant consultation with the best 
 results ; and it now enjoys a deservedly high reputation as a useful and 
 trustworthy manual of a branch of the law of Scotland, books about which 
 are scarce.' Scotsman. 
 
 ' Mr. Black's excellent manual. ' Scottish Law Review. 
 
 ' We can recommend it as reliable. ' Journal of Jurisprudence. 
 
 Also Now Ready. Price Ss. 
 
 Parochial Law other than Ecclesiastical. 
 
 A Vacle Mecum of Parish Law. 
 
 Edinburgh : WM. GREEN & SONS, and all Booksellers.
 
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