BOOK I.

Ancient times of sitting of the several courts.

Times of sitting at present.

1749, Couts, (DICT. p. 7341,) that the sentences pronounced by the Conservator were not subject to the review of the court of session, though a complaint might possibly lie against them to the King and council, as was the case with regard to judicial proceedings in the American colonies; and this decision seems to receive some support from 1503, C. 82. But it would appear, that if our supreme court has truly a cumulative jurisdiction in the first instance, as to the causes cognisable by the Conservator, (which the supreme civil court of England has not, in respect of any actions pursued in the British colonies), it has also a power of reviewing the decrees pronounced in these causes by the Conservator.

35. It was long observed as a rule, that no court of justice could sit in time of parliament, because every subject was bound to answer any summons or call from the parliament: but ever since the Revolution, anno 1688, the court of session hath had its ordinary terms of sitting, whether the parliament sat or nct; and hence, when the parliament intended that that court should not meet at the same time with themselves, they adjourned it by special acts, several of which passed in the reigns of K. William and Q. Anne. Inferior courts sat at no period of time during the vacation of the session, that so some interval might remain free from the hurry of all courts of justice, for seed-time and harvest. The benefit of this institution having been little felt, from the frequent dispensations granted by the session to inferior courts to sit in vacation time, it was resolved by act of sederunt, July 21. 1696, that no such dispensations should be granted for the future, beyond the 20th of August for the harvest-vacation, and the 20th of March for the spring vacation. But this act is to be understood only of general dispensations; for they continue to be granted for sitting after these periods, in special causes, where there may be inconveniency or danger in the delay, or where the action bears a resemblance to voluntary jurisdiction, as the service of tutors, &c.

36. Certain inferior courts may sit during the vacation of the court of session, without dispensation. 1st, Sheriffs might always have sat after Easter and Michaelmas; because the head courts held upon these festivals were considered as the beginning of the sheriff's session, and the reason drawn from the necessity of country-affairs generally ceaseth after these terms, July 2. 1629, L. Bamf, (DICT. p. 7496.); June 30. 1675, Wardlaw, (Dicт. p. 7497.). 2dly, It was necessary for the police of the country, that riots and other breaches of the peace might be tried at any time: And hence justices of the peace, whose powers chiefly consist in preserving good order, may sit at all times in matters which concern the public peace; as sheriffs also do in criminal causes : But their sentences pronounced in civil questions in vacation-time are null, Dalr. 115, (Fullerton, Dicт. p. 7500.). 3dly, Barons may hold courts without dispensation for the payment of rent, on account of the danger attending the delay, July 8. 1624, Richardson, (DICT. p. 7496.); but not in questions between tenant and tenant. 4thly, Borough-courts sit during the whole year without dispensation, not only in breaches of the peace, but in actions merely civil: This at least is the usage in several of our most considerable boroughs. Lastly, Commissaries may judge at all times in matters properly consistorial, because these require dispatch; but not in causes where the commissary has barely a cumulative jurisdiction with other courts, Feb. 6. 1624, Gordon, (DICT. p. 7573.). By the jurisdiction-act, 20° Geo. II., all sheriff and steward courts

over

over Scotland may sit in vacation-time, without dispensation, in

all causes whatever; but as that statute does not extend to other inferior courts, the law in relation to these continues as formerly. On the late alteration of the kalendar, the court of session resolved, by act of sederunt, Feb. 16. 1753, to grant no dispensations for the sitting of inferior courts after the 2d of April and the 2d of September.

37. None of our judges, supreme or inferior, had for a long time any other appointments than what arose from the sentences they pronounced. The criminal judges applied to their own use the fines or issues of their several courts, i. e. all the sums levied from delinquents as penalties of transgression: And regalities had a right to the single escheat of all persons denounced rebels, who resided within their territory. In the same manner, the judges of the old court of session were, jointly with the clerk-register, entitled to 40s. Scots upon every decree, by 1457, C. 63., which, as appears by that act, was the only consideration then allowed to them. This sentence-money was, by 1587, C. 43., raised to the twentieth part of the sums awarded against the defender, where the decrees were for liquid sums, and to L. 5 Scots where they consisted in facto. Soon after the institution of the College of Justice, the small sum of L. 1412 Scots was allocated to the judges as an annual contribution or tax, payably by prelates out of their benefices, which is mentioned in 1543, C. 2., and has been now of a long time assigned by them to their private clerks. We learn from the books of sederunt, April 13. 1564, that they had a grant from Q. Mary of L.1600 Scots yearly, out of the quots of testaments; but having, at the desire of James VI., given up this right in favour of the bishops, they obtained a grant of L. 10,000 Scots yearly, out of the customs, by 1609, C. 11.; and by a posterior act, 1633, C. 22., a taxation of 10 s. Scots for four years was imposed on every pound-land of old extent, and a proportional tax on the boroughs, the produce of which was to be properly secured for the judges of the session. After this last provision was made effectual, the parliament 1641, C. 55., prohibited the exacting of sentence-money by that court; and though the act 1641, which was enacted during the Usurpation, was not revived after the Restoration, it appears from 1661, C. 50., by which a new addition was made to the salaries of the judges, that their exacting of sentence-money had been before that time laid aside.

38. Sheriffs were also entitled to the twentieth part of the sums contained in every decree, in name of sheriff-fee; and as it was the sheriff's office to carry into execution all sentences which were to be executed within the shire, whether pronounced by himself or by the court of session, 1537, C. 58., he was entitled to his sheriff-fee for them all, 1491, C. 30. When this became a task too burdensome for the sheriff himself, a custom was introduced, of directing letters of diligence, which issued from the signet-office against a debtor's person or estate, not to the sheriff, but to a messenger, 1537, C. 58., who, because he was substituted in the sheriff's stead, and with his powers as to that particular matter, was styled in the letters sheriff in that part, and was under that character entitled to the sheriff-fee, 1503, C. 66*. By the jurisdiction

TITLE IV.

Appointments of the judges

of the supreme

courts.

Sheriff's fees.

Book I.

act, no fines to be afterwards recovered are to belong to the sheriff or his deputy, but to the King; and all exaction of sentence-money by them is declared unlawful; in place of which, they have stated salaries from the crown: whereby the bias is removed, that the former practice of poundage or sentence-money might have given them, of rising too high in their fines against offenders, or in other sums contained in their decrees. Messengers, when employed in poindings, are to this day entitled to the sheriff-fee; which they usually assign to the creditor, upon getting a reasonable allowance for their pains or trouble.

General distinc- IN

tion of clergy and laity.

Ancient general districts of the church.

Secular clergy.

TIT. V.

Of Ecclesiastical Persons.

N all states where provision is made for the worship of the Deity, the members may be divided into laymen and clergymen; the last of whom are persons consecrated to the service of God and religion. Some account has been already given of the power and authority of the civil magistrate, and of jurisdiction, as it is exercised in Scotland by laics, in causes merely secular. We are in this title to take a view of the offices peculiar to the clergy, in so far as they have any relation to our law, and of the several jurisdictions exercised in this kingdom, either by churchmen themselves in matters purely spiritual, or by laymen in ecclesiastical

causes.

2. The Christian church was early divided into five general disstricts; Jerusalem, Alexandria, Antioch, Rome, and Constantinople; each of which had a church-governor, called a patriarch, who had Primates, Archbishops, and Bishops under him, in their several orders of subordination; though the general appellation of Bishop was frequently used to express the higher dignitaries of the church, even patriarchs themselves. All these patriarchs were at first of equal authority; and continued so till the beginning of the seventh century, when, by the concurrence of several favourable incidents, the patriarch of Rome was acknowledged, by almost all the western parts of Christendom, as the first and universal bishop of the church, by the name of Papa, or father; an appellation that had been formerly common to all bishops.

3. The clergy was divided into the secular and the regular. The secular were those who had the inhabitants of a particular tract of ground given them in charge, over whom they exercised the pastoral office, either in an higher degree, as Primates, Archbishops,

and

Monro contra Ross, Nov. 4. 1738, Dicт. p. 8889., recorded in the act of sederunt already quoted (supra, § 33. h. t.) it is declared, "that all messengers ought to be "paid of their fees and expences, for executing letters of horning or caption, by the "creditor employer, and not by any exactions from the debtor; and that any mes"senger's claiming, exacting, or taking from any person or persons, under diligence "by horning or caption, any sum or sums of money, or security for the same, under " colour of fees or expence for executing, or for delaying of execution of any such "diligence, or expence of going or coming to or from any place or places, towards, "or in order to the execution of such diligence, is unwarrantable, illegal, and oppres"sive, and opens a door to high and grievous exactions, from ignorant, distressed, "and indigent persons." See, as to the application of this act, Fac. Coll. Nov. 24. 1772, Monro, Dicт. p. 8891; also a case A. v. B. Dec. 19. 1776, DICT. p. 8892.

and Bishops, who had spiritual jurisdiction over the inferior clergy within their dioceses; or in a lower, as Presbyters, Deacons, &c. whose charge was confined to a particular parish or congregation. The church where the bishop had his seat or see was styled a cathedral. Gentlemen of estates frequently founded colleges or collegiate churches, the head of which was called præpositus, provost, under whom were certain canons or prebendaries, so called, because they had a stated portion, or præbenda, allotted to them, each of them according to his degree or stall in the church, where the music was performed, St. B. 2. T. 8. § 15. Others of lesser fortunes endowed chapels; which were built generally at some distance from the parochial church, for the benefit of the founder, and of those who lived in the remotest parts of the parish; and which were served by a chaplain, or capellanus. Altarages were small donatives, destined for the maintenance of a priest, who was to perform divine service for the soul of the founder, or some of his deceased kinsmen, at a particular altar, several of which were placed in every church, Dirl. Doubts, v. Altarages. The clergymen who officiated in those colleges, chapels, and altarages, were of the secular kind; though none of them, except the chaplain, had any cure of souls.

TITLE V.

4. The regular clergy had no cura animarum, nor the charge of Regular clergy. any congregation, but were tied down to close residence in their monasteries, unless when they were sent out on missions. And they got the name of regular, because they were circumscribed by vow to certain rules of devotion and penance, according to the institution of their several orders: and the individuals of them were styled monks. Their governor had the name of abbot; and under him was a prior, who governed in the abbot's absence, or while the office was vacant. But many instances occur of priors independent of any abbot, who were the heads of separate religious houses called priories. Some few monasteries were founded in Scotland for the redemption of captives from the infidels, under the name of hospitals or ministries. Prelate is used chiefly in the Canon law as a word synonymous with Bishop, Decretal. L. 3. Tit. 10. &c.; but in our ancient statutes it denotes any dignified clergyman, whether secular as bishop, or regular as abbot, who had a seat in parliament in virtue of his office; see title prefixed to acts of James V.; 1540, C. 125, &c. Upon the vacancy of any benefice, secular or regular, stewards were frequently appointed to levy the fruits during the vacancy, who, because they were mere trustees, were called commendators. Bishops were in use to grant the inferior benefices within their dioceses, in commendam for six months. The Pope alone could name commendators for the higher; and he at last, from the fulness of his power, appointed them for life, and without any obligation to account; which was chiefly intended as a cloak for the plurality of benefices, and to evade the canon of the second council of Nice, by which one benefice only was allowed to be given to one and the same churchman. But all commendams were by our law prohibited, even during Popery, by 1466, C. 3., except those that should be granted by bishops for a term not exceeding six months.

5. The Papal jurisdiction was first abolished in Scotland by an act in 1560; which, because it was enacted in a parliament not regularly authorised by the Sovereign, was ratified by 1567, C. 2. Though from that time the regular clergy was totally suppressed, yet several

abbacies

Changes in the ecclesiastical

constitution of Scotland.

BOOK I.

The King supreme over the

Church.

Bishops, by whom elected in the carly ages.

abbacies and priories were, on the death or resignation of the Popish beneficiaries, given by the King in perpetuam commendam to laics; in virtue of which grants, the commendators not only enjoyed the benefices for life, but were entitled to a seat in parliament, as coming in the place of the former abbots and priors. As for the secular clergy, we had, by the first plan of church-government after the Reformation, only parochial presbyters, and over them certain church-officers, styled superintendents, who watched over the affairs of the church, each within his proper district. In 1572, the names of Archbishop and Bishop, which had been almost lost since the Reformation, were restored to those clergymen who were then, or should be, ordained ministers of the cathedral churches, with the right of sitting in parliament, and with the same spiritual jurisdiction over the inferior clergy which had been enjoyed by the superintendents. By 1592, C. 116. Presbyterian church-government was established, by kirk-sessions, presbyteries, provincial synods, and general assemblies. The vacant bishoprics were, by 1597, C. 231., ordained to be filled up by the King, with actual preachers or ministers, who were to have a vote in parliament; reserving the spiritual policy of the church to be settled as the King and general assembly should agree. Bishops were, by 1606, C. 2., restored to all the rights, spiritual and temporal, formerly belonging to them, which were consistent with the Reformation. Presbytery again took place, anno 1638; then Episcopacy for the second time, by 1662, C. 1.; and, lastly, Presbytery, by 1689, C. 3., and 1690, C. 5.".

6. As the Pope had, during the Papacy, exercised a most absolute jurisdiction over churchmen, and in ecclesiastical causes, quite independent of the civil magistrate, which some of the Protestant clergy seemed willing to draw to themselves after the Reformation, the King was, by 1584, C. 129., declared to have royal authority over all estates; and to be, by himself and his council, judge competent to all persons spiritual and temporal, in all matters on which they might be charged. His supremacy over the church was, by 1669, C. 1., raised up to the right of directing its external government: But that act was repealed by 1690, C. 1. as inconsistent with Presbytery, which was then upon the point of being established. By 1584, C. 131. all assemblies, even in ecclesiastical matters, which had not the King's previous licence, were prohibited; and though the powers of the church seem to have been enlarged in that respect, by 1592, C. 116., the clergy have not attempted, even since the Revolution, to meet in a national assembly without the royal warrant And when the King's commissioner thought it incumbent on him, in the discharge of his office, to dissolve the assembly before their business was over, they prudently submitted to the dissolution *.

7. While our church-government was Episcopal, we had two archbishops, viz. of St Andrew's and Glasgow. The first had the precedency,

* In the year 1746 and 1760, when, by accident, the King's commission had not arrived at the time fixed for the meeting of the assembly, the assembly met, chose their moderator, and settled the order of taking up business, but did not actually proceed to business till the commission arrived.

112 In a late case, the Court deemed it proper, by a special interlocutor, to " appoint "the designation assumed by the pursuer, as one of the bishops, or senior clergy"man, of the superior order of the Episcopal Communion in Scotland,' to be erased "from the summons, as not recognised by the Court;" Drummond, 6th July 1809, Fac. Coll.