[1641/8/179]¹

Procedure: commission

Act regarding the commission for plantation of kirks and valuation of teinds

Our sovereign lord and estates of parliament, considering the humble supplication of the general assembly presented by the commissioners thereof for plantation of kirks, uniting or disuniting of parishes and for other pious and good works mentioned therein, for the which and other causes after-specified it is necessary that power and commission be given from his majesty and estates to the effect underwritten, and therefore his majesty and estates foresaid have granted and by this act grant full power and commission to the persons after-following, namely: John [Campbell], lord Loudoun, chancellor, Archibald [Campbell], earl of Argyll, Alexander [Montgomery], earl of Eglinton, John [Kennedy], earl of Cassilis, William [Cunningham], earl of Glencairn, John [Maitland], earl of Lauderdale, William [Kerr], earl of Lothian, David [Carnegie], earl of Southesk, James [Ogilvie], earl of Findlater, John [Lindsay], lord Lindsay², John [Sinclair], lord Sinclair, John [Elphinstone], lord Balmerino, Robert [Balfour], lord [Balfour of] Burleigh, George [Forrester], lord Forrester, Sir George Dundas of that Ilk, Sir John Wauchope of Niddrie, Sir David Home of Wedderburn, Sir William Forbes of Craigievar, Sir Gilbert Ramsay of Balmain, Sir William Cunningham of Caprington, William Rigg of Aithernie, Sir Duncan Campbell of Auchinbreck, Sir Alexander Erskine of Dun, Sir Charles Erskine of Bandeath, [Alva and Cambuskenneth], Sir Robert Innes of that Ilk, Alexander Gordon of Earlston, Sir Robert Grierson of Lag, Master George Douglas of Bonjedburgh, John Binney for Edinburgh, Thomas Durham for Perth, Patrick Leslie for Aberdeen, George Bell for Linlithgow, James Sword for St Andrews, Patrick Bell for Glasgow, John Kennedy for Ayr, John Semple [of Stainflett] for Dumbarton, William Glendinning [of Gelstoun] for Kirkcudbright, James Scott [of Logie] for Montrose, Master Robert Barclay for Irvine, James Anderson for Cupar, George Gardyne for Burntisland, Master Alexander Douglas [of Downies] for Banff, Robert [Ker], earl of Roxburghe, lord privy seal, Sir Alexander Gibson, younger, of Durie, clerk register, Sir Thomas Hope of Craighall, advocate, Sir James Carmichael, treasurer depute, Sir John Hamilton [of Orbiston], justice clerk, and Sir Andrew Fletcher of Innerpeffer, Sir Thomas Hope of Kerse, Sir Adam Hepburn of Humbie, three of the senators of the college of justice, to meet and convene at Holyroodhouse or Edinburgh or such other places as shall be appointed by them at such times and diets as they shall appoint, and to value and cause value whatsoever teinds great or small, parsonage or vicarage, of whatsoever lands and others within this kingdom liable to the payment of teinds of whatsoever nature and quality the same be of which are yet unvalued, providing the ministers serving the cure who do lead tithes be secured of good and thankful payment of so much victual or money answerable to the worth of the said tithes as the tithes shall be valued to, and also to receive the reports from the sub-commissioners appointed within each presbytery of the valuations of whatsoever teinds of lands and others liable to teinds as said is, led and deduced before them according to the tenor of the sub-commissioners directed to that effect, and to allow or disallow the same accordingly as the same shall be found agreeable or disagreeable from the tenor of their sub-commissioners. And, for the better completing and advancing of the said valuations, with power to appoint committees or subcommittees of their own number to receive the reports of the said valuations made or to be made, and to receive, admit and examine witnesses, and to take the oaths of parties with their depositions where the same is referred to oath and to give such farther power to the said committees or subcommittees of their own number as they shall think fit for the good of the work and speedy finishing of the same. And also with power to them, if need be, to appoint sub-commissioners who are not of their own number within any parish or presbytery of the kingdom for leading and deducing of the said valuations and to receive the reports thereof, allow or disallow of the same, and generally with power to them to set down whatsoever other order or course which shall be thought fit and expedient for dispatch of the said valuations, rectifying thereof and for final closing of the same. And also with power to the said commissioners (or any fifteen of them, there being four thereof for every estate) after closing and allowance of the valuations of each kirk and parish, or at least the exact diligence of the ministers done to that effect, to appoint, modify and set down a constant and local stipend and maintenance to each minister (his present stipend being allowed in the first end thereof) to be paid out of the teinds thereof, and to grant augmentations to each minister of other kirks than bishops' kirks who got not the benefit of the former commission and have not the full quantity of eight chalders of victual or 800 merks according to the tenors of the acts of parliament in the year 1633, wherein that is found to be the lowest proportion for the maintenance of the ministers unless such particular kirks occur wherein there shall be just, reasonable and expedient causes to go beneath the said quantity, which is hereby also referred to the conscionable consideration of the commissioners before expressed; and to grant augmentations to ministers of kirks which were provided by the former commission but to a less quantity than eight chalders of victual or 800 merks in the cases after-following only, namely: where the teinds in whole or in part are feued with the lands, with the teinds included, whereby the ministers were debarred of the full quantity foresaid, or where the valuations already led the time of the provision of these kirks shall happen to be reduced as unjustly valued, or where it can be provided by writing or oath of party that the less quantity foresaid proceeded from agreements between the titular and the ministers or titular and parishioners in prejudice of the minister's successors, or where the honest incumbents for the time were impeded by the prelates for their never practicing conformity to obtain the full quantity in the former commission, albeit there was sufficiency of teinds within the parish, in the which cases or any of them, it is hereby declared that the ministers provided by the former commission shall be supplied to the full quantity foresaid. Hereby it is declared that all bishops' kirks, whether or not provided at all or provided by the former commission but beneath the quantity foresaid, shall be supplied to the full quantity of eight chalders of victual or 800 merks out of the tithes of their own parish; and where the same cannot be had, then out of the teinds of the other kirks of that bishopric; and that all kirks that had greater quantity of stipend before the restitution of bishops than they now have (unless they have been diminished by just valuations) shall be supplied and brought to the same quantity whereof they were in possession before the said restitution, to be paid out of there own parish; and where it is lacking to be paid out of the tithes of the bishops' kirks. For the which effect, the king's majesty and estates of parliament grant power to the commissioners foresaid, or any quorum of them, and also give power to the said commissioners to disjoin too large and spacious kirks and plant them separately, and to cause build and erect new kirks and appoint competent provisions for the ministers; to change kirks incommodiously situated to a more commodious part of the parish; to disjoin and dismember such parts and portions of the parishes lying contiguous, and whereof one part is far distant from the proper parish kirk and more near and adjacent to the next adjacent and contiguous parish kirk from their own proper parish kirk from the which the parts and portions are further distant and to unite and adjoin them to the other parish kirk to the which they are most adjacent; and also to unite kirks and parishes lying so near other and being so little bounds and small number of parishioners that the union of them shall be found more useful and conducible for the good and case of the parishioners of both the kirks and their edification, providing that the dividing of large parishes, the dismembering of one part of the said parishes in cases foresaid and the uniting of kirks and parishes of the quality above-specified be done upon the special recommendation of the presbytery, synod or general assembly given in in writing and after the commissioners have cited and heard the parishioners of both kirks relating thereto and no otherwise; and to set down a solid order and take course for furnishing the elements to the commission twice in the year or more often where they are not provided at all or not sufficiently provided, and also to take order for paying of the charges of the commissioners to the general assemblies without burdening the ministers' stipends therewith; and also with power to them to advise, take course and determine in all things referred to them by any particular act or reference from the general assembly to this parliament or from the parliament to them. And because the king's majesty, considering that the names and titles of bishops and bishoprics by the acts and statutes of kirk and kingdom are abolished and suppressed, and that thereby the tithes, parsonage and vicarage, and teind duties of whatsoever kirks or titles pertaining to the said bishoprics are become in his majesty's hands and at his majesty's disposing, and his majesty being graciously pleased out of his pious and royal affection to the maintenance of true religion and purity thereof presently established within this his majesty's ancient and native kingdom to take such a course with the teinds and teind duties pertaining to the said bishoprics and of all teinds and kirks annexed thereto that the same may be applied to the use and benefit of the ministers serving the cure of the said kirks and to the maintenance and supply of universities, colleges and schools; likewise his majesty, before his coming to this his ancient kingdom in his own royal person, sent and directed his letters to the general assembly of the kirk convened at Edinburgh in July last, whereby his majesty declared his constant purpose and resolution to employ the said teinds of the said bishoprics to the uses above-specified, and therefore his majesty, according to his royal promise and for performance thereof, has declared and by this act declares, by advice and consent of the estates, that the teinds and teind duties of all and whatsoever kirks, parsonage and vicarage thereof, and teinds of whatsoever nature pertaining to the said bishoprics shall be applied to the maintenance of the ministry and of the universities and colleges and other pious uses and to [no]³ other use, and that accordingly as the same shall be particularly distributed by the commissioners foresaid, to whom his majesty and estates grants power for this effect. And declares all gifts granted or to be granted by his majesty to whatsoever person or persons of the foresaid teinds or teind duties or any part thereof, except to the uses foresaid, to be null in the self, excepting always all gifts already granted by his majesty to whatsoever person or persons of their own teinds and to the maintenance of universities and colleges, they and every one of them being always liable to the plantation of kirks to the full quantity contained in the acts made relating thereto. Likewise it is declared hereby that all teinds and teind duties which belonged to chapters, deans, subdeans and other dignities of the chapters shall be liable to the like provisions of the kirks which were annexed thereto, according to the proportion of eight chalders of victual or 800 merks out of the teinds of their own parishes only, according to the act of parliament. And also with power to the said commissioners as said is to take order that every heritor and life-renter of land having right thereto by infeftment of liferent, right of terce or by bond for infeftment of liferent shall have the leading of their own teinds, parsonage and vicarage thereof, they paying the price contained in the act above-specified, in case they be willing to buy the same from the titular having power to sell, or otherwise paying the rate of teind expressed in the acts made relating thereto. And to that effect, with power to the said commissioners to set down the price of sellable teinds, according to the worth thereof in each part of the country where the same grow and are bred, and also with power to them to set down such good and ample securities as may stand by law both for the buyers of the teinds, to the effect the titulars may be fully deprived in their favour, and also for security to the titulars and sellers of the price due to be paid to them for the said teinds, and also to set down the security in favour of the titulars and of the ministers so far as concerns the maintenance assigned to them for good, thankful and timeous payment of the rate of teinds where the same are not or cannot be sold. And also with power to the said commissioners to discuss and determine all questions which may arise between the titulars and heritors regarding the price of teinds, according to the nature and quality of the rights to be sold, whether the same be heritable or temporal, and to proportionate the price accordingly, and also to divide the price of teind between the heritors and life-renters thereof, and between titulars and tacksmen and others who have separate and distinct rights to the said teinds sellable according to the quality of the rights. And also with power to them to cause the titulars who sell their said teinds to exhibit their rights and titles to the effect they may be lawfully deprived thereof in favour of the said heritors and life-renters respectively, without prejudice always to his majesty's annuity to be paid out of the said teinds by the said titulars of teinds or heritors or life-renters of lands according to the tenor of the act of annuity. And generally with power to their said commissioners to decide and determine in all other points which may concern the leading and drawing of teinds, the selling and buying of the same or payment of the rates thereof contained in the acts of parliament made relating thereto. And whereas it may fall out that some of the commissioners now appointed by his majesty and estates may be unable to attend the service by sickness or some other notorious and known impediments, therefore his majesty and estates declare such other persons shall fill their places as his majesty shall think fit by advice of the other commissioners who must receive and admit them upon the said commission and take their oaths for faithful discharge of the same. And his majesty and estates ordain this present commission to endure to the [...] until the same be expressly by his majesty's warrant discharged with consent of the estates for that effect. And his majesty, with consent of the estates foresaid, finds, declares and ordains the acts, decreets and ordinances of the commissioners foresaid and of the other persons who shall be surrogate in their places by his majesty, in manner foresaid, in the whole particulars above-specified, and every one of them to have the force, strength and effect of a decreet, sentence and act of parliament, and ordains the lords of session to grant and direct letters of horning, poinding and others thereupon upon a simple charge of 10 days or otherwise as shall be found necessary. Moreover, for clearing of all doubts and difficulties which may arise regarding the rectifying of valuations or other particular heads following, his majesty and estates have declared and declare that where valuations are lawfully led against all parties having interest and allowed by the former commissioners, according to the order reserved by them, that the same shall not be drawn in question nor rectified upon pretence of severe harm at the instance of the minister not being titular or at the instance of his majesty's advocate for and in respect of his majesty's annuity, unless it be proved that collusion was used between the titular and heritor or between the procurator fiscal and heritors and titular, which collusion is declared to be where the valuations are led with diminution of the third of the just rent presently paid and which diminution shall be proved by the oaths of parties. It is always declared that the provisions of the former commission, so far as they are conceived in favour of the colleges, hospitals and ministers, are herein renewed, as also that ministers serving the cure who lead their teinds and that colleges, schools and hospitals be not constrained to sell, set nor convey their teinds in prejudice of their successors notwithstanding of the valuations thereof. Likewise the king's majesty and estates grant power to the said commissioners to do everything necessary for settling and establishing the right of any teinds of the prelacies appointed by them in favour of the said kirks, schools, universities and colleges according to their several divisions and also to set down rules and ways how the same shall not thereafter be dilapidated or made worse by the titulars for the time. And his majesty and estates declare that all his majesty's subjects who are willing to buy their teinds shall be obliged to pay the price thereof contained in the act made relating thereto within the space of two years after the same be valued and approved before the said commissioners, and that after the expiring of the said time, the titular shall not be compelled to sell the same unless they do it of their own good will, with this declaration always: that in case the impediment flow from the titular by reason of his minority or other inability during the space foresaid, in that case the heritor who offers himself ready to buy his own teind within the space foresaid shall have place so soon as the impediment is removed to buy his teinds, notwithstanding of the expiring of the years and space above-expressed. And it is declared if the heritors be minors and their tutors neglect the buying of his teinds within the space foresaid, the minor shall have action for two years after his minority to compel the titular for selling of the said teinds. Likewise his majesty and estates of parliament grant power to the said commissioners to give recompense to parties for the augmentation of stipends to be imposed by this present commission as was done in the same way by some former commissions, as 1617. Likewise it is hereby declared that where by mistaking and wrong accounting there was a greater quantity assigned to the minister out of many men's teinds than is due by proportion according to the valuation, that the commissioners may rectify the same without diminishing the minister's stipend or wronging his possession until it be given out of other teinds of the parish. Likewise it is declared that where the assignations are made wrong in the quality, that the same might be reduced to the just number of bolls of meal, barley and wheat answerable to the valuation. With power also to the said commissioners to assign the feu duties of the parts of land called parsons' and vicars' glebes to the ministers and others serving the cure.