Christianity was a powerful force in Scottish society. Beginning in the sixteenth century the Scottish Reformation, part of the wider Protestant revolution in Europe, began to transform Scotland into a Presbyterian nation. The Church of Scotland, or the Kirk, and its adherents broke with Roman Catholicism and reformed its doctrines to reflect Calvinist theology. Nevertheless, Catholicism and Anglicanism remained an important and frequently controversial part of the religious landscape, especially when a monarch such as Mary, Queen of Scots or King Charles I sought to weaken the Church for the benefit of their preferred denomination.
The local parish, known as the "kirk session," played a central role in Scottish life. Ministers, supported by teinds (Scots for "tithe"), sought to provide their communities with spiritual nourishment and leadership. Seating within a church reflected the power of landed proprietors, as did the right to bury one's family in the parish graveyard. Parish communities appointed schoolmasters to educate their children. They also helped to care for the sick or unwanted.
While most Scots believed that God would render final judgement on their eternal souls, they sometimes turned to the Lords of Session to resolve earthly controversies in their religious communities. The General Assembly of the Church of Scotland acted as a judicial body where matters spiritual were concerned, but civil courts had jurisdiction over disputes temporal in nature. The Court of Session frequently heard arguments over a minister's stipend, contests over parish lands, accusations of adultery, and many other complaints involving kirk sessions. The cases presented here are a fascinating look into how Scots managed their religious affairs in this world as they prepared their souls for the next.
|Graham et al v. Macfarlane||1767||Education, Presbytery||This case involved the efforts of heritors in the parish of Port of Mentieth (Port) to deprive the parish schoolmaster, James Macfarlane, of his office. The heritors claimed that Mcfarlane neglected his schoolmaster duties while operating a side business as a merchandiser, beat the school children under this tutelage, along with other accusations. The Pursuers first complained of Macfarlane to the Sheriff of Perth in 1752, but Macfarlane was allowed to continue. Starting in 1763 and again in 1764, forty heritors and heads of families in Port exhibited a complaint against Macfarlane to the presbytery stating that Macfarlane was unfit to be a school teacher due to neglect of duty while he operated his merchandising business and abusive treatment of students. The Presbytery found Macfarlane unfit to serve as schoolmaster in Port. Macfarlane appealed to the synod of Perth and then to the Court of Session. Macfarlane argued that since the salaries of schoolmasters in parish schools were so low, it was common occurrence for schoolmasters to serve as merchandisers for the goods in demand in their parishes. He acknowledged that he had attended fairs in Stirling and Gartmore to sell lint-seed and trade other goods, but he argued that he was only gone for two days and that it was the custom of the parish to close school on these days because many children were absent to to assist with the bear seed. He outlined his measures of discipline as schoolmaster and claimed that they were not severe as the Pursuers had claimed. Case documents provide details of the day-to-day happenings in the Port school house and Macfarlane's interactions with students.|
|Mr John Snodgrass, Preacher of the Gospel, George Steel, John Beatson, and Others v. Mr John Logan and Others||16 Jun 1772||Ministers||This case concerns the selection of the second minister for the parish at South Leith. In the past, the second minister has been selected by a committee with representatives from the incorporations of different trades and the kirk-session (a group of elders in the local congregation). The defender John Logan and the pursuer John Snodgrass were set up as candidates. The incorporations and the kirk-session disagree about the candidates. Each side also points to errors in the selections and voting process. In an interlocutory ruling, Lord Kennet Ordinary found for Logan. Mr Snodgrass, and the voters on his side, brought a process of reduction and declarator against Mr Logan, and his adherents, before Court. Mr Logan and his party repeated a counter-process of a similar nature.|
|Brown v. Maxwell||1772||Ministers||The pursuer, Richard Brown, was a minister in Lochmaben. He claimed that the magistrates of the burgh harbored ill will towards him and sought to inconvenience or harass him. Among other actions, the magistrates ordered a barn on Brown's property to be destroyed, removed trees from his glebe, and reduced his seating in the kirk (church). The Lord Ordinary found that the destruction of the barn was a legitimate action authorized by the parish of Lochmaben's heritors. Brown sought a review of the Lord Ordinary's interlocutor. He argued that while he had struck an agreement with the defenders to remove the barn, they had agreed to do so at a later date. The defenders sought to avoid liability damages by claiming that they had only followed the heritors' instructions.|
|Borthwick||1802||Rent, Teind, Property rights||The petitioner, John Borthwick of Crookston, challenged a locality that apportioned liability for the minister's stipend in the parish of Stow.|
|Earl of Aberdeen v. Officers of State||21 Jun 1799||Teind||The Earl of Aberdeen claimed a deduction on a quarter of the rent from several estates in order to reduce his teinds payment. The Officers of State objected to his activities on three grounds, 1) his deduction for use of peat on his land was unjustifiable, 2) by allowing cottagers to live on his land but pay rent to a third party meant that he did not get income directly, and 3) through patronage he claimed deductions on rent from lands outside the areas subject to those tithes.|
|Trail v. Maule||12 Dec 1799||Augmentation, Rent||Trail was the minister in the parish of Panbride, which sat on Maule's land. Trail sought an increase in his stipend from Maule, arguing that Maule had raised Trail's rent so severely that his stipend was no longer adequate. Maule countered that any further increase in Trail's stipend would place him in a better position than his fellow ministers on Maule's other lands.|
|Logan and Others v. Reid||31 May 1799||Property rights, Glebe||Reid, the minister of the Parish of New Cumnock, life on lands owned by Logan. The previous minister had planted trees surrounding his Glebe lands and they were admired by the community, but when the Minister died and Reid succeeded him, Reid began to chop down the trees. Logan, as the owner of the land, sued to stop the further removal of the trees.|
|Ogilvy v. Dawson||1 Feb 1800||Stipend||The pursuer Ogilvy was Minister of the Parish of Linton, which was located on the land of William Dawson. Ogilvy sought an increase in his stipend in light of Dawson's use of some of the land to grow barley. Ogilvy believed
that he deserved a greater stipend given the profits Dawson stood to earn from his agricultural activities.
|Murray v. McNaught||24 May 1799||Arrestment, Debt||James Murray brought an action against John McNaught, the former minister for the parish of Girthon, accusing him of fiscal irresponsibility. Murray, who supplied McNaught's stipend, accused the minister of squandering his income and racking up debts. Murray sought to recover funds from McNaught.|
|Melville v. Heritors of Leslie||15 Jan 1800||To fund an increased stipend for the minister of Leslie parish, Lord Glenlee prepared a “scheme of locality,” which allocated the stipend among the heritors liable to pay. During proceedings on the locality, Lord Glenlee found that John Melvill had failed to show that his lands at Prinlaws were held cum decimis inclusis, which would exempt them from liability for the stipend. Melvill challenged the interlocutor, and the court held that charters from the commendator of Inchcolm, dated 1550 and 1568, and confirmed by King James in 1584, rendered the lands exempt.|
|Laidlaw v. Elliot||2 Dec 1800||To provide the minister of Peebles with a grass glebe, the presbytery appropriated a small field that was held in feu by the pursuer, William Laidlaw. The field was part of a tract commonly understood to have been the vicar’s glebe before church lands fell to the sovereign at the Reformation. While not contesting the appropriation of his land, Mr. Laidlaw claimed that certain statutes entitled him to relief from the heritors of all other church lands within the parish. However, Ann Elliot argued that only heritors of the vicar’s glebe were required to contribute. The court found that Act 1594, c. 202, provided a general right of relief from heritors of church lands in the parish.|
|Paisley v. David Erskine||10 Aug 1770||Right to dispose a Parish, Appointment of Patrons||In January 1769, the parish of Erskine, in the presbytery of Paisley became vacant, by the death of the Reverend Mr James Lundie. Mr. David Erskine alleged to have acquired the right to the patronage from Lord Blantyre, the patron of the parish, who was in Italy by the time the vacancy occurred. The Presbytery took some procedure in the church courts and appointed someone for the position, but it was not accepted. The Presbytery then brought a declaratory action to review and declare that the right had fallen to them. The defender invoked cannon law to claim that the Presbytery right was proscribed after the six months.|
|Scotlands v. Thomson||8 Aug 1776||Defamation||John, Robert, and David Scotland sought damages from James Thomson, minister of Dunfermline, after Thomson preached two sermons accusing them of lying and corruption in connection with the Dunfermline election. Thomson claimed that it was his duty to censure wrongful behavior, and that the second sermon was justified by a provocative letter to the editor written by Robert Scotland.|
|Lieutenant-Colonel James St Clair v. Miss Jean Alexander of Rosebank||21 Nov 1776||Kirk||This case was about whether the defender could claim an exclusive property right to a seat in a church. In 1728, the proprietor of an estate called Roslin transferred part of the estate to one Yaxly Davidson; the transferred land came to be known as Rosebank. The proprietor also gave Davidson access to certain seats in the local church, which had been reserved for the estate of Roslin. (The exact nature of this access, and the number of seats affected, were matters of dispute.) In time, Jean Alexander became the proprietor of Rosebank and began using the associated seats. She sought to exclude Roslin tenants from the seats, and Colonel James St. Clair, the contemporaneous proprietor of Roslin, sued. St. Clair claimed that he held the sole right to the disputed seats. In response, Alexander argued that the proprietors of Rosebank had acquired the seats by prescription—in other words, that by possessing the seats for a long period of time, they had obtained a property right. St. Clair argued that a church seat could not be obtained by prescription, and that in any case, Alexander had not enjoyed the sort of exclusive possession that was necessary for prescription to apply.|
|The Earl of Home, and other Heritors of the Parish of Eccles v. The Earl of Marchmont, &c||7 Feb 1777||Valuation, Seat in a Church, Heritor||In 1774, the parish kirk of Eccles was rebuilt and the heritors of the parish disagreed over the division of the seating areas of the church. In short, the Earl of Marchmont and others argued that the seats should be allocated to both heritor and their tenants at once, with order of preference given to those heritors with the highest valuation. On the other hand, the Earl of Home and others argued that such a procedure would force the lower-value heritors to be placed "in the inferior seats of the church ; that is, either in the back-galleries, or in the long seats below, under the galleries ; and thus give place, not only to the meanest tenant, but to the cottars and tenants servants on the lands of the six heritors of highest valuation ; a thing in itself altogether unreasonable and indecent . . ." Rather, they argued that the seats of heritors and their tenants should be allocated separately, in order to prevent the mingling of the classes. The case was brought before the Sheriff of Berwick, who found "that each heritor's share must be allocated and set apart by itself." Lord Gardenstone remitted the cause without qualification, and the Court adhered to Gardenstone's interlocutor, with some extra provisions.|
|Cunninghams v. Alexander Cunningham||5 Dec 1778||Parishioner, Heritor, Property rights, Natural Rights||This case concerns burial rights to the Currie Kirkyard. Alexander (John) Cunninghame, victual-dealer at Fountainbridge, was not a parishioner of the Currie Kirk. He was, however, a descendant of John Cunninghame of Balerno (d. 1640), who was buried in the Balerno family plot, which ran along the south wall of the parish church. By the end of 1777, Cunninghame had buried his wife and three children in this burial plot, near the wall of the church. When he had a tombstone made for their graves, William and Laurence Cunninghames, portioners of Ballerno, petitioned the Sheriff of Midlothian to forbid Alexander Cunninghame from placing this stone and from making any further burials. They claimed exclusive possession of this area of the kirkyard due to their status as joint-heritors in Currie parish. The sheriff found that the defender should not "be deprived of the pious satisfaction of placing a stone over the grave of his departed wife.” The pursuers then presented a bill of advocation to the Court. Lord Covington determined that as the defender was neither a heritor nor a parishioner of Currie, he had no right to make use of the kirkyard. When the defender petitioned the Court for review, it upheld Covington's decision. The arguments of the pursuers and defender centered on whether a kirkyard was common or private property.
|Porteous v. Isat and Others||12 Dec 1781||Defamation, Ministers||This was a case about defamation. It stemmed from an ecclesiastical proceeding in which parishioners of Gorbals accused their minister, William Anderson, of adultery. The ecclesiastical case advanced to the General Assembly, where Rev. William Porteous gave a speech defending Anderson and attacking the complainants. A version of the speech was subsequently printed in certain Edinburgh and Glasgow newspapers, with Porteous’s assistance. The complainants published a rebuttal in a Glasgow newspaper, accusing Porteous of calumny and abuse, and threatening to expose his own “curious tete-a-tetes.” Porteous sued the complainants for defamation. However, the complainants argued that they were merely responding to Porteous’s provocation.|
|Solicitor of Tithes v. The Earl and Countess of Fife||4 Dec 1799||In this case, the Crown’s Solicitor of Tithes claimed that the Countess of Fife, as executrix for her father the Earl of Caithness, was liable for certain bygone teinds. Litigation over the teinds had progressed episodically since the 1730s, when a previous Solicitor raised an inhibition of teinds and brought a process of spuilzie (unlawful meddling with movable property) against the Earl of Caithness. The court eventually found that the teinds belonged to the Crown, relying on evidence that the Earl of Caithness paid teind tack duties, or rental fees, to the Crown's collector of bishop’s rents. Having established the teinds' rightful owner, the Court moved on to the question of arrears. The Countess of Fife, joined by her husband the Earl of Fife, argued that the Crown had discharged its claim to bygone teinds by accepting tack duties after the date of the inhibition. Under this theory of the case, the Earl of Caithness possessed the teinds by “tacit relocation,” similar to the implied renewal of a lease when the landlord continues to accept rent. Thus, the Crown could claim arrears of tack duties, but not the free teinds themselves. The Solicitor of Tithes answered that his office was distinct from the collector of bishop’s rents, which had accepted the tack duties. Further, he argued that the inhibition used by the previous Solicitor of Tithes had the legal effect of preventing tacit relocation. In the Solicitor’s view, this principle was so well established that it defeated a claim of good faith raised by the defenders.|
|The Deans of the Chapel Royal and their Lessees v. Robert Hay and Others, Heritors of the Parish of Ettrick||11 Dec 1799||Teinds||This case was about the allocation of a minister’s stipend in the parish of Ettrick—and more specifically, about how to allocate the stipend between two districts that had different historical ties to the parish. The first district belonged to the old parish of Ettrick. Lord Napier was the titular, and all the heritors there possessed heritable rights to their teinds. The second district was annexed from the parish of Yarrow to the parish of Ettrick in 1650. The teinds from this land formed a portion of the revenues of the Chapel Royal, which were given by the king to three chaplains known as Deans of the Chapel Royal. These teinds were let in tack to the Duke of Buccleuch. When the minister of Ettrick obtained an augmentation of his stipend, the entire augmentation was allocated to the teinds of the Chapel Royal, as opposed to those within the old parish, based on the rule that teinds held in lease must be allocated prior to those held under heritable titles. On appeal, the petitioners argued that because the teinds of the Chapel Royal were for a pious use, they should be allocated after any teinds belonging to lay titulars in the same parish. Moreover, they claimed that because there were two titularities in the parish, the minister’s stipend should be allocated proportionally between them.|
|Patrick Cunninghame v. The Magistrates and Town-Council of Edinburgh||3 Dec 1800||The Magistrates and Town-Council of Edinburgh resolved to make St. Andrew’s Church a collegiate charge and to appoint the Reverend David Ritchie as second minister. Pursuer Patrick Cunningham, a dissenting council member, presented a bill of suspension against the resolution, arguing that the City could not afford the measure and that the appointment was unnecessary. The Defenders answered that the new appointment was proper and necessary.|
|Isabel Howie, Martha Buik, and the Kirk-Session of Alyth v. The Kirk-Sessions of Arbroath and St Vigean's||25 Jan 1800||This case was about how to determine which parish should pay for the maintenance of an impoverished child. The child, Anne Coathill, was born in Arbroath, but she and her parents, James Coathill and Janet Buik, soon moved to St Vigeans. After Janet died, Anne was sent to live with relatives in Alyth, including pursuers Martha Buik and Isabel Howie. Joined by the Kirk-session of Alyth, these relatives sought maintenance from the parishes of Arbroath and St Vigeans. Case documents include several depositions.|
|The Heritors and Kirk-Session of the Parish of Dalmellington v. The Magistrates, Minister and Kirk-Session of Irvine||3 Dec 1800||This case determined which of three parishes—Irvine, Dalrymple, or Dalmellington—was required to provide for the maintenance of James Wallace, an insane pauper. The statutory obligation to aliment certain persons was assigned to parishes based on residency. However, Wallace was an itinerant worker, complicating the analysis. Before losing the ability to support himself, Wallace had been a dance master who spent winters in the town of Irvine but traveled in the summer to teach. He spent his early years in Dalrymple and later went to Dalmellington, where he was employed for a time. More than a dozen witnesses from the three parishes testified about Wallace’s whereabouts over the course of his life, giving sometimes contradictory evidence. The court found that the parish of Irvine was liable, comparing Wallace to tradesmen who travel to seek work in the summer.|
|Sir Ralph Abercromby v. John Francis Erskine||5 Mar 1800||To fund the minister’s augmented stipend in the parish of Alloa, a scheme of locality was prepared to allocate the stipend among the heritors who were liable to pay for it. Defender John Francis Erskine produced a valuation of his teinds showing that they were exhausted by the old stipend; thus, he was not required to pay for the augmentation. As a result, the pursuer, Sir Ralph Abercromby, was responsible for a larger share of the augmented stipend. Sir Ralph sought to challenge the valuation of Mr. Erskine’s property. However, Mr. Erskine argued that Sir Ralph did not have legal standing to challenge the valuation.
|Earl of Mansfield v. The Duke of Queensberry, and other Heritors of the Parish of Dornock||21 May 1800||During a process of locality in the parish of Dornock, the Earl of Mansfield initiated a legal proceeding to obtain a heritable right to his teinds. This case examined whether he could obtain such a right during the process of locality, so as to affect the order of allocation.|
|Wemyss v. Heritors of Newburn||15 Jan 1800||This case was about how to allocate an augmentation to the minister’s stipend in the parish of Newburn. Pursuer David Wemyss argued that his titles to the lands of West Lathallan exempted him from paying the stipend. However, the court held that there was no exemption.|
|Petition of Alexander Carre and Archibald Jerdon||1800||Notice, Teinds||An action of locality was dormant from 1797 to 1800, when the common agent moved to “awaken” the case. After conducting further proceedings, the court approved an interim locality. However, Petitioners Alexander Carre of Caverse and Archibald Jerdon of Bonjedward were not made aware that the case had resumed. Further, Mr. Carre, who succeeded to his interest during the pendency of the case, was never made a party. For these reasons, Carre and Jerdon sought to have the case remitted to the Lord Ordinary to prepare a new scheme of locality.|
|Representatives of Bryce Blair v. Walter Graham, and Others||1767||Factor, Stipend, Feu duties||Bryce Blair served as factor of the sequestered estates of Crieve and Mossknowe from 1742 until his death in 1762. During that time, he failed to make regular court filings detailing the estate’s accounts. After Blair’s death, the estates were sold in a judicial sale, which raised enough proceeds to provide the heirs of Crieve with a reversion after the relevant debts were paid. This led to a dispute over the amount of the reversion. In particular, the heirs of Crieve disputed certain charges for a minister’s stipend, on the ground that the payments ought to have been made by tenants on the estate. The heirs also contested charges for feu duties to the Marquis of Annandale, contending that there was no proof of payment.|
|George Trail v. Thomas Lyell||1766||Ministers, Witness||Petitioner George Trail exhibited a libel charging Thomas Lyell, minister at Lady, with fornication, attempted rape, attempted assassination, and other crimes. Trail, who was both the minister of Dunnet and a heritor in Lady, sought to have Lyell deposed from his ministry. The General Assembly of the Church of Scotland initiated a process regarding the libel, but many witnesses refused to appear on the ground that ecclesiastical courts could not compel their testimony. Trail therefore petitioned the Court of Session for letters of diligence (i.e., warrants) to force the witnesses to testify.|
|The Parish of Lentrathen v. James Smith [Church of Scotland Case]||1772||Right to dispose a Parish||The Parish of Lentrahern (Lintrathen) lying in the presbytery of Meigle belonged to the family of Airly. Walter Ogilvy granted a settlement in favor of Mr. Edward over this parish as possessor of his father's estates. Mr. Smith challenged Ogilvy's right to patronage.|
|Solicitor of Tithes v. Governor and Company of Undertakers for raising Thames water in York-buildings||1776||Teinds||This case was about the right to teinds on lands that the York Building Company purchased from the Barons of Exchequer. The lands, as part of the estate of Southesk, had been forfeited to the Crown after their owner participated in the Jacobite rising of 1715. The York Building Company then purchased the estate from the public. In the 1770s, a dispute arose over teinds on a portion of the estate in the parish of Leuchar. According to the Solicitor of Tithes, the York Building Company only possessed these teinds by tacit relocation (i.e., by holding over on a lease), and was required to get a new lease; the Solicitor eventually brought an action for payment of tithes. The Company claimed a right to the teinds based on a 1744 disposition from the Barons of Exchequer. Additionally, it claimed to have purchased the lands in reliance on a rent-roll that did not include a deduction for teinds. The Solicitor argued that the teinds were never part of the forfeited estate, and therefore could not have been sold to the Company.|
|Anderson v. Izat||1781||Ministers Stipend||This case was about a dispute over a minister's stipend in the newly formed parish of Gorbals.|
|Sommerville v. Home||1785||Valuation, Teinds||In a proceeding to determine a minister’s stipend, certain heritors of the parish of Westruther (which includes the former parish of Gordon), objected that the rent assigned to John Somerville of Evelaw was too low. The court allowed a proof of the rent of Sommerville’s lands, and Somerville protested on two grounds. First, he argued that he had a right to the teinds warranted to be free of any augmentation. Second, he argued that there had already been a valuation of the rents of his lands.|
|Barry, et al v. Incorporation of Weavers, et al||1789|
|Duke of Gordon v. Lord Swinton's Interlocutor||1787||Documents available. Full description in progress.|
|Fordyce v. Robertson, et al||1788||Documents available. Full description in progress.|
|Ministers of Kingbarns v. Hay, et al||1799|
|Robert Forsyth v. Hon. Henry Erskine and the Members of the Faculty of Advocates||1790|
|Mrs. Weatherstone and Others v. Marquis of Tweedale and Others||1833|