the Scots court transferred to them, of paffing the accounts of sheriffs or other officers who have the execution of writs iffuing from, or returnable to, the court of exchequer, and of receiving refignations, and paffing fignatures of charters, gifts of cafualties, &c. But though all these must pafs in exchequer, it is the court of feffion only who can judge of their preference after they are completed. 16. The jurifdiction of the ADMIRAL in maritime caufes was of old concurrent with that of the feffion. The high admiral is declared the king's juftice-general upon the feas, on fresh water within flood-mark, and below the first bridge, and in all harbours and creeks. His civil jurifdiction extends to all maritime caufes; and fo comprehends questions of charter-parties, freights, falvages, bottomries, &c. He exercises this fupreme jurisdiction by a delegate, the judge of the high court of admiralty; and he may alfo name inferior deputies, whofe jurifdiction is limited to particular diftricts, and whofe fentences are fubject to the review of the high court. In caufes which are declared to fall under the admiral's cognizance, his jurifdiction is fole; infomuch, that the feffion itfelf, though it may review his decrees by fufpenfion or reduction, cannot carry a maritime queftion from him by advocation. The admiral has acquired, by ufage, a jurifdiction in mercantile causes, even where they are not ftrictly maritime, cumulative with of the judge ordinary,

17. All our fupreme courts have feals or fignets proper to their feveral jurifdictions. The courts of feffion and jufticiary used formerly the fame fignet, which was called the king's, because the writs iffuing from thence run in the king's name; and though the jufticiary got at laft a feparate fignet for itself, yet that of the feffion still retains the appellation of the KING'S SIGNET. In this office are fealed fummonfes for citation, letters of executorial diligence, or for staying or prohibiting of diligence, and generally whatever paffes by the warrant of the feffion, and is to be executed by the officers of the court, All these muft, before fealing, be figned by the writers or clerks of the fignet: but letters of diligence, where they are granted in a depending procefs, merely for probation, though they pafs by the fignet, must be fubfcribed by a clerk of feffion. The clerks of the fignet alfo prepare and subscribe all fignatures of charters, or other royal grants, which pafs in exchequer.

SECT. III. Of the INFERIOR JUDGES and COURTS of SCOTLAND.

1. SHERIFF (from Sheer, to cut or divide, and reeve, governor) is the judge ordinary conftituted by the crown over a particular divifion or county. The theriff's jurisdiction, both civil and criminal, was, in ancient times, nearly as ample within his own territory as that of the fupreme courts of feffion and jufticiary was over the whole kingdom.

2. His civil jurifdiction now extends to all actions upon contracts, or other perfonal obligations; forthcomings, poindings of the ground, mails and duties; and to all poffeffory actions, as removings, ejections, fpuilzies, &c; to all brieves

iffuing from the chancery, as of inqueft, terce, divifion, tutory, &c.; and even to adjudications of land eftates, when proceeding on the renunciation of the apparent heir. His prefent criminal jurifdiction extends to certain capital crimes, as theft, and even murder, though it be one of the pleas of the crown; and he is competent to moft queftions of public police, and has a cumulative jurisdiction with juftices of the peace in all riots and breaches of the peace.

3. Sheriffs have a minifterial power, in virtue of which they return juries, for the trial of causes that require them. The writs for electing members of parliament have been, fince the union, directed to the fheriffs, who, after they are executed, return them to the crown office from whence they iffued. They also execute writs ifluing from the court of exchequer; and, in general, take care of all eftates, duties, or cafualties, that fall to the crown within their territory, for which they must account to the exchequer.

4. A LORD of REGALITY was a magiftrate who had a grant of lands from the fovereign, with a royal jurifdiction annexed thereto. His civil jurifdiction was equal to that of a sheriff; his criminal éxtended to the 4 pleas of the crown. He had a right to repledge or reclaim all criminals, fubject to his jurifdiction, from any other competent court, though it were the jufticiary itself, to his own. He had alfo right, according to the most common opinion, to the fingle efcheat of all denounced perfons refiding within his jurifdiction, even though fuch privilege had not been expressed in the grant of regality.

5. The STEWART was the magiftrate appointed by the king over fuch regality lands as happened to fall to the crown by forfeiture, &c. and therefore the stewart's jurifdiction was equal to that of a regality. The two ftewartries of Kirkcudbright, and of Orkney and Zetland, make fhires or coun ties by themselves, and fend each a reprefentative to parliament."

6. Where lands not erected into a regality fell into the king's hands, he appointed a bailie over them, whofe jurisdiction was equal to that of a sheriff.

7. By the late jurifdiction act, 20 Geo. II. all heritable regalities and bailieries, and all fuch heritable fheriffships and ftewartries as were only parts of a fhire, are diffolved; and the powers formerly vefted in them are made to devolve upon have belonged to, if the jurifdictions diffolved had fuch of the king's courts as thefe powers would never been granted. All fheriffships and stewartries that were no part of a fhire, where they had been granted, either heritably or for life, are re. refumed and annexed to the crown. No high fhe riff or stewart can hereafter judge perfonally in any caufe. One sheriff or stewart-depute is to be appointed by the king in every thire, who muft be an advocate of three years standing; and whofe office as sheriff or ftewart-depute is now, by 28 Geo. III. held ad vitam aut culpam.

8. The appanage, or patrimony, of the prince of Scotland, has been long erected into a regality jurifdiction, called the Principality. It is perfo nal to the king's eldett fon, upon whofe death or

fucceffion

fucceffion it returns to the crown. The prince has, or may have, his own chancery, from which his writs iffue, and may name his own chamberlain and other officers, for receiving and managing his revenue. The vaffals of the princes are entitled to elect, or to be elected, members of parliament for counties, equally with those who hold of the crown.

9. JUSTICES of the PEACE are magiftrates named by the fovereign, over the feveral counties of the kingdom, for the special purpose of preferving the public peace. Anciently their power reached little farther than to bind over diforderly perfons for their appearance before the privy council or jufticiary; afterwards they were authorised to judge in breaches of the peace, and in most of the laws concerning public police. They may compel workmen or labourers to ferve for a reafonable fee, and they can condemn mafters in the wages due to their fervants. They have power to judge in questions of highways, and to call out the tenants with their cottars (cottagers) and fervants to perform fix days work yearly for upholding them. It has been lately, however, found by the court of feffion, that justices have no jurifdiction whatever in common actions for debt. So that it now seems fixed, that they are incompetent in fuch actions, except where they are declared competent by special statute.

10. Since the union, our justices of the peace, over and above the powers committed to them by the laws of Scotland, are authorised to exercife whatever belonged to the office of an English juftice in relation to the public peace. From that time, the Scots and the English commiffions have run in the fame ftyle, which contain powers to inquire into and judge in all capital crimes, witchcrafts, felonies, and feveral others specially enumerated; with this limitation fubjoined, of which juftices of the peace may lawfully inquire. Two juftices can conftitute a court. Special ftatute has given the cognisance of feveral matters of excife to the juftices, in which their sentences are final; as to which, and the powers thereby vested in them, the reader must be referred to the excife laws, and to the treatises upon the office of a juf tice of the peace.

11. A BOROUGH is a body corporate, made up of the inhabitants of a certain tract of ground erected by the fovereign, with jurisdiction annexed to it. Boroughs are erected, either to be holden of the fovereign himself, which is the cafe of royal boroughs; or of the fuperior of the lands erected, as boroughs of regality and barony. Boroughs royal have power, by their charters, to choose annually certain office-bearers or magif trates; and in boroughs of regality and barony, the nomination of magiftrates is, by their charter, lodged fometimes in the inhabitants, fometimes in the fuperior. Bailies of boroughs have jurifdiction in matters of debt, fervices, and queftions of poffeffion betwixt the inhabitants. Their criminal jurifdiction extends to petty riots, and reckless fire-railing. The dean of guild is that magiftrate of a royal borough who is head of the merchant company. He has the cognisance of mercantile caufes within borough; and the infpection of buildings, that they encroach neither on private

property, nor on the public ftreets; and he may direct infufficient houses to be pulled down. His jurisdiction has no dependence on the court of the borough, or bailie-court.

12. A BARON, in the extenfive sense of that word, is one who holds his lands immediately of the crown; and, as such, had by our ancient conftitution, right to a feat in parliament, however small his freehold might have been. The leffer barons were exempted from the burden of attending the fervice of parliament. This exemption grew infenfibly into an utter disability in all the leffer barons from fitting in parliament, without election by the county; though there is no ftatute exprefsly excluding them.

13. To conftitute a baron in the strict law sense, his lands must have been erected, or at leaft confirmed, by the king, in liberam baroniam; and fuch baron had a certain jurisdiction, both civil and criminal, which he might have exercised, either in his own perfon, or by his bailie.

14. But by the jurisdiction act, the civil jurifdiction of a baron is reduced to the power of recovering from his vaffals and tenants the rents of lands, and of affeffing them in mill-services; and of judging in caufes where the debt and damages do not exceed 40s. Sterling. His criminal jurisdiction is, by the fame ftatute, limited to affaults, batteries, and other smaller offences, which may be punished by a fine not exceeding 20s. Sterling, or by fetting the offender in the stocks in the day-time not above three hours; the fine to be levied by poinding, or one month's imprifonment. The jurifdiction formerly competent to proprietors of mines, and coal or falt works, over their workmen, is reserved; and alfo that which was competent to proprietors who had the right of fairs or markets, for correcting the diforders that might happen during their continuance; provided they shall exercise no jurisdiction inferring the lofs of life, or demembration.

15. The HIGH CONSTABLE of Scotland had no fixed territorial jurifdiction, but followed the court; and had, jointly with the marischal, the cognifance of all crimes committed within two leagues of it. All other conftabularies were dependent on him. Thefe had caftles, and fometimes boroughs, fubject to their jurifdiction, as Dundee, Montrofe, &c. and among other powers, now little known, they had the right of exercising criminal jurisdiction within their respective territories during the continuance of fairs. By the jurifdiction act, all jurifdictions of conftabulary are diffolved, except that of high conftable.

16. The office of the LYON KING OF ARMS was chiefly minifterial, to denounce war, proclaim peace, carry public meffages, &c. But he has alfo a right of jurisdiction, whereby he can punish all who ufurp arms contrary to the law of arms, and deprive or fufpend meffengers, heralds, or purfuivants (who are officers named by himself); but he has no cognisance of the damage arifing to the private party through the meffenger's fault. Meffengers are fubfervient to the fupreme courts of feffion and jufticiary: and their proper business is to execute all the king's letters either in civil or criminal caufes. They must find caution for the pro per difcharge of their duty as messengers; and

17. Our judges had, for a long time, no other falaries or appointments than what arofe from the fentences they pronounced. Our criminal judges applied to their own use the fines or iffues of their feveral courts; and regalities had a right to the fingle efcheat of all perfons denounced, who refided within their jurisdiction; and our civil judges got a certain proportion of the fum contained in the decree pronounced. But thefe were all prohibited upon regular falaries being fettled upon

them.

SECT. IV. Of ECCLESIASTICAL PERSONS.

1. THE Pope, or bishop of Rome, was long ac. knowledged, over the western part of Chriftendom for the head of the Chriftian church. The papal jurifdiction was abolished in Scotland in 1560. The king was, by act 1669, declared to have fupreme authority over all perfons, and in all caufes ecclefiaftical; but this act was repealed by act 1690, as inconfiftent with the Prefbyterian church government, which was then upon the point of being established.

2. Before the reformation from Popery, the clergy was divided into fecular and regular. The fecular had a particular tract of territory given them in charge, within which they exercised the paftoral office of bishop, prefbyter, or other church officer. The regular clergy had no cure of fouls; but were tied down to refidence in their abbacies, priories, or other monafteries: and they got the name of regular, from the rules of mortification to which they were bound, according to the inftitution of their feveral orders. Upon the vacancy of any benefice, whether fecular or regular, commendators were frequently appointed to levy the fruits, as factors or ftewards during the vacancy. The Pope alone could give the higher benefices in commendam; and at laft, from the plenitude of his power, he came to name commendators for life, and without any obligation to account. After the reformation, feveral abbacies and priories were given by James VI. in perpetuam commendam, to laics.

3. Upon abolishing the Pope's authority, the regular clergy were totally fuppreffed; and, in place of all the different degrees which diftinguifhed the fecular clergy, we had at firft only parochial prefbyters or minifters, and fuperintendants, who had the overfight of the church within a certain diftrict: Soon thereafter the church government became epifcopal, by archbishops, bishops, &c.; and after fome intermediate turns, is now presbyterian, by kirk-feffions, presbyteries, fynods, and general affemblies.

4. The term Prelate, in our ftatutes, fignifies a bishop, abbot, or other dignified clergyman, who,

5. He who founded or endowed a church was entitled to the right of patronage of it, or advocatio ecclefia; whereby, among other privileges, he might present a churchman to the cure, in cafe of a vacancy. The prefentee, after he was received into the church, had a right to the benefice proprio jure; and if the church was pa rochial, he was called a parfon. The pope claimed the right of patronage of every kirk to which no third party could fhew a special title; and fince the reformation, the crown, as coming in place of the pope, is confidered as univerfal patron, where no right of patronage appears in a subject. Where two churches are united, which had different patrons, each patron prefents by turns.

6. Gentlemen of eftates frequently founded colleges or collegiate churches; the head of which got the title of provoft, under whom were certain prebendaries, or canons, who had their feveral stalls in the church, where they fung maffes. Others of leffer fortunes founded chaplainries, which were donations granted for the finging of maffes for deceased friends at particular altars in a church. Though all these were fuppreffed upon the reformation, their founders continued patrons of the endowments; out of which they were allowed to provide burfars, to be educated in any of the univerfities.

7. Where a fund is gifted for the establishment of a second minifter in a parish where the cure is thought too heavy for one, the patronage of fuch benefice does not belong to the donor, but to him who was patron of the church, unless either where the donor has referved to himself the right of patronage in the donation, or where he and his fuc2 ceffors have been in the conftant use of presenting the 2d minifter, without challenge from the pa tron. The right of prefenting incumbents was, by act 1650, c. 23, taken from patrons, and vested in the heritors and elders of the parish, upon payment to be made by the heritors to the patron of 600 merks; but it was again restored to patrons, ro Ann. c. 12, with the exception of the presentations fold in pursuance of the former act.

8. Patrons were not fimply administrators of the church; for they held the fruits of the vacant benefice as their own, for fome time after the re formation. But that right is now no more than a truft in the patron, who muft apply them to pious ufes within the parish, at the fight of the heritors, yearly as they fall due. If he fail, he lofes his right of adminiftering the vacant ftipend for that and next vacancy. The king, who

is exempted from this rule, may apply the vacant ftipend of his churches to any pious ufe, though not within the parith. If one fhould be ordained to a church, in oppofition to the prefentee, the patron, whofe civil right cannot be affected by any fentence of a church-court, may retain the ftipend as vacant. Patrons are to this day entitled to a feat and burial-place in the churches of which they are patrons, and to the right of all the teinds (i.e. tithes) of the parish not heritably difponed. See CHAP. II. Sec. X.

9. That kirks may not continue too long vacant, the patron must prefent to the prefbytery (former ly to the bishop), a fit perfon for fupplying the cure, within fix months from his knowledge of the vacancy, otherwise the right of presentation accrues to the prefbytery jure devoluto. Upon prefentation by the patron, the bishop collated or conferred the benefice upon the prefentee by a writing, in which he appointed certain minifters of the diocese to induce or inftitute him into the church: which induction completed his right, and was performed by their placing him in the pulpit, and delivering to him the bible and keys of the church. The bishop collated to the churches of which himself was patron, pleno jure, or without presentation; which he alfo did in menfal churches, whofe patronages were funk, by the churches being appropriated to him, as part of his patrimony. Since the revolution, a judicial act of admiffion by the prefbytery, proceeding either upon a prefentation, or upon a call from the heritors and elders, or upon their own jus devolutum, com pletes the minifter's right to the benefice.

10. Soon after the reformation, the Popish churchmen were prevailed upon to refign in the fovereign's hands a third of their benefices; which was appropriated, in the first place, for the fubfiftence of the reformed clergy. To make this fund effectual, particular localities were affigned in every benefice, to the extent of a third, called the affumption of thirds; and for the further fupport of minifters, Q. Mary made a grant in their favour of all the small benefices not exceeding 300 merks. Bishops, by the act which reftored them to the whole of their benefices, were obliged to maintain the minifters within their dioceses out of the thirds; and in like manner, the laic titulars, who got grants of the teinds, became bound, by their acceptance thereof, to provide the kirks within their erections in competent ftipends.

11. But all thofe expedients for the maintenance of the clergy having proved ineffectual, a commiffion of parliament was appointed, in the reign of James VI. for planting kirks and modifying ftipends to minifters out of the teinds; and afterwards feveral other commiffions were appointed, with the more ample powers of dividing large parishes, erecting new ones, &c. all of which were, in 1707, transferred to the court of feffion, with this limitation, that no parish should be disjoined, nor new church erected, nor old one removed to a new place, without the confent of three 4ths of the heritors, computing the votes, not by their numbers, but by the valuation of their rents within the parish. The judges of feffion, when

fitting in that court, are confidered as a commiffion of parliament, and have their proper clerks, ma cers, and other officers of court, as fuch.

12. The loweft ftipend that could be modified to a minifter by the firft commiffion, was 500 merks, or five chalders of victual, unlefs where the whole teinds of the parish did not extend fo far: and the higheft was 1000 merks, or ten chalders. The parliament, in 1633, raised the minimum to 8 chalders of victual, and proportionably in filver; but as neither the commiffion appointed by that act, nor any of the subsequent ones, was li mited as to the maximum, the commiffioners have been in ufe to augment ftipends confiderably above the old maximum, where there is fufficiency of free teinds, and the cure is burdensome, or living expenfive*.

13. Where a certain quantity of stipend is modified to a minifter out of the teinds of a parish, without proportioning that stipend among the fe veral heritors, the decree is called a decree of modification: but where the commiffioners alfo fix the particular proportions payable by each heritor, it is a decree of modification and locality. Where a stipend is only modified, it is fecured on the whole teinds of the parith, fo that the minif ter can infist against any one heritor to the full extent of his teinds; fuch heritor being always entitled to relief against the reft, for what he fhall have paid above his juft fhare; but where the ftipend is alfo localled, each heritor is liable in no more than his own proportion.

14. Few of the reformed minifters were, at first, provided with dwelling-houses; moft of the Popifh clergy having, upon the firft appearance of the reformation, let their manfes in feu, or in long tacks: minifters therefore got a right, in 1563, to as much of these manfes as would ferve them, notwithstanding fuch feus or tacks. Where there was no parfon's nor vicar's manfe, one was to be built by the heritors, at the fight of the bifhop (now the prefbytery), the charge not exceeding L.1000 Scots, nor below soo merks. Under a manfe are comprehended ftable, barn, and byre (cow-houfe), with a garden; for all which it is ufual to allow half an acre of ground.

15. Every incumbent is entitled at his entry to have his manfe put in good condition; for which purpose, the prefbytery may appoint a vifitation by tradefmen, and order estimates to be laid before them of the fums necessary for the repairing, which they may proportion among the heritors according to their valuations. The prefbytery, after the manfe is made fufficient, ought, upon application of the heritors, to declare it a free manfe; which lays the imcumbent under an obligation to uphold it in good condition during his incumbency, otherwise he or his executors fhall be liable in damages; but they are not bound to make up the lofs arifing from the neceffary decay of the building by the wafte of time.

16. All minifters, where there is any landward or country parish, are, over and above their stipend, entitled to a glebe, which comprehends 4 acres of arable land, or 16 fowms of pafture ground where there is no arable land; (a sowM

is

is what will graze ten fheep or one cow); and it is to be defigned or marked by the bifhop or prefbytery out of fuch kirk lands within the parish as lie neareft to the kirk, and, in default of kirk lands, out of temporal lands.

17. A right of relief is competent to the heritors, whofe lands are set off for the manfe or glebe, against the other heritors of the parish. Manfes and glebes, being once regularly defigned, cannot be feued or fold by the incumbent in prejudice of his fucceffors, which is in practice extended even to the cafe where fuch alienation evidently appears profitable to the benefice.

18. Ministers, befide their glebe, are entitled to grafs for a horfe and two cows. And if the lands, out of which the grafs may be defigned, either lie at a diftance, or are not fit for pasture, the heritors are to pay to the minifter L.20 Scots yearly as an equivalent. Minifters have also freedom of foggage, pafturage, fuel, feal, divot, loaning, and free ith and entry, according to ufe and wont; but what these privileges are, muft be determined by the local cuftoms of the feveral parishes.

19. The legal terms at which ftipends become due to minifters are Whitfunday and Michaelmas. If the incumbent be admitted to his church before Whitfunday (till which term the corns are not prefumed to be fully fown), he has right to that whole year's ftipend; and if he is received after Whitfunday, and before Michaelmas, he is entitled to the half of that year; becaufe, though the corns were fown before his entry, he was admitted before the terms at which they are prefumed to be reaped. If he dies or is tranflated to another benefice before Whitfunday, he has tight to no part of that year; if before Michaelmas, to the half; and if not till after Michaelmas, to the whole.

20. After the minifter's death, his executors have right to the annat; which, in the fenfe of the canon law, was the right referved to the Pope, of the first year's fruits of every benefice. Upon a threatened invafion from England, 1547, the annat was given, by our parliament, to the executors of fuch churchmen as fhould fall in battle in defence of their country; but the word annat, or ann, as it is now understood, is the right which law gives to the executors of minifters, of half a year's benefice over and above what was due to the minifter himself for his incumbency.

21. The executors of a minifter need make up no title to the ann by confirmation; neither is the right affignable by the minister, or affectable with his debts; for it never belonged to him, but is a mere gratuity given by law to those to whom it is prefumed the deceased could not fufficiently provide for; and law has given it exprefsly to execu tors; and if it were to be governed by the rules of fucceffion in executory, the widow, in cafe of no children, would get one-half, the other would go the next of kin; and where there are children, fhe would be entitled to a third, and the other two thirds would fall equally among the children. But the court of feffion have in this laft cafe divided the ann into two equal parts, of which one goes to the widow, and the other among the children in capita.

22. From the great confidence that was, in the VOL. XIII. PART I

firft ages of Chriftianity, repofed in churchmen, dying perfons frequently committed to them the care of their eftates, and of their orphan children but thefe were fimply rights of trust, not of jurifdiction. The clergy foon had the addrefs to the tablish to themselves a proper jurifdiction, not confined to points of ecclefiaftical right, but extending to queftions that had no concern with the church. They judged not only in teinds, patronages, teftaments, breach of vow, fcandal, &c. but in questions of marriage and divorce, because marriage was a facrament; in tochers, becauf these were given in confideration of marriage; in all queftions where an oath intervened, on pretence that oaths were a part of religious worship, &c. As churchmen came, by this extensive jurisdiction, to be diverted from their proper functions, they committed the exercife of it to their officials or commiffaries: Hence the commiffary court was called the Bishop's Court, and Curia Chriftianitatis: It was alfo ftyled the Confiftorial Court, from confiftory, a name firft given to the court of appeals of the Roman emperors, and afterwards to the court of judicature held by churchmen.

23. At the reformation, all episcopal jurisdiction, exercised under the authority of the Pope, was abolished. As the course of justice in confiftorial caufes was thereby stopped, Q. Mary, befides naming a commiffary for every diocese, did, by a fpecial grant, eftablish a new commiffary court at Edinburgh, confifting of 4 judges or commiffaries. This court is vefted with a double jurifdiction; one diocesan, which is exercised in the special territory contained in the grant, viz. the counties of Edinburgh, Haddington, Linlithgow, Peebles, and a great part of Stirlingfhire; and another univerfal, by which the judges confirm the testaments of all who die in foreign parts, and may reduce the decrees of all inferior commiffaries, provided the reduction be pursued within a year after the decree. Bishops, upon their reeftablishment in the reign of James VI. were reftored to the right of naming their feveral cum. miffaries.

24. As the clergy, in times of Popery, affumed a jurifdiction independent of the civil power of any fecular court, their fentences could be review-ed only by the pope, or judges delegated by him; fo that, with regard to the courts of Scotland, their jurifdiction was fupreme. But, by an act 1560, the appeals from our bishops courts, that were then depending before the Roman confiftories, were ordained to be decided by the court of feffion; and by a pofterior act, 1609, the feffion is declared the king's great confiftory, with power to review all fentences pronounced by the commiffaries. Nevertheless, fince that court had no inherent jurifdiction in confiftorial causes prior to this ftatute, and fince the ftatute gives them a power of judging only by way of advocation, they have not, to this day, any proper confiftorial jurifdiction in the firft inftance; neither do they pronounce fentence in any confiftorial caufe brought from the commiffaries, but remit it back to them with inftructions. By the practice immediately fubfequent to the act before quoted, they did not admit advocations from the inferior commiffaries, till the cause was first brought before the commif