L A W. 



661 



5. Soon after the Reformation, the Popish church. 

 ; men were prevailed upon to resign in the sovereign's 



h.injj a third of their benefices ; which, by 1567, c. 10, 

 was appropriated, in the first place, for the subsistence 

 of the reformed clergy. To make this fund effectual, 

 particular localities were assigned in every benefice to 

 the extent of a third, called the assumption qf'l/iirdi ; 

 and for the farther support of ministers, Queen Mary 

 made a grant in their favour of all the small benefices, 

 not exceeding 300 merks, which was confirmed by 

 -'. c. 52. Bishops, by the act which restored them 

 to the whole of their benefices, 1606, c. 2, were obliged 

 to maintain the ministers within their dioceses, out of 

 the thirds ; and in like manner the laic titulars, who 

 got grants of the teinds, became bound, by their ac- 

 ceptation of them, to provide the kirks within their 

 erections in competent stipends. 



6. But all these expedients for the maintenance of 

 the clergy having proved ineffectual, a commission of 

 Parliament was appointed in the reign of James VI. 

 for planting kirks, and modifying stipends to ministers 

 out of the teinds, 1617, c. 3, to which a power was soon 

 iiiperadded of dividing large parishes and erecting new 

 churches, by 1621, c. 5 : a second commission \v . 

 pointed, 1633, c. 19, not only for modifying stipends, 

 but for the valuation and sale of teinds. After the 

 Restoration, several new commissions were granted by 

 Parliament, with more ample powers of dismembering 

 and annexing churches as they should find just, 1661, 

 c, 6l, *tc. ; but the powers of all these were, by 1707, 

 c. 9, transferred to the Court of Session, with thi* limi- 

 tation, that no parish should be disjoined, new church 

 erected, or old one removed to a new place, without the 

 consent of three fourths of the heritors, computing the 

 vote* not by their numbers, but by the valuation of 

 their rent* within the parish. The judges of the Ses- 

 sion, when sitting in that court upon the causes so de- 

 volved upon them, are considered as a commission of 

 Parliament, and have their proper clerks, macers, and 

 adur officeii of court, as such. Their judgments in 

 that capacity may be appealed to the House of Lords 

 as in ordinary cue*. And the powers and duties of 

 this commission have been lately defined and regulated 

 by +8<;eo. III. c. 138. 



7. The lowest stipend that could be modified to a 

 minister by the first commission 1C17, c, 3, was 500 

 merks, or five chalders of victual, unless where the 

 whole teinds of the parish did not extend so far ; and 

 the highest was 1000 merks, or ten chalders. The 

 Parliament, 1'i '."., r. s, raised the minimum to eight 

 cbakirrs of victual, and proportionally in money ; but as 

 neither the commission appointed by that act, nor any 

 u I the subsequent one*, was limited as to the maximum, 

 the commiMioner* hare been in the practice of aug- 

 menting stipends considerably above the old murimiun, 

 where there is sufficiency of free tcimU, and the cure 

 is burdensome, or living expensive. 



*. Few of the reformed ministers were, at first, pro- 

 vided with dwelling-houses; most of the Popish clergy 

 having, upon the first appearance of the Reformation, 

 let their manses in feu, or in long tacks : Ministers, 

 therefore, got a right, by 1563, c. 72, to as much of 

 these manse* as would serve them, notwithstanding 

 such feu* or tacks. When there was no parson's or 

 vicar's manv, one was to be built by the heritors, at 

 the light of the bishop, (now the presbytery,) the 

 iharge not exceeding .1000 Scots, nor below 500 

 merks, K>49, c, 45 16G3, c. 21. Under a manse are 



comprehended stable, barn, and byre, with a garden ; Law 

 for all which it is usual to allow half an acre of ground, of Scotland. 

 Every incumbent is entitled, at his entry, to have his N """"Y" - ' 

 manse put into good condition. 



9- All ministers, where there is any landward or Glebe. 

 country parish, are, over and above their stipend, en- 

 titled to a glebe, which comprehends four acres of ar- 

 able land, or sixteen sowms of pasture ground where 

 there is no arable land, (a sowm is what will graze ten 

 sheep, or one cow,) and is to be designed or marked 

 by the bishop or presbytery, out of such kirk-lands 

 within the parish as lie nearest to the kirk, 1593, c. 

 165 1606, c. 7. As the benefit intended by these 

 acts to the clergy must have been lost where there 

 were no kirk-lands in the parish, it was provided, by 

 1644, c. 31, that, in default of kirk-lands, the glebe 

 should be designed out of temporal lands ; and this act, 

 though falling under the act recissory of Charles II, 

 seems to have been considered as still in force by 1663, 

 c. 21, which takes it for granted, that all ministers, ex- 

 cept those in certain royal boroughs, have right to 

 glebes. A right of relief is competent to the heritors 

 whose lands are set off for the manse or glebe, against 

 the other heritors" of the parish. 



10. Ministers, besides their glebe, were entitled to Grass, 

 grass for a horse and two cows, by 1649, c. 45, which 

 is revived, by l6t>3, c. 21 ; and if the kirk-lands, out 

 of which the grass may be designed, either lie at a dis- 

 tance, or are not fit for pasture ; the heritors are to pay 

 to the minister .20 Scots yearly, as an equivalent. 

 Ministers have also freedom of foggage, pasturage, fuel, 

 teal, divot, loaning, and free ish and entry, according 

 to use and wont, 1593, c. 165 1663, c. 21. What these other pri- 

 privileges are, must be determined by the local custom vileges of 

 of the several parishes. Besides the above mentioned ministers. 

 burdens which are imposed upon heritors, the parish- 

 ioners were obliged to provide communion cups and 

 lavers, 1617, c. 6, and to repair the kirk and kirk-yard 

 dikes, 1572, c. 54 1597, c. 232 ; but these burdens are 

 now for the most part undertaken by the heritors. 



TITLE II. Of Husband and Wife. 



1. Persons, when considered in a private capacity, Marriage, 

 are chiefly distinguished by their mutual relations ; as what ; 

 husband and wife, tutor and minor, father and child, 

 master and servant. The relation of husband and wife 



is constituted by marriage, which is the conjunction of 

 man and wife vowing to live inseparably till death. 



2. Marriage is truly a contract, and so requires the nullwith- 

 consent of parties. Idiots, therefore, and furious per- out con- 

 sons cannot marry. As no person is presumed capable sent 



of consent witliin the years of pupillarity, which, by our 

 law, lasts till the age of fourteen in males, and twelve in 

 females, marriage cannot be contracted by pupils ; but 

 if the married pair shall cohabit after puberty, such 

 acquiescence gives force to the marriiige. Marriage is 

 fully perfected by consent ; which, without consumma- 

 tion, founds all the conjugal rights and duties. The 

 consent requisite to marriage must be de praisenti. A which must 

 promise of marriage (stipulatio sponsalitia, ) though it be de pre- 

 was guarded by certain penalties in the Roman law, < 

 /. 5. c. de spans, may, by ours, be safely resiled from, 

 as long as matters are entire ; but if any thing be done 

 by one of the parties, whereby a prejudice arises from 

 the non-performance, the party resiling is liable in da- 

 mages to the other. The canonists, and after them our 



