Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 SUMMER SESSION.

The Archbishop of Glasgow
v.
Two Commissary Clerks of Peebles

Date: 29 June 1677

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Doctor Burnet, now Archbishop of Glasgow, pursues two commissary clerks of Peebles, for putting them from their place.

Alleged, They cannot be removed, because they possess by virtue of a gift from Robert Leighton, when he governed that diocess.

Replied, That gift could not defend them, because it was a non hdbente po-testatem, he never being Archbishop of Glasgow, in so far as he was never legally translated from Dumblaine to Glasgow, as the canons require. (See the form of the translation marked by me alibi from the service book, in June 1677, on the translating of Mr Murdoch M'Keinzie, from Moray to Orkney.) 2do, the conjoining of two in one office, and to the longest liver, is unlawful, and not to be permitted in any but proprietors; else administrators of bishoprics may, by such tailyies, survivances, and reversions, forestal all the profit of places for an age to come, and prejudge his successor in the place: which is most unreasonable, for if he may conjoin two, then he may put in six, viz. the father, son, and grandchild, or brother, and so enhance all for fifty or sixty years to come.

Duplied, By our law translations are not absolutely necessary; see act 1, in 1617; that it is but a Popish nicety, which can never be obtruded against so material equity, where they are invested in a place by one who had a putative title, and the King's call, and was in actual possession, and holden and reputed Archbishop; Vide L. 3, Barbarius Philippus, D. de Officio Prætoris; and they were in bona fide, to take a right from him. As for the conjoining, custom has made the same lawful, there being nothing more universal; as old Sir David Falconer of Glenfarquhar and his son Sir David, were conjunct commissaries of Edinburgh; Mr Henry Hay, clerk to that commissariat, had got the place also continued on his son; Sir William Purves had done the same with his office of solicitor to his Majesty; and the Lyon had the gift of that office to himself and his son; and Mr William Ramsay, and Mr James Rocheid, were conjunct clerks of Edinburgh.

Triplied, That any canonist who understood anything of the investiture of the clergy in church benefices, would confess that translation was absolutely necessary to give him a right to the benefice ad quem; for they go upon two grounds. Imo, They account it spirituale matrimonium between the bishop and his church: now the marriage knot cannot be dissolved till he be transferred. 2do, In imitation of the personal rights in the feudal law, their breve testamentum, or charter, and their investitura et inductio in possessionem, the canons have introduced presentation, collation, and institution; and where one is transplanted, then the translation is his new investiture and induction unto the possession; and without that they acknowledge no right in his person, neither to perform spiritual offices within that diocese, or to intromit with the temporality and rents. See Tit. de translatione clerico-rum in decretalibus, and Lancelot's Institutiones Canonicæ: see Dynus's Commentary ad Regulam 1 Juris Canonici, and my summary of him. Vide infra, num. 625, [27th July, 1677, Duke of York against the Earl of Argyle.] See the like question in Joannes Imbertus his Institutiones Forenses, libro 1, cap. 16. pag.

The Lords sustained the clerks their conjunct gifts, in respect of the custom to give the survivance of places, and repelled all the reasons of declarator and reduction against the same.

Advocates' MS. No. 588, folio 291.