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JOURNAL OF JURISPRUDENCE,
LONDON : STEVENS, SONS, AND HAYNES.
JOURNAL OF JURISPRUDENCE.
THE COURT OF TEINDS AND MR BƯCHANAN'S TREATISE.
A Treatise on the Law of Scotland on the subject of Teinds or Tithes.
By WILLIAM BUCHANAN, Esq., Advocate, Solicitor of Tithes in Scotland, etc., etc. Edinburgh : Bell and Bradfute.
The Law of Teinds is, in more senses than one, decidedly conservative in its tendency. Founded in the most ancient traditions of our history, referring for its sources and its illustrations to the jus canonicum of the middle ages, dealing with rights of property which originated in usurpation, and which are maintained and vindicated in defiance of the doctrine of prescriptive possession which limits the investigation of feudal titles, it is essentially a thing of the past, like a fragment of some extinct projected formation into a world peopled by forms of a different order, and governed by different laws and usages. The very practitioners of this antique jurisdiction seem to have descended with it from an earlier generation. The author of the treatise before us, who, as her Majesty's counsel in the Court of the Commissioners, may be regarded as a representative man among those who are learned in the law of Teinds, is, we believe, the oldest practising member of the bar; and, judging from his work, we should say that he inherits much of that passion for antiquarian research and recondite examination of authorities which distinguished the bar at an earlier period of its history than the present century. We are not prepared to affirm that Mr Buchanan's connection with the Court of Commissioners dates from its institution in 1707, but we should not feel surprised to learn that it was so. But for his presence on Friday mornings at nine o'clock, we are persuaded that the Lord Ordinary's department would expire of inanition ; and
VOL. VII., NO. LXXIII. - JANUARY 1863.
how it ever could have existed without him is a problem so difficult of solution, that we prefer to take refuge in the belief, that the Court of Teinds and Mr Buchanan are, and ever were, as Mr Mill would say, co-existent. When, therefore, we follow Mr Buchanan's elucidations of the many intricate questions that were determined in the youth of the Court of Teinds, we defer to his reasoning with the respect which justly belongs to contemporanea expositio ; and feel assured that, if not actually present at the hearing of the decisions which he cites, he has so thoroughly imbibed the spirit of that department of ancient erudition, as to have become in effect its authentic interpreter.
Mr Buchanan's treatise on the Law of Teinds has been known to be in preparation for a considerable time past; and those whose professional avocations bring them into frequent contact with the intricate and unfamiliar steps of a teind process, have naturally looked forward to its appearance with some anxiety. In attempting to estimate a work upon a departinent of the law which, as Mr Buchanan truly affirms, is supposed to be a good deal involved in obscurity, we must not presume too readily on the reader's acquaintance with the subject. We, of course, must be presumed to be conversant with it; but the reader, unless he is also an editor, is not privileged to know everything ; and if he is conscious of being profoundly illiterate on the subject of tithes, it may be some consolation to him to know that his ignorance is shared by many excellent persons in both branches of the legal profession. In the meantime, it is to be feared that the brief space (six pages octavo) allotted to the business of this review, is wholly inadequate to the accomplishment of the object which we have at heart—the enlightenment of the reader; a circumstance which makes it only the more clearly imperative that we should advise him to acquire Mr Buchanan's book, in which he will find abundant information on every conceivable point connected with the law of this description of property, and the rights of the Church, the heritor, the patron, and the titular.
The treatise commences with an Introductory Chapter, in which are sketched with clearness and accuracy the history of the law of tithes. Beginning with an account of the several orders of clergy in the Romish Church, the tenure of their offices, and their right to the spiritual emoluments pertaining to them, it diverges to the alterations on the canon law rules sanctioned by the Scottish Parliaments prior to the Reformation, and concludes with a survey of the state of ecclesiastical property after the general confiscation, and the effects resulting from the alternations between Episcopal and Presbyterian church government in the fifteenth century.
The initial chapter on the Nature and Distinction of Teinds, after defining the limits and incidence of parsonage and vicarage tithes, is chiefly occupied with the discussion of the question, What lands are teindable ? On the interesting question of the liability of lands reclaimed from the sea or inland lakes, raised in the Lochleven case, the author makes the following observations :
It is an admitted principle that waste lands are not teindable, but become teindable when reclaimed ; and, on the same ground, ought not the lands reclaimed by embankment or drainage to be in like manner teindable? The mere nature of the obstacles removed can make no difference in the rule of law. There may no doubt be much difference in different cases, between the amount of labour and expense incurred in remoying the obstacles that stand in the way of bringing the lands into cultivation. But the nature of the obstacles removed, or the difficulties or expense incurred in their removal, cannot affect the character or liabilities of the land, when actually cleared and made arable. The labour and expense employed in that operation may lead to some equitable consideration in the circumstances, but it can be no reason for setting aside the rule of law, and declaring in favour of the lands an immunity from teinds which the law does not acknowledge.'-(P. 72.)
Passing over the subject of Tacks, we pause to notice that the chapter on Valuation and Sale contains a full discussion (p. 182, et seq.) of the various questions affecting the validity of valuations which depend on the title of the parties to sue or to defend. From the authorities there cited, it appears that the Court has, in several instances, reduced decrees of valuation which had stood for more than a century, on the ground that all parties interested had not been called.
The chapter on Augmentations, the longest in the volume, will doubtless be very frequently referred to; and here we cannot but lament that, in treating of a subject which does not admit of methodical subdivision, the author has not furnished his readers with a guide to the import of the text, in the shape of marginal notes, or short titles to the paragraphs. We know, by painful experience, the irksomeness of the task of writing a marginal abstract to a law-book; and we are also aware that the adjection of such an abstract forms a serious addition to the expense of printing. But the contribution of this additional labour and expense doubles the value of the book as a work of reference, and it ought to be given cheerfully and ungrudgingly. In the absence of paragraph titles, those professional gentlemen who are obliged to make use of the book, have no alter