GENERAL fider the subject, not chronologically downward, but rather under fuch general heads as may bring under our view the VIEW AND whole practical doctrine of this branch of our law. HISTORY. § 2. MAIN II. THE ordinary collections at the parish churches are fre- FUND FOR quently termed the natural and proper fund for maintaining TAINING the poor. It was found in one cafe, that collections at diffent- THE POOR. ing meeting-houfes make no part of this parochial fund . Collections. Mortcloth, THIS fund is fometimes increased by the kirk-fessions letting out a hearfe, mortcloth (pall), to hire; by the intereft &c. of mortified money, or land", &c. The kirk-feflion may In some instances diffenting congregations act more juflly and reafonably, either by maintaining their own poor, or allowing their collections to make part of the general fund; and thus preventing or diminifhing the neceffity of recurring to the lefs agreeable plan of an affeffment, which diffenters must pay as well as others. From the concurring statements from many parishes in fir John Sinclair's Statistical accounts, it would appear that mortifications, when not for fome extraordinary charity, out of the fphere of legal provifion, but for Vol. II. relief of the parochial poor, are more commendable for their piety than for their wifdom or utility. They benefit not the indigent, but the rich; lefs relieve the wants of the aged, difcafed, and fatherlefs, than merely discharge landlords and others of a tax which the law carefully proportions to the ability of each. This is not all. The number of poor has been generally found to increafe in proportion to the extent of fuch mortifications; not fo much from their relaxing the industry of the native parishioners, as by attract ing ftrangers from other quarters. Even this is not all. The undeniable mischiefs of provifions for the poor, in the way of mortification, are frequently, without discrimination, employed as arguments against all legal provifions for the poor. But neither evil arifes from those parochial affeffments, which the wisdom of the Scottish law makes to depend yearly for its increase, or diminution, or continuance, upon the difcretion of the heritors, minifter, and elders, on a judicial and public examination of circumftances. Thus, improper claims C § 2. FUND FOR MAIN THE POOR. acquire, by use and wont, the exclufive privilege of letting out the hearfe, mortcloth, &c. for hire within the parish. TAINING If they have immemorially been in the practice, and ftill are able, to accommodate the public, nobody can compete with them; neither corporations, nor the feflions of diffenting congregations *. BUT only immemorial ufage can give the kirk-feffion this exclufive right, or intitle it either to prevent individuals from letting out hearses and mortcloths for hire; or, still less are rejected and prevented; and no 10th August, 1756, Mr. Andrew The kirk-feffion of Keppan, a landward parish, had been in ufe, from time to time immemorial, of keeping and letting for hire, mortcloths for the funerals of perfons dying in the parish, and of applying the money for the ufe of the poor. A congregation of the feceders, within the bounds of this parish, bought mortcloths, and let them out to hire among thofe of their own perfuafion. The kirk-feffion brought a process of damages against them for ufing thofe mortcloths, and thereby diminishing the produce of the mortcloths of the kirk-feflion. right to adminiftrate the fame, "but prejudice to private perfons, to "make use of their own mortcloths "belonging to themfelves, and decerned the defenders to forbear "ufing mortcloths of their own, or lending out the fame for money, "or otherwife, to others through "of keeping, and letting for hire," the faid parish, or any part thereof "for the ufe of the poor, mortcloths "in time coming, but prejudice al"within the bounds of the parish; " and that the defenders have no "right to keep mortcloths, and give the fame out to hire, or even to The court of feffion found, "that "the kirk-feffion have the fole right ways to private perfons to make "ufe of their own mortcloths be" longing to themselves as faid is." (Fac. Decif. vol. i, no. 215.). indeed, to interrupt the ancient usage enjoyed by any corporation, or other body of men. § 2. FUND, &c. MARRIA On immemorial usage, in like manner, depends the kirk- -FEES, OR fellion's title to exact fees at marriages and baptifms; for kirk-feffions have no power to impofe taxes b. 18th February 1783, kirk-sesfion of Dumfries against the incorporation of squaremen there. In Dumfries, the incorporation of fquaremen had been in ufe, from a very remote period, to let out mortcloths for hire. In 1781, the kirk. feffion instituted an action for having it found that they had the fole and exclusive right of doing so. In fupport of this action, they referred to the following decifions, 10th August 1756, Turnbull and kirk-feffion of Keppan against M'Claws; Fac. coll. and kirk-feffion of Kilwinning a. gainst trades, ibid. cit. Obferved on the bench. The right which the kirk-feffions in Scotland enjoy of letting out mortcloths for hire, when followed with immemorial poffeffion, has been found to establish an exclusive right to the emoluments arising from this fort of traffic. Here, however, the defenders having been beyond the years of prefcription in the practice of lending out mortcloths, there is no foundation for the prefent action. The court of feffion" affoilzied "the defenders, in respect of the long poffeffion had by them." b 26th June 1765, Beveredge, precentor, and the kirk-feffion of Dun fermline, against Francis Bayne and others. "line, by an act, 23d January 1681, "ordained, that whoever, in that "parifh, fhould give up their names "to be proclaimed for marriage, "fhould give half dollar to the poor "before their proclamation." This act was renewed, 8th November 1719. "Upon the narrative, that the cuf"tom of paying the faid fum was "much worn out." The purfuer, authorised by the kirk-feflion, brought an action before the sheriff against the defenders, all diffenters of different denominations, and moftly feceders, for payment of this fum, founding his claim upon the acts of the kirk-feffion, and ufe of payment. As to the laft, the sheriff allowed a proof to both parties. The purfuer limited his to the period from 1718 to 1738, i. e. from the date of the last act of the kirk-feffion to the feceffion. It appeared from the proof, that the ufe of payment had been pretty general, though not univerfal, that the kirk-feffion, on account of the reluctance of the parishioners, had refolved to accept what they would voluntarily give; that numbers had paid less than the half dollar, and many, though people of subflance, had paid nothing. The fheriff gave judgment for the purfuers. The caufe was brought under review by advocation; and, The kirk-feffion of Dunferm- after a hearing, taken to report. GES, &c. §2. FUND MARRIA KIRK-SESSIONS, however, being a part of the ecclefiafti-FEES, OR cal government, exprefsly authorised by law, are intitled to appoint proper officers; and, in order to defray that expence, have power to ordain fuch fees and perquifites to be paid, as the circumstances of the parishes may refpectively require a. nent fund BUT the "needful fuftentation" of the poor is not intrusted solely to those scanty and precarious fupplies. When they prove infufficient to enable the poor, in the language of our statutes, to "live unbeggand," the law directs the deficiency to be supplied by an affeffment on the parish; it beA perma- ing the leading principle of the Scottish poor laws to avoid any fixed or permanent tax, which might increase the numreprobated by the Scot- ber of the poor, by affording an encouragement to idleness, tish poor improvidence, and diffipation. No affeffment is to be impos ed, till, on due inquiry, it appears neceffary to meet the exigency of the moment. The law does not direct any particular fum to be annually levied, but only meetings, from time to time, to be held, in order to " take inquifition of all aged, poor, impotent, and decayed, perfons, according to their "number, to confider what their needful fuftentation may "extend to." laws. Statutes di rect only meetings to be held. σε THUS the ftatutes order nothing peremptorily, but "to The pursuers brought evidence of a decifion in the year 1746, in a cafe between the kirk-feffion and feceders in the parish of Falkirk (not reported), wherein fuch an exaction had been authorised. Anfwered, inter alia, for the defenders. The plea of immemorial use is excluded by the act of the kirk-feffion 1719, as well as by the parole evidence. In the cafe of Falkirk, which is but a single decision, immemorial usage was proved. The court of feffion" fustained the defences." Fac. Coll. a In the case last quoted, the libel concluded alfo for certain dues to the kirk-beadles, on occafion of marriages and baptisms; which claim alfo was founded upon an act of the kirk-sesfion, and immemorial usage. "The "lords found the beadles intitled to " the dues claimed by them." In the argument it was faid, that in the case of Falkirk the fame point had occurred, and been fimilarly decided. b 1579, c. 7f. FUND MENT. made. "take inquifition." They neither fay, what tax; nor that § 2. any tax at all shall be levied: they only enjoin inquiry to be -ASSESSmade into the circumstances of the poor; the number and wants of those already upon the lift; and the pretenfions of and inquithose who wish to be added to it. If the weekly collection, fition to be or other funds, already mentioned, appear adequate to fupply thofe intitled to charity, it is neither the direction, nor Affeffiment purpose, of the ftatutes, to affefs the parish. And in many in many places thofe funds have proved fufficient to enable the poor neceffary. to "live unbeggand." So far is a poor tax, when found and correct in principle, moderate in extent, and under careful management, from producing that rapid increase of the number of the poor, and those other evils fo much, and, to all appearance, so justly complained of in England, as the confequence of their poor rates. places un of the collection, &c. BUT many causes have confpired to prevent the weckly Diminution collections, in particular, from keeping pace with the increase of the expence of maintaining the poor, to whose just demands upon the public, those funds are in many parishes utterly inadequate. THE law, in that cafe, directs the precife deficiency, to be ascertained by inquiring into the feveral claims, and making out a lift of thofe intitled to parochial aid, in whole or in part; and next directs this deficiency to be provided for by an affeffment on the parish. Such a fum must be raifed as feems adequate to the supply of thofe "poor people, "who must neceffarily be fuftained by alms." THIS adjusting of the lift of the poor, and fixing of the affeffment, our law, with happy felection, has committed to two very respectable bodies of men, of all others beft qualified for the proper difcharge of fo important and facred a truft; to the heritors, or landholders, who are liable in one half of the affeffment; and to the kirk-feffion (confifting of |