Teind and Stipend [29]
In every old ecclesiastical parish in Scotland, a teind, the Scottish equivalent of a tithe or tenth part of produce of land, was payable to the church. Originally teinds were payable by ancient custom but, as written titles to heritage became more common, it became clear that, with few exceptions, a teind constituted a separate estate from the land from which it was exigible.
Teinds were of two kinds, parsonage and vicarage. The former were due to the parson [30] and consisted of the produce of the land. The latter were payable to his vicar and consisted of less valuable commodities such as the produce of animals and certain vegetables. Unlike parsonage teinds, vicarage teinds could prescribe and, for practical purposes, the latter have mainly disappeared or been redeemed.
When the Reformation came (1560), broad and sweeping changes were made in the law of church property. By the Acts of 1567 c. 10, 1581 c. 100 and 1592 c. 123 it was provided that out of the ecclesiastical benefices, one third should be devoted to the support of the clergy. By an Act of 1617 c. 3, power was given to Commissioners appointed under the Act to appoint and assign out of the teinds of every parish, a perpetual local stipend where the minister of the parish was without a stipend or else received one of less than 500 merks or equivalent annually.
In 1627, another Commission was set up to value teinds but it did not function as apparently it had no yardstick with which to measure. It would, of course, have been much simpler if, instead of ordering stipend to be paid out of the teinds, provision could have been made to restore the whole of the teind to the parish minister.[31] Be that as it may, however, in 1629 teinds were fixed at one fifth of the rental of the land, assuming the amount of rent to be one half of the annual produce of it. This valuation was to be made in money, or victuals or both.
An important Act was that of 1633 c. 19 which appointed a new Commission to regulate the sale and valuation of the teind. The heritor (proprietor) of the land was now given the right to purchase the teinds, excluding those which had been assigned for stipend from the “titular” at a nine year’s purchase. (The “titular” was the person who had acquired right [32] to the teinds after the Reformation.) The great majority of heritors chose to purchase the teinds as it saved them from having to leave their lands un-harvested. The teind was extracted after the grain was cut but before it was gathered in. So, if a titular was late in exacting the teind, the rest of the crop (known as “stock”) would be ruined. This intolerable state of affairs was somewhat altered by statute but, nevertheless, inconvenience was often caused. Even so, not every heritor chose to purchase the teinds as was shown the case of Galloway v. The Earl of Minto, 1920 1 SLT 96. But if a heritor did exercise his option, it was a condition that he, and not the titular, should provide the allotted share of the parish minister’s stipend from his teinds.
It is obvious that since the value of a crop varies from year to year, so would the amount of the stipend. In fact, the value of the grain, known as the “fiars’ price”, was “struck” annually in February, by the sheriff of the county, sitting with a jury of 15. In the few cases where this procedure is still applicable,[33] the sheriff is empowered to sit alone by virtue of an Act of Sederunt of 29 January 1918.
Before the passing of the Church of Scotland (Property and Endowments) Act, 1925, the only way of by-passing this cumbersome procedure was for the heritor or titular to surrender the teind in favour of the parish minister. In practice, this was done when the amount of stipend payable was higher than the teind from which it was exigible. If the money value of a stipend exceeded a fifth part of the annual rental of the land, it would obviously be more advantageous for the heritor or titular to surrender the teind. If a teind was surrendered, a permanent value was placed on it by the Teind Court.[34] That value remained in all time coming and put the parish minister in the position of a teind holder.
1925 saw major and sweeping changes in this rather outdated section of the law when the Church of Scotland (Property and Endowments) Act was passed. Very broadly, the terms of the Act as affecting teind and stipend is as follows: when a parish becomes vacant, the stipend payable by from the teinds has to become standardised at the term of Martinmas [35] occurring not less than six months after the charge has fallen vacant. The Clerk of Teinds is obliged to prepare a Teind Roll for every parish, showing the amount of teind and stipend as affecting that parish. The basis of the standardisation of the stipend is the average of the fiars’ prices for the county in which the parish is situated during the period 1873 to 1922 together with an automatic augmentation of 5 per cent. Once the standardisation has taken place, as in fact it has done in the great majority of parishes [36] there can be no fluctuations in the amount payable. The standardised stipend is thenceforth payable to the Church of Scotland General Trustees and not to the parish minister and is known as a standard charge. As well as occurring when a parish becomes vacant, standardisation is also competent either at the instance of the General Trustees or the parish minister.[37]
When a Teind Roll is finalised, the standard charge becomes a burden on the lands and will rank in preference to all other debts that are not incidents of feudal tenure.[38] Also, it is important to notice that a standard charge is payable irrespective of the teinds, from which it was formerly exigible.[39]
In former days, difficult and complicated questions of vesting often arose in connection with victual stipend. Although the question is not free from doubt, it seems that the stipend year ran from Martinmas to Martinmas, although it fact the stipend vested twice yearly at Whitsunday [40] and Michaelmas.[41] Stipend was regarded as relating to the whole year’s crop which at Whitsunday is presumed to be wholly sown and at Michaelmas wholly reaped. It is interesting to note that the maxim dies inceptus pro completo habetur (a day begun is held to be completed) applied and, accordingly, as long as a minister survived even for a few minutes after midnight into either of the two vesting days, the half year’s stipend vested in those entitled to it after midnight of the vesting day. But if the minister died (say) on the day before the vesting day, then he would not be vested in that half-year’s stipend, nor to any portion of it as the Apportionments Act, 1870 does not apply to a victual stipend. (See Latta [Frazer’s Trustee] v. Edinburgh Ecclesiastical Commissioners, (1877) 5 R. 266.)
Possible hardship was to a certain extent cured by the provision of an Ann or Annat, being the half year’s stipend payable to a minister’s family or next-of-kin for the vacant half year after his death. However, if a minister survived until a vesting day his representatives were entitled to the half (if he survived Whitsunday) or the whole (if he survived Michaelmas) year’s stipend and, in addition, the following half year’s stipend as an Ann. The detailed law on this matter is set out in the very old case of The Earl Marishcal v. The Relict and Bairns of the Minister of Peterhead, 19 July 1626, 1 Br. Dup. 36. It should also be noted in the passing that an Ann was not included in the inventory of a deceased minister’s estate for the purposes of confirmation as it was never in bonis of him and merely went to enhance the value of his estate:- see the judgment of Lord President Inglis in Latta supra.
Most of this is now only of historical interest, as the 1925 Act provided that a standardised stipend was to vest de die in diem [42] and accordingly would be subject to the Apportionments Act. The same, of course applies to a standard charge. Also, it is no longer competent to provide an Ann unless in a parish still operating the old system of victual stipend.[43]
To briefly sum up the position after the 1925 Act, it may be said that where teinds have not become exhausted they may still be payable to non-ecclesiastical sources; that victual stipend has virtually disappeared. Also, most parishes have a finalised Teind Roll which has converted the standardised stipends into standard charges which are payable half-yearly like feu-duty [44] direct to the Church of Scotland General Trustees.