The History of Leith

July 26, 2011

Memorial for the Kirk Session of South Leith.

7 February 1826.—Mr Ross, in. the absence of Mr Veitch, reported that they had endeavoured to meet with Mr Scott who had now assuned on the part of ” The friendly Society of Restalrig ” the management of the Burying ground at Restalrig ; but having failed and considering the matter attended with some difficulty they had judged it proper to consult Counsel and had laid a Memorial before Sir John Connell, Advocate, which, with Sir John’s opinion, he now produced and read, together with a minute of the Society, declining to relinquish the Charge. The Session direct the Memorial and opinion to be engrossed and remit anew to the Rev. Mr Grant and Messrs Veitch and Ross with instruction to confer with Mr Scott on the Subject and to endeavour to bring about an
amicable arrangement. Memorial for the Kirk Session of South Leith.
7 Feby. 1826.—The Memorialists are anxious to resume the Administration and Management of the old Parochial Burying Ground at Restalrig, but as their doing so seems not unattended with difficulties, they request the learned Counsel’s opinion generally upon the subject of this Memorial, and particularly, his answers to the following Queries;
Query 1st.—Is the Ancient Burying Ground at Restalrig still to be considered the Parochial Burying Ground ?
2nd.—From the titles before referred to, have the Memorialists a right of property in that Burying Ground ?
V3d.—Supposing the learned Counsel to be of opinion that they have not, have the Memorialists, as the Kirk Session of the Parish the Administration and management of it for behoof of the Heritors or of the Parish at large ?
4th.—Supposing the learned Counsel to answer the preceding query in the Negative, is the right of property and Administration vested in the Heritors, and can they devolve the Management upon the Memorialists ?
5th.—What is the legal effect of the particular management of this Burying Ground which has obtained for so many years ?
6th.—Have the Individuals, calling themselves A Society, a right without being a Society or Incorporation, and without any conveyance in their favour from the Kirk Session or Heritors to prevent the Memorialists or Heritors from resuming the Management in a summary manner, or what steps ought to be taken towards such resumption ?
7th.—What is the legal effect of the grant of the piece of Ground for a School House by the Kirk Session to the late Mr Cauvin Senior, in reference to the subject of this Memorial
8th.—Supposing the learned Counsel to be of opinion that these individuals have a right to be continued in their management of the Old Kirkyard, either altogether, or till dispossessed by a regular action of Declarator and Removing, have the Memorialists a right of controul over the disbursement of their funds ?
The learned Counsel is also requested to state any thing which may occur to him as of importance although not adverted to in the
Memorial.
Answers
To Query 1st.—Restalrig was an ancient Parish and Parsonage but by Act 1609, C. 25, the Church was suppressed and the Church at Leith situated within the Parish of Restalrig was declared to be the Parish Church in time to come. In this Act of Parliament the Manse and Glebe of Restalrig are declared to belong to the Minister, but nothing is said about the Burying Ground, and therefore, I apprehend that it continued to be the Parochial Burying Ground of the Parish as before.
To Query 2nd.—The Memorialists, by which, I suppose, is meant the Kirk Session of South Leith can claim no right in the Burying Ground under the titles which are recited in the Memorial.—The Charter 1572 is granted not to the Kirk Session but to the Magistrates and Town Council of Leith and neither gives nor could give any right to the Burying ground of Restalrig because that Parish though the Church had been cast down then subsisted as in the times of Popery, and though it had given a right it would be held to have been taken away by the Act of Parliament 1609.—The Charter 1771 granted by the Kirk Session ceuld confer no right on the Memorialists if they had none independent of that Charter.
To Queries 3d. and 4th.—The Ancient Burying Ground at Restalrig, I apprehend, belongs to the Parish, subject to the Management of the Heritors, like the Burying Ground, of any other Parish. A power of Management may be vested in the Kirk Session by the Heritor provided that no other powers are conferred but those which may be exercised by the Heritors themselves.
To Query 5th. and 6th.—The Management of the Burying Ground at Restalrig which has been exercised by the Individuals calling themselves ” The Friendly Society,” appears to have been a management usurped without a title and the Heritors may resume the right vested in them by law.—The individuals possessing, for I see no title they have to call themselves, ” a Corporation,” may plead that their long possession can only be questioned in the shape of a Declarator, but I think that this plea will not create a right to a Possessory Judgment; for to give this, there must be some kind of
title in writing, and therefore, if matters cannot be accommodated amicably, the proper course for the Heritors is to raise a process of Removing before the Sheriff.
To Queries 7th. and 8th.—The Right to the School House being founded on a Charter granted by the Memorialists so far back as 1771 should not be called in Question.—I see no grounds for maintaining that the Memorialists have any right of Superintending the Management of the Funds belonging to this ” Friendly Society.” Lastly,—No other observations occur to me than those which I have noticed; Only I beg to refer to a document mentioned in my Book on Parishes, Appendix No. 8 as giving some vidimus of the state of this Parish in 1609, though not tending to illustrate any of the Queries contained in the Memorial.
The opinion of (Signed)
John Connell.
Abercromby Place, 25th January 1826.
(Note.—A full account of the Bestalrig Society of Friendly Contributors was contributed by the Minister of Restalrig, the Rev. William Burnett, to Volume IV., year 1911, of the publication of the Old Edinburgh Club. In 1832 the Society obtained a decree from the Court of Session declaring them to be proprietors of their church and churchyard. The Memorial to Sir John Connell goes into the history of the subject in considerable detail and is given at length in the Register”.)

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