Memorial 1766

[To be reported by Lord Barjarg] ‘ f? A P R I L 26th, 1 7 6 6. l M E M O R I A L F O R Mr. [T o b e r T p t T d y T L B School- master of P ort, Suspender, A G A I N S T [T o b e a d T j T o of Leitchtown, and g T y] b d a d T j T o of Mondowie, and others, Chargers. T HE first crime laid to the suspender’s charge is,That of late years he has been in u se to deal in some few articles of merchandise, such as lint-seed, iron, butter, cheese, &c. and that, in pursuit of this trade, he has sometimes left his school whole days together, and sometimes two days at a time, and left no body to take care of the scholars in his absence: par­ ticularly, that in the month of April 1763, he one day went to Stirling; and in the month of May following, he again went to Stirling, and the next day to the fair of Gartmore, leaving the door of his school locked at both times: and further, that at this fair he took L. 4 Sterling for ten pecks of lint-seed, which was more than any in the A country country took, and consequently was a most unjustifiable piece of extortion. The suspender acknowledged from the beginning, that he was sometimes in use to deal in such little articles o f mer- chandise: and it is submitted to the court, that he merits no blame on that account, unless he thereby neglects his du­ ty as schoolmaster. The salaries and profits o f schoolmasters, in remote country-parishes, are so very trifling, that they cannot live in a comfortable or decent manner, without fall­ ing upon some shift to help themselves. Nothing is more common, therefore, than for schoolmasters to deal in such little articles as there may be a demand for in their parishes. Many of them are in use to act as land measurers or survey- ors, as clerks to roups, notaries-public, or to write such pa­ pers as are put into their hands by the people of the country, or to do any other piece of business for which they may be qualified: and it never was pretended, till now, that such things rendered a man unfit for the office of a schoolmaster. To carry matters a little higher, nothing is more common, than for a minister of the gospel, whose duty is certainly of more importance than that of a schoolmaster, to rent large farms, or to act as a principal or professor in an university and yet no body ever thought of depriving a clergyman of his benefice on these accounts. With regard to absenting himself from the school, the sus­ pender, in his answers to this libel, has declared, that he was only absent one day during the whole of the year in que- stion, and that was after having intimated that the school was not to meet. He acknowledges, that he was at Stirling and Gartmore the two days mentioned: but this was at a time of the year when it was the custom of this parish, and o f many others in the neighbourhood, to give a vacation for a few days, because the children were most ly absent at that time asi sting at the bear-seed. Upon looking into the proof, your Lordships will observe, that none of the witnesses say a a word of the suspender’s being at Stirling, or any where else, excepting Robert Crawfurd, p. 14. and all he says is, That the suspender went with him to Stirling about April 1763, where he sold butter and bought lint-seed. It is sub- mitted, that there was no degree of fault in all this. A schoolmaster, no doubt, is bound to give regular attendance; but it is no grievous offence, if, now and then, upon parti­ cular business of his own, or upon any other emergency, he should give a day of vacation to his school. With regard to the price at which he fold his lint-seed, there is not the sha- dow of proof, excepting that the suspender in his answers ad­ mits, that another person for him sold the lint-feed at the common rate of the market. Upon the whole of this first ar­ ticle, it is submitted, that it is no crime in a schoolmaster to deal in little articles of merchandise, which may often be a very great convenience to the people in a remote country-pa- rish, unless he neglects his du ty; which it is clear from the proof was not the case. The next article of the libel bears, That when the suspen­ der attends his fchool, it is commonly ten, and sometimes e- leven, in summer, and eleven or twelve in winter, before he convenes his scholars. His answer to this accusation is, That he convenes his school at ten, which is as soon as the scho­ lars come up. The proof upon this article seems to amount to this: That the petitioner gave pretty regular attendance, and that he commonly met his school about ten, and sometimes eleven, as the scholars happened to come up: and Alexander Harvie p. 1. swears, That Mr. Macfarlan has sometimes quarrel- le d h im fo r c oming too late.” And none o f the witnesses swear to any later hour, excepting Andrew Wood, p. 1. whose words are: ‘ That, to the best of his remembrance, the school “ convened sometimes at ten, sometimes eleven, and some­ times twelve o clock perhaps. It is submitted, that there is no sort of relevancy in this accusation. In a wide country- parish, parish, where many of the scholars have miles to come in the morning, it is impossible to have them convened so regu­ larly, as in a town, where they lie all under the master’s eye. And Robert Crawfurd, p. 14. swears, That the petitioner was in use to convene his school so soon as any number of the scholars came up. The third point of dittay is, “ That when the suspender corrects his scholars, he being of a vindictive and cruel disposition, beats, wounds, and maims such of them a- gainst whom he takes up any prejudice, whether he takes up the same on their own account, or on account of their parents and, particularly, in or about the years 1752 or 1753, he did, with his penknife, cut, wound, or thrust through the ear of Christian Wright, daughter of Murdoch Wright, now in Gartmuillan, who was then his scholar, to the effusion of her blood; and so unmercifully beats and bruises others about the head and ears, that deafness for several years thereafter has followed his chast i sements; and this barbarity he uses even upon the young and ten­ der of his scholars; the consequence of which usage now is, that our children are frighted at him, so that neither by threats nor promises can we force them to his school.” This article of the libel the suspender positively denied in his answers; and we shall now consider what evidence is brought upon this head. The witnesses, who have been ex- amined with regard to the suspender’s alledged severity, in general, swear, That though he was sometimes in use to chastise them with his tawes, or with his fist, he did by no means use them ill. With regard to the story o f C h r istia n Wright, which happened about twelve or thirteen years ago your Lordships have the deposition of that girl herself. p. 5 her mother, p. 6. and Margaret Ferguson. p. 7. It is very- true, that the mother swears, That, when her daughter came home from the school, her ear was cut, and a good deal o f blood about her neck and shoulders; and that, though she did did not say so that night, her daughter told her next morn­ ing, that the suspender had done it. On the other hand, Christian Wright herself depones, That, at the time in que- stion, when the suspender beat her, her ear bled; but she repeatedly denies, that he cut it with his penknife: And further, That she does not remember i f he had the knife in his hands at that time. And Margaret Ferguson, p. 7. swears, That at this time she heard the suspender threaten Chri­ stian Wright, that if she would not forbear doing something he challenged her for, he would cut her ear; and that she saw a sore, and blood, on her ear, that same d ay; but cannot say that the suspender did it. In spite of the hear-say evi­ dence of the mother, her daughter, from whom alone she could have it, denies this fac t; and her evidence is confirm­ ed by Margaret Ferguson. It may be very true, that the suspender had occasion, then, and at other times, to chast i se this g ir l; and her ear may have bled, perhaps, from a stroke that he gave her, or from any other cause: but there is no sort of evidence, that he wilfully and willingly did so cruel an action, as to cut her ear with his knife. Besides, as there were a number of scholars in the school, it was impossible to want a proof of this alledgeance, if it was true, as they must either have seen it, or the girl would have told it them de recenti. The only other circumstance of severity, of which there is any evidence, is, that the suspender, about twenty-two years ago, beat John Fisher, a boy at the school, soundly, by lay­ ing him over a seat, and whipping, and thereafter throwing him to the ground, and kicking and trampling on him with his feet. This proof rests upon the evidence of William Mac- farlan, p. 7. and James Sands, p. 9. which last is ne­ phew to John Fisher, one of the complainers. The suspen- der cannot possib ly recollect the circumstanccs of this chastise- ment, which happened at so distant a period; but if every schoolmaster is to be deprived of his office, who has once in B his his life been provoked, by an incorrigible, roguish, or mis­ chievous boy, to go a little further in chastisement than he ought to have done, it is believed there will be many vacan­ cies among the brothers of the birch. Upon this article, Ma­ rion Mill, p. 1 6. who at that time was servant to the boy’s mother, swears, That the day after she went to the School, and told the boy, that she heard he had been severely whipt and blooded; to which he answered, That he was not a bit the worse of i t; and that when his mother brought him home, she does not remember i f she heard him make any complaint. It is further to be observed upon this head, that supposing this story to have been true, as it is Set forth, it is clear, that the suspender has not commonly been guilty of very great severity, as, after so nice an inquisition into his conduct for twenty-four years, this, and the story of Christian Wright, are the only instances of any thing like severity, that the complainers have been able to prove; neither of which, it is believed, your Lordships will think Sufficient to deserve so high a punishment as the forfeiture of his office. The other circumstances contained in this heavy article, That he was in use to wound and maim his scholars, when he took a prejudice against them or their parents; that he beat and bruised some of them so unmercifully about the head and cars, as to make them deaf for several years thereafter; and that he used the young and tender of his scholars so cruelly, as to frighten them away from his school,—appear to be entirely without foundation. The next accusation is, That the suspender has of late gone about the parish, inveigling and imposin g upon Several simple people, in enticing them to sign a blank paper, with room to him to fill up above what he should think proper. This accusation is exceedingly imperfect. The complain­ ers should have said what paper they meant; and they should also have set forth, that the suspender actually made a bad use of these subscriptions- All that the suspender knows knows of any paper is, that finding himself persecuted in so- unjustifiable a manner, he went about the parish, inquiring at the people i f they had any objection to him; and desiring such as had none, to sign a certificate in his favour: which upwards o f a hundred of them did; and which was given in to the presbytery; but met with no regard from these Reve­ rend gentlemen. All that the proof contains upon this sub- ject, your Lordships will find in the oaths o f William Blair, p. 13. John Macarthur, p. 13. and John Macvey, p. 14. Two of these witnesses swear, That before they signed this paper, the suspender asked them if they had any objection to him, and told them, that if they had not, they might sign the pa­ per; and if they had, they might let it alone. And the o- ther witness swears, That before he signed the paper, he saw writing upon it. This paper is produced in process by the chargers, and it fully explains this mystery. The fact is, that it is wrote page-ways; and the first page being soon filled up, the subscribers were obliged to turn over to the o- ther page; where indeed there is nothing but names. The suspender shall only add upon this subject, that though he had solicited subscriptions in his favour, this was certainly much more justifiable than the proceedings of some of the complainers, who went about usin g every art in their power to persuade as many as possible to sign a complaint against the suspender: in which, by the bye, they had very bad success, as out o f the whole parish, only eight people were found to subscribe it, and those of very small consideration. The most curious o f all the crimes with which the suspen­ der is charged, is, that he is the author and publisher o f a, printed pamphlet, intituled, A mad, merry, and diverting Sar- casm, containing many ridiculous and absurd notions, which shows the author to be a very unfit person for directing the education of youth. The pamphlet itself is produced in pro­ cess, and affords the best answer to this ridiculous Accusa­ tion. The persecution against the suspender was set on foot as [8 J as early as the year 1763. Some people of no great conside- ration were very active in going about endeavouring to per- suade all they could prevail upon to sign petitions to the pres- bytery against him. Accordingly, two or three complaints were preferred to the presbytery before that in question, which were all refused. About this time it appears, that some friend of the suspender’s thought proper to write a farce to ridicule these persecutors. Your Lordships, in the course of your bu- siness, are obliged to read a great deal of nonsense, but it is be­ lieved that you never met with any thing so compleat of the kind. It is such a composition, as was below the notice not only of the court of session, but of the meanest presbytery in Scotland. Upon considering it, you will be of opinion, that there is nothing in it which ought to procure a schoolmaster a rebuke, far less deprive him of his office. Besides this, there is no evidence that the suspender was the author of this pamphlet. The chargers have taken notice of some presump- tions and suspicions, but whatever may be the custom of ec- clesiastical courts, no man is condemned in the court of ses- sion without direct and sufficient evidence. The next point of dittay is, that the suspender desired Mr. Ferguson, the minister, to call a week-day's sesio n, when he would make it appear, that the elders of the parish are liars, and some of them hypocrites, and that they had made the minister a liar also, and that, for this crime, he was deprived o f his office of precentor and sesion-clerk, at a sesio n held upon a Sunday forenoon. That, on the afternoon of that same Sunday, he read a paper or manifesto in the kirk, reflecting on the mi­ nister and sesio n for their proceedings, and in that manner publishing the scurrilous epithets he had formerly given the elders. That his reasons of appeal against this sentence con­ tain many scurrilous and improper reflections upon Mr. G raham of Mondowie, one of the chargers. When the proceedings upon this occasion are fairly stated, it must appear to your Lordships, that the minister and kirk- session session have much more reason to be ashamed than the sus- pender. It has already been observed, that there were two or three complaints presented to the presbytery against the sus- pender before that in question. On the 15th January 1764, when one of them was refused, Mr. Ferguson, the minister, was asked by the moderator of the presbytery, I f he or his- kirk-session had any concern in these complaints? To which Mr. Ferguson answered, that they had not. Notwithstand- ing this, a few days thereafter, a new complaint appeared subscribed among others by two of the elders. The suspen- der was surprised at this, after so publick a declaration, and therefore he desired the minister to call a week-day’s session to enquire into the meaning of this double dealing. Upon that occasion, he believes he said, that these elders were hypocrites, and had given the minister himself the lie, as he had made the above declaration before the presbytery in their names, and, no doubt, by their authority. Upon this accusation the minister and his kirk session immediately took fire, and their proceedings were very remarkable. For, 1m o, Though a week-day's session might have been called upon this mighty matter, betwixt the Sunday, when the ac­ cusation was made, and the Sunday following, when the sus- pender was deprived, this was delayed, and was done upon that day, as being no doubt a work of necessity and mercy. This was a matter of more importance than divine service, and therefore the publick worship was delayed until the ses- sion should hold their meeting for that purpose. 2do, The suspender is deprived of his offices of precentor' and session-clerk, for alledging, that some of the elders had been guilty of lying and hypocrisy, and that, without enqui­ ring whether or not this accusation is well founded. That is delayed till a week-day’s session, to be held some other day; and, in the mean time, the suspender is punished without considering whether he has committed any crime or not. This is just what is called in another part o f the kingdom, CP Jedburgh Jedburgh justice, first, to hang a man, and then judge him. I f the elders were really liars and hypocrites, the suspender was not in the wrong to accuse them. If he made good his charge, he deserved the thanks of the session, and they ought to have been turned out of their offices, and otherways cen- sured. This sentence of the kirk-session, therefore, when put into plain English, amounts to this, we will turn you out of your office as a false accuser, and we will meet some time or other to consider whether your accusation is true or false. 3t i o,The suspender’s fate was determined long before he was brought to a trial. The minutes produced in process bear the following words: “ Mr. Ferguson, the minister, pointing towards the said Mr. Macfarlan, who then stood in the lattern, or precentor’s desk, said to him, You need not expect to precent in that place Sabbath next; you well deserve to be suspended from your offices of precentor and session-clerk.’’ These words, which were uttered by the re­ verend gentleman on the first Sunday, when the suspender made his complaint of the elders, show, that the minister was determined to turn him out, without hearing what he had to say in his own defence. A minister, it is believed, is general­ ly pretty absolute in his kirk-session, and after this pious and equitable resolution of the reverend gentleman, no mercy nor ju stice was to be expended. 4to, Agreeable to this resolution, the suspender was con­ demned without being called in, or having an opportunity to defend himself. This must appear to your Lordships to be a very surprising method of proceeding, and yet it is un­ doubtedly true, as appears from the minutes themselves. They bear that the session considered the matter, and pro­ nounced their sentence of deprivation; and that thereafter the suspender w as culled in, and the minute read before h im, and his sentence intimated. This form of process is so shocking, and so contrary to every principle of law, equity, or huma­ nity,J 1 nity, that your Lordships would not believe that such a thing could have been done in any civilized country, i f it did not stand upon the minutes of this worthy kirk-session. It is a rule in all courts in the world, the inquisition only excepted, that no person can be condemned unheard; and the suspen- der is sorry that the proceedings of this kirk-session has the appearance of putting them somewhat upon the same foot­ ing. When the paper, which the suspender read in the kirk, and which is produced in process, is considered, it will not appear to your Lordships, that it contains any thing very criminal. After divine service, the minister being resolved to follow out his blow, read to the congregation the minutes above men­ tioned; and the suspender, in his vindication, being irrita­ ted at the strange proceedings above stated, read what was contained in that short paper, which, it is submitted, he was well intitled to do. It would be hard i f one should be used in the illegal and unprecedented manner, that the suspender was, and yet it should be looked upon as a crime for him so much as to complain. With regard to the reasons o f appeal, the suspender will fairly admit, that the reflections thrown out upon Mondowie were improper, though, at the same time, the kirk-session, who have an excellent nose for hunting out scandal, insinuate in their answers to the suspender’s appeal, that they are not without foundation. However, whatever be in that, the sus­ pender has already received his punishment, having been fin­ ed by the commissary in no less than 300 merks for these ex- pressions, and therefore this cannot again be made a point of dittay. The suspender will only further observe upon this head, that these same minutes of the kirk-session came a little auk- wardly before the presbytery. The chargers had laid their com­ plaint before that reverend body, charging the suspender with • the the faults formerly taken notice of. Mr. Ferguson, the mini- ster, who was no party to that complaint, was pleased to vo­ lunteer in the service; and being determined, that the sus- pender should not keep his office i f he could help it, thought proper to haul in these minutes by head and shoulders, in or­ der to carry through the laudable scheme the chargers had formed. If there were any such things as forms before ecclesiastical courts, this was certainly contrary to them all, and, joined with the proceedings above mentioned be­ fore the kirk-sesio n, shows rather too much keenness and in­ veteracy in the reverend gentleman against the suspender. There were other faults laid to the suspender’s charge in the complaint to the presbytery, which the chargers think now proper to depart from, and perhaps t h ey would have been better advised, if they had followed the same course with those that are now insisted upon; however, what has been a- bove said, will be a sufficient answer to the whole of their ac- cusations; and the suspender shall now submit some observa- tions with regard to the propriety, spirit, and manner of con­ ducting the present prosecution. 1mo, The suspender has been now, for upwards of 24 years, schoolmaster of this parish, which of itself affords the strongeft presumption, that he is not totally unqualified for the office. It must therefore appear surprizing, that this com­ plaint should be brought after so long a service. I f the sus­ pender were disposed to be negligent, s evere in his discipline, or sarcastical against his neighbours, these faults would na­ turally have been much stronger when he was young, and his- blood was warm; and therefore it appears a little unnatural that he should have behaved so long in a proper manner, and when the hey-day of his blood is over, should fall into the transgresio n s now laid to his charge. 2do, The parish in question is very extensive, comprehend­ ing betwixt thirty and forty heritors, and perhaps 5 oo heads of of families, and several o f those heritors are gentlemen of rank, and o f considerable estates. T hose who insi st in the present action before your Lordships, are only two inconside- rable heritors, whose estates, when added together, do not a- mount to 50 l. a year, and fix small tenants, who assume to themselves the pompous character of Heads of families. When these circumstances, which are literally true, are considered, your Lordships must have a very unfavourable view of this persecution. I f the suspender is so worthless as the chargers would represent him, the rest o f the heritors, and heads o f families, would undoubtedly have thought it their duty to concur with the chargers in following out this cause; and their making no appearance upon this occasion will satisfy your Lordships, that the chargers are moved rather by some private ill-will than by a regard to the good of the parish. I f the interest of the parish were concerned, your Lordships would have seen some greater names prefixed to the memorial on the other side. The memorial for the chargers bears to be in the name of Leitchtown, Mondowie, and others; but your Lordships must not think, that this word Others, is a word of very extensive comprehension. The suspender a- vers, that there is not another heritor in the parish who has given authority to the carrying on of this cause, nor a single head of a family, excepting the six little tenants, who have joined in the complaint to the presbytery. 3tio, The way in which this persecution has been conduct­ ed, is not a little extraordinary. It is not easy for any man to have his character ripped up for twenty-five years back­ ward, and it is believed, that very few could stand such a scru- tiny, without being convicted of sometimes having done what they ought not to have done. In the happy days in which we live, it would be reckoned a very extraordinary proceeding in any court, civil or criminal, to bring a man upon his trial, for faults o f which he is supposed to have been guilty twenty years ago, unless it were for crimes of so atrocious a D nature, nature, as that they ought not to be sopited under the years o f the long prescription. Besides this, in the most serious trials, the time, place, and manner of committing the crime, must be particularly libelled, and no trial can proceed, excepting upon special crimes particularly set forth. It would sound very odd, if an indictment were brought before the court of judiciary, setting forth, that the pannel was a thief, and the witnesses should be asked, I f they ever knew that, during the course of his life, he had been guilty of any act of theft Such a proceeding would be looked upon with the highest in­ dignation by the judges, and by the publick, and yet in this manner has the reverend presbytery proceeded. The witnes- ses were not interrogated with regard to particular facts, spe- cially condescended on, but, in general, i f they ever knew that the suspender had neglected his school, been severe in his discipline, & c. Such a method of proceeding must appear to your Lordships to be highly oppressive and adverse to every principle of law, and to all the forms of process hitherto e- stablished. 4t0, The proof in this cause was led in a very extraordina­ ry manner. It is a rule in all courts, and a ju st one, that none of the witnesses ought to be present, but the one under examination, and that none of them ought to hear another depone. Notwithstlanding this, in the present case, the whole of the witnesses, or as many of them as thought proper, were present during the examination, and heard each other depone. And to show, that this was not an oversight, or owing to in­ attention, it appears from the decreet, that the suspender complained of this, and that the venerable presbytery paid no regard to it. 5 to, The venerable presbytery, in their proceedings in this cause, have not only disregarded the rules of humanity, but even the acts of the superior ecclesia stical courts. It is parti­ cularly directed, by the act of assembly 1700, that presby- teries are accurately to inquire into the conduct and deport­ ment ment of schoolmasters; and if they have been guilty of ne­ gligence or immoralities, that, after admonition, they are to apply to the civil magistrate, or to the heritors, to have them > • deposed. Though the suspender had been guilty of neglect- i ing his school, or had been too severe in his discipline, or [had been guilty of every one of the transgressions laid to his » charge, it would have been better for the venerable presby- tery have first admonished him, and to have tried, by proper advice, or even censures, to have made him attend to his duty. Instead of this, at once, on account of misde- meanors, which, had they been true, might easily have been mended, they have been pleased, without giving him an op­ portunity of reforming his conduct, to turn him out of an office which he has enjoyed for twenty-four years, and to re­ duce him in his old age to beggary. 6to, By repeated acts of assembly, particularly, act 1 3 aff. 1706, presbyteries are directed to visit all the schools within their bounds at least twice every year, and to inquire into the proficiency of the scholars, the behaviour of the schoolmaster, and his method of teaching. Notwithstanding this, the sus­ pender avers, that for twenty years past, this venerable pres- bytery have not given themselves the trouble to make any sort of inquiry after him or his school. Nay, further, it ap­ pears from the decreet, that while this inquisition was de­ pending, a committee of presbytery was appointed, upon the suspender’s motion, to visi t his school, and to report; not­ withstanding which, the committee did not think proper to execute this trust that was committed to them. Had they been pleased to make this visitation, the suspender begs leave to say, that they would have found every thing carried on in such a way as to have put an end to all complaints; and their neglecting to do so, must give your Lordships a strong impresio n, that their only view was, to turn the suspender out of his office, and not an impartial inclination to judge how far the youth of this parish were properly educated. It is said, that there was a complaint formerly given in to the Sheriff in the year 1752, against the suspender; and that g reat negligence, and maltreatment of the scholars, were proved against him. It is very true, that there was such a complaint, which was subscribed only by three heritors, out of the great number contained in this parish, one of whom, and it is believed the principal contriver of it, was Mr. Gra­ ham of Leitchtown, one of the chargers, which shows, that that good-natured gentleman, has been very industrious in persecuting the suspender, for upwards of a dozen of years past. Upon this complaint a proof was led, which appeared to be so insufficient, that the complainers themfelves did not think proper to desire the sheriff s judgment. At the meeting of the heritors, when the suspender was deprived of his office, in consequence of the decree o f the presbytery, only nine heritors were present, not one half o f which nine is proprietor of’ above L. 20. a year, and two o f the number were the chargers, Leitchtown and Mondowie. What has been above set forth will satisfy your Lordships, that the clamorous complaint brought against the suspender, is not supported by evidence, and that he has been used, in many respects, in a very unheard of, and unjustifiable man­ ner; and therefore you can have no difficulty to suspend the sentence of the heritors, i f it is subject to the review o f the court of session, which the chargers are pleased to dispute. It is a bad sign of a cause, when a party rather chuses to have it determined by an inferior court than by your Lordships, and when it will not bear to be considered in this court. However, that this declinature is without foundation, will appear to your Lordships from the following considerations: • T he court of session has undoubtedly a supreme jurisdic­ tion in all civil questions, unless where it is taken away, or lodged in another court by express statute. As this rule can­ not be disputed, the suspender will not take up your Lord­ ships time by quoting authorities to prove it. In order to withdraw withdraw this cause therefore from the jurisdiction of the court, the chargers must show, either, that it is not a question of a civil nature, or that the power of depriving school­ masters is lodged in the presbytery, exclusive of the court of session. They have indeed thrown out both of these propo- sitions, but both of them are equally without foundation. With regard to the first of these propositions, the chargers say that as choolmaster ought to be upon the same footing with a minister, subject only to the censure and punishment of the ecclesia stical courts. This is begging the question, for the cases are exceedingly different. A minister is a clergyman, who receives the holy orders from ecclesiastical courts, who are understood to be the only good judges of the orthodoxy of his doctrine, and his manner of discharging the duties of his office. In all countries, therefore, the admitting or depriving clergymen, was always vested in the ecclesiastical courts. A schoolmaster is not a clergyman, but only holds a civil office, and the civil judges are as able to judge of his qualifications, or his behaviour in his office, as the clergy are. The chargers seem to think, that the exclusive power o f censuring and depriving schoolmasters, is lodged in presby- teries, by the act 1693; but the act gives them no such power. Your Lordships will observe, 1mo, That this same statute does not say one word about depriving, but only en­ acts, that schoolmafters shall be liable to the trial, judg­ ment, and censure of the presbytery. The presbytery, there­ fore, may censure, but it is clear, that they have no power to deprive a schoolmaster of his office. But, in the 2d place, the meaning and intention of this act is exceedingly clear. Presbyteries, at common law, have no power to judge of a schoolmaster’s behaviour in his office, or to inflict any cen­ fure for any transgression, that is not a crime against reli­ gion. It was thought, that presbyteries, for many reasons, were proper persons to have a watchful eye over the educa­ tion of youth; and, for that reason, the act 1693 was made, E giving giving them a power which they had not before. This act, however, neither authorizes them to deprive a schoolmaster, nor takes away from the Court of Sesio n the supreme power they have in all civil cases. If, therefore, a schoolmaster has been unjustly suspended or deprived, the court has undoubt­ edly power to give him relief. This is not only agreeable to law and to reason, but the presbytery and the chargers appear to be of the same opinion. For, 1mo, The presbytery, after pronouncing their judgment against the suspender, did not think that they had power to deprive him of his office, but appointed the heritors to be called together for that purpose. Accordingly, the sentence under suspension was pronounced by the heritors; and it is hoped these gentlemen will not pretend, that they are ex­ empted from the jurisdiction of the Court of Sesio n. I f the presbytery had thought the power of deprivation vested in them, they would not have been so complaisant, as to de­ volve it upon the heritors; for, it is believed, in no history, ancient or modern, will your Lordships find a single instance of ecclesiasticks parting with one inch of the power they think belongs to them. In the 2d place, the heritors of this parish, and particularly Leitchtown himself, are of opinion, that the power of depriving a schoolmaster is lodged in the civil courts; for, when they thought proper to give in the former complaint against the suspender, in 1752, it was not presented to the presbytery, but to the sheriff of the county + and the jurisdiction of the Court of Sesio n is certainly supe- rior to that of a sheriff. There are many cases, upon which no decisions can be found, and that for this good reason, because it never enter­ ed into any body’s head to dispute the law. Accordingly, it has never been expresly determined, that the Court of Ses­ sion has a power to review the judgments of heritors, settling or depriving schoolmasters, because, till now, it is believed no body ever doubted of it. There is, however, a case ob- served served by Fountainhall, January 18th, 1710, Magistrates of Montrose against Mr. Patrick Strachan, which seems to be decisive of this question. Mr. Strachan was deprived of his office by the Magistrates, and obtained a suspension. The point insisted upon for him was, that he held his office ad v itam aut culpam, nd that it was not competent to the Ma- gistrates to turn him out arbitrarily, without convicting him of some malversation, which accordingly the court found. In this cause, he did not pretend to plead, that the Magi­ strates had not a power of depriving him, and, far less, that the Court of Sesio n had not a power of review; and the court had no doubts of their own jurisdiction. If, there­ fore, the court reviewed and altered a judgment of the Ma­ gistrates of Montrose, depriving their schoolmaster, the sus- pender cannot posib ly see upon what footing the heritors of Port, in the same case, can pretend to decline your Lordships jurisdiction. For these reasons, it is hoped your Lordships will sus- pend the letters S impliciter, and find the suspender entitled to his expences. 9 In respect whereof, &c. PAT. 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