Memorial 1766

M E M O R I A L F O R J ames Graham of L eitchton, Walter Graham of Montdowie, and others, heritors in the parish of Port, A G A I N S T Mr James Macfarlane, late schoolmaster at Port, J F ORJ a me smG rmh R omJ Jettled schoolmaster in the parish | of Port about twenty years ago, and behaved tolerably 1 well for some time: but thinki ng his profesio n not calcu­lated to acquire riches so speedily as he could wish, he soon began to follow other employments; particularly merchan- dising, to the great hurt of the parish, as by that means his attention was quite taken off the education of their children; so that some who were able to afford it; found it necessary to board them at other schools. Mr Macfarlane’s negligence, and other misbehaviour as a schoolmaster, became so intolerable, that in April 1752, several of the heritors complained of him to the sheriff of the county, in order to have him removed from the office: upon which se- veral witnesses were examined; and though both negligence and maltreatment of the scholars were proved against him, yet, by the interposition of friends, and hopes of amendment, mat­ ters were then carried no further; and he was allowed to conti­ nue in his office. Notwithstanding of this indulgence, Mr Macfarlane of later years behaved in such an odd manner, that it was imposible to bear with him longer; and therefore, in October 17 6 3, a com­ plaint was exhibited against him to the presbytery, signed by a- bove forty heritors and heads of families. But this complaint, and likewise a second, were cast upon some informalities; and at last a third was sustained in March 1764. The articles char­ ged in the complaint are, 1mo, That Mr Macfarlane left his school whole days together, to pursue his merchandise, without leaving any person to take care of the school in his absence. 2do, That upon the Monday before the May fair of Gart- more 1763, Mr Macfarlane went to Stirling, in pursuit of his merchandising, and left his school-door locked. 3tio, That the next day he went to the said fair of Gartmore, to sell lintseed, also leaving the school locked. 4to, That he convened the school so late as ten, and some- times eleven o’clock in summer, and eleven or twelve o’clock in winter._ 5to, That on school-days Mr Macfarlane was in use of lea­ ving his school in school-hours, and going with his customers to make bargains, and sell iron, lintseed, butter, cheese, sugar, honey, candle, &c.; leaving the scholars to divert them- selves, or fight with one another, as they thought proper. 6fo, That Mr Macfarlane refused to take some scholars, with­ out assigning any just cause; and demanded from others half a crown per quarter, instead of a merk Scots, which is the due. 7mo, When Mr Macfarlane corrects his scholars, he bein» of a vindictive and cruel disposition, beats and wounds them; at least such against whom he takes up any prejudice, whether on their own or on their parents account: particularly, about the years 1752 or 1753, he cut and wounded with a penknife the ear of Christian Wright, then his scholar, to the effusion of of her blood, and beat and bruised others so unmercifully about the head and ears as to occasion deafness..8vo, That Mr Macfarlane was author of a pamplet, called A Sarcasm, which contains many gross calumnies and falsehoods a- gainst people of credit and character; particularly David and Robert Thomsons, whom he means in the pamphlet under the title of Davie and Rob, as appears by his letter to them, dated 9th September 1763; which pamphlet contains many minched oaths, lies, and ablsurd notions of demons, angels, and ghosts, of such a nature as to render the author unfit for being a teacher of youth.9no, That Mr Macfarlane went about the parish, inveigling and imposing upon several simple people, and enticing them to sign a blank paper. And the libel subsumes, in general, That M r Macfarlane’s deportment is such as is unbecoming a teacher or instructor of youth. And therefore concludes, That he is not only unqualified for the office of a teacher, but is also guilty of such crimes, neglect of duty, and cruel treatment o f the children under his care, as renders him unfit for being school- master of the said parish of Port; and therefore craves that the presbytery should decern accordingly. When this last complaint was exhibited to the presbytery, there was also given in a representation of Mr Macfarlane’s disrespect- ful and injurious behaviour to the kirk-sesio n of Port, to be af­ ter noticed. Upon considering both, the prefbytery (of consent of all parties, Mr Macfarlane himself being present) appointed a meeting to be held at the kirk of Port, to inquire into the facts; and ordered them to summon their witnesses for that purpose. Accordingly the presbytery met at the kirk of Port; and ha­ ving called upon Mr Macfarlane to answer the charge against him, he made answer to the several particulars; and then the witnesses were examined: which not only took up their whole time at that meeting, but also at several meetings thereafter, held for the particular purpose. The proof being at last con­ cluded, the presbytery, in respect it had swelled to a great length, remitted remitted to a committee to prepare a state of it for their more accurate consideration; who accordingly gave in a report, find­ ing articles 2d and 3d judicially acknowledged, and articles 4th, 5th, 7th, and 9th, proven by witnesses; whereupon the pres- bytery proceeded to give judgment, and pronounced their sen- tence in these words. Which report being read and considered; and the presby- tery having compared the same with the libel, and proof there- of, together with the exculpatory evidence adduced by the said Mr Macfarlane, which were all read over carefully, and maturely considered, do find the said report to be just and ve­ rified, in so far as, with respect to the 2d and 3d articles of the libel, the said Mr Macfarlane acknowledges his going to markets on divers occasions to follow his merchandise, shut- ting up his school when he went away; and also that he dis- posed of his goods at these markets at most extravagant and unreasonable prices; as also with respect to article 4 th, relating to the time of convening his school, that the same is proven by two witnesses, that he for ordinary convened his school at ten, and sometimes eleven in summer, and at eleven, and sometimes twelve o'clock in winter; as also article 5th judi­ cially acknowledged, proven by six witnesses, that it is his or­ dinary practice to sell his goods in school hours, he leaving his school when called upon by his customers for that purpose; and thus ordinarily neglects his scholars. Article 7th proven, he having barbarously used his scholars, in beating one to the effusion of her blood, and cruelly maiming her ear; and ano­ ther by beating him with his fists about head and ears, and trampling him under his feet; and article 9th and last proven by three witnesses, who deponed he came to them, and soli- cited them to sign a blank paper, which they did at his re- quest. T he presbytery taking all these articles, either proven or acknowledged, under consideration as also that a charge against the said Mr Macfarlane by the minister and session of Port was given in, bearing, That he was guilty of scandalising “ the the said minister and sesion, as being all liars and hypocrites; bearing, in particular, That the minister was a forger of the mi­ nutes of session; bearing, that one of the heritors of the parish of Port was guilty of incest and wilful fire asng;bearing, that some of these scandals were propagated in the church on the Lord’s day, in prefence of the congregation, before the minister left the pulpit, all which is fully proven; and having the whole of his the said Mr Macfarlane’s irregular and unprecedented conduct in their eye, are of opinion, that he the said Mr Macfarlane, guilty of all these crimes and misdemeanours, is al­ together unqualified to discharge any longer the office of schoolmaster in the parish of Port, or within the bounds of this presbytery; and appoint Mr Ferguson minister of the parish of Port to call a meeting of the heritors of the said pa­ rish, upon Thursday the 3 1 st of May instant, and nominate the following committee; viz. Meff. Turnbull, & c. to lay before the said heritors this opinion and judgment of the pres­ bytery, and require them to deprive the said Mr Macfarlane of the said office of schoolmaster, which the presbytery judge him unqualified to fill any longer in the said parish, or within the bounds of this presb y t e r y and this sentence being in­ timated to Mr Macfarlane, he appealed to the synod of Perth and Stirling. In terms of the appointment in the aforesaid sentence, a meeting of the heritors was called; who accordingly met, and pronounced the following judgment. “ The meeting made choice of Mr Erskine for their prefes, and Lieutenant Camp­ bell for their clerk; and the committee of the presbytery of Dumblane, named for that purpose, having laid before them an extract of the judgment of the said presbytery, pronounced in the action intented at the instance of James Graham of Leitchton, and others, against Mr James Macfarlane school­ master of Port; and they having considered the same, with the remit to the heritors to deprive him of his office, they unanimously did, and hereby do deprive the said Mr James B “ Macfarlane Macfarlane of his office of schoolmaster of this parish of Port, and of the salary and emoluments annexed thereto from and a fter this 31st day of May 1764: of which inti­ mation was made to the said Mr James Macfarlane, and these presents afterwards signed by appointment of said meeting, by their prefes and clerk.” M r Macfarlane having appealed to the synod of Perth and Stirling, as before mentioned, did accordingly insi st in the said appeal; which came to be discussed at Perth upon the 16 th of October 1764, and the synod sustained the presbyte- rys sentence. Against which Mr Macfarlane also appealed to the General A ssembly; but next day he returned to the sy- nod, and formally withdrew his appeal, whereby the sentence of the presbytery and synod became final. After all those proceedings, Mr Macfarlane thought of an­ other expedient to vex the people of this parish. — He applied to the court of sesi on by a bill of suspensio n; which was re- f us ed by the Lord Barjarg Ordinary. But, upon a petition presented in name of Mr Macfarlane, containing a very partial account of the cause, and no body appearing for the heritors or kirk-session, the same was advised ex parte, and the bill of suspension passed. Thereafter the cause having come before the Lord Barjarg Ordinary, his Lordship, upon hearing par­ ties, appointed them to give in memorials upon the whole cause, the chargers to give in their memorial first, and the suspender in so many days after; which was accordingly done Upon advisin g these memorials, his Lordship pronounced the following interlocutor: “ Ordains both parties to print their memorials, and put them in to the Lords boxes against; the 26th day of April next, as also copies of the proof, in order to his reporting the cause to the whole Lords, to whom he makes avisandum.” In obedience to which, this memo- rial, on the part of the chargers, is now printed, and humbly offered to your Lordships consideration. 7 The The reasons of suspensi on. resolve into three: 1st That the presbytery have no power to inflict so high a punishment as a total deprivation: 2dly,That though the heritors have a right to supply in case of a vacancy; yet, after the office is filled, they have no power to deprive for any malversation: And,’ 3 dly,That there is here no proof to support the sen- tence. With respect to the two first of these points, which regard the power of the presbytery and heritors, either jointly or se- parately, to inflict such a censure upon a schoolmaster, as to deprive him of his office, the chargers cannot imagine your Lordships will entertain any doubt of such power being there placed. It is submitted, on the following considera- tions, that there is much more reason to apprehend, that it is not competent for this court to review what has been so done by the presbytery and heritors, in pursuance of lawful au- thority.. l The establishment of parochial s chools was first appointed by the rescinded act 17. parl. 1646, which ordered, that the schools should be settled by the heritors, with the advice of the presbytery. This act, though declared void, amongst o- ther act s of those parliaments, upon the Restoration, yet con- tinued in observance, and was renewed after the Revolution by the 26th act, parl. 1696, for s ettling of s chools, with this variation, that the schoolmaster is thereby appointed to be settled by advice of the heritors and minister of the parish. The act 1696 further directs the heritors to provide a school- house and salary; and, upon their failure to do so, authorises the presbytery to apply to the commissioners of supply of the shire, who are impowered to estab l ish a school, and settle and modify a salary to the master. The act further declares, that the providing schools and schoolmasters shall be held as a pious use, to which vacant stipends may be applied; and it ratifies all former laws respecting schools, in so far as not thereby altered. Thus Thus the appointment of schoolmasters being vested in the heritors and minister under the inspection of the presbytery; it follows from the nature of the thing, that the presbytery should be the competent judicature for trying objections to a schoolmaster' s qualifications and behaviour, and should have the power of suspending or depriving him, at least with the concurrence of the minister and heritors. But the point does not depend upon argument or implication for a decision. It is explicitly determined by the 26th act of King William, 4th session, 1693, intitled, Act for s ettling the quiet and peace of the church. This act, at the same time that it regulates the form of Presbyterian church-government, does expressly pro­ vide, “ That all schoolmasters, and teachers of youth in s chools, are and shall be liable to the trial, judgment, and censure of the presbytery of the bounds, for their sufficiency, qualifications, and deportment in the said office.” And or­ dains the Privy Council, and all other judges, to give due as- si stance for making the sentences and censures of the church- judicatures effectual. T hus the primary and exclusive jurisdiction over school- masters in regard to their deportment, is legally vested in presbyteries; whose sentences your Lordfhips, instead of ha­ ving power to review or suspend, stand bound to support and render effectual. The suspender can show no instance where the judgment of a presbytery, or superior church-court, in a matter of this kind, has been reviewed or altered by the court o f sesion. On the contrary, the chargers see instances of the sentences of presbyteries depriving parochial schoolmasters be­ ing admitted by the heritors, and all concerned, as making a legal vacancy or the office, and so considered by this court. T his in particular appears from a decision observed by Mr Edgar, 7th February 1724, Presbytery of Ellon contra the He­ ritors of Crudon. It was there too further determined, that in the case of a presbytery s deposing a parochial schoolmaster, or of a vacancy otherwise happening, the presentation of the successor successor belongs to the heritors and minister of the parish; but that if they refuse to present after due intimation, the presbytery may proceed, and settle the schoolmaster. This proves that your Lordships have ju stly considered the settle- ment of parish-schoolmasters, and the removal of them, as a matter purely ecclesiastical, like the settlement of ministers: and as it cannot be pretended that this court could review the sentence of a presbytery deposing a minister; so neither can it review such a sentence deposin g a parochial schoolmaster. The case may indeed be otherwise as to schoolmasters of bo­ roughs, or other foundations, who have not by special statute been put under the exclusive jurisdiction of presbyteries, and whose rights to their respective offices, like all other civil rights, may be properly cognisable by this supreme court. It was observed in the debate for the suspender, “ That here the presbytery had not deprived him of his office, but that they had required the heritors to deprive him.” But this is a mere quibble. For the presbytery, by their sentence, find the suspender altogether unqualified to dis- charge any longer the office of schoolmaster. This was to all intents and purposes depriving him: and although they paid such respect to the heritors, as to require them to meet, and concur in this sentence of deprivation; yet that surely cannot weaken the force of the sentence, but, on the contrary, must give it considerable aid and support if it stood in need of it. It may be further added, that this sentence of presbytery was not only affirmed by the synod, but acquiesced in by the sus­ pender for many months; and during that interval a new schoolmaster was legally presented, and vested with the office; and it was not till some time after that the office was thus legally filled, that Mr Macfarlane thought fit to present this bill of suspension. But supposing this court to have authority to review the sentence of the presbytery, the chargers shall proceed to con- sider the third reason of suspension, where b y Mr Macfarlane C denies, denies, that there was evidence sufficient to support the sen- tence. It must, however, be here observed, that the presby- tery proceeded both upon the complaint exhibited by the he- ritors, containing the several articles of charge before men- tioned, and on Mr Macfarlane’s most extraordinary behaviour to the minister and kirk-session, and founded their sentence upon both completely. First, As to the heritors complaint, the memorialists appre­ hend, the whole articles which the prelbytery found proven are clearly instru cted by Mr Macfarlane’s judicial declaration, and the depositions in process. ’ The three first and fifth articles amount to this, “ That Mr Macfarlane dealt in merchandise, by which he was not on­ ly absent whole days at fairs and markets, but likewise much taken up at school-hours.” This is proved by Alexander Harvie, the s econd witness who being interrogate, “ If Mr Macfarlane gave the proper attention to his school: deponed, He thought he did not; and that he sold lintseed, at lintseed-time, in the school, and made bargains." Walter Macfarlane. the fourth witness depones, “ That Mr Macfarlane gave him regular attendance' and also to the other scholars, except when he went out now and then.” And being asked, If the confusion of the scholars at these times did not oblige him to leave the school? he answered, That he went out sometimes with Mr Macfar­ lane’s leave, and sometimes without it; and sometimes when he went out, Mr Macfarlane was not in the school; and when he returned, Mr Macfarlane was sometimes in the school, and sometimes not.” This is a very natural and strong description of inattention and confusion. F u r t h e r, Jo hn Blair, the fifth witness, depones, That he saw him selling things in school-hours, particularly cheese; and that Mr Macfarlane employed the scholars in working for him in school hours, carrying clay and suchlike. Henry Milne, the sixth witness, depones, That he was three days at ' M r Mr Macfarlane’s school, “ during which time he went fre­ quently to another room; and as scholars, in their master's absence, are not very sound, he thought he could reap no benefit by staying at that school, and therefore left it.” John Macfarlane and Alexander Lenie, the eighth and ninth witnesses, depone, That they bought iron from Mr Macfarlane in school-hours. Duncan Ferguson, the tenth witness, depones, That he bought cheese from him in school- hours. David Haldane, the twenty-fourth witness, depones, That Mr Macfarlane dealt in selling iron, lintseed, cheese, but­ ter, and sugar. Robert Crawfurd, the thirtieth witness, de­ pones, That Mr Macfarlane went along with him to Stirling, and had with him some butter; and that there was also some butter in the town before him in Mr Glass's, which he sold in Stirling that d ay; and at same time he saw lintseed on carts, which was for Mr Macfarlane’s behoof, to be carried home to the Port of Monteith for sale; and which the depo­ nent knew he sold accordingly, partly at his own house, and partly at neighbouring markets; and that the lintseed was in the house where he taught his school: That he has known him sell iron and honey once or twice two different years, and butter and cheese; and that he has seen the scholars carry gads of iron to the smith’s house to be cut. Janet Bateson, the thirty-first witness, depones, That she bought from him, at different times, butter, cheese, honey, sugar, candles, hops, potatoes, meal, and lintseed, and some of these in time of school-hours. Besides the testimony of these witnesses, the presbytery had before them Mr Macfarlane’s judicial declaration, taken in their own presence, wherein he acknowledges the second and third articles of the complaint. The next article (being the fourth) found proven by the presbytery is, “ That Mr Macfarlane was late of convening the school.” Andrew Wood, the first witness, depones, That the schools convened convened sometimes at ten, sometimes at eleven, and some- times twelve o’clock; and does not remember ever to have heard Mr Macfarlane warn the scholars to come soon. Alex­ ander Harvie, the second witness, depones, That he thought the time of convening the school was later than in other schools. Robert Crawfurd, the thirtieth witness, depones, That, previous to the commencement of this process, the school met sometimes at eleven, sometimes at ten o’clock, as there were a greater or lesser number of scholars come up. The seventh article, That Mr Macfarlane was cruel to the s cholars, is proven by Christian Wright, the thirteenth wit- ness; who being interrogate, “ If Mr Macfarlane, when she was at his school, cut or wounded her lug with a penknife? answered, She cannot say it; but that, when he paid her, her lug bled, of which she has the mark still.” And Christian Wright, the fourteenth witness, mother to the last-mentioned witness, depones, “ That, when her said daughter went from home the morning referred to, nothing ailed her lug; but when file came home from the school at night, her lug was cut, and a good deal of blood upon her neck and shoulders: That she did not tell that evening how she got her lug wo unded; but told her next morning it was the schoolma- ster, and was unwilling to go to school unless she the mo­ ther went along with her, which she did.” George Graham, the fifteenth wi tness, depones, That when he was at school, he saw Mr Macfarlane, with a pen­ knife in his hand, threaten to thrust through the ear of Chri- stian W right; and same day saw a wound in her ear, to the best of his knowledge, though he is not certain, occasioned by the long distance of time; but well remembers he heard the rest o f the scholars say, that Mr Macfarlane had done it with his penknife.------William Marfarlane, the seventeenth witness, depones, He saw Mr Macfarlane lay John Fisher, one of his scholars, over a form in the kirk, first pay him wi th his taws on the backside, then beat him wi th his hands on “ any any part of his body he thought proper; and, to the best of his remembrance, it was about the head; and immedi­ ately trample and kick him with his feet: That he has like- wife seen Mr Macfarlane use several others of his scholars pretty cruelly." James Sands, the twenty-first witness, concurs in the story about John Fisher.------ Isabel Kier, the 25th witness, also con­ curs in John Fisher’s story.------ Janet Battison, the thirty-se- cond witness, depones, That about two years ago, Coillechraw’s daughter came into her mother’s house greeting; and that she was in a very disorderly condition, being all wet and pud­ dled; and that the deponent was obliged to take a linen cloth, and put betwixt her skin and shift, and to wipe off the mire and c lay; and having asked the girl what occasioned this disorder? she answered, that it was by bearing wet seal to the Dominie; and that the said girl complained of a pain in her breast; and the deponent gave her a dram, and rebu­ ked her for being so employed. And the 9th article, also found proven, is, That Mr Mac­ farlane enticed people to sign a blank paper, which they knew nothing about. * William Blair, the 27th witness, depones, That Mr Mac­ farlane brought a paper to him about the twilight: That he neither read it himself, nor did Mr Macfarlane read it to him; nor did he observe any writ upon it when he signed it, but some names; and when Mr Macfarlane desired him to sign it, he said, if he had any fault to him, not to sign the paper; i f he had none, he might sign it; adding, that it would save him (Blair) further trouble, or going at a greater distance. John Maccarter, the twenty-eighth witness, depones, That when he was coming to his work one morning, Mr Macfar­ lane was at his sister’s door, with a paper in his hand, where­ on he saw writ at the distance he then was; and when Mr Macfarlane brought it to him, he folded i t; so that he saw nothing but names; and at his defire he signed it; nor did D he, he, Maccarter, bid him read it.—— John Macvey, twenty- ninth witness, depones also, That he signed a paper at Mr Macfarlane’s desire, on which he saw only a few subscriptions, without being told the nature of it. Besides this strong proof of the heritors complaint, the presbytery had before them the proceedings in the kirk-ses- sion.. Upon this point, it is necessary to inform, that upon Sun­ day the 15th of January 1764, after divine service was over in the church of Port, Mr Ferguson, the minister, asked the elders, as usual, if there was any business? and being an- swered in the negative, he was moving towards the door, when Mr Macfarlane was pleased to call him back; and, in a very rude manner, to tell him, he must call a week-day sesio n, when he, Macfarlane, would make it appear, that all the elders of the parish are liars, and some of them hypocrites; and that at a meeting of presbytery they had made the mi- nister a liar loo. This outrageous behaviour astonished the minister, who having rebuked Mr Macfarlane for his rude- ness, went home, hoping he would come to a better way of thinking; however, as Mr Macfarlane was far from showing any sense of his misbehaviour, the sesio n could not, consi st- ent with respect to decency and good order, allow a person who had acted so improperly, to bear any public office in con­ ducting divine service; they therefore held a sesio n on Sunday the 22d, before divine service, to which Macfarlane was cited, and suspended him from the office of precentor and sesio n- clerk; but allowed him to keep the records, and enjoy all the emoluments of session-clerk until a week-day’s sesio n should b e held; against which sentence he appealed to the presby­ tery. In order to shew still further what a disorderly spirit Mr Macfarlane was of, he, on the afternoon of the same Sunday on which he had been suspended, took upon him, in a most unprecedented manner, (before the minister left the pulpit, * or or the congregation was dismissed), to read a paper or mani- festo, containing an accusation of the minister and session, for their proceedings in their judicative capacity; and in this manner took an opportunity of publishin g the scurrilous epi­ thets given the elders, as before mentioned. This was un­ doubtedly contrary to all rule and order. But Mr Macfar- lane did not stop here; for in his Reasons of appeal to the presbytery he was still more liberal in his scurrility, and made an open attack upon one of the heritors, Mr Graham of Montdowie, whom he calls a man infamous through all the stages of life, who had been obliged to fly the country with his concubine, for wilful fire-raising; and in short represents him in the most dreadful colours; for which indeed he met with a very proper check, having been afterwards decerned in 300 merks of damages by the commissary of Dunblain. When all these circumstances are considered, which clearly prove Mr Macfarlane to be a most disorderly and outrageous man, capable of being restrained by no authority; of which the presbytery had further evidence from conversing with the parishioners upon the spot; they thought it their indis- pensable duty to declare honestly their opinion of his qualifi­ cations to be a public teacher; to which the heritors paid the proper regard, for the peace and welfare of the parish. Though the presbytery take no notice, in their sentence, of the eighth article of the libel, which charges Mr Macfarlane to be author and publisher of a printed pamphlet, intitled, A mad, merry, and diverting s arcasm, containing many ridicu­ lous and absurd notions, which shews the author to be a very unfit person for directing the education of youth; yet the memorialists apprehend this is also proven. For John Mac­ farlane, the twenty-second witness, and the suspender’s bro­ ther, being asked, Who employed him to distribute the Sar- casm? answered, No body; but coming from Cardross with a burial, he asked one of the copies of that paper from his brother the suspender, who gave him about a score of them; and and the reason o f his asking them from him was, he heard the country-people said, he was the father of it. And David Haldane, the twenty-fourth witness, depones, That he said to Mr Macfarlane, If Mr Macfa rlane was the author of the Sarcasm, as reported, if he the deponent had been the au- thor, he would have delayed the publishing of it at that time t i l this affair was ove r; to which Macfarlane answered, He did not care a snuff.— And lastly, Mr Macfarlane himself’ in his judicial declaration, in effect acknowledges it for being interrogate anent his being the author of the pamphlet in- titled the Sarcasm, he answered, He neither confesses nor de­ nies it. In respect whereof, &c. D A VY. R A E„