Jean Farquharson, Alexander Anderson and George Fordyce v. Alexander Anderson of Candacraig — information, 31 May 1800

' • ')- j "- u •, [BILL-CHAMBER.] MAY 3r. r8oo. JNF. JEAN F ARQY.HARSON, &c. AGAINST ALEX. ANDERSON, Efq; refpeCl:ing Ad­ miffibility of Witneifes. [sEEN AND INTERCHANGED.) Geo. Fordyce, Solicitor. • [Lord C.RAIG, Reporter.],.,_ F 0 R-., I I;.-3'. / I • I f • •-___________.... / AGAINST.I r- < ~,....,n; • c/,t1 r:>- ALEXA ND ER ANDERSON, Efq; of Candacraig, Advocator. '"'~ / /;_,._,,._, I J {/,....A.., (~~. N this paper tl1e refpondents are to treat of the admiffibility 4. /v~~---i of certain depofitions emitted in the Commiifary-court, and · at prefent under feals. The Commiffaries have · ret-ufed to re- A./A-'I /,. ~ r.,I / I~ '- move thofe feals, and a bill of advocation having been prefented ~ ·, / /-. b M d r c i:::l.. "" ~,~~-..-tr,...,,. 1 ' to Lord Craig y r An er1on, de1ender be1ore the Commif- 0,...__ ' faries, his LordD1ip has been pleafed to take the matter to report,-c,LJ C-.'"'--_, u-J.,..._, and to order informations.; / T11e fubjetl: to be difcuffed is of impo1·tance, abftrading wholly.2~ w.-~,,,{_ from the feveral interefis of the parties. It involves fome gene-- / A ral-- r • • I Purf. Proof, p. 26. f [2 J (, ral provifio11s of tl1e· law of evidence, at a per.iod when the obli ­ g <1tory fo1·ce of oaths is evidently not upon the increafe,:1 nd in a caure whe1·ein the formaliti es of teftjmony have very f1·tiquent­ ly bee11 attempted to be fported \Vitl1. It has been hinted, a11d ma v be true, tl1.a t tl1e ftriCl: rules of evidence a re ftiff.and old­ faf11 ioned; but it can hardly be pleaded, that the morals of the[e times merit any relaxation of former rigour, 11or that a caufe, \vhe1·ein contradictions upon oath are rather conftant than oc­ cafio11a l, is tl1e cafe in whicl1 the moil rigid precautions are ufelefs. Had t11efe fealed depofitions been taken in alrnoft any other queftion, it mi ht have been fufficient, in this paper, n1erely to na1·rate the fL1bfl:ance of the obje&io11s offered to tbern. But the prefent is an ext1·aordirfary Cafe, COlDjJlicated in its circum­ ftances, unpl ea fa11t ir1 its detail, and fe1·ious in its confeq11ences;-a cafe. wl1ich has bee11 conducted at an t1nufual expence, with a \.Vall e of p1·eparation and art, and, as h as been faid, \Vith a la­ mentable expoftire of tl1e feeble powers \Vhich eve11 relig ion arid the laws fo111eti1n-es 1poifefs ove1· the mi11ds of 'vitneifes. It is here-, tl1erefore, ab-(olutely 11tx::effaty tG> introduce the more im- 1nediate points of difct1i1ion, \Yitl1 fo1ne fhort detail of the con­ dult t}f a cau[e, \'Vhe1·e, arni dft a bulky 1nafs of ev idence, th ere is tnore contradiction tll.nn co.nfiftency; \vl1etein it of.tene1· h appens tbat two perfo11s, of,Gmilar fta-tio11 and u11de rfraoding, f wear in direct oppofition to the fame fact, than in fL1ch way as can be re­ conciled by any rneans to tl1e poffibllit, of mutual truth. Tl1e refpo11dent Mi(" Fa1·quharlo11, is the daughter of a landed n1a11, a 1d is refpecrably connected. Tl1e defender l1iLnfelf ad- 111its, in l1i s judicial decla1·at~on, that 11c beca1ne acqt1ainted \Vith l1er \.V-h en a gi 1·!, t1pon he1· a r1·iv> al fror11 a boarding-fchool. She was born i11 1761, and 11e f <1ys 11is ~1cquaintar1ce \vith l1er liegan in 1776. Thi s gent le1na11, altl1ougl1 11ot e'\·eo 1\tlifs Fa1·qt1l1arlon's equal in birtl1, a is alfo admitted i11 hi o\vn declaration, yet by the favour. of good fo1'tt111e, is poileiled of a moft extenfive pro ­ perty in money and la11cl. He \•ifited frequently at the 1·efpon­ dent's fatl1er's houFe. He fay, ' l1e at firfl paid rnoft attention ' to her i1fte1·, but afterwards ct1me to pay 1noji atte1itio11 to t11ie p11r­ ' J1.1e1·.' He ad111its, ' tl1at he was frequently alone \Vitl1 he1·; ' and tl1at the i11tervie\vs \\'ere ion1etir:1es accidental, /011zeti1nes of ' his faeking.' H e declares, 'that in hi co11verfations and b ' his conduct, l1 e difcovered a particular fo11d11efs a11d pa1·1ir1lity in ' favour of tl1e pu1·fue1·, bL1t neve1· 111ea11t to in1prefs he1·,\ itl1 a11 idea • • • •- r 3 1 ' idea that 11e intended to mar1·y her, nor fpoke or behaved ir1 ' fuch a n1anner as ought to have give11 her that impreffion.~ YoL1r Lordlbips, wl1e11 you find this gentleman admitting his ' particular fondnels and pa1·tiality,' di[covered ' in private ' interviews, to a girl jufi from fchool,' \vill not probably lay much ftrefs upon the cautious qualification now an11exed to this admiffion, that he did not behave in fucl1 a manner 'as " ' ot1gl1t ro have given her the irnpreilion of ma1·riage.' Men are bound in their i11ter,1 iews witl1 young women, lo to conduct tl1emlelves as to prevent tl1e poffi.bility of a mifrake. Equivocal atre11tions to a g i1·l are difhonourable, if they are purp~[ely equi­ vocal. Befides, M;· Anderfon is not the proper judge in his own cafe, of what this behaviour ought to have effected. If it was fucl1 as might miflead Mifs Farquharfon, it was ct1lpable. It ot1ght to be me11tioned here, that in the whole courfe of a proof, which has now lafied fix years, a11d durin g· the whole progrefs of a feries of tefiimo11y, collected with u11precedented indL1firy, it has not been i11 Mr Anderfc11 's po"ver to bring any evidence to affect the char.alter of Mifs Farquha1·fon, at the pe­ riod now alluded to, wl1e11 11e owns he firfl co1n1nenced bis OJ)e ­ ratioos, by feeking ' private intervie\vs,' a11d difcoveri11g ' P.~lrti­ ' cular fonclnefs.' Oo the contrary, ther·e is a cloud of evidence to her· purity of character. After· a lo11g courfe of at te11tio11, the mofi animated and conftant,.and at the end of feveral years from the above period, M1· Anderfon admits, ' that he believes P. 27. G. ' reports we11t in the country fometimes, that tl1ey \\·e re to be ' 1narried;' altl1ough 11ere again we undoubted] y have a quali ­ fication, that th e declarant neve1· expreiled ' himfelf, in the hear- ' ing of any of the farnily 1 fe1·va11ts or neigl1b.ours, in fuch ter1ns ' as might t end to irnprefs them witl1 a belief that the declarant ' i11te11ded to 1narry tl1e purfuer.' Mifs Farqt1harfon's ow11:iccount of tl1is connection £h all not IJe deta iled to yoL11· Lordfhi1Js at prefe11t. You "viii readily be­ lieve, that it goes much fu1·tl1er than t l1e admiffions of Mr An ­ derfor1, but no furtl1er, as fl1e trufl:s, (and \Vhen the p roper time comes wi ll fhew), tl1an the proof has efiablilbed. It is fufE.ci­ ent at prefent to rernarl <, that i11 April 179+, ihe was delivered of an infant withot1t tl1e ceremony of a regular mar1·iage. But £he did 119t beco111e the motl1e1· of tl1i s cl1il fied if Milne wol1ld '\¥rite a letter to the ' moderator of the feffion,' acl <110\vledging bis guilt \vith Mifs Farqul1arfon. Candacrai g after\vard s p1·oduced a ready-prepared fcroll, and dietated the copy to Mil11e. It was fent acco1·dingly; but foon thereafter, Milne's confcience ' forely fmote 11irn' for what he had done, and he went to the feffion and declared, that the letter was ' falfe in date a11d i11 eve1·y thing elfe, rn. king a ' declaration that 11e had aCted againft l1is confcience.' Tl1e i·efpo11dent fhall not pt1rfue the ftory of Milne further. Your Lordihips will hereafter, perhaps, have e11ougl1 of trouble on the ft1bjeB:; and all tl1at is tneant at p1·efent is to llie\v that Mr Anderfon is one who is apable of fuch attempts and meafures as fhould. lead your Lordihip_s to be even more than t1fually fcru~ pulous with rega1·d to any teft1mony offered by him which come forward • • [7] forward in an objeCl:i6nable ihape. To eftablifl1 tlus propofirion, there are more inflances of impropriety than what may be gather­ ed from the fingle cafe of Milne. For inftance; John Ley, one of his propofed witneifes,,,·as of- Def. Proof, fered, although he had been openly aiding and abetting in all the P· 63· H. meafures of Mr Anderfon, and, inte1· alia, deponing, ' 'I'hat he afk- ' ed leave to go home on the above night, fuppofing there was no ' mo1·e ufe for hi1n: That the defender thereupon bid him go into • the dining-room and flay a little, which he did.' He was then called back to be prefent at a confultation about l\1ilne's letter, and was afterwards fent to deliver it to one of the elders of tl1e p. 64. A. parifh. Sufpicions being entertained by Mr Anderfon, of Milne's fteadinefs, even with a former promife of four horfes, and a fe- cond bribe of L. 100, Ley was fent for by exprefs next morning, and ordered to go to Mi-lne, and 'keep him ftaunch to what he__ p.65. A. ' l1ad done the nigl1t befo1·e.' vv'l1ereupon Ley mounted his horfe, and went direCl:ly to the defender's houfe. Yet \Vas this man Ley offered as an evidence in bel1alf of 1r Anderfon; but the Commiffaries, in refped of his depojltion i11 initialibtts, found Feb. 8. 179s. him inadmiffible. Mr Anderfon, as ufual, offe1·ed a bill of advo- cation, but Lord Glenlee finally refufed tl1e bill. The perfever- April 21.- ­ ing defender, to whom 1noney is no objeCl:, bt1t delay fome grati- fication, 1·eclai1ned to your Lo1·dihips, bt1t his petition was 11nani. moufly refufed. Again; the manceuvres of Mr Anderfon are equally obvious, from the cafe of Major Grant at Lurg, \vho \.Vas alfo adduced as a witnefs in this cafe, although it is in evidence, that he was pre- fent on the night of Milne's affair, acting as the advife1· of Mr Anderfon. George Stewart, depones, ' Tl1at the defender afk- Purf. Proof. • ed him if l1e could not fall on Come way of inducing Sandy P· 97.B. Milne to come to Pen. Anderfon's that very night, as there was no time to be loft: That on the deponent's hefitating, Ma­ ' J·or Grant, (Ll1rg), dam11ed him, and ajked what Jhould hinder him to ' get Sandy Milne to come.' And upo11 Stewart mentioning that Milne owed money to Ley, 'and might perl1aps be induced to ' come and fpeak to Ley about it, Ma;·o1· Grant /aid he thought this ' a very good pla11;' a11d Stewart \Vas in11ned ia tely fent for Milne. When Ley himfelf came to Candacraig, he found ' there Majo1· Def. Proof ' Grant of Lt1rg, and John Machardy. Depones, That on the P· 65· H. ' deponent's going into the room, the defender afked the depo- ' nent what had paffed, and the deponent told him, tl1at the de- ' fender faid It's no matter, let it go: That Major Grant of Lurg ' damned • ' ' I Purf. Proof, P· 41. D. [8 J ' damried the hat Lord Craig 11as alfo taken to report, at the 1·eqt1efi of parties, two otl1er points which 'V\'e1·e b1·ought before his Lordihip in a bill of advoca tion, at their i1zjlance. The merits of tbefe ihall, the1·e­ fore, here be very briefly fiated, and yot11· Lorclil1ips will thus have the trouble of 1·e:id i11g 011ly 011e p:-i1Je1· on each fi