Petition 1766

Unto the Right Honourable, the Lords of Council and Session, T H E P E T I T I O N O F TH E P I O N H F H E of Leitchtono f H, a P N O N H F H E of Montdowie, and others, Heritors in the Parish o f P ort; 4 n d E t, h e F P r P a F o T H A T of this date, Mr. James Macfarlane was appointed schoolmaster of the parish of Port, and for some years, either no fault has been found with his behaviour and deportment in that character, or at least no formal or judicial complaint appears to have been made with regard to his conduct. But before the year 1752, the heritors and the parishio- ners became dissatisfied with his behaviour, and applied to the sheriff substitute of Perth shire, which, tho’ not the proper jurisdiction for an application of that kind, yet the application shows, that so early as this period, those inte- rested began to complain of his behaviour. The applica­ tion proceeds upon the narrative of the importance it is that parishes, more especially those remote ones bordering upon the highlands, should be supplied with well qualified school- schoolmasters, and who give attendance and due applicati- on: And then the petition proceeds to inform, That Mr James Macfarlane, the present parochial schoolmaster at the Port, does not give sufficient attendance upon the school but frequently leaves it to go about his diversions, or o- ther, affairs; and even when he does attend, instead of moderate and proper correction for the children under his care, he goes to excesses of severity, from which the inha­ bitants or the said parish were laid under the necessity to send their children from home to other schools, at a great- er expence than they were able to bear. The petition con- cludes with praying the sheriff to take proof of the charge brought by the heritors; and to find, that Mr. JamesMc- farlane had forfeited his title to the office of schoolmaster and therefore ought to be dismissed from the same. • The sheriff substitute having considered this petition al­ lowed a proof to the petitioners of their charge, and an exculpatory proof to Mr. Macfarlane. Several witnesses were accordingly examined, and your Lordships have their evidence subjoined to the proof addu­ ced before the presbytery in the present question, which is already in the hands of your Lordships. The petitioners, therefore, shall not now enter into a minute discussion of this proof adduced before the sheriff substitute of Perth shire, but, as in one view to be hereaf­ ter mentioned, it seems material in the present argument, it is hoped you Lordships, upon looking again into it, will discover the following particulars established: 1mo, That Mr. Macfarlane was inattentive to his school, and followed other business and his diversions much more than he attend­ ed upon his school. 2do, That, on account of his negligence and remissness, the inhabitants of the parish were obliged to remove their children to other schools, where they re- ceived their education after Mr. Macfarlane, from not giv- ing due attention, had declared to their parents they could not not be taught. 3tio, So much did he consider the teach­ ing of his school as a bye business, that during the times of casting his peats, he would give up his school for days, that he might attend his peats casting: And in the year 1748, there was no school from the first of June till Octo­ ber. 4to, It appears, that in chast i sing his scholars, he carried his severity to an excess, in so much, that one James Blair, who had two daughters at his school, was obliged to send them to another school on account of his severity to one of them, who, as the witness expresses it, came home greeting, and was blue and blae about the face and head. Lastly, The irregularity of the school hours is like- wife established. Altho’ several witnesses were examined, and those facts instructed before the sheriff substitute, no further pro­ cedure was held in the 1752, but from motives of lenity, and hopes of amendment, the affair that time was dropt. But notwithstanding the rebuke which this affair might have given Mr. Macfarlne, it does not appear he made the proper use of it; for such was his behaviour and con­ duct in many particulars, that the parish suffered from his inattention, and the education of the youth became so- much neglected, they were obliged again to complain: Ac­ cordingly, upon the 29th of November 1763, his conduct was brought before the presbytery; but the method of the application not appearing proper, it was dismist, and the complainers desired to give in a formal libel at their next meeting. The next meeting was the 10th of January 1764, when a libel was given in; but as some papers, referred to in it, were not produced, the presbytery dismist it for the pre- sent, reserving power to the parties to bring a new libel, This new libel was brought at the very next meeting, which was the 6th of March, and was sustained by the presbytery. The libel, from the very nature of it, did con- sist si st of various articles; for, as it was nothing else but a representation of the complaints of the parish, who were hurt in the education of their children, it did of necessity consi st of the different articles in which they thought there was ground of complaint. The particulars condescended upon were as follows: 1mo, That Mr. Macfrlne left his school whole days to­ gether, to pursue his merchandize, 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 Gart- more to sell lintseed, also leaving his school locked. 4to, That he convened the school so late as ten, and sometimes eleven o’clock in summer, and eleven or twelve o’clock in winter. 5to, That on school days Mr. Macfarlane was in use of leaving his school in school hours, and going with his cu- stomers to make bargains, and sell iron, lintseed, butter, cheese, sugar, honey, candle, &c. leaving the scholars to divert themselves, or fight with one another, as they thought proper. 6to, That Mr. Macfarlane refused to take some scholars, without assigning any ju st cause, and demanded from o- thers half a crown per quarter, instead of a merk Scots which is the due. 7mo, When Mr. Macfarlane corrects his scholars, he be­ ing of a vindictive and cruel disposition, beats and wounds them, at least such against whom he takes up any preju- dice, 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 her blood, and beat and bruised others others so unmercifully about the head and ears, as to oc- casion deafness.., 8vo, That Mr. Macfarlane was author of a pamphlet called A Sarcasm, which contains many gross calumnies and falshoods against people of credit and characte r, par­ ticularly 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 minced oaths, lies, and absurd 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, inveig­ ling and imposing upon several simple people, and entic­ ing them to sign a blank paper. And the libel subsumes in general, that Mr. Macfrlne's deportment is such, as is unbecoming a teacher or instru cto r of youth: And there­ fore concludes, that he is not only unqualified for the of­ fice of a teacher, but is also guilty of such crimes, neglect of duty and cruel treatment of the children under his care, as renders him unfit for being schoolmaster of the said parish of Port; and therefore craves, that the presby- tery should decern accordingly. In the interval, betwixt the meeting of the presbytery upon the 1o th of January, and the meeting upon the 6th of March, a very extraordinary incident occurred, exhi­ biting the character and manners of Mr. Macfarlane in a very remarkable manner; and which being under the view of the presbytery when they gave judgment, it is necessa- r y t o recal the particulars again to the remembrance of your Lordships. / »«• Upon a Sunday, being the 15th of January 1764, Mr. Ferguson the minister of Port, as customary, enquired at the elders then present, after dismissing the congregation, if there was any business that day in the session; and the elders having answered there was none, Mr. Ferguson mov- 0 b ed ed towards the door of the church, in order to go home, when he was called back by Mr. Macf arlane, and told by him, that he desired a week-day’s session to be called: The mins ter naturally asked, for what purpose? and, to his ut ter astonishment, received for answer, that it was in order to make it appear, that all the elders in the parish were li­ ars and hypocrites, and had made the minister so too. The whole foundation for this outrage, was no other, than that Mr. Fergus on the minister being asked by the moderator at the presbytery, Whether the kirk session took any concern in the complaints? he answered, as was the fact, in the negative: But it seems two individuals of the eldership had signed one of the complaints, as heads of families; upon which trivial circumstance, Mr. Macfarlane thought proper to pour out such a deluge of abuse upon the whole eldership, and minister of the parish. After so slanderous a reproach, it occurred to be highly indecent and improper, that Mr. Macfarlane should remain in the face of the congregation of that parish, to discharge any part of the public worship of God; at the same time, there was no inclination, abruptly to deprive him of any of the emoluments of his office. Accordingly, the session having met before divine service, upon Sunday the 22d of January, they suspended Mr. Macfarlane from the power of precenting; “ Allowing him to keep the public records of the session in his custody; to proclaim parties for marriage; to enjoy the emoluments arising from his said office as clerk, ay and until a week-day’s session be ap­ pointed, so as an opportunity may be given him to make good his allegations against the session, and to en- quire more particularly into his conduct and qualificati­ ons for precenting; which week-day’s session shall be appointed so soon as it is convenient.” Against this temporary suspension from the power of precenting only, Mr. Macfarlane thought proper to enter an appeal appeal to the presbytery, and in his reasons of appeal, he is pleased to be still more liberal in his scurrility, making an. open attack upon one of the heritors Mr. Graham of Mont- dow ie, whom he calls a man infamous through all the sta- ges of life, who had been obliged to fly the country with his concubine for wilful fire raising; and, in short, so out- ragious was he in his abuse, he was afterwards decerned * in 300 merks of damages by the commissary of Dumblane, Notwithstanding of this appeal to the presbytery, against the sentence of the kirk session held upon the morning of Sunday the 22d of the month, he thought proper upon the evening of that same day, to take a most extraordinary step equally indecent and irregular, and still more public than his former abusive attacks upon the minister and the kirk session. For immediately after divine service, and before the con­ gregation was dismist, he rose up and read in the face of the congregation a most extraordinary harangue, contain­ ing the same accusations of falshood and hypocrisy against the minister and eldership of the parish, as what he had verbally poured out against them upon the Sunday preceed- ing. At so uncommon an event, the minister was much at a loss in what manner to behave, as he was unwilling either to enter into any altercation with such a combatant at so improper a time, and in so improper a place; but he was likewise unwilling, that the congregation should be dis- mist with any undue impression, either with regard to the behaviour of the elders themselves, or with regard to their conduct towards Mr. Macfarlane. In those circumstances, the thought which most readily occurred, was to give the congregation a just representation of the procedure of the kirk session, and of the conduct of Mr. Macfarlane, which he did by reading to them the minutes of what the kirk ' * session session had done, relative to Mr. Macfarfane on the mor­ ning of that day. As these particulars had occurred after the meeting on the 10th of January, when the informal complaint was dis- mist, and before the 6th of March when the new com­ plaint was exhibited and sustained, the minister and the kirk session thought it their duty to give a representation of Mr. Macfarlane' s injurious behaviour to them upon the two Sundays, as already mentioned. The presbytery, in order to have the fullest and most fair examination into the complaints of the parish, and the conduct of Mr. Macfarlane, at the presbytery, upon the 6th of March, appointed a meeting to be held at the kirk of Port to enquire into the facts, and ordered them to summon their witnesses for that purpose* Accordingly, the presbytery met at the kirk of Port, and hav­ ing called upon 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 concluded, the presbytery, in respect it had swelled to a great length, remitted to a committee to prepare a state of it for their more accurate consideration, who accordingly gave in a re­ port, finding articles 2d and 3d judicially acknowledged, and articles 4th, 5th, 7th, and 9th, proven by witnesses; whereupon the presbytery proceeded to give judgment, and pronounced their sentence in these words: “ Which report being read and considered, and the pres­ bytery having compared the same with the libel, and proof thereof, 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 ju st and verified, in so far as, with respect to [9 1 to the second and third articles of the libel, the said Mr. Macfarlane acknowledges his going to markets on divers occasions, to follow his merchandize, shutting up his school when he went away; and also, that he disposed of his goods at these markets, at most extravagant and unreasonable prices: As also, with respect to article 4th, relating to the time of conveening his school, that the same is proven by two witnesses, that he for ordinary conveened his school at 10, and sometimes 11 in sum- mer, and at 1 1, and sometimes 12 o clock in winter; as also, article 5th judicially acknowledged, proved by six witnesses, that it is his ordinary practice to sell his goods in school hours, he leaving his school when called upon by his customers for that purpose, and thus ordi­ narily neglects his scholars. Article 7th, proven, He having barbarousl y used his scholars, in beating one to the effusion of her blood, and cruelly maiming her ear; and another, by beating him with his f i sts about head and ears, and trampling him under his feet. And arti­ cle 9th and last, proven by three witnesses, who depon­ ed, he came to them, and solicited them to sign a blank paper, which they did at his request. The 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 said minister and session, as being all liars and hypo­ crites, bearing, in particular, that the minister was a forger of the minutes of session, bearing, that one of the heritors of the parish of Port was guilty of incest and wilful f ire-raising, 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 un-_ ^ f L unprecedented conduct in their eye, are of opinion, that he, the said Mr. Macfarlane, guilty of all these crimes and misdemeanours, is altogether unqualified to dis- charge any longer the office of schoolmaste r in the pa- rish of Port, or within the bounds of this presbytery; and appoint Mr. Ferguson, minister of the parish of P o r t, to call a meeting of the heritors of the said parish, upon Thursday the 3 1st of May instant, and nominate the fol­ lowing committee, viz. Messrs. Turnbull, &c. to lay be­ fore the said heritors this opinion and judgment of the presbytery, and require them to deprive the said Mr. Macfarlne 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 presbyte­ ry.” And this sentence being intimated to Mr Macfr- lane, 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 Campbell for their clerk; and the committee of the pres- bytery of Dumblane, named for that purpose having laid before them an extract of the judgment of the said pres- bytery, pronounced in the action intented at the instance of James Graham of Leitchton, and others, against Mr. James Macfarlane schoolmaster of Port; and they having considered the same, with the remit to the heritors to de­ prive him of his office, they unanimously did, and hereby do deprive the said Mr. James Macfarlane of his office of schoolmaster of this parish of P ort, and of the salary and emoluments annexed thereto, from and after this 31 day of May 17 64; Of which intimation was made to the said Mr. James Macf arlane, and these presents after­ wards signed, by appointment o f said meeting, by their prefes and clerk.” In In this manner did Mr. Macfarlane think proper to sue for redress and review of the presbytery’s sentence before the ecclesiast ical courts; and those appeals being dismist or withdrawn, the heritors thought themselves now at full liberty to take steps for supplying the vacancy in this school, in which no schoolmaster had been from the date of the presbytery’s sentence; and accordingly, due en­ quiry being made, in the course of that enquiry, Mr. Ro­ bert Macnab schoolmaster at Callandar was attested and re­ commended as a proper person. Accordingly, of this date, Mr. Ferguson the minister of the parish, at the desire of the heritors, intimated to the parishioners, that the school was to be opened on the Mon­ day following, read the certificate in favour of Mr. Mac­ nab; and as the parishioners had complained of their for­ mer schoolmaster, and had no regular schoolmaster at all, since the month of May preceeding, he advised them not to be dilatory in sending their children to school, as they had so long wanted the means of instruction. In doing what is usual upon such occasions, Mr. Fergu­ son little expected to meet with a fresh instance of Mr. Mac- farlane s insolence and irregular breach of public decency: However, Mr. Macfarlane was again pleased to break out before the public congregation, whereupon the minister desired the beadles, or constables, to remove him from the church; but Mr. Macfarlane having resisted to obey, some confusion ensued; at which Mr. Ferguson, unaccustomed to, and struck with a sincere feeling for such a strange and unaccountable breach of decency and good order, admo- nished the congregation to dismiss, who accordingly went off, in compliance with the admonitions of their minister, and Mr. Macfarlane soon after went out without any vio­ lence or outrage offered him, and from thence forward went about his business as usual, without any sickness or confinement. The school being thus supplied, and the schoolmaster thus publicly intimated to the congregation, the next step Mr. Macfarlane was pleased to take, is to offer a bill of sus- pension to your Lordships of the proceedings of the pres- bytery and heritors, which, after some litigation, was past; and the cause having come before the Lord Barjarg Ordi­ nary, his Lordship, upon advisin g memorials, took the cause to report. Several months after the bill of suspension had been past, and during the dependence of it before your Lordships, Mr. Macfarlane was pleased to come before the court in an­ other shape. He brought an action of oppression, defa­ mation, assault, and battery, against Mr. Ferguson the mi- nister of the parish, the petitioner Mr. Graham of Leitch- ton, Donald Ferguson constable at Port, and Patrick Leitch beadle of the parish of Port: The capital articles of this charge were founded upon what past in the church of Port upon Sunday the 22d of January, and Sunday the 25th November 1764. A proof having been allowed and adduced, it appeared clearly in evidence, that the facts as charged in the pursu- er’s libel were false and calumnious to a very extraordinary degree; for with regard to the proceedings upon the 22d of January 1764, Mr. Macfarlane in his libel had set forth, that when he was making no disturbance, but quietly re­ tired to his own seat in the church, the minister, in order to defame his character, had taken out the minutes o f the kirk session, suspending him from his office, and had pub- lickly read them to the congregation, representing him as delirious and crack-brained: but when the evidence came to be reported, it appeared, that this article of the libel proceeded upon a manifest suppression of the truth; for in place of the minister defaming the pursuer, who was making no disturbance, it appeared, that what the mini- ster did, was absolutely necessary for the vindication of his his own character, and that of the eldership, whom the pursuer, in the public congregation, had been pleased to arraign without any reason at all, of falshood, lying, and hypocrisy, in the face of the public congregation. ' And with regard to the occurrence upon Sunday the 25th of November, altho’ the pursuer had been pleased to set forth that he was so maltreated, injured, and abused, that he was confined to his house for upwards of a month, by the violence he had met with; yet from the evidence when reported, it appeared, that he had met with no violence, that he had not been confined one hour, and that the ac­ cident upon his leg had been got in another way, which he had most falsely and injuriously been pleased to use as an inflammatory article of dittay against the minister and the other defenders.. Both this action and the suspension at the instance of Mr. Macfarlane, came to be advised at the same time by y o u r Lordships, and you, of this date, g a v e judgment up­ on the different processes. With regard to the action of damages, " t he Lords having advised the state of the process, testim onies of the witnesses adduced, writs produced, memorials hinc inde, and heard parties procurators on the cause, they affoilzie the defenders, and decern, but find no expences due.” And upon the suspension, the interlocutor is in the fol­ lowing words: “ Upon report of Lord Barjarg, and ha­ ving advised the mutual memorials, they sustain the reasons of suspension, and suspend the l etters s impliciter, and decern, and find no expences due.” As to the first of the interlocutors: Altho the parties interested in that action flattered themselves with the hopes that the pursuer, whose libel had been detected as false in its most capital points, would be obliged to repay the ex­ pences incurred in their defence; yet as your Lordships p were were of a different opinion, it is their duty, with all de­ ference and conviction, to acquiesce in this final judgment of your Lordships: But with regard to the last interlocu­ tor, as the petitioners feel in their own minds a strong appre- hension, that the continuance of Mr. Macfarlane as school- master in this parish may be attended with fatal consequen- ces to the education and instru ction of the children in this parish; they rest satisfied, no apology will be requisite for the earnest intreaty they are now to make for a review of this interlocutor. When this cause was formerly before your Lordships three different questions were agitated betwixt the parties- or on the part of the suspender, it was contended, that the presbytery have no power to inflict so high a punishment as a total deprivation. 2dly, That tho’ the heritors have a right to supply, in case of a vacancy, yet, after the of- fice is filled, they have no power to deprive for any mal- versation. 3dly, That there is no proof to support the sentence. As to the f irst of these points, it seems to admit of so li ttle doubt that the petitioners do not propose to trouble your Lordsh ips w ith any further argum ent upon this subject. With regard to the s econd, the petitioners hope hereafter to satisfy your Lordships, that it does not, with any pro- priety, enter into the present question; for the petitioners will admit that the power of deprivation does not proper- ly rest in them, however much, in prudence and propriety the presbytery may be called upon to ask and obtain their concurrence. The last point does immediately enter into this cause; and it is the purpose of the present application, to endea- vour to satisfy your Lordships, that there is evidence be- fore you, of ju st ground for removing Mr. M'acfarlane from his office, and if the petitioners shall be successful in establishi- establishing this material proposition, they will then speak to the other difficulty in the cause, whether the suspender has been removed in a legal and proper manner. In the first question, namely, Whether there was ju st ground for deprivation; it is not the intention of the pe­ titioners to enter into a minute discussion of every articu­ lar article of charge which was before the presbytery; but it is proposed to state such considerations, as, it is hoped, will be satisfactory, that the suspender ought not longer to remain schoolmaster in this parish. In the first place, it is submitted to your Lordships, from the evidence which is now before you, that Mr. Macfarlane never seems to have considered the business of schoolmaster as his own proper business or occupation, but rather as a bye business, which he thought himself at liberty to post- pone to any other more pleasant or lucrative business that might occur: Accordingly, in place of that regularity, at­ tendance, and exactness of hours, so requisite to be observ- ed in a country school, where the children are to be assem- bled together from the different corners of the parish, it appears, that he was in use to convene his school, some- times at ten, sometimes at eleven, sometimes at twelve, ju st as it suited his fancy or conveniency; see Andrew Wod, page 1. B. Walter Macfarlane, page 2. G. Henry Mill, page 3. I. Janet Blair, page 5. B. James Peterson, page 12. E. Robert Crawfurd, page 14. D. From all which de- positions it appears, not only that the hours of conveening were irregular and untimely, but likeways that his atten­ tion was so little bestowed upon his own proper business, that the inhabitants in the parish were obliged to take their children from his school, and were likewise at the necessa- ry expence of putting them to other schools. Upon this head the petitioners will be forgiven to state the words of one of the witnesses, as it conveys so natural and descriptive a picture of the state of a country school, under under the guidance of a negligent and inattentive master: Walter Macfarlane, page 2. I. being asked, “ If, when Mr. Macfarlane went out sometimes, he stayed so long that he, the deponent, was obliged to leave the school, as he could not get written because o f the confusion of the scholars, and go to Donald Brand's house? He answered, t hat he went out sometimes with Mr. Macfarlane's leave and sometimes without it; and when he went out some­ times Mr. Macfarlane was not in the school, and when he returned Mr. Macfarlane was sometimes in the school and sometimes not.” The plain meaning of this natural deposition, is, that Mr. Macfarlane paid very little attention to his school. and, as to be expected in such circumstances, his scholars paid as little attention to their business. But, indeed, when your Lordships do, in the second place, attend to another article in the proof, it would appear ve­ ry surprising if he was to pay much attention to his school, as he seems to have got a better trade by the hand, by keeping a sort of merchants shop, and supplying the coun­ try with different articles; in the prosecution of which busi- ness he is under the necesi t y of leaving his school, and go- ing to fairs and markets, and such like expeditions, very incompatible with a ju st and proper attention to his busi- ness as a schoolmaster; see the depositions of Harvie, page 1. E. John Blair, page 3. G. John Mac- farlane, page 4. F. Duncan Ferguson, page 4. I. William Blair, page 13. B. Robert Crawford, page 14. E. Janet Battieson, page 15. G. And, indeed, so much better, and more lucrative is this merchandising trade, practised by the suspender, than the small perquisites of a country school, that, i f the petition­ ers are not misinformed, the suspender has made a very considerable sum by this trade; and your Lordships will observe he stiles himself, in the proceedings before this court. court, Portioner of Ballinoughcater. Since, therefore, the suspender is possest of this trafficking and merchandizing genius, let him follow it fu rth, but it will be exceedingly hard if the whole children of the poor parishioners, in this remote parish, should be thereby deprived of that mean of instruction which the legislature has so wisely provided by the establishment of a schoolmaster in every parish. Thirdly The petitioners do humbly submit it to your Lordships, that negligence and inattention are not the sole objections to the suspender s qualifications as a schoolmast- er but he likeways seems to be possest of a severity of tem­ per which, of all others, is the least calculated for that office which the suspender now insists to retain. In the management of a publick school, there must, from the na­ ture of the thing, different tempers, genius, and disposi- tions of children come under the care and tuition of the schoolmaster; and, of all other qualifications, none seems so absolutely requisite as a proper degree of calmness and temper, to accommodate itself to the different genius and disposition of the children; but if, in place of this, when a child is so unfortunate as not to be equally quick with his neighbours, it is exceedingly hard if he is to be beat and abused like a brute, merely because that he is not so quick as his master could wish. T he petitioners will be pardoned to say, there is too much of this in the temper of the present suspender. Thus T homas Forrester, page 2. D. tells, "That about 20 years ago, he was at Mr. Macfarlane's school, he saw him chast i se the dolts, sometimes with his tause and sometimes with his fists, upon the h ead. And being ask ed if he saw Mr. Macfarlane beat or knock a daughter of Leitchton's upon the head? Answers, He does not doubt but he did, for she was dull of learning, and this chas- tisement he thought for their good.” E The The story of the usage given to Christian Wright stands in pages fifth, six th, and seventh of the proof, and your Lordships will judge of it upon the evidence. The report among the other scholars appears to have been, that he was so barbarous as to cut her ear with his penknife; but what­ ever be in this, that poor girl has certainly been very se- verely treated; for it appears from her mother’s deposition that there was a good deal of blood upon her neck and shoulders; and in whatever manner this was brought a-- bout it is certain, the usage she had met with from this schoolmaster threw such a terror and panic upon her mind that she would not return again to school, unless her mo- ther would go along with her, to secure her from further abuse. Another very remarkable instance of this schoolmaste rs severity, appears from the proof as exercised to one John Fisher; it appears, that not contented with beating him upon the head with his fists and tause; he likeways kicks and tramples him under his feet in a very cruel and bar- barous manner: see William Macfarlane, p. 7. H.—J ames Sands,p.9E These are some of the more remarkable instances of se- verity, which seems to have made a lasting impresio n on the remembrance of the bye-standers; and when your Lordships see evidence, that this suspender was possest o f such a vindictive temper of mind, as at times to carry him to so great excesses; your Lordships must presume, that many lesser instances of severity must have been exercised, altho' the particulars may not have come to light. Indeed William Macfarlane, p. 8. B. seems to say as much; he de- pones "That he has seen Mr. Macfarlane use several others of his scholars pretty cruelly, but not so badly as the a- b o ve Jo hn F ish e r." Indeed it is impossible to suppose o- therways from the character of the suspender, so strongly illustrated in that outragious and indecent behaviour in the public public congregation, and towards the minister and the el- dership or the parish above condescended upon, nothing else but a very peculiar violence of temper could lead a person, in the pursuer’s rank, situation, and circumstances, to commit outrages of that kind. One further consideration only the petitioners will beg leave to submit to your Lordships on this head: The exam- ples of severity condescended upon, are no doubt the children of poor indigent parents in a remote country parish; but still they partake of human nature, and to put their case in a fair and impartial light, let every Judge lay his hand up­ on his heart, and suppose the injured child to be his own, and, under that supposition, let the question be ask ’d, i f a schoolmaster, of such a vindictive temper of mind, ought longer to remain intrusted with the education of the inha­ bitants of a whole parish.4th ly, the presbytery, in pronouncing their judgment, had likeways under their consideration, the conduct of the suspender towards the minister and kirk session of Port, upon Sundays the 15th and 22d January 1764; from whence it ap­ peared, that he had publickly accused, without any reason whatever, the minister and whole eldership of the parish, of falshood and hypocrisy; and likeways his reasons of ap- peal from the kirk session, in which he breaks out into such scurrility and abuse against one particular person, as to sub- je c t himself in damages, on that account, before the Com- missary of Dumblane. Every thing of that kind could not fail, with the utmost propriety, to enter into the conside- ration of the presbytery in determining this point, Whe­ ther this man was, or was not, a proper person to remain schoolmaster of this parish. Surely nothing can be more necessary for supporting the decency and good order of a country parish, than that the inhabitants of the parish should entertain a ju st re- spect and regard for the minister and the eldership of the parish parish; but nothing can be more destruct ive of that respect and regard, than that a person should remain the teacher and instructor of the whole children of the parish, who had so little sense of decency, and set so very bad an example before their eyes, as to make an outragious attack upon the minister and eldership of the par ish, accusin g them in- discriminally of falshood and hypocrisy. Having said so much with regard to the character and qualifications of the suspender for the office for which he n o w maintains himself to be qualified; it is proper to take some notice of those circumstances of vindication or alleviation which have been pled in his behalf. Unt o It has been said, that the trial of him was of too inquisito rial a nature, and raked into his character for ma­ ny years past. ' But your Lordfhips will be pleased to observe that the very nature of the trial led them into an investigation of this kind. It was not one particular act or crime of which they were to take cognisance, but there were laid before them the complaints of this parish, letting furth remiss- ness, inattention, dissipation, severity, and such a ge­ neral impropriety of conduct on the part of the sus— pender, as rendered him totally unqualified to be an in- st r u ctor of youth; and therefore, a narrow or limited in- vestigation into the suspender's character and conduct, t would neither have been doing justice to him, nor ju stice: to those who complained. 2dly, It was said, that the presbytery had been probably more moved with the particular affront offered to thei r brother in the kirk upon the 22d of January, than from any consideration for the utility of the parish. Even altho’ nothing else had appeared against him but; this single article, the petitioners must be pardoned to think, that such a public breach of decency from the school- schoolmaster of a parish, against the minister and elder- ship of that parish, was such an abuse, as could scarcely have been longer tolerate, and the presbytery would have been justified to have taken it up in that light, but, in the present case, from the facts as above stated, the petitioners are under no necesi t y of taking up such narrow ground. If no steps had been taken by the parish, previous to- this insult against the minister and the elders, there might then have been some ground to argue, that this incident was the sole cause of the prosecution. But when your Lord- ships attend to this circumstance, that the insult upon the minister, did not happen till the 15th and 22d of Janu- ary, whereas the prosecution was begun in the month of November preceeding, and never once desisted from in any after meeting of presbytery; there can be no ground to suppose that the one was the origin of the other, or the cause of that alacrity with which the prosecution was car- ried on. Lastly, It was said, and much insi sted upon, that before proceeding to deprivation, some gentler methods, by re­ buke and admonition, should first have been taken. But by attending to a few particulars, the petitioners flatter themselves your Lordships will be satisfied, that this suspender was by no means a proper subject of admoniti­ on. In the first place, it will be remarked, that this is not the first time that this suspender’s conduct had been judi­ cially complained upon; for a complaint was offered a- gainst him before the sheriff of Perth as early as the 1752, and various witnesses examined in consequence thereof. From the depositions of those witnesses it appears, that the complaint was not without ju st foundation, altho’ it was dropt, from consideration of lenity and hopes of amend­ ment’: But so far was this from having its proper effect, that your Lordships, by connecting the depositions led in the present question, with the depositions led in the 1 752, E will will clearly see, that his conduct became more remiss, and his inattention to his school more remarkable than it was before. 2dly, So little is he of a submissive temper, to be wrought upon by admonition, that during the very dependence of the present complaint before the presbytery, the suspender is publishing satires and invectives in the parish, against some of those who, upon ju st grounds, were complaining of his conduct. And it will be further observed, that when David Haldane, one of his friends, spoke to him very pru­ dently upon this subject, he was pleased to hold his advice in derision: Thus David Haldne, page 1 1. G. depones, That he said to Mr. Macfarlane, i f Mr. Macfarlane was author of the Sarcasm, as reported, if he the deponent had been the author, he would have delayed the pub- lishing of it at that time, till this affair was over; to which Mr. Macfarlane answered, he did not care a snuff.” The petitioners do agree with the suspender in opinion, that this Sarcasm is a piece of the vilest and most nonsensi- cal trash that ever appeared in print: But still, altho’ it will not raise your Lordships idea of the author’s genius, yet, considering the circumstances when it was published, it affords very satisfactory evidence of the temper and spi- rit which inhabits the breast of this suspender. Lastly, upon this head, your Lordships will be pleased to recollect, that the outrageous attack made by the suspen­ der upon the minister and eldership of the parish, accusing them of falshood and hypocrisy, was during the very time that the complaints were going on against him; and can your Lordships believe that this suspender was a person of that stamp, to be gained by soft and lenient measures, who was of such a violent temper, that he could not refrain from abusing, without any ju st cause, the minister and el- dership dership of his own parish whose support and protection he at that time stood so much in need of? The petitioners have thus endeavoured to support the judgment of the presbytery, as to its intrinsic merits, upon the evidence which was before them, and which is now under the view of this court; and they have likewise taken notice of such considerations as have been suggested in behalf of the suspender. But there is one ge­ neral consideration upon this point, which seems to merit your Lordships very serious consideration: The law in this affair certainly meant to repose very great confidence in the different presbyteries: The act 1693, at the same time that it regulates the form of presbyterian church-govern­ ment, does expresly provide, “ That all schoolmasters, and teachers of youth in schools, are and shall be liable to the trial and judgment and censure of the presbytery of the bounds, for their sufficiency and qualifications, and deportment in their said office and ordains the privy- council, and all other judges, to give due asi stance for making the sentences and censures of the church-judicato­ ries effectual. The words of this law are very general and expressiv e, and the same spirit and motives which moved the legisla­ ture to give this civil jurisdiction to the presbytery, and ordained all judges to render their censures effectual, cer­ tainly would weigh with the legislature to repose a very su- preme confidence in the judgment and opinion of the pres­ bytery. T he jurisdiction was given them, because the le­ gislature considered the instruction and education of youth to be necessarily and intimately connected with real religi­ on and sound morals; and therefore, this jurisdiction was given to that judicature, which the legislature considered as the inspectors of the religion, and the guardian of the morals of the country. The The petitioners, do not mean to plead a jurisdiction to the presbytery, exclusive of the review of your Lordships. Where any thing appears at any time to be oppresiv e ly and wantonly done, the supremacy of your Lordships ju- risdiction will then interpose to give aid and relief. But surely if ever there was a case free from suspicions of that nature, it is the present, where presbytery, heritors, and parish, seem all to concur in their opinion of this suspen- der: No undue circumstance to biass or influence their judgment has been condescended upon; nor will your Lordships be inclined to presume it, contrary to that con­ fidence which the legislature meant to repose in the judg­ ment and opinion of the presbytery, independent of a n y other support. And here it will be observed, that in forming their judg­ ment and opinion upon a parochial visitation and enquiry, they would have much more opportunity to inquire into every circumstance of character and conduct, than your Lordships can possibly have; and surely there is nothing in the conduct of this suspender which can incline your Lordships to a presumption in his favour, contrary to the judgment and opinion of the presbytery, heritors, and pa- rish; for the only other evidence with regard to his cha­ racter, except the present process, is the other process al­ ready mentioned, against the minister and some other de­ fenders. This process will not give your Lordships a more favourable idea of him, when you compare the libel, con­ sisting of two capital articles, with the proof adduced up­ on those articles: T he relevancy of the one article arises from suppressing the one half of the truth; and the rele­ vancy of the other, is founded upon an averment of a downright falshood, known to be such by the pursuer himself. T his is the man who maintains himself to be a proper and qualified instructor of youth. We do not mean to say, say, that the conduct of the pursuer in the process now mentioned, can strictly enter into your Lordships judg­ ment in determining upon the merits of this process; but still the petitioners build a fair argument upon it, in this view that your Lordships, in reviewing the judgment of a judicature upon a point where the law meant to repose great confidence in that judicature, will be inclined to pre- sume, in favour of that judicature, in opposition to a man who stands, as a pursuer, upon the record of your own court, founding his process upon a manifest suppression of the truth in one capital article, and in direct averment 0f a falshood in another. So much with regard to the intrinsic merits of the judg­ ment pronounced by the presbytery and the heritors; and in the hopes your Lordships will now be of opinion, that that judgment is well founded, the petitioners must now beg leave to offer a very few observations upon the other difficulty suggested, namely, the manner in which the opi­ nion of the presbytery has been carried into execution, not by the presbytery themselves, but by the heritors. It has often been a complaint on the part of the heri­ tors, and the landed interest of a parish, that the church judicatures have used too cavalierly those powers intrusted them by the law; and this presbytery will be somewhat unfortunate, if their judgment shall be less valid, on ac­ count of their discretion, or attention to the heritors of the parish. At the same time, it does not appear so clear a point, that the presbytery are not founded in law, in carrying the the heritors along with them in pronouncing their judg­ ment. Upon looking into the act 1 696 anent settling schools, it would appear, that the legislature meant to re­ pose a kind of conjunct confidence in the presbytery and the heritors, for providing the parochial schoolmaster; and therefore, upon the whole complexion of the statutes, it G is is humbly submitted, that the presbytery did nothing ir­ regular in taking along with them the concurrence of the heritors before they pronounced their final judgment. But even altho’ your Lordships should be of opinion that the presbytrey ought not to take along with them the concurrence of their heritors, still it is humbly thought it is rather too critical a construction of the presbytery’s judgment, to suppose, that they had delegated their ju- r isdiction to the heritors. The presbytery, by their inter­ locutor, have expresly declared their opinion that Mr. Mac- Farlane is altogether unqualified to discharge any longer the office of schoohmaster in the parish of Port, or within the bounds of the presbytery, and they name a committee to require the heritors to deprive him of his office, because they judge him unqualified to hold it any longer. Having thus expresly declared their resolution, opinion and judgment, with regard to the continuance of Mr. Macfarlane as schoolmaster, their reference to the heritors can be considered in no other light, than that means should be speedily taken, by the removal of this schoolmaster, for the speedy supply of the parish with another. This ’er­ tainly was the intention of the presbytery, and it is hoped, that, upon a fair and sound construction of their judgment Mr. Macfarlane still stands deprived of the office of school- master in the parish of Port. But even altho’ the petitioners shall not be successful i n establishing this proposition to your Lordships, still they do humbly submit, that the interlocutor goes too far; for in so tar as the presbytery’s sentence goes, it is certainly agreeable to law, and to the nature of their jurisdictions. If it is erroneous in any thing, it is on account of its de­ ficiency in not pronouncing a solemn sentence of depri­ vation, which they ought to have done, in place of dele­ gating their jurisdiction to the heritors; but in so far as the judgment of the presbytery contains their own opini- on on and judgment, as to Mr. Macfarlane' s being unqualified is regular; and therefore, if the petitioners have been successful, in satisfying your Lordships that the opinion of the presbytery is intrinsically right; i t is humbly sub- mitted, that the proper course of procedure is only to sus- tain the reasons of suspension in so far as concerns the judg­ ment of the heritors; but as the judgment of the presby- tery is not erroneous so far as it goes, but only on account of its deficiency, in not expresly giving judgment, there­ fore the cause falls to be remitted to the presbytery, to pro­ ceed therein as they shall see cause. M ay it therefore ple a se your Lordshipto alter your in­ terlocutor of the 9th of December instant; to find the letters orderly proceeded, and to f ind, that the susp e n d e r Mr. Macfarlane has been legally and pro­ perly deprived of his office ofSchlmaster; or at least to remit to the presbytery to proceed as they s hall see cause. According to j ustice, &c. H EN RY DUNDAS. Ji II » A1I-T > (J ' 4 v 1. enr+ *h s i A M. w p o o p o cH. H H M f? A.l mHsy.Msi i.u b <■ A // j S ^ L u J f T7$"> * 5 ~./G»/ « 0«/£—" '/A ’'*- */> »*- f A / V A'*’ *- /, /-- A*^ ^ 7« ' '— j l~t U A* l~y LjV j a •«^ '■' 7 ■Z; <£_ 4./ ^ //--X" A A ^ *^ 1// c i /r ^- f X *-y x ✓ /, //.A p Hp- H M ’..-A w A- A 4 — ^ t- w lv A 1-- ' V A-A 7 A/; <5-'—. * v u0 *c*~+* * **- A~7*.. (r^-;j K » 'TJ Kit, Xflto V "I Ik A- 'v Li