Answers 1767

A N S W E R S 4 F O R Mr James M'Farlane Schoolmaster of Port; T O The PETITION for James Graham of Leitchon, Walter Graham of Mondowie, and others, Heri­ tors in the Parish of Port. T H E respondent was admitted schoolmaster of theparish of Port so long ago as the 1740, and he has the satisfaction to find that his conduct, as such, was generally acceptable to the heritors and others interested therein; and he believes it is still accept­ able to many of them, notwithstanding of the pains and labour that has been used to blast his reputation, and to render his endeavours in his profesio n unsuccessful. Unfortunately for him, several years ago, he happened to fall out with one Mr Graham of Leitchton, a petty he­ ritor in this parish, and an elder, who hath ever since, with unwearied application, been exerting himself to ruin his character, and to deprive him of his office of school­ master, on which his livelihood depends. The first step taken by Leitchton, with this view, was an application to the sheriff of Perthshire, in name of the whole heritors of the parish of Port; though it is subscri- A bed bed by no more than Leitchton himself, and two others. In this petition, they complain of the schoolmaster's non- attendance on his school, and of his severity to the chil­ dren, which is set forth to be such, that he beat them so as to impair their health and constitutions ever after. Of these fact s the petitioners were allowed a proof. After lead­ ing one, however, they were so little satisfied with what they had proved, that no farther steps were taken in the process. In the course of this proof, it appears from the oath of John M‘Farlane, page 2 1. C, that Mr Graham o f Leitchton had set up a school at his own house. Whether this happened in emulation f the schoolmaster, or from what other cause, does not appear, but it certainly was a most irregular step. Though Leitchton found no grounds to proceed in this process before the sheriff, he did not desist from perfec­ ting the respondent. But he took another train for follow­ ing out his persecution. It was in proof, in a process ad- vised by your Lordships at the same time with this suspen- sion, viz. the action of oppression and damages, at the in- stance o f the respondent, against Leitchton and others, that he was in the practice of beating the respondent, and that his malice against him was apparent to the whole country. But these private beatings were not sufficient to satiate his malice. With great assiduity he went through the parish, mendicating subscriptions from those he denominated heads of families, to a complaint to be exhibited to the presby- tery. He did accordingly procure the subscriptions of a num­ ber of persons, who were denominated heads of families, to his complaint. A great number of those that did subscribe were seceders from the lawful estab lishment of the Church of Scotland, who living in a remote part of the parish, and who having a schoolmaster of their own own settled on a mortification, would have laid hold of any opportunity, not only of turning out the respondent, but of creating, by any means, a vacancy in the parochial school. Mr Graham’s applications to presbytery, however, met not at first with that success which he expected from them. Two several applications of this kind were rejected, last, the respondent had the misfortune to have a difference with the minister about repairing a boat, by means of which they brought home their peats from the other side of a loch. This difference happening to in- crease, the minister took part with Mr Graham of Leitchton; and, from that time forward, his operations were attended with better success than formerly. A new complaint was presented to the presbytery; and upon this complaint it was, the sentence, now under review of your Lordships by suspension, was pronounced. As the sentence refers to the libel, and as both must be examined by the proof, it seems not improper to give your Lord- ships the libel at length, which hath not as yet appeared in print. This libel sets forth, “ That whereas nothing is of greater concern to the public in general, and to indi­ viduals in particular, than the education of youth, and that the masters, and others intrusted with their educa­ tion, should be men of the most unblemished characters, learning, and sobriety, and not of a passionate and vin­ dictive nature, so as cruelly to abuse the children under their care and charge, and ought to give the closest ap­ plication to the important vocation in which they are intrusted by the public, and should be men duly quali­ fied in every respect, according to the law of God, the laws of the land, and the standing acts of assemblies of this church. For this purpose, the legislature has thought proper to enact several salutary laws, ordaining school- masters masters, and other teachers, to be taken under trial; and such of them as should be found to be erroneous, scandalous, negligent, insufficient, or dissaffected, should be purged out and removed: And more particularly, by act of parliament, 12th June THE r e ‘ It is declared, that all schoolmasters and teachers of youth in schools, are, and should be liable to the trial, judgment, and censure of the presbyteries of the bounds for their sufficiency, qua­ lifications, and deportment in the said office.’ “ And true it is, and of verity, that Mr James M'Farlane, present schoolmaster of the parish of Port of Monteith, is a per- son quite unqualified for the said office, in as much as he is guilty of utterly neglecting, and wilfully abstaining from discharging his duty therein, by following merchan- dising, and other employments, and is guilty of cruelly- beating, wounding, and maiming of several of his scho- lars and children who were under his care, and is also author of a scandalous pamphlet, intitled A Sarcasm, con­ taining many gross lies upon several people of credit in the parish, and containing such a gross and absurd account of ghosts and demons, as insufficient to render the author thereof incapable of exercising the office o f schoolmaster in the parish of Port, or any where else, as will appear from the printed pamphlet itself, herewith produced: At least, the said Mr James M'Farlane is guilty, or art and part, in writing, publishing, or causing the same to be written, published, and vended, and is also guilty of taking undue methods for obtaining subscriptions with respect to his behaviour through the parish, and other- ways behaving in such a manner as is unbecoming a teacher or instru ctor of youth; in so far as the said Mr James M'Farlane is incapable of teaching church-mu- sic, or exercising the same himself, which is a branch of learning both necessary to be taught in every parish, and decent in the worship of God; and so incapable is the “ said said Mr James M‘Farlane to instru ct his scholars in other branches of literature, that several of them were obliged to be taken away from his school, and put to other schools; yea, though the said Mr James M‘Farlane has been school- master in Port above twenty years past, yet, to this day, he never did complete a scholar, so as to fit him for the college, or other public business: And such as wanted to have their children so taught, were obliged to take them from his, and board them at other schools, as above, which cost many a gentleman in the parish, and others also, no small charges; for his main attention has, more than these twelve years past, been visibly taken up and employed in pursuing and carrying on a lucrative trade of merchandising, trafficking, meal-couping, and even in vending malt, which must be an illegal and fraudulent manner towards his Majest y ’s revenue, as he is no entered dealer, more than in looking after his school, or teaching his scholars; which last appears not at all to be the object of his care and concern, but re­ garded by him merely as a by-work, to the unspeak- able loss of the parish, and scandal of his profession: And although he has been several times, according to the gospel-rule, admonished, and advised to give up with his said merchandising, and attend to his school as he ought to do, yet he is so far from listening to, or complying with the said friendly advice, that he is st ill, on the contrary, going on to extend his trade more and more, advancing and increasing in merchandising, while his neglected school and scholars are still in the same proportion diminishing and decreasing, as appears by the following instances: Primo, His leaving his school whole days together, to pursue his said merchandising; yea, and even sometimes two days after other, without leaving any substitute, or one whatsoever, to take care of his school, or teach in his absence. Witness his B leaving leaving his school, and going to Stirling in pursuing his merchandising, particularly to vend his butter, and buy his lint-seed, and other merchant-goods, a little before the day of our late national thanksgiving, about the first of April last, leaving his school-door locked behind him, without so much as an open door, or ac- cess to any scholar, far less one to teach them. Again, Secundo, Upon the Monday before the last May fair of G artmore, he, the said Mr M'Farlane, went to Stir­ ling in pursuit of his said merchandising, leaving his school-door locked behind him, in like manner as above. And, tertio. Upon the very next day thereafter he went to the said fair of Gartmore to make his bargains, and vend his lint-feed, where he took four pounds Sterling for ten pecks of lint-seed, which being more than any in the country took, was reckoned no less than extortion; leaving his school-door the said day also in like manner locked behind him, without any one whatever to teach for him, or take care of his school in his absence, which was three whole days in less than six weeks time. And, quarto, When he does attend his school, it is com­ monly ten and sometimes eleven of the clock in summer, and eleven or twelve of the clock in winter before he conveens them. But what is more, quint0, Even then, on school-days, when his traffic does not call him at a distance from home, it is well known to be his (the said Mr M‘Farlane’s) ordinary custom, to leave his school, perhaps several times through the day, and go away with his customers to make his bargains, and serve them with iron, butter, cheese, lint-seed, sugar, honey, candle, &c. according as they demand, and his shop affords, without returning to his school sometimes for near an hour, more or less as his trade permits, leaving his scholars to idle away their time in play and diversion, or rather fighting and maiming one another, as as is commonly the case when scholars are left to them- selves. As also, s exto, The said Mr James M'Farlane has of late absolutely refused to take some scholars to his school, who were offered to him, without assigning any ju st cause therefor; others he condescends to ac­ cept of upon paying him half a crown in the quarter, instead of a merk Scots which is the due; for which behaviour no other reason can be assigned, than that he either wants to keep the children in ignorance, draw his salary and follow his merchandising, or mali- ciously to put some parents to the expence of boarding their children at other schools, or oblige them to come to his extravagant demands: And that although it is well known to be a parish-schoolmaster’s undoubt­ ed duty to keep an open school to every person within the parish, and every inhabitant has a ju st right to have his child received into the said school, upon paying the ordinary school-wages; but, to do the contrary, he au­ thoritatively assumes a power at his own hand. And, s eptimo, When the said Mr M'Farlane corrects his scho­ lars, he, being of a vindictive and cruel disposition, beats, wounds, and maims such of his scholars against 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 of our Lord seventeen hundred and fifty-two or seventeen hundred and fifty-three, he did, with his pen-knife, cut, wound, or thrust thorough the ear of Christian Wright, daughter of Murdoch Wright, now in Gart- mullian, who was then his scholar, to the ef f usion of her blood, and so unmercifully beats and bruises others about head and ears, that deafness, for s everal years thereafter, has followed his chast i sement; and this bar­ barity he uses, even upon the young and tender of his scholars. The consequence of which usage now is, that our our children are frighted at him; so that neither by threats or promises can we force them to his school. And, octavo. The said Mr M 'Farlane appears to be the author of the above-mentioned pamphlet, or sarcasm, which contains so many gross calumnies and falsehoods against people of credit and character, particularly Da­ vid and Robert Thomsons in Inshie, whom he plainly means in his pamphlet, under the title of Davie and Rob. This is the more evident, as will appear from a missive of his, addressed to the said David and Robert Thomsons, of the date the ninth September last; and which is hinted at in the said pamphlet or sarcasm, which further contains a great many minced oaths, lies, defamations, and absurd notions of demons, angels, or ghosts, of such a nature as to render the author thereof unfit for being a teacher of youth; at least, the said Mr M 'Farlane was art and part in writing, printing, pu- blishing, and vending the same, or causin g the same to be done. And, nono, The said Mr M'Farl ane has of late gone about the parish inveigling and imposing upon se- veral simple people, in enticing them to sign a blank paper, with room to him to fill up above what he should think proper, which is of itself highly criminal; and, in general, his deportment is such as is unbecoming a teacher or instructor o f youth. By all which, the said Mr James M'Farlane is not only unqualified for the of­ fice of a teacher, but is also guilty of such crimes, ne­ glect of duty, and cruel treatment of the children un­ der his care, as is sufficient and enough to render him unfit for being a teacher of youth, or schoolmaster, in the said parish of Port, or any where else. And there­ fore, upon the facts above set forth, or part o f them, being either acknowledged or proven, the said presby- tery, by all law, equity, and ju stice, ought and should find, decern, and give judgment against the said Mr “ James James M'Farlane, agreeable to and in terms of the act of parliament before recited: And may it further please the said reverend presbytery, upon considering the a- bove libel and complaint, to grant warrant to the pres- bytery-officer, or other proper officer, to summon the said Mr James M'Farlane to answer to the foregoing li­ bel and complaint; as also to grant warrant to cite wit- nesses for proving the same; and also, that the presby­ tery would be pleased to appoint their next meeting of presbytery at the Port of Monteith for the conveniency of parties, and that in as short a time as the reverend presbytery shall think proper.” This libel being read to the respondent, the minutes bear, “ That he was asked by the moderator, What he had to say in his defence against the said libel? to which he answered, That he owned a little of merchandising; and then he read and lodged a paper in his vindication; and also lodged a paper, signed by a great number of people, (referred to in the last-mentioned paper), which he said was in his favour, and tended to his exculpa­ tion.------The libel was read article by article; and up- the f irst article the said Mr M'Farlane being interrogate, answered, That he was only one day absent from school through the whole of that year referred to; and that after advertisin g there was to be no meeting of school that day. On the second article, he acknowledges that he was two days absent; but alledges it was his custom at that time of the year, as he fays it was also in some o- ther schools, to give a vacation, on account of the chil­ dren being mostly absent asi sting at the bear-seed. And, 3tio, as to the lint-seed, he owns the fact that he sold it, but not himself, but one for him, at the rate of the market. On the 4th article, he says he con­ venes his school at ten of the clock, which is as soon as the scholars come up. On the 5th article, he acknow­ ledges. ledges that he has sometimes left his school a few mi­ nutes to sell some necessaries, a stone of cheese or iron, out of necesi t y, and at the importunity of the people. On the 6th article, he denies that ever he refused to take scholars to his school, or demanded half a crown of quarterage, but once that he said in a joke to a man, 'Will you give me that half-crown you say that I am in­ sisting for? ' On the 7th article, he denies the in- stance of cruelty to his scholars mentioned therein, and the whole article as laid. On the 8th article, anent his being the author of the pamphlet intitled Sarcasm, being interrogated, he answered, He neither confesses nor denies it. As to the 9th article, he denies the same, and asserted, that he inveigled nobody to subscribe the paper in his favour; and that the same was wrote out before one single person signed the same. A long proof was afterwards taken, which has been printed, and is in the hands of your Lordships. After the above libel had been given in to the presby- tery, a complaint was made to them by Mr Ferguson mi- nister of Port, concerning the behaviour of the respondent towards the minister and kirk-session of Port. After the proof had been taken, this complaint was resumed, which. was, “ That upon Sabbath the 15th January last, (i.e. 1764), after divine service, when the congregation was dismissed, Mr Ferguson inquired of the elders then pre- sent, If there was any business? they answered, There was none. And Mr Ferguson having moved towards the east church-door, with a design to go home, he was called back by the said Mr M'Farlane, the defender, who told him, that as a member of the session he had something to lay before them. Whereupon Mr Fergu­ son inquired, what he had to say? to which Mr M'Far­ lane, the defender, answered, You must call a week-day’s session, Mr Ferguson then inquired, for what purpose? to to which M 'Farlane replied, I want a week-day’s session, in order to make it appear, that all the elders of this pa- rish (meaning the parish of Port), are liars, and that at the last presbytery they made you a liar too; and at the same time he, the said Mr M'Farlane, charged some of the elders with hypocrisy and double dealing; as al­ so they represented to the said presbytery, that the said Mr M'Farlane had, upon a Sabbath, being the 2d o f January last, read in the church publicly, after divine service, a scurrilous paper; a copy of which he produ­ ced formerly, and which is now in the clerk’s hands, and which the said Mr M'Farlane says is a ju st copy of what he read time foresaid to the said congregation, and which he did read before the minister left the pulpit. In order to support which charge, and to prove the same, the said Mr Ferguson produces a genuine extract of the minutes of the said kirk-session, signed by James Ferguson, session-clerk pro tempore, as also holograph Reasons of appeal from the judgment of the said kirk- session suspending him from his office; in which Reasons he is so far from making any apology for his conduct, that he highly aggravates the charge against himself, and acquaints them, that he is still of the same opinion as to the ju stness of his reflections on the said session; as also a paper, intitled A Representation, which, with the copy o f the paper read in the church as afore- said, are now produced; all which, they humbly ap­ prehend, prove the charge against the said Mr M 'Farlane, for maliciously scandalizing the minister and elders of the said parish, and otherways behaving indecently in the church, in the evening of the Lord’s day; especially as Mr M'Farlane has judicially owned, that he read the said paper before congregation, as aforesaid: And if the reverend pres­ bytery does not think that this is sufficient proof, they are willing further to support the charge by witnesses at thebar. bar. To all which it was answered, that what gave occasion to the present charge was, that two or three injurious libels having been exhibited to the presbytery against the defender by some of the parishioners, some of which were rejected, at a diet of presbytery preceding the 15th January last, upon considering one of these li­ bels, Mr Ferguson, minister at Port, was asked by the presbytery, on that occasion, I f he or his session had any concern in these complaints? to which he answered, They had not: That notwithstanding of this, in training a new complaint soon thereafter, two of the elders of the said session signed the same in the ca­ pacity of elders, without any authority or commission from the session; which libel, it is craved, may be pro­ duced. In these circumstances, Mr M‘Farlane thought himself very ill-used by these two subscribing elders; and in order to obtain redress, he appeared at the session on the said 15th January, when he craved a week-day’s session for that purpose; and acknowledges he uttered the expressions set forth in a representation given in by him to this presbytery, for the reasons mentioned in said representation, and in another produced this day, con­ necting therewith. The defender did not give the lie to Mr Ferguson, or any member of the session: He never had any intention to arraign them; he only meant to obtain redress of the injuries done him by William Blair and James Ferguson, subscribers of the said petition and libel, whose behaviour towards him he could not help then calling hypocritical, as they had ever till then pro- fessed the greatest friendship for him, came to his house again and again, and pumped out of him, under these pretentions, the way in which he was to maintain his de- fence against the said libels, and carried the information, as he has now good reason to believe, to his accusers! In that situation, he thought himself very ill-used: And he he is advised, and submits it to the reverend presbytery, that their signing the said libel was illegal. As to the proceedings of the kirk-session upon what happened, he cannot help observing to the presbytery, that they are very unprecedented. This was certainly no work of ne- cessity or mercy; and he submits it to the presbytery, that it might have been superseded to a week day; and when it came to be then considered, he submits it, that he might at least have been allowed, before pronouncing any sentence against him, the same indulgences which the greatest criminals in this country meet with, which is, being allowed to be heard in his own defence. On this head, it will no doubt occur to the presbytery, that this doctrine is consistent with the scriptures in the Old and New Testament, as appears from the Acts of the a- postles, where Paul was allowed to speak before the great King Agrippa. But in place of this, when this their own cause came to be tried before them, he was kept out, and the minutes and judgment now sounded on, as he is informed, was not what past on the 22d January, but what was resolved upon, and put into writing by Mr Ferguson the moderator during the preceding week, and only read at the sederunt. As he is informed, no proof was then brought or taken; and therefore he contends, on that account, and because it appears from these very minutes themselves that no proof was judicially taken, that these minutes can have no weight with the presby­ tery in judging in this cause. As to the reading of the paper in the kirk, Mr M'Farlane is sorry i f it has given offence to the presbytery or others. What induced him to do it was, that he believed several of the parishioners were skulking in the kirk, and he imagined it was ne- cessary for him to say something in vindication of his character; and he knows of no law, either civil or ec- clesiastic, that makes it criminal for one to speak in a church, church, after the blesin g is pronounced, and the con­ gregation is dismissed. For these reasons, the defender humbly hopes the reverend presbytery will see cause to dismiss this complaint, and appoint the kirk-sesio n of Port to repone him to his office of precentor.” After this, the proof having swelled to a considerable length, the presbytery thought proper to remit it to a committee, to prepare a report concerning it. The report and sentence appear in the extract, and being copied at length in the petition, shall not here be repeated. The petitioners have waved arguing the general point, How far the heritors had any power to pronounce this sen­ tence of suspension. Though that point seemed to enter in­ to the argument among your Lordships, when the sentence was pronounced, and to have considerable weight laid up­ on it, they have rather chosen to consider, how far the sentence of the presbytery is supported by the proof, and to rest their cause on this, that the articles of charge brought against the respondent in the libel are supported by the proof. The respondent, without departing from the general point, will, in the first place, consider both the relevancy of the several articles of the libel, and also how j * far they are proven. The first article of the libel charges him with “ his lea­ ving the school whole days together, to pursue his merchandisin g; yea, and even sometimes two days af­ ter other, without leaving any substitute, or one-what- soever, to take care of his school, or teach in his ab- sence. Witness his leaving his school and going to Stir­ ling in pursuing his merchandising, particularly to vend his butter, and buy his lintseed, and other goods, a lit­ tle before the day of our late national thanksgiving, a- bout the 1st of April last, leaving his school-doors lock­ ed behind him, without so much as an open door, or access to any scholar, fa r less one to teach them.” This This article contains a pretty heavy charge, and had it been proved in the terms in which it is laid, there might have been some grounds of complaint against the respon- dent; but in fact the proof hath been silent about it, and consequently both the report and sentence of the presbyte­ ry have omitted this article altogether; it must therefore be considered in the same point of view, as if no such ar ticle had been in the libel. The s e c ond and third articles of the libel are taken toge­ ther in the report, and they are said to be judicially ac­ knowledged; and the sentence of the presbytery “ finds the said report to be ju st and verified, in so far as with respect to the second and third articles of the libel, the said Mr M'Farlane acknowledges his going to markets on divers occasions, to follow his merchandise, shutting up his school when he went away; and also that he dis- posed of his goods at these markets, at most extrava­ gant and unreasonable prices.” The only evidence then founded on by the presbytery, is the judicial acknowledg­ ment of the respondent, with respect to these two articles; yet if the terms of that judicial declaration are compared with the two articles of the libel, it will be found that it does not at all support the finding of the presbytery, but, on the contrary, is clearly exculpatory for the respondent, and though some part of the fact is acknowledged, yet e- very blameworthy quality is taken off. The two articles of the libel charge him with going away from his school in pursuit of his merchandising, leaving his door locked, without any person to teach in his place, and thereby neglecting his school three days in the space of six weeks. It charges him also with extortion in felling lint-seed, at a rate much above the market-price. In his judicial declaration he acknowledges, that he was absent for two days only from his school, and that during the time when there was a vacation on account of the bear— bear-seed. As to the lint-seed, he acknowledges that he employed another to fell it for him, and that it was sold at the market-price. Now, surely there is nothing criminal in what is here acknowledged. It is a fact that cannot be denied, that over the whole kingdom it is customary for parochial schools to break up during the seed-time and harvest, and, according to the situation of the parish, at other times when the labour of the children can be of use. Thus in countries where peats are used, they break up during the season of digging and leading the peats; and in some countries where it is usual to employ the children in herding during the time the corns are on the ground, on account of the want of inclosures, there is no school held during the whole summer-season. The reason of this is obvious: Parochial schools are intended for the inst ruction o f the children of tenants, cottars, and others, whose circumstances are such as to make it necessary to them to employ their children in every species of labour, where the labour of children may turn to profit: Hence, i f at those seasons of the year when the children are generally employed in labour, i f a parochial school was to meet, it would meet for no purpose, as the children would not at­ tend. Accordingly, as the circumstances and situation of the parish require, parochial schools have their stated times of vacation, or breaking up. In this parish of Port, it had been customary to break up for a week during the season of sowing the bear: During this season, while the school was broke up, there certainly was nothing amiss in the schoolmaster going from home two days about his pri­ vate affairs. And with respect to his selling a little lint- seed, there was surely nothing criminal in that, as by his judicial declaration, which is all the evidence that is brought against him, it appears that it was sold at the or­ dinary market-price. The The fourth article charges, “ That when he does attend his school, it is commonly ten and sometimes eleven o’clock in summer, and eleven or twelve o’clock in win­ ter, before he conveens them.” The presbytery " find, with respect to article 4th, re­ lating to the time of conveening his school, that the same is proven by two witnesses, that he for ordinary conveened his school at ten, and sometimes eleven in summer, and at eleven, and sometimes twelve o’clock in winter.” The two witnesses meant here, must certainly be An­ drew Wood and Robert Crawfurd. The first of these de­ pones, “ That he was at Mr M'Farlane’s school three years ago, betwixt Martinmas and Candlemas, and that, to the best of his remembrance, the school conveened some­ times at ten, sometimes at eleven, and sometimes at twelve o’clock perhaps” The other swears, " That previous to the commencement of this process, the said school met some­ times at eleven, sometimes at ten o clock, as there was a greater or lesser number of scholars came up.” It is a thing that will admit of no dispute, that paro­ chial schools in the country must unavoidably be very ir­ regular in their hours of meeting. Children have general­ ly to come from a great distance; and, as they are com­ monly divided into classes, though a part of them should come early enough, some of them must be waited for; be- sides the accident of a bad morning will often make the attendance o f the whole children happen later than might be expected in good weather. Under these circumstances, the respondent cannot be answerable for his school meet­ ing at a certain hour. Providing his school is actually con­ veened and is taught during the proper time, it is imma­ terial whether it meets at ten, eleven, or at twelve. From the proof it does not appear that the respondent was any ways in fault in not calling his scholars together in due time.Alexander Alexander Harvey depones, "That sometimes Mr. M'Far- lane quarrelled him for being longsome in coming."Walter M'Farlane depones, "That he was at the said MrM'Farlane's school several quarters, at different times: That the said school conveened about ten o'clock." Wood, the witness first above mentioned, depones with a perhaps,which indicates an uncertainty about the facts he wasswearing to: The whole of this proof therefore that hasbeen brought on this head amounts to no more than this,that this school is liable to the same accidents as othercountry-schools. Its regular hour of meeting is ten o'clock, but sometimes by the accident of the boys notcoming up in proper time, it is later before the school- master begins to teach. The fifth article sets forth, That on school-days, whenit is well known to be his (the said Mr. M'Farlane's) or-dinary custom, to leave his school perhaps several timesthrough the day, and go away with his customers to make his bargains, and serve them with iron, butter,cheese, &c. according as they demand and his shopaffords, without returning to his school sometimes fornear an hour, more or less, as his trade permits, leavinghis scholars to idle away their time in play and diver-sion, or rather fighting and maiming one another, asis commonly the case when scholars are left to them-selves." With regard to this, the presbytery find, "ar-ticle 5, judicially acknowledged, proved by six witnes-ses, that it is his ordinary practice to sell his goods in school hours, he leaving his school when called upon byhis customers for that purpose, and thus ordinarily ne- glects his scholars." But when the judicial declaration which he made to the presbytery, and the proof, is looked into, it will be found that t h a t t h e s e a r e v e r y f a r f r o m a u t h o r i s i n g t h e j u d g m e n t h e r e p r o n o u n c e d b y t h e p r e s b y t e r y. The judicalrtonwsp5fg:"O-kl mtisecar,of nuydhiptl."Wg,rbvfsixwet aAlHy,.1E;JoB3GhnM'Frp4Duc Ii-lm,.;ts5edf arkilbo,ytvngcu.Thpslfwie;-t darokflyics un,hgt.Oerva blid,owfmtscy nl-urhipev,ta gs.T"WilBrdobfM'F;t en-ciy.Ak,wha?srl tmougi.dJ'le p,"TbrnfFaisc-htyl. Ak',IoivfuretPd swM.'alnghim him what he wanted in the school-hours? he answered, That he lives five miles from Port, but does not remem­ ber that he gave this as a reason for giving him the iron: That he does not know any thing about minutes, but that he was not long out of the school with him.” ’ The depositions of other witnesses do not tend, any more than these, to fix upon him a constant and habitual traffic in school-hours, to the prejudice of his school. And this being the case, it is humbly apprehended, that it will not appear to your Lordships a very blameworthy thing, that the respondent kept a few articles of merchan- dise in his house, in order to supply the necessary exigen­ cies of the country, in a corner, where the country ap­ pears to have been so ill supplied, that, it appears from the proof, people sometimes came from the distance of four or five miles to buy a bit of iron from him, without which it was impossible they should carry on the ordinary course of country-labour. The petitioners insinuate, that the respondent hath grown rich by this course of traffic; and as an instance of his acquired wealth, they quote his designation of portioner of Ballinoughcater. But alas, he finds to his cost, the fact stands far otherwise. His feu in Ballinoughcater is a trifling property, of a few acres he inherited from his fa­ ther; and the expence he has been put to, by the attacks of the petitioners on his reputation and means of liveli­ hood, has not only swept away all the profits of his mer- chandise, which, at the belt, was hardly worthy of a name, but also any little pittance he had layed out of the profits of his profession as a schoolmaster; and will proba— bly oblige him to part with that little inheritance which he had independent of either. As the sentence of the presbytery is entirely mute with respect to the sixth article of the libel, it is unnecessary to lay any thing on that head. The 7th article of the libel sets forth, that " when the said Mr Macfarlane corrects his scholars, he, being of a vindictive cruel disposition, beats, wounds, and maims such of his scholars against whom he takes up any pre­ judice, whether he takes up the same on their own ac­ count, 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 thro’ the ear of Chri- stian Wright, daughter of Murdoch Wright now in Gartmullion, who was then his scholar, to the effusion of her blood, and so unmercifully beats and bruises o- thers 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 tender of his scholars; the consequence of which usage is, that our chil­ dren are frighted at him, so that neither by threats nor promises can we force them to his school.” With respect to this article, “ the presbytery find ar­ ticle 7th proven, he having barbarously used his scho­ lars, in beating one to the effusion of her blood, and cruelly maiming her ear; and another, by beating him with his fists about head and ears, and trampling him under his feet.” When the proof with respect to this article is looked into, it conveys to us a strong idea, both of the malice of the prosecutors in presenting this libel, and of the forward- ness of the presbytery to gratify that malice, by stretching the proof beyond what it wi ll bear, in order to bring in the respondent. In order to found the shadow of a charge of severitv a- gainst the refpondent, they have been obliged to search in­ to his conduct a great many years back; and, after all, they have been able to collect but two instances, the one at the distance of 22 years ago, the other at the distance of 12 years. The first of these instances is his treatment of one John Fisher; concerning which, it must appear that the boy was not much hurt, from his own behaviour recently af— ter. For Marion Mill depones, “ That she was servant to John Fisher at Mill o f Rousky about twenty years ago: That she was sent by her master to bring home his son John Fisher from the school o f Port, the day after Tho­ mas Wingate' s marriage: t h at she went accordingly, and desired the boy to come home, which he refused, g iving this answer, that his master would be angry at- him. Depones further, That she took the boy out of the school to the end of the kirk, and said to him, Jonie, they say you was fore paid yesterday, and all bled; to which he answered, I am not, an hair the worse of i t; and also he said, Do you see any blood? Depones fur­ ther, T hat upon her (the deponent’s) return home, she told the boy’s mother what he said to her as above, upon which, the mother went herself for him, and brought him home; and does not remember if she heard the boy make any complaint after he came home.” It is very clear, from the boys unwillingness to leave the school, that not much harm had been done to him. In short, though he may have been severely corrected, yet it is very clear from the deposition of this witness, that he was not immoderately or improperly corrected, notwithstanding the ideas his school-fellows might have entertained of this castigation at the time. At the same time, even from their depositions, there is nothing appears sufficient to found a charge of cruelty against the respondent. W ith respect to the other instance of cruelty, which they pretend to produce in Christian Wright, the best account of this matter is in her own deposition. For “ she being interrogate, Whether or not the said Mr M'Farlane when she was at his school, cut or wounded her lug with a pen-knife." Answered, she cannot say it; but that when he paid her, her lug bled, of which she has the mark st ill; and that he often threatened to cut her lug with the pen­ knife, but cannot say he ever did it.” This plain and simple account of the matter from the girl herself must de- stroy all those exaggerated accounts, which seem to have a- risen from additions made to the story in its passing from hand to hand. The plain matter of fact seems to have been, the g irl's car, from a bad habit of body, has been tender and easily blooded, a thing frequent enough among children in the country; and a little correction from a schoolmaster hath actually made it bleed. How impro­ per a foundation is this for a charge of cruelty against the schoolmaster. When the nature of these two instances are taken un­ der consideration, and when at the same time it is obser- ved, that these are all the petitioners have to say against the schoolmaster on account of his severity, notwithstanding their raking minutely into his conduct during the twenty- four years that he had held that office, it is humbly ap­ prehended, that they must serve to convince your Lord- ships, that the respondent’s temper and disposition are dia­ metrically opposite to that of a severe or cruel person. Schoolmasters have often very rugged and intractable tempers to deal with, among the children that are under care; and, in their treatment of these, it often happens, that they are necessarily obliged to exercise extraordinary acts of severity; and s ometimes the provocation they re­ ceive is such, that unless they are possessed of the very mildest disposition, they cannot avoid exercising their au­ thority with some rigour. It would not at all have been wonderful then, if, in the course of this proof, where a schoolmasters conduct has been so severely scrutinized, without examining into the causes of such conduct, s ome instances of severity had appeared, and your Lordships had had found that he had now and then chastised his scholars a little roughly. But when, on the contrary, it appears, notwithstanding the severe scrutiny, that during the whole twenty-four years that this respondent has held the office of s chool- master in the parish of Port, there are but two instances in which it is alledged that he hath exceeded the bounds of a moderate chast i sement; and when upon examining into the circumstances of the two instances given, it is found, that even they cannot be denominated instances of severi- ty, without exaggeration, the evidence is the strongest that can well be figured of a negative position, that the respondent is not of a cruel or vindictive disposition. The eight article of the libel charges Mr M'Farlane with being the author of a pamplet called A Sarcasm. On this article, the sentence of the presbytery is silent altogether; so that the respondent must consider himself as exculpated by that sentence from this article of the charge. The 9th article of the libel says, that “ The said Mr M 'Farlane has of late gone about the parish inveighing and imposing 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, which is of itself highly criminal; and, in general, his deportment is such as is unbecoming a teacher or instructor of youth. This article the presbytery have found “ proven by three witnesses, who deponed he came to them, and solicited them to sign a blank paper, which they did at his re- quest. ” Were this article to stand unchallenged, as found by the presbytery, it does not appear that there is much rele­ vancy in it, unless it could be said, that Mr M 'Farlane had made an undue use of the subscriptions procured by him. There is surely nothing criminal, in this article; for nothing more was here charged against him, than that that he desired people to write their names: And as taking this article per s e, it could never be a ground of censure; so taking it in a conjunction with the other articles of this libel, there is no criminal quality reflected from the one to the other. These are the several articles of the libel. Besides these, the presbytery has brought into their sentence a complaint, which seems to have been exhibited viva voce to the pres- bytery by the ministe r of Port, against the respondent, on account of his behaviour towards that minister and kirk- session; with respect to which it is unnecessary to trouble your Lordships with much argument, the respondent ha­ ving made an answer to this complaint in the presbytery, which appears in the extract of their proceedings, and which has been above transcribed into these answers. Before the respondent quits the proceeding of the presbyte­ ry, he must not omit mentioning some circumstances relative to their procedure, wh ich shew how fully they were deter­ mined to oppress him to the utmost of their powe r. The first of these is, that though they appointed a meet­ ing of presbytery in the parish of Port, for the fake of exa­ mining the witnesses for the pursuers with the greater ease and conveniency to them, and also allowed all their wit­ nesses to be present in the church during the examination of each other; nor would they regard the complaints made by the respondent on that head, or receive his objections against the witnesses on that account; yet they obliged him to carry his witnesses to the seat of the presbytery, at a very considerable expence; and when they we re there, they cast them upon that objection, that they had been present during the examination of those witnesses that had been adduced before them; the very same objection they had refused to sustain when offered against the witnesses called for the prosecutor. Another Another instance of their inclination to distress the res- pondent, appeared in the enormous fees they exacted from him for an extract, which he demanded with a view of seeking redress against their proceedings. It is well known, that the fees paid to a presbytery-clerk are gene­ rally very inconsiderable, and far below what the clerks of civil courts are intitled to demand: But here, when the respondent came to apply to the presbytery-clerk for an extract, he refused to give it to him, unless he would pay him a very considerable sum, about five guineas. The respondent offered the fees commonly given in the sheriff- courts. This however was refuse d; and the respon­ dent was obliged either to pay the high sum demanded, which he did, or to submit to the sentence of the presby­ tery without applying elsewhere for redress. The respondent hath now finished the consideration of what is found against him by the sentence of the presby­ tery; and he humbly submits it to your Lordships. whe­ ther the amount of all that is so found against him, sup- porting the evidence thereof were clear and uncontrovertible, be suff icient to found a sentence of forefeiture of his free­ hold office, in which he has grown old and on the posses- sion of which his future livelihood must depend. With regard to those articles of the libel on which the sentence of the presbytery hath been silent, he must consi- der himself as virtually assoilzied therefrom. He there- fore holds himself to be assoilzied from the 1st, 6th, and 8th articles of the libel, which include the general charge of his leaving his school whole days together, excepting in so far as the second article charges him therewith, his re­ sisting to take scholars, excepting at exorbitant rates, and his being the author, or having any concern in the printing or publishing a pamphlet called The Sarcasm. And when what is found proven against him by the sentence of the presbytery is considered, through the me­ dium dium of the evidence on which that sentence proceeds, it will turn out to be no more than this, That he has not frequented fairs or markets, farther than attending a fair one day during a vacation of the school, on which occasion a friend of his sold a little lint-feed for him at the mar­ ket-price: That his scholars sometimes come later to school than they ought to do, which is a reason why he does not always begin to teach precisely at ten o’clock, though at the same time he is in use to chide his scholars on these occasions for their not attending punctually: That he sometimes dealt in little articles of merchandise, which the country required to be supplied with: That in cases of necesi t y there have been two or three instances of his selling such articles during the time his scholars were as- sembled, but that in general this petty traffic was in no shape prejudicial to his school: That so far is he from be­ ing of a cruel and vindictive disposition, there can be but two instances condescended on that have the appearance of severity in him, and even that appearance vanishes when the matter of fact is accurately attended to: And when he found that subscriptions were solliciting to papers prejudicial to his interest, he, in like manner, endeavoured to procure subscriptions to a representation, or certificate, in his favour, produced in process, signed by 65 of the most responsible tenants in the parish, who live nighest his school; which though he did not always read over to those who signed it, yet he explained to them its nature and tendency, and desired them not to subscribe it, if they had any thing to say against him, as appears from the de- positions of William Blair, p. 13. E; John M‘Arthur, p. 13. G; and John M'Vey, p. 14. C. Upon these facts the respondent may safely rest his cause; for tho the petitioners have been at great pains to accumulate in their petition a multiplicity of extraneous facts, such as the process before the sheriff of Perthshire in the year 1752, and other things of the like nature, these, he knows, your Lordships will lay out o f the question, and turn your at­ tention solely upon what has been proved in the course o f the present process. In like manner your Lordships will not suffer the peti­ tioners, in this state of the process, to recur to facts from the charge of which he has been actually assoilzied by the presbytery. Of this nature is the charge of his being the author of the pamphlet called The Sarcasm, which, though they are pleased to insi st on as a very grievous offence, they never have thought proper to explain the nature of: And indeed it would be difficult to find any thing blamewor­ thy in it, unless it should be reckoned so, that a school- master should bestow a part of his time in producing per- formances of this nature, which can at the best serve for amusement only. And, as the respondent apprehends, the sentence that has been pronounced against him falls to be suspended on the merits alone; so much more does it deserve to meet with that fate, when the authority on which it proceeds is attended to: For it is the act and deed of the heritors of a parish, in whom the law, considering them as such, has vested no judicative capacity whatever; as it proceeds not therefore from persons vested with judicative powers, it can have no legal effects. The petitioners have thought proper to urge a very ex­ traordinary argument in support of their sentence: They say, “ 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 parish,” This in reality is arrogating to the presbytery and heritors, an arbitrary and discretionary power over the schoolmaster, instead of a ju­ dicative one: And when your Lordships find men inclina­ ble to assume such powers as these, and attempting to ob­ trude their opinions on your Lordships as a rule of judg- ment, it w ill have a very contrary effect from what it was intended to have with you: You will consider those men as as very improper judges, and will scrutinize their proceed­ ings with the most scrupulous exactness. The petitioners have ventured to draw an argument in support of the discretionary power they suppose lodged in presbyteries from the power of visiting schools, which is given them by law. But they must be informed, that the power of visitation can no more be wantonly exercised, than the power of cognosin g judicially upon a libel. Both are regulated by laws and general rules, which must not be transgressed; or, i f they are, relief is competent to be fought by a proper application. In fact, a visitation of his school by the presbytery, was what the respondent urged and insi sted on; and he offered to submit to any censure they should please to ins ist, i f they found, either that his scholars had not made proper proficiency, or were not un­ der proper regulations. Unfortunately for him, however, this reasonable demand was not granted him by the pres­ bytery. I f it had, it might have saved all the trouble and expence that has been occasioned by the following ano­ ther course. Upon the whole, then, the respondent having been ad­ mitted schoolmaster in this parish in a regular manner, it is without dispute, that he is qualified for that office; and as his call and act of admision is qualified with no condition nor restriction whatever, he is intitled to hold it, till he is regularly convicted of such a malversation as may infer a forfeiture of his freehold: And he humbly contends, that neither has any such malversation been proved against him; nor, though it had, has he been deprived in a regular manner, by a proper judicatory: So that the sentence pro­ nounced against him falls to be s uspended. In respect whereof, &c. AND. C R O S B I E.