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1. Origin of the Body—2. Erection of Parish of
Borrowstounness: Manner of Election of Representatives: Their
Duties in Early Days—3. Captain John Ritchie and the Reasons for
his Action of Declarator —4. Why Manse and Glebe Not Provided—5.
The Advocates in the Case: The Contents of the Voluminous Decree
: Mr. Ritchie "Gets his Character"—6. His "Violent Measures":
His Counsel's Vindication of him—7. The Ritchie Party Demand
Production of all Books and Papers of Representatives: Amusing
Arguments For and Against—8. The Court Decides who shall in
Future Elect the Representatives : Procedure for Calling Annual
Meeting: Difficulties over First Meeting—9. Ritchie Unduly
Officious: Court finds that Representatives can only Stent for
Stipend and Apply their Income for Payment of Stipend Alone—10.
The Defenders in the Minister's Declaratory Action for Manse and
Glebe—11. What the Lord Ordinary held the Duke should Pay : What
the Funds of Representatives Consisted of According to Ritchie
and According to Themselves— 12. Some of the Productions and
their Contents—13. Origin of Division of Churchyard at the Wynd—14.
The Tenacity and Stubbornness of the Fight: The "Teazing" of
Ritchie: The Appreciation of his Friends—15. Summary of Final
Decision of Inner House— 16. Fifty Years After: Dr. Rennie's
Long Litigation over Disposal of Surplus—17. How Farm of
Muirhouse came to Representatives: Result of Dr. Rennie's Appeal
to House of Lords: Opinions of the Judges.
I.
If we
except the Sea Box Society, which scarcely comes under the
category of a public body, the Representatives of Bo'ness—still
in existence, though with a much more formal and circumscribed
ambit of government than of old—is the oldest public body in the
town. So little does it now bulk in the life of the community
that at noon upon the first Wednesday of each year the townsfolk
are generally startled by the vigorous pealing of the bell of
the Parish Church, to be calmed later, however, by the
information that nothing more alarming is happening than their
own annual meeting for the election of Representatives.
With the reading of a simple cash statement, the
voting of the surplus to the minister, and the annual election,
the business is completed, and we hear little or nothing of the
Representatives for another year. But stored away in strong
safes in a room at the rear of the church is the history of this
ancient and one-time very important local body in the form of
charters, Acts of Parliament, minute books, and bundle upon
bundle of letters, agreements, and other legal documents. How
important it was and what part it played in the history of the
town during the eighteenth century we shall now endeavour to
indicate.
The body arose out of the very unusual
circumstances which attended the erection of the first place of
worship here, about the year 1638. There was then no Parish of
Bo'ness, the parish for the neighbourhood being Kinneil, with a
church, manse, and glebe in that village. The inhabitants of
Borrowstounness having, as one record has it, "become fairly
numerous and wealthy," erected a church at Corbiehall, at their
own charges, after consulting the Presbytery. They satisfied the
latter about their means of erecting the building, and indicated
their hopes of being in time able to raise a permanent fund, the
interest of which would go towards the minister's stipend. They
were not at once in the position of having a minister of their
own, so the minister of Kinneil, for about ten years, did duty
in both places of worship.
In 1649 a supplication was made to the Scots
Parliament by "the parishioners and inhabitants of the toun and
village of Borrowstounness to have the Kirk of Borrowstounness
made a kirk by itself, and that the same be divided from ye kirk
of Kinneil." The supplication was signed by James Gib, George
Allane, John Langlands, and Archibald Falconer; and these
parties, while expected to appear themselves before Parliament,
were fortified with the power from their constituents "to
appoint a procurator to attend the Parliament and present the
said supplication." The result was that the Estates "separated
and divided the Kirk of Borrowstounness from the Kirk of Kynneil
in all time coming whereof it was ance a part, and ordained and
declared Grahame's Dyk to bound the same on the south, the sea
on the north, Thirlestane on the east, and the castle
wall—commonly called Capies Wall—on the west." Then followed an
important provision—"Siclik the said estates gives power to
those whom the supplicants has chosen to be assisting to the
Kirk Session according to Act of Parliament, or some other who
shall be nominat by common consent of town and session, to stent
yearly every inhabitant and indweller within the said parochin,
bounded as said is, according to their abilities for making up
the yearly stipend of 800 merks promised and obliged to be payed
by the supplicants to the minister and his successors in the
said church, and that according to the inhabitants, their
abilities, aye and until the annual rent of the supplicants
their stock extend to the sum of 800 merks yearly." These are
the words of the statute itself, but the supplication of the
inhabitants was, " To stent every indweller in our kirk, though
they dwell not therein themselves, according to their several
abilities, and in order that those who are refractory to do so
good a work, and will not give their proportion of the said
stipend, may be compelled to bear proportionable burden with the
rest."
II.
In 1669, twenty years after the first Act,
another change took place in Church affairs. That year the Scots
Parliament, •on the supplication of Duke William and Duchess
Anne of Hamilton, suppressed the Kirk and Parish of Kinneil.
Kinneil Parish was then united to Borrowstounness, and the Kirk
of the Seaport declared to be the Kirk of the United Parish. The
old stipend of Kinneil, together with the 800 merks payable by
the inhabitants of Borrowstounness, was appropriated to be the
constant stipend in time coming of the minister of the united
parish and his successors. A manse and glebe also were appointed
to be provided to him by the Duke and Duchess. The old kirk,
manse, and glebe of Kinneil fell, under this arrangement, into
the policies of Kinneil House. Borrowstounness then became the
prevailing name of the united parishes, bounded on the north by
the Firth of Forth, on the east by the Parish of Carriden, and
on the south and west by the Parish of Linlithgow and the river
Avon.
The Representatives for the first hundred years
fulfilled many important duties. How the stent or taxation
authorised by the 1649 Act was raised, or how that and the other
funds of the town were managed until 1672, cannot be traced, the
records for that period having been lost. Neither can it be said
in what manner the managers or assistants were chosen. From
1672, however, down to 1694 it appears that these persons were
annually chosen by a poll of the inhabitants. It was about this
time that those elected came to be known as the Representatives,
or assistants. They had, in conjunction with the Kirk Session,
to impose the stent and to manage it and the other public funds
connected with the church and minister's stipend. Out of the
moneys received it was their custom to make payment of the 800
merks yearly to the minister, of £6 sterling to the minister for
house rent, of 1100 merks yearly salary to the schoolmaster, of
100 merks. yearly salary to the treasurer employed in collecting
the various, branches of the revenue, and also some occasional
expenses for the repairs to kirk and kirkyard dykes and
schoolhouse.
About the year 1694 the method of poll election
was altered by the unanimous consent of the inhabitants. In its
place a method was adopted under which the nine retiring
Representatives chose others to act with them in electing a
third nine. The latter were then presented to the minister as
representing the Kirk Session, and the Baron Bailie as
representing the inhabitants. On receiving the approbation of
these gentlemen they became the managers for the ensuing year.
This system of election continued down to 1738, when a slight
variation was introduced. A list containing the names of the
Representatives for the preceding year and nine others chosen by
them was submitted to the minister and Baron Bailie, who
selected therefrom the nine managers for the ensuing year. This
continued till about the date of the action after mentioned.
III.
It certainly appears that the management of
affairs which were really and truly public, and intended to be
so under the 1649 statute, had in course, possibly through
indifference on the part of the inhabitants and a spirit of
autocracy on the part of the minister and the Baron Bailie,
fallen almost entirely into their hands. But there arose in the
town a man, clear-headed and exceptionally tenacious, who
resolved to end this. This was John Ritchie, master mariner, Box
Master of the Sea Box Society. As such he was well aware of the
remarkable generosity of the society and its individual members
at the time of the building of the church, and later when a
permanent fund for the maintenance of the minister was raised.
Moreover, he was apparently wholeheartedly devoted to the
welfare of the town generally. To clear the air and put matters
on a better basis he raised an action in the Court of Session.
An expensive and keenly contested litigation followed, in which
many hard things were said on both sides. It lasted for eight
years, and must have been the chief topic of discourse in the
town during that exciting period.
The action was one of declarator, and was raised
in the year 1761. It was instituted in the names of John
Ritchie, Alexander Thomson, Duncan Stirling, Andrew Fraser,
Gabriel Thomson, Robert Nicol, James Kelso, Walter Duncan,
Alexander Young, William Shed, William Miller, John Kincaid,
Robert Dealls, James Melville, William Burgess, Alexander
Cunninghame, John Peacock, John Hardie, James Morgan, and Robert
Cram, all shipmasters, sailors, mariners, traders, and
inhabitants in the town and village of Borrowstounness and
members of the Incorporate Seabox there, against John Cowan,
merchant and
Baron Bailie in tlie said burgh; Mr. Patrick
Baillie, minister; Mr. William Logan, precentor; John Addison,
merchant; James Main, Thomas Grindlay, Alexander Glassfurd,
James Drummond, James Grindlay, James Addison, Charles Addison,
John Pearson, merchants; and Thomas Thomson, wright, all elders
and members of the Kirk Session, Borrowstounness; and James
Main, Thomas Grindlay, Alexander Glassfurd, James Drummond,
Duncan Aire, shipmasters; James Scrimgeor, and John Stevenson,
merchants; Thomas Johnston, mariner; and James Benny, mason, all
assistants to the Kirk Session of Borrowstounness. The pursuers
maintained that the assistants to the kirk session were
illegally and unwarrantably chosen as being chosen by Baron
Bailie Cowan and Mr. Baillie, the minister, instead of by the
common consent of the townspeople and the Kirk Session jointly
in terms of the Act. It was maintained also that the assistants
and session had no power to stent or assess the pursuers or the
inhabitants in respect that the funds mortified for church
purposes then annually produced the eight hundred merks of
stipend necessary. One phase of the stent had proved very
obnoxious. Without the slightest warrant, as it seems to us, the
Representatives imposed a marriage tax on those newly married.
Many submitted to it, as the books of the Sea Box Society show,
but the general objection to it was strong. It was more than
once mentioned in the course of the case as iniquitous, and it
would seem that the contention that it was justified was
ultimately departed from. A further contention was that the
defenders could not gratuitously gift away any part of the free
area of the church without a just and adequate price, and that
the heirs and representatives of heritors and portioners of the
town ought to be preferred to those whose predecessors did not
contribute to the building of the church. Pursuers also objected
to a proposal on the part of the defenders to build a second
loft above the sailors' loft, which, they said, would incommode
the pursuers and their brethren by making their loft a passage
or thoroughfare, and would cut off the light from the two
windows which were in the area.
IV
The case was raised before Lord Nisbet. It
frequently came before all the Lords by way of appeal on various
branches which the Lord Ordinary disposed of as he went along.
Finally all the points of Ritchie's case, and of another one by
the minister which was conjoined with it, came in their entirety
before all the Lords. The decision will be found towards the end
of this chapter, but it may be mentioned here that nearly all
the things Ritchie contended for were allowed.
While, no doubt, matters required to be cleared
up, it cannot After all be said that the Representatives were
wilfully guilty of maladministration. Their powers under the
1649 Act were in very general terms, and as circumstances
changed with the times it was only natural they should think it
within their rights to stent the inhabitants and administer the
funds to meet the increasing local expenditure. It would seem,
too, that with the death of Duke William in 1694 and Duchess
Anne in 1716 the interests of the burgh did not get the
attention which the Duke and Duchess had been wont to give them.
Some, of their successors had long minorities, and during these
little expenditure was incurred. At any rate, the feeling
locally appears to have been that Baron Bailie Cowan, the
chamberlain at Kinneil, was inclined to be over-zealous in the
Hamilton interest. Under the 1669 Act, as we have seen, Duke
William and Duchess Anne had to provide a manse and glebe for
the minister of Bo'ness. This apparently they never did, or were
really never requested to do, in the sense contemplated by the
Act. A house certainly was originally provided, and accepted by
the Representatives as a manse, but the minister would not live
in it, whereupon a yearly sum of £6 was granted him for the
purpose of providing himself with a house. Thus matters remained
somewhat unsatisfactory. It was, of course, all very well during
the incumbency of the Rev. John Waugh, the first minister. Mr.
Waugh married .Lady Hamilton of Grange, and settled there, or at
the Dower
House in Grangepans, so there was not, during his
ministry, the same necessity for providing a proper manse and
glebe. After his death, however, things remained much as they
were. Then in time came Ritchie, the fighting-captain, and his
following, and the management of the Representatives was closely
scrutinised and criticised. Mr. Ritchie and his party thought
the housing provisions made for the minister quite inadequate,
and sharply raised the point as to the liability of the Hamilton
family to provide a suitable manse and glebe. Mr. Baillie, the
minister, 110 doubt under the careful advice of his lawyers,
appeared to have realised the justice of this argument, for we
find that shortly after Ritchie's action against himself and the
others-was served, he raised a counter-action against the then
Duke oi Hamilton's tutors and others in the parish to provide a
manse and glebe. This action, as the matters involved were
analogous on that point at any rate, was ultimately conjoined
with Ritchie's.
V .
The counsel engaged in these important and
lengthy litigations were men of eminence. For Ritchie there
appeared Mr. Thomas Miller, His
Majesty's Advocate (afterwards Lord President under the judicial
title of Lord Barskimming), Mr. James Dewar, and Mr. Alexander
Murray, of Murrayfield; and for the minister, Kirk Session, and
assistants, Mr. Alexander Lockhart, Mr. William Wallace, Mr.
Robert Bruce, and Mr. John Dalrymple. The Duke of Hamilton's
tutors were represented by Mr. Lockhart and Mr. Walter Stewart.
Much of our information for this chapter has been
obtained from the decree in Ritchie's case, which was willingly
placed at our disposal by the Seabox Society. It consists of
seven hundred and eight closely written foolscap pages, and has
been carefully bound to ensure its better preservation. The
extract was issued on 6th November, 1764, some months after the
final decree was pronounced. Litigation in the Court of Session
one hundred and fifty years ago was a very different thing to
what it is now, and much less expensive. Procedure was very
cumbrous, and oral pleading was not of much account. The causes
were conducted chiefly in writing, and there were-minutes,
representations, answers, replies, duplies, triplies, and
memorials without end. Decrees not only contained decisions of
the Court, but embodied the contents of the whole pleadings from
start to finish. Besides representations and the other papers
already indicated, this decree gives the debates of counsel, the
orders and judgments of the Lord Ordinary, notes of appeal, and
the Inner House judgments on the appealed points. The volume is
a valuable local document, for amidst all its legal phraseology
it contains facts concerning some of the most interesting and
important phases in the history of the community during portions
of the seventeenth and eighteenth centuries. These facts, by a
lengthy process of winnowing, we have endeavoured to extract
from its pages. They are now here recorded in as informal and
attractive a style as we could reasonably arrange them.
Mr. Ritchie "got his character" repeatedly from
defenders" Counsel throughout the case. It was said in Court at
the first debate that in raising the action he was actuated by
mean, selfish, and spiteful motives. In support of this
statement it was explained that Ritchie had demanded a seat in
the kirk from the Representatives at a price far below its
value, and that demand they did not think it their duty to
comply with. Over the refusal Ritchie, it was alleged, had
produced "a good deal of bustle and confusion in the town, and
among the rest the present process." Sundry of the inhabitants,
it was also stated, were much in want of seats, and the
Representatives made the proposal to- erect a second loft or
gallery above the loft or gallery commonly called the sailors'
loft. The most considerable and most sensible of the Corporation
of Shipmasters and Sailors heartily approved of the proposal, as
it appeared to them their loft could suffer no prejudice
thereby. Ritchie, however, dissented, and, counsel said, made
this an occasion •of revenge for the refusal his application for
a seat had met with. He was accused of having formed, and in
part executed, schemes of profit and power to himself. He had
begun by "buzzing in the ears of the common sailors " how
affronting it would be to them if they allowed a loft to be put
over their heads; that having the good fortune to be well
listened to, he got several "turbulent and mobbish meetings"
called together, at which some hasty and violent resolutions
were entered into. These included authority to carry on
litigations in their name, -and to use the society's funds for
that purpose.
VI.
Most of the shipmasters and the wisest of the
sailors opposed these violent measures, and instructed the Box
Master to refuse to issue money to Mr. Ritchie for his
litigations. This gave rise to Mr. Ritchie forming a scheme to
have himself elected Box Master for the ensuing year. His
intrigues with the sailors, it was alleged, so far prevailed
that a sort of election was made in his favour, although another
election was made in favour of the old Box Master. As to the
different conclusions of Ritchie's declaratory action, the
defending counsel held the poll election was laid aside long ago
by consent of all concerned as productive of many wicked and
pernicious consequences, and that the then current method,
although not a poll election, must still be considered a
nomination by common consent of town and session. Counsel
further emphatically maintained that the funds laid aside with
the object of yielding the eight hundred merks of stipend were
not yet able to do so, and that stenting was still just and
necessary. He claimed, moreover, that the reparation of the
kirk, kirkyard dyke, and schoolhouse, the house rent of the
minister, and the salaries of the schoolmaster -and treasurer
fell first to be deducted. He denied disposing of -any of the
kirk area gratuitously, and argued at length in favour of his
clients' action in making arrangements for erecting & second
loft.
John Anderson.
(From a group photograph taken at the laying of
the foundation stone of the Anderson Academy, Bo'ness, 12th
June, 1869, within a year of his death.)
Ritchie's senior counsel, the Lord Advocate,
replied that
the history defenders had been pleased to give of
the origin and motives of the process was altogether false and
calumnious. Mr. Ritchie had no other motive in joining in the
process than to bring the fund appropriated for the minister's
stipend under the administration of those in whom it was vested
by the Acts, and to put a stop to illegal exactions. Counsel
insisted on a fair inquiry into the state of the public funds.
He commended the pursuers' action in questioning the right of
the minister and Baron Bailie to appoint practically whom they
liked as assistants, and begged leave to call such behaviour a
direct usurpation, contrary to law and the privileges of the
inhabitants. He further submitted to his lordship's judgment
whether the pursuers deserved to be treated as mobbers and
disturbers of the public peace of the town because they were
endeavouring to vindicate the rights of the inhabitants.
To this, defenders' counsel was permitted to
reply, and his speech was in an ironical vein. Mr. Ritchie, he
said, had been pleased to deny through his counsel all mean and
selfish motives and to assume to himself the respectable
character of an asserter of the rights and privileges of the
people. This, however, was no more than exhibiting the same
personage before the Lord Ordinary which he had already with
some success put on to the sailors and some of the lowest
inhabitants, and thereby procured their concurrence in the
process. What his real and true motives were would best appear
when the truth of his allegations with respect to the extent of
the fund and the pretended mismanagement thereof came to be
canvassed.
VII.
The Ritchie party demanded production of the
whole books and papers in possession of the Kirk Session,
present assistants, and the Baron Bailie relative to the fund in
dispute and its application. His lordship was satisfied the
request was reasonable, and gave the necessary order, and also
called for a state of the stock. Defenders declined to produce
the books.
but offered excerpts instead, and asked his
lordship to reconsider his former decision. The judge, however,
was firm, and adhered to his original interlocutor. Defenders
then, with marked obstinacy, appealed the point to the whole
judges, and they, after lengthy debates and inquiries, decided
that excerpts would meet the case, and allowed the pursuers
access to the books at Borrowstounness to make notes of what
they wished. The arguments for and against producing the books
both before -the Lord Ordinary and the whole Court are very
amusing. Here are some samples. Counsel for the defenders argued
that in asking for the books pursuers were only fishing for what
discoveries they could make, and his clients could not think it
reasonable that a cartload of these books should be transported
to Edinburgh and lodged in process, thus exposing them to
laceration and other damage. He emphasised the point that they
would make a very bulky and voluminous production, -and that
there would be great difficulty in bringing them to Edinburgh.
He also urged they could not conveniently be •deprived of their
interim use, the administration of the affairs of the community
requiring that they should not be allowed out of the town. Later
their argumentative fervour increased. An order of this kind for
lodging in the hands of the clerk to the process such a
multitude of books for upwards of one hundred years back was
unprecedented. Moreover, it would impose an intolerable hardship
upon the clerks to be burdened with the custody of such a number
of books, possibly for years, -as there was no saying how long
such a process might subsist. They themselves did not think it
would be short. Further, they opined none of the clerk's offices
could contain half a dozen such productions, and also that the
clerks would not be "extremely fond " to take charge of them.
Once more they pleaded the books themselves were necessary for
"the daillie administration of affairs by the respective
•communities to which they belong," and that their absence would
lead to a " total stagnation of business at Borrowstounness."
They also wished to be forgiven for repeating their •anxiety
about the safety of the books while in Edinburgh— they might be
defaced, or they might be mangled. Ritchie's counsel pooh-poohed
this fuss about the books, and went the length of saying that
this obstinate refusal to produce them made his clients now
firmly believe what they had long conjectured, namely, that
these books would expose a certain •scene that the defenders
would rather wish a veil was thrown over. As to the alleged
difficulty of transport to Edinburgh, Mr. Miller ironically said
unfortunately his clients were so blind that they could not see
the smallest difficulty, the road being good and the distance
inconsiderable. As to the total-stagnation-of-business argument,
here again they confessed themselves in the dark, for how could
it from thence follow that such a thing would happen? Could
anything be more easy than to write down the interim occurrences
in other books, which could afterwards be transcribed into the
ordinary books? They were willing to meet the objections to the
removal as far as they reasonably could, and suggested they
would be satisfied with having the liberty of inspecting them in
Borrowstounness. The offer of excerpts they respectfully
declined, as only the strictest examination of the books
themselves would be satisfactory.
The first meeting was held on Wednesday, the 7th
day of January, 1761. Soon after the Ritchie party stated that
they found two amendments to his lordship's interlocutor
absolutely necessary. First, that the election be appointed in
all time coming to be held annually on a fixed day, such as the
first Wednesday of January yearly; and secondly, that upon the
precentor's failing to make intimation the then Box Master to
the Sea Box, and his successors in office, should be ordained to
do so by causing the officer of the society to go through the
town with his bell, and proclaim the meeting of the inhabitants.
His lordship granted the amendments craved, the other side
having somehow omitted to put in answers. And now another storm
in a teacup arose. The minister and the Representatives had been
rather badly beaten so far by Ritchie and were in no good humour.
They took exception, even after their failure to answer, to the
Box Master of the Sea Box having anything to do with the calling
of the meeting, and pressed his lordship to reconsider his
decision. According to them the emergency intimation would be
better made under the authority of the Baron Bailie by beat of
drum and the drummer's proclaiming to the inhabitants viva
voce the
place, time, and purpose of the meeting. The Baron Bailie they
said, was an officer " cloathed with some kind of authority/'
but they knew no title which the then boxmaster or his
successors in office had to make the intimation.
IX.
Ritchie had recently made the defenders
exceedingly wroth by employing notaries to intimate to them
personally the terms of the recent judgments in his favour—a
course quite unnecessary, and not enjoined upon him in any way
by the Court. Further, he had exhibited a dictatorial spirit by
demanding the precentor to read a somewhat flamboyant notice
prepared by himself calling the meeting ordered by.the Court.
The precentor, however, refused to make the intimation till he
had the liberty of the Baron Bailie, minister, and Kirk Session,
and only capitulated after great pressure.
But what perhaps irritated defenders more than
all was the attendance in a chaise of Ritchie's agent and his
clerk from Edinburgh at the election in the church. This also
was quite unnecessary, but it was evidently Ritchie's way of
thrusting home his success. Lord Nisbet adhered to his former
interlocutor, and Ritchie remained triumphant.
His lordship had by this time a fair grip of the
case. He evidently issued his judgments piecemeal on the points
he had fully made up his mind on as the cause proceeded. In the
interlocutor adhering to his former opinion about the manner of
calling the meeting he dealt another blow to the defenders.
There he also found that the Representatives had no power to
stent or tax the inhabitants for any other use or purpose than
for making up the yearly stipend of 800 merks to the minister;
and that they had no power to apply any part of the income to
any other purpose than the payment of the stipend; found also
that the annual rent or yearly produce of the mortified stock
was more than sufficient to meet the 800 merks; and that there
was no power to stent or tax the inhabitants except
t in
the case of the failure or decrease of the stock; found,
further, that they could not gratuitously gift or give away any
part of the area of the church without a just and adequate
price, and that all such gifts were void and null; and, lastly,
that the pursuers and the other members of the Incorporated
Seabox Society had the only right to the sailors' loft in the
kirk and to the area above the loft, and that the Kirk Session
and Representatives could erect no loft or gallery above the
same.
Here was a complete vindication of Ritchie's
action; but the defenders, of course, appealed, and continued to
fight hopelessly for years.
X.
As it may be interesting to know who, besides the
Duke, were involved in the minister's declaratory action for
manse and glebe, we may mention the summons ran thus: —
"Mr. Patrick Baillie, minister of the Gospel, at
Borrowstounness ; James Main, William Muir, shipmasters; Charles
Addison, James Grindlay, John Addison, James Addison, and John
Pearson, merchants, all elders and members of the Kirk Session
of Borrowstounness, for themselves, and in behalf of the said
Kirk Session, and also at the instance of John Falconer, Duncan
Ayr, Thomas Grindlay, Thomas Johnstone, shipmasters; James
Scrimgeour, merchant; Richard Hardie, sailor; James Dobie,
Alexander Taylor, and William Aitken, wrights, all present
Representatives of the town of Borrowstounness, or assistants to
the Kirk Session for making up the yearly stipend to the
minister of Borrowstounness, for themselves, and in name of the
other inhabitants of the said burgh, against George James, Duke
of Hamilton and Brandon, and the other heritors of the United
Parish of Kinneil and Borrowstounness, viz., James Thomson,
portioner of Borrowstoun; David Hardie, portioner there; Marjory
Burnside, relict of the deceased Adam Boyle, merchant in
Borrowstounness; and John Boyle, their son; James Thomson,
merchant in Edinburgh; Archibald Burgess, maltman in
Borrowstounness; John Thomson, wright and glazier; Robert Cowan,
writer; Alexander Buchanan, -eldest and only son of the deceast
Andrew Buchanan, merchant ; Mary Muir, relict of Robert Hay,
sailor; James Snedden, sailor; Marjory Wilson, relict of Peter
Stephen, shipmaster; James Smith, surgeon; Isobel Black, spouse
of James Rannie, mason, and the said James Rannie, for himself
and his interest; Adam Boyle, shipmaster; Andrew Cowan,
merchant, and one of the Annual Committee of Managers for the
Society of Sailors; John Stevenson, merchant; Thomas Dundas,
merchant in Linlithgow; Agnes Morton, relict of James Moir, some
time Officer of Excise at Linlithgow, and George Moir,
residenter in Linlithgow, eldest lawful son of the said James
Moir; Isobel Jamieson, spouse to Robert Cram, brewer in
Borrowstounness, and the said Robert Cram for himself and his
interest; Robert Eglinton, butcher; Sarah Hamilton, daughter of
Alexander Hamilton, minister of Stirling; Mr. James Wright,
minister at Logie; and also the following persons members of the
Committee of Managers for the Society of Sailors in
Borrowstounness, proprietors of some acres of land,
viz.:—Alexander Hodge, shipmaster; Andrew Mitchell, James Ackie,
Robert Baron, junior; and Robert Deas, sailors; as also John
Ritchie, shipmaster, for himself and as Boxmaster to the said
Society of •Sailors, and the other persons aftermentioned, for
tfiemselves and either as members of the said committee, as
concurring with him, viz. :—Alexander Thomson, Duncan Stirling,
Andrew Eraser, Gabriel Thomson, Robert Nicol, James Kelso,
Walter Duncan, Alexander Young, William Sked, William Millar,
John Kincaid, Robert Dealls, William Burgess, Alexander
Cunninghame, John Peacock, and Robert Cram, all shipmasters,
sailors, mariners, traders, and inhabitants in the town and
village of Borrowstounness, and members of the incorporate
Seabox there."
XI.
On 11th February, 1762, Lord Nisbet, having
considered the conjoined processes, found the Duke of Hamilton
and other heritors of the parish liable in payment of the
following items formerly in use to be paid out of the funds:—
(а) The house rent payable to tho minister for
want of a manse.
(b) The schoolmaster's and bellman's salary.
(c) The expense of repairing the kirk and
kirkyard
dykes, and decerned against them for payment
thereof in all time coming.
(d) Assoilzied Ritchie and the other members of
the Seabox from the process of declarator at the instance -of
the minister.
This caused the Duke to appeal to the Inner
House, and the case in all its aspects was fought over again. At
last, on 10th August, 1764, it was finally decided by the Inner
House judges. The decision, which will be found later, upheld,
with one or two slight changes, the various judgments of the
Lord Ordinary.
It will be appropriate to here refer to the
condescendence of the funds belonging to the Representatives
which Ritchie, after his investigation of the books, lodged in
Court. It was made up thus—
This statement bore out Ritchie's contention that
the annual income was more than sufficient for the stipend, and
that stenting was unnecessary. The minister's answers brought
out things differently. He alleged the interest on the
mortification bonds was overstated, that the rent of house
called the manse should only have been £12 10s., and that the
Red House belonged to the Seabox, and ought not to have been
included. The only concern the Representatives had with this was
that there was one room therein used for a schoolhouse, the
Seabox getting the rents of the rest of it. He also argued that
the minister's glebe was no part of the stipend fund, and did
not fall to be included, and that the seat rents and money
arising from the ringing of the great bell and sales of
burying-places were so precarious and uncertain that they could
not be -depended on. A fair statement of the income and
expenditure, as he considered it, was then lodged, which showed
a yearly income of £56 9s. 5d. sterling, and an expenditure of
£61 10s. 9d. sterling. This expenditure did not include anything
for the repair of the kirk and kirkyard dykes, and so stenting
was still necessary.
The Court, however, was satisfied that Ritchie's
statement was fair and warranted, and in the final decision it
will be seen that all its items were adopted save Nos. 5 and 6.
The first deletion was the Red House, and by agreement of
parties this was struck out early in the argument. The second
was the sum put in for the glebe, and this deletion would seem
to have been quite warranted.
XII.
Some of the productions are interesting.
Ritchie's were •copies of the two Acts, an inventory of writs
lying, it was said, in the charter chest of the town of
Borrowstounness, and an •extract of the sederunt at the meeting
of Representatives held on 7th January, 1761, by order of Lord
Nisbet. Among those of the minister was an Act or order in
favour of the Representatives, dated 27th April, 1719, by the
Bailie of Regality. It followed on a petition for an authority
to stent, and it granted warrant to the Representatives to
impose six pennies Scots upon each twenty shillings Scots of
house rent, to be paid yearly for the space of four years by the
inhabitants. The Duke's productions were numerous, and included
an Act and Instrument, dated 22nd January, 1650. This was
important, as it disposed of the allegation made that the Duke
had not provided a glebe in favour of Mr. John Waugh, the first
minister. The Instrument bore that the particular ground therein
mentioned "for horse and keys gerse and for glebe, house-stance,
and yeards had been mett and designed " to Mr. Waugh and his
successors. There were also a number of bonds and title deeds
relating to the house originally given by the Duke in lieu of a
manse. This house was not considered, sufficient for a manse,
and the Court ordered the Duke to build a new one. The
insinuations in the pleadings that the Hamilton family were
trying to get out of their responsibilities were refuted by
production of some agreements made between the family and the
Representatives, and which, we think, so far justified their
fighting the minister and Representatives. They had furnished
the glebe, and they explained that the reason why the 1649 Act
did not impose the granting of a glebe on the Duke then was
that, as a matter of fact, the glebe was really in course of
being provided at the time. As to their resistance of the-demand
for a manse, it was worth while so resisting, seeing they were
in possession of -an agreement between the Representatives and
themselves, wherein a certain house was agreed to be accepted by
all parties in lieu of a manse. Doubtless the Court, however,
took the view that, when the then incumbent himself raised a
process and narrated that he had really no place that he could
properly call a good and sufficient manse, he was entitled in
law to have it, for they so-decreed. Among other points resisted
by the Duke's tutors were those that he should be made liable
for the maintenance of the kirk, kirkyard dykes, and the
schoolmaster's salary. A very spirited fight indeed was here set
up for them. It was shown that, after the parishes were
re-united, Duke William and Duchess Anne, finding the
accommodation of Borrowstounness limited for the two
congregations, built an aisle (or, as it is put in the
pleadings, "a spacious isle" for themselves and their tenants.
At a later date they put in a "gallery for their coalliers."
These parts of the building they had always upheld at their own
charge, and their successors had continued and would continue to
do so. So far as the remainder of/the building was concerned,
that fell to be upheld by the inhabitants who occupied it
through the representatives. One argument sedulously used to
make the Duke respond to the demands made on him was, that the
annexation of the parish had given his family the following
advantages:—(a) They were relieved of the " inconveniency "
arising from the Church of Kinneil being situated near the House
of Kinneil, where the family sometimes resided; (b) they were
relieved of the expense of rebuilding the Church of Kinneil,
which was said to be then ruinous; (c) they were assured against
any augmentation of stipend which must have been the case had
the parishes remained unannexed, as - the old stipend in use to
be paid to the minister of Kinneil was but 500 merks.
XIII.
Concerning the churchyard and how it came to be
divided by a road, in the later pleadings—1762 or thereabouts—we
find it stated—There is not now any churchyard within the Barony
of Kinneil; the only churchyard within the conjoined parish is
that of Borrowstounness, which was purchased by the inhabitants,
and which churchyard is divided into two by the high road which
passes through the middle of it. The road was made at the desire
of the family of Hamilton, for when they lived at Kinneil House
their road to Borrowstounness, being frequently interrupted by
the tide at a place called Capie's Point, they prevailed on the
inhabitants to allow them to "cutt" a road through the
churchyard, by which means it was divided into pretty equal
parts. Since which time the inhabitants of the Barony of Kinneil
were generally buried in the south or upper half of the
churchyard, and the inhabitants of Borrowstounness in the north
or lower half. But though this was the general practice, many of
the inhabitants of the Barony of Kinneil, and among the rest the
whole of the Duke of Hamilton's " Coalliers," were buried in the
north, as, vice
versa, there
were numbers of the inhabitants of Borrowstounness who were
buried on the south side.
It appears also that the Duke was in use to
repair the dykes on each side of said road made for the
accommodation of himself alone, but never the churchyard dykes.
It was said at that time, too, that no person had been buried in
the old kirkyard of Kinneil within the memory of man.
In another place in the decree there are
references to the old school of Kinneil and the new school of
Borrowstounness thus —Before the separation of the town from
Kinneil there was a schoolmaster for the Parish of Kinneil,
whose salary the Duke paid. Upon Borrowstounness being disjoined
and erected into a parish by itself, the inhabitants established
a schoolmaster for their own conveniency, to whom they gave a
salary of 1000 merks, as it was most inconvenient to send their
children to the school of Kinneil, which lay at so great a
distance. After the re-annexation of Kinneil to Borrowstounness,
the Duke, willing to encourage this town as far as in his power,
agreed to drop the school of Kinneil, and transferred the salary
as an addition to the schoolmaster of Borrowstounness, and which
accordingly he enjoyed at that date.
XIV.
Although not a very pleasant theme, we cannot but
revert in closing to the almost wicked tenacity and stubbornness
with which the fight was fought to the bitter end. The
combination of processes made it all the more bitter. The Duke's
agents went most thoroughly into his defence, so much so that
poor Ritchie, who really long ago had got from the Lord Ordinary
what he was contending for, became heart-sick, and more than
once complained that the Duke's tutors were doing all they could
to prolong things with the view of tiring him out. The minister
and his party also got tired of the repeated representations of
the Hamilton agents and the consequent •delays. They complained
that if the Duke was permitted to go on
in that manner multiplying papers it was hard to say when the
question would end. Four representations almost on the same
point, they said, were without precedent. They bitterly resented
this, and frankly admitted they were quite unable to maintain a
dispute with so powerful an opponent. The minister himself
pleaded he wanted his manse, and had no concern with the dispute
between the Duke and the town.
Observations which were far from complimentary
were still made by the litigants. The Ritchie party wailed they
had ''long groaned under the tyranny and arbitrary measures of
the minister, Kirk Session, and their assistants." We read Also
that the Captain's foes even encroached on his family
burial-place in the churchyard. For their violent and
unwarrantable intrusion in digging up a grave there he sued
three persons for £50, and also craved that they be decerned to
remove the corpse of Alexander Low's mother interred therein. Of
course, he was thought unfeeling and unholy in "wanting the
corps of Low's mother raised from her grave." He must have been
greatly "teazed," as it is put, on this subject, and towards the
end we find some of his opponents " had the audacity," even
after the raising of his action about his burying-ground, "to
cause interr the body of a cobler in ihis said burial-place." It
is very extraordinary how the feeling against Ritchie was kept
up by the defenders. He is described, Among other things, as
having " a disposition not to be pleased with anything, and to
take delight in raising disturbances," And of either " leading
or driving " his friends of the Seabox.
But he had his friends, and their pleadings show
that they Appreciated his " merit, zeal, and activity," and that
they were bound in gratitude to him for his generous and
public-•spirited conduct. In their final tribute they said he
was a man of remarkable public spirit, who with some others, in
spite of the utmost and united efforts of the minister, Kirk
Session, and assistants, brought that process to prevent the
inhabitants, of Borrowstounness from being oppressed and
tyrannised over by a few^ and as having had the good fortune to
prevail in everyconclusion
of their declarator.
XV.
In concluding our notes on this long litigation
let us briefly summarise the final decision of the Inner House
judges on the: whole case; they practically on all points upheld
the various, judgments of Lord Nisbet—
1. The heritors and inhabitants of the town, in
conjunction with the minister and Kirk Session, to have-sole
power of electing their own Representatives.
2. The persons entitled to vote were the
heritors, portioners, householders, and heads of families.
3. The annual meetings of the inhabitants for
choosing-assistants to be held within the church on the first
Wednesday of January yearly.
4. The following were found to be the funds
falling under the administration of the Representatives,
viz.:—Items. 1, 2, 3, 4, 7, and 8 of Ritchie's statement of the
funds, before mentioned.
5. Found assistants and Kirk Session had no power
to stent or tax the inhabitants neither then nor in time coming,
except in the case of the failure or decrease of the-stock or
funds.
6. That the rents of the lands of Muirhouse, the
annual rents of the bonds, and rents of the seats in the church
of Borrowstounness specially appropriated for payment of the
said stipend must, in the first place, be applied for that
purpose.
7. That the said funds, after payment of the said
stipend, must be applied for payment of the repairs of that part
of the church possessed by the inhabitants and for keeping the
dykes of the lower churchyard in repair, and that the collector
of said funds might be allowed a yearly salary not exceeding £3
sterling.
8. None of the funds under administration of the
assistants could be applied by them for repairing the kirkyard
dykes of Borrowstounness (except those of the lower churchyard)
or for payment of the manse rent and schoolmaster's and
bellman's salary.
9. They could not gratuitously gift or give away
any part of the area of the said church without a just and
adequate price, and that all such gifts should be null and void.
10. That members of the Incorporate Seabox had
the only right to the sailors' loft in the kirk and to the area
above the loft, and that Representatives could not erect a
gallery above the sailors' loft.
11. John Ritchie and the other members of the
Seabox entitled to be refunded out of the surplus of said funds,
after payment of the stipend and other debts charged thereon, of
the sum of £128 16s. 4d., to which their account of expenses was
modified and restricted, and of the sum of £73 19s. ljd.
sterling as the expense of extracting the decree. The
Representatives ordained to make payment accordingly.
12. That the Representatives were not entitled to
take any part of their expenses of the processes out of the
funds under the administration.
13. The Duke of Hamilton and his tutors and
curators for their interest, and the other heritors of the
Parish of Kinneil found liable in payment of the following items
formerly in use to have been paid out of said funds: —
(a) The
house rent payable to the minister for want of a manse.
(b) The schoolmaster's and bellman's salaries and
the expense of repairing the kirk and kirkyard dykes (except
that part of the kirk possessed by the inhabitants and the
repairing of the dykes of the lower churchyard); and they were
decerned and ordained to make payment thereof in all time
coming.
14. The Duke and his tutors and curators for
their interest ordained to build a sufficient manse and office
houses for the minister of Borrowstounness, and to make payment
to the said minister and his successors in office of the sum of
£6 sterling yearly in name of manse rent until he furnished the
minister with a sufficient manse and office houses.
15. John Ritchie and the other members of the
Seabox assoilzied from the whole points and articles of the
process of declarator brought at the instance of the minister,
Kirk Session, and assistants against them, and declared them
quit thereof and free therefrom in all time coming.
XVI.
For fifty years after the long litigation the
affairs of the Representatives seem to have gone smoothly. But
that body was doomed once again to have a long and expensive law
suit. Again the stock which had been appropriated for the
stipend fund came in for a critical overhaul. The parties in the
former litigation had all passed away, but the fighting spirit
had been bequeathed unabated to their successors. The action was
raised in the Court of Session in the beginning of the
nineteenth century by the Rev. Robert Rennie, minister of the
Gospel at Borrowstounness, against James Tod, Alexander Cowan,
John Cowan, James Smith, merchants; Alexander Aitken, feuar;
John Hardie, baker; and Francis Lindsay, barber, all of
Borrowstounness, and as Representatives of the said town. The
sums invested to yield the 800 merks had so increased in value
that there was annually a considerable surplus over after paying
the minister his salary and repairing the church. This surplus
the Representatives sought to appropriate for public purposes,
one of which was the building of a grammar school. -They held
that by immemorial usage they had a perfect right to dispose of
the surplus as they pleased, provided the minister's stipend and
the other expenditure allowed to be made out of the fund by the
former decision of the Court were first of all duly met. The
minister thought otherwise, maintaining that he and he alone was
entitled to the surplus. The case was, in the first instance,
brought in the Outer House before Lord Hermand, who decided in
favour of the minister. The Representatives appealed to the
Inner House, and the judges there reversed the Lord Ordinary's
decision, and held that the surplus belonged to the
Representatives. The minister then appealed to the House of
Lords, and in 1806 was awarded with a unanimous decision finding
that he was entitled to the surplus. This decision, of course,
was final, and governs the administration of the fund to this
day. It can well be imagined what turmoil, contention, and
bitterness this second and final litigation caused in the town
during the six years of its duration.
The disappointment which the House of Lords'
decision caused the Representatives and a large body of the
inhabitants was of the keenest kind, judging from the reports
and stories of that time which have been handed down in the
families of those who had taken a leading part in what they
understood to be a fight for the benefit of the community.
So far as we have seen, no personal antipathy to
the minister was displayed throughout, although the
Representatives fought hard. Their attitude, we think, would be
correctly judged by considering it as the expression of an
innate belief that—the minister being duly provided for when he
got the stipulated 800 merks—the inhabitants of the town were
surely the natural and proper parties to benefit by any
unexpected surplus from a fund which their forefathers had so
spontaneously and unanimously gathered a century and a half
before. Their hopes had been raised almost to the point of
realisation by the decision of the Inner House. Mr. Rennie,
however, was in the position of being able to appeal to the
House of Lords, and, as very frequently happens yet, this final
tribunal reversed the decision of the Inner House judges and
left the minister the gainer.
XVII.
As it was chiefly owing to the increase in the
value of the farm of Muirhouse that this litigation arose, let
us explain how it came into the possession of the
Representatives. During and preceding 1649 the inhabitants had
raised a large sum for the "plantation" of a minister. The
Seabox Society were particularly generous. They with one consent
gave over several bonds which they held in security for money
advanced. One was a bond of 2500 merks due to them by the Duke
of Hamilton and his heirs, and the other was a bond of 2000
merks lying upon the Muirhouse. The wadset or bond for the
latter appears to have been increased at this time to 5000
merks, and James Hamilton of Balderston, the then proprietor of
Muirhouse, in granting the new wadset or bond, along with Tiis
wife, granted it by arrangement to certain persons " as
commissioners for the inhabitants of Borrowstounness and their
successors, for the use, utility, and behoof of ane minister of
the cure at the Kirk of Borrowstounness." Hamilton of Balderston
apparently got into financial trouble, and, not being able to
repay his loan, these Commissioners apprised the subjects and
became irredeemably vested therein. That, to our mind, is the
history of how the Representatives came to possess Muirhouse.
All the land in the old Bo'ness Parish belonged to the Duke,
save Muirhouse Farm, which was held off the Crown. How did that
arise? Evidently when the apprising took place the Rev. John
Waugh awakened to business. As we have reason to believe from
what we have read of him, his business instincts were strongly
developed. Mr. Waugh, apparently, was dissatisfied with the
destination in trust in favour of the commissioners. Therefore
during the Commonwealth he applied direct to Oliver Cromwell,
and received from the Protector a charter in his own absolute
right for himself and his successors, ministers of
Borrowstounness. Afterwards those entitled to the
administration, and who •certainly had an interest to take the
management into their own hands on account of the assessment
which still continued, applied to and obtained from King Charles
the Second a charter restoring them the possession and
administration. This, then, explains the Crown holding, and at
the same time bears out what some of the Representatives at this
day like to mention occasionally, namely, that they have in
their charter chest a charter from Oliver Cromwell and also one
from Charles the Second, with, of course, their respective
seals.
Reverting to the House of Lords' decision, the
judges took up their stand on the ground that here was a trust,
and they referred to and grounded their decision on the
documents which in their view clearly constituted the trust.
Lord Chancellor Erskine and Lord Eldon both gave opinions. The
Chancellor was very strong on the trust argument. He held the
Court u could
not look off the face of the instruments constituting the trust
right." He pointed out that the charter of Charles the Second"
restoring the lands of Muirhouse to certain trustees and
administrators bore expressly to be " for the use and behoof of
the minister of the Gospel serving the cure at the Kirk of
Borrowstounness," without qualification or limitation, but
absolute and unlimited. The Sasine following it was in similar
terms. If the parties then in charge of the trust had conceived
that they had a right to any surphis after producing the 800
merks, they would, he thought, have qualified the trust on the
face of the instruments. With respect to the argument, that the
former decree of the Court barred the present case, he found, on
looking into the former case, that it was really raised for the
purpose of ascertaining what funds were applicable to the
payment of the minister's stipend, and that the question of
whether the minister had a right to the surplus or not was never
discussed. He thought Lord Hermand's judgment in favour of the
minister was sound and just, and that in a case of that kind one
judge was as competent to form an opinion as several.
We might mention that the Chancellor illustrated
his view of the case thus—"If I give an estate to my eldest son
as a trustee for a younger brother, and add an obligation on the
eldest son to make up the estate to £1000 a year, nothing can
show more clearly my intention than that my second son was to
possess £1000 a year, and though, perhaps, it might not be in my
contemplation that the estate would ever produce so much, yet,
if the estate came to be of greater annual value than £1000 a
year, could it be said that the eldest son was not still a
trustee in that specific estate for his brother?" Upon the
whole, he was of opinion the interlocutors of the Court
appealed' from should be reversed.
Lord Eldon was also clear. "In all human
probability," he said, "neither the inhabitants nor the minister
at the time thought that the produce of the funds would ever
amount to more than 800 merks, but this could never decide the
rights of parties. As to the deeds, he thought the fair
construction to be drawn from these was that the funds, if not
mortified to the minister, were yet appropriated to his use and
benefit in terms so clear on the face of the instruments that
the Court could not at that distance of time look off these
instruments to speculate with regard to the original intention
of the parties." |
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