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Borrowstounness and District
Chapter XIV. The Representatives of Bo'ness


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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