James Chrystie v. Robert Alexander — Answers, 24 Nov 1766

A N S w E R s A N S R obert A lexander, Robe T O T h e w E R s R s N T o f J a m e s O h S e o R s E Nov. 24. r76^. A N S W E R S F O R f N J E S R a m E 2 4 T. E S r Esq; t r The P E T I T I O N of 7 46Eo O hSeoRsE Writer in Edinburgh. T H E greater part of the Petition, now to be answer- ed, is employed in giving your Lordships a detail o f the facts and proceedings that are said to have giv- en rise to the Respondent’s Complaint against the Petitioner. In this detail there are various errors and mis- takes; such as, for example, what is there said o f the Re- spondent’s having purchased up some o f Benjamin P lender- leith's debts;— an averment altogether groundless. But the Respondent apprehends, that, when the intendment o f the Petition is to bar further procedure on the Complaint, on pre- tence o f an alleged compromise, it is improper and unne- cessary at present to enter into the merits o f that Complaint. These have been fully argued on both sides, and lie be- fore your Lordships for advising, in the Complaint itself, A n swers, Replies, and Duplies. To them the Respondent shall refer, for f low in g that he has had the strongest cause for complaining that perhaps ever was given in a case o f the like kind. Nor can it escape your Lordships observation, that the attempt now made to prevent the judgment of the Court, upon the grounds set forth in this Petition, does in- dicate the strongest apprehension o f that judgment’s being favourable to the Respondent. The Petitioner has informed your Lordships, that, besides the Complaint exhibited in this Court against him, as guilty of • • ' * ► o f making a false return, both the R espondent and the Ma- g istrates o f Pittenweem presented Petitions to the Honour- able House o f Commons, complaining o f Sir John A n stru- ther’s being unduly returned as Commissioner to serve in Parliament for that d istrict o f burghs: “ That upon the day immediately preceding the one appointed for hearing the matter o f these Petitions to the House, and when counsel on both sides were prepared, a meeting was held in the committee-room by Sir John A n stru ther, Mr. Alexander, and several o f their mutual friends, o f purpose to acco- modate all d isputes with regard to Sir John A n struther’s election; and, after some treaty, it was agreed, that the Petitions to the House o f Commons should be w ithdrawn; and which was afterwards done accord ingly:----- And that it was specially agreed, that Mr. A lexander’s Complaint; against the Petitioner, and all proceedings upon it, should be dropt.” It might perhaps be sufficient for the Respondent to an- swer in general to what is thus alleged, That he never had any treaty, or made any agreement, with the Petitioner or Sir John Anstruther, as to the matter o f this Complaint in que- stion, or indeed as to any thing else. But as the Respondent has no cause to conceal from the view o f your Lordships, or the world, any part o f his con- duct in this affair; and, as he finds himse lf in some measure called upon to give an account o f what passed concerning the withdrawing o f his Petition to the House o f Commons, he shall here disclose to your Lordships all the material circum- stances respect in g that matter, according to the best o f his remembrance; and likeways what has occurred fince that period, concerning the flopping procedure on this and the other complaints now depending in Court. The Respon- dent indeed feels some concern, that the necessity he is un- der o f doing ju stice to himself, obliges him to lay open matters that he did not expert would have been the subject o f enquiry, or consideration, in this Court. But the blame, i f there is cause for any, must lie on the other side. On On the day preceding that appointed for hearing the R e- spondent’s Petition at the bar o f the House, the Honourable Mr. Thomas Walpole brought a message to the Respondent from a Noble Person, by which he was pleased to sign ify his desire that the Respondent should wave his Petition to the House; and that, on his doing so, he would have a seat in Parliament for an English borough. This proposal came unclogged with any other condition, was accompanied with obliging expresions o f personal regard to the Respondent, and no objection to his maintaining his in- terest in the Fife boroughs, against Sir John Anstruther, at the general election. It had also the additional force o f coming recommended by a Gentleman, with whom the Respondent has been much, and long connected; and who has, on many occasions, showed him uncommon instances o f friendship. While that Gentleman, who brought the message, was in conversation with the Respondent on the subject, Sir Alex- ander G ilmour came into the room, and, in the same Noble Person ’s name, confirmed what had been said to the Respon- dent, w ith this additional assurance, “ That the Respondent m ight depend on being brought into Parliament immediately, i f the proposal was accepted.” The acceptance o f it, however, seemed to require both consideration and advice. Many Gentlemen in high office, had, from principles o f honour, declared their intenti- ons o f espousing the Respondent’s cause: But it could not fail o f being very agreeable to him to find a decent oppor- tun ity o f saving them from the discharge o f a duty that m ight, under some administrations, have been attended with inconven iency. T he Respondent too had not inlisted him- se lf with any party, and was actuated by no factious views; and, although he had not then the honour of being known to the Noble Person from whom the message was brought, yet the R espondent was no stranger to his amiable character. On the other hand, the Respondent was sensible that a step o f this kind m ight be liable to misconstruction, by such as either did not chuse to enquire into his motives, or were under the influence o f different principles or passions. In In this state o f irresolution, the Respond ent thought pro- per to call into the meeting (which happened in the com- mittee-room) a Gentleman o f this country, Mr. Wedder- burn, whole conversation greatly contributed to determine him to accept o f the above proposal. In this manner were the terms agreed to, without Sir John Anstruther being any way a party to the treaty, and without a word being said of this Petitioner Mr. Chrystie. There was no writing palled between the parties to this agreement; viz. the Gentleman who brought the message, and the Respondent. Nor was it requisite that there should be any, as the terms were so simple, consi sting of nothing more than the Respondent’s withdrawing his Petition to the House o f Commons on the one part, and the engagement to bring him immediately into Parliament, on the other. It is indeed true, that Mr. Wedderburn thought proper to draw up some writing or memorandum, which the Respon- dent afterwards learned was sign ed by him and another o f the company: But this was done without any authority from the Responden t; nor was the whole o f it read to him at the time. If it had, he would have treated part o f it w ith the indignation it deserved. When this matter was thus entirely over, and the Respondent was passing through the Speaker’s chamber, in his way home, he found there several Gentlemen, one o f whom told him, that Mr. Chrystie must be given up. The Respondent was much surprised at the proposal, which he afterwards heard had been that instant suggested by one o f Sir John Anstru th er ’s learned counsel. The Respondent declared himself against a compliance with it, in the strongest terms; but he was told by Mr. Wedderburn, that it was a natural consequence o f the Respondent’ s w ithdrawing his Petition, and that no Court o f Justice could afterwards condemn Mr. Chrystie. This was fo unexpected, and so different from the opinion the Respondent had entertained o f the matter, that he is not ashamed to acknowledge, that it deprived him o f his u sual presence o f mind. He will therefore be less positive as to what happened afterwards; but, to the best o f his re- membrance, membrance, he was struck dumb; and no other acquies- cence to the proposal can be alleged, than what may be inferred from his silence. I f he said any thing, he remem- bers nothing o f it, but w ill readily tru st to the recollection o f the other Gentlemen presen t. The R espondent, however, was soon relieved o f the perplexity and concern he had felt, on occasion o f the opinion that had been thus delivered to him in the Speaker’s chamber, subsequent to the conclusio n o f the compromise. He was advised, that it had altogether pro- ceeded on a misapprehension o f the law, and that the dis- missing or w ithdraw ing the complaint against Mr. Chyrstie w as by no means a necessary consequence o f w ithdraw ing the Petition to the House: Neither was it any branch o f the agreement made by the R espondent in the committee-room, the conditions whereof, so far as then known or agreed to by the Respondent, were only these two; The w ithdraw ing the Petitions to the House, and the procuring him a seat in Parliament. The Noble Person from whom the message came, had never sign ified the least inclination to skreen M r.Ch rystie from the laws o f his country; and it appeared absurd that Ch rystie, or Sir John A n struther, neither o f whom were par- ties to the treaty, should think to avail themselves o f a con- versation subsequent to its conclusion, or o f any words that may have been suppofed to have dropt from the Respondent, while under a mistaken notion o f the legal consequences o f stopping the proceedings in parliament, suggested by a Gen- tleman, who, as Sir John A n struther pretends, has since complimented him with his interest. The agreement, or comprom ise, upon the part o f the Respondent, was immediately performed to the full extent o f it. The Petitions to the House were w ithdrawn furth- with, though the Respondent has not hitherto obtained a seat in Parliament. During the preceding W inter Session, the law-suits rela- tive to the elections o f this dist r i ct o f boroughs had been car- ried on with great keenness. The Responden t’s f riends were were conscious o f the rectitude o f their conduct, and that it could stand the test o f the strictest inquisition: But the trouble and expence attending such processes was g re a t; they distracted those concerned from their private affairs, and kept up a spirit of dissension amongst neighbours, that was highly prejudicial to that part o f the country. These fruits of political opposition, the Respondent felt with con- cern. There was no mention of any stop being put to them at the time; though the Respondent, whenever he came to recollect himself, thought it a natural consequence o f the compromise; and he had the satisfaction to find this was also the sense of the Noble Person, and Honourable Gentleman, with whom he treated, as will appear by the following note. Dear ^s S r May 4t “ Lord R. understands the matter exactly as we do, that all the prosecutions should be stopt, and his Lordship promises to speak to Sir John Anstruther properly about them. I think it would be right i f you called on Lord R. one morning; and desire you will believe me, with very sincere regard, Dear ^s S, Your most humble servant, (Signed) W h N64o F 4 m q N m E;P In the beginning o f the Summer Session, the Complainers, in the case o f Kilrenny, were moving in their complaint, when it was objected by the Respondent, that this, among the other political disputes from these boroughs, was under- stood to be quashed. The Respondent was still at London, when he received advice from Scotland that Sir John’s agents, in consequence of the above objection, had desired that the processes might be stopt for ten or twelve days, until they resolved whether to proceed in them or not. The Respondent thereupon, in concert with Mr. Walpole, wrote to a particular friend o f Sir John Anstruther’s, sign ifying his opinion and inclination in this matter. He was favoured with an answer, to which he he made a reply, which ended that correspondence. The c orrespondence will speak fo r itse lf; and, i f looked into, w ill afford all the light which it is in the Respondent’s power to throw upon the matter, beyond what arises from the facts already stated. The negotiations for peace having tints proved unsuccess— ful, Sir John A n stru th e r ’s friends have since proceeded in their processes and proofs; with what success your Lordships w ill soon have an opportunity o f judging. I f the R espondent is not greatly mistaken, his opponents will not only appear to have failed in the proof o f all their averments, but other circumstances w ill be discovered on their side, that w ill not escape your Lordships animadversion. These considerations, it is possible, may now incline them more to pacific mea- sures than formerly; but, after the most reasonable offers on the Respondent’s part have been rejected, and when nothing has been omitted that could harrass and d istress his friends, he cannot now be bound by those offers which were former- ly rejected; nor can Sir John A n struther and his friends, under pretext o f them, skreen themselves from the legal consequences o f their proceedings. From the preceding fair and full account o f fact s, the Respondent humbly apprehends, that he is well intitled to plead, both in point o f honour and in point o f law; 1 mo, That he entered into no such contract, compromise, or bargain, as could import an obligation upon him to pass from his complaint in this court against the Petitioner. And, 2do, That, supposing such an agreement to have been made, yet, as matters now stand, it could not be available to bar his proceeding in that Complaint. W ith regard to the first o f these points, he submits it to your Lordships, as clearly established by the facts above set forth. He is conscious to himself, that the passing from this complaint was no part o f the conditions of the compromise, nor under the view and intendment o f the contracting par- ties. He does not remember that he said any thing at the subsequent conversation which could import such an obliga- tion upon him: I f any words then dropt from him, expres- siv e five o f an acquiescence under what he was told would be the necessary and legal consequence o f his having with- drawn his Petition to the House, his memory does not recall them; but, in such a situation, he apprehends nothing said by him could imply a contract, or obligation, to discharge his Complaint, founded on a wrong o f which he always had, and still has, the highest resentment. He had nothing then in view but submission to the law, and when he found it stood otherwise than had been represented, he was under no restraint, express or implied, from insisting in the prosecution of his ju st right. And, 2do, As the Respondent is satisfied o f his having come under no engagement to desist, so he can with the more freedom and satisfaction contend, That, supposing such a compromise or agreement were proved to have been made, as the Petitioner alleges, yet, in point o f law, it could not, as matters now stand, be binding upon him, so as to bar his in sist in g in his Complaint. F or, as already observed, Mr. Chrystie was no party to this compromise; the only person the Respondent treated with was a Noble Personage, through the medium o f his friend; and the agreement that was made, must be explained by the meaning and understanding o f the parties contractors. The desire of getting free of the trouble and expence o f multifa- rious litigation, was sufficient to induce the Respondent to consent, that all law-proceedings relative to the district o f bo- roughs, for which he stood candidate, should be quashed; but he neither meant nor understood that a part should be quashed, and a part go on. In like manner, that Noble Person, with whom he treated, did understand, that i f one action in law, which had been the consequence o f the poli- tical operations in these boroughs, should be quashed, all should be departed from. Thus, i f the present Complaint was to be dropt, the whole Complaints relative to the Mi- chaelmas elections in these boroughs, in the year 1765, were to be departed from: But it consists with the knowledge o f your Lordships, that no such thing has been done. The complaints relative, to the election o f the boroughs o f Kil- renny, renny, W ester-Anstru ther and Pittenweem, have not been- d rop t; on the contrary, much expensive and. vexatious liti- gation, relative to the election of those boroughs at Michael- mas 1765, has occurred since that time; very voluminous proofs have been taken, which w ill soon be under the con- sideration o f the Court. In these circumstances, the Re- spondent cannot be bound to depart from his complaint a- gainst the Petitioner; for the only presta tion, in the view o f which he ever could have been prevailed upon to think o f agreeing to drop that Complaint, and which was understood, to be the equivalent he was to receive in case he did so, has not been performed. His friends have been persecuted with the same zeal and activity as formerly. There is therefore no ground for ins is tin g, that he should depart from this Com- plaint on account o f a compromise, since it is clear the terms o f that compromise, such as they were understood to be by the parties contractors, have not been implemented to him; nor, as matters now stand, is it possible to implement them, after all the trouble and expence that have been incurred by his friends. The Respondent thinks it improper to consume more o f your Lordships tim e, in arguing a point that seems so clear and indisputable. He submits it to your Lordships, that, up- on a complex view o f the whole circumstances o f the case, instead o f being any ways limited or restra ined from prose- cuting this Com plain t, he stands fully ju stified in the eye of Reason, as well as Law, lor in si st in g upon it. A t the same time he would be sorry if any one could entertain a thought, that the recovery o f the penalty which the sta tu te imposes, could be alone such an object as would induce him to pro- ceed: Such a sum, when recovered, wil l be but a slender compensation for the great injury he has susta in ed. But his views go beyond any pecuniary consideration, and tend to correct and prevent, in time coming, so daring a violation o f the laws o f his country, and so dangerous an invasion on its happy constitu tion. In respect whereof, & c. D A V. R A E. R O B E R T A L E X A N D E R 4 q q E T. s 2; N U M B E R I. Copy Letter, wrote by Mr. Alexander, to Sir Alexander Gilmour. S ir ' London, June 1 8. 1 7 6 6 By yesterday’s letters from Edinburgh, I am advised that Sir John A n stru ther's lawyers have asked ten days to consult his friends here, with respect to the law-suits depending be- tw ixt his friends and mine. As he could not be ignorant o f Lord R.’s intentions on that head, before he left London, I was surprised to learn he had not dropt these suits before this time, especially as the little success he has hitherto had might have convinced him it was prudent to do so, independently o f the regard he owes to Lord R.’s sentiments. Should he nevertheless st i l l think fit to insi st in these actions, it is pro- per it should be understood, that I shall think myse lf at full liberty to employ the utmost rigour o f the law against all such o f his friends as have given me any advantage over them, not excepting Chrystie; since, being under no obliga- tions to Sir John A n struther, I am determined, however averse to litigations, to spare nothing to do justice to my friends, and to resent the injurious treatment they may meet with from others. I thought it reasonable to inform you o f this my resolution, to prevent mistakes, leaving you to make what use o f the information you think proper. I am, & c. (s igned) R. A lexander. NUMBER T I 6 J E S ii; A n swer, Sir Alexander Gilmour, to Mr. Alexander. S i r, A r g y l e- B u i l d i n g s, J u n e 1 9. 1 7 6 6. L a s t n i g h t I h a d t h e f a v o u r o f y o u r l e t t e r, r e l a t i v e t o t h e s u i t s d e p e n d i n g i n t h e C o u r t S e s s i o n, b e t w e e n y o u r f r i e n d s i n t h e F i f e b o r o u g h s a n d S i r J o h n A N s t r u t h e r ' s. I t i s v e r y t r u e, t h a t n b e t h e p o s t o n M o n d a y, I h a d l e t t e r s f r o m h i m, i n f o r m i n g m e t h a t t h e p r o s e c u t i o n s w e r e, b y m u- t u a l c o n s e n t o f y o u r a g e n t s a n d h i s, s t o p r f o r t e n o r t w e l v e d a y s, t i l l i n f o r m a t i o n c o u l d b e h a d f r o m h e n c e, w h e t h e r i t h a d n o t b e e n a g r e e d u p o n a t t h e m e e t i n g, w h e n y o u a g r e e d t o w i t h d r a w y o u r P e t i t i o n, t h a t t h e p r o s e c u t i o n a g a i n s t C h r y s t i e, t h e r e t u r n i n g- o f f i c e r, s h o u l d l i k e w i s e b e w i t h- d r a w n; w h i c h I d o e x t r e m e l y w e l l r e m e m b e r y o u d i d t h e n a g r e e t o; n o r d i d o n e s i n g l e s y l l a b l e a t t h a t t i m e p a s s, r e- s p e c t i n g t h e o t h e r s u i t s b e f o r e t h e C o u r t o f S e s s i o n. I n a n- s w e r t o Sir John'slet,Iavmdcpyfwgk bM.Wuti;r selfIcoyahnt.AqiR',dxrlwkusepig btSJcolamy;vrfh,iIntl.Aduske Jr,woacgtypi f.IhS,Ysbenlv GmurN. A;dtMxWao,ILR' liwhsPe.ptfr-ny, nity, bring him into parliament, without any condition whatever. Upon this he asked, whether I left him at liberty? I told him, he was at liberty to follow his own inclinations. It is understood, that the complaint against Chryst ie is not to be prosecuted. t osnTE.d a m; F E.. E S J I ST; N U M B E R IV. Answer to Sir Alexander Gilmour's Letter, returned by the Servant who brought the Letter. S i r, London, June 19. 1766. I am ju st now honoured with your letter o f this date, co- vering copy o f a paper said to be written by Mr. W edder- burn, concerning what passed at the meeting, where I a- greed to withdraw my Petition against Sir John A n st ru th e r; for which I thank you, since it is the first copy I ever saw o f this paper, and that only part o f it was read in my hear- ing at that meeting. Mr. Wedderburn, I remember, seemed very desirous that Chryst ie should be given up; but I am by no means sa- isfied with his reasons: And, as I entered into no treaty with Sir John A n stru ther, and that I agreed to withdraw my Pe- tition against him at Lord R. ’s desire, through the mediation o f Mr. Walpole; so long as they are satisfied with my con- duct, I think m yse lf answerable to no body else; nor do I see any cause for complimenting Mr. Chryst ie with 500 l. which, I am advised, I have a title to recover from him, un- less this sacrifice were to be a consequence o f a general de- parture o f all law-proceedings on both sides; which, for peace sake, and for no other reason, I should have been well pleased had taken place. My Lord R. has expressed himse lf very clearly on this head, and Sir John knows best what regard he owes to his Lordship ’s sentiments; but, for my part, i f he thinks it for his his interest to go on with these actions, I am satisfied. But I thought it fair to caution him, and his friends, o f what they were to expect; being resolved to spare nothing to do ju stic e to those that have stood so st eadily by me. I am & c. t osnTE.d f; a mE24T. E S; N U M B E R V. Copy of a paper handed about by Mr. Chryst i e, and Sir Joh n Anst r u t h e r 's friends, as from Mr. W edderburn, annexed to the note concerning the Compromise. The copy o f the note is exact: I have found the original, which I wrote upon a piece o f loose paper in the committee- room, and shewed at the time to Mr. A lexander and Mr. Walpole. T he intention o f my writing the first part o f it was merely to mark that situation in which I stood, and th e part I had in the transact io n. The occasion o f adding the sentence about Chrystie, which did not so immediately concern me, was this: — After Sir Alexander Gilmour, Mr. Alexander, Mr. Walpole, and myself, had left the commit- tee-room, in which the proposal had been accepted by Mr. Alexander, and had come into the outer room, in which, there were a good many other people; some conversation arose about Chryst ie, at the first part o f which I was not pre- sent, being engaged in conversation at the other end o f the room, Sir Alexander Gilmour, (if I remember right), asked me, whether I did not understand, that, as the Petition was to be withdrawn, the Complaint was not to be prosecuted? I answered, that I thought the one fo much a consequence o f the other, that, in my judgment, it would afford a legal ob- jection to the Complaint: And I did not see how any Court could ouffer Mr. Alexander, who, by withdrawing the Peti- tion, admitted the return to be a good one, to prosecute for a false return. Mr. Alexander then said he was satisfied it was right, and Sir Alexander Gilmour then desired I would add that circumstance to the paper I had in my hand, which I did immediately. Lincoln's-Inn, May At (signed) A l. Wedderburn. 1766.