Ramsay — Petition, 14 Jul 1766

July 14. 1766.0. Unto the Right Honourable the Lords of Council and Session, T H E P E T I T I O N O F THEHa n d o t d h e r s, aHC u c i t l s e and others, Councilors and Burgesses o f the Burgh o f P ittenweem, Humbly S heweth, T HAT your petitioners, in the beginning o f last session,. presented a complaint to your Lordships, setting furth, That the election of magistrates and counsellors, made at Michaelmas last, in the burrow of Pittenweem, had been brought about by the most gross acts of bribery and corrup­ tion, practised on the part of Mr Alexander, one of the candi- dates in the late disputed election, and his adherents: And there­ fore, praying, that the Court would reduce and set aside the same. The respondents, unwilling to enter into a proof of the fact, which they were conscious could be clearly proved against them, at first proponed a dillatory defence, which, however, was re­ pelled by your Lordships justice; and answers being given in causa to the complaint, your Lordships, by your interlocutor of this date, “ Allowed the complainers a proof of the facts set" forth forth in the petition and complaint,, and of all facts and cir- cumstances relative thereto, and allowed the respondents a conjunct probation thereanent; as also, allowed the respon- dents a proof of the facts contained in their answers, and of all facts and circumstances relative thereto, and the complainers a conjunct probation thereanent, and granted commission,, & c." Your petitioners extracted an ac t and commision, and were proceeding to cite witnesses for proving their complaint, when the respondents served them with a writ of appeal. Your Lord- ships judgment was affirmed with L. 1 oo costs. Your Lordships, of this date, upon an application from the petitioners, renewed the commission formerly granted to both parties, till the 5th day of July instant.. Your petitioners immediately extracted the act and commis­ sion, and having, without loss of time, cited their witnesses, had proceeded in taking the proof, with all the diligence and activity in their power, and had at last very nearly brought the same to a close on their part, in spite of all the dilatory artifices made use of on the part of the respondents in order to gain tim e: And to prevent this cause from being determined before ano­ ther Michaelmas election should interveen the respondents, of this date, presented a petition to your Lordships praying to have the term for proving, prorogated to the 12th of November next. And, on the other hand, your petitioners having, by petition of the same date, prayed, that your Lordships would only proro­ gate the term for proving, for a week longer, so that the cause might be advised this session, your Lordships, of this date, were pleased to pronounce the following interlocutor: “ The Lords having heard these petitions, they renew their former act and commission for taking the proof thereby allowed, both at E- dinburgh and London, and prorogate the term for reporting thereof till the 12th of November, and grant diligence against witnesses and havers.” Although from this interlocutor, an essential prejudice does arise to the petitioners, yet they have chosen to acquiesce therein, rather rather than trouble or hurry the Court beyond what their time and the variety of other business will admit of. There seems, however, to be some mistake in wording the interlocutor. The petitioners must therefore submit the same to your Lordships review, and humbly pray for a rectification there- of. Your Lordships will be informed, that, in virtue of the act and commisio n and diligences formerly granted, both parties had cited all the witnesses whom they had thought necessary to be adduced on either side; and neither party, in these last mention­ ed applications to your Lordships for a prorogation, expressed any desire or intention to have any other witnesses cited in this cause. And particularly, with regard to the respondents, it seemed to be very unnecessary to think of adding to their list of witnesses, as it contains above ninety, who are already cited for them. The petitioners, therefore, humbly apprehend, as nei­ ther party were demanding liberty to cite more witnesses, not was any cause shown why their number, already too g reat, should be increased, that it was not your Lordships intention, in renewing the act and commission, that either of the parties should be allowed to cite new witnesses not contained in the executions al­ ready given in. The petitioners presume, that all that was intended by your Lordships was, to give new authority, and full time for finishing the examination of the witnesses already cited. As the interlocutor however stands conceived, there seems to be given to either party a new and unlimited power to cite as many more witnesses as they shall chuse; and the petitioners have good reason to believe, that the respondents are resolved to make use of the handle thereby given them, and are disposed to swell their list of witnesses beyond all due bounds, in order to give as much trouble, and protract time as much as possible. The petitioners, on the other hand, are not desirous of following this method: They have alrea­ dy examined all the witnesses formerly cited, whom they think necessary, excepting a very few, not above eight or ten in number. The intention of the respondents in this conduct must be obvious to your Lordships. They have lyen by by till the petitioners have almost finished their proof; and have hitherto examined only about a dozen of witnesses on their part. They have now prevailed so far as to get a whole vacation before them, during which they may take full scope, and adduce witnesses without end. They have seen the point, which the clear proof, on the part of the petitioners, tends to establish, and will now have a full opportunity, as this inter­ locutor stands, to try to redargue the same by such new wit­ nesses as they may think proper, without being confined to those contained in their original list, upon which the par­ ties joined issue at the commencement of the proof. The dan­ ger and impropriety of allowing such a liberty to the respon- dents, and the disadvantage which may thereby arise to the pe- tioners, must be apparent to your Lordships. It is unnecessary to consume your Lordships time with arguments to illustrate this point. What is here complained of, is clearly against the esta- blished form of procedure, and, in every view, highly inexpedient. The petitioners humbly apprehend, that the interlocutor granting the prorogation should have been conceived in the fol­ lowing terms: “ Renewing the former act and commission for examining the witnesses already cited for both parties, and prorogating the term for reporting till the 12th of Novem- ber. " T here was no occasion for adding these words, “ grant diligence against witnesses and havers because the witnesses, who only ought to be examined, were cited on the former dili­ gence, and, in virtue thereof, can be examined under the new commission; and if second diligence is necessary, application must be made for the same to the Court, or your Lordships may now, in rectifying this interlocutor, grant warrant for second diligence against such witnesses as may fail to appear upon the first. The petitioners must next take the liberty of stating to your Lordships some things which have occurred in the course of this proof, about which it has become necessary to have the direc­ tions of the Court. The respondents, among other devices, had fallen on a most ingenious method to lengthen out the proof, and protract the time: But to which, it is humbly thought, your Lordships will not be inclined to give any encouragement. The The witnesses who have been examined on the part o f the peti­ tioners, are people of good character, and, so far as is known to the petitioners, unexceptionable in every respect; and no objection whatever has hitherto been sustained, or indeed proposed to any of them. The presumption of reason and of law is in favour of their veracity: And if your Lordships, on reading through the proof, shall find that, almost in every particular, they concur and sup- port one another, it will add weight to their testimonies; and your Lordships will be far from supposing, that they have con­ certed to swear falsely, or that they are guilty of perjury. From the conduct of the respondents, however, this last seems to be the notion which they affect to entertain of them. For your Lordships will be informed, that they have thought proper to enter a protest, for reprobator, against almost every witness who has hitherto been adduced by the petitioners; and this, al­ though they do not so much as pretend to know, or to specify any fact or circumstance on which to ground this injurious opi­ nion or suspicion, the keenness and animosity with which con- tests of this sort are sometimes carried on, can never justify the groundless imputation, which is thus wantonly endeavoured to be thrown upon the characters of so many reputable witnesses. The law has, for good reasons, allowed a party, who has good ground to suspect the inhability or partiality of a witness addu­ ced against him, but which he cannot instantly prove, to enter his protest, that he shall afterwards be allowed to reprobate the testimony of such witness but it is a thing unheard of in prac­ tice, and which cannot fail to have a strange and indecent ap­ pearance, that this protest for reprobator, which is a sort of accu- sation of perjury, should be offered as a thing of course against 20 witnesses in one cause, without the least pretence of information or knowledge how this calumnious charge is to be made out: The Petitioners submits it to your Lordships, that this is a mat­ ter too serious to be idly sported with. But what the petitioners mean chiefly to complain of, and at present to submit to your Lordships consideration is, the method which the respondents point at in bringing this proof of the re- probators, which they have protested for. They They have insisted, that they shall be allowed to intermix this proof with the proof in the principal cause, and without any, warrant from your Lordships, or the least appearance of regular process or authority, without any previous notice to the com- plainers, or the witness whose testimony is meant to be reproba­ ted; and without any condescendence of facts which they offer to prove, that they shall be allowed, in a summary manner, to adduce such witnesses as they please, in order to prove their re- probators. One strong instance has already occurred, and several attempts of the like kind have since been made. Ann Thomson, daughter to one of the respondents, was adduced for the complainers, and has deponed to what she heard pass in conversation betwixt her father and Bailie Martin, the person who made the bargain with Mr Alexander. The respondent’s agent protested for reprobator against her, and, in the initials of her oath, specially interrogated her as to a great many particulars; amongst others, Whether she bore, or ever threatened malice against the respondents? to all which, she deponed negative. A few days after she had deponed, and was returned home, the respondents adduced one Margaret Ounston, a low woman, and, without any previous notice, offer­ ed to prove by her, expressions of malice alledged to have been uttered by the said Ann Thomson, against some of the respon­ dents, in an idle conversation, which she and another woman were alledged to have had with Ann Thomson upon the street of Pittenweem, and proceeded to examine her thereon, before the agent for the petitioners had time to consider of, or to form the proper objections against this irregular procedure. So soon as her examination was over, and the purport thereof discovered, an objection was immediately entered on the part of the petition­ ers, against her oath being admitted as part of the proof, and against receiving any other witnesses, for the same purpose of re­ probating the testimony of preceeding witnesses, in that unusual short-hand manner. The respondents, however, insi sted to go on in their own way, and actually obtained, for the same end, the examination of ano- ther witness, one Christian Thomson the wife of a fisherman, who is niece to one of the respondents, and on that account, a witness totally totally incompetent to be adduced for them, although this last circumstance was not at that time known to the petitioners. If the respondents shall be allowed to proceed in this way, it is impossible to say where, or when, the proof in this case is to end: Two or three witnesses may be adduced under pretence of repro­ bating the testimonies of every former witness; no matter whe­ ther they prove any thing or not, their examinations, industri- ously lengthened out, will always take up so much time, and serve at least to create unnecessary trouble and perplexity to the petitioners, and the witnesses who have been examined on their part., But delay or trouble is not the only hardship which may thus be put upon the complainers. A more material injustice may be done to them, and to the witnesses who have been examined for them, by this method of conducting the proof on the part of the respondents. It will readily occur to your Lordships, that this summary and incidental method of insisting in an action of reprobator, or ra­ ther of adducing the proof therein, without any action being brought, or proper authority for that purpose, is a thing utterly unknown in practice, and extremely improper to be allowed.. The law has required a regular course to be followed in cases of this kind, and has established the action of reprobator, which, like every other action has its fixed forms and rules of procedure, and which are treated of at length by all our lawyers. The interest. of the party for whom a witness has been adduced, but above all, the character and safety of the witness himself, are so deeply con­ cerned in an attempt to reprobate his testimony, and thereby convict him of perjury, that it was just and necessarv that this matter should be gone about with some degree of formality and precision. Thus, because the conclusion of the action imports perjury, the concurrence of his Majesty 's Advocate is held to be necessary; and, for the same reason, the witness himself must be made a party to it, and he is intitled to demand that a conde- scendence of the facts offered to be proved, should previously be given in, in order that he may come prepared for his defence; and, on this account, and because the reprobation of witnesses is recko­ ned calumnious, as the presumption is in favour of their veracity, • the the law has required that the reprobatory witnesses should "be persons above all exception; and the Court, in some cafes, has or­ dained the pursuer to consign a sum of money to be given up to the defender in case the action is found to have been calumnious. These things are clearly laid down in our law-books, and esta- blished by repeated decisions of your Lordships, December 13th 1637, Robertson. Stair, 9th November 1676, Paterson. And 18th January 1678, Irving. But your Lordships will observe, that, in the present case, not one o f these requisites have been complied with, The proof of­ fered by the respondents, to show that the witnesses adduced on the part of the complainers, have been guilty of perjury' in the initials of their testimonies, has been brought incidentally into the proof in the principal cause, without so much as an applica­ tion to the Court, or authority from your Lordships for citing witnesses for that purpose. There is no concurrence of his Ma- jesty ’s Advocate; the preceeding witnesses have not been made parties to this proof, the issue of which may affect them so deep­ ly; nor were they so much as called to be present at the examina­ tion of the witnesses adduced against them; no condescendence of facts offered to be proved was previously given in, and the re­ probatory witnesses in the above case of Ann Thomson, are far from being persons above all exception, being in fact two wo­ men from among the very lowest of the people, and one of them niece to one of the defenders; and therefore, a most incompetent witness to be adduced on their part. This proof, indeed, in the petitioner’s humble apprehension, appears altogether absurd and incompetent, in the manner in which it is offered. Your Lordships interlocutor above recited, allows to both parties a conjunct probation of the facts set forth in the complaint and answers, and of all facts and circumstances relative thereto. The parties, therefore, are necessarily confined to the facts therein set forth, and neither of them can be obliged to go to proof as to any extraneous facts not contained in the complaint or answers. In the warrant of citation also, and in the very citation itself, the witness is warned to appear, and give evi­ dence as to these facts, and as to these only. It seems utterly in­ congruous, therefore, that a witness cited in this manner, and for that that purpose, should yet be examined upon an alledged extrane- nous fact, which is not mentioned in the complaint or answers, and which has no sort of relation to any thing therein contained. Whether a particular witness examined in this cause, may have expressed some resentment against one or other of the respondents, in a loose conversation, has surely no manner of concern with the point in issue in this case, Whether the Michaelmass election at Pittenweem was brought about by the means of bribery and corruption? The petitioners would further humbly submit it to your Lordships, that as the declared intention of the proof offered, is totally to re­ probate the testimony of a former witness against whom no le­ gal objection was made, or does lye; and as the witness did upon oath, without the least hesitation, purge herself of malice against the respondents, that this is sufficient to remove all suspicion of enmity; and that it is not relevant in this manner to attempt to set aside her testimony, on account of an angry loose expression, thrown out in an idle unmeaning discourse. Even supposin g such expression to have been stronger than is alledged in the present case, it will never follow that an angry or passionate expresion, however vehement, will afford a proof of mortal enmity, rooted in the heart, such as will produce wilful perjury in giving evi­ dence. Men, as well as women, but especially women of the lower rank, are apt, upon many occasions, to give a loose to their tongues in violent expressions, which will by no means dis- qualify them for ever after to give evidence against a party who was, on those former occasions, the object of their seeming displea- sure. Such inconclusive evidence of enmity, without any visi- ble or real cause, is sufficiently removed by purging the witness of malice, which is an affection or disposition of the witness’s own mind, and can only with certainty be known to herself. She has disclaimed it when under a solemn oath; and it is impossible for any two or more witnesses to prove her perjured in that ar­ ticle, because it is what she must know better than all the world besides. In the nature of the thing therefore, this preliminary part of the witness’s deposition is incapable of a reprobator, be- cause there are no termini habiles for disproving it; nor is it pos- sible that a witness can be convicted of corruption, in denying, upon upon oath, malice or ill-will in her own heart, when, in the nature of things, no witness who can be adduced against her, can prove the contrary. And agreeably to what is here pleaded, your Lordships decided in a case collected by Falconer, 22d Novem­ ber 175 1, Ramsay contra Ramsay; where, notwithstanding a con- descendence was given in, and offered to be proved by a cloud of unexceptionable witnesses, of a continued course of the most violent expressions of ill-will and imprecations against: one of the parties; yet, in regard the witness had purged herself of malice, upon oath, your Lordships repelled the reprobator which was offered. Upon these, and other grounds, which will readily occur to your Lordships, the petitioners flatter themselves that you will have no difficulty in finding, that the proof of reprobator here offered is irrelevant and incompetent to be proceeded in in the manner here attempted; and that therefore your Lordships will ordain the two depositions above recited, and such other parts of the proof adduced by the respondents as have been objected to on the same ground, and are liable to the same objections, to be expunged out of the proof; leaving it to the respondents to ap­ ply to your Lordships, without delay, in the regular form, as was done in the above case, Ramsay contra Ramsay, for a warrant to cite witnesses in their reprobator, after giving in a condescen- dence of the facts they offer to prove; and, as justice requires, allowing the party, and witnesses interested, an opportunity of coming prepared, and being heard in their defence. Another incident occurred in the course of this proof, which the petitioners shall state to your Lordships in a very few words, and which will serve as a specimen to show your Lordships what liberties the respondents take with the witnesses adduced on their part. The Reverend Mr John Cheesely, minister of the gospel at St Monance, was offered as an evidence on the part of the respon­ dents. It was known that he had been an active and zealous friend of Mr Alexander’s: And it having been observed, for two or three days previous to his appearing in the character of a wit­ ness, that a paper of his hand-writing was very much used by the respondents, in making objections to some witnesses, and form- ' ing ing queries to others: This led the managers for the petitioners to ask him some questions, with regard to the part he had taken in this affair, and How far he had not been employed in searching for evidences, and otherways in giving partial counsel to the re- spondents, so as to make it improper for him to be a witness in the cause? In answer to these questions, Mr Cheisely was obliged to admit his having given partial counsel, in a manner as strong as can well occur. After having deponed to some special inter­ rogatories, he was called upon to look at the papers upon the table, and to say, if there was not there lying a paper of his hand-writing, from which the defenders lawyers had put the in­ terrogatories to himself, and to other witnesses. He accordingly pointed out the paper upon the table, which he acknowledged to be of his hand-writing, and that he had given it by way of information to Mr Alexander: But, as the whole questions put to him in the initials of his oath, and the answers made thereto, are of a very curious nature, the whole shall be transcribed and submitted to your Lordships consideration: “ Being interrogate for the complainers, If or not he has given advice to Mr Alex­ ander or the agent, or any other employed by Mr Alexander in this cause, with regard to conducting the evidence as to what facts could be proved, or by what witnesses? depones, That he has said to Mr Alexander himself, or some of his friends, That he heard such and such representations of and such and such facts, and that he believed such and such witnesses would be proper to be called in the case, to prove or disprove. Being interrogate, When he came last to town, and, Whether since that time he has suggested any questions to be put to the witnesses in this cause, or any facts to be proved, or any persons to be adduced? depones, That as he thinks, that, as he mentioned, or may have mention­ ed, such and such witnesses to prove or disprove such and such facts or representations, he may also have hinted at the parti­ cular way of proving or disproving these, and believes he may have done so since he came to town, which was on Monday last. Depones, That he did in writing suggest, since he came- to town, both facts and the names of witnesses and which writing he gave in to Mr Alexander, as he thinks, at least, Mr- Alexander Alexander was in the room when he gave it. Depones That Mr Alexander did mention to him, that if he knew of any thing that could be of service in this affair, he would take it kind and friendly if he would suggest it. Depones, That since he came to town, he has suggested objections which he thought might be made against some of the witnesses in this cause De­ pones,-That he was not cited till last night about seven o’clock: ’ That he did not know that he was to be cited till he came to town and that he came to town to bring home his wife who had been left here indisposed. Depones, He has informed Mr Alexander, that he knew of facts that might be material in this cause, and informed him so both by writ and word of mouth; but that this was before he was summoned, or knew that he was to be summoned in the cause; and that after he had so in­ formed Mr Alexander by word of mouth, he desired the de­ ponent might put it in writing for the sake of his, Mr Alexan- der’s, memory. And depones, That he mentioned no facts to B a Alexander, or any other person employed by him since he was cited.” From these facts, which with some difficulty, were drawn from Mr Cheise ly it occured to the petitioners, that a legal objection arose against his being admitted as an evidence for the respondents on account of his having given partial counsel, and indeed acted directly as an agent in their service. An objection was accordingly stated to that purpose; and an answer having been made on the part of the respondents, Mr Alexander Ross one of the depute clerks of session, who happened then to be Com- missioner, allowed the witness to he examined, reserving the consideration of the objection to the Lords at advising." This judgment of the Commisioner s the petitioners beg leave to bring under your Lordshi p s review; and humbly submit it whether a stronger case can occur of partial counsel on the part of a witness. It would be improper to take up your Lordships time in using arguments on this subject. The facts admitted by the witness speak for themselves; and will, it is humbly thought convince your Lordships, that he ought not to have been admit- ed as a Witness. Possibly the way in which some of the answers are given to the questions, which were put to the witness, may not not increase your Lordships opinion of his fitness to give impar' tial evidence in this cause. The petitioners are in no shape ap- prehensive, from the weight of any thing deposed to by B a Cheisely; for in reality he has said nothing that can hurt them But they are unwilling to allow any improper evidence to be laid before your Lordships, in a case of this nature; and are on- ly desirous that a check should be given by your Lordships ju- stice, to the irregularities in conducting the proof on the part of the respondents. May it therefore please your Lordships, 1mo, To review and alter your foresaid interlocutor of the 9th July current, so far at least as to vary the same to a simple renewal of the former act and comisn for examining the witnesses already cited for both parties, and to c prorogation of the term for reporting till the 12th of November, leaving out the other words of the interlocutor above complained of. 2do, To find that the proof reprobator, attempted on the part of the respondents, cannot be admitted incidentally as part of in the principal cause; but that the same must proceed in the regu-1 lar and established form above mentioned: And therefore, to ordain the depositions of the said Margaret Ounstoun andChristTom to be expunged from the proof; and to ordain such other depo- sitions, or parts of them, as are liable to, and have had the same objections made to them, to be expunged from the proof. And 3tio, To ordain the deposition of the said C h e i s e l y to be likeways expunged from the proof. According to justice, &c. G EO. C O K B U R N E. * Edinburgh, July 15. 1766, I James Hardie writer in Edin­ burgh, agent for the petitioners, did intimate to John Flock- hart writer there, agent for the defenders, "That this petition, was to be put into the Lords boxes this day in 0rder to be moved, to-morrow: This I did by delivering a printed copy of the said petition, with a short note of intimation subjoined thereto, inti­ mating, as above, to the said John Flockhart personally, betwixt the hours of ten and twelve forenoon, before these witnesses Ro- bert Methven and Robert Smith both writers in Edinburgh. J A M E S HARD I E,