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I
once was by Fortune carest,
I
once could relieve the distrest,
Now life's poor support, hardly carn'd,
My fate will scarce bestow:
And it's 0, fickle Fortune, O!
The Ruined Farmer
By the time the winter snows had thawed sufficiently for Robert to
retrace his steps from Irvine to Lochlie at the end of February or
beginning of March 1782 'the clouds of misfortune' were indeed gathering
thick and fast round his father's head. There is no doubt that the soil at
Lochlie was acidic, probably more than most at that time, for a programme
of liming to counteract this was clearly a major part of the verbal
agreement with David McClure. It is arguable how much improvement could
have been wrought, given the basic geological and pedological conditions,'
but from the outset McClure did not keep his side of the bargain. The
documentary evidence was not made public till very long after the event,
so that for well over a century this wretched business contained many
elements that were perplexing and confusing and tended to show William
Burnes in an uncharacteristically bad light. Neither Robert in his
autobiographical letter to Moore, nor Gilbert in his narrative supplied to
Currie via Mrs Dunlop, gave any details of this episode. Robert dismissed
the events leading up to the sequestration in half a sentence in which he
fancifully speaks of 'three years tossing and whirling in the vortex of
Litigation', while Gilbert merely spoke of 'my father's affairs grew near
a crisis'. The earliest account of this sorry affair was given by Dr John
Mackenzie of Mauchline who said that he had attended William Burnes at
Lochlie towards the end of his life and from him received 'a detail of the
various causes that had gradually led to the embarrassment of his affairs;
these he detailed in such earnest language, and in so simple, candid, and
pathetic a manner as to excite both my astonishment and sympathy'.
Mention has already been made of Alexander 'Saunders' Tait, the
Tarbolton doggerel-monger. There is no denying that Tait's poetry was very
poor stuff, but no better nor worse than the products of other parish and
village rhymers of the period. His reputation has suffered, however,
solely because he vented his spite against the Burnes family; but he
deserves to be charitably remembered for the light he sheds (rightly or
wrongly) on the dispute between Burnes and his landlord. Though originally
an incomer himself, he had become sufficiently well established in the
parish by 1777 to join in on one side of the 'us and them' assessment of
the latest arrivals. It would have been well known that Burnes had had
troubles with the factor of Dr Fergusson's estate and therefore the
newcomers would be treated with caution. The country parish has always a
large measure of caution in its reception of the stranger. The process of
ticketing, docketing, weighing up the incomer is an endless pursuit and
woe betide the stranger who does not wait for this assessment and launches
forthwith into local affairs. One can almost imagine the attitudes of many
parishioners: on the one hand, a family whose presence only arose from
their financial difficulties elsewhere; on the other, here is an
argumentative youth rapidly gaining a reputation for his quick wit and
ready satire. Instead of keeping a low profile, he flouts convention in
dress and hairstyle. He is hardly here five minutes before he is
organising a young men's debating society. A country parish will
inevitably look askance at this, and herein lies the key to Tait's
scurrilous verses.
No doubt Tait's nose was put out of joint by the appearance in the
parish of another rhymer to challenge his position as the village bard. At
some stage he was a victim of Robert's mordant wit and took his revenge in
a poem entitled 'Burns in his Infancy' which was published in his Poems
and Songs at Paisley in 1790. The clue to Tait's animus is provided in the
opening stanza which begins 'Now I maun trace his pedigree. Because he
made a sang on me'. This was followed by a poem entitled 'Burns in Lochly'
which, in seven stanzas of Standard Habbie, provides a pithy commentary on
the dispute between the Burnes family and their landlord. A few lines from
this will suffice to give both the quality of the verse and the salient
facts as Tait saw them:
Man! I'm no
speakin' out o' spite,
Else Patie wad
upo' me flyte,
McClure ye
scarcely left a mite
To fill his
horn,
You and the
Lawyers gi'ed him a skyte,
Sold a' his
corn.
McClure he put
you in a farm,
And coft you
coals your arse to warm,
And meal and
maut - Ye did get barm,
And then it
wrought,
For his
destruction and his harm,
It is my
thought.
He likewise did the mailing
stock,
And built you
barns, the doors did lock,
His ain gun ye
did at him cock,
And never spar'd,
Wi't owre his
head came a clean knock,
Maist kill'd the
Laird.
The horse, corn,
pets, kail, kye and lures,
Cheese, pease,
beans, rye, wool, house and flours, Pots, pans, crans, tongs, brace-spits
and skeurs,
The milk and
barm,
Each thing they
had was a' McClure's, He stock'd the farm.
'Patie' in the first stanza was the Rev. Patrick Wodrow. Elsewhere
occurs the line 'Five hundred pounds they were behind', is obvious
reference to the arrears accumulated by William Burnes. The silence of
Robert on the matter in his otherwise frank and candid letter to Moore was
taken as proof that the Burnes family were in the wrong. This was the view
expressed by W. E. Henley' and others, and although it has since been
refuted the notion lingers to this day that McClure was hard done by. The
Henley-Henderson edition of 1896 was already in the press when the
Centenary Exhibition was held in Glasgow. Among the exhibits on display
were several documents bearing on the Lochlie sequestration, lent by a
descendant of Gilbert Burns. These were first published (though
inaccurately) in 1904 by David Lowe and reprinted in the Burns Chronicle
six years later.
The first document consisted of the service copy of the Petition by
David McClure, merchant in Ayr against William Burns in Lochill (sic),
part of the barony of Halfmark in the parish of Tarbolton, at the rent of
£130 Sterling yearly by Set from the Petitioner, alleging that William
Burns owed him upwards of £500, besides the current year's rent, wherefore
warrant of sequestration was asked for and interim warrant granted on 17
May 1783, the date of the service. To this were appended Replies for David
McClure to the Answers of William Burns. From McClure's petition it is
known that the dispute between landlord and tenant regarding the rent due
for Lochlie had been 'submitted to arbiters and then laid before Mr
Hamilton of Sundrum as Oversman'; but Hamilton's award was not included in
the bundle, so that only McClure's side of the dispute was available. By
inference, however, it was clear that William Burnes denied that he was
owing over £500 as McClure alleged.
In the meantime William Burnes had to suffer the trauma of having his
goods and chattels pried over by the Sheriff's officer and his men, and
the intense humiliation of hearing the Tarbolton town-crier going through
the parish at tuck of drum warning everyone against buying any of the
sequestrated property. Saunders Tait put it pithily in his poem, already
quoted:
He sent the drum
Tarbolton through
That no man was
to buy frae you;
At the Kirk door
he cry'd it too;
I heard the
yell;
The vera thing I
write 'tis true,
Ye'fl ken yersel.
Hamilton's Decreet Arbitral, which all along had lain undisturbed in
the Sheriff Court books of Ayrshire under date 18 August 1783, was not
turned up by researchers until 1934 and was subsequently transcribed in
full.' From the various documents it is therefore possible to piece
together an accurate account of the dispute. David McClure of Shawwood
came of a line of minor landowners and merchants who, earlier in the
century, had prospered; but he was among those who had lost heavily in the
crash of the ill-fated Douglas, Heron and Company Bank in 1772. Although
he managed for some time to extricate himself from that debacle, unlike
many others who were bankrupted and ruined immediately, McClure was in no
position to adopt an indulgent attitude towards his tenants, as the late
Dr Fergusson of Doonholm had done. McClure's petition alleged that William
'having upon frivolous Pretences refused payment of the rent, his claims
of Retention came at last to be submitted to arbiters and then laid before
Mr Hamilton of Sundrum as oversman', but as there was no written 'Tacks or
minute of bargain' between them William Burnes was preparing to quit the
farm and sell his stock and crops 'to disappoint the petitioner of his
fund of payment'.
To pre-empt Burnes, therefore, McClure had applied for the warrant of
sequestration, and this was duly served on 17 May by the Sheriff's
officer, James Gordon, who promptly made an inventory of the farm in the
presence of Robert Doak (McClure's servant) and John Lees, a Tarbolton
shoemaker. In the Replies to the Answers submitted by William Burnes,
McClure denied that there was any missive of agreement as Burnes
apparently was alleging. He went on to state, however, that Burnes had
some time previously made out an account in his own handwriting, 'which he
called an account of Charge and Discharge betwixt him and the petitioner'.
McClure conceded that Burnes had ploughed and sown part of the land, 'but
whither so much as ought to have been done he cannot say'. He queried
William's account regarding the number of cattle he was raising, and
accused him of surreptitiously selling off part of his stock. In
particular, McClure contested William's claim to have paid up all arrears
of rent to Martinmas last (i.e. November 1782), as 'a mere allegation
without the smallest foundation'.
From this we glean that McClure claimed £500 of back rent, whereas
Burnes denied the charge and asked that the warrant of sequestration be
recalled. It was speculated that Robert held the pen for his ailing father
in framing his Replies, 'perhaps with the help of his legal friends in Ayr'
The Decree Arbitral gives the oversman's award first, followed by the
text of the Submission and the minutes of the arbiters. In the interests
of clarity, the following summary of the affair deals with the Submission
first. The arbiters were named as James Grieve in Boghead and Charles
Norval, gardener at Coilsfield, 'mutually elected and chosen by the said
parties' to the dispute. Grieve was a friend of McClure, while Burnes was
probably drawn to Norval by virtue of shared interests in gardening. The
text of this legal document was written by William Chalmer, a lawyer in
Ayr, and dated there on 24 September 1782. It was signed by McClure and
Burnes in the presence of Chalmer and John Simson.
The minutes of the arbiters were written by William Humphrey at
Tarbolton on various dates from 7 October 1782 onwards (the clerk being
brother of James Humphrey, of whom more anon). The first meeting was
brief, and was adjourned because it was 'the throng of Hervist' (the
busiest part of harvest-time). When they met again on 19 November they
decided that proof would be required of statements made by both parties,
and promptly adjourned till 4 December when the depositions of sundry
witnesses were considered. A date of 18 December was fixed for both
parties to lodge their claims. In due course this was followed by a
meeting on 26 December at which petitioner and respondent were to give in
their answers to each other's claims. The matter dragged on until 9 April
1783 when the arbiters concluded that they were unable to agree, and
therefore referred the matter to the umpire or oversman, John Hamilton.
Over the ensuing months Hamilton studied the dispute and gave his
decree on 18 August in the presence of William Wallace (the countv
sheriff) and James Neill and Robert Miller, solicitors in Ayr, who
appeared for McClure and Burnes. Hamilton found that, sometime in 1776,
bargains involving a thirty-eight-year lease had been struck on two
separate occasions 'in the presence of Dr John Campbell of Ayr (sic)'.
Under the first agreement Burnes was to take possession at Martinmas 1777
and the rental was to be fifteen shillings an acre for the first eight
years and twenty shillings for the remaining thirty years. Under a second
agreement, however, Burnes was to enter at Martinmas 1776 and pay twenty
shillings per acre from the outset. The farm was to be enclosed,
sub-divided and limed by McClure at the rate of 100 bolls of lime per
acre, 'and also the said William Burnes was to be allowed 12 tons of
limestone at Cairnhill lime quarry for each acre of said farm as a second
dressing, and one shilling per ton for coals to burn the same'. Such
precise terms reveal Burnes as a canny negotiator, but the fact that he
never had anything in writing tells against him. Moreover, the actual
rental of £130 was almost three times what had been expected at Mount
Oliphant, and Burnes must have been exceedingly rash (or recklessly
desperate) to take on such a commitment. Fowler speculates that McClure
evaded a written lease 'because he felt, or knew, that his title to the
land was far from clear', and, indeed, there is circumstantial evidence in
support of this interesting theory, discussed later.
Hamilton's decree mentions a verbal agreement between Burnes and
McClure whereby William undertook to pay rent on 'the miln dam' presumably
the lochan which gave the farm its name - as and when McClure got around
to draining this portion of the land. Furthermore, for agreeing to the
higher rental set out in the second bargain, William was 'to receive a
compensation' although what precisely this meant was not specified. David
Scott, accountant to the banking-house of Hunter and Company, (which was
in the course of salvaging the wreckage from the Douglas, Heron fiasco),
determined that the amount which Burnes was entitled to hold back in
respect of 'the advance rent' was £210 Is 6d. In addition to this sum,
Hamilton found that, because McClure had not kept his end of the agreement
regarding the liming of the ground, Burnes was entitled to an allowance
for the work which he had himself undertaken in this regard. 'I allow the
said William Burns to retain out of the rents of said farm the sum of £86
13s 4d Sterling as the value of 2600 bolls of lime at eight pence per boll
for liming said 26 acres' but as William had limed these acres out of 726
tons of limestone delivered to him, and coals at a shilling a ton, 'being
part of what has been furnished by the said David McClure for the second
dressing', Hamilton decreed that William would have to lay on a further
2,600 bolls of lime at his own expense by Lammas 1784 and produce vouchers
to support this. William was also entitled to £18 10s in respect of some
dykes which he had made. House-building and grass sowing of ten acres
undertaken by Burnes entitled him to a further rebate of £80 18s 6d. No
rent was chargeable for the mill dam, as it had not yet been drained. As a
result, the colossal sum of £775 (five and a half years' back rent) which
McClure had been claiming was reduced by the amount actually paid out by
Burnes on improvements, together with the aforementioned sums. The net
result, therefore, was that Burnes was deemed to be owing no more than
£231 2s 8d, which William was ordered to pay 'together with the interest
thereof from the said term of Whitsunday 1782 and in time coming until
payment'. An account of the sum awarded to McClure, less the credit
allowed to Burnes, was appended to the decree showing how the due amount
was reached.
The sum of £231 was a vast improvement over the £775 originally claimed
and William was anxious to settle the matter. But now another action was
raised, over which Burnes had no control but in which he was implicated.
It transpired that David McClure was in financial difficulties and had
mortgaged his estates to John McAdam of Craigengillan. The rents due on
these estates amounted to £8,000 and in pursuing this sum McAdam brought
legal action against all the debtor tenants, including William Burnes.
Within nine days of Hamilton's decree, Burnes took the case to the Court
of Session and applied for a suspension of the charge, but his appeal was
rejected on a technicality. From the text of William's petition for
suspension it appears that he continued to nurse a grievance against his
landlord who had acted 'under the pain of poinding and most wrongously and
unjustly' ' " Because of McAdam's intervention, however, Burnes felt that
he could not pay the sum he still owed, without McAdam's consent, 'And
therefore the foresaid Charge ought to be Simpliciter Suspended'. John
Swinton, clerk of the court, added that the Lord Ordinary had considered
this petition but it was refused because 'In respect the complainer has
not specially stated before what Court he is sued at Craigengillan's
instance nor has produced any evidence of such action, nor has raised any
multiplepoinding'.
McAdam was not McClure's only creditor who tried to get hold of the sum
awarded in Hamilton's decreet, and once more William Burnes was obliged to
take the matter to the Court of Session. On this occasion an action of
Multiplepoinding (a suit brought by the holder of money, goods and
chattels claimed by different parties) was raised at the instance of
William Burns, Tenant in Lochlie, against John McCulloch, Merchant in Ayr,
David Ewen, Merchant there, Jas. Hume, Writer there, Douglas, Heron & Co.,
late Bankers there, and George Home of Branxton, their factor and manager,
John Campbell of Wellwood, David McClure of Shawwood, and George McCree of
Pitcon, mentioning that where the pursuer is daily), charged, troubled,
molested and pursued by the persons before named, defenders, for payment
making to them of the rents due by the pursuer for the said farm of
Lochlie belonging in joint property to the said John Campbell, David
McClure and George McCree, most wrongously, considering that the pursuer
can only be liable in once and single payment of the rents of the said
farm and that to the person or persons who shall be found by the Lords of
Council and Session to have best right thereto, and therefore the said
John McCulloch, David Ewen and Jas. Hume, Douglas, Heron & Co. and their
said factor and manager, John Campbell, David McClure and George McCree,
ought and should exhibit and produce before the said Lords the several
rights and grounds of debt by which they claim right to the foresaid rents
and should discuss the same before the said Lords, to the end that the
party having the best right thereto may be preferred to the said rents
after deduction and allowance to the pursuer of the expense of this
process, and the remanent persons should be by Decreet foresaid discharged
from further molesting and pursuing the said pursuer thereafter in time
coming.'
All the defenders were cited personally or at their dwelling places
with the exception of George McCree who was cited 'by affixing and leaving
for him the like just copy of citation at and upon each of the Mercat
Cross of Edinburgh and the Pier and Shore of Leith, as being furth of
Scotland at the time'. William Burnes was represented by the advocate
Robert Blair who appeared also for Douglas, Heron and their factor, The
other defenders failed to appear. On behalf of the faded bank a number of
documents was produced to the court. The first of these was an Extract
Heritable Bond and Disposition of 2 August 1773 (registered in the Books
of Council and Session on 17 June 1779), by John Campbell, David McClure
and George McCree, whereby they disposed to trustees for the bank 'the
five merk land of Easter and Wester Douries and others', in security of
the principal sum of £8,600, and £1,720 of penalty and interest. This was
supported by an Extract Instrument of Sasine, recorded in the General
Register of Sasines at Edinburgh on 17 September 1773. An Extract Bond and
Assignation of 18 October 1774 (registered 7 March 1777) by Campbell,
McClure and McCree corroborated the sums of £8,600 and £1,720. The last
productions in this bundle were the Instrument of Intimation of the writs
before narrated by George flume to William Burnes, dated 18 September
1783, and a copy of the Decreet Arbitral by Hamilton of Sundrum showing
the balance due to McClure as £231 2s 8d.
The case ultimately came before Lord Braxfield, the Lord Ordinary, who
found 'that the sums in the hands of the raiser of the Multiplepoinding
amounted at Whitsunday 1782 to the foresaid sum of £231 2s 8d, besides the
sum of £130, both sterling, as another year's rent fallen due since, and
therefore preferred the said Messrs. Douglas, Heron & Co. to the foresaid
two sums, for payment to them pro tanto of the sums contained in their
interest produced'. The Lord Ordinary was that Robert Macqueen of
Braxfield in Lanarkshire (1722-99) who is nowadays remembered for the
savage sentences pronounced on the Friends of the People in the notorious
treason trials of 1793-4. William Burnes won his case, but at what a cost.
McClure's sequestration order was quashed but William's legal costs
exceeded the cash he could raise, while even the elements seemed to
conspire against him. The summer of 1782 had been the worst in recorded
memory, but the season of 1783 was almost as bad. All over Scotland crops
failed and the harvest was disastrous. As Robert said ruefully to Moore of
his father's experience, 'his all went among the -rapacious hell-hounds
that growl in the kennel of justice'. To crown all, the successful
litigant was now in the last throes of tuberculosis. Braxfield's decision
was no sooner handed down than William Burnes died on 13 February 1784.
Summarising this unfortunate episode, it can be seen that the
traditional views expressed by nineteenth and early twentieth-century
biographers, that the Burnes family tried to swindle their landlord, and
that William only escaped the horrors of jail by his untimely death, are
utterly unfounded." On the contrary, the foregoing documents show that
McClure claimed more than twice the rent to which he was entitled, and
also reneged on his original agreement in regard to the draining and
liming of the ground. More importantly, the documents now preserved in
Register House, Edinburgh, show beyond any shadow of doubt that William
Burnes was not only able to pay the balance actually due, but was
perfectly willing to do so once the dispute was fairly settled. In light
of this, McClure's action in pursuing an action for sequestration was
invalid and uncalled for. It should also be pointed out that McClure
overstepped the mark when he attempted to seize grain in respect of bygone
rent for years of which it was not the crop. This action was contrary to
Scots law which laid down that the produce of a farm could only be
hypothecated for the rent of the year in which it had been harvested. This
point was not overlooked by Sheriff Wallace who granted interim warrant to
sequestrate only for payment of the current year's rent and also the 'crop
in the barn and barnyard for payment of the year's rent whereof it is the
growth'.
When he raised the action for multiplepoinding, William Burnes paid the
£231 2s 8d into the court, apparently without difficulty and without
needing to dispose of his stock. That he was able to do so gave the lie to
McClure's allegation that sequestration was necessary because of the
respondent's inability to pay his arrears. In his Replies McClure
insinuated that he had not received any payments on account, when he must
have known this to be untrue. Three cash payments, of £60, £ I 1 8s and
£40 respectively, had been made by Burnes, and receipts for those amounts
were produced accordingly to the oversman who consequently gave William
credit for them. In mitigation, it has to be said that McClure's
precipitate action was due entirely to the fact that he was in dire
financial straits. He himself was sequestrated on 23 November 1783, his
debts by that time amounting to the staggering sum of £45,382 19s 6d.
It has been suggested that McClure's evasiveness about giving Burnes a
written agreement in the first instance was due to there being some doubt
regarding his title to Lochlie. This is, in fact, borne out by the legal
position in 1776-7 when the bargain was being struck. The farm of Lochlie,
along with other lands, was vested in John Campbell of Wellwood, David
McClure of Shawwood and George McCree of Pitcon, by a sasine recorded on
16 March 1771, proceeding on a disposition to them by Thomas Rigg of
Morton on 17 December 1770. To judge from the manner in which they juggled
with the title, none of the three appears to have been above suspicion,
and one of them, McCree, seems to have absconded."
When Douglas, Heron failed, the position of George Home of Branxton,
their factor and general manager, must have been anything but enviable;
but the hundreds of actions to be found in the Minute Book of the Court of
Session are eloquent testimony to his assiduity in chasing up the debts
due to the bank. One of these actions was a 'Process of Ranking of the
Creditors and Sale of the estates of John Campbell, David McClure and
George McCree, all merchants in Ayr, raised at the instance of Douglas,
Heron & Co., late Bankers in Ayr'. On 26 July 1786 these estates, in
various parcels, were exposed to public judicial sale. The first lot,
comprising the lands of Halfmark (including Lochlie), was knocked down to
David Erskine, Clerk of the Signet, who made the purchase on behalf of
Miss Henrietta Scott of Scotstarvet.'
If the Court were satisfied that Lochlie was the joint property of
Messrs Campbell, McClure and McCree (which none of them ever denied), then
Campbell and McCree ought to have concurred both in the granting of the
lease and in the petition for sequestration. In the oversman's decree
Hamilton mentioned Dr John Campbell of Ayr as a witness to the bargain;
was he the same person as John Campbell of Wellwood? But neither Campbell
nor McCree was party to the sequestration of William Burnes, and thus
McClure's petition was invalid. It is small wonder, therefore, that Robert
formed a bad opinion of factors, landlords and lawyers as a result of this
episode.
If the winter of 1781-2 had been a terrible period for Robert, the
winter of 1783-4 must have been infinitely worse for the whole family.
Until Braxfield's judgment on 27 January 1784, the fear of ruin and the
cruel ,absorption in a jail' stared William in the face. The stress
probably accelerated the final stage of that 'phthisical consumption,
which after two years promises, kindly stept in and snatch'd him away' as
Robert later expressed it to Moore. If, as Robert states, this tubercular
illness had been going on for two years, William's physical condition
towards the conclusion of the litigation must have been pretty poor
indeed. In the light of this, we cannot but admire the indomitable spirit
he showed in resisting the bitter and unwarranted claims of a devious and
unscrupulous landlord. Until these legal documents were discovered barely
half a century ago, William Burnes was always characterised only as the
upright, high-principled 'saint, father and husband' immortalised in the
verses of 'The Cotter's Saturday Night'. In pursuing this litigation all
the way to the Court of Session, however, Burnes exhibited a dour,
unrelenting streak; though it cost him life itself, he refused to be
beaten. To his previous attributes there now fell to be added, as John
McVie put it, 'that of a keen, hard-headed businessman, who did not suffer
fools gladly and was prepared to fight for his rights to the last ditch'.
Saunders Tait had a side-swipe at Burns in another of his poems
entitled 'A Compliment', the recipient being the James Grieve in Boghead
who had been McClure's arbiter in the dispute. Grieve was unofficial
provost of Tarbolton, and tenant of a small farm not far from Lochlie.
Tait apostrophises Grieve:
Sir, for McClure
he fought so fair
'Gainst Burns
and Lawyers in Air,
He trimm'd their
jacket to a hair
So wantonlie,
No toil nor
travel he did spare
To win the plea.
Robert singled out James Grieve as the butt of one of his Tarbolton
epitaphs, written in April 1784, two months after William's death:
Here lies
Boghead amang the dead
In hopes to get
salvation;
But if such as
he in Heav'n may be,
Then welcome -
hail damnation.
Taken from the book “Burns, A Biography of Robert Burns” by
James Mackay.
Book available for reference at the Baird Institute,
Cumnock |