PART III.

OF THE ELECTION OF THE REPRESENTATIVES OF THE ROYAL BOROUGHS OF SCOTLAND.

EVERY one of the fourteen classes into which the royal boroughs of Scotland, with the exception of Edinburgh, are divided, elects its representative to parliament by means of delegates sent from every borough of which the class consists. The election of those delegates is vested in the Magistrates and Town Council of the different boroughs. Hence the election of the representatives of the royal boroughs ultimately depends on that of the magistrates and council; and it becomes therefore necessary to enter into some inquiry with respect to the principles on which the election of magistrates and council is conducted. This subject will form the subject of the first chapter of this part.

CHAPTER I.

OF THE ELECTION OF THE MAGISTRATES AND COUNCIL

OF THE ROYAL BOROUGHS.

In the Historical Essay annexed to this work, will be found some account of the Constitution of the Royal Boroughs of Scotland, and of the progressive changes which have taken place in the mode of electing their magistrates. The subject of this chapter shall be the order of procedure now observed at elections of magistrates, and the legal principles upon which they are conducted.

The first step at the meeting for election of magistrates on the day appointed by the set, is to read the act 2d Geo. II. c. 24, against bribery, as directed by the 9th section of that act. The electors then take the oaths to government. In one instance, a person had been chosen deacon of the Incorporation of Tailors, in a royal borough, in September 1790, but had not taken his seat, or acted in that capacity, till the 27th September 1791, at the election of magistrates; and when the oaths to government were tendered to him, he added the qualification, that he took them so far as was agree' able to the word of God.' The result of the election depending on the vote of this person, a complaint was preferred, when, on the 24th December, he took the oaths in the Court of Session, without any reservation. In these circumstances, the Court repelled the objection to his vote, chiefly influenced by the consideration, that, as the enactments after the Union authorised the party at any time within three months after his admission into office, to take the requisite oaths, his actings in the mean time were to be considered as legal 1.

When the oaths have been taken, the electors go through the several steps of the election in terms of the set of the borough.

The magistrates and council have of course no right to proceed to election before the day fixed by the set or by the usage of the borough; and any election made contrary to this rule will be liable to reduction 2.

The principle is now fully established by a series of cases, that where the set of the borough does not specify any particular number as a quorum of the magistrates and council, a majority of the body must attend to constitute a legal as

1 Banks and others v. Jaffray and others, 6th June 1792; Fac.

Upon this, amongst other grounds, the election was set aside in a case from Jedburgh in 1738; and the judgment was affirmed on appeal.-See Craigie and Stewart's Reports, vol. i. p. 207.

sembly, whether at the actual election of magistrates', or at a previous meeting immediately affecting the election. This latter point was decided in a case where the right of presiding at the election, and of giving a double vote in case of equality, depended on the validity of the meeting immediately preceding, as the president of that meeting, if legal, was entitled to preside at the election 2. The same principle is held, although those who do not attend the meeting have wilfully absented themselves. It seems, however, to be held, that such as wilfully absent themselves have no title to complain of the proceedings *.

The employment of force or violence, so as to deprive a candidate of the support which he otherwise would have had, is a just ground of complaint, as being directly at variance with that freedom of choice which is the essence of an election. In a case in which four deacons had forcibly been kept from an election of magistrates for Inverkeithing, for which purpose a warrant of two justices of the peace, and the aid of constables, had even been obtained, the Court not only reduced the election of those who had employed the violence, but took into account the votes of the excluded persons, who, it appears, had given their suffrages at the foot of the stair of the council-room, and sustained the election of that party 5. In a subsequent case, the Court reduced an election for the same borough, on the ground that it had been brought about by 'means of force, bribery and corruption,' on the part of the successful faction. They, however, refused to sustain the elec

1 Mason and others v. Magistrates of St Andrew's, Kilk. p. 107. Elch. v. Bur. Roy., No. 23. Tod, Davidson and others v. Tod and others, 17th June 1824; Shaw.

2 Meiklejohn and others v. Masterton and others, 28th May 1805. * Mason, supra; Tod, supra. 4 Mason, supra; Tod, supra.

5 Cunningham and others v. Henderson and others, 31st July 1745. Elchies, Bur. Roy., No 22. Wight, p. 343. Falc. i. p. 60.

tion of the other party, against whom also bribery was established 1.

It is clear that the forcibly depriving the opposite party of a portion of his votes, must annul the election of the party using such violence, if these votes would have secured a majority to the losing party; and this was the case in the first mentioned of the above decisions. But what shall we say if it turns out that the gaining party would have had a majority, even if they had not excluded these votes? It rather appears that the same result ought to follow in this case also, where the violence is open and manifest, and of such a nature as to give any room to suppose that it may have influenced the minds even of those against whom it was not immediately directed. Thus, in the second mentioned of the above decisions, the species of violence used by one of the candidates for the magistracy, in addition to bribery, was the introduction of several press-gangs, which were employed in keeping in confinement some of the electors, and in terrifying others. On these facts, the Court, according to Lord Kames, were unanimously of opinion; 1mo, That bribery ' can have no further effect than to disqualify the bribers, and those who are bribed. 2do, That where force is used, as there ' are no means for ascertaining what influence it has upon the election, judges must either give it no effect at all, which ⚫ can never be right, or give it a total effect, to reduce the "election funditus."

It has also been made a question whether the detaining of only one member of the opposite party ought to cast the election of the users of that violence, if the person so detained would not have had the effect of casting the balance. Mr

1 Haldane and others v. Holburn and others, 4th August 1761. Fac. and Sel. Decis. p. 245; and Wight, p. 351. A petition against the part of this judgment relating to the election by the minority, was dismissed on a point of form.

* Sel. Decis. p. 245. See also Elchies' report of the Inverkeithing case in 1745, Burgh Royal, No. 22; and his notes on it in 1755.