David Fowler and James Miller v. Andrew Boyter and others — Memorial, 17 Feb 1766

M E M O R I A L p F O R ^ ■ F O R A G I N S T a n and andMi Miler, Com- plainers, A G A I N S T Andrew Boyter and others, Respondents, Upon the Proof in the Case o f the Kilrennie Election. February 17, 1766, M E M O R I A L ~ F O R F ORAG I NSTan and James M iller, Com- plainers, A G A I N S T Andrew Boyter and others, Respondents, Upon the Proof in the Case o f the Kilrennie Election, T h e memorialists, David Fowler late one o f the bailies, and, as such, a constituent member of the council o f the burrow o f Kilrennie for the present year, and James Miller late one o f the counsellors o f the said burrow, presented a com­ plaint to your Lordships on the 14th o f November last, found­ ed on the acts o f the 7th and 1 6th o f his late Majesty, setting forth, T h at the last Michaelmas election o f the said burrow had been brought about by the most undue influence and corrup­ tion practised on the part o f Mr Alexander, one o f the candi­ dates t o represent this d istr ict of burrows in parliament, and o f his adherents; and therefore praying a proof of the facts alledged, and that your Lordships would thereupon totally reduce the said election; or at least, would find and declare, T hat the complainer James Miller, was wrongfully turned out o f the council, and that the complainer David Fowler was duly elected a bailie o f the burrow by a majority of legal votes. T o this complaint answers having been given in, y o ur Lordships, upon advising the same, on the 21st of December 4 A last, last, pronounced the following interlocutor: “ Before an- swer, allow the complainers a proof o f the facts set forth in the petition and complaint, and o f all facts and circum sta n- ces relative thereto; and allow the respondents a conjunct probation thereanent: And also allow the respondents a proof o f the facts contained in their answers, and o f all facts and circum stances relative thereto; and allow the complainers a conjunct probation thereanent.” In consequence o f this interlocutor, both parties have ad­ duced their proof; the import o f which is now to be the sub- je ct o f this memorial, in obedience to the appointment o f the Court. The general proposit io n which the memorialist s propose to maintain and to support, by referring to the evidence addu­ ced, i s, that the election in question was brought about by the m ost corrupt means; a large sum o f money having been ten­ dered, or promised to the members o f council, and other burgesses, for the behoof o f the com m unity; and different sums o f money and other rewards having been given, offered, or prom ised to many o f the particular members o f council and burgesses having a vote in the election, in order to influence their votes and interest in favour o f M r Alexander’s party. The fatal effects o f such illegal means being used in the e- lection o f a burrow, as highly dest r u ctive both to the public and to individuals, are too obvious to need to be pointed out. But the memorialist s cannot help mentioning, that one o f the most melancholy reflexions which can arise on this subject is, from observing that corruption o f morals and o f good prin­ ciples, which is always the necessary consequence o f such mea- sures, and which seldom fails to lead the deluded people on whom those arts are practised, into the commission o f a new and greater crime, in order to try to cover a lesser one, and makes them think lightly of freedoms used on these occasions, even with the most solemn oaths: Your Lordships upon look­ ing through this proof, will be sorry to find what latitudes have been taken; and that, in the prese n t case, the above ob- servation is but too well founded. The The memorialist s, however, flatter themselves, that, in spite o f that manifest suppression of truth, which is apparent in m any o f the depositions, that they have been able to bring to light a variety o f these dark and secret proceedings which w ere endeavoured to be hid with all possible caution, and to be kept undiscovered, even after they became the subject o f proof; and shall now lay before your Lordships in one view, the different parts o f the evidence which tend to esta b lish the various facts charged against the respondents, and which may be comprehended under the two following general heads. 1st, W hat was prom ised or agreed to be given to the town? 2dlyd T he private bribes given, offered, or promised to indi­ viduals. In general, it may be prem ised, that it appears clear throughout the whole o f the evidence, and is indeed acknow­ l e d g e d, that neither o f the Messrs Alexanders, the parties chiefly concerned in the operations concerning this election, ever were in this town o f Kilrennie previous to the time o f their declaring themselves candidates for this district of bur­ rows, some little time after the death o f Sir Henry Erskine their late represen tative: That neither of them had any per- sonal connections, or even acquaintance with the magistrates, counsellors, or people o f the town, excepting one or two peo- p le in the sea-faring way: That they had no concern or ad­ venture in trade in the p lace; and in short, that they were totally unknow n and unconnected in this burrow, further than that they might have been heard o f as merchants of some note in Edinburgh. Your Lordships will judge from this circum stance, what reasonable presumption arises against them, and how ju stly it must be supposed that they were laid under the necessity of forcing an influence among the leaders and inhabitants o f this burrow; especially when this encroachment o f a stra n g e r was warmly opposed by almost every gentlem an r in that corner; b y the general voice o f the c o u n t r y; and by the natural and so l id interest o f another r e l i a b l e candidate, who had the most rational claim to represent these burrows in parliam ent. It is s elf-evident, that nothing could counter-balance balance these disadvantages, but the power o f m oney; and that it was not spared on this occasion, is plain from the proof to be after stated, and particularly from the oath o f M r Robert. Alexander, p. 98. E. who very candidly owns, that he belie- ved he had laid out the round sum o f L. 13 oo or L. 1400 Sterling in these elections; tho’, at the same time, he owns that he had kept no regular accompt o f the money so laid out by him or his agents, nor had he settled accompts with them and had only occasionally looked over his accompts with the house in Edinburgh, from which he formed this ju d gm en t; so that it is possible, nay probable, that when every thing is taken into the account, the sum expended will amount to a great deal more. W ith regard to the first head above mentioned, your Lord- ships will find in the proof frequent mention made o f a very noted person in this burrow, one Mrs Reid, who is known by the name o f Lady A ctive, a Lady o f great spirit and ad- dress, and who has known a great deal o f the world in the former part of her life. She was early attached to Mr Alex- ander's interest: Her house was the head-quarters at K ilrennie; and she appears to have been extrem ely zealous in his service. She has been examined as a witness; and depones, amongst o- ther things, from page 41, D, to the end o f page 44, “ That “ before she ever saw Mr Alexander, she sent for him to her own house to drink tea, and voluntarily made him an of- er of her services: That she did every thing in her power to promote his interest: That she at one time offered Bai­ lie Boyter, one of the magistra te s, a considerable sum, with that v iew; tho’ at the same time she depones, That it ap­ peared to her altogether unnecessary for Mr Alexander to make use of any undue practices, as the people unanimous- ly declared their satisfaction at his becoming a can d idate. That Several o f them was so fond o f Mr Alexander, that they said they would subsi st upon bread and water, or pick lam pets o ff the rocks, to serve him: And that they were also so fond of herself, that the poor people and children in the town used to croud about her as she passed along the s t r e e t, Supplicating her charity: That on her last arriva l at at Kilrennie, on her com ing ashore, the boatmen vyed with one another to assist her in landing: That the people who were fishing hauled up their lines, came to the sid e o f the ship where she w as, gave her three chears, and testified their pleasure at feeing her once more at K ilrennie.” Amidst all this zeal for Mr Alexander, she has forgot one circumstance in which she appears to have been employed to serve him, and did it very effectually, viz. by letting the counsellors and burgesses (whom she sollicited) know, that a large sum o f money was lodged in her hands, one half o f which was to be given to the tow n, and the other to be distribu ted among particular counsellors. This defect, however, in her evi­ dence, is supplied by the depositions o f other witnesses, who swear expressly to her having sollicited them strongly, and to her usin g this almost irresistible argument; and which, consi- dering the known confidence between this Lady and Mr A lex­ ander, could not fail to have the greatest weight in determi­ ning people what sid e to take. Thus John Anderson school- master o f this burrow, depones, page 20, letter F, “ That Mrs Reid having called a meeting o f the burgesses o f K il­ rennie, before the last Michaelmas elections, to the house o f Rebecca Thornton, a preceding witness, the deponent was present at the m eeting, where there were about four­ teen burgesses; and that this was the first meeting of the burgesses before the last elections: That Mrs R eid told those who were assembled, that Mr Alexander had, the night before, got Pittenween and Easte r-A n stru th cr; and that she had been so informed by Thomas Smith, a coun- sellor in Easte r-A n struther: That Mrs Reid added, that the town o f Kilrennie was losin g itse l f; but that she had a thousand pounds from Mr Alexander, and had it sealed in a bag; five hundred pounds o f which, she said, was for the town; but i f she mentioned what was to be done with the other five hundred pounds, the deponent does not re­ member: T hat this m eeting was long before the chusing o f the magistrates, and before any o f the burrows had de­ clared for Mr A lexander.” Thus also Charles Mitchell mer­ chant in A n struther-Easter, page 59, letter C, depones, after- mentioning m entioning Mrs Reid’s com ing to his house to sollicit him, and his telling her that he was engaged, “ That Mrs R e i d replied, she was sorry that the deponent was engaged, for she could assure him, money would be going; and that M r Alexander was to give to the town o f K ilrennie the sum of a thousand pounds Sterling five hundred pounds o f which was to be given to the common good o f the town, and the other five hundred pounds was to be divided; which, she said, was a very handsome th in g.” David Au- chinleck, page 5, letter E, depones, “ That Mrs Reid told him, and in the hearing o f her husband, that she had a th ou- sand pounds sealed up in a bag for the to w n: t hat her husband said, he w ished she had the half o f it; and there­ upon the deponent said, that five hundred pounds would do a good deal o f service to the tow n.” T h a t th e d e s tination o f this sum for behoof o f the commu­ nity, was communicated to the members o f council, is also proved: For even the town-treasurer, A lexander Paton, told it to Alexander Gardner, page 3, letter E, and page 4, letter E, who depones, “ That the said A lexander Paton told the deponent, that there was a thousand pounds to be given for the tow n ’s good; and that the same was to be given, by M r A lexander.” It is further proved by the oath o f Mr Andrew' W addel, mi- n iste r o f the gospel at W este r A n stru th er, p. 85, letter D, That he had many conversations, in confidence with his friend George Lothian a counsellor o f this burrow, and depones, T h at Mr Lothian, who very frequently called on the de­ ponent, acquainting him what was passing in the coun­ cil upon the subject of the election, which was then the general topic o f conversation; did, upon one o f these occa- sions, previous to his having declared for Mr Alexander, address the deponent to this purpose, That he would ad- v ise him as a friend, to persuade his friend, as he called him, Mr Fall, to offer a thousand pounds to the council which he considered would be a great mean to bring o- v er the majority, as he suspected in his own mind they had given given their prom ise to M r Alexander privately.” It is fur­ ther proved by the same w itness, p. 84, letter B, That he had several conversations with John Oliphant, another o f the counsellors, who told him, that a majority o f the council, in which number he was, had come to a resolution not to de­ clare them selves for any candidate, till after the Michaelmass elections, by which resolution he was determined to abide. And depones, That some time after this, but st i l l before the Michaelmass election, Mr Oliphant having met the de­ ponent in his own d oor, told him that he had been at a m eeting o f the council where Mr Alexander was; and that he Oliphant had left the meeting in a pet, as he be­ lieved that the majority had dropt their resolution; and told the deponent, that some person in the company ha­ ving proposed as a toast to drink their new member to be, several o f the counsellors, who had entered into the former resolution, bowed to Mr Alexander when drinking that toast; and that h e, Oliphant, suspecting that these had- gone contrary to their former resolution, by engaging privately with Mr A lexander, thereupon said, Wile Powri is not dead yet, meaning a man who had been long in the council o f that tow n, and had the character o f an intri­ gu in g man in the tow n’s affairs; and that he Oliphant said to the person who sat next him, that he was afraid they had all sold themselves to be for Mr Alexander; and thereupon left the com pany from which he was ju st come, as he said, when he met the deponent.” And that it had been in- dustr io u sly spread about, and believed through the town, that this large sum was lodged in Mrs Reid' s hands, is pro­ ved by James Beat, p. 76, letter E. He depones, “ That he heard it currently reported in the town o f K ilrenny, that money was given or prom ised, and offers o f services and good deeds made by Mr Alexander, or by others in his name to several o f the counsellors in that burrow; and al- so heard it currently reported, that Mrs Reid had got from M r Alexander, or some of his people, the s um of one thousand pounds Sterling to be given to the town. " And with w ith him concurs James Gillespie, p. 79. F, “ That he has heard that Mrs Reid should have said, that she had a thousand pounds for the town o f Kilrenny; and this he heard from several people at the entry to the elections.’ William Hodge, also, p. 30. letter C, “ Being interrogated "If he had any conversation w ith Baili e Boyter, or others of the inhabitants, with regard to any offer made by Mr A lex­ ander for the good o f the town? Depones, That Bailie Boyter, when in company with the deponent and Andrew Christie, told them, that he expect e d their town would be the richest of the five burrows, as it was least in d e b t; and that he said the above, on the deponent’s asking him, if they were doing any thing for the town, or to get any thing for it on the occasion of the election?” And that i t was the determined purpose of many of the counsellors of this burrow, to avail themselves o f the keenness o f the con- test then going on, and to get something for behoof o f the town, is further proved by the oath o f Robert Fall, p. 24. letter B, who, after m entioning an interview he had with Mrs Boyter, depones, “ That he had very good reason to believe that Bailie Boyter, at this time, had not declared for Mr A lexander, as he had seen Bailie Boyter, Bailie Fowler, David Watson, Thomas Smart, and George Lothian join hands together, on the Saturday preceding, that they were to keep together for the good of the town, and not de­ clare themselves till after the Michaelmass election. And being interrogated, W hat he understood they meant by the good of the town? Depones, That he understood they meant, Who would give them most. ” Indeed no burrow could posib ly be a fitter object on w hich to practise such corrupt influence on account o f its ex- t reme poverty, as their common good does not exceed L. 4 Sterling yearly; their town-house, streets, harbour and every public conveniency being also in utter disrepair. And it is proved by the oath o f Ellis Martin, p. 19, let. F, and by other w itnesses, that the counsellors complained to Mr Alexander o f the poverty o f the town, the bad condition o f their streets; and and that the town stood in need of assistance and that it was un­ derst ood at least that such assistan ce would he given, may be very ju stly inferred from the oath o f Mr William Alexander, p. 36, D, who depones, “ That there was frequent mention that their streets were bad, and of other things that the town needed: That the deponent always took occasion to mention that he could promise nothing on that head, as it was ilega. ” That Mr Alexander, however, w as on some occasions rather more explicit than is here admitted by him, is proved by his friend John Oliphant one of the counsellors, p. 7 1. let. B, depones, “ That the counsellors o f the town o f K ilrenny, and the deponent, amongst others, did, upon the occasion o f the last election, represent to all the candi­ dates publicly, when they offered their service for the town, the poverty o f the public good, and that the town need­ ed assista n ce; and that this was represented to Mr Alexan­ der and his agents, as well as to the other candidates and their agents: That Mr Alexander did not say that he would do any thing for the town; but said in general, that, i f they chose him for their representative, they should be as high in his favour, as any other of the towns that did him the like honur." It was at this time no secret that a very large sum had been engaged for by Mr Alexander, in order to pay off the debt o f a neighbouring burrow which had declared for his inte- rest. But whether Mr Alexander chose to promise direct­ ly him self, or to make his friend Mrs Reid promise and engage for him, it can make no manner o f difference; the undue influence had still the same effect, whoever the offer or pact ion came from. It is further proved by the depositions o f Alexander Gar­ diner, p. 3, let. D; David Auchinleck, p. 5, let. C; Charles Rob, p. 51, let. C; and b y several other witnesses, That, pre­ vious to the Michaelmas election, a number o f the counsellors had been induced to sign a paper binding themselves to stand by Mr A lexander; and that some o f them declared they could not go against Mr Alexander on account of that paper: W hich, when taken as a circum stance joined with the evidence C above above referred to, it is hum bly submitted to your Lordships, that the whole taken together affords clear and convincing proof, that a corrupt bargain was entered into for behoof o f the town, and that five hundred pounds Sterling, or some other such large sum, was either given, or stipulated to be paid by Mr Alexander, in order to purchase the voice o f this burrow.- It is indeed true that this lady, Mrs Reid, has expressly de­ nied upon oath, that she ever said that she was possessed of, or was to get, the above or any other sum for behoof o f the town; and in this respect there is a clear contradiction in the evidence. It is submitted to your Lordships, whether her denial, in a matter o f this fort, can deserve credit in opposi- tion to the direct testim ony o f three unexceptionable w itnes ses, who swear positively to what she said to themselves at different times, and at one time in presence o f a number o f o- ther people; especially when their evidence is supported by the many other circum stances before stated. Sundry o f the respondents, counsellors o f this burrow, were also examined about this affair, and have likewise denied their having any knowledge o f it. But your Lordships will be informed, and it will be afterwards shown from the proof, that they have also flatly denied many particulars relating to them selves, which are proved against them by a cloud o f wit- nesses. The memorialist s are unwilling to indulge harsh sus- picions or in sinuations. Where such contrariety o f evidence appears, your Lordships will determine which part o f the evi­ dence is most to be believed. W ith regard to the Second head, the evidence o f the various bribes given, and of offers and promises made to individuals, shall be traced through the bulky volume o f proof, as short- ly as possible. ' William Brown, one o f the counsellors, p. 45. letter B, depones, “ That the first person who applied to him to be­ friend Mr A lexander, was Ellis Martin clerk to Mr A lex­ ander, whose father resid es at A n stru th er: That some time after, Mr M artin applied to him a second time for the same purpose; purpose, and showed him a paper, which he wanted him to sig n, which he said was to make Mr Alexander a dele­ gate: That Mr Martin told him, that i f he the deponent would sig n this paper, it would make a majority o f the counsellors for Mr A lexander. Depones, That he did not look at the paper, and refused to sig n it till such time as he conversed w ith the rest o f the counsellors. And depones, That he was never asked at any other time to sig n this pa­ per before election, nor did he converse with Mrs Reid concerning the elections. And depones, That Mr Mar­ tin made him the offer o f L. 30, if he would sig n the said paper.” And after m entioning several other particulars relating to offers and prom ises made to other counsellors by M r A lexander’s agents, be further depones, p. 46. letter B, That he had declared for Mr Alexander some days before the election o f the m agistrates; and that at the election o f the m agistra tes he voted for Mr A lexander.” Whether he was influenced by this offer o f Mr Martin’ s, and by what was afterwards said by Mr Alexander himself, to give his vote in the election, w ill best appear from the w itness’s own sense o f that matter. He further depones, “ That at the election o f the delegate he voted for Sir John Anstru th er ’s party; and that the reason o f his changing sides was, because he thought that from the promises made by Mr Martin, and by M r A lexander him self, in several companies where the deponent had been with him, that no man should ever be a loser by him, the deponent apprehended he was not at liberty to take the oath o f b ribery.” Ellis Martin, p. 89. F, concurs with this w itness, whom he acknowledges he sollicited frequently to join Mr Alexander, previous to the Michaelmas election. And being interrogated, “ Whether he made any offer to Bailie Brown, to induce him to si g n the foresaid paper? Depones, That he does not recollect that he offered the bailie any money; but that as the bailie ap­ peared incredulous with respect to a majority of the coun­ cil being for M r Alexander, the deponent offered to wa­ ger L. 25, or L.30 with him, that there would be a ma­ jority jo r ity for M r Alexander, i f h e the bailie was one. A n d depones, t hat he understood Bailie Brown voted for M r A lexander’s interest in the election o f magistrates.” T h ere is, in reality, no discrepancy between these w itnesses. It is plain, this man was bribed to give his vote,, by a promise o f L. 30 from M r Martin: And your Lordships w ill at once see through the thin subterfuge which Mr M artin would avail himse lf of, from his want o f recollection, and his m aking the attest e d d istinction between a wager and a prom ise o f L. 30. James Boyter another counsellor, and son to Bailie A n ­ drew Boy ter, the eldest magistra te o f the burrow, was gained to Mr A lexander’s interest by the same corrupt m eans. Gabriel H aliday, p. 60. letter D, depones, “ That upon the 20th of September last, the said James Boyter came to the de­ ponent’s house in W ester A n stru th er, and brought him a line from Mr W illiam Alexander, desiring the deponent to receive James Boyter as a scholar for navigation, and promising to acknowledge him for his trouble: That at this time James Boyter told the deponent, that Mr Alexan­ der was a very fine gentleman, and was to do great things for him, particularly that he had promised him a ship to the E ast or W est Indies, which of them he pleased; and, in order to make him fit to be master o f such a ship, he had resolved to put him to school to the deponent, in order to learn navigation: But as he, James Boyter, was married, and had a family, he told Mr Alexander he. did not chuse to go abroad and leave them: That upon this, Mr A lex­ ander said, he would give him a coasting vessel at home; but James Boyter did not inform the deponent for what reason Mr Alexander was to do all this, nor did the depo­ nent ask him: And depones, That James Boyter told him at this time, that he said to Mr Alexander that he was un­ able to maintain his family during the time he was at schoo l; and that to remove this objection, Mr Alexander said, he would maintain his family during that time; but the deponent does not know i f Mr Alexander does sup- port his fam ily; but depones, that James Boyter is at pre­ sent sent a scholar, and has been since the Monday after the date o f the line. Depones, That at this time James Boyter was a counsellor in K ilrenny: That some days after he had been at the school, he told the deponent that he was afraid this line would be looked upon as bribery; and that he had gone to Mr Alexander and told him so; that Mr Alex- ander answered, it could not possibly be taken in that light, for that he had intended to put him to school before he was made a counsellor.” W ith this w itness concurs Mary Lit- st e r, p. 6. letter F, and James Dryburgh, p. 1 0. letter E. Mr W illiam Alexander himse lf acknowledges the fact with regard to putting James Boyter to school, and promising to advance him. “ And being interrogate, Whether he ever, after m aking the aforesaid prom ises to young Boyter, did desire or employ him to sollicit his father to come over to the de­ ponent’s interest? depones, That he does not recollect whether he did or n o t.” Your Lordships may possibly be inclined to supply this shortness o f memory in Mr Alexander, when you are informed that it appears from the proof, that Bailie Boyter the father soon after this declared in favour of M r A lexander, and was one o f his ch ief supports in the elec­ tion. The same corrupt methods appear to have been followed with the father himself. Alexander Reid, p. 17. letter B, depones, “ T hat Bailie Boyter having come to the deponent’s house to get his measure for a pair of shoes, which happen­ ed to be some time before the election o f the bailies o f K il­ renny, the deponent asked the bailie, What news there was about the elections? to which the bailie answered, That he w ou ld tell the deponent news, but that he must not speak of it; and the deponent said that he would not: That thereupon Bailie B oyter said, that he and his wife were offered a hun­ dred pounds from Mr A lexander’s agents to be for Mr A- lexan d er: That James Boyter, the bailie’s son, came to the deponent’s house along with his father, and was present at this conversa tion: that the bailie at this time asked the deponent, W hat he thought o f this offer? to which the D “ deponent deponent answered, That he the bailie should be cautious- what he did, and that neither he nor his wife should take the money, as they would be called upon oath about it; and the deponent advised the bailie to put the money in the hands o f Rebecca Thom son till the elections were over; but whether any such thing was done, the deponent does not know. Depones, That Bailie Boyter, when at the de­ ponent’s house, as already mentioned, and, in presence o f his son James, told the deponent that Mr Alexander had agreed to put James to Mr Haliday’s school at W ester- An- stru th er to learn navigation, and to maintain James and his family during the time that he was at the school. De­ pones, That when the deponent brought home a pair o f shoes, which he had been employed to make for James Boy­ ter' s wife, the told him, that Mr Alexander had sent her husband to Mr Haliday’s school, had paid his quarter-wa­ ges, and was to maintain James’s family while he was at school; upon which the deponent said, that they ought to be true to the gentleman as he had been kind to them: That James’s wife said, that she would be true to him; and said that her husband and the bailie would be so also.” George Lothian, p. 93. letter F, depones, “ That, going home one evening from a meeting, in company with Bailie Boyter, the bailie said, that, as he was an old man, it would be hard i f whoever he gave his vote to did not consider him, and give him a post, or a hundred pounds; and that this con- versation, he thinks, was about a month before the Michael­ mas election.” John Cuningham, p. 05. letter F, de­ pones, “ That Bailie Boyter once told him, that he had an offer o f a hundred pounds from Mrs Reid to join, as the deponent thinks, Mr A lexander’s interest.” John Oli- phant, p. 7 1. letter F, depones, “ That Mrs Boyter, the wife o f Bailie Andrew Boyter, told him, previous to the Michael­ mas election, that she was offered a hundred pounds by Madam Reid; but added, that Andrew would not do her b idding.” He He afterwards, however, followed his wife’s advice, to save him self from being turned out o f the magistracy, which was resolved to be done, in case he had not accepted of the offers made him, as is proved by the oath of John Anderson, p. 21. etter C. D. John Anderfon, p. 17. letter G. depones, “ That he heard from Bailie Boyter’s wife, that Mrs Reid had made offers to her Mr Boyter, o f L. 50 or L. 60 if her hus­ band would be o f Mr. A lexander’s interest; and that this offer was made, as the deponent knows, before Bailie Boy­ ter declared for Mr Alexander. Depones, That the de­ ponent upon another occasion, asked James Boyter, How his navigation was going, on, which he had been put to by Mr Alexander? at which time, he told the deponent, who had also asked him, How the elections were going on that he did not know how the elections would go, but that his father had good offers made him by Mr Alexander; and the deponent was also told by his mother-in-law Helen Adie sister to Mrs Boyter, of this sum’s being offered by Mrs Reid to Mrs Boyter, and that she told th is to the depo­ nent several times from the time the offer had been made. Depones, That Helen Adie told him, that her siste r Mrs Boyter gave her this information. Depones, t hat he neverheard tisumwcongyp', for the behoof o f Mrs Boyter. Depones, That he knows Bailie Boyter was in very mean circums tances before the election; but sin c e that time has been better, and able to get any thing that people commonly want in t h e i r s i t u a-tion, which they had not before; and the deponent had access to know this, from his having had correspondence withMr B yter both before and after the Micha lmas e- le c t i o n. A nd being interrogate, W hat was the common rep ort or belief o f the people in town, w hether B ailie Boyter had a c c e p t e d of, or got a sum of money on this oc- casion for his vote? depones, That if he was to tell all the reports he heard, it would consume a whole day; and that the common report was, that the whole council had got money to support Mr. Alexander's interest." What is said by this witness, with regard to the change in Bailie Boyter's circumstances circum stances sin c e these elections began, is fully confirmed by James D ryburgh and Mary L itster his spoule, p. 7. letter F, and p. 1 1. letter C, who swear, That, previous to Mi­ chaelmas last, Bailie Boyter’s family were in use to buy things from them: That they were frequently in want of money, and were in use to deal upon trust, and could not pay for what they got; but that, presently after the election, they were changing bank-notes and paying ready m oney; and that it was publicly talked, that the reason o f this change was, that they had got a sum o f money from Mr Alexander. Mrs Reid, and M r William Alexander, do both o f them ac­ knowledge, that a sum o f money was offered to Bailie Boyter, tho’ they, and the other witnesses differ about what the precise sum was. It is proved by the oath o f the above mentioned George Lothian, p. 03, That the Bailie laid, he expected a hundred pounds for his vote: And it is submitted to your Lordships, whether it is not clear from the above evidence, that he, or his wife for his behoof, did actually receive that, or some such sum, both o f them having acknowledged it in secret at the time, to so many different people; and a variety o f cir- cum stances coinceding to show, that this must have been the case. The bailie himself, who was examined as a w itness, p. 61, has indeed been pleased to deny this fact. But your Lord- ships will consid e r what credit can possibly be given to his testimony, when you find him at the same time denying, in the most bold terms, almost every particular above stated, ex pressly swore to by a number o f credible witnesses; nay, even venturing to deny what his own friends have acknow- ledg ed. Thus, he denies, that ever Mrs Reid spoke to him to be for Mr Alexander, or to call a council for his behoof, or that she ever made him an offer o f any kind, altho’ Mrs Reid, page 42, letter D, expressly swears the contrary, and men­ tions the particulars o f the conversation. He also denies the c onversation above mentioned between him and Alexander Reid, about the hundred pounds offered him by M r A lexan- der’s agents, and about the promises made to his son James 1. when when he was put to school; altho’ Reid’s testim ony is clearly confirmed by the other w itnesses above named, to whom the bailie, or his wife, alio owned the fact at different times. In short, there is such an evident suppression o f truth, appear­ ing throughout the whole o f his depositio n, that it is impos- sib le to read it over, without feeling a mixture o f pity and indignation at the behaviour o f this witness, who seems to have laid aside all memory o f any thing that could hurt him, at least w ith regard to the transactions o f this election, after having staid sometime in Edinburgh, and breakfasted, dined, and flipped, danced, played at cards, and drunk in Mr A lex­ ander’s house in town, as the bailie himself acknowledges, he and the other w itnesses did for more than ten days to- gether, previous to their exam ination. How far such con- duct, or entertainm ent o f w itnesses, was regular or proper, is submitted to the Court. Another o f the counsellors, who appears to have been gained over to Mr A lexander’s interest, by a sum o f money given or bargained for with his wife, is Thomas Smart tay- lor. W ith regard to him, Andrew Ramsay, p. 23. letter D, depones, “ That, after the election o f the magistrates o f Kil- renny, the deponent having asked Thomas Smart’s wife to come to the deponent’s house, upon a visi t about some- thing he had to say to her: That, after her being in the deponent’s house, he spoke to her about bribery; and that her husband should be careful about it: That to this she answered, that her husband would take the oath with all safety: That the deponent thereupon said, that he was sure she could not, as he heard it reported, that she had made a bargain: That Mrs Smart answered to this, that that was no matter, if she concealed it from her husband till the election was over. Depones, t hat as the deponent was conveying Mrs Smart that same night from his own house to a neighbouring house, he said to her, that she must not deny that she had a bargain, for that he (the de­ ponent) knew it. Upon which she answered, W ell, I own I have a bargain; but my husband shall not know it ' till till the elections are over. Depones, That the same night t h e deponent said to Mrs Smart, that he was afraid she would be sworn herself, and to take care o f her own foul: T h a t Mrs Smart answered, that she did not think she would be sworn. Depones, That, two or three days before the meeting with Mrs Smart, the deponent spoke to her husband upon the subject o f taking the oath; and desired him to take care what he did for the good of his own soul, and not wrong that for any gentleman: That Thomas Smart said to this, that he was in safety to take the oath, for that he received nothing from any person; and the deponent mentioned to Mrs Smart, at the meeting already mentioned, that he had spoke to her husband. Depones, That at the foresaid meeting with Thomas Smart, the deponent said to him, that he was a- fraid he could not take the oath safely, as he heard his wife had made a bargain; and the deponent added, he w as not sure how the law might run in that matter: That Thomas Smart said he would not answer for his wife. Depones, t hat, when the deponent told Thomas Smart’s wife, that he had the conversation with her husband al­ ready mentioned, she said, that her husband was not o- bliged to believe what the deponent, or any other person told him, i f she did not tell him herself.” This w itness also, in the sequel o f this deposition, goes on to relate a con- versation he had with David Smart, Thomas Smart’s brother, who had informed him o f his having spoke to his sister-in- law upon the above subj ect, and to whom she likeway s own­ ed the above bargain she had made for her husband; and his account thereof agreeing with what is sworn to by the said David Smart him self, the two testimonies do thus con* firm one another: t he said David Smart, p. 1 9 letter D, de­ pones, “ That he was told by Barbara Wade, the wife o f Thomas Smart his brother, that Alexander O gilvy, (an agent o f Mr A lexander’s) had bargained with her for a- bout L. 20, as a reward for her husband’s voting for Mr Alexande r: T hat this she told the deponent sometime af- ‘ ‘ ter ter the election at K ilrenny; but cannot recollect the par­ ticular tim e.” He also depones, “ That having mention­ ed to his sister-in-law, that he thought the sum promised by Mr O gilvie was but trifling, in compar ison to what he heard was going she said, that though she had no pro- mise for any higher sum than the L. 20, yet, that one or o- ther o f the gentlemen sa id, that i f the business went right, the gentlem ens kindness would make her as right as other people.” The testimony o f David Smart is further confirmed by that of Philip Brown, p. 28. C. who mentions his having bad a con- versation with Thomas Smart relating to the elections, and depones, “ That David Smart, Thom as’s brother, told the deponent, that he had a conversation with his brother and his wife. That the wife acknowledged in her husband’s hearing, that she had a prom ise o f L. 20. That David further told the deponent, that he asked his sister-in-law, W hy she agreed for so little? to which she answered, t hat she asked no more than the L. 20, but she expected thrice as much; for that Mr Ogilve told her that she must be contented with the L. 20, as none of the counsellors got m ore.” This transact ion with Smart's wife is in effect ac­ knowledged by M r W illiam Alexander, p. 34. letter A. He depones, “ That Mr O gilvie told the deponent, That he of­ fered Mrs Smart, spouse to Thomas Smart councillor, L. 25 or 25 guineas, to engage her husban d t o be Mr Alexander’s friend. Depones, That Mr Ogilvie told him that Mrs Smart said she thought the sum too little, as she got L. 50 at Sir Hary E rskine’s first election; but that she would make no bargain with him, but expected she would be put on the same footing w ith the oth er counsellors, and that her husband would be the deponent’s friend; at which Mr Ogilvie expressed his satisfaction to the deponent: For as there was no promise to the other counsellors, the engagem ent amounted to noth ing.” Alexander Ogilvie ropemaker in Leith, the agent employed to transact this b u ­ siness, has also been examined as to this matter; and, though extrem ely desirous to screen Mr Alexander in whose service he he has long been, and particularly act iv e on this occasion, yet he has owned enough to satisfy your Lordships o f the bribery which was here pract i sed. P. 55. A, He depones, That he knows Thomas Smart, and had conversation with his wife previous to the election, that he sollicited her to u se her influence with her husband to give his vote and interest for Mr Alexander; and said i f he did so, M r A lex­ ander would hold him in the same es teem, he did any other counsellor of the burow: That he never promised her any reward for her husband’s so voting, but acknowledges that he u sed many arguments with her, in order to gain her husband ’s vote. B eing interrogated, W hether, in these con- versations with Mrs Smart, he told her it m ight be dan­ gerous to make any certain bargain previous to the election, but that i f her husband voted along with Mr Alexander, he should be made as well as any o f the other counsellors? Depones, That possibly he may have said so, but only he does not recollect, being so very c ircum pect as to use the word danger. Being interrogated, Whether at any time, in the conversations he had with Mrs Smart, she com­ plained to the deponent, that what he had proposed to her, as the inducements for influencing her husband, was too little, and that she w ished for, or expected more? Depones, That he thinks the question already answered, and merits no farther answer. ” This was all that could be squeezed out of this unwilling w itness; but it is suffic ien t, when joined with Mr Alexander’s acknowledgm ent of what this very wit- ness reported to him, and with the evidence before set forth, to convince your Lordships that a corrupt bargain was here made with Mrs Smart, in order to procure her husband’s vote, who accordingly voted for Mr Alexander. The said Thomas Smart and his wife were likeways exa- mined on this subject; and, like many others on this occasion, have shown a great desire to appear innocent, by denying and endeavouring to conceal what is expressly swore to by the former witnesses. Mrs Smart, after having positively denied, in the beginning of her deposition that Mr Ogilvie ever spoke, to to her to procure her husband’s vote, or made her any offer, upon being cross-queftioned at last acknowledged, that she said to M r Ogilvie, that i f h e r husband served Mr Alexander, in case he should do service to any o f the other counsellors, she hoped he would be no worse to her husband; which is in ef­ fect what is swore to by the other w itnesses, only that all the truth is not spoke out. She denies also what the three wit- nesses before named have swore she said to them; and the whole evidence appears evidently wavering and contradicto­ ry. Her husband’s deposition is o f the same nature; and the perusal o f them will give your Lordships no very favourable im presio n s o f this taylor and his wife. The next person to be mentioned is Alexander Paton town- treasurer; as to whom Alexander Gardiner, p. 3. lett. B, de­ pones, That some time before the last Michaelmas election, he was told by Alexander Paton, in a conversation betwixt them on the subject o f the election, that i f he Paton was turned out o f the possession he had from Mr Bethune o f Balfour, that he was to have the value o f what he could make by the product o f the ground i f it should be L. 20 a-year; and that it was one M r O gilvie, an agent o f Mr A lexander’s, who made him this prom ise. And depones, “ That he afterwards told the de­ ponent much to the same purpose in presence of David Auchinleck, Bailie Fowler and James Miller two of the complainers. And depones, t hat he was told by Alexan­ der Paton, in his Paton’s barn, that he had signed a paper by which he could not go against Mr Alexander; and that this conversation a lso happened, to the best of the depo­ nent’s remembrance, before last Michaelmas election.” He further depones, “ T hat, upon the evening of the day on which David W atson, one of the respondents, was married, A lexander Paton came to the deponent, and taking his bonnet, prayed him for the Lord Jehovah’s sake not to ruin him by m entioning what past between them concern­ ing the election: That the deponent told Paton that he had no intention to hurt him; but that, i f he the deponent was called upon to give evidence upon oath, he would tell the p truth truth if it was to affect his father or brother; and depones, That, since he was cited as a w itness in this cause, Alexander Paton came to him at the back o f the town, when the deponent was at his du n g-h ill: That the deponent said to Paton, “ I see you are not go ing to Edinburgh?” To this Paton answer- ed, What should he do there when the deponent was going over to perjure him and ruin him? That the deponent said, God forbid; and added, That he had not the power to perjure or ruin him: That Paton then said, he was indiffe­ rent, he had but two children: That he could take the one on his own back, and his wife the other, and would beg with them.” David Auchinleck, p. 5. letter A, depones, That he heard Alexander Paton, who is his door-neigh- bour, say in the house of Bailie Fowler, that he had a pro- fer o f L. 20 from Mr Ogilvie to be for Mr Alexander, &c. And that there were then present Bailie Fowler, Bailie M il­ ler, Alexander Gardiner the preceding witness, and W il­ liam Fow ler. Depones, That some time after Michaelmas last, when the deponent and Alexander Paton were thresh- ing some corn in a barn, in which they had a joint concern, Alexander Gardiner, the preceding witness, having come into the barn, Paton told him, he had signed some paper: That Gardiner having asked Paton, what paper he signed Paton answered, that he had been obliged to sig n several papers without m aking any further explanation. And G ar­ diner having gone away, Paton told the deponent, that, i f the word had been in his mouth again, he would not have said it.” William Brown, p. 45. letter E, depones, “ That two or three days after the election o f the m agistrates, the deponent was told in Bailie Fowler’s houle, "by W illiam Fowler and Alexander Paton, that each o f them had got the offer o f L. 20 from Mr O gilvie; and that this offer had been made to them in case they should be deprived o f their land, which had been threatened them by M r Bethune o f Bal­ four. And depones, t hat the L. 20 so offered to them, was L. 20 yearly.” Alexander O gilvie, p. 54. letter C, tho’ his memory does not s erve him as to all the particulars, yet he con- fesses fesses so much o f the fact with regard to this bargain with Pa- ton; and depones, “ T hat he did say to him, that, i f he was “ turned out o f his land, the loss he might sustain thereby “ would or could be made up to him.” In what way it was agreed to be made up to him, your Lordships have seen from the evidence o f the other witnesses; and in consequence there­ o f A lexander Paton became a zealous friend o f Mr Alexander’s, W illiam Fowler, another counsellor, was in the same situ- ation with Paton. He was a tenant under the Laird of Bal­ four, whose property lyes round this burrow, and being a- fraid o f losing his land, he had a-mind to stipu late something certain for g iv in g his vote on this occasion. Alexander Gar­ diner, p. 4. letter C, depones, “ That, being in company with W illiam Fowler, Alexander Paton, David Auchinleck, James Miller, and Bailie Fowler, before the last Michael- mass election, as he thinks, William Fowler said, that Mr O gilvie, formerly mentioned, had promised him Fowler, in case he was turned out o f the land which he possest: under Mr Bethune o f Balfour, that he Mr Ogilvie would make good the produce o f the land to him, i f it should be L. 20 or L. 30.” And with him concurs exactly David Auchinleck, p. 5. let. F; and Philip Brown, p. 27. let. D; William Brown, p. 45 letter F; Agnes Denovald, p. 50, letter A, depones, That, upon the 30th day o f A u gu st last, William Fowler, counsellor in K ilrenny, came to the deponent’s house, and told her that he was much harrassed by Mr Ogilvie, one o f Mr A lexander’s agents, to join in his interest: That Fowler told Mr Ogilvie, that he was much in the Laird’s debt, which Ogilvie laid he and Mr Alexander would pay: That Fowler answered, That he was an old man, and that paying his debt was not sufficient; for what would be­ come o f him it he lost his land? that upon this Mr O gilvie asked what was the value o f his land, and what he made o f it, Was it L. 20 a year? T o which he answered, It was thereabout: T hat then Mr Ogilvie said, that he and Mr Alexander would give him and his wife L. 20 a year dur­ ing their respective lives, provided he would join Mr A lex­ ander’s, interest; and Fowler said, that he had accepted “ o f of this offer and promile; and that he asked i f the depo­ nent’s husband was stirring? That she said he was not: upon which Fowler laid, it was no matter; there was no need o f taking any body’s advice; for he had determined already to accept o f Mr Alexander’s offer, and had pro- mised Mr Ogilvie to join his interest. ” And with her con­ curs her husband, Bailie Robb, p. 50, letter F, and James D avidson, p. 48. letter B. It is further in proof, that the skippers and seafaring bur- gesses belonging to this burrow were won over to Mr A lex­ ander’s interest, by a present made them o f a jun k or long cable, for fastening their boats to, which was given them by M r Alexander. This is proved by James Davidson, p. 49. A; John A nderson, p. 22. A; Ellis Martin, p. 93. C, and other witnesses; and what effect this present had, appears also from these depositions. The said Janies Davidson depones, “ That it consi sts with his knowledge, that o f the si x skippers who are in the town, five voted for M r Alexander: And the whole fishermen, so far as he remembers.” John Anderson a lso depones, “ That the fishers who got the cable from Mr A- lexander, voted in his interest. ” Janies W att, p. 31. D, being interrogated, I f it was talked among the fishers who were sent for this cable when together in the boat, that the reason o f their giving their votes for Mr Alexander was the receiving this rope? depones, no doubt it was a good means.” There are likewise further stro n g traces to be found throughout the proof, o f money or rewards having been g i­ ven by Mr Alexander and his friends to sundry other persons concerned in this election, particularly David W atson and James Adie counsellors, and to some o f the burgesses, as ap­ pears from the deposition s o f Mary L iste r, from p. 8. letter D. to the end o f her oath; James Dryburgh, p. 12. and 13; John A nderson, p. 21; James Begbie, p. 69. F; James Beat, p. 76. A; Janies G illespie, p. 79. B, from which, and other depositions, it appears, that money and other gifts were scat­ tered about by Mr Alexander and his friends among the bur- gesses with a pretty profuse hand. And from a general view o f o f the proof, it m ust be obvious what effect such practices be- hoved to have in a burrow where a popular election takes place, and every burgess is admitted to vote. The memorialist s are unwilling to lengthen out this paper b y a more minute observation on various parts of the proof. They flatter themselves that they have here excerp­ ted from it more than sufficient to convince your Lordships, that the election in question was brought about by the most corrupt means; and that Mr Alexander owes the ascenden- cy he gained in this burrow to these practices alone. They can therefore have no doubt that your Lordships will see good cause for reducing the election now under challenge, agreeably to the prayer o f the com plaint exhibited by them. T he m em orialist s shall only observe further, with regard to th e second branch o f the prayer o f their complaint, that, sup- posing your Lordships could possib ly have the least doubt a­ bout a total reduction o f the election; yet, in all events there is sufficient ground for finding, that the complainer James ' M iller was w rongfully turned out o f council; and that the com plainer David Fowler was duly elected a bailie o f the h ar row by a majority o f legal votes. If your Lordships arc sa- tisfied from the evidence, that the majority of the old coun- cil were under the undue influence o f bribery and corruption • no act or deed o f theirs, m aking an alteration in the council, can stand good, or have any effect to the prejudice of the complainer James M iller, whom they were pleased to remove from the council. And with regard to the other complainer, David Fowler, as your Lordships will observe from the certi fi ed list o f voters subjoined to the proof, that, in the com e t i t ion for the office o f bailie, there were 54 w h o vo ted for him, and 57 who voted for A lexander Reid; so, i f there is evi dence only against four o f those who voted against thecomplainr, sufficient to disqualify them and set aside their votes, it is clearthat the elect i on o f the said Alexander Reid ^ and th a t o f th e complainer to be sustained. Now there can be no doubt surely that there is full evidence, from what is before fore set forth, that more than four o f the persons above na­ med, either o f the counsellors or burgesses, were clearly bribed on this occasio n; and particularly as the whole fishermen are proved to have been won over- to Mr Alexander’s sid e by these illegal methods, and a great number o f them marked in the list in Italic characters, voted for the said Alexander Reid by str ik in g off only this small number o f four from his lift, a clear majority remains in favour o f the memorialist David Fowler, whole election therefore o f course falls to be susta in ed.* In respect whereof, & c. G E O. C O K B U R N E