Allan — Petition, 15 Dec 1770

Untitled December is;. 1770. UNTO THE R I GHT HONOURABLE. The Lords of Council and Sesion, T H E P E T I T I O N ’- 4 k l O F George Allan, Deacon of the incorporation of Ham­ mermen of the borough of Kinghorn, and of An­ drew Garnock and Charles Cock, freemen of said in­ corporation, U NTOHE RIGAGBI L TH A T the petitioners having, in terms of the statute of the 1 6th of his late Majesty, preferred a complaint rela­ tive to the election of James Hunter as deacon of the in­ corporation of hammermen of the town of Kinghorn, made in September 1769; who, upon a competition with the peti­ tioner, George Allan, had been admitted as deacon to si t in coun­ cil by the magistrates and town-council o f Kinghorn; after va­ rious procedure in consequence of this complaint, your Lordships, on the 6th instant, were pleased to pronounce the following in­ terlocutor. “ The Lords having advised this petition and com­ plaint, answers thereto, replies, and duplies of parties, hinc inde, with the testimonies of the witnesses, and writs produced, me­ morials hinc inde, and whole other procedure in the cause, and heard parties procurators thereon, in their own presence, they dismiss dismiss the complaint as groundless, assoilzie the respondents, and decern: Find the complainers liable, conjunctly and seve- rally, to the respondents, in their full costs of suit; and ordain the respondents to give in an account thereof.” This interlocutor the petitioners humbly beg leave to s ubmit to the review of your Lordships; and as the cause has hitherto been treated perhaps too diffusively, they will endeavour to con­ fine what they have to fay within as narrow bounds as posible. The state of votes, as given at the election for the two competitors, were as follow. For George Allan. 1. David Wilkie, 2 John Bruce,3 Geo. Duncan,4 Cha. Cock, 5 Andrew Garnock. 6. Alex. Ruffel,- 7- Peter Galloway, 8. John Douglas, 9- James Balfour,1 0. George Allan, 11. Jo. Moyes, new in­ trants.12. Da. Currier, 1. And. Crambie, Deacon, 2 James blunter, 3 Alex. Forrefter, 4 William Laverock, 5 James Kilgour, 6 John Flockhart,7 William Whyte, 8 Rob. Reikie, 9 Peter Hunter, new in­ trants.1 0 W ill H u n te r For James Hunter. Were all these votes unexceptionable, the merits of the election would be clearly in favour of the petitioners; but the respondents object to the votes of Alexander Ruffel, John Moves, and David Currier, as irregularly admitted members of the incorporation; to the votes of Peter Galloway and John Douglas, as being non-resi- dents; and to the vote of James Balfour, on account of its being given by proxy, he himself not being personally present. Thus they attempt to reduce the number of qualified voters for the peti­ tioner George Allan to the number of six. The petitioners, on the other hand, object to the votes of Peter and William Hunters, on on account of their irregular admission as members of the incorpo­ ration; and to the vote of Robert Reikie, on account of his ha­ ving been struck off the rolls of the incorporation many years a- go, by reason of his failure in payment of his quarter-dues, which dues he had not paid up at the time of the election. The petitioners will endeavour to shew, by discusin g the merits of the objections made to the qualifications of the several voters, that there were truly a majority of qualified voters who gave their votes for the complainer George Allan to be deacon of this in­ corporation in September 1769; and they hope, as well on this ground as on account of sundry material objections that occur to the form and mode of the election of James Hunter, that your Lordships will be moved to alter your former interlocutor; and either to declare the election of the complainer George Allan, or, in terms of the statute, to render void the election altogether. The petitioners will beg leave to begin with considering some general positions in point of law, which, if once cleared up, and ascertained, they hope will prove of considerable utility in deter­ mining the merits of this case; and, being taken first in the ab- stract by themselves, will create less embarrassment and confu- sion when the petitioners proceed afterwards to the point of fact. The first position in point of law the petitioners beg leave to maintain is this, That neither the deacon of an incorporation, nor the preses of any legal body-collective, has a negative before de­ bate, so as to prevent business from being transacted in the incor­ poration; nor can he, after business is actually moved there, pre­ vent its being brought to an issue by his own sole authority, either by adjourning the meeting of the incorporation, or leaving the chair, and departing from the meeting; but that, on any such e- mergency, the meeting having been once legally configured, conti­ nues a legal meeting st i l l; and while the majority of them remains together, they may conclude and determine upon every thing pro­ per for their cognisance. The petitioners apprehend, that little argument need be used to establish this position in point of law, which indeed seems to be in a great measure self-evident. The presiding officers in incorpora­ tions are, properly speaking, the servants, not the mailers, of the community. The power of managing and directing the affairs of the community is lodged, not with them, but with the collective body of the members; and their office, properly speaking, is to further further and facilitate the business, by attending to what is neces- sary for the welfare of the community, by calling meetings when requisite, and by laying before those meetings such affairs as re­ quire their deliberation and determination. These are duties in­ cumbent on the presiding officers, qua such; and if they do not discharge these duties, they are guilty of malversation, and the law will compel them to discharge them by extraordinary reme­ dies, or else take such measures as may prevent the affairs of the community from suffering by their malversation. To suppose that the law had vested an absolute and uncontrolla­ ble power in the presiding officer of an incorporation, to call meet­ ings only at such times as he thinks proper; to allow no business to be laid before the meeting, but what he himself pleases to state; to refuse to call a vote himself, and to suffer no vote to be called by any one else; and, whenever the body-collective of the incorpo­ ration seem inclinable to form a resolution, or have already form­ ed one, disagreeable to him, that it shall be in his power, by ad­ journing the meeting, or leaving the chair, to prevent that resolu­ tion from passing into an act, would be, in other words, to say, that the law hath verted the whole power of the administration in the presiding officer, only subject to a negative in the collective body of the incorporation: for such powers as these must of ne- cessity lodge the management entirely in his hands; no body could do any thing but him; all that the incorporation could do, would be to thwart him sometimes in his intentions. The petitioners, therefore, do humbly assume it as a principle, That a meeting of an incorporation regularly assembled, may take under their consideration every kind of business proper for their cognisance, whether proposed by the deacon, or by any other mem­ ber: That having deliberated upon this busin ess, they may deter­ mine upon it by the majority of votes, even though the deacon should refuse to do the duty of his office, by calling the vote: And having thus determined upon the business, they may carry their determi­ nations and resolutions into execution, by parting an act thereon, even though the deacon should pretend to adjourn the meeting, or should run off, and leave his chair. The next general position in law the petitioners will beg leave to assume is, That, by the common law of Scotland, non-residence does not disqualify those who have been legally admitted members of an incorporation, from using and exercising the right of voting in the the elections of office-bearers for the incorporation; but that, on the contrary, non-resident members, as well as others, if present at the election, are intitled to give their vote; and their vote is e- qually efficacious with that of the resident members. This is a point of very considerable importance with respect to the police of the royal boroughs of Scotland, and is perhaps more intimately connected with the conditional freedom of the election of members of parliament, a matter of the highest importance to the nation in general, than may at first fight appear. It is well known what sums of money have, without scruple, been debursed of late years in matters connected with the election of mem­ bers of parliament. It is well known, likewise, of how small value the whole property of many of the royal boroughs of Scotland is. Should it once be underflood, that none but residents had a title to vote in the borough-elections it would become a piece of election- traffick, to buy up the whole property in some of these smaller bo­ roughs, and remove the whole burgesses, or at least as many of them as it might be for the interest of the purchaser to remove, ei­ ther to annihilate the borough altogether, or at least to annihi­ late such a proportion of its constituent members as might mo­ dulate to the purpose of the person whose property it was. It is believed there are sundry boroughs in Scotland which are the property of single persons, or at least of a very few individuals, whose interest center in a single person. To establish as law, that non-residents could vote in no kind of borough-election, would be to reduce the magistrates, town-council, and community of such boroughs, to a mere shadow; and to vest their solid and substan- tial rights, both civil and political, in the proprietors of the bur­ gage-tenements. The petitioners have heard of one borough which is the proper­ ty of a private gentleman. The borough they mean is that of New Galloway, which belongs entirely in property to the family of Kenmore. They have heard likewise that the magistrates and town-council of that borough have at times ventured to differ in political matters, particularly in the election of a member of par­ liament, from the sentiments of the proprietor; the consequence of which was, that they were removed from the borough per a- vers ionem, and had not access to a hous in it. They have not however heard, that they were on this account thought under any legal disqualification to elect their successors in office. Indeed Indeed the sundry acts of parliament which have from time to time been made, requiring that the provost and bailies of boroughs should be inhabitants, sufficiently evince, that by the common law residence was no necessary qualification, even in the office- beaters of the highest rank: for if it had, these statutes would have been unnecessary. Hence the statutes 1487, ch. 108.; 1535 ch. 26.; and 1609, ch. 8. T hese statutes, however, it will be observed, respect magistrates only. They make no mention of counsellors; and being correctory laws, they are st r ictly interpreted, so as not to extend even to counsellors, far less to those who are no office-bearers in any sense, or representatives of the community, as counsellors are, but who vote in their own right in the election of those representatives. Accordingly, in the general warrant for a pole in all the boroughs, issued by the convention of estates at the Revolution, there is not a tingle word about non-resident burgesses; but, on the contrary, the order is general, for convening the ha­ bile burgesses: and who are the habile burgesses, is afterwards ex­ plained, by the exclusion of honorary burgesses, town-servants, pensioners, and beadsmen. * In conformity with these principles, your Lordships, in a late case, Sir William Dunbar and others, against the magistrates of Forres, 7th January 1757, found, in an action of declarator brought for having it ascertained, that none but residing burgesses could be counsellors in the borough of Forres, that residence was no ne­ cessary qualification in a counsellor, and therefore assoilzied from the declarator. It hath been argued, That the seal of cause in the present case re- stricts the right of freedom in the incorporation to the inhabitants of the borough. But the petitioners apprehend, that there are no such restrictive words in the seal of cause. The petition indeed on which it proceeds, runs in the name of “ Andrew Stevenson smith, John Douglas mason, and David Laverock wright, for them- selves, and in name and behalf of all smiths, masons, and wrights, glassen-wrights, saddlers, sclaters, sieve-wrights, tan­ ners, painters, brewers, plumbers, and others their adherents that may inhabit the said borough hereafter but there is no­ thing in the seal of cause that rest r icts the privilege to inhabitants only. On the contrary, the first clause of it, which relates to the election of a deacon, is in these words: “ That the haill craftsmen of the crates shall, yearly, chuse to themselves a deacon at the time, time, likeas craftsmen in other boroughs does, who shall rule and govern in the said craft in all good rule and order as effects; to which deacon all the rest of the confraternity shall give obe­ dience in all lawful and honest things concerning the said crafts; and this election shall only be with freemen of the said crafts that are burgesses, and no others, to give vote therein.” The reference to the practice of other boroughs in this clause, the peti­ tioners apprehend clearly relate to the common law of boroughs in general; of consequence the practice of Edinburgh, and a late de- cision of your Lordships concerning the election of a deacon in the town of Edinburgh, have been most improperly introduced into the present case by the respondents, since it is a particular consti- tution in the set of Edinburgh, that those freemen who have left off residing within the town of Edinburgh, are not intitled to e- lect, or be elected into the offices of the incorporation. The com­ mon law of boroughs in this particular, the petitioners have en­ deavoured to shew, is, that when a person is once regularly admit­ ted to the freedom of an incorporation, he is intitled to vote in their elections, whether he resides within the borough or not. The third point of law the petitioners shall beg leave to assume is, That where a person is with-held by force and violence from an election, he may signify his vote qualitercunque; and if such vote so given, can have an effect on the merits of the election, it ought to be counted, and have its full effect; and even though it should have no effect at all on the merits of the election, yet where illegal force and violence is practised, in order to influence an election, and a voter is thereby with-held from being present at the election itself, such force and violence must have the effect of annulling the election with respect to which it was practised. That a person with-held by illegal force, from being present at the election, and giving his vote there, may cum effectu declare how he would have voted had he been present, the petitioners appre­ hend, is consonant to right reason, and the nature of things. The very idea of an election includes freedom of vote and opinion, which is destroyed by force and violence; and the law, for that rea­ son, in matters of election, will s upport to the utmost every free act of the will, in opposition to such force and violence; and by rendering effectual the one, destroy the pernicious consequences and effects of the other. Hence your Lordships have been in use to support elections made by a part of the magistrates and council only, only, assembled in private, when the public place of election was occupied by a mob, and the persons of a number of the councilors kept confined by that mob, as happened in the case of the town of Dumfries at Michaelmas 17 59: and in the same way, there seems no doubt, that if each of the members had been carried to a separate place by the mob, and had there executed a declaration in what manner they would have voted had a meeting been held, your Lordships would have sustained the majority of such declara­ tions as so many legal votes, and from that declared an election, rather than to have allowed the borough to fall into anarchy from the riotous proceedings of a mob, or any other species of violence. So far then the petitioners humbly apprehend the matter is clear, that where a person violently with-held from being present at the meeting, and giving his vote in the regular and usual method, sig- nifies clearly and explicitly how he would have voted had he been present; such declaration, if it can have an effect upon the merits of the election, is sustained as equivalent to a vote. But, in the case where either no such declaration is given, or where, being given, it is not sufficient of itself to affect the merits of the election, which are carried on the side on which the violence was used there, it is humbly apprehended, the law will neverthe- less reduce and set aside that election with a view to which the force and violence has been pract i sed. For, when parties interested in election-matters go so far as to commit acts of violence in order to influence them, it will not be presumed, that such acts of violence were committed, to produce no effect whatever. Hence, when a person appears to be detained from the election, whose single vote was not sufficient to determine the merits of it one way or other, it is to be prefumed, that the parties guilty of the violence had something more in view, than bis vote alone. It is well known, that the prefence of particular people in election-meetings, is often of much more consequence than their votes; for though, now-a-days, it can hardly be expect- ed that elections should be carried by the force of persuasion alone, yet there are not wanting instances, where the mention of particu­ lar facts and circumstances at election-meetings, have had their weight. Objections too to the qualifications and rights of particular voters, are often of great importance; yet it is not every person to whom such objections occur, or perhaps knows the facts on which they are founded; and even when they do occur, it is. but few that that have the faculty of stating them properly. For these, and for many other reasons, the presence of a particular person at an elec- tion-meeting, is often of very great importance, and will weigh much more than his vote. Besides all this, when an open act of violence is committed a- gainst any member, apparently with a view to influence a particu­ lar election in which he has a vote, the effect of such violence can by no means be considered to be confined to him alone. It in some degree operates upon every unbiassed member of the corporation or society who are to make the election, by the terror it diffuses and the dread it occasions, that similar practices may be used re- specting them all; more especially where the act of violence is committed under colour of law, upon pretexts which affect not one person only, but the whole body of unbiassed electors. An act of violence therefore against one member of the incorporation, must be considered as vitiating the whole election, in so far as carried in favour of the users of such violence, by the terror and conf usion with which it must be considered to affect the minds of the other electors; and therefore, though the vote of a person violently with­ held from the election, might not be suff icient per s e to alter the merits of the election, yet the election made, must, in consequence of such force and violence, be set aside. These general principles being premised, the petitioners will now proceed to apply them to the facts in the present case. And they will, in the first place, begin, with considering the effect of them on the qualifications of those members who voted in the interest of the petitioners in the election, and whose votes had been objected to by the respondents. The first of these which naturally falls under the cognisance of your Lordships is, the vote of Alexander Russel, who, on the 24th January 1769, was admitted a member of this corporation, having been rejected formerly at a meeting 13th November 1768. With respect to him, it stands admitted, that he hath been regu­ larly bred to the business of a wright; that he gains his livelihood by working at that business; and that having formerly attempted to work at his business within the town, when neither, a burgess nor freeman of the incorporation, he was on that account fined and obliged to take out a burgess-ticket, at no less an expence than, L 50 Scots, which was indeed all that he was worth in the world. He then applied to the incorporation to be made free with them: he he was upon that occasion rejected; and had he been a man of o- pulence, after what had happened, he would in all probability have endeavoured to procure redress, by applying to superior powers. He was not, however, able to proceed in this way; and therefore he rather chose to let the matter lie over, till he should try by persuasion to bring over the members of the corporation. Accordingly it stands in proof, that he repeatedly applied to the deacon, to be allowed a second hearing, (as the phrase of the in­ corporation is); and that he had actually prevailed on the majority of the members of the incorporation, to agree to receive him: but though the deacon had actually promised him a second hearing, yet he never would call a meeting of the trade for that purpose. What his motives in so doing were, the petitioners will not say, he himself is best able to explain them: but after the poor man had been severely fined for working at his trade, without being free of the incorporation, and after he had been obliged to lay out all that he was worth in the world in the purchase of a burgess-ticket to pave the way to his admission into the trade, the deacon’s decli­ ning to call a meeting, will not appear in a very favourable point of view. At last however, on the 24th January 17 69, a meeting of the trade was formally called in the usual way, by a citation given by the trades-officer. The respondents pretend, that this was no meeting for business, but only to drink a glass together. They have not, however, pretended to say, that the purpose of the meet­ ing was intimated to be for drinking only; and as it was called in the usual way that meetings of business are called, every member of the incorporation must naturally have presumed, that it was a meeting for business: and it is something singular in this deacon, that he could find time to call meetings to drink, though, upon the repeated request of a poor man whose livelihood depended on it, he would not call a meeting to give him an opportunity to have it determined by the corporation, whether they would agree to ad­ mit him a member or not. The meeting accordingly assembled, some of Russel’s friends moved a proposal for admitting him. The deacon, though he had so often promised to give him a second hearing, objected to any thing being done concerning it. The majority of the meeting pre­ sent, however, were of opinion, that he ought to be admitted; but the deacon declined putting a vote: upon which another mem­ ber ber of the incorporation called the vote; a thing, it is apprehend­ ed, no wise irregular, when the deacon refused to do his duty in. this particular. The deacon, finding the vote to carry for the man’s admission, showed so strong a bias against him, that he run off, and left the room. The meeting, however, remained together; made an act admitting Russel a freeman; and as the deacon was not there to sign it in the usual way, it was signed by the whole members who had voted for him. If the petitioners are right in the general principles they have formerly laid before your Lordships, concerning the duty and powers of presiding officers in incorporations, they humbly appre­ hend, that this admisio n of Russel must be valid and effectual: for though it proceeded not in the common and ordinary form, yet all deviations from that form were matters of mere necesi t y, ari- sing from the perverseness and malversation of the deacon, in re­ fusing to do his duty: and if the actings of an incorporation, un­ der such circumstances, are not valid, the consequence must be, that the powers of corporations, to administrate their own affairs, must be at an end, and the presiding officers may usurp an abso- lute and incontrollable power over them. One thing is remarkable, that though this admission happened so long ago as January 1769, that is, about eight months before the election in question; and although Russel, in consequence of this admission, did bona fide enter upon the exercise of his business as a wright in the town of Kinghorn, and has wrought at it ever since; yet the deacon, nor none of his adherents, ever thought pro­ per to complain of this admisio n, either by an application to the magistrates, or a suspension or reduction in this court; but allow­ ed Russel, and all the inhabitants of the town, to consider him as unexceptionable a member of the incorporation, in every respect as any other. The petitioners therefore do, with submisio n, apprehend, that Russel was, to all intents and purposes, at the time of the election, a member of this incorporation, and intitled to give his vote as such; and that, at any rate, though that had been doubtful, yet being in possesio n of the privileges of the incorporation without challenge, his vote fell to be sustained, till such time as his right was reduced and set aside by a proper action; which has not been done to this hour. So So much with respect to the vote of Russel. Regularly, the pe­ titioners should next proceed to consider the qualifications of Moyes and Currier, the legality of whose admisio n is likewise objected to; but as that involves some other questions concerning the confine­ ment of Balfour, the petitioners will delay the consideration of them, till such time as they have discussed those questions concerning Balfour; and they will next proceed to the votes of Douglas and Galloway, who were objected to on account of non-residence. In point of fact, this objection is clearly ill founded as to Gal­ loway; as it is in proof, that having resided for a number of years in Newcastle, and his family being now grown up, and settled in different employments, he, a short while before the election 1769, returned to Kinghorn with his wife, resolving to spend the remain­ der of his days there; and accordingly hath resided in that place ever since, and wrought regularly at his trade: so that he is as much, in every point of view, to be considered as a residing free­ man, as any other member of the incorporation. With respect to Douglas, the petitioners submit to the considera­ tion of your Lordships the general principles of law they have da­ ted, respecting the effects of non-residence on the vote of a free­ man. They humbly hope, that your Lordships will be of opinion, that there is nothing in the common law of Scotland that disqua- lifies a non-residing freeman from voting at any election where he happens to be present; neither does there appear any thing in the particular set or constitution of this borough that can produce this effect. On the contrary, there is in evidence, sundry different instances, where non-residents have been admitted to vote in the different incorporations of this borough, and even one where a non-resident acted as a counsellor. Though these instances are not very numerous, yet they are sufficient to prove the practice of such a borough as this of Kinghorn; in which there are but very few incorporations of tradesmen, and these incorporations far from being numerous; so that a great many instances could not be expect- ed. And it is to be observed, that the respondents have not been able to produce a single instance, where the vote of a non-resident hath been rejected in an election on account of his non-residence. From the common law, therefore, as well as the practice of the borough, the petitioners do humbly contend, that the vote of Douglas was a good vote. The The petitioners will bow proceed to consider that part of the cause which respects the vote of Balfour; or, to speak more pro­ perly, the violence practised against Balfour: for the petitioners do humbly contend, that the effect of this violence in law, goes much farther than the validity or invalidity of Balfour’s vote alone. It appears, that on the 15th September, Crambie, the then dea­ con of the incorporation, called a meeting, to be held at the box- master’s house. This was certainly a meeting intended for busi- ness; though what the business proposed to be transacted at it was, or, in general, what the purpose of this meeting was, was not inti­ mated at the calling of the meeting, as it never is. It is believed, however, the deacon had in view to strengthen his hands at the e- lection,'’ by getting some sure cards of his own admitted members that night. When the members of the incorporation met, the deacon was not there. He was sent for; but he refused to come: he was told, that if he did not come, as business must be done, the box would be opened, but he still positively refused to come; saying, he could not help it. The meeting was accordingly held: an application was made by Moyes and Currier to be admitted freemen; neither of the key- keepers of the box attended this meeting; and as the corporation wanted access to their records, the box was opened in their pre­ sence with a crooked nail, and afterwards nailed down ag ain. Moyes and Currier were admitted; and that there might not be a pretext for accusing the meeting of underhand proceedings, they adjourned till next day, to give an opportunity of overhauling all that had been done in a full meeting of the corporation. These proceedings were made no secret of by the members; and it cannot be a doubt, that they were no secret to the Deacon in particular, who had called the meeting himself, who had been re­ quired by the members to come to the meeting after they had been convened, and who had been told, that if he did not come there, the box would be opened. He would not fail to inquire, what had been done in his absence, and to learn every particular. How affected, then, must that application appear to be, which, on the 20th September, was presented in his name to the Provost and Bathes; wherein, after narrating that Kilgour and Flockhart had been forcibly detained on the evening of the 15th, which was the occasion of his not holding a meeting of the corporation that day day, he proceeds thus. “ But it is informed, That some lawless persons, unknown to the petitioners, hut no doubt in corre- spondence with the other lawless persons by whom the mem­ bers were confined as above, went to the house of Charles Cock mason in Kinghorn, who is intruded with the custody of the box where the society’s books and papers are contained, and which box, it it informed, they did, in a lawless manner, seize, break up, carry away, or intromit with, the books and papers therein contained, to the great prejudice of the corporation, and to the breach of all good order: That the petitioners being re­ vived to have the persons who shall appear to be guilty of, or actors art and part in, the commission of the foresaid crime, brought to legal trial, and cons ign punishment; therefore ne- cessary it is, that a precognition thereof be taken, in manner after mentioned And craving, that it may please their Ho­ nours “ to grant warrant for summoning witnesses to appear be­ fore them, in order to be examined with respect to the facts a- bove mentioned, and with respect to the persons guilty there­ of.” T he affected style of this petition, craving an inquiry into a fact which the petitioner well knew; the delay in presenting it for five days, so as to bring on the precognition within twenty-four hours of the election, by which means there was no opportunity of applying for redress to your Lordships, so as effectually to dis­ appoint the improper views of Crambie and his friends; and the use that was actually made of this application, by apprehending and confining Balfour, who held a very material office in the cor­ poration, with respect to election-matters, viz. that of clerk; can leave not the least doubt with respect to the end and purpose of of this application. A warrant is obtained from the Provost, and one of the bailies, in consequence of which, a number of witnesses were cited. Had a precognition for discovery really been intended, the natural course of that precognition was self-evident. The first witness that tell to be called and examined was the boxmaster, the legal custodier of the box, containing the records of the corporation, and every­ thing else to which the petition related. But to have examined him, would not have answered the purpose of the Deacon, and his political friends in the borough. He would have produced the box itself, containing the books, and all the other effects, of the corporation, corporation, and have cleared up the whole matter in such a way, as would have left no ground for any farther political operations, under the pretext of this precognition: Therefore, after examining Kilgour and Flockhart concerning the story of their being forcibly with-held from the meeting of the incorporation, they proceed to call upon Balfour; and, after endeavouring to raise his fears by a harangue concerning the enormity of the crime of breaking open the box, they questioned him concerning the opening of the box on the evening of the 15th. The poor man feeing himself alone, in the hands of his political enemies, and being advised by his friends without doors, not to answer any questions, or sign any papers, they being ju stly apprehensive that advantages might be taken of the indistinct answers the old man might give, and that his declaration might not be fairly taken down, in a meeting where no impartial person was admitted, he refused to answer the questions, or to sign a minute which they had tendered to him. This was ju st what Crambie, and his friend Provost Hamilton, wanted. A warrant of commitment was immediately granted; and though, before it was put in execution, Balfour offered to an­ swer all the questions that might be put to him, the magistrates, under pretext that it was then time to go to dinner, refused to ex­ amine him at that time. Balfour was thereupon confined, notwithstanding the requisition that had been made. No farther procedure was held by the ma­ gistrates respecting Balfour in the afternoon, though it was un­ doubtedly their duty then to have put the questions to him, which he was willing to have answered; nay, by this time, the very pre­ text of the propriety of a precognition was taken off, by a protest, taken against the deacon, and against the magistrates, by the members of the corporation, fairly avowing what had been done with respect to the box of the corporation, and taking it upon the corporation themselves, as their joint act. After this protest, nei­ ther Crambie the deacon, nor the magistrates, had the most distant colour for continuing the confinement of Balfour, because there was not now the smallest occasion for any precognition, nor, of consequence, for compelling him to answer any questio n s; he ought, therefore, to have been instantly liberated. This libera­ tion, however, at this time, would by no means have answered the views the deacon and magistrates had had in confining him; accordingly accordingly they neither examined him, though willing to answer their questions, nor set him at liberty. These things happened on the 2 1 st September: the election came on next day. As James Balfour held the office of clerk, it became necessary to elect an interim clerk to act at the election next day. Accordingly a meeting was called that night for that purpose; and Balfour having given a special proxy to David Wil­ kie to vote, in his name, for John Rutherford, three persons were proposed as clerks, viz. James Rutherford, John Rutherford, and John Mason; but James Rutherford having declined the office, John Rutherford was elected, there being ten votes for him, inclu­ ding Balfour’s proxy, and only eight for Mason. At this meeting, it was proposed to admit Peter and William Hunters; but an objection having been moved, on account of their age, the farther consideration of that matter was, by a vote of the meeting, adjourned till Monday 25th. And the deacon having proposed, that there should be a meeting at his house next day, at nine o’clock in the morning, previous to the election, this was o- ver-ruled by a vote of the meeting; and it was agreed, that they should meet at eleven o clock, as usual, to qualify at the town- house: and the Provost having refused them the use of the coun­ cil-room, the usual place for making their elections, that, imme­ diately after qualifying, they should meet at the house of the box- master, and there make their election. The day following, the corporation met to qualify, as usual at the town house; this is a part of the tolbooth; and the magist r ates were required, under form of instrument, to call down Balfour that he might qualify along with the rest of the corporation. This, however, was refused, and a protest taken on the refusal. After this, the majority of the corporation proceeded to the boxmaster’s house, where a meeting was constituted, and a letter presented from Balfour, of the following tenor. “ Kinghorn prison, 22d Sep- tember 1769. Brothers, As I cannot attend at the election of the deacon, and other office-bearers of our incorporation, for the ensuing year, being confined in prison, within the tolbooth of Kinghorn; this serves to notify, that I give my vote for George Allan to be deacon, Charles Cock to be boxmaster, Georg e Dun­ can, David Wilkie, Andrew Garnock, Peter Galloway, masters Alexander Russel to be keykeeper, and John Bruce also to be key keeper, and John Rutherford writer in Kinghorn to be clerk, for for the ensuing year. I am your faithful brother and servant, (signed) James Balfour. Addressed, To the Incorporation of Ham­ mermen in K in g h o rn. The whole of the members present at the boxmaster’s concurred with Balfour in this election, being those who are stated, in the beginning of this petition, to have voted in the interest of the petitioners. Thus the election appeared to be unanimous, so far as respected that meeting. But the deacon and his friends had, notwithstanding their be­ ing over-ruled by a vote of the incorporation, met, previous to the election, at the deacon’s house; and there, notwithstanding the ad­ journment of the corporation, of the application of the Hunters to be admitted, to the 25th, they had actually admitted them; nay farther, they had there appointed the meeting for election to be at the deacon’s house, after the members had qualified; and there, it seems, the deacon’s friends, being a minority of the incorporation, made the election complained of. As the imprisonment of Balfour was in the beginning most ille­ gal, being made on the pretext of a precognition for inquiry into a matter, of all the circumstances of which, not only the deacon applying for the precognition, but the magistrates, to whom the application was made, were well informed o f; so it was continued, when even the affected pretext for it was entirely removed, by the whole matter of fact concerning which the inquiry was pretended to be made, being notified, under form of instrument, both to the deacon, and to the magistrates; and the whole circumstances re­ lative to it leave not the least room to doubt, but that the whole was a device practised for influencing the election. Indeed the proof shows, that the intention of opening the box, and taking out the book, was notified to the Deacon by a deputation of his bre­ thren before it was done; and the circumstances attending it were likewise fully explained at the meeting of the 2 1 st for chusin g an interim clerk, as appears from the minutes of both parties; and yet this fac t of opening the box, was the sole pretence of impri- soning Balfour, and of confining him till after the election was over. Now, this being the case, the petitioners humbly contend, in conformity with the general principles they have above endeavour­ ed to maintain, That the vote of Balfour, who was with-held by violence, both from the meeting for the election of an interim clerk, and accordingly they neither examined him, though willing to answer their questions, nor set him at liberty. These things happened on the 2 1 st September: the election came on next day. As James Balfour held the office of clerk, it became necessary to elect an interim clerk to act at the election next day. Accordingly a meeting was called that night for that purpose; and Balfour having given a special proxy to David Wil­ kie to vote, in his name, for John Rutherford, three persons were proposed as clerks, viz. James Rutherford, John Rutherford, and Jo h n Mason; but James Rutherford having declined the office, John Rutherford was elected, there being ten votes for him, inclu­ ding Balfour’s proxy, and only eight for Mason. At this meeting, it was proposed to admit Peter and William Hunters; but an objection having been moved, on account of their age, the farther consideration of that matter was, by a vote of the meeting, adjourned till Monday 25th. And the deacon having proposed, that there should be a meeting at his house next day, at nine o’clock in the morning, previous to the election, this was o- ver-ruled by a vote of the meeting; and it was agreed, that they should meet at eleven o’clock, as usual, to qualify at the town- house: and the Provost having refused them the use of the coun­ cil-room, the usual place for making their elections, that, imme­ diately after qualifying, they should meet at the house of the box- master, and there make their election. The day following, the corporation met to qualify, as usual, at the town house; this is a part of the tolbooth; and the magistrates were required, under form of instrument, to call down Balfour, that he might qualify along with the rest of the corporation. This, however, was refused, and a protest taken on the refusal. After this, the majority of the corporation proceeded to the boxmaster’s house, where a meeting was constituted, and a letter presented from Balfour, of the following tenor. “ Kinghorn pris on, 22d Sep­ tember 1769. Brothers, As I cannot attend at the election of the deacon, and other office-bearers of our incorporation, for the ensuing year, being confined in prison, within the tolbooth of Kinghorn; this serves to notify, that I give my vote for George Allan to be deacon, Charles Cock to be boxmaster, George Dun­ can, David Wilkie, Andrew Garnock, Peter Galloway, masters, Alexander Russel to be keykeeper, and John Bruce also to be keykeeper, and John Rutherford writer in Kinghorn to be clerk, for for the ensuing year. I am your faithful brother and servant, (signed) James Balfour. Addressed, so the Incorporation of Ham­ mermen in Kinghorn." The whole of the members present at the boxmaster ’s concurred with Balfour in this election, being those who are stated, in the beginning of this petition, to have voted in the interest of the petitioners. Thus the election appeared to be unanimous, so far as respected that meeting. But the deacon and his friends had, notwithstanding their be­ ing over-ruled by a vote of the incorporation, met, previous to the election, at the deacon’s house; and there, notwithstanding the ad­ journment of the corporation, of the application of the Hunters to be admitted, to the 25th, they had actually admitted them; nay farther, they had there appointed the meeting for election to be at the deacon’s house, after the members had qualified; and there, it seems, the deacon's friends, being a minority of the incorporation, made the election complained of. As the imprisonment of Balfour was in the beginning most ille­ gal, being made on the pretext of a precognition for inquiry into a matter, of all the circumstances of which, not only the deacon applying for the precognition, but the magistrates, to whom the application was made, were well informed of; so it was continued, when even the affected pretext for it was entirely removed, by the whole matter of fact concerning which the inquiry was pretended to be made, being notified, under form of instrument, both to the deacon, and to the magistrates; and the whole circumstances re­ lative to it leave not the least room to doubt, but that the whole was a device practised for influencing the election. Indeed the proof shows, that the intention of opening the box, and taking out the book, was notified to the Deacon by a deputation of his bre­ thren before it was done; and the circumstances attending it were likewise fully explained at the meeting of the 21st for chusing an interim clerk, as appears from the minutes of both parties; and yet this fac t of opening the box, was the sole pretence of impri- soning Balfour, and of confining him till after the election was over. Now, this being the case, the petitioners humbly contend, in conformity with the general principles they have above endeavour­ ed to maintain, That the vote of Balfour, who was with-held by violence, both from the meeting for the election of an interim clerk, and and for the election of a deacon, being explicitly signified in both cases, falls to be accounted as equally valid and effectual as if he had been present, in case it can have any influence upon the merits of the election. What effect it can have, the petitioners will hereafter have an opportunity of conndering. The next disputed votes in the interest of the petitioners are those of Moyes and Currier, who are objected to on account of the irre­ gularity of their admission. The objections on this head seem to resolve into these two: 1st, That the motion for their admission did not come from the deacon, who was not present at the meeting where they were admitted; and, in the next place, That they be­ longed to none of those professions who were intitled to be mem­ bers of the corporation by the leal of cause, being designed Riddle- makers. As to the first of these objections, the petitioners do humbly ap­ prehend, that it is obviated by the general principles they have had occasion above to argue, concerning the powers of the presiding officer of an incorporation. The meeting at which these men were admitted, it stands confessed, had been regularly called together by the deacon; but he thought proper not to attend it after it was called, though required by a message from the members to attend. In this situation, the petitioners apprehend the meeting was in- titled to proceed to business; and so far were they from attempt­ ing to take any catch, or wishing to do so, that, after they had concluded their business, they adjourned till next day, and then held another meeting for the purpose of revising and overhaul­ ing all that had been done; where the proceedings of the former day, upon being reconsidered, were approved of. Neither will the absence of Flockhart and Kilgour from that meeting be of any consequence. It does by no means appear, that they were forcibly detained; on the contrary, it seems evident, that they kept away on purpose; and unless force was used to prevent their being present, their absence can have no effect. As to the other objection, it seems to proceed upon a mere quib­ ble. In the common language of this country, sievewrights and riddlemakers are the same thing; but sievewrights are expressly mentioned in the seal of cause; and therefore a man may be ad- mitted under the denomination of a riddlemaker. That the men actually do make riddles, appears from the proof; and indeed the art art Is not so great a mystery but that it may be soon attained by any one. 7 The petitioners have now considered the objections made to the voters in their interest; they will, in the next place, state those made to the voters in the interest of the respondents. The first objection that occurs, is that made to the votes of the two Hunters, on account of their irregular admission. The irregularity of their admission, the petitioners apprehend is apparent: They were admitted by a pat meeting of a minority of the incorporation, without the knowledge or consent of the majority, on the very morning of the election, and that too after it had been determined, by a vote of the full meeting of the incor­ poration, to postpone the consideration of their application for some days, for a very important reason, viz. That they appeared from their looks, not to be of age, and no evidence was produced or their being so. And this leads to another very material objection against one of them, viz. William Hunter, That he really was not of age at the date of the election; and it is not denied, that he was not one and twenty till the 3 1st of December following; of consequence he could not vote at the election itself, whether he had been regu- larly admitted or not. Besides, it is an admitted fact that the two Hunters were not received in any shape into the corporation, nor gave any vote at the election of the interim cleric on the 2 1st, and when some other points were settled, upon which the after proceedings on the elec­ tion-day necessarily turned; so that in all these views the two Hun- ters fall to be laid entirely out of the question. Another member who gave his vote in the interest of the respon- dents, and whose vote is objected to, is Robert Reikie. The ob- jection made to him is, That he had been long struck off the roll or the incorporation on account of his failure in payment of his quarter-accounts, insomuch that, in September 1757, he is sta- ted as in six years arrear of his quarter-accounts; and in Sep­ tember 1758, was left out of the roll of the incorporation altoge- ther, and has continued in that state ever since. On 1 2th Novem- ber 1768 when Alexander Russel first applied to be admitted a member of the incorporation, Reikie appeared at the meeting of the incorporation, and offered his vote; but he was at that time re­ jected jected as disqualified, though, upon his coming into the measures of the deacon, and paying in 9 s. which he said he thought might be the amount of the arrears due by him, the respondents thought proper to consider him as a good vote. But this did not happen till the day of election; and the objection was good against him on the 2 1st, when he voted for the interim clerk. The objection is expressly founded in the books of the corporation, which con­ tain a posit ive act or regulation to that purpose; and the same was read to your Lordships when the cause was advised. The petitioners believe it is the universal practice in Scotland, when a man falls short in payment of his quarter-dues to an incor­ poration, to cut him off from the privilege of actin g or voting a- mong them, till such time as his quarter-dues are paid up; and being once in this si tuation, it is a sufficient objection to his act ­ ing in any case, that he has not paid up every farthing; in which case, no doubt, he may be admitted again to bis privileges. It appears from the books of this corporation in process, that the quarter-accounts of each member is 1 s. Sterling yearly; con- sequently, in September 1757, Reikie was owing 6 s. Sterling; and as twelve years had elapsed from that time to the election 1769, he was then owing the corporation no less than 18 s. Ster­ ling of quarter-accounts. And a good objection lay to his vote till he had discharged every farthing of that sum; but it appears that he paid in no more than one half, consequently he was nine years in arrear of his quarter-accounts at the date of the election in question; and the objection that was made to his vote on that account, was a good objection, and fell to be sustained. Hence his vote falls to be deduced from the number of votes given in the interest of the respondents. The petitioners having now considered the objections to the qua­ lifications of the voters on both sides, will beg leave to consider the effect they have on the merits of the election. If all the votes given in the interest of the complainers are to be considered as good, and the three objected to in the interest of the respondents are to be set aside, the merits of the election will stand in favour of the complainers, twelve to seven. If the admission of the Hunters is to be sustained, but William Hunter to be rejected on account of his minority, the merits of the election will be twelve to eight. If I f Moyes and Currier are to be set aside as irregularly admitted on the part of the complainers, that reduces their number from twelve to ten. I f John Douglas is also to be set aside on account of his non- residence, that reduces their number to nine. And if Alexander Russel shall be considered as not properly ad­ mitted a member, that will reduce them to eight; in which case they will still be the majority, if your Lordships sustain the objec­ tions to Reikie and the two Hunters. In stating these numbers, the petitioners have presumed, that your Lordships will sustain the vote of Balfour as a good one; but if your Lordships have any difficulty how far you can sustain it, on account of the way and manner in which it is given, the peti­ tioners do humbly apprehend that you will have no difficulty, on account of the illegal violence that appears to have been practised in confining him with a view to this election, to set aside and make void the election of the respondents, in conformity with the principles which the petitioners have endeavoured formerly to main­ tain. Your Lordships followed this rule in the case of Cuningham of Balbougie, against Sir Robert Henderson of Fordel, relative to the elections of Inverkeithing at Michaelmas 1744, where Sir Robert Henderson obtained a majority, by keeping out certain old deacons who had a title to be admitted. The interlocutor of the court was in these words: “ The Lords having advised the Rate of the process, testimonies of the witnesses, writs produced, and debate, they sustain the reasons of reduction of the election of the defenders, Sir Robert Henderson, as Counsellor and Provost John Kirkaldy as Bailie, and William Roxburgh, as Dean of Guild, of the bo­ rough of Inverkeithing, at Michaelmas last in respect of the force used to keen out the old deacons from entering the council- house, where they had a right to be, and to vote in the election of new counsellors; and decern and declare the election of the said defenders to be void and null. And further find and de­ clare the election of the complainers, Mr John Cuningham, ad­ vocate, as provost David Rankine as bailie, Robert Wilson as dean of guild, John Craick and William Thomson, as counsel­ lors of the borough of Inverkeithing at Michaelmas last, to be legal and valid.” And in the same cause another instance of vio­ lence lence happened in the election of a deacon, Sir Robert Henderson having laid hold of one Jap, a member of the shoemaker-trade, and imprisoned him, under pretence of his being an old collier, bound to Sir Robert’s works; and under the influence of this con­ finement, prevailed on him to give his vote for Sir Robert' s friend Andrew Small, whereas he had formerly been engaged for George Kelloch, the other competing deacon. The interlocutor as to this was in these words: “ Find the complainer George Kelloch duly elected deacon of the weavers: And find it proven, That the vote of Thomas Jap shoemaker, for Andrew Small, to be deacon of the shoemakers, was procured by force; and therefore reduce the election of the said Andrew Small; and find the complainer, Robert Steedman, duly elected deacon of the incorporation of shoemakers. Further, the petitioners do humbly submit to the consideration of your Lordships the irregularity of the proceedings of the re­ spondents in making a secession from the majority; in so far as af­ ter a full meeting of the incorporation, by a majority of voices, had fixed the meeting for election at the boxmaster's house, the minority took upon them to meet by themselves at the deacon’s, without any notification to the rest of the members, and there made the election complained of: Nor will it escape the observa- tion of your Lordships, that the pretext for this was furnished by Provost Hamilton, who cannot be separated from the respond- ents; and who has accordingly, with great keenness, stated him- self as a party along with them in this suit, and seems fond of ex­ hibiting himself as such in the very front of the proof for the com- plainers, by appearing personally, and making objections. He re- fused access to the council-chamber, the common place for making elections; and by that means obliged the corporation to fix on some place else. This secession to the house of the deacon, after the majority of the corporation had fixed on the house of the boxmaster for the place of election, the petitioners apprehend, is a direct violation of the sta- tute 1 6th of his late Majesty; which provides, “ That at the an­ nual election of magistrates and counsellors, and in all the pro­ ceedings previous to the election of the magistrates and counsel­ lors for the succeeding year, it shall not be lawful for the mi­ nority of any meeting for election, either of magistrates or counsellors, counsellors, or deacons, or other persons, who, by the constitu­ tion of the respective boroughs, may have votes in the election of magistrates or counsellors, to separate from the majority of those having a right to act by the constitution of the borough, at such meetings, upon any pretext whatever; nor to make any separate election of magistrates, counsellors, or electors; but the minority shall, in all cases, submit to the election made by the majority, in all the parts of election.” These words are too plain to need any comment: the transgression of them, on the part of the respondents, the petitioners humbly apprehend, are sufficient to make void the election made by the respondents; and as your Lordships never will throw a corporation into anarchy, where it can be avoided, of consequence they afford a good reason for de­ claring the election made by the complainers. May it therefore pleas e your Lords hips, to alter your former interlocu­ tor; to find and declare, That the complainer George Allan was regularly elected deacon of the incorporation of hammermen of King- horn, on 22d September 1769; at least to s et aside and make void the election of James Hunter, as deacon of that incorporation at that time; and to find the complainers intitled to fu ll costs of suit According to ju stice, &c. A N D R E W C R O S B I E. dismiss the complaint as groundless, assoilzie the respondents, and decern: Find the complainers liable, conjunctly and seve- rally, to the respondents, in their full costs of suit; and ordain the respondents to give in an account thereof.” This interlocutor the petitioners humbly beg leave to s ubmit to the review of your Lordships; and as the cause has hitherto been treated perhaps too diffusively, they will endeavour to con­ fine what they have to fay within as narrow bounds as posible. The state of votes, as given at the election for the two competitors, were as follow. For George Allan. For James Hunter Were all these votes unexceptionable, the merits of the election would be clearly in favour of the petitioners; but the respondents object to the votes of Alexander Russel, John Moves, and David Currier, as irregularly admitted members of the incorporation; to the votes of Peter Galloway and John Douglas, as being non-resi- dents; and to the vote of James Balfour, on account of its being given by proxy, he himself not being personally present. Thus they attempt to reduce the number of qualified voters for the peti­ tioner George Allan to the number of six. The petitioners, on the other hand, object to the votes of Peter and William Hunters, on 1. David Wilkie, 2 John Bruce,3 Geo. Duncan,4 Cha. Cock, 5 Andrew Garnock. 6 Alex. Russel, 1. And. Crambie, Deacon, 2 w 9 James Hunter, 3 Alex. Forrester,4 William Laverock, 5 James Kilgour, 6. John Flockhart, 7 William Whyte, 8. Rob. Reikie,9- Peter Hunter, new in­ trants.IO. Will. Hunter, 7 Peter Galloway, 8 J T John Douglas,9 James Balfour, 1 0 George Allan 1 1 Jo. Moyes, new in­ trants.12 Da. Curri6r, 5