Scottish Court of Session Decisions

Subject_1 BURGH ROYAL.

Election of Haddington

1740, Dec. 12.
Case No. No. 13.

Click here to view a pdf copy of this documet : PDF Copy

The question was, Whether the defenders had incurred the penalties of the act 7th Geo. II. for making a separate election at last Michaelmas, notwithstanding their process yet depending of the election 1730, and that they made no secession, and did not remove from the place of election where their majority of the Council 1739 elected at last Michaelmas—in respect it plainly appeared that process was a mere sham, and the defenders had no real intention to have it decided, but to make a pretence for a double election, in order to choose a separate delegate for the election to Parliament;—at least from the procedure in that process we strongly suspected that was the purpose. It was also a separate question, Whether only the eight persons who undoubtedly were Councillors for the year 1739 could incur these penalties, or if also the other seven who pretended to be Councillors, but were not owned by the complainers, would incur that penalty? The President was clear that the eight had incurred these penalties, since the depending process, (though not yet regularly before us) appeared to be all affectation, and so thought Dun, Drummore, and Tweddale. On first reading the act, I imagined that the act was intended to remedy the old abuse of seceding, and there by separating from the majority of the Magistrates and Council was meant seceding. But the President and others talked of it as a thing so certain, that making a separate election incurred the penalty without seceding, that I was willing not only to yield but to conceal my notion. But as great weight was laid on that process being affected, and however much I was convinced of the same thing, yet as it was not yet laid before us, could not give or found any judgment upon it. I desired to know the opinion of the Court what the law as to this act would be, suppose the defenders sincere in that process, yea suppose it well founded,—and in general in every ease where a new election is come on before the controversies anent the former election are finallv decided either here or in the last resort,—even although the Magistrates out of possession had a decree of this Court for them stopped by an appeal,—for as there was no exception of that case in the act, if they were within the purview of it, however the Court might sustain such a favourable plea as a defence against the penalties, yet it could never legitimate the separate election made by them if the act declared it null. If, on the other hand, a separate election in such a case was not within the purview of the statute, then no case could fall under it where the former election was still sub judice. I received no answer till Arniston spoke, and that very fully, that for the above reason this was not within the statute; and as nothing is mentioned in the statute of depending controversies of elections, and I thought die Legislature could never mean, when the Magistrates duly elected were kept out of possession for a year, to void their election for ever, because they were not able to obtain redress before next election, therefore I thought, that according to my first notion of it, the act “by separating from,” &c. meant the same with “seceding;” whereas the Presidents opinion was, that in the case stated, the Magistrates out of possession, though the right of election was truly with them, and it should be afterwards so found, could not make a new election without contravening this act. But upon the question, it carried that the defenders were not within the terms of this act.