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Scottish Court of Session Decisions >>
Captain Haldane, &C. v Admiral Holburn, &C. [1761] Mor 1882 (12 March 1761)
URL: http://www.bailii.org/scot/cases/ScotCS/1761/Mor0501882-025.html Cite as:
[1761] Mor 1882
Bribery in a Michaelmas election of a burgh, can only disqualify the bribers and the bribed. But an election carried by force, is funditus reducible.
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There being a competition betwixt Captain Haldane and Admiral Holburn about the town of Inverkeithing, with a view to the approaching Parliament, the Admiral and his party having the greater number of votes got possession of the magistracy; which occasioned a complaint to the Court of Session by the Captain and his party, insisting that the election of their competitors was brought about by force, and also by bribery and corruption; and concluding, that the election of the defenders should be reduced, and that the election of the plaintiff should be sustained, as having the majority of legal votes.
A proof being admitted to both parties, it was clearly proved against Admiral Holburn, that he had overawed the election by bringing into the town several press gangs, which he employed to keep under confinement some of the electors, and to terrify others; and also, that he had been guilty of gross bribery. But then, on the other hand, it is proved against Captain Haldane, that he also had been guilty of bribery.
In advising this proof, the Judges were unanimously of opinion, 1mo, That bribery can have no further effect than to disqualify the bribers and those who are bribed. 2do, That where force is used, as there are no means for ascertaining what influence it has upon the election, Judges must either give it no effect at all, which never can be right, or give it a total effect to reduce the election funditus. Upon this ground, the Court had no difficulty to reduce totally the election of the Admiral and his associates. As to Captain Haldane's election, several of the Judges inclined to support it. For, laying aside the members of his party who either offered bribes or were bribed, it appeared that a sufficient number remained to constitute a magistracy and council. Though Captain Haldane, elected provost, was disqualified by bribery, yet the election might stand, because there was no objection to the other office bearers; and there remained of counsellors untainted more than is required by the set of the burgh. And supposing the provost to be a necessary member, there was no difficulty to elect a provost de novo, precisely as where a provost duly elected happens to die during his office. But the plurality, impressed with a hatred to bribery imperceptibly working in their minds, refused to sustain the Captain's election. And by that means the town was left to a poll-election.
