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Scottish Court of Session Decisions >>
Thomas High v Robert Main. [1789] Mor 1893 (6 August 1789)
URL: http://www.bailii.org/scot/cases/ScotCS/1789/Mor0501893-033.html Cite as:
[1789] Mor 1893
It is a disqualification from voting, that the party holds an office within the burgh at the will of the Magistrates.
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William Chapman had been appointed town's officer and trade's officer, and John Chapman jailor, in the town of Kinghorn, all of these offices being revocable at the pleasure of the magistrates.
In a complaint, therefore, in terms of the statutes 16th Geo. II. and 14th Geo. III. preferred by Thomas High, it was contended, That the votes given by these men, in electing Robert Main into the office of deacon of the weavers in that town, in exclusion of the complainer, should not be reckoned. The complainer
Pleaded: It is necessary for preserving the independence, as well as the purity of elections, that those persons whose livelihood depends on the will and pleasure of others, should not be admitted to vote. This was provided by the act of the Convention of Estates in 1689, c. 22. which must be considered as declaratory of the common law. It is also ordered, in every warrant that has been issued for a poll election. And although sometimes, in practice, this rule does not seem to have been sufficiently attended to, yet in the later decisions a due regard has been paid to it; 1775, Andrew Paul contra Alexander Fraser.
Answered: It would be carrying the system of political freedom, and the purity of elections, to a great length indeed, if the circumstance of a burgess having an office dependent on the magistrates, were to incapacitate him. No such regulation, however, exists. The directions prescribed in the act of Convention, as well as the warrants for poll elections, which are merely temporary in their nature, suppose the general law to be different; and though the decisions on this point are far from being uniform, those examples in which the objection was over-ruled, as being more agreeable to justice, ought now to be followed.
Some of the Judges being unwilling to deprive any man of his right of voting without a positive regulation or immemorial usage, were inclined to repel the objection; but the majority, moved by the late decisions, being of a different opinion,
‘The Lords sustained the objection to the votes of John Chapman as jailor, and of William Chapman as town-officer and trades-officer; and found, that their votes ought not to have been taken in the election of the corporation of weavers in Kinghorn upon 26th September last,’ &c.
For the Complainer, Dean of Faculty, Alex. Fergusson, et alii.Alt. Tait, Hope, et alii.
Fol. Dic. v. 3. p. 101. Fac. Col. No 87. p. 157.
Nota, A similar determination was given in several other questions of the same kind.
