Petition and Complaint 1766

January 21. 1766, Unto he Right Honourable the Lords of Council and Session, T H E ‘ P E T I T I O N and COMPLA INT O F Robert Alexander merchant in Edinburgh, and William Alexander merchant there, his attorney, Humbly s heweth, T HAT by an act passed in the 7th year of his late Ma-jest y ’s reign, a penalty of L. 500 Sterling, to be re- covered in the way and manner therein set forth, was inflicted upon every common clerk of any pre- siding borough, who should take it upon him wilfully to re- turn to the sheriff or stewart of the county, any person as member of parliament other than the person elected. That by another aft, passed in the 16th year of his said late Majest y, it was enacted, “ That at all meetings of com- missioners for chusin g burgesses to serve in parliament, the common clerk of the presid ing borough shall allow the votes of such persons only who produce commissions, authentica- ted by the subscription of the common clerk, and the com- mon seal of the respective boroughs within the district, and shall return to the sheriff or stewart the person elected by the major part of the commissioners assembled, whose com- missions are authenticated, as aforesaid; and if he neglect or refuse to return such persons so elected to the sheriff or stewart, or if he shall return to the sheriff or stewart, any person other than him who is so elected, he shall, for every such offence, instead o f the penalty or forfeiture to which he is made liable by the aforesaid act made in the 7th “ year year of his present Majesty, forfeit the sum o f L. 500 Ster- ling to the candidate elected by the majority of the com- misioners assembled, whole commisio n s are authenticated as aforesaid, to be recovered by him or his executors in the manner herein after directed; and he shall also suffer impri- sonment for the space of six kalendar months, and be for ever after disabled to hold or enjoy his said office of com- mon clerk of the said presid ing borough, as i f he was na- turally dead.” By another clause of the same statute, the clerk of the pre- sid ing borough is required to take the following oath before the commissioners named to chuse a burgess to serve in par- liament proceed to the election. “ I A. B. do solemnly swear, That I have not, diredly or indiredly, by way of loan, or other, device whatsoever, received any sum, or sums of money, office, place, employment, gratuity, or reward, or any bond, bill, or note, or any promise of any sum or sums of money, office, place, employment, or gratuity whatsoever, either by myself, or any other to my use or benefit or advantage, to make any return at this election o f a member to serve in parliament; j and that I will return to the sherif f or stewart, the person elected by the major part of the commisioners assembled, whose commissions are authenticated by the subscription of the common clerk and, common seal of the respective boroughs of this dist r i ct, S0 help me God.” By a subsequent clause it is further enacted, “ That i f any person shall prefume wilfully and falsely to swear and sub- scribe any of the oaths required to be taken by this act, and shall thereof be lawfully convicted, he shall incur the pains and punishments of perjury, and be prosecuted for the same according to the laws and forms in use in Scot- land. The manner o f recovering the penalty imposed upon such common clerk, is fixed by the penult section o f the statute by by which it is enaded, “ That every penalty or forfeiture by this ac t imposed in that part of Great Britain called Scot- land, shall and may be sued for and recovered by way of summary complaint, before the court of sesio n, upon thir- ty days notice to the person complained of, without abiding the course of any roll; which said complaint the court o f session is hereby authorised and required to determine; as alio to declare the disabilities and incapacities, and to dired the imprisonments as herein provided.” One would imagine, that penalties so severe, would restrain even persons devoid of principle, from acting a dishonest and unfair part in the execution of the powers intrusted to them by the legislature. But the petitioner has within these few days had occasion to be convinced of the contrary, and to see with regret, that where illegal measures are necessary for effectuating a favourite scheme, persons will be found bold enough to make truce with their consciences, and to bid de- fiance both to the laws of God and man. The late Sir Henry Erskine, Baronet, having represented the boroughs of Anstruther Easter, Anstruther Wester, Pit- tenweem, Craill, and Kilrenny, in the present parliament, his death occasioned a vacancy, and several gentlemen offer- ed themselves as candidates; but in a little time, the whole of these candidates, Sir John Anstruther of Anstruther, Ba- ronet, and the petitioner, excepted, dropt their pretensions. A writ having issued for the election of a new member, the sheriff of the county directed precepts to each of the several boroughs of the class or district, enjoining them to make choice o f commissioners or delegates, to meet upon Friday the 17th of January current, within the tolbooth or common council-house of Anstruther Easter, the presiding borough for the time, for the purpose of electing a burgess to serve in parliament, in the room of the said deceased Sir Henry Er- skine. In consequence o f these precepts, which were dated the 24th 24th of December last, the magistrates and counsellors of cach of the five boroughs elected a commision er or delegate, to whom they delivered commision s, authenticated by the subscription of the common clerks, and the seals of the re- spective boroughs. At this time Benjamin Plenderleith enjoyed the office o f common clerk of the borough of Anstruther Easter; but upon Wednesday, the 15th of the present month of January, only two days previous to the election, the council of that bo- rough thought proper to substitute in his place James Christ ie writer in Edinburgh. By whose suggestion, or at whose desire, a step o f this kind was taken at so critical a juncture, it is not the petition- er’s busin ess at prelent to inquire. He will own indeed, that he was immediately apprehensive of the consequences of it. But as it appeared, that the former clerk had been induced to give in a resignation o f his office, your Lordshi p s were o f opinion, that you could not interpose; and therefore refused a bill of suspension that was preferred by certain counsellors o f the borough. The day of election being come, the five following gentle- men appeared as delegates, and severally produced the pre- cepts directed by the sheriff to their respective boroughs, and commisio n s impowering them to elect a member of parlia- ment, authenticated in terms of law, viz.. Mr Henry Dundas Advocate, for the borough of Anstruther Easte r; Mr Robert Macqueen Advocate, for the borough o f Anstruther Wester; Mr William Alexander merchant in Edinburgh, for the bo- rough of Kilrenny; Mr Ilay Campbell Advocate, for the bo- rough of Crail; and the petitioner Mr Robert Alexander, for the borough of Pittenweem. To repeat the steps of electio n previous to calling the vote is unnecessary; every thing was gone about in the most regu- lar manner: and of the five commisioners, three voted for the petitioner, and two for Sir John Anstruther, as will appear from the minutes, si g ned by the preses and the said James Christie, who acted as clerk to the meeting; which minutes, in in so far as necessary for showing how each of these commis- sioners voted, shall be recited. They run thus: “ Then the said Mr Henry Dundas, Mr Robert Macqueen, Mr William Alexander, Mr Ilay Camp- bell, and Mr Robert Alexander, who produced commissions, all qualified to his Majesty, by taking and swearing the oaths of allegiance and abjuration, and signing the same, with the declaration of assurance. Thereafter the said commisioners proceeded to elect a burgess to represent the said class or di- str ict of boroughs, in the room of Sir Henry Erskine decea- sed; and the vote being dated, Who shall be burgess to re- present the said distr ict? the said Mr Henry Dundas voted, and hereby votes, for Sir John Anstruther of Anstruther, Ba- ronet, to be parliament-burgess for this district of boroughs; and at the same time declared, That neither he, by calling the votes of the other persons present, nor any of them, by allowing him to vote himself, or to call others without pro- test, shall be understood to depart from those objections alrea- dy offered to any of these votes. The said Mr Robert Mac- queen voted, and hereby votes, for Mr Robert Alexander merchant in Edinburgh, to bo parliament-burgess for this dist r i ct. The said Mr William Alexander voted, and hereby votes, for the said Mr Robert Alexander merchant in Edin- burgh, to be parliament-burgess for this dist r ict. The said Mr Ilay Campbell voted, and hereby votes, for Sir John Anstruther of Anstruther, Baronet, to be parliament bur- gess for this dist r i ct. The said Mr Robert Alexander voted, and hereby votes, for himself, to be parliament-burgess for this dist r i ct of boroughs.” The minutes then go on to mention the declarations of seve- ral other persons who insi sted to have it marked for whom they would have voted, had they been duly commissioned: After which they proceed as follows. “ Whereupon the said Mr Hen- ry Dundas, as delegate of the presiding borough, and there- by, in case of an equality, intitled to a calling or decisive vote, “ protested protested and declared, That, in that event, he voted, and does hereby vote again for Sir John Anstruther of Anstruther, Baronet, to be parliament burgess for this distr ict of boroughs; and thereupon took instruments. Immediately thereafter the said Mr Robert Alexander protested, That as he has been e- lected parliament-burgess by a majority of three to two of the persons who have in this meeting produced commision s au- thenticated by the subscriptions of the common clerks, and the seals of the several boroughs of this district, there is no room for Mr Dundas’s assuming a casting vote, which can on- ly take place when there is an equality; and therefore requi- red and protested, That the said James Christie, clerk of the borough of Anstruther Easter, and returning officer upon this occasion, should forthwith make out a return in his favour, and in favour of no other person; and that in case the said James Christie should neglect or refuse so to do, he should be liable in all the pains and penalties of the law; and there- upon took instruments.” Notwithstanding the clear majority in favour of the petition- er, Mr Christie thought proper to return Sir John Anstru- ther to the sheriff, as the person duly elected; of which he was pleased to inform the petitioner by a letter under his own hand. The petitioner thinks it a duty he owes to his country, as well as to himself, not to suffer a person who has thus acted in direct opposition, not only to the law, but to the solemn oath that was administered to him in terms of the statute above men- tioned, to pals unpunished. He has therefore made this appli- cation to your Lordships, for recovery of the L. 5oo penalty, and in order that your Lordships, by declaring the disabilities and incapacities, and directing the imprisonment provided by the said statute, may deter others from committing the like practi- ces in time coming. May M ay it therefore p lease your L ordships, to grant w arrant for serving this complaint upon the said James Christie; and to ordain him to give in answers within thiry days after such service; and upon advising the case, to find, That he has for- feited the sum of L. 500 Sterling, and to decern him to make payment thereof to the petitioner; as also to order the said Jam es Christie to be imprisoned for the space of six kalendar months; and to declare him for ever a fter disabled to hold or en joy the office of common clerk of the borough of A nstru- ther Easter, as if he was, naturally dead; to find the said Jam es Christie liable in costs of suit; and to give the peti-tionersuch ther r e l i e f as to your Lords hips shall meet. According to ju stice, &c. A L E X. W I G H T.-