Commons Sitting of 1 April 1819

GOAL DELIVERIES.
Mr. Westernrose to offer some observations on a most important subject, and to move for certain returns connected with it. If more frequent Gaol Deliveries took place, the number of prisoners confined in the different prisons throughout England and Wales, would be diminished in the proportion of at least one-half. Since he had first spoken upon this subject, he had received returns of the number confined at three several successive periods in Kent, Suffolk, and Essex. The House would see, that between October and January the number had increased; whereas, between January and March it had diminished. In Kent, on the 1st of October, there were 54; on the 1st of January, 108; and on the 15th of March, 177. Now, if gaol deliveries had taken place during these periods, he must contend those numbers would have been considerably less. When the returns he was about to move for, should have been laid upon the table, he would submit some specific proposition on the subject. In looking at the returns already prepared for the years 1817 and 1818, it would appear, that the total number of persons confined in the different gaols throughout the kingdom was, in round numbers, 13,000. Of that number there were 2,000 in each year, against whom either no bills were found, or who were not prosecuted, and 2,000 who were acquitted. In the period which elapsed between July and the Lent assises, many persons had been confined who had remained in prison perhaps fourteen or fifteen months before they had been tried—an enormous evil. Whatever the difficulties were, in which such delay originated, they ought to be done away with; and some regulation should be adopted, which should render it unnecessary that they should be detained in custody for so long a period, but, if possible, be brought to trial immediately. It was during that imprisonment that their morals became corrupted. When men first came to a prison, they looked with horror on their situations; but that horror wore off, and their
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minds soon became corrupted. It was the prompt execution of laws which could alone produce the effects contemplated by the legislature. He should, for the present move for a "Return of the total number of prisoners that were confined in the different gaols of England and Wales for trial at the present Lent assizes; distinguishing those who were in custody prior to the 1st of October last, the 1st of January last, and the latest period antecedent to the commencement of the gaol delivery; and, as soon as the present Lent assises shall be terminated, that returns may be made to this House, of the number, names, and ages, of the prisoners, male and female, who shall have been severally tried in each county of England and Wales, specifying the dates of their several commitments, and arranging the returns in the order thereof; specifying also, the crimes with which they shall have been charged, and the verdicts and sentences that shall have been passed upon them; also, returns of those who shall have been discharged by proclamation, or by reason of no bills being found against them, with the dates of commitment in like manner, and the crimes with which they were charged upon commitment."—Ordered.

MR. WYNDHAM QUIN.
Mr. G. A. Ellisgave notice of his intention, on Tuesday next, to move an Address to the Prince Regent, praying him to remove from the office of custos rotulorum of the county of Limerick, the hon. Wyndham Quin. A member observed, that he believed Mr. Quin had gone to Ireland; and that so early a day would afford him no opportunity of being informed of the hon. gentleman's intentions.
Mr. Abercrombythought the observation of the hon. member not warranted by the practice of that House. The election of any day might be quite optional with gentlemen who had motions to submit; and it seemed, he thought, more agreeable to the hon. mover, that the business should be proceeded in now, rather than after the Easter holidays.
Mr. Peelsaid, that if unfortunately Mr. Quin had left town for Ireland, he thought it but reasonable that he should have the option of returning to this country. If it was determined to try his case again, he thought it was only fair to defer the notice for such a time at least as might afford him an opportunity of being so informed.
The motion was fixed for Tuesday.

ROYAL BURGHS—CASE OF THE BURGH OF ABERDEEN.
Lord Archibald Hamiltonsaid, that before he entered on the subject of the motion which he was now about to submit to the House, he wished to apologise for the length of time which had elapsed since he had first given notice of it. Had it depended only on him, he should have wished an earlier day. The delay had not proceeded from levity, or inattention to the House, nor from any doubts or dissentions among the parties whose cause he had undertaken, nor from any distrust in the cause itself; least of all, however, had the delay arisen from any change of opinion on his part; for the longer he inquired into the subject, the more he was confirmed in his first opinions upon it; the more he revolved it in his own mind, or conferred with others upon its principle, and details, the more he was convinced that the question was one of the greatest importance to Scotland, and of the greatest importance to that House. Before he proceeded to say what the question was, he wished to say what it was not. It was not connected with parliamentary reform, in any sense of the word. It was not a mere matter of local interest of the burgh of Aberdeen; but it was a matter of interest to every burgh in Scotland, and to every inhabitant of that country. It was not a speculative point, to which he was offering any speculative remedy, but it arose out of a practical evil most galling and extensive—actually felt and recently complained of. He wished also to state another point of some consequence. The subject of this motion was not unnecessarily introduced to the attention of the House, for the grievance complained of could only be remedied by the House. He meant that for the injuries and injustice, which had lately been committed in the burgh of Aberdeen, there existed no tribunal in Scotland of adequate jurisdiction, to afford prompt and effectual redress, even though the clearest and strongest case of injury and injustice should be manifest to all the world.
He would state, as shortly as possible, before he entered on the subject, a few details, in order that the House might the better understand the case.—He should first proceed to state some of the outlines of the government of a Scots burgh. A Scots burgh was administered by self-
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elected magistrates; these magistrates were appointed to their offices for one year; and, de facto, they went out of office at the end of the year; but then they appointed their successors, and they took care to nominate persons who would nominate them as successors in turn. But the system of the Scots burghs was not only the self-election of magistrates, but these self elected magistrates and council were paramount to all authority; for whatever injury they did in their capacity of magistrates, the inhabitants were without redress. He meant for whatever was done by them in their official capacity—the dilapidation of funds entrusted to them, the contracting of debt, or otherwise. In all such cases there was no remedy. It so happened lately, in the case of the burgh of Aberdeen, that the election of magistrates having been illegal, was reduced by the court of Session. But this did not invalidate the position he had laid down, that for whatever acts were done by the magistrates, there was no redress. For an election was only reducible at some one of these self-elected magistrates, while they were unanimous and agreed in their iniquity, themselves complained of the election. The magistrates elected in the different burghs might be disqualified, yet there existed no authority for setting aside the election. In Aberdeen, the election made towards the latter end of 1817 was declared illegal and reduced. But an action could be brought by no one who was not a "constituent member" of the meeting at which the wrong was done. And it was merely from the casual circumstance (though the abuse had been so gross as it was), that two assistant counsellors, who had been called in to complete the number of persons requisite to constitute a legal meeting, and who thus became "constitutional members" of the meeting, and as such had lent themselves to the complaint,—it was owing wholly, he said, to that casual circumstance, that any action could be instituted. The magistrates and council were not only self-elected, but unaccountable and unamenable to any one so long as they continued magistrates, and were either unanimous in their proceedings, or chose to screen each other by refusing to complain. Neither the suffering burgesses nor the suffering inhabitants had any legal competency to bring an action against their magistrates for official conductor misconduct, however gross and oppressive,

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the election having been set aside by the Court of Session, by which the magistrates were displaced, though the burgh itself was not disfranchised, the usual and regular course of proceeding was, to apply to the Crown for a warrant to the parties interested, to elect new magistrates. Accordingly, four petitions were presented for this purpose to his majesty in council; a petition from the very magistrates who made the election which had been reduced by law. A petition from 30 or 40 of their adherents; and there were also a petition from the burgesses and herioters to the number of above 600, and a petition from the incorporated trades. The two former petitions, which may be regarded as the same, asked that the old magistrates might elect the new—the two latter asked, that the new magistrates might be elected by poll of the burgesses as was usual in such a case. The consequence of the application, however, was, that a warrant was issued to the old magistrates, ordaining them to elect new ones. The effect of this measure was to annul the decision of the court of session, and to render it of no effect.
He knew not who had been the secret advisers of his majesty's ministers on this occasion, but he presumed it was the learned lord (Advocate). The sum and substance of his motion was, that the House should call for the papers that were laid before the privy council on this occasion, and those that were laid before the law officers of the crown when they gave the advice that the warrant in question should be issued, that the House might be in full possession of all the circumstances of the case. In Aberdeen the House would see exemplified the gross system of the Scots burghs in an admirable manner. The administration of this burgh had been a system of fraud and injustice, such as could scarcely be described. No man could contemplate what had taken place in that burgh, and still less enter into the details of it, without being shocked to think that such a system could be allowed to continue so long, The system was, he would not say merely unfit to prevail, but it was so radically defective, that he would defy any set of men to contrive a system of abuse more complete in all its parts than that of the burghs of Scotland. This was not the first time the subject had been brought before the House. Thirty years ago the House had referred a complaint
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against this system to a select committee, and that committee reported, that all the evils complained of were proved to exist. Then the war broke out which prevented any remedy from being thought of. There was, too, at that time an influence which ruled Scotland with an imperious kind of sway, an influence which set itself directly against all removal of abuses like those in question [Hear, hear!]. He wished to know in what manner honourable gentlemen could undertake to judge of the propriety of granting one warrant or other, if not on what the petitions themselves stated. Now it so happened, in the case of Aberdeen, that the magistrates themselves bore testimony to the impossibility of redressing the affairs of that burgh, except the system was changed; and they had publicly recorded that opinion, and yet his majesty's ministers had thrown the burgh into the hands of those very men who declared that the power could not be exercised by them to any good purpose. He asked gentlemen to judge of the case from the facts themselves. He was only slating the truth when he said that the system of Aberdeen dissolved from its own rottenness. It had been dissolved by no power on earth but by its own rottenness itself. This, indeed, was proved by the plain and simple fact, which occurred at the election to which he was alluding. For out of nineteen persons elected to office, only six could be induced to accept. This mischief was so palpable which the system had effected, and the particular and immediate evils were so pressing, that only six out of nineteen could find courage to continue officially their own work. And yet his majesty's ministers had thought proper to continue that system. He had not stated any thing which he could not prove. He defied any gentlemen opposite to say that he had asserted any one thing which was not fact. As one of the proofs that the burgh had dissolved in the rottenness in herent in the system, he would mention, that the burgh had declared itself bankrupt. And for what sum? For 230,000 l. he saw the learned lord smile; but he assured him he knew of no evil within his memory; he knew no municipal evil which had given rise to more extensive discontent and to more discredit than that had done [Hear, hear!], and it was likely to give rise to still more extensive mischief. Some of the petitions before

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the House stated, that the inhabitants were liable to the debts contracted by these self-elected magistrates. But what did it signify in regard to the rottenness of the burgh, whether this was the case or not? The burgesses to the number of 600 were liable for the debts, or the creditors lost the money, amounting also to 600. He hoped the learned lord would give some explanation as to who was to be the ultimate loser, whether the burgesses or the creditors? At the last election there was not less than 2,000 l. a year of deficiency of the revenues to pay the interest of the debt. The blame of this did not attach to the men who happened then to be at the head of affairs; the thing had been going on for twenty years. He had documents, which he could read to the House, establishing these facts, but he would not read them, unless the facts were contradicted by the opposite party. Of the debt due, not less than 57,000 l. had been borrowed to pay interest alone. It was an annual custom in the burgh to call together certain persons on behalf of the burgesses at a regular legal court, to hear the accounts stated. It was curious, that whenever any law was passed, from which there was something like a hope that the evil might be corrected, those who entertained the hope were sure to be disappointed. At that meeting, so called, by legal authority, for the express purpose of promulgating to those concerned, annually, the state of their accounts, no mention was ever made of that 230,000 l., nor was any portion of it ever introduced at all into the official accounts. The whole was secret. The inhabitants found themselves for twenty years deluded and deceived by those men who managed the burgh, and for whose continuance in office the learned lord was so anxious.
There was one fact which he should not now state, if he were not satisfied of its veracity. He would state to the House, that of the 230,000 l. contracted by these self-elected magistrates, a large proportion was contracted by false and forged minutes. He should like to hear the learned lord deny this. To give this town to this system was delivering up between 30 and 40,000 inhabitants to military. execution!—it was giving carte blanche to injustice, fraud and oppression. He did aver, on authority which was not like to be contradicted, that a great part of this debt was contracted on false and
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forged minutes. Because they could not prevail on all the junto to enter into all these measures, sometimes a few got together for the purpose of committing these depredations on the public. And he was positive, and could produce proof of the fact, that a large part of this debt was not only clandestinely but fraudulently contracted—And be it remembered, that debt could not be contracted at all, without the apparent authority of a meeting of the magistrates and an apparent signature of names. In this case, the names, or the authority given, or both, had been used fraudulently, if not actually forged; and indeed the published, recorded declaration of the parties themselves,—the agents or the accessories to this guilt. He would now read what were the sentiments of the magistrates themselves, when they went out of office. If he had no other authority than this, he would say, that his majesty's ministers had done what was injurious to the country, and disgraceful to themselves. In 1817, when the system dissolved by its own rottenness, of the 19 persons elected, only six would accept of the office. So obnoxious had the system become, that the magistrates who went out thought proper, whether from compunction or hypocrisy he could not tell, to put on, record this Proclamation:—
"Council Chamber, Aberdeen, Sept. 19, 1817.—In justice to themselves, however, they are desirous to place upon record their sentiments and opinions, in reference to some of the various topics arising out of the embarrassments of the city treasury. This has become the more necessary, from their having discovered, that, in their efforts for the restoration of public confidence, their motives have been misconstrued and perverted, and their proposals and plans received with a degree of prejudice and distrust, which they will be bold enough to say, their personal and private characters were sufficient to invalidate and disprove. Be this as it may, they are aware, that the sincerity of their intentions can be known but by few, and may be doubted by many; and, therefore, they here reiterate their decided opinion, that the present mode of election of the town council, and management of the town's affairs, are radically defective and improvident, tending to give to any individual or party, who may be so inclined, an excessive and unnatural preponderance; and to foster

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and encourage a system of concealment, under which the most upright and best intentioned magistrates may not be able to acquire that thorough knowledge of the situation of the burgh, which is requisite For the due administration of its affairs. The subscribers are, therefore, of opinion, that some change ought to be effected in the manner of electing the council, and an effectual control given to the citizens over the expenditure of the town's office-bearers. (Signed) Alex. Fraser, Alex. Duncan, Alex. Brown, James Milne, Charles Hacket, William Read, Gavin Hadden, James Hadden, P. Taylor, Alex. Simpson, Geo. Thomson, Alex. Galen, D. Chalmers, Jas. Cantly, Robert Walker, H. Gordon, William Lumsden."
When these gentlemen say that it encouraged a system of concealment, they alluded to the part of the debt contracted on false and fabricated minutes, though the dared to say some of the gentlemen who signed the minute were ignorant themselves of that circumstance. Of the magistrates who did accept the office that was thrown upon them, one publicly stated the grounds on which he did so, to the following effect: he would have declined, he said, entering into office, unless in the hope that his colleagues would concur in an application to the supreme authority, to reform the burgh on a principle of mutual confidence between the magistrates and citizens. When the magistrates had gone on electing one another for twenty years, and now and then introducing a stranger, it was impossible to say who were and who were not guilty. He could only judge the case by what had been done by the official body, and by the gross and disgraceful and ruinous result. But of those men, who declared they could not take office honestly under the present system, several had been found to join in a petition to have the system continued unaltered, and had joined their authority to defeat the actions before the court of session for the reformation of the burgh there could be he difficulty in deciding that they afforded a singular instance of versatility or hypocrisy, and had acted in a manner to produce the greatest possible mischief to the burgh, and the greatest possible discredit to themselves. He begged to be understood, for the reason he had before stated (the difficulty of discriminating between the innocent and the guilty), that he did
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not apply his censure to all the magistrates of Aberdeen, who had been in office the last twenty years—there may have been some, innocent themselves of all wrong—But as the whole mischief has been done by the official body—as that body is self-elected—and also unaccountable to any one but themselves, that body must be held responsible in fact, as well as in justice, for the monstrous evil which has long been produced, and which is now disclosed. The worst of all this was, that under the present system it was legal;—or at least it was so far legal, that there existed no legal remedy. He had no hesitation in saying, that with all this iniquity staring them in the face, if the magistrates were called to the bar, and chose to add audacity to their other offences, they had a right to say—"We have done all this; we have contracted the debts; we have made the declaration, and we have afterwards abjured it; and we defy you to call us to account." The court of session had decided that it had no jurisdiction, the court of Exchequer had declared that it had no jurisdiction, and therefore it was that he Called on the House to interfere [Hear, hear!]. It was settled, that the magistrates could be called to account for nothing done in their office as magistrates, neither by any burgess of the town, nor by any debtor nor creditor to these monstrous and clan destine accounts, nor by any authority but themselves—the learned lord or his majesty's ministers had upheld and continued this authority and this system, and it was on this ground that the case called for the interference of the legislature.
He had now to call the attention of the House to the conduct of those persons who had advised the issuing of the warrant in question. A year before the burgh of Aberdeen had been disfranchised, the same event had happened to the burgh of Montrose; and not only was a warrant granted to the burgesses to elect their magistrates (in the Scots law phrase, a poll warrant), but a change was granted in the set or constitution of the burgh. What it was incumbent on the lord advocate to explain therefore was, why in the one case he had granted to Moncrose what the inhabitants of the burgh had a right to expect, and in the other case of Aberdeen, why he had disregarded not only the claim of justice and the wishes of the inhabitants, but even the precedent which he had himself esta-

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blished. The course which had been pursued in the case of Montrose, and avoided in the case of Aberdeen, was what the inhabitants of the burghs had a right to expect in policy, in discretion, and, as he thought, in law. But if the restoration of the former magistrates was warranted by law, was it to be said that the ministers were justified in saying that they would inflict an evil merely because it was not illegal? Were they not as much bound to administer the prerogative of the crown for the benefit of the subject, as to guard against direct violations of law [Hear, hear!] He could not pretend to state whether this noxious advice—which he thought not only noxious, but also illegal—had been given to the Crown by the ministers generally, or by the sole sanction of the learned lord; but this he would state confidently, that, if any person, actuated by a treacherous hostility to the lord advocate had wished to render him at once ridiculous and obnoxious in Scotland, he would have advised him to act as he had done in the case of Aberdeen, after what he had done for Montrose; he hoped, therefore, that they should bear some account of the reason of proceedings so diametrically at variance as the two precedents of the learned lord. The warrant to Montrose was a warrant to the burgesses to elect, known by the name of a poll warrant: that to Aberdeen was one sui generis, which, under such circumstances, in his opinion, the counsel were legally unable to issue. But he did not at that time ask the House to censure the ministers, but merely to Compel the production of papers which would put them in a situation to judge of the nature of the case. The gentlemen opposite would no doubt say, that they had done not only so right, but so unquestionably right, that they would present no papers to the House on the subject; but he had found by experience that it was not in those cases in which their conduct was most correct, that they were most anxious to withhold information; and he was persuaded that the more the matter was examined, the more it would be shown that they had acted unjustly to Aberdeen, discreditably to themselves, and in a manner to disgust Scotland. In the case of Montrose, the government had proceeded with every formality. The warrant had been communicated through the sheriff, who took credit to himself and to the lord advo-
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cate for the measure. At that time a paper was published, which purported to be the report of the lord advocate on the case of Montrose, which had never been disclaimed, and which he should take the liberty of reading. The lord advocate might, of course, disown it, if it were not authentic. The Report contained these words:—"We are further of opinion, that it would be of public utility, for the good government of the burgh, that instead of the old councillors electing the new," the measures should be taken which the Report described. Now if in the case of Montrose, it was proper to take into account "public utility," and "the good government of the burgh," why were these considerations to be omitted in the case of Aberdeen, in which the magistrates themselves had declared that no men on earth could govern with advantage to the burgh under the present system [Hear, hear!]. If the Crown was thus to proceed on no fixed or definitive plan; if no mode of reviving lapsed magistrates were to be adhered to of certain legality and of universal application, it would be impossible to say, how far the powers of the Crown—that is of ministers, might be carried, nor where their usurpations of power might end. All the power of the burghs with relation to the election of members of parliament would necessarily be thrown into the hands of the Crown. It was always in the power of the self-constituted juntos to commit wilful errors which would terminate their own legal existence, and to renew it on any terms which the Crown might please. And if one burgh might do this, many might do it—either at their own pleasured or at the suggestion, indirectly, of the Crown itself; the mischief too would be more apparent to this House, and more noxious in itself, when it was considered, that the Crown claimed, and in this case, had exercised the extraordinary power of nominating electors, from among private individuals, whose official existence had completely ceased; and in the case of the warrant for Aberdeen, it was in fact granted to persons who had no legal character. It might as well have been directed to any nineteen individuals in the kingdom as to the nineteen gentlemen in Aberdeen; they were not at that time actually either councillors or office-bearers, as it was nothing that they had been in office, as their official character had been long at an end. In consequence of

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the disfranchisement of Aberdeen, and the delay which had taken place respecting it (but which he did not wish to censure), Aberdeen had at present no member in the House. Was this a matter of Email consequence? There were no less than two other burghs in the same situation, Inverness and Edinburgh, which were for the time disfranchised. As for the right hon. member opposite (Mr. W. Dundas), who was called by courtesy member for Edinburgh, no one could say whether he legally was member for that place; and if the disfranchisement of that burgh were not reversed, the House would have a representative sitting among them elected without electors. It was due to justice to state, that there were several exceptions to the general iniquity or improvidence which characterized the administration of the Scots burghs, but they were exceptions to be attributed to individual character, and not to the system itself. There was for instance Glasgow, which was called to his mind by the sight of his hon. friend (Mr. Finlay), who had been provost of that city; and he had no doubt, that if the system of the burgh had been different, his hon. friend would have been elected in the same manner by the voice of the inhabitants, and would have felt more gratified if elected by the burgesses than by 15 self-constituted individuals. Another borough was that of Kinghorn, which had reformed itself; but he would appeal to his gallant friend (general Fergusson) whether this was not a purely voluntary act on the part of the members of the corporation. It was no part of the system itself—but a complete exception to it. The natural tendency of the system was, to foster and protect and perpetuate misrule, and therefore it was, that in his general condemnation of the burgh system, he should not exclude even Kinghorn or Glasgow, in which the evils of it were counteracted by the virtues of individuals.
There were circumstances which he ought to mention to show the state into which the renovation of the old council in Aberdeen had thrown the burgh. As soon as the magistrates entered upon their duties, two members of the corporation who enjoyed pensions out of the corporation funds as guild-brothers, and who had been applicants to the court of session for the legal disfranchisement of the burgh, were, for this past offence against self-constituted corporations, de-
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spoiled of their pensions. Thus, it would be seen, that this self-electing system was as tyrannical and oppressive to individuals, as it was injurious and insulting to the community which it pretended to regulate and to serve. No complaint would have been brought before a court of law, but by these two persons who had only been enabled to do it by chance, by being called in to complete a legal meeting, and who became thereby constituent members so far as to satisfy the act of Geo. 2nd, affording this casual remedy. It would also be seen what harmony existed in the burgh from the following fact: The provost had called a meeting of the heritors, subsequently to which he declared that they had authorized a new assessment. When this assertion was publicly made, another meeting was called by some gentlemen who had been present at the former one, who declared publicly, and signed their names to their assertion, that at the meeting in question, the proposition of an assessment had not been agreed to, or even brought forward. Now, whether the provost of Aberdeen had been guilty of a deliberate falsehood he did not mean to discuss, but the occurrence would show the spirit which reigned in the town.
He apologized for having thus long troubled the House, but he had been induced to do so by the manner in which the question had been treated by the ministerial side of the House. He would now put it to them whether they would give their sanction to a system founded in fraud, iniquity, and insult, which he was convinced no twelve men chosen from the side of the House opposite to him would, if acting as jurymen, undertake to support. He would put it to them, not as ministers or members of parliament, but as men, whether they would wish to perpetuate that scourge to Scotland? The production of the papers which he now moved for would imply no censure on the ministers However much he himself might think they deserved censure, the order of, total House for the production of the papers would imply no more than that the case required further investigation; and surely the documents which had guided this extraordinary decision for a crown warrant to the former and defunct magistrates to elect, instead of the usual mode of a warrant to the burgesses to elect, could not lead the House to censure ministers, if that censure was undeserved. In order,

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however, to prevent the facts of the case, and the errors of the system from being overwhelmed by points of law, and obscured by law-speeches, there was one of the papers before the privy council, which would be the last he should move for, viz. the opinion of the law officers of the crown. The opinion which he had been able to form by conversation with the ablest counsel was, that the decision of the law officers was illegal. It was doubtful at least; for out of 30 cases in which the old councils had expired, in 24 poll warrants had been granted, and in six, warrants had been issued to the old councils. Out of the six in only one had a warrant been issued, after all the preliminary steps as in the present case, and in no one case in all circumstances like that of Aberdeen. Whether he should move for this paper, he should reserve to himself the power of considering, as he did not wish to narrow the case to the legal question. The three other papers were, 1. The Warrant itself. 2. The Petitions in the case. 3. The Precedents on which the proceeding was founded. The noble lord then concluded by moving an Address to the Prince Regent, for "a Copy of the Warrant of the Crown issued for the Election of Magistrates of the Burgh of Aberdeen in the year 1818." The noble lord sat down amidst loud and general cheering.
The Lord Advocate* began by observing, that being but one of the law officers of the crown, and the one, he was conscious, the least entitled to so particular a distinction, he had perhaps been more personally alluded to by the noble lord in the course of his speech, than was altogether sanctioned by the situation in which he was himself placed, or by established and parliamentary usage. Had the noble lord proceeded in a different manner, he certainly would have been more inclined to have left the defence of the measure in question in the hands of his honourable and learned friends near him, who were, in all respects, so much better qualified than himself for conducting this or any other discussion; but singled out as he had been, by the noble lord, in a way so pointed and unusual, and having no desire whatever to shrink from that responsibility which, for reasons best, known to himself, it appeared to be so
* From the original edition published by Manners and Miller of Edinburgh.
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particularly the object of the noble lord to attach personally to him, he availed himself of the earliest opportunity afforded him in the debate of stating that he should oppose the motion, which had just been submitted to the House, as one altogether unnecessary, inexpedient, and uncalled for. He did so the rather, because, although the noble lord had no right to allude so particularly to him, as the law adviser of the crown in the instance in question, yet he must himself feel that from its being more especially his duty to have done his utmost to become acquainted with the peculiar laws and usages of Scotland, before presuming to accept the situation in which he was placed, he ought to be more particularly anxious for the result of any advice which the law officers of the crown might be called upon to give respecting that part of the empire. Indeed, if in this or any case it should appear to the House, or to the country, that erroneous opinions, in matters connected with the law of Scotland, had been offered to the crown, he was sensible that the chief blame must rest upon himself, and not on his honourable and learned colleagues, who were inevitably liable to be misled by the confidence which he felt they had, with such kindness, uniformly reposed in him in all questions of that description. He said this much, from no desire of presuming to arrogate to himself a pretension to such confidence and reliance. On the contrary, he was roost unaffectedly sensible of the superior respect which was due to any opinions which j might be entertained, or advice which might be given, by his learned friends who were called upon to advise the crown in matters of law in this part of the kingdom. But to them the law of Scotland was necessarily presented as matter of fact, and, with it, as such, they could only be expected to become acquainted, as particular cases might occur for their consideration. He stood in a different situation. But he confidently asserted, that the responsibility attaching to any advice which might be supposed to have been given by the law officers of the crown, either here or in Scotland, with respect to that measure which had been so loudly condemned, was one from which no person who understood the subject would be inclined to shrink. For he was prepared to show, that the late warrant to the city of Aberdeen, was in. every respect legal, that it had been
*

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granted in the sound exercise of the discretionary power vested in the crown by the constitution; and (in opposition to the noble lord and his learned friends round him), to contend, that it was in strict conformity with the practice in similar eases, from the earliest history of the law of Scotland. Upon this he would rest his opposition to the present motion, because it was plain that if the crown had been advised to do that which was neither illegal nor contrary to the sound discretion reposed in it by the constitution, nor to the principles which, had regulated the practice in former times, the House, he apprehended, would not agree to call for the production of the papers specified in the motion which had just been submitted for its adoption.
In the first place, however, it was necessary to advert to some of those points which had been dwelt on by the noble lord, in the course of the very desultory speech he had just, concluded. He understood the noble lord to have stated, that one of the grounds upon which the House was called upon, to interfere in the present case, was this; that, by the law of Scotland, there was no remedy competent to the members of the corporation of Aberdeen, if the warrant in question was in itself illegal. By that law, it was contended, they must rest satisfied with, and submit to the arbitrary, outrage committed on their freedom by the crown, without relief, or the means of redress. Where the noble lord had discovered that to be law he could not tell; but he was certain, that it was an. assertion not only in itself utterly unfounded, but which none of the noble lord's learned friends near him would pretend to maintain. For there could not be a doubt, that if that warrant was illegal, and if it unconstitutionally deprived the burgesses of Aberdeen of the right of supplying the defect which had arisen in the corporation of the burgh, every burgess of that town had a right to bring his action in the court of session, to have it reduced and set aside. That power of relief which was competent to the burgesses, entered, he apprehended, deeply into the question before the House; because it, was not in the ordinary practice of parliament to discuss a question of private right which more properly belonged to the courts of law, and for, which the constitution afforded the parties supposed to be aggrieved an efficient remedy. Indeed, were it otherwise besides doing in-
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justice to the parties interested by such prejudication, parliament might Replaced in this very awkward predicament, that its declared opinions and resolutions as to the points of law involved in the discussion, might afterwards be contradicted by the decision of the courts of judicature. It perhaps, therefore, would have been enough to have submitted this view of the matter in opposition to the motion of the noble lord. But it was most desirable, not only for his learned friends and himself, but, what was of infinitely greater importance, for the public, that this question should now be fully discussed, and the true nature of the principles on which it rested, and of the objects actually in view fully understood. And he begged leave, therefore, to wave this first and obvious, ground for calling on the House to reject the motion of the noble lord.
He entirely dissented also from another proposition maintained by the noble lord. The noble lord had most earnestly deprecated the idea that the present motion, was connected with parliamentary reform; but the House could not fail to be satisfied from that general and sweeping condemnation which he had over and over again in the course of his speech pronounced upon the whole system of the municipal government of the Scotch burghs, that the substantial object in view was parliamentary reform, and nothing else. It had, in fact, been fairly admitted that the object contemplated was an alteration of the constitution of the burghs of Scotland, by overturning what the noble lord had designated the corrupt and humiliating mode of self-election employed for perpetuating from year to year the common-councils of the burghs. Now the House was aware that it was by those common-councils so elected that the representatives of the Scotch burghs were chosen and sent to that House; and if either the mode of election or the qualifications of the electors of those councils should be changed, it clearly and obviously resulted that a corresponding alteration must be made in the constitution of parliament.
Those disclamations of the noble lord, calculated for no other purpose than to mislead the House and the public, however, had not even the merit of originality. The same professions were made by those who agitated the reform of the Scotch burghs in the years 1788 and 1793. But parliament and the country came to be satisfied that they were utterly unfounded;

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—that without entertaining the question of parliamentary reform, it was impossible to alter the constitution of the burghs of Scotland, and hence the proposed reforms were finally abandoned. He must, however, be permitted to remark, that the present reformers just inverted the course of proceeding pursued by their predecessors. The projects for altering the constitution of the Scotch burghs had formerly preceded the great plans that were afterwards brought forward for reforming or rather revolutionizing parliament itself. The course now pursued was different. For years the table of that House had been covered with petitions praying for annual parliaments and universal suffrage, or at least a parliamentary reform in one shape or another. The reformers, however, had become tired of that mode of proceeding, being taught (whether by the abandonment of their old supporters and friends he should not stop to inquire), that by a direct and open attack they would probably be unable to achieve their ultimate object. There had this session of parliament, been, he believed, no petitions presented praying for parliamentary reform in plain and direct terms. The petitions now prayed for a reform in the Scotch burghs, and if the prayers of those petitions were successful it was sufficiently apparent to those by whom they were presented; and he was persuaded that, with few exceptions, they were the same from whom in Scotland had issued the former petitions, that the result would be as certain to produce that object, which with less disguise, but not in less moderate terms, they had formerly required for parliament itself. He earnestly called upon the House, therefore, to resist this project in the very outset, and to treat as they deserved those petitions which, in terms, exactly corresponding to those employed by the petitioners in the years 1788 and 1793 had been day after day so ostentatiously presented, as the gentlemen ushers or fore-runners to the motion with which the noble lord had concluded his speech.
After having disclaimed all connexion with the question of parliamentary reform, the noble lord had proceeded to rehearse the grievances of the individual burgh of Aberdeen, and the wrongs which its citizens had been supposed to suffer from the misconduct of its former magistrates. But into this part of the case he should enter very shortly, as he had the satis-
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faction of thinking that the noble lord would be sufficiently answered in those points of his speech by the hon. gentleman behind him (Mr. Forbes), whose intimate acquaintance with the affairs of that burgh enabled him so well to inform the House how utterly unfounded the statements were upon that subject made by the noble lord, and how unwarranted in point of fact the calumnies were against the respectable individuals composing the magistracy of Aberdeen, in which he had thought fit so largely to indulge. Indeed he had no opportunity himself of being acquainted minutely with those details; and it was at no time incumbent upon him to have sought for information on the subject. The late warrant had nothing to do with the previous proceedings of the magistrates in administering the revenues of the burgh; and he trusted he should satisfy the House before he sat down, that the crown would have been advised to have acted less constitutionally than it had been advised to do, if it had allowed those previous proceedings to regulate the exercise of that discretion upon which the warrant of election now in question had been issued.
Comparatively unacquainted, however, as he was, with the financial concerns of the burgh of Aberdeen, and the embarrassment to which it had been subjected, he nevertheless found himself bound in justice to state, that upon no occasion whatever had it been surmised that the magistrates had been guilty of corruption or peculation. It had been always admitted, on the contrary, that the embarrassments of that city had entirely arisen from the public-spirited measures of the magistrates, for the improvement of the town over which they presided. Unfortunately, those improvements had not, as was expected, been attended with that pecuniary benefit to the funds of the corporation which had been universally anticipated. But whether unsuccessful in their termination, or not, those improvements had been made, not merely in virtue of the reports of eminent surveyors, but under the express sanction of various meetings of the inhabitants; and it was therefore plain that, let the mode of election in the burgh have been what it might, the same projects would have been undertaken; and, from the state of the country, the same unfortunate results must have followed.
But it had been asserted by the noble

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lord, that the magistrates of Aberdeen had borrowed the money which was now due, by forging and fabricating minutes. Now, though the opponents of those persons had certainly not been sparing of their charges against them, in the proceedings before the court of session—in the papers presented to the privy council—in the public prints—and in their anonymous publications, which he observed in the hands of the gentlemen opposite; yet until he heard the speech of the noble lord, he had neither seen nor heard of a charge of this kind brought against them. In this situation, there were the strongest grounds for believing that the charge was groundless and unfounded, and that the noble lord had been grossly imposed upon by those from whom he had derived his information. Indeed, this view of the matter was strongly confirmed by the very desperate stats to which the funds of the burgh were by some thought to be reduced; for, whatever gentlemen might think, either as to the modes of redress competent by law to the burgesses against the warrant in question—or whatever they may think as to the liability of the burgesses for the debts contracted by the magistrates, it was impossible to doubt, that if the magistrates of Aberdeen, or any set of men whatever, had, by such gross and corrupt practices, by fraud, forgery, or wilful imposition, swindled individuals out of their money, they must have rendered themselves personally liable for the sums which they had so obtained, to the last farthing of their fortunes. Had the statement of the noble lord been correct, therefore, claims of that description must have been brought against the magistrates of Aberdeen individually; but he could venture to assert that no such claims had ever been brought forward; nor had it ever been pretended that the magistrates had, by any undue proceeding, rendered themselves liable for the payment of the debt, which affected the revenues and common good of the burgh.
It was, however, with much satisfaction he was able to state, before leaving this part of the subject, that the allegations respecting the funds of the burgh of Aberdeen, were greatly exaggerated; for it appeared from an account which had been put into his hands that morning, in behalf of the magistrates of Aberdeen, and for the accuracy of which those gentlemen were pledged, that the treasury of
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that burgh was rapidly getting rid of its embarrassments; and that from the great and progressive improvement in its funds, there was a clear prospect of the creditors receiving five per cent for their money, and of a sinking fund being set apart for the extinction of its debts.
The financial embarrassments of the burgh were, however, altogether foreign to the present question; and although it was necessary, from the line of discussion adopted by the noble lord, thus to have adverted to them, they could not enter into the contemplation of the House, in coming to a vote upon the motion before it. He, therefore, begged leave to call the attention of the House to the circumstances (circumstances independent of, and unconnected with, the financial situation of the burgh), which led to the proceedings before the privy council, respecting the common-council of that city, and which had given rise to the present motion.
In the first place, however, it became necessary to state, that when the common-council of a royal burgh in Scotland failed to make its annual election upon the day required by the charter, or elected persons not duly qualified to hold the situations to which they were appointed, or were guilty of any act of illegality or corruption, its proceedings might be complained of to the court of session, by summary complaint by any of the constituent members of the council; and upon judging of that complaint, the court of session might reduce and set aside the election. The result of this judgment was, to disable the corporation from continuing itself (as he believed it was termed in the law of England), and, no new election could take place without a warrant from the king in council in some one form or another.
In the burgh of Aberdeen, the election made at Michaelmas 1817, having been complained of, the result was, that that election was reduced; and the corporation, although not disfranchised, as the noble lord had erroneously stated, had been deprived of its common-council, which rendered it necessary to present an application to his majesty in council, for a warrant for election. Now, from, the speech of the noble lord, the House must have been led to imagine, that the judgment of the Court had been pronounced, and that the magistrates had been divested, of the government of the burgh, on ac-

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count of their having been convicted of some of those monstrous acts of extravagance, of lavish and corrupt profusion, of forgery and fabrication, on which the noble lord had expatiated at so great length, and with such extraordinary animation and severity. But if the House thought so, it was entirely mistaken. The magistrates and common-council of Aberdeen were convicted of no offence; but the election was avoided, on account of an error the most trivial, and the most innocent which could be made the foundation of such a judgment. By the constitution of the burgh, forty persons were appointed to assist at the election of the magistrates and council; and to provide for the absence of any one of those forty, a person possessing a qualification similar to that of the absentee, was required to be elected as proxy for him. At the election in the year 1817, one person was elected as proxy for a counsellor who was absent; the proxy enjoyed the reputation of having been a burgess (which was the qualification requisite), but he could not produce his burgess ticket, or prove that he was actually a burgess; and upon that account, and that alone, he was held to be a disqualified voter, and the election was avoided or reduced. It is true, that in the pleadings before the court of session, other grounds for reducing the election were stated, and much abuse and invective had been heaped upon the magistrates and council of the city of Aberdeen, but this was the only ground for avoiding those proceedings, stated in the judgment of the Court, which rested, therefore, not only upon none of the points of accusation now preferred by the noble lord, but upon no charge of either legal or moral delinquency. In this situation, if it was at all competent for the Grown to re-invest those persons with the power of electing their successors—a power of which they had not been deprived by the judgment of the Court, and which, by personal corruption, they had not rendered themselves legally incapable of exercising, there was no reason, either in point of justice or expediency, why it should forfeit them of that right, or that other electors should be called in to supply their place. The error they had committed was of all others the most insignificant and innocent that in such a case could have been almost imagined. The want of qualification was not only unknown to the magistrates, but to
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the reputed burgess himself The proceeding, therefore; which rested upon no conviction of legal or moral delinquency of any sort, and vested as the common council of Aberdeen was by the statute; law of the land, with the right of electing their successors; it afforded no ground whatever for depriving them of their franchise. This general view of the matter was altogether independent of the question of law, and the State of the practice, points he would afterwards consider; but it might not be improper to observe, in passing, that the noble lord was singularly unfortunate in stating, that the warrant in question was, even in the terms in which it was granted, without a precedent, and that the old magistrates and council had, in no former instance, been re-invested in a similar manner, with the rights of election. For it happened that in this very burgh, in the year 1746, when the election had been prevented, by an incursion of the rebels; from being made on the day appointed by the charter, and when of course no new election could be made, without a warrant from the Crown, a warrant not only in principle, but in terms the same as that now in question, had been issued under the Royal Sign Manual.
And here he would take leave to advert to the question put to him by the noble lord; why a poll election was given to the burgesses of Montrose, in the year 1817, and a poll refused to those of Aberdeen, in the year 1818? The answer (assuming at present, what he should afterwards prove, that the right of varying the Warrant was vested in the Grow) was that in the case of Montrose, the election made at Michaelmas 1817, was not set aside on account of an error, neither wilful nor illegal. It was reduced on account of an act of gross illegality, on the part of the magistrates and council, in which all the parties interested were wilfully engaged. Instead of voting for their magistrates openly as required by the constitution of the burgh, and the law of the land; they had resorted to the mode of electing them by ballot: a proceeding not only unprecedented, but palpably illegal; a mode of voting so clearly, and inevitably leading to abuse, that when resorted to by the parliament of Scotland itself, it had even in the very worst times of Charles 2nd, called down upon them, the animadversion of that profligate and tyrannical monarch. If

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there was a legal discretion in the Crown, therefore, of excluding from its warrant of election persons guilty of acts of illegality or corruption, or, in particular cases, of extending it to others, it was impossible to doubt, that the exercise of that discretion was eminently called for in the case of Montrose, while in the case of Aberdeen, it would have been highly unjust and oppressive. In the one, the illegality of the proceeding was glaring, and manifest, and wilful; in the other, the error while it was committed through ignorance, was the most innocent and trivial that could well be imagined. In the one, blame could hardly be said to attach to the parties by whom it was committed; while the situation of the others was distinctly the reverse. Upon a general view of the question, therefore, as put by the noble lord, he felt no difficulty in contending, that there was none of that inconsistency, and nothing of that fickleness of opinion manifested in the two warrants, in question, which the noble lord had argued to exist, and of which he had so loudly proclaimed him to be the responsible adviser.
But the true merits of the present question, depended upon the legal and constitutional principles, by which cases of a similar description ought to be regulated; and to these he now begged leave to direct the attention of the House.
[Lord Archibald Hamilton, here said, across the table, that he had deferred going into the question of law.]
The Lord Advocate resumed. He was quite aware that while the noble lord had in terms condemned the warrant granted to the common-council of Aberdeen as having been granted contrary to the sound discretion to be observed on the part of the Grown in the exercise of this branch of its prerogative, and had only stated his own private opinion, as to its being directly contrary to law; he had in words declared his wish to wave that part of the question; but while for the purposes of debate, he pretended to wave the discussion of the point of law, he had thought fit to assume all that part of the case as proved. He was in the judgment of the House, whether the illegality of the warrant was not taken for granted, throughout the whole course of the speech of the noble lord, In fact, it must have been so taken, otherwise the present motion could not be entertained, for it the warrant was not illegal, why address the
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Crown to produce the papers before the Privy Council? But even the question whether the exercise of the discretionary power in the Crown had been dictated by a sound principle of discretion, must materially, if not altogether depend upon tae fair understanding of the question of law for the noble lord, therefore, to postpone the discussion of the point of law, was, in effect, calling upon the House to decide the present question in the dark, and to condemn a measure to which every term of obloquy and reproach had been assigned, without hearing the grounds upon which it had been advised.
But, moreover, it was only to the legal part of the question that he himself was called upon to speak, and on account of which the noble lord was at all entitled to single out either himself or his hon. and learned friends in the way that he had thought fit to do. It was only as the law officers, and bound in duty as such, when called upon to advise the Crown in matters of law, that they or he could be connected with the present question; and he begged leave to put it to the House, whether, because it might suit the noble lord to endeavour to obtain a vote upon the general, unconnected, and desultory view of the question presented by his lordship, it was fair or candid, personally arraigned, aa he had been to assume the illegality of the matter in dispute as a fact, and by desiring him to postpone the argument whether it was really so or not, to shut him out from entering upon his defence, and establishing, as he felt confident that he could, that the attack made against him by the noble lord was utterly groundless?
It had been stated then, as the foundation of the whole argument for condemning the warrant which had been granted to the common council of Aberdeen, that, previous to a certain statute passed in the year 1469, by the Scottish parliament, the right of electing the magistrates and common-councils of the burghs resided in the burgesses at large; and that, though that right was then taken away and conferred on the old councils, yet, when the annual elections made by them were set aside, the right of the burgesses revived, and that they were entitled, de jure, to demand a poll warrant from the Crown. [Lord Archibald Hamilton observed, that he had not mentioned the act 1469 in the course of his speech.]

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The Lord Advocate resumed. It was true, the noble lord, perhaps, might not have mentioned this statute, or its date, by name, but indirectly and necessarily the statute made the foundation of the whole of his argument; because, unless there was such inherent right in the burgesses, what pretence was there for saying that the warrant in question was illegal, by not having been granted to them, but to the old council? But, indeed, in point of fact, the noble lord had referred to the statements of the petitions upon the table, as the foundation of his argument, or rather opinion upon the law; and in every one of those productions, it was distinctly set forth, that when an election of a common council was avoided, the original right inherent in the burgesses, before the passing of that statute was thereby revived. He could not think it, therefore, altogether worthy of the candour of the noble lord thus to distinguish between the directly maintaining the original rights of the burgesses, as they were supposed to have existed before the statute 1469, and the indirectly contending in their behalf by a general reference to the petitions upon the table (in every one of which those antecedent and pretended rights formed the essential ground-work), for the purpose of attempting to preclude him from defending himself against what he deemed an unwarranted and unjustifiable attack.
Come from what quarter it might, however, he had no hesitation in asserting, that the claim for such inherent and original right in the burgesses at large was altogether unfounded; that it originated in misapprehension or ignorance, or in the practice of wilful delusion. No doubt it was true that the doctrine had found its supporters in certain gentlemen of eminence at the Scotch bar; men, of whose acquirements as lawyers the noble lord could not wish to speak in higher terms than he would at all times himself be ready to do, although he could not admit of their being authorities either impartial or conclusive. The names of Bone of those gentlemen were unknown to the House; they had been brought forward last year, by a learned gentleman opposite, in more ways than one, when another question of Scots law was debated; and it certainly did appear somewhat strange, he believed he might Venture to say, unprecedented, that the
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authority of persons at any bar, be their situations what they might, should thus be attempted to be imposed on either House of parliament, in discussions of this description. The opinions now referred to were to be found in a paper, entitled, "A Memorial to the Lords of the Privy Council, in behalf of the Burgesses of Inverness;" but which its very title proved, never could have been intended for that tribunal, by its learned authors. Accordingly, while to the lords of the privy council no such memorial, he believed, had been delivered, a number of copies of that printed paper to suit the purposes of the debate, had been transmitted to the noble lord opposite.* The agent of those parties was anxious, in behalf of his clients, that it should be known, that this proceeding took place without the consent of the burgesses of Inverness who disclaimed all knowledge of the transaction.
Whether the memorial, however, was intended for the illumination of that House, or for the information of the, lords of the privy council, he should take it for granted that it contained the whole argument in favour of the original and inherent right of the burgesses, and against the legality of the warrant conceded to the old council of the burgh of Aberdeen. He deemed this acknowledgment due to the persons who subscribed it, and he believed it to be the fact. He would therefore endeavour to encounter that statement; and when he did so, he was most fully sensible how much he must rely upon the indulgence of the House, in calling its attention to a part of the subject, of so little interest, not only in itself, but which must be more particularly so to gentlemen belonging to this part of the island, who must necessarily be even in some measure, unacquainted with the technical and ordinary terms with which persons in Scotland were familiar. The inquiry, however, was forced upon him, by the course which had been adopted, of bringing before parliament a matter which more properly belonged to courts of justice, and so little calculated to form in that House the subject of debate; but he should endea-
* No memorial can be received by the lords of the privy council. Their lordships only consider petitions addressed to the king, and remitted by his majesty for their consideration.
§

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vour to compress the observations he had to make in as short a compass as the nature of the subject would admit of.
The House then would observe, that the whole plea maintained in behalf of the supposed right of the burgesses, rested upon the proposition, that in them resided, before the passing of the statute of James 3rd, the right of annually electing both the magistrates and the common councils in each of the royal burghs. In support of that line of argument, an appeal had been made the Leges Burgorum, to the Statuta Gildœ, to the report of the House of Commons, in the year 1793, and to certain extracts from the records of this very burgh of Aberdeen itself. Nothing could be collected respecting the form of the constitution of the burghs, from an examination of any of their charters; for this good reason, that in none of those which were of so ancient a date as the statute 1469, was any mode of election pointed out, and which, as it certainly did away, if such ever existed all right which previously might have belonged to the burgesses at large, of interfering with elections, the Crown in' the face of that statute could not in any subsequent charters have legally restored. At all events, such charters could prove nothing as to the nature of the antecedent practice.
It however was said, that from the authorities referred to, it appeared that the common councils were elected by the burgesses at large, because some of them stated, than the prœpositi or baillies, and major or provost, were anciently elected as in one of them it was expressed, "cum consensu et assensu totius communitatis dicti burgi;" while in another, it was mentioned, that they were appointed to be chosen "de consilio communi proborum hominum villæ,"* or as they were sometimes termed, the "sufficientes et discreti viri." From these and such notices, it was contended then, that these ancient authorities proved that the right of electing the common councils was anciently vested in the burgesses at large; the Latin terms quoted, importing the whole community of the town.
Here, however, he was directly at issue with the learned advisers of the burgesses of Inverness, as to the true meaning of the Latin terms on which their argument entirely rested. He
* Leges Burgorum, c. 77.
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denied that the terms in question, did import that meaning which was attributed to them. The "communitas civitatum, vel burgorum," or the probi, the discreti, or sufficientes viri, did not signify the whole body of the burgesses, or the freemen of the town. On the contrary, these terms, in the established and recognised translation of them, imported the governing part of the community, as distinguished from the citizens or burgesses at large. In short, when it was stated in any of those ancient authorities, that the magistrates were elected cum consensus totius communitatis, nothing more, he contended, was meant, than that the, election was made by those persons who by the presumed assent or will of the community, had the special power of electing.
The distinction, just stated, was sufficiently established to prevent the necessity of going through a more extensive range of authorities. In the well known case of the city of London, noticed by Brady (p. 42), adjudged in the year 1650, it was admitted upon both sides of the argument, that "the community or commonalty, expressed by the Latin word communitates, did consist of a select number of the more discreet, able, wise, and rich citizens, and was not the body of the freemen in general." Now if this was the import of the term, it put an end to any argument in favour of the right of the burgesses at large, founded upon the authorities which he had just quoted, which referred exclusively to that more select branch of the corporation, and not to the burgesses at large, whose pretended rights, therefore, those very authorities themselves necessarily and virtually excluded.
But it might be contended, that the authority on which reliance was placed for the meaning of the terms in question was an English authority, and not an authority in the law of Scotland; and that no doubt was true. But besides that there was every reason for believing that the origin of the English and the Scotch burghs was similar, and therefore, that where in the one, a point was clear, while in the other it was doubtful, that doubt might reasonably be explained by referring to the authority of the neighbouring kingdom), it would hardly be pretended that in a question of interpretation of a Latin term, the authority of the law of England, in a case of this des-

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cription in Scotland, where Scotland ha nothing to contradict it, was not to be fairly referred to as conclusive.
Unless, therefore, it could be shown, which it could not be, that in the law of Scotland the term communitas villœ imported the burgesses at large, it must be held that the authorities referred to (in which no other term was employed that could be construed as having that meaning), put an end to the whole argument contained in the petitions, and in that memorial to which he had before referred. Indeed, in that last paper the authority quoted from the Leges Burgorum (c. 77), seemed to have been strangely misapprehended; for instead of recognising this right of the burgesses at large, as possessing the powers contended for, it clearly recognised the distinction which he had now enforced betwixt the concilium commune proborum hominum villœ and the burgesses at large. To the latter, or the communitas villœ, was alone intrusted, in so far as that authority went, the power of electing most inferior officers, the precones burgi. The authority stated nothing whatever of the persons by whom the prœpositi were to be elected. It only stated the persons out of whom they were to be chosen, viz. the concilium proborum hominum.
But supposing it were granted that the Latin terms in question imported something different from what it was clear they did import, the authorities relied on would still have fallen short of supporting the argument in favour of the burgesses to elect annually the common-council of the burghs; for not one of them said any thing of the elections of that body, or by whom they were made. They referred exclusively to the elections of the provosts and the prœpositi or baillies; and it was quite possible that the choice of the baillies might have been lodged in the Fratres Gildœ, who alone he believed were then known by the name of the burgesses, without their being also vested with the right of electing the common-council.
How then, it might be asked, were the common-council chosen? To this he would answer, that there was every reason for believing the members of the common council previous to the statute 1469 held their offices for life; and that reasoning by the analogy of the corresponding corporations in England, which it was stated before had a similar origin with the corporations in Scotland, as well as from the
[1304
provisions of the statute 1469, that the right of supplying vacancies occasioned either by death or removal on account of misconduct, was vested by law in the remaining members of the common-council. That the common-councilmen held their offices for life, was proved by a comparison of the names during a great course of years in the only ancient records of a royal burgh existing—those of the burgh of Aberdeen, where the same individuals appeared during the whole time as common-councilmen without interruption. This, in the absence of all proof to the contrary, afforded a fair ground for presuming that they had not been liable to be annually removed from their offices, as popular favour (to which, of course, they must have been exposed, if the right of election resided in the burgesses), was no more stationary then than it was now.
But in order to put this matter beyond a doubt, he begged leave to refer to an act of the council of Aberdeen to be found in the records of that burgh so early as the year 1591; in which it was stated, "that it was the ancient custom of the burgh, to continue the council to the day of their death, unless tried, and found guilty of some crime, which was the cause of the great flourishing of the said burgh, and the avoiding the inconvenience of yearly change; but that the present age had produced restless and unquiet spirits, seeking change and alterations, quarrelling the council that had stood for fifty years by past, &c." And the accuracy of this statement, in the record, is confirmed by the fact, that the very year preceding its date, actions had been raised in the court of session, for avoiding all the elections in that burgh (which it appeared had been only made upon vacancies occurring, and that, by the common-councilmen themselves), during thirty years.*
But the perpetuity of the common-councilmen of the royal burghs was confirmed, by the statute 1469, itself enacting "that an offices, nor councel, be continued after the king is lawes of burrowes further than ane zeir;" a provision which in itself seemed clearly and necessarily to import, that previously to the
* These actions were terminated by a reference to the king and others, as arbitrators, which resulted in the elections being appointed to be made in future, in strict conformity with the provisions of the act, 1469. c. 29.

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passing of that statute, the councils had been continued for longer than a year. That the common-councilmen, therefore, held their offices for life, appeared to result from a fair interpretation of the authorities referred to. And while there was not one which could be rested on for supporting the proposition, that even vacancies were supplied by an election of the burgesses at large, and every thing led to the inference that it had resided exclusively in the remaining members of the common-council.
The statute in question had been repeatedly stated by the noble lord, and was uniformly represented by the petitions on the table, as a restrictive statute, which had deprived the burgesses of their rights of election. But enough had been already said, to establish that if no such rights, at least of annual election, had ever existed, the statute could not possibly have been of that nature which it had been thus represented to be. If, however, the different provisions of the statute itself were considered, the House would be satisfied that it was of a totally different description. In the first place, it introduced annual election, where annual election had not before existed. In the next place, it excluded the aristocracy of the country from holding any of the municipal offices within the burgh; and, above all, it empowered the different crafts, or livery companies, to choose deacons, who should vote in the election of the office-bearers of the burgh, a right which those classes never had before been entitled to exercise; and which, in fact, it appeared from the ancient records of the burgh of Aberdeen, before referred to, they did not in that burgh come to enjoy till more than one hundred years afterwards. Indeed, before that time, the members of the livery companies seem to have held a very subordinate rank in the community of a royal burgh; nor was that surprising, as their privileges extended only to exercising their craft within its precincts. They were, in fact, only members of burgh incorporations, deriving their charters generally from the common-councils of the towns. Accordingly, as craftsmen, they had no right of carrying on merchandise; and even if a craftsman should become a frater gildœ, or king's freeman, he could not carry on trade until he renounced his craft.* This remark was the more neces-
* Vide stat. 1466, c. 11, and c. 12.
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sary, that by far the greater part of the petitions on the table came from the craftsmen of the burghs, complaining of the statute 1469, as having deprived them and their predecessors of the right of electing their municipal governors; while it was by virtue of that statute alone that authority was first given for introducing them into a participation in the election of the common-councils of the burghs in Scotland. Moreover, it appears from an act of the convention of burghs, passed in 1552, that it was not till then, in point of practice, that the introduction of the craftsmen into the common-councils of the royal burghs actually took place.
Viewing the statute in this light, he apprehended it was natural to infer, that when the statute 1469 introduced annual elections into the common councils, and directed those elections to be made, by the old council choosing the new, it followed the mode already established of supplying vacancies in the common council. In short, that it just required of the common councils to make those elections annually, which formerly they had only occasion to do when one of their number was removed, either in consequence of death or misbehaviour.
But he understood it to be urged, that this argument was altogether subverted by the introductory words of the statute 1469 itself, which stated, "That, because of great contention zeirly for the chusing of the samin, throw multitude and clamour of commounes, simple persones, it is thought expedient that na officiares, nor councel be continued after the kingis lawes of burrowes further then ane zeir;" from whence it was contended, that the "commounes, simple persones," were the burgesses at large, who had a right of election of "officiares," such as aldermen, &c. But, in the first place, supposing that to be the true meaning of the terms, it would be observed, that it applied only to the choosing of the officiares, in the elections of which the contentions were said to have taken place, and not of the common councilmen, who, in this statute, as well as in every other authority, were distinguished from each other. In the second place, the statute did not state, that those commounes, simple persones had any right of voting in the elections, even of the officiares, which it necessarily would have done, had such been the qualification possessed by them. In point of fact, however, the commounces, simple persones, there

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referred to, could not be the burgesses. If the burgesses had been meant, they would have been called so, even if they had been of a less important class of the community than they were. But the burgesses formed the third estate of the realm; they stood immediately next to the lesser barons; and for the legislature to have represented them by the contumelious epithet of commons, simple persons, was altogether incredible and absurd. The commons, simple persons, referred to, could be no other than the rabble; and for the truth of this proposition, the strongest confirmation was to be found in a charter nearly contemporaneous, which was granted by Henry 6th of England to the city of London, which seems to have been granted for the very purpose of remedying an evil, of a very similar nature to that which the act 1469 was intended to correct in Scotland. In this charter, the king sets forth, "That his progenitors had, by their charters, granted to our citizens of London (civibus nostris civilatis prœdictœ) liberty to choose a mayor and aldermen among themselves; and that, although such elections were always made in former times by the mayor, aldermen, and more discreet persons of the city (discretiores dictœ civitatis), specially summoned for that purpose; yet, of late, certain persons, who neither had, nor ought to have, any concern in such elections, audaciously thrust themselves in, and frequently disturb the electors by their noisy and importunate clamours; therefore he commands, that, in time coming, the mayor and the sheriffs make proclamation, and strictly prohibit all persons from coming to such elections, unless those who by right and ancient custom were entitled to be there; and that the election should be made solely by the aldermen and the more discreet and powerful citizens, according to ancient custom (per alderman-nos et alios cives discreiores et potentiores secundum consuetudinem supradictam)."
This charter afforded a key for explaining the meaning of the corresponding terms employed in the Scotch statute, and proved that the persons referred to in its preamble were not the burgesses, It might also be observed in passing, that it afforded another and very striking illustration of the distinction between cives, or citizens at large, and the cives discretions et potentiores civitatis, or the governing part of the community, which he had before so fully impressed upon the House.
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The act 1469, therefore, was proved, by the consideration of its own terms and provisions, and every authority to which reference had been made in the course of the argument upon this subject, to have been a statute passed for the express purpose of extending, instead of abridging, the rights of the burgesses. But if the history of Scotland were examined from the period when that statute was passed, down to that when the clamour against it was first excited, about thirty years ago, no reasonable person could doubt that it could not be a statute of that description which all the petitioners and their friends had represented it to be. In those petitions, and in the Memorial to which reference had before been made, the House was told, that that statute had deprived the burgesses of their radical and essential rights, and had introduced into the Scotch burghs a system of the most grievous, oppressive, and humiliating of petty tyrannies.
Now if that was the true description of the measure, he apprehended there would be no doubt that the men who had been thus so grievously oppressed and tyrannically deprived of their most valuable rights, would have seized the first opportunity which might have presented itself, of insisting to have, them restored. But the fact was quite otherwise; for while constant opportunities had occurred in the history of Scotland, when the burgesses might have stipulated for the abrogation of this statute, had they been so inclined, frequent occasions had also occurred, when the gratification of the burgesses, and the extension of their rights and privileges, formed the main objects of the sovereigns of that country; the statute still remained unrepealed, and was all along considered the great charter of those incorporations. If it had been the policy, as it was said, of the Scottish legislature, in the minority of James 3rd, to extend the powers of the aristocracy, and to abridge the rights of the lower orders, every body knew, that after that monarch assumed the reins of government himself, his policy was directly the reverse. His object, from that time to the period of his death, was to exalt the power of the burghs, and the burgesses, in order that they might act as a counterpoise to that of the nobles. Nay, in point of fact, it was well known that James 3rd was particularly attached to the lower orders in the burghs, and that it was from him that

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that class of the citizens chiefly received those privileges and distinctions with which the livery companies in Scotland were now invested. If this statute, then, had been so injurious to those classes of the community, it was impossible to doubt that it must, during that reign, have been repealed; but instead of being repealed, its provisions were confirmed, and so far extended, that a statute was passed, absolutely requiring, that four of the old council should be continued in the new.
Supposing, however, that the burgesses had chosen to submit to this grievous and oppressive tyranny during the reign of their greatest patron, James 3rd, why did they not assert their rights in the subsequent age, when, by the death of the king, and the annihilation of the nobility at the battle of Flodden, the administration of the government was vested in a weak and odious regency during the infancy of the sovereign, and there was no power in the state to have resisted any claim which the burgesses might have thought fit to prefer? Why did they not avail themselves, when that prince became of age, of his enmity to the aristocracy of the kingdom, to have obtained the repeal of a measure, said to have been passed only in favour of that aristocracy? For what possible reason could the burgesses have submitted to it during the troubles in the reign of queen Mary, when both she and her rebellious subjects were alternately obliged to court the favour of these classes of the community? It is impossible to conceive, that any of the periods which had been mentioned, or the reigns of James 6th, who courted the burgesses from policy, or of Charles 1st, who did so from necessity, or the revolutionary period which followed, when the burgesses possessed almost unlimited influence, and when the grievances of all orders of the state were matter of daily and open discussion, would have been allowed to pass, if not without the abrogation of the statute 1469, at least without the grievances it imposed being made the subject of complaint, if it had actually created that system of grievous and petty tyranny so loudly and indignantly exposed.
But what must satisfy every person of the gross misrepresentations which have been made of this statute, and of the system which it established, were the proceedings which took place immediately before and at the Revolution in 1688.
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That was not the period in which any class of the people of Scotland was inclined to submit either to laws or measures of an arbitrary and tyrannical description. Yet, during the memorable struggles in which the nation was involved, this statute never was complained of; while, at the Revolution, it was, to all intents and purposes, re-enacted and confirmed. In the declaration, containing the claim of right, it was stated, that James 2nd had for this, among other reasons, forfeited his crown; that, "he had subverted the right of the royal burghs, the third estate of parliament, imposing on them not only magistrates, but also the whole town council and clerks, contrary to their liberties and express charters, without the pretence either of sentence, surrender, or consent." And in the articles of grievances presented to king William, along with the offer of the crown, it was stipulated, that "the grievances of the burrows be considered and redressed in the parliament." The grievances of the burghs were accordingly considered and redressed; but the grievances which were dwelt upon were not those fictitious grievances now alleged to have been created by the act 1469. They, in truth, consisted in the violation of that statute, which was then considered as the foundation of the rights and the liberties of the royal burghs. And what, he would inquire, were the measures adopted for the relief of those corporations, and the redressing of their grievances? Was it to repeal the statute of James 3rd, and to restore to the burgesses those valuable privileges which, it was now pretended, it had been its object to annihilate? By no means. The convention parliament, composed of men, whose object was not to perpetuate, but to abrogate abuses—who had exposed their lives and fortunes, and every thing dear to them, for the sake of the liberties of their country—men who, unable to resist the degrading, oppressive, and arbitrary measures of the last of the Stewarts, took up the sword, neither to establish nor confirm tyrannical abuses, whether in the crown or in the laws; but to restore, to all orders of the state, the privileges and the rights which justly belonged to them; what was the course that they followed with respect to the corporations in question? In the first place, they certainly did not repeal the statute 1469: but as, from the proceedings of James 2nd, the provisions of that act could not be observed in new modelling the com-

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mon councils of the burghs, there being of necessity no old councils legally elected in existence, they, as an extraordinary remedy, passed a special statute, authorizing new elections "to be made of ordinary magistrates and town councils for the several royal burghs, by the poll; and that on such times, and at the sight of such persona as the states shall appoint." But instead of that poll being to be repeated each year, which, according to the claims of the present reformers, ought to have been provided for, the statute left the elections thereafter to be made in the ordinary manner, by the old councils electing the new.
Indeed, the very circumstance of this act having been passed, was utterly subversive of the doctrine of an inherent light of election residing in the burgesses, when, on account of illegal encroachments on their liberties, the common-councils were no longer able to elect their successors. For if such inherent right had existed, instead of providing for a poll election, limited both as to time and as to the persons before whom it should proceed, all that the convention parliament would have done, was to have declared that the royal burghs having suffered encroachments on their liberties and privileges, by letters and recommendations from the king, his council, and others, whereby their common-councils were not legally constituted, the same should be dissolved; for when that was done, the supposed right of election competent to the burgesses, would, as a matter of course, immediately have revived. Instead of following that course, however, even the extraordinary remedy which was resorted to, was tramelled and controlled by imposing the necessity of obtaining a warrant, regulating the time and manner of carrying on the elections.
Such warrants, in point of fact, were accordingly granted, 1st. by the estates of the kingdom themselves, who, in virtue of two different acts [1689, C. 2 and 15], had assumed and exercised all the powers of the government during the interregnum; and, after the acceptance of the crown by William and Mary, by the privy council of Scotland. This circumstance was the more material, that in the elaborate paper* to which he had before referred, it was contended, that in point of principle no such warrant was required
* Memorial for Burgesses of Inverness.
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in any case to enable the burgesses to exercise their right of election. But it must be manifest, that, if that had been the case, the period now alluded to, when the government of the country was actually in a state of dissolution, was the time when those warrants would have been dispensed with. But those learned gentlemen, in support of their doctrine, had appealed to a case which was said to have occurred in the burgh of Queensferry, in the year 1710, in which an election, by poll of the burgesses, had been made under no other authority than that of the convention of the royal burghs. This, however, was an inaccurate statement of the proceeding. If the record had been quoted fairly by the learned gentlemen, it would have been seen, that the case, instead of making for their argument, made directly against it; for the fact was, that, upon an actual examination of the journals of the convention, it was found, that so entirely satisfied were all concerned, of the utter illegality of their proceeding, that, notwithstanding the whole parties having an interest in the burgh were before them, the convention required of those parties to "enact themselves," or come under an obligation in writing, "to stand to the determination" of the convention, whatever it might be, which they accordingly did. From this it was manifest, that all were aware, that had that agreement not been made, no decree which the convention might, have pronounced, could have been, rendered effectual. In thus limiting the poll to one single election, and prescribing that thereafter the course pointed out by the statute, 1469, of the old council choosing the new, should be afterwards pursued, the great men who settled and secured the government, laws and liberties of the kingdom sufficiently declared their opinion, that this last mode of election was neither grievous nor oppressive, nor entailed upon their fellow-citizens a humiliating and degrading tyranny.
But if the averments and assertions one the other side were refuted by what took place at the Revolution, they are not less authoritatively contradicted by, the proceedings at the Union, and in the year 1746. At the former period, it was well known that every subject by which public discontent could be excited, was anxiously resorted, to for the purpose of inflaming the popular phrensy; but gentlemen would in vain search for evidence of any com-

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plaint having been then made of the act 1469. On the contrary, although it was unsuccessfully attempted by the ancestor of the noble lord opposite, to get the article in the treaty of union left open for the revision of the British parliament, it was settled definitively, and, as far as appears, without any murmur out of doors, that "the rights and privileges of the total burghs in Scotland, as they now are, do remain entire after the Union, and notwithstanding thereof." Those terms, "rights and privileges," he was prepared to show, applied, in the language of the time, to the right of the old council to elect their, successors.* Instead then of the statute in question being considered as an evil, it was, in truth, deemed one of the securities of their freedom, and for its observance, the nation accordingly thought fit to stipulate, when it surrendered its legislature.
In the latter period again (1746), when the attention of the British parliament was particularly called to the important subject of circumscribing the power of the Scottish aristocracy (when there could be no bias on the part of a whig government, to maintain the power of the common-councils of the burghs of Scotland, as the (common-councils were then composed of the tories, while the burgesses and inhabitants at large were attached to the reigning family), this so much reprobated statute was allowed to remain unquestioned and uncomplained of, as the great charter of the corporations of that part of the kingdom. It was not till about the beginning of the French revolution, when the power of the rabble was appealed to as the great means of overturning the institutions of the state, that this statute, and the mode of election prescribed by it, was first complained of; and it therefore might safely be concluded, that while all the authorities, and the statute itself, utterly disproved the existence of those pretensions which were set up on the part of the burgesses, the history of the nation, during a period of three centuries and a half, not only confirmed their testimony, but proved that the alteration made by that statute on the constitution of the burghs, had been neither grievous, oppressive, nor tyrannical.
* See the terms employed in the papers in the case of Dumbarton, 19 Sept. 1689; and of North Berwick, same date, in the privy council of Scotland."
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But the noble lord had appealed to the practice in similar cases, as being in opposition to the proceeding lately recommended and adopted in the case of Aberdeen; and the learned gentlemen, in their memorial, had averred, that in any other branch, either of constitutional or of private law, such a deduction of practical cases as they enumerated would be held to settle the law of the question.
Now, though it was neither necessary nor desirable, to found upon precedents occurring before the Revolution, because they might be said to have resulted in some measure, from the arbitrary will of the sovereign rather than as being founded upon legal principle (although by the way it was plain, that while this might apply to the reigns of Charles and James 2nd, it could have no reference to the greater part of the period which had intervened betwixt the passing of the statute and the year 1689), yet it could not be immaterial to keep in mind, that no one instance of a poll-warrant having been granted during the course of these two centuries had been brought forward. He himself had been unable to find one, and he believed none such existed; while, on the contrary, there were instances upon record, and those too, belonging to a period when the government was in opposition to the sovereign, and popular principles predominated in the councils of the nation, of warrants upon an avoided election * being granted to the old council, whose proceedings had been set aside, to elect their successors.
But while he should not rest upon those instances as authorities of themselves, it was plain that if they accorded with the practice subsequent to the Revolution, they must necessarily tend very powerfully to confirm the conclusion that the practice was in conformity with the leading principles of the constitutional and burgh law of the country.
He should, therefore, proceed to consider the instances in which warrants of election had been granted subsequent to the period of the Revolution. In an appendix to a paper which had been published, as explanatory of the memorial for the burgesses of Inverness (which he observed in the hands of some of the gentlemen opposite, and which purported to
* There is one instance in the burgh of Aberdeen, about the time of the great rebellion.

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have for its object the information of the members of that House), it had been stated, that between the period of the Revolution and the Union, forty-five such instances were to be found in the proceedings before the privy council of Scotland; and that of these, forty warrants empowered the burgesses to elect the common-council by poll. In point of candour, however, the authors of that publication, whoever they might be, ought to have stated, that of those, thirty-seven were warrants granted immediately after the assumption of the government by king William, not in the ordinary exercise of the prerogative of the Crown, but expressly in terms of the act of the estates appointing an election to be made in the different burghs of the kingdom, by a poll of the burgesses. Such warrants, therefore, were not granted in the ordinary course of law, but in obedience to the temporary and extraordinary remedy adopted by the legislature, to correct the wrongs committed by James the 2nd; while two of the others, viz. Burntisland and Culross, were, in fact, granted under circumstances exactly similar. For in those two instances, the elections made by virtue of the act of the estates, had been avoided; and as there was no old legal council in existence, by whom their successors could be elected, the privy council was, ex necessitate, compelled to direct an election to be made by a poll of the burgesses. In fact, unless they had so done, the privy council would have been virtually disappointing the object which the legislature had in view, of having one election all over the kingdom, by a poll of the burgesses. The third case of Dysart, was distinguished from the whole in a most Important particular, which should be afterwards pointed out; and which utterly disproved the allegation, that upon an election of a common-council being avoided, a poll was held to be the legal and ordinary mode of reviving the functions of a royal burgh; indeed, it established that the rule was quite the other way. He should, therefore, take leave to say that of those cases, thirty-nine must be put out of view altogether, the warrants having been granted in virtue of the act of the estates.
But five instances of this list of cases which had occurred before the Union remained, in which it was admitted, that upon elections having been avoided, the warrant was granted to the old council,
[1316
whose proceedings had been set aside, to elect the new. There were, however, six other instances, which were not to be found in that list to which he had referred; and which, although they must have been under the eye of the persons by whom it was compiled, and whose views and language, it could not fail to be observed, corresponded in a singular and congenial manner with that employed in the memorial of Inverness, were altogether omitted. In four * of those instances, as well as in the five which he had just mentioned, the warrant was directed to the magistrates and council, whose acts had been avoided, whose year, as it was said, had run out, and who had thus returned into the common mass of the burgesses, requiring and authorizing them to assemble and to elect their successors; while in the fifth,† the old magistrates were reinstated in their situations; and in the sixth,‡ thirty-three persons were specially appointed to make the new election.
Of those twelve cases, then, which were at all applicable to the present question, eleven were granted to the old magistrates and council, to elect their successors; and, therefore, considering that they were granted at a time when the privy council of Scotland was composed of as enlightened and disinterested statesmen, and as great lawyers as had ever been called upon to administer the laws of any country; they ought, upon the very principles assumed upon the other side, to be held to have constituted the law on the point in question.
But the twelfth case which occurs in that mutilated list, as having been a warrant for a poll election,—the case of Dysart, in the year 1690, to which allusion had before been made, seemed to fix, beyond a doubt, what was the constitutional principle by which the proceedings, in all such cases, were to be regulated, and which was quite in opposition to the argument maintained in behalf of the burgesses. In that case, there was a petition to the privy council for a poll election, and a warrant for a poll election was granted accordingly, "Providing always, that there be not a sufficient number of the last Old Council of the burgh, who will qualify themselves,
* Kirkaldy, 1690. Edin. 1691. Edin. 1692, and 3. Kirkaldy, 1702.
† St. Andrews, 1692.
‡ Jedburgh, 1690.

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according to law, for making this year's election, which the said lords of privy council ordain to be made appear before——Wemyss of Bogie, whom they appoint to be present at, and see the said new election made, in case there be not an Old Council of the said burgh, as said is."
This case conclusively established, that so clearly were those eminent men of opinion that it was only in cases of necessity that a poll warrant could be granted, that they in fact refused the prayer of the single petition which was before them, by conceding a poll warrant only in the event of there not being a sufficient number of the old council to make a legal election.
But the charge of unduly omitting notice of cases which had actually occurred, and which must be of such high authority in forming an opinion of the present question, is not to be confined merely to the list in question. In the memorial addressed to the privy council, the learned gentlemen have stated, in express terms, "that by an unvarying practice since the revolution, the burgesses, de jure, had a right to a poll warrant on the elections made by the common-councils of the burghs being avoided." Yet, strange to tell, that memorial was utterly silent on all the cases which had occurred between the Revolution and the Union, to which chiefly considering of what men the privy council of Scotland was constituted, every one would naturally have looked, in order to ascertain the legal principle by which proceedings of that description at present should have been regulated. It was impossible for him to attribute such omission, considering the anxiety with which that memorial was drawn up, and considering the strong resemblance which it bore to the other production to which he had referred, and in which some of those instances were adverted to, to ignorance or unintentional error. The omission, however was undeniable, and the purpose for which it was made could not be mistaken. He should only observe, that to his mind, the omission forcibly admitted, that the practice of that period was so decidedly adverse to the proposition which the noble lord maintained, that even men of the most eminent talent thought it more advisable for their argument to pass it over than to attempt to explain it.—But he must take the liberty of observing further, with regard to the
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unqualified terms in which it was asserted, that there had since the revolution, been an invariable practice of granting poll warrants to the burgesses; that it afforded another instance of the gross and palpable delusion which was practised to excite a clamour for rights, which had never belonged to them, among the burgesses of Scotland. Ancient laws had been misinterpreted; the provisions of the statute 1469 had been misrepresented; a list, grossly inaccurate and imperfect, of the decided cases, had been made and industriously circulated, for the purpose of creating an agitation in the minds of the burgesses, and producing a clamour for reform, all of which proceedings would, he hoped, enable the House to appreciate the weight, which was due to the petitions on the table.
He would now come to consider the practice which had obtained betwixt the Union and the year 1781, when a poll warrant was granted to the burgh of Stirling. During that period, there were to be found in the list to which reference had before been made thirty-two cases in all. Of these, twenty-three elections, he understood the noble lord to have stated, had been made, in virtue of poll warrants, by the burgesses [Lord Archibald Hamilton assented to this statement]. But the noble lord was contradicted in this assertion by the terms of the very list which he held in his hand. In point of fact, only eight of those cases were directed to be made by a poll of the burgesses. In the other sixteen, the warrants directed the elections to be made, not by the burgesses, but by the burgesses and inhabitants. But what right had the inhabitants to be called in, if the inherent right was in the burgesses? And how csme they to be called in, unless there was vested in the Crown a discretionary right of empowering whom it would to revive the elections in a burgh where the right of election had become dormant? Indeed, it would be admitted, if not by the noble lord, at least by the petitioners, of whose numbers he boasted, that it was as great ah infringement of the privileges of the burgesses to grant a warrant to persons who did not belong to their body, to co-operate along with them in making the elections, and who, in most towns, from their numbers, would completely overwhelm the votes of the ordinary burgesses, as to grant it exclusively to the magistrates, and the old councils, who, at least,
*

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possessed the qualification of being members of the corporation; and, in most cases, formed its most worthy and respectable portion.
But in one of those twenty-three cases, and that not one of the least considerable, (that of the town of Edinburgh, 16th June, 1746) not only were the merchants and tradesmen, whether of the town or not, empowered to vote in the election of the magistrates and council, but even the merchants and tradesmen residing in the suburbs. In another (that of Linlithgow, 4th May 1759), the warrant was conceived in similar terms; and, in the case of Dingwall in 1759, even the heritors or holders of real property within the burgh, provided they bore a part of the public burthens, were directed to vote along with the burgesses.
But if the circumstances of each of those cases, in which a poll warrant was granted were considered, they would be found very far from bearing out the proposition so broadly maintained in the Memorial, and by the noble lord. In three of the cases, viz, Burntisland, 1709, Kirkaldy, 1715, and Linlinthgow, 1759, there was no old council existing; and, therefore, as in the case of Dysart, before mentioned, a poll was resorted to as a matter of necessity.
In other six of the cases,* where poll warrants had been granted, the elections had been avoided on account of bribery on the part of the old council. The sovereign, therefore, if not by law, at least in the sound exercise of his royal prerogative and discretion, was disabled from reviving the burghs by an election to be made by men who were thus contaminated, and who, by the recorded judgment of the courts of judicature, might even be liable to punishment on account of their corruption. Those cases then could afford no evidence in support of the pretensions which were now maintained.
In four more of the cases,† the elections had been reduced, in consequence of the majority of the councils having, from corrupt motives, made separate elections, which were avoided by the court of session, which could not sustain the elections made by the minority, the meeting
* Dingwall 1759, Inverkeithing 1766, Pittenweem 1767, Anstruther Wester 1767, Jedburgh 1774, Stirling 1781.
† Montrose 1723, Haddington 1723, Dysart 1725, Jedburg 1728.
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held by the minority not amounting to the major part of the council, and forming a quorum. In those cases, therefore, poll warrants were resorted to of necessity, because, while the major part of the councils had incapacitated themselves, the warrants could not be addressed to the minority, which could not constitute a legal meeting.
In the remaining cases, the corporations had been deprived of the power of electing their common councils by the proceedings of the rebels in the years 1715 and 1745; and the House would be satisfied from the authority which he was about to read, that those cases, instead of supporting the argument of the petitioners, by proving that poll warrants were granted as a matter of right, still farther demonstrated that warrants of that description were only granted of necessity, when the old magistrates and councils were by law incapacitated, or where it was legally inexpedient, by the exercise of the royal prerogative, to revive their power of electing their successors. The authority to which he referred was that of sir David Dalrymple, of Hailes, then lord advocate, sir James Steuart, then solicitor-general, and of Cockburn of Ormiston, then lord justice clerk, who, in the year 1716, had been required by the king in council to consider and report their opinion as to the most proper and effectual method of re-settling the magistracy of certain burghs, whose elections had been interrupted by the rebellion.
These very eminent persons stated in their report that they concurred in opinion, "that not any one rule can be found to accommodate the case of every burgh for answering the ends of your lordship's (the secretary of state's) letter; but the most regular and easy method that occurs to us, is, that the magistrates of this last year, be, by order of council, appointed to elect magistrates and councils for the remaining part of this year, until the lets of the next annual elections, according to the constitutions of the several burghs, which will be about Michaelmas next, debarring all persons who have been concerned in any acts of disaffection, during the rebellion, from electing or being elected." The opinion proceeded to state, that, "In some burghs the defection has been so great, that there does not remain a quorum, according to the constitution of the corporation, of persons to proceed to an election; and, in

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these cases, we are humbly of opinion, that there is a necessity of a popular election, by poll of the burghers and freemen, such as has been appointed since the Union, in the burghs of Burntisland and Kirkaldy, by order of council. Of this kind, the most considerable is the burgh of Dundee; but such orders in council do require some restrictions, and more especially that none be admitted to elect or be elected, who have been concerned in any acts of disaffection during the late rebellion."
These opinions were entitled to the greater weight, that one of the eminent individuals by whom they were given, held at the time one of the highest judicial situations in the kingdom; and they seemed conclusively to establish not merely the reason why poll warrants had been granted in the instances in question; but as had previously been held by the eminent judges, who had filled the office of privy councillors before the Union, that they could only legally be granted in cases of necessity, where the mode of election pointed out by the statute could not be followed. It might be observed too, that this opinion afforded another instance of the total want of reliance that could be placed upon the accuracy of the statements, even in matters of fact, of the memorial of the burgesses of Inverness, so often referred to; it being asserted in that paper, that the warrants to Aberdeen and Inverness had been granted to the magistrates to elect their successors, because the burgesses were disaffected; while it clearly appeared that it was only in those cases, where there was not a sufficient quorum of the old council, who were well affected that recourse was had to a poll.
Of the whole twenty-three cases, as constituting the practice in favour of warrants for election by poll asserted to be invariable, twenty-two had thus been satisfactorily explained and accounted for. The grounds upon which the election in the other* had been avoided, had not been discovered; but it could not be reckoned an unfair inference to conclude, that it must have been granted upon principles not inconsistent with those acted upon in the numerous instances, which had been explained.
In the remaining six cases of the twenty-nine, it was admitted that the
* Cupar, 1725.
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warrants of election had been addressed to the old magistrates, or the old magistrates and council. He therefore held himself entitled to conclude, from a consideration of the whole of the cases in question, that instead of the burgesses having a recognized and acknowledged title to insist as a matter of right, upon a poll warrant, it would have been a more accurate statement of the law, to have laid it down that the Crown had no right, except in cases of actual necessity, to grant a warrant of that description.
It was proper, however, to mention, that in the year 1747, a case came before the Court of Session, in which a warrant had been granted by the king in council, to the magistrates and town council of Montrose, to elect their successors after their ordinary election had been prevented by the operations of the rebels. In that case, undoubtedly, lord Arniston (afterwards lord president of the court of session, and a person of the first eminence as a lawyer) delivered his opinion that the Crown had been ill advised as to the shape of the warrant, which ought to have been, his lordship thought, one authorizing an election by a poll of the burgesses. But although this was the opinion of that learned person, the other judges thought otherwise; and there were lawyers of not less eminence than him upon the bench at the time, who took part in the discussion. Among others, Forbes of Culloden, then lord president (who is strangely quoted in the memorial so often referred to, as evincing an opposite opinion, in consequence of his having officiated as a commissioner at a poll election for Inverness, twenty years before) not only dissented from that opinion, but delivered a clear and decided judgment, in opposition to that of lord Arniston: and it must be admitted upon all hands, that no man more distinguished as a statesman, as a patriot, or as a constitutional lawyer, ever presided in the court of session.*
* In the memorial for the burgesses of Inverness, it is stated that in the case of Brechin, in consequence of this opinion of lord Arniston, a warrant addressed to the former magistrates and council, who had been interrupted by the rebels, empowering them to elect their successors, was actually countermanded; and a warrant for an election by poll of the burgesses, granted in its room, the judgment

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Let the authority of lord Arniston, therefore, be rated as high as it might, it could not be placed higher than that of lord president Forbes, nor even entitled to such weight and consideration, considering it was not supported, as his lordship had been, by that of the whole of the other judges. But the House had been told, that Mr. Wight, in his treatise on elections, corroborated the opinion of lord Arniston; and in the memorial in behalf of the burgesses of Inverness, it was said that there was no authority which could possibly be referred to in support of an opposite doctrine, and that no writer since Mr. Wight had ventured to contradict his opinion.
Now it was no doubt true that Mr. Wight did give that opinion, and that Mr. Wight was a very eminent lawyer; but it was not true that the opinion of Mr. Wight had never been contradicted by any later authority. In point of fact too, it was unquestionable, that although a lawyer in great practice and of much learning, that part of Mr. Wight's treatise which respected the burghs was the least perfect and the least valuable of the whole work. There were many circumstances, and particularly
of lord Arniston, in the case of Montrose, having been pronounced on the 23rd of January, 1747, and the poll-warrant having been granted to the burgh of Brechin on the 26th of June, 1747; and this allegation was again made by Mr. Hume, (member for Montrose, &c.), in the course of the debate. It was stated, however, in explanation by the lord advocate, that the memoralists of Inverness, their learned advisers, and the hon. member must be mistaken in the above statement; for in consequence of the style not being then altered, the year began upon the 25th of March, and therefore the 26th of June, 1747, preceded the 23rd of January, 1747. The judgment of lord Arniston, therefore, could pot have affected the proceedings of the king in council in the case of Brechin; and the alteration had more probably been occasioned by its having been discovered by the advisers of the Crown, that the magistrates and council of the burgh of Brechin, were in the predicament pointed out by the law officers of the Crown, and the lord justice clerk in their report, and that, therefore, there was a necessity in sound discretion for calling in the co-operation of the burgesses.
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the well-known bias which he naturally received from cases in which he was professionally engaged, and under the influence of which his book was composed, that weakened its authority. In the instance in question, so little consideration did Mr. Wight seem to have bestowed upon the subject, that he nearly adopted the words of lord Arniston, without stating that lord Arniston, was in a minority of one, or pointing out the reason why in opposition to the sense of the majority of the judges, he thought fit to lay down the doctrine of his lordship as the law of the land.
In order, however, to judge of the value of Mr. Wight's authority in this instance, it was not immaterial to observe, that he had stated, as the ground of his opinion, in favour of an election by poll, that in the event of an annual election, in a royal burgh in Scotland, being avoided, a warrant to revive it might be demanded as a matter of right, because the burgh was not thereby disfranchised; while in England, no such right existed, the burgh being in such a case actually dissolved, its lands and other property returning to the grantor. This statement, if Correct, would not, however, warrant the conclusion at which that author had arrived. It was true, that in consequence of the articles of the union, it might be competent to alt persons having an interest in a royal burgh so situated as to demand as a matter of right, that its functions should be revived; but it would not also follow, that those persons whether burgesses or others, had a right to insist upon being authorized by the warrant, to act as the instruments of operating that revival. That must necessarily depend upon the extent of the prerogative and discretion of the Crown, or of the rights inherent in the burgesses, either as they originally existed, or had been modified by the acts of the legislature, or in the old council; and whether the matter were to be considered in one point of view or the other, all pretensions to such right in the burgesses had been demonstratively shown to be utterly unfounded.
But in so far as Mr. Wight's opinion depended on his representation of the rights of the English burghs, when placed in a similar situation, it was understood to be altogether Inaccurate. A corporation in England, at no time had been held to be dissolved by its failure to continue itself. By so doing, it lost nothing

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but the power of electing its municipal council. Its lands and other property did not return to the grantor.* It only became dormant till restored to its activity by the warrant of the Crown. When so situated, it, in fact, was reduced to the same situation as a royal burgh in Scotland when its annual election was avoided, which also required the authority of the Crown to revive its functions. It was plain, therefore, that Mr. Wight's authority upon this subject could not be regarded with much consideration, the whole subject having been very imperfectly investigated by that learned author.
But so utterly unfounded was it in fact, that no writer since the time of Mr. Wight had ventured to state an opposite doctrine or to contradict his opinion, that there was only one writer who, from that period to the present, had published a work upon the subject (the late Mr. Bell), and he dissented from Mr. Wight's opinion, in the most express and decided terms. The hon. and learned gentleman opposite (Mr. J. P. Grant) seemed to question the authority of Mr. Bell's work, and to express a disregard for his opinion; and this was no new practice with the hon. and learned gentleman. When an authority was quoted against him, which he could not reply to, he attempted to undervalue it. In the debate which took place upon a point of Scotch law during the last session, he had denied authority to Mr. Burnett's work on the criminal law, while it was matter of notoriety that the book was daily referred to by the most eminent judges in the supreme court. He now, in the same summary manner, it seemed, wished to dispose of the authority of Mr. Bell, who was the lecturer appointed by the writers to the signet to teach the law of Scotland to their society. He protested that he was ignorant of the right which the hon. and learned gentleman possessed of thus summarily pronouncing upon the merits of the works of eminent men respecting the law of Scotland; and of requiring of the House to believe, upon his testimony, those which were and those which were not received in the Scotch courts as works of authority. In the present instance, in particular, it appeared, that as Mr. Bell's opinion coincided with that of the whole court, with the exception of one judge, it was entitled to far greater respect than that of Mr. Wight;
* 3 Burr. 1866.
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unless, indeed, by the same assumption of power, the House was to be told that the opinions of lord president Forbes and his thirteen brethren was not regarded as of equal weight in the law of Scotland with the solitary unsupported authority of lord Arniston. But, moreover, the mere fact of Mr. Bell having given that opinion, ought to convince the House with what distrust those statements ought to be received as to points of fact which were contained in the memorial for the burgesses of Inverness, in which it was unreservedly asserted that no such opinion had ever been given.
While thus referring to the opinions of Mr. Wight and Mr. Bell, founded on the judgment given in the case of Coutts and Doig, it was proper to mention that a proceeding exactly similar to that which had occurred in that case, had taken place in the present.
The burgesses of Aberdeen, who were said, by the act of the Crown to have been deprived of their constitutional right of electing their magistrates by poll, instead of being advised by their learned counsel, (most, if not all of whom also subscribed the memorial for the burgesses of Inverness), to bring the question of the legality of the warrant to trial, by an action to have it avoided before the supreme court; proceeding upon the assumption that the warrant was legal, had complained to the court of session, that in the course of the election made under its authority, its directions and provisions had not been complied with, and therefore praying that the election might be set aside. When delivering its judgment upon the merits of that complaint, as in the case of Coutts and Doig, the court (and had the warrant been so unconstitutional and illegal as represented, it no doubt would have done so) might as lord Arniston had done, have animadverted upon the erroneous advice which had been given to the Crown as to the form of the warrant. But instead of doing this, while one of their lordships intimated an opinion, that there was nothing illegal in the mode of election authorised by the warrant, not one of the judges expressed even a doubt to the contrary.
But it would be unfair, after the attack which had been made by the noble lord upon the magistrates of Aberdeen—after the manner in which they had been personally traduced and calumniated, to omit stating to the House, a part of the judg-

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ment delivered by the eminent person who presided in the court when that case was decided; a learned personage placed at file head of the criminal law of the kingdom, well known to possess the highest and most honourable mind, who enjoyed in an extraordinary degree the confidence of his fellow-citizens, and who, besides being at the bead of the second division of the civil court, administered the criminal law not only to the satisfaction, but to the admiration of the public; that learned person had said, "I cannot conclude without expressing my regret, that the wholesome advice which was given to the inhabitants of Aberdeen, by one of ray learned brethren (lord Pitmilly), at the last circuit, has not been better attended to.—His advice was, that the only means of relieving that city from its difficulties, and restoring it to its former prosperity, would be, to lay aside those dissentions and animosities, with which it has been distracted; and to pursue the good course of peace and harmony. I know that the magistracy which has now been formed is of the most respectable description; and that, in particular, no person could be better qualified, than the highly respectable individual placed at their head, for the discharge of the important duties of his office; and I am satisfied that were such individuals allowed to discharge their duties unmolested, the city of Aberdeen would soon recover its former prosperity and splendour."
The men to whose characters testimony was thus borne, were men who had that night, on account of alleged fabrication and forgery, been held up to the reprobation of parliament; but he trusted they would now stand clear in the estimation of gentlemen from the imputations which had been unjustly cast upon them, and held to be untainted by the crimes with which they had been charged.
But to return to the question of the legality of the warrant having been directed to the old magistrates and council, there was only one other authority to which he would refer, and which, very strangely, in his humble opinion, had been quoted in support of the doctrine that the right to a poll warrant was vested in the burgesses. He referred to the statutes of the 7th and 16th George 2nd, by which there was conferred upon any constituent member of a town council, the right of complaining to the court of session, in a summary manner for redress of the wrongs done by
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a majority at an annual election, or even avoiding the whole of their proceeding. These statutes, it had been said, in the memorial in behalf of the burgesses of Inverness, would become a dead letter, if the result of avoiding by the court of session, an annual election, illegally made by the old magistrates and council, was not in every such emergency to vest in the burgesses the right of election.
Now with all possible deference to the eminent authority of the learned persons who had closed their argument with this alarming proposition, it did appear to him, that the provisions of those statutes, necessarily led to a conclusion, diametrically the reverse of any right to a poll warrant being vested in the burgesses, in the event of proceedings being avoided which had been held in virtue of their enactments. By those statutes it was expressly provided, that in order to have a title to complain of wrongs done at the annual elections, the complainer must have been a constituent member of the meeting which assembled for the purpose of Waking the election. It was not enough that he should be a burgess or a freeman of the corporation, he must also have been a member of the council. A burgess, as such, had no more right to complain of any proceedings which might have been adopted in the common-council, than if he had belonged to another burgh or another kingdom. But if it had been intended that upon the avoidance of the annual election, there immediately should hate sprung up an inherent right in the burgesses, to elect the common-council of the burgh the power of complaining of proceedings which shut them out from the exercise of that right, must necessarily have been conferred upon them by the statutes. The limiting the title of complaining, in the manner which had been done by the legislature, absolutely demonstrated that such right was not understood to belong to them. Indeed it might be questioned whether, without any special provision, the interest which the burgesses would in that case, have had to reduce the illegal proceedings of the common-council, would not of itself have been sufficient to have vested them with the right of instituting the necessary action for the purpose in the courts of law.
But it seemed as if in the whole course of the argument, the difference betwixt avoiding the election made by the old council, and the avoiding the right of the

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old council to make that election, had been totally overlooked; yet it was plain, that the one was altogether different from the other, and this difference was of infinite importance in determining the point of law involved in the question of the legality of the mode adopted for reviving the burgh of Aberdeen. The very statutes which he had just referred to did not contemplate the taking away the right of electing their successors, vested by law in the old magistrates and council. They had respect to nothing but the correction of any wrongs, of which, in making that election, they might have been guilty; and they left entire and untouched, to that branch of the government to which it legitimately belonged, to determine when that degree of necessity existed, which should preclude those electors from exercising that function, which, through their own proceedings, had become dormant.
But even if the argument which he had drawn from the statutes, and which seemed to be conclusive, was deemed to be inaccurate, the mere circumstance of the courts of law being authorized to correct an error made in the course of an election, did not lead to the inference that the persons by whom the error had been committed, were to forfeit their legal and constitutional right of making an election, in place of that which had been avoided.
From the long, and he was sensible, most uninteresting statement which he had been compelled to make, in vindication of the principles on which the late warrant to Aberdeen had been granted, he conceived it to have been incontrovertibly established that where the annual elections made by magistrates and councils of a royal burgh in Scotland, have been avoided, there was no right inherent in the burgesses at large, to require from the Crown a warrant authorizing them to revive the common council of the burgh, by an election by poll;—that in such cases the legal principle, as sanctioned by practice, required that where the old magistrates and council had been guilty neither of any delinquency, corruption, nor fraud, the warrants to be granted by the Crown, should, on the contrary enable the election to be made by those in whom had been vested by law the right of electing their successors; and that it was in cases of necessity where the old magistrates and council had incapacitated
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themselves from the exercise of their function by having been convicted of bribery and corruption, or where they had been engaged in rebellion, or had committed any fraudulent delinquency, or where the old council was diminished in point of number below what was required to constitute a legal quorum, that the Crown was warranted in the exercise of that sound discretion, to which it was competent by the constitution to grant a warrant for an election by poll, whether of the burgesses and inhabitants of the burgh, or even of persons residing without the bounds of its jurisdiction.
Feeling, as he did, the most perfect reliance in the justness of the view of the question which he had thus submitted to the House, he was himself relieved front the necessity of discussing the expediency of introducing any change whatever into the present state of the law upon this subject, were it competent for parliament to do so in consistency with the treaty of union. But he could not help observing, that if a change were to be made upon the law relative to the right of electing the common-councils of the burghs of Scotland, he could see no reason why that right should be transferred either to the burgesses of guild, or the members of the craft (or livery) companies. They were neither more wealthy nor more capable of exercising a function of that description than the other inhabitants of the burghs. In many of the towns they were certainly of less consideration than the majority of the inhabitants; and in others, as far as he himself had been capable of judging, the most respectable part of the burgesses was composed of the members forming the common-councils. Factious persons might maintain the reverse; but he himself was thoroughly persuaded, that in most of the burghs in Scotland the most respectable members of the corporations were called upon to exercise the municipal government: and that if some of their names were not to be found in the common-council, it was owing to what he had occasion to know very frequently occurred, their wishing to have no share in the politics of the burgh.
In thus deprecating any change in the political constitution of the burghs, he was very clearly of opinion, that an uniform mode of accounting for the expenditure of their funds or common good, as it is called, ought to be required, and provided for by parliament. He had accord-

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ingly intimated his intention, to move for have to introduce a bill for that purpose, somewhat similar to, but, on the whole, more efficient than that which he had brought forward during the last session of parliament, and as effectual a remedy for the existing evils as, he believed, could, under all the circumstances, be provided. But he should be most anxious, and ready to avail himself of any suggestions, which the noble lord, or any other honourable member might think fit to make, for rendering the control wished for, more complete. This, however, was a branch of the question, totally unconnected with the point which was now before the House: and he should therefore enter into it no farther than to state his thorough persuasion that a remedy for that part or the alleged grievance would not be attained by any alteration whatever, in the political constitutions of the burghs. On the contrary he was convinced, that the more extended the right of electing the common-council should be made, the expenditure of the burgh revenues would only become the more lavish and profuse. The effect of such a mode of election, would be to introduce annually new men into the council, who would have their own plans, and their own projects; and who in their turn must yield to more popular candidates for public favour. In fact, it was quite a delusion to state that the dilapidation of the burgh revenues had altogether taken place through the wasteful extravagance of the common-councils. The revenues of the burghs had more than a century ago been almost annihilated through the prodigality of Charles 2nd, and James 2nd, and the rapacity of their favourites, who at that time governed the country. The wealth amassed by the duke of Lauderdale and others, resulted from the profligate extortion practised by them upon the revenues of the burghs of Scotland; and if the history of the great estates, which the petitions upon the table represented as having once belonged to the corporation, was traced, he had no doubt it would be found, that they had been disposed of in a similar way, and for similar objects.
But this was not all; for what was spared by the minions of the house of Stewart, seemed to have fallen a sacrifice to the enterprising spirit of the nation, which induced it to run headlong into the scheme for establishing the African com-
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pany, a special statute [Act 1695, c. 42] having authorized the administrators of the common good of burghs, to embark the estates under their management in that unfortunate, and ruinous adventure. However much, therefore, it might suit the purposes which the noble lord had in view, to represent the dilapidated state of the revenues of the Scotch burghs, such statements, while they were in a great measure inapplicable to the question before the House, were no less so to the present system of their municipal government.
The Lord Advocate said, that having trespassed at so great a length upon its time and patience; and having experienced so largely the indulgence of the House; it would be unwarrantable to detain it longer, even by apologizing for having entered into the very dry detail which he was now about to conclude. It must, however, be kept in remembrance, that the truth of the charge made against him by the noble lord, of having entailed ridicule upon himself, and disgrace upon his majesty's government, by the contradictory advice which it was contended he had given in the cases of Montrose and Aberdeen, entirely depended upon the question, whether those supposed opinions were agreeable or contrary to the law of the land. It was for the legality of the advice only, that his learned friends and himself could be responsible; to the question of law, therefore, alone, was he called upon, or even entitled to have addressed himself; and, to use those terms which the noble lord had thought proper to employ, with respect to his conduct, and then to endeavour to shut him out from discussing the question on which that defence rested, under the wretched pretence, that it was wished to waive that discussion till another opportunity, was a proceeding which neither the noble ford nor the gentlemen opposite, had a right to adopt: and to which, certainly, he was not bound to submit. He defended himself, therefore, against the imputations of the noble lord, by contending, that it was conclusively established, that although the warrants granted for a poll in the case of Montrose, and to the old magistrates and council in the case of Aberdeen, were in themselves different from each other, they did both of them rest upon the same legal and constitutional principle. In the one, the magistrates and council had been convicted of wilfully making an election

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in a manner contrary to the charter of the burgh and the law of the land. In the other, the only ground assigned, in the judgment of the court, for avoiding the election made by the old magistrates and council, was a trivial error which they had unintentionally, and inadvertently been led to commit. Assuming it, therefore, as clear, that without sufficient and legal grounds, the Crown was not entitled to deprive the old magistrates and council of a burgh of their right of electing their successors, he contended that in the case of Aberdeen, it would have been an arbitrary exercise of the prerogative, to have granted a warrant for election by poll of the burgesses; while, on the other hand, if it was competent for the Crown to revive a burgh, by authorizing a new election to be made by poll of the burgesses, there were the strongest grounds in sound discretion for exercising that power in the case of Montrose. The one set of magistrates had, through their own wilful wrong, themselves produced a legal necessity for having recourse to that extraordinary remedy; the old council of Aberdeen had done nothing, either in morality or in point of law, for which they should be deprived of their legal right of electing their successors. Both warrants, therefore, rested upon the same principles, respecting the constitutional prerogative of the Crown,—a prerogative not to be used arbitrarily, but according to a sound and legal discretion. However much, therefore, the proceedings in those cases might have exposed him to obloquy and misrepresentation; yet conscious to himself that the opinions which he had given were dictated entirely by what he believed to constitute the law of the land, and that too, after a most anxious consideration of the question, he should have been altogether unworthy of the trust reposed in him by his sovereign, if to shelter himself from reproach, and to please the noble lord, or to gratify any human being, he had shrunk from discharging what he had conscientiously felt to be his bounden duty. He therefore trusted that the House would negative the motion of the noble lord.
Mr. Humehoped, that, as representative of the district of burghs to which Aberdeen belongs, he should receive the indulgence of the House in offering those observations, which a careful attention to the subject had suggested. He had listened with particular attention to the speech of
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the right hon. and learned lord; and could safely assert, that not one fact or statement of the eloquent and convincing speech of the noble mover had been contravened, or one argument refuted. The learned lord had satisfied himself with general denials, when he could not meet the noble lord: he had taken up the case in a way which was expressly kept out of view; and he had attempted to give interpretations and explanations, both to the law and the fact, which he believed to be altogether erroneous and untenable. The noble lord had grounded his motion on the conduct of the magistrates of Aberdeen, as a self-elected junto, their malversation as such, and of the expediency and justice of his majesty's government giving to the burgesses the power of remedying the defects and mischiefs which had taken place under a rotten and corrupt system—a body that had fallen to pieces, as the noble lord expressed it, from its own rottenness. The noble lord had expressly deferred to a future part of the debate, or to a future time, the question of legality of the proceedings of his majesty's government towards Aberdeen; but the learned lord had found it convenient to pass the question as to its expediency, policy, and justice; and to consider it only in a legal point of view. This was a convenient mode of proceeding, when there was neither arguments nor facts to meet the charges made by the noble lord.—The learned lord had considered the motion, and complained of it, as affecting the parliamentary reform of these burghs; but the House would recollect that the noble lord had expressly stated, at his outset, that parliamentary reform formed no part of the present case. He (Mr. Hume) acknowledged that, ultimately, such a reform, as he expected these burghs to receive, would affect parliamentary representation. [Hear, hear, from the ministerial benches].—And why should it not? [Hear, hear, from the opposition benches.] Most certainly it ought; and, at a future day, he trusted that branch of the subject would he brought before the House, and receive its favourable consideration.
With respect to the conduct of the magistrates of Aberdeen, for many years past, it was impossible there could be a difference of opinion. In noticing the conduct of the magistrates of Aberdeen, he begged he might be understood as only speaking of their public official conduct,

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as he had nothing to charge them with in their private capacity: on the contrary, he was informed that the present council were men of respectability and character; be had not a personal knowledge of them. The whole council had placed on their minutes the nature and extent of the evils their management had brought on the city, and had recorded their total imbecility and unfitness to conduct its affairs. They had demonstrated their incapacity to perform the duties of magistrates, when, in 1817, they were compelled, by previous mismanagement, to transfer the whole property and funds of the city, of which they alone were the legal managers, to trustees for behoof of the creditors of the city. Brought to the verge of ruin, by failure of credit and confidence, the funds of the city were put into other management, charged with a load of debt altogether unprecedented.—If there were no other documents before the House, the minute of the Aberdeen council of the 19th September, 1817, read by the noble lord, was sufficient to convince this House of the perfect rottenness of the system, and of the absolute necessity of a change. "They reiterated their decided opinion that the present mode of election of the town council, and management of the town's affairs, are radically defective and improvident, tending to give to any individual or party, who may be so inclined, an excessive and unnatural preponderance; and to foster and encourage a system of concealment, under which the most upright and best intentioned magistrates may not be able to acquire that thorough knowledge of the situation of the burgh which is requisite for the due administration of its affairs." He did not blame the present magistrates of Aberdeen; but on that confession of their predecessors, and on the state of the town's property, he condemned the system under which they have acted.
The learned lord had altogether omitted to notice the financial difficulties of Aberdeen, which, from an authentic document published by the trustees in 1817, showed the debts to amount to 230,000 l. He wished here to correct an error into which the noble lord had fallen, in considering all that amount as a debt due by the town:—166,000 only had been expended on the improvements of the town; and 64,000 l. had been lent to the harbour trustees, and to trustees for roads in the neighbourhood. It had been stated, that that money had
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been expended under the sanction of an act of parliament for improving the town; and that the magistrates had attempted a laudable work, although it had not turned out so very fortunate as had been expected. But what would the House think when they knew that an act had passed this House, in 1800, for the improvement of that city, empowering the magistrates, together with the members of the city and county, and some other official men, as trustees, to borrow 20,000 l., and then proceed with the work; to hold regular quarterly meetings; keep regular accounts of all those transactions, &c.? The inhabitants had, at a public meeting, certainly agreed to the plan and estimate of Mr. Abercrombie, amounting to 37,000 l.; and on the faith of these did they give their sanction, and the improvements were undertaken accordingly.—It was notorious, and the subject of just complaint, by the people of Aberdeen, that none of the provisions of that act had been attended to by the magistrates; and such had been the system of secrecy and concealment, almost incredible, that a debt of 230,000 l. had been incurred in 17 years, without the knowledge of the town, and even without the knowledge, to the full extent, of some members of the council! publicity had been given by the magistrates only when they could no longer support their credit; they then became bankrupts, as the noble lord has stated, and delivered over their property to trustees for their creditors.—If that act, equivalent to a cessio bonorum, did not prove the act of bankruptcy, objected to by the learned lord, he did not know what would prove it? He could not state that any private peculation had existed, although some extraordinary transactions had taken place; but, in support of the charge made by the noble lord, and denied by the learned lord, that forged minutes, or irregular entries, had been made in the books of the council, he could state one fact, on the authority of the gentleman himself who was a member of council in 1811, but who was too independent to be continued in council by them, and who is ready to verify it on oath: a minute of council recorded a resolution to borrow 10,000 l. at one term, and his name is entered as present and consenting, although he never heard the subject of borrowing money mentioned at the council; and only discovered the transaction by looking over the minutes some time

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after. If that was Sot falsifying of minutes, Ire knew not what was. It is still more strange, that, although the whole of the 230,000 l. was borrowed by the city treasurer, by order and authority of the magistrates, and 57,000 l. of that sum to pay interest, there is not one entry of receipt or payment in any of his city accounts; nor were any of the sums of receipt and disbursement laid before the burgesses at the annual head court, when the accounts of the town ought to be exhibited.
No notice had been taken of the distress occasioned to the creditors (in number nearly 600) by the stoppage of the interest on their loans, or of the risk and loss the different charitable institutions in Aberdeen had suffered by the conduct of the magistrates; but, by a printed list published by the trustees, it appeared, that the funds of 52 charitable and public institutions had been lent to the magistrates, as trustees of the new streets—of which charities, the magistrates were, ex officio, sole guardians, to the amount of 75,000 l., and joint trustees for 10,700 l. more! It has been stated (and he believed correctly) as a proof of what the magistrates would have done with any public charitable property in their power, to prop up their credit a little longer, that the estate of Towie, belonging jointly to Gordon's hospital and the infirmary, was valued at 60,000 l., and would have been Sold, if the managers of the infirmary would have concurred in the sale, but they would not! All these funds had been swallowed up and endangered by those whose duty it was to place them beyond the chance of loss. He had much satisfaction in being able to state to the House, that, by a late account of the trustees, the creditors were receiving 4 per cent for their debts; and that there was a fair prospect of the property being sufficient to pay the full interest, and perhaps to pay off all the principal, in the course of time. It was observed by many, however, that this favourable state of the finances was owing to the city property having been put under the management of trustees; and that the favourable hopes now held out would never have been realized, if the old rotten system of secrecy and concealment had been kept up in force.
The learned lord had asserted, that the lavish expenditure and misconduct of the late magistrates of Aberdeen had not been the cause of the election of 1817 being set
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aside; but he believed that the court of session had decided on the first charge, as to improper electors, and had not entered into the other complaints against the magistrates, one of which the learned lord certainly knew was their lavish and improper management of the city funds.—The noble lord had complained of two acts of the present magistracy, which hey in justice to them, should notice and explain. And, first, of their having deprived two old men of their pensions from the Guildry funds, because the burgesses had made use of their names to carry on the suit against the magistrates in the court of session. When it is known that; by law, no person can complain against an election of the council, except one of their own body, present at the election, it will be understood that the burgesses of Aberdeen made use of the names of these two old pensioners, who had been parties to the election, and had disapproved of it, to carry on the suit against the magistrates; and he must say, that, to have carried their revenge against these poor men, instead of the burgesses, who they knew were the pursuers, was not very creditable to the present magistrates. But he would read the explanation given by the magistrates themselves, in a letter from them, that the House might judge of the transaction:—"With regard to the two old gentlemen alluded to, as having been deprived of their usual supply, they are the two individuals who thought pro per to raise the late vexatious, and (as the result has shown) ill-advised proceedings before the court of session, for re during the last election, under the war rant of the prince regent. It naturally occurred, that if these gentlemen could afford to institute such proceedings, they were very unfit objects of public charity. Their pensions were therefore suspended, until they should show that they stand in need of them; and if they can do this, they will instantly be replaced."—With respect to the assessment for the new gaol, he believed the magistrates meant nothing improper; and that the transaction had been satisfactorily explained to the joint committees of burgesses and county heritors.
The learned lord had declared, that whilst the statutes of George 2nd pointed out the means of reducing a magistracy for improper election and misconduct, they also gave to the Crown a discretion how to re-elect the magistracy; and that

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he, as the official adviser of the Crown, was ready to explain and to defend the reasons why the burghs of Montrose and Aberdeen had received different warrants. The learned lord had declared the principle on which he acted, that when no fault or gross illegality took place on the part of the magistracy, he would recommend the old council a warrant to re-elect their successors; but when any gross illegality, bribery, or corruption, took place in the magistracy, he would recommend, as a punishment to the old council, a warrant to the burgesses to elect a new council by poll warrant! That he had done so in the cases of Montrose and Aberdeen; and the warrants had been issued accordingly by the privy council.—He earnestly requested the attention of the House to the cases of Montrose and of Aberdeen, as he must altogether deny the just application of these principles by the learned lord, in recommending the warrants of elections to these places. The magistrates of Aberdeen, by a long course of mismanagement and secrecy, had brought the finances of the city into the greatest distress, and had recorded the evils arising from their own management, and from the system under which they acted, in such a light, that a quorum of the new council could not be found to accept office. The burgesses and inhabitants had challenged the mode of election, and loudly complained against them, as unworthy of confidence and of office; and the election had been set aside by the court of session as illegal. The council of Montrose, at the election in 1816, agreed unanimously to elect their magistrates by ballot, each member putting in a black or white bean, expressive of his assent or dissent, instead of voting by open voice; and as the election turned out against the wishes of one party, that mode of election was challenged before the court of session, and also set aside as illegal; but there was no charge whatever of extravagant waste of public property, or any other improper proceedings, against the magistrates of Montrose. The learned lord had accused the council of Montrose of gross illegality, and had stated that his majesty's ministers had punished them for their misconduct, by a poll warrant; whilst the magistrates of Aberdeen had only been, guilty of a trivial fault; and had, therefore, received a warrant to reassemble and elect a new council!!
The opinion of the learned lord and so-
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licitor general to the privy council, in the case of Montrose, was as follows:—"That it would be for the benefit, good order, and government of this burgh, in time to come, that his majesty be graciously pleased, in so far, to alter the set or constitution:" and they proceed," that it would be of public utility, and for the good of the burgh, to grant the prayer of the above-recited petition, &c." "And we humbly propose, that his majesty may be graciously pleased to restore his ancient burgh of Montrose to its franchise, magistrates, and council, and to make an order in council, that the guild-brethren shall meet, &c." It ought to be observed, that the same reasons are assigned in the warrants of the privy council to Montrose and to Aberdeen, viz. "for restoring the peace and good government of the said burgh," but by very different means certainly!! The burgesses of Montrose were authorised to meet, agreeably to their ancient franchises, and elect those men as magistrates, in whom they could repose confidence for the good government of the burgh. The burgesses of Aberdeen were refused these rights and franchises, and authority was given to those men, who had recorded their own conviction of the rottenness of the system, to meet and re-elect their successors!! He submitted to the House, whether that was a proper exercise of that wisdom and discretion which the learned lord claimed for himself and his majesty's privy council; and whether the peace and good government of Aberdeen was consulted in forcing upon the city, men as magistrates, who had lost the confidence and respect of the burgesses and inhabitants?—As to the case of Aberdeen of 1746, cited as a precedent, when the old council met, by warrant from the Crown, to elect a new council, it was not under similar circumstances, and could not apply. The magistrates had been prevented, by the rebels being in possession of the city, from completing the annual election, and were afterwards, on petition from the governors of the city (who had been appointed, ad interim, by the duke of Cumberland), and not opposed by the burgesses, ordered to meet and complete the election, as if they had not been prevented by the rebels.
The learned lord entered largely into the question of legality, which it had been the express desire of the noble lord to avoid, for the present; and, he must

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confess, that the explanation by the learned lord of the laws on that subject, appeared to him as extraordinary as he believed, it would be found to be erroneous. He would endeavour, though not a lawyer, to point out some of the errors into which he had apprehended the learned lord had fallen.—The learned lord had broadly asserted that the right of electing magistrates and council of the royal burghs, before the act of 1469, did not exist in the burgesses and community, and had stated that the opinions on that subject were founded in gross ignorance; that it was a delusion into which the people had been led by the opinions which had been previously published; and, particularly of late, in the case now before him of Inverness, by some professional gentlemen at Edinburgh, Messrs Clerk, Cranstoun, Jeffrey, and Moncrieff, who, on all occasions, intruded their opinion of Scotch laws on the public. The learned lord had declared these opinions to be founded on gross and palpable ignorance; and yet had admitted, that the gentlemen who had given these opinions, were of the highest legal character at the Scotch bar. Although unacquainted with these learned men, he had every reason to believe that their knowledge of the law was not considered, by those competent to judge, inferior to that of the learned lord; and he, therefore, thought an opinion so decided, and in such strong language, might have been spared;—other authorities had been adverted to, but he thought they were against the learned lord's opinion. Whether the English explanation by Brady, of the Latin words of the leges burgorum was correct or not, as to the probi homines villœ, he would not now say; but the words of the statutes of the Guild, c. 33 and 34, "We statute that the mair and baillies sail be chosen by the sight and consideration of the community,"—seemed to show the right the community had in the election. The authority of Mr. Wight, and others, may, with fairness, be offered as a counterpoise to the sweeping condemnatory opinion of the learned lord: Indeed, the act of 1469, which the learned lord thinks by its preamble, establishes the fact of self-election before that time, is, by every other person, considered a direct proof that, up to that period, the election of the councils was in the burgesses and community. The words of the statute are "Because of great contention zeirly for the chusing
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of the samin, throw multitude and clamour of commone simple persones," it is enacted that the election shall be yearly, and that the old council shall elect the new.
The learned lord has asserted, that before the year 1469, the magistrates were often chosen for life, and has read an act of the Aberdeen council of 1591, to prove that fact.* How the practice at that time (1591) as to the election of the council in Aberdeen, could show what the practice had been in the burghs in general before the act of 1469, he had been utterly at a loss to understand. It was gross inconsistency, and he called upon the learned lord to explain it. He contended that the sound explanation of the law was, that, previous to 1469, the bur gesses and community had the right of electing the officers and council of the burghs; and that that act took away the right, and gave it to the old council to elect the new. But there was nothing in that act which showed that, on the lapse of the magistracy, by non-election, or otherwise, the burgesses were not to exercise their original constitutional right of chusing a new council by poll election. Unless the 7th and 16th of Geo. 2nd sanctioned that principle, they meant nothing—they were a dead letter. He must contend, that they virtually recognised the right of election to be vested in the burgesses at large, on all such cases of emergency, as the only means of electing proper counsellors, in the room of those dismissed by the court. He could not suppose the anxious provisions of those statutes were intended to be a nullity, which the interpretation of the learned lord would make them [Hear].
The learned lord had stated, that no complaint had been made against the act of 1469, at the Revolution, or any attempt made to repeal it. It might be so, but he must beg the attention of the House to the fact, that one of the grievances in the claim of rights, to William and Mary, on the 11th April, 1689, was the subverting, by the abdicated family, "the right of the royal burghs to elect their own magistracy and council;" and by the 22nd act of the estates of Scotland, dated 18th
* The acts of the Aberdeen council, which are extant prior to 1469, show most distinctly that the right of election was in, and was exercised by the burgesses.

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April, 1689, it appears what these rights were as they gave to the burgesses "Order and warrant for new election of the magistrates by poll." The people of Aberdeen, and the other burghs in Scotland, ask no more than the estates declared to be the rights of the burghs; and, in comformity to which, almost all the burghs between 1689, and 1706, did elect their magistrates and council by poll election.
The statutes of 1706, c. 7 in the 21st article of Union, declare "That the rights and privileges of the royal burghs of Scotland, as they now are, do remain entire after the union, and notwithstanding thereof." Let us, therefore, examine what the practice has been, on that principle, in these cases of lapsed magistracy, from the union, to the year 1817, and it will be found to have been entirely in support of that right the burgesses were declared to have, which they did exercise, and which they, the burgesses, had claimed, in the case of Aberdeen, to exercise. The learned lord has stated that the practice had been altogether against that right of the burgesses, but he denied the fact, and the cases stated by the learned lord in support of his assertion, he was prepared to contend, have been misstated and misapplied. Within 110 years, the magistrates of 30 burghs have ceased to have the power of electing their successors, either through the interruption of rebels, or from the elections having been set aside by the court of session, for misconduct or irregularity in the elections. In 25 of these, the Crown had granted warrants to the burgesses and inhabitants to elect new councils by poll election; and in five, the old councils to elect the new. The learned lord had argued, that because the warrants in 8 cases were addressed to the burgesses only, and 16 to the burgesses and inhabitants, that practice was a proof that the burgesses had not the right of election, and that the participation of the inhabitants was an injury to the burgesses. But he would submit to the House, how that extension of franchise could in any way be brought, as the learned lord had done, to support his position, that the burgesses had not the right to elect the new council. For his own part, he thought that kind of reasoning and the objections altogether untenable.
The learned lord had laid great stress on the case of Dysart, in October 1690,
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as an instance of the power which the Crown had to grant a warrant to the burgesses, provided there ace not a sufficient Dumber of the old council to make the election: the expressions of the warrant are very doubtful, but he would ask what was the number of counsellors sufficient to meet and choose the new council because the warrant of the Crown, if the power claimed by the learned lord is admitted, may as well authorize one or two, or more, in or out of council, to meet and choose the new council.—And, in that case, he would ask, what would he the difference between the power thus exercised, and what the claim of grievances stated the Stuart family to have exercised before the Revolution? He could see none.—The result, therefore, must give the correct explanation, for, in that very case of Dysart, the new council was elected by poll election [Hear!]. The case of Montrose, in 1746, had been also stated, and the opinions of the law officers at the time, had been quoted by the learned lord, to support his claim, of right in the Crown, to authorize the old council to elect the new; but he must take the liberty to state, that the case of Montrose, and that of Brechin at the same time, are the strongest proofs that can be brought against him.
In all the 30 cases from the union to 1817, there had been only one case where an election by poll warrant had been refused, on the petition of the burgesses; and that was the case of Perth, in 1716, which had been considered irregular by all the judges, and as an exception it proved strongly the general rule and right of the burgesses. And he believed the learned lord could scarcely produce the opinion of any respectable law authority in support of the conduct of the Crown in that case. The 5 cases of exception, where, in the last 110 years, a warrant had been granted to the old council to elect the new, were Perth, and Aberdeen, in 1715–16, and Montrose, Perth, and Aberdeen, in 1746. All those towns had been occupied by the rebels on the day of election, and on the petition of the old council alone (except in the case of Perth already mentioned), the warrants had been granted to the old council. The mode of election by the warrant to the old council of Montrose in 1746, had been questioned in the court of session, and held good, though the judges from the bench declared the principle of the
*

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Crown issuing warrants to the old council to be irregular. Lord Arniston (afterwards lord president) declared it was illegal, and that the Crown had no such power.
The opinion of the law officers at the time, and the effect on their proceedings, may be best known by the case of Brechin, where the magistrates and council of that city had been interrupted on the day of election by the rebels; and the privy council had granted them a warrant to elect their successors in June 1746: but the election had not taken place, when the court of session, on the 23rd January, 1747, expressed their opinions so decidedly on the case of Montrose. The consequence was, that a new warrant was granted by the privy council to the merchants and burgesses of Brechin, to elect the new magistrates and council by poll, which they did in June, 1747. Can any man doubt that the change of the warrant for Brechin, to poll election, was the result of a conviction in the Crown lawyers, and in the privy council, that the one granted to the old council was illegal and improper? For 70 years (from that time to the case of Aberdeen), all the burghs, whose magistracy had lapsed, have had warrants granted to the burgesses, for the poll election of their magistrates, until the learned lord gave a new interpretation to the law in the case of Aberdeen. He therefore, contended, that in point of legality, of practice, and of expediency, the learned lord and his majesty's ministers were in error, in their conduct towards the burgesses of Aberdeen, to whom, in his opinion, an act of gross illegality and injustice had been done [Hear, hear!]
Why did not ministers, in the exercise of justice, and a sound discretion, grant a poll election to Aberdeen? The case of Montrose, which, by this means, had been freed from their political influence, an influence which the noble lord had very truly stated to have held Scotland 25 years in fetters had terrified them. They saw they were losing their influence by allowing the people to judge for themselves; and, therefore, determined to stop, however unjust, arbitrary, or illegal, that proceeding might be.—They did not like the experiment. By the advice of that learned lord, Montrose had obtained a poll election, and they were thankful for their franchises so granted;—by the advice of the learned lord. Aberdeen had
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been refused a poll election, and had been delivered over to the government of the same men who had before shown themselves so incapable of conducting the affairs of the town, and to the great dissatisfaction and disgust of the inhabitants.—He could not avoid stating a circumstance respecting the conduct of the learned lord, which had been communicated to him, and which he believed to be correct; but, if not so, the learned lord would correct him. The old council of Aberdeen, soon after the election of the magistracy had been set aside by the court of session, again wished to have their authority re-established, and applied to the learned lord for his advice, how they should proceed to obtain it.—The learned lord, if his (Mr. Hume's) information was correct, stated that he could not, as lord advocate, give an official opinion; but that he would, as a lawyer, advise them (and for which opinion he took a regular fee), "That a petition from themselves would not do, but advised them strenuously to obtain the signatures of as many respectable burgesses and traders as they possibly could, along with their own petition, when he had no doubt they would be favourably received." That advice had been followed by the old council, who exerted all their influence to obtain signatures to a petition in their favour; but, in a population of 30,000 souls, they could only obtain 45 individuals who would sign, and these, list of whom he held in his hand, are all, with scarcely an exception, the partners, relatives, dependents of the old council [Hear!]! So generally were the old council objected to by those who best knew them, that no greater number than 45 would sign; whilst upwards of 1400 burgesses, trades, &c. signed a petition to the Prince Regent, praying that he would grant a warrant for them to elect a new council, of men in whom they could confide the government of the city, and re-establish that peace and confidence between the magistrates and inhabitants, which were necessary for the welfare of the city, but which had been completely lost under the old magistrates.
The House will scarcely believe that his majesty's government, instead of attending to the almost universal prayer of the people of Aberdeen, to have a poll election; granted, on the petition of the old council and their dependant 45, a warrant for the old to elect the new coun-

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cil. He asked, if that was a sound and wise exercise of that discretion which the learned lord claimed for his majesty's government? Was that the means of restoring confidence, and promoting peace and good government in Aberdeen, as it was the bounden duty of the government to attend to [Hear, hear!]?
It was a sacrifice of the best interests of that large community, by his majesty's ministers, to retain their political influence, which they were afraid would be lost; and it showed in a great degree the disposition of his majesty's government to exercise arbitrary and despotic power, to answer their purposes, by however injurious and cruel measures that might be obtained.—He had no hesitation in declaring it illegal, arbitrary, and unjust, and thought it behoved this House to afford redress to the people of Aberdeen, to watch that disposition in the government, to arbitrary and unconstitutional power at the expense of the rights and welfare of the people. He would not trespass longer on the time of the House; thanking them for their indulgence, he would sit down in the hopes that the motion would be agreed to by the House [Hear, hear].
The Lord Advocatedenied that he had interfered in the case alluded to, and assured the hon. member, that wherever he gained his information, it was false and unfounded.
Mr. Humeappealed to the House, whether they would sanction the application of such terms as false and unfounded to him.
The Lord Advocatedenied having so applied them.
Mr. James Fergussonbore the highest testimony to the character and honour of the magistrates of Aberdeen.
Mr. Forbessaid, that he should have refrained from offering himself to the attention of the House upon the present occasion, had he not thought himself compelled to contradict some of the bold assertions of the noble lord who had originated this motion. When he heard such unfounded declarations made against a public body, nothing on earth should prevent him from speaking. He wished particularly to call the attention of the House to the observations of the noble lord, with respect to the finances of the town of Aberdeen. It had been stated that the town had been declared a bankrupt to the extent of 230,000 l. This had,
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in some measure, been explained by the hon. member opposite; but the fact was, that the sum expended upon the streets and the harbour, only amounted to 208,000 l.; the sum of 166,000 l. being expended upon the streets, and 42,000 l. upon the harbour. The commerce of the town had very considerably increased. In the year 1810, the tonnage of the port was only 16,000 tons, while it now amounted to 40,000 tons. With regard to the debts of the town, he asserted, that the creditors now received 4 per cent for their money, and would shortly receive 5; but, in the mean time, not a single charitable institution lost a shilling, nor would the creditors eventually lose one farthing of their just debts. He lamented that charges of forgery and fraud should be brought against public bodies, or individuals, without sufficient grounds; and, after paying a compliment to the integrity and virtues of the present magistrates of Aberdeen, he expressed his determination of placing himself in opposition to accusations of such a nature. He hoped the noble lord opposite would move for the appointment of a select committee, to inquire into the conduct of those magistrates, and the general government of the burgh.
Sir George Clerkhoped the explanations given by the hon. member who had just set down, would have the effect of relieving the much-injured magistrates of Aberdeen from the gross misrepresentations which had been affixed to their character. He remarked, that the question of parliamentary reform had been most improperly involved in the subject now before the House; but the proper question was one relating solely to the burgh government of Scotland, which must necessarily be determined by reference to legal decisions. On this point, the learned lord advocate had exhausted the subject. Had honourable members read the former report of the committee of that House on this subject, it would be found, that the right of election had never been vested in the burgesses, and that the council had always, previous to the Union, been appointed for life. He then took a review of the cases decided on this point, and attempted to prove, by reference to these, that the uniform practice and principle had been as he had stated them. With reference either to the decisions of law, to constant practice, or to the discretionary exercise of the prerogative of the crown,

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the noble lord had laid down no case to justify die House in acceding to his motion.
Mr. Maxwellmaintained, that the warrant passed, in the case of the burgh of Aberdeen, was illegal, and thought it scarcely probable that the lord advocate, who perhaps never was in Aberdeen, and his majesty's council, who knew nothing about it, could be better qualified to determine what was good for the people, than the people were themselves. He warned the House against abandoning an important town like Aberdeen to the management of those who had already injured it. Its population did not consist of a lawless mob, but of one of the most religious, moral, and loyal classes of people in the kingdom. The object sought for by them was not a wild reform, but the establishment of such a form of government as was alone capable of preserving the property of the burgh from being wantonly dissipated.
Mr. Wilberforcehoped, in a matter of such deep interest, the House would not think of stifling the subject, but would suffer investigation to proceed to the utmost limits. A statement had been made, of which he saw no reason to doubt the authenticity, that the system hitherto pursued was calculated to destroy the best interests of the great town of Aberdeen, that the practice of electing magistrates was unsupported by any legal authority; and that the general system was fraught with dangers to the property of the burgh. These points had not been denied, and they undoubtedly were of a nature that demanded inquiry. Had such practices taken place in England, as were shown to have happened in the Scottish burgh, what would the House have thought of it? On such a subject, the English members were, perhaps, better calculated to decide than those immediately concerned; they should therefore bring, to the consideration of the subject, their cool judgment, and protect the people of Scotland from gross abuse.
Mr. Finlaysaid, that when a particular case like the present occurred, the House was called upon to interpose The learned lord had made a long speech upon the law, but he had not touched the facts; and if he had proved that a practice existed, he had failed to show that it ought to exist. In fact, no man but the learned lord would have undertaken, in such unqualified terms, to defend the sys-
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tem of the Scotch burghs. He had shown an utter ignorance of all the particulars of the case; and if his law was as bad as his facts were defective, his case had not a leg to stand upon.
Lord Castlereaghsaid, he would not have risen, but for the sentiments just delivered. He was quite willing to rest the whole case upon the admirable and lucid speech of his learned friend [a laugh]. That speech had been treated by the other side of the House, in a manner which sufficiently proved, that they were incompetent to reply to it. The great defect of the speeches on the other side was, that they assumed the whole case; for no one act of criminality had been established against the burgh of Aberdeen. All that the magistrates had done was for the improvement of the town, and there was not even an allegation of mal-administration. It was not just, because they had borrowed money of public charities, which had been freely lent, and the interest upon which had been regularly paid, to brand the whole body with fraud and malversation. It was quite obvious, that the object of the motion was exactly what it was so strenuously contended not to be. The noble mover had done his utmost to persuade the House, that he asked very little, that his motion was one that none could refuse; but, in fact, it was nothing else than to introduce into Scotland a parliamentary reform, which the other side of the House could not obtain for England. The disguise was too thin to cover the real purpose, however artfully the noble lord might have enveloped his motion in it. For his own part, he was decidedly of opinion, that after the act of union, the House had no jurisdiction to interpose, and whatever objections might now be made to the system of election, it was obvious, that the same opinion did not prevail in the reign of queen Anne; for one of the ancestors of the noble lord had himself brought forward a motion in the Scotch parliament, expressive of the highest approbation. Setting aside this point, however, no case for inquiry or interference had been established. Assertions might be very serviceable, especially if they were sufficiently bold; and it might be very convenient to some gentlemen to obtain a whig, instead of a tory magistracy; but, it became the House to be cautious how it listened to such statements. Another reason for not complying with the motion, therefore, was, that if

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the crown ought, in this instance, to take upon itself to give directions for disfranchisment, no case could occur, however trifling, where the same claim might not be made, backed by this precedent. Upon the whole, therefore, he was satisfied that the House would do wisely in rejecting the proposition.
Lord A. Hamilton, in reply, complained of the unfairness with which he was treated by the noble lord who spoke last, and by the new lord of the Admiralty (sir G. Clerk.) The noble lord had charged him with introducing the question of parliamentary reform in disguise, though he had disclaimed such an intention, and would finally declare, that he disclaimed any such hypocritical conduct. He was not ashamed nor afraid to give his opinions upon parliamentary reform, whenever that subject was before the House, and least of all parliamentary reform as applicable to Scotland. And the new lord of the Admiralty, the new pupil in that new seminary of statesmen, had ventured to discredit, though not to contradict, his statement of this fact of a part of the debt of Aberdeen having been contracted under the sanction of forged or fraudulent minutes; but he still maintained that his statement was correct, and he would prove it to be so, if necessary, by depositions on oath, either before a committee, or at the bar of that House; and therefore, notwithstanding all that had been said, he would re-assert all his former positions, as he maintained that up to that moment they had received no contradiction. The noble lord had stated that the charities received 4 per cent, and that therefore they were not defrauded. They had contracted to receive 5 per cent for their money; but to whom was it owing that they received even what they did? Not to the self-elected magistrates, but to the trustees. He concluded by putting it to the House, whether they would continue in the Scots burghs the system under which the city of Aberdeen had been ruined, or deliver it over to a set of gentlemen, who, notwithstanding all the learned lord had said, were well qualified to elect their own magistrates, the burgesses of Scotland.
The House divided: Ayes, 105; Noes, 110: Majority against the motion, 5.
Considerable cheering followed the announcement of the numbers from the opposition side of the House.
Lord A. Hamiltonsaid, that as the
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House seemed so nearly balanced in opinion on the question which he had brought before them, he should bring forward his motion for the opinion of the law officers of the Crown after the holidays.

List of the Minority.

Abercromby, hon. J.

Maxwell, John

Allen, J. H.

Milbank, Mark

Althorp, lord

Merest, J. W. D.

Anson, sir G.

Mildmay, P. St. J.

Bankes, H.

Monck, sir C.

Bernard, lord

Morpeth, lord

Barnett, James

Newport, sir John

Bentinck, lord W.

Nugent, lord

Bernal, Ralph

Ord, W.

Bennet, hon. H. G.

Osborne, lord F.

Brand, hon. T.

Palmer, C. F.

Browne, D.

Pares, Thos.

Brougham, H.

Pelham, hon. G.

Calcraft, John

Phillimore, Jos.

Calvert, C.

Philips, G.

Campbell, hon. J.

Ponsonby, hon. F. C.

Clifton, lord

Powlett, hon. W.

Colburne, N. R.

Ricardo, D.

Colclough, C.

Ramsden, J. C.

Crompton, Sam.

Robarts, W. T.

Davies, T. H.

Robarts, A.

De Crespigny, sir W.

Rowley, sir W.

Denison, Wm.

Russell, lord G. W.

Douglas, hon. F.

Russell, lord John

Duncannon, lord

Rumbold, C. E.

Dundas, hon. L.

Sebright, sir John

Dundas, hon. G.

Sefton, earl of

Dundas, C.

Sinclair, George

Dundas, T.

Smith, J.

Ebrington, visct.

Smith, Wm.

Ellice, Edward

Smith, hon. R.

Euston, earl of

Stuart, lord J.

Fazakerley, Nic.

Stuart, Wm.

Fergusson, sir R. C.

Stanley, lord

Finlay, K.

Tavistock, marq.

Fitzgerald, lord W.

Tierney, right hon. G

Fleming, J.

Walpole, hon. Geo.

Folkestone, lord

Waithman, ald,

Grant, J. P.

Wilberforce, W.

Gordon, R.

Whitbread, W. H.

Graham, J. R. G.

Wilkins, W.

Grenfell, Pascoe

Williams, W.

Griffiths, J. W.

Wilson, sir Robt.

Gurney, R. H.

Wood, alderman

Heygate, ald.

Wynn, C. W.

Hornby, Ed.

TELLERS.

Howard, hon. W.

Hamilton, lord A.

Howorth, H.

Hume, Joseph

Hurst, Robt.

PAIRED OFF.

Kennedy, T. F.

Aubrey, sir J.

Lamb, hon. G.

Birch, Jos.

Lambton, J. G.

Buxton, T. F.

Lloyd, sir E.

Fitzgerald, M.

Lloyd, J. M.

Harvey, D. W.

Maule, hon. W.

Lamb, hon. W.

Macleod, Roderick

Latouche, John

Macdonald, James

Latouche, R.

Mackintosh, sir J.

Maberly, John

Maitland, J. B.

North, Dudley

Martin, J.

1353

Philips, G. R.

Temple, earl

Piggott, sir A.

Taylor, M. A.

Ridley, sir M. W.

Western, C. C.

Stewart, Wm.

Wynn, sir W. W.