HC Deb 26 March 1823 vol 8 cc735-44
Lord A. Hamilton

said, it was with extreme regret that he rose to make a motion on a subject of so much importance, at a time when the House was so thinly attended. The interests of 500,000 persons and of sixty royal burghs were involved in the subject on which he was about to speak; but, however unpleasant it might be to him to execute such a duty, in so thin a House, he should proceed to the task. He had so often complained to the House of the grievances sustained by the Scotch burghs, that no one could be surprised if, not having obtained redress, he reiterated his complaints. To mention only the case of the burgh of Inverness: in 1817, an election had taken place, which was conducted by a few individuals who had forced themselves into office. It appeared afterwards, that three of the persons so elected to the council of the burgh were disqualified to hold that office. The inhabitants of Inverness instituted legal proceedings to annul that election. This attempt was resisted by the magistrates; but, at the end of twelve months, a sentence was pronounced against the magistrates. The election was declared void, and the persons disqualified were no longer to act as commissioners. The court then gave a power for the appointment of managers until the council should be re-established. Last year it had pleased his majesty to appoint, by special warrant, particular persons to elect councillors for this burgh. Under that warrant, the same persons had been returned into office who had three years before been turned out by process of law. At whatever expense the burgesses had pursued the action which they had brought, no sooner did they obtain a verdict in their favour, than a crown warrant was issued, which undid the operation of the law. This was a state of things which would not be endured in this country; nor would it be in Scotland, but that the councillors owed their election to the magistrates, and not to the burgesses. It was true, that the persons who were turned out, petitioned his majesty that they might be re-appointed. He did not say that the granting the warrant was an illegal exercise of the prerogative, but he did say that it was an unconstitutional, an improper, an unwise, and an unprecedented measure, as applied to this particular instance. In the progress of the action he had mentioned, the burgesses had suffered another grievance, greater than those he had detailed; they had been compelled to pay the whole of the expenses, amounting to 1,400l., while the magistrates had defended it at the expense of the burgh. He was sure the House would agree with him, that this ought not to be the situation of sixty burghs—that whatever redress the law might give them for injuries they tad suffered, should be thwarted by the crown—that they should pay for both sides, and not receive the benefit from either. He did not know, if he were to talk for half an hour, whether he could put this point more forcibly before the House than by this simple statement. He had furnished himself with documents, for the purpose of showing that the ordinary practice and the rule of law in Scotland were not in conformity with the advice which had been given to his majesty on the present occasion. Before, however, he adduced those authorities, he felt it necessary to correct a misapprehension as to the similarity between a Scottish and an English borough, which had, in his opinion, misled the English lawyers on this subject. In England, the franchise of the borough was vested in the corporation, and if the election was wrong, and the corporation set aside, the whole rights of the borough were at an end, and had to be revived by the crown; but the charter, and all the rights of a Scottish borough, were vested, not in the self-elected dozen or score of men, but in the burgesses or freemen generally. The corporation in England were the borough itself; but the self-elected juntas in Scotland were merely the servants of the corporation, which was in reality vested in the freemen or burgesses. Hence, though the election might he found to be faulty, and the magistracy illegal, the whole charter and rights of the borough remained to the freemen the same as ever. In England a false election operated a total extinction of the rights of the burgh, and demanded a total revisal on the part of the crown; but in Scotland it operated only the removal of the magistrates, and required only an interference to put the existing machine of the borough again into operation. That the constitutional mode of doing this was by a poll election of those freemen in whom the rights of the borough were vested during the time that the magistracy were in abeyance, he was prepared to show, both from the authority of lawyers, and from the general practice. The noble lord here quoted the opinions of Mr. White, lord Callander, and lord Anniston, all of which described the power of the crown to interfere with the re-establishment of a Scottish magistracy in any other way than by a poll election, as being a very questionable, and even unconstitutional interference. The last authority which he cited, declared expressly, that the interference was illegal. He did not mean to give his opinion as a lawyer; but still his reason and common sense pointed out to him, that the prac- tice was illegal. By the 16th George 2nd, cap. 11, s. 12, it was enacted, that it should be lawful for the constituent members of any of the Scotch burghs to attend the meeting for the election of magistrates, and if they apprehended any wrong had been done, they were at liberty to apply to the court of session, for the purpose of rectifying it. He wished to ask the House, whether, after a borough had pursued the direction of that act, and had succeeded, at considerable expense, in the action, it was just, that the crown should step in, and deprive it of the benefit of that success? But the burgesses at Inverness had so applied and so succeeded, and yet they had been deprived of the benefit of that for which they had paid double, by a warrant obtained from the crown by the advice of ministers, and in all probability chiefly by that of the lord advocate opposite. Since the Union, there had been 30 warrants granted by the crown; with the addition of the recent instances of Aberdeen and Inverness, the number amounted to 32. Out of the thirty, twenty-four of the elections had been directed to be by the open vote of the burgesses, and the remaining six had also been in the same manner, even after the warrants were received. In the times of Charles 2nd and James 2nd the power had been assumed by the crown, of naming the persons who were to be elected; but the convention of the states had declared all such appointments illegal, and the elections void. In the cases of Montrose and Stirling, the warrants had been granted on the grounds to which he now objected; but then the crown had granted a poll. He would call the attention of the House to a gross fact in the case of burgh of Aberdeen. It was the custom there to take an annual account of the debts, that they might, know the state of their affairs. The magistrates of that place had the audacity to produce an account, by which it appeared the town was indebted 6,000l., when, in fact, a sum of 130,000l. was due from it. After having brought the affairs of the burgh to a state of bankruptcy, they added to their offence by this shameful act of duplicity and fraud. He would here introduce a comment, made by the same magistrates on their quitting officer. They attributed this calamity to the sys, tem of concealment which was a necessary part of that by which the affairs of the burgh were governed, and recommended a change in this respect, without which, they said, prosperity could never be restored, nor could any set of men carry on its affairs, with credit to themselves, or advantage to the community. Was it necessary that he should state more to show, that he did not mean to tease and pester the House with slight or trivial grievances? Did he not prove, that he wished to draw their attention to shameful evils—evils which, if the system were not altered, must be of perpetual recurrence?—He would now refer to the case of Edinburgh, a town governed by 30 or 32 self-elected magistrates. Some years ago, a faulty election had taken place there; and it was natural enough, that a population of say 100,000 persons, governed by self-elected magistrates, should endeavour, when an opportunity occurred, to procure some share in the management of their own affairs. The magistrates of Edinburgh opposed the attempt; and a process was issued, as in the case of Inverness, to annul the election. After about three years of litigation, and the expense of about 4 or 5,000l. on each side, one would have supposed, that the complaining party were entitled to something. But, under the advice of the learned lord, whatever their success might have been, a crown warrant came down and undid it all. The court of session was then applied to, that court having the power, it was said, of deciding summarily. There the case remained for four years; and had it continued there for four years more, it would not have been brought to a conclusion; for every chicanery of law was resorted to by the magistrates, who, he believed, knew they were in the wrong. At the end of four years, the parties were allowed to appeal to the House of Lords, on some preliminary points; for they had not yet got to the merits of their case. What interrupted the proceedings? Why, the case of Aberdeen—that notorious case of bankruptcy. The parties prosecuting the cause heard that Aberdeen had been visited with the infliction of a crown warrant. Upon which they immediately exclaimed, "Oh! it is useless for us to proceed. We shall not get law: like Aberdeen, we shall have a crown warrant." Under these circumstances, what could the people of Edinburgh do, but give up the struggle in despair? The magistrates of Edinburgh, who had the public money in their hands to defend their proceedings, felt that, if they went on farther, they must lose their cause, since they were in the wrong; whilst those who prosecuted the suit, were convinced, just as their claim was, that, if they pursued it, they would get nothing in the end but a crown warrant. In this state of things, the magistrates agreed to pay the opposing party 1,100l. to froe go any further proceedings. If they were magistrates, and were in the right, they ought to have prosecuted their suit and gained it, instead of giving away a portion of the public money; but they were not magistrates, and they were in the wrong, but they had the opportunity of putting their hands into the public purse, and taking out 1,100l. for their own purposes. This did not make out his case, as to the point of law; but he stated the facts, to expose a system of gross fraud and abominable iniquity. It was, however, impossible, as public opinion began to be expressed more strongly, that it could be allowed to go on much longer.—There was another point which bore strongly on the case, as it showed how justice was administered in some of these burghs. About three weeks ago, he had presented a petition from the town of Inverness, and the matters stated in that petition proved what sort of government prevailed in that town since the magistrates were displaced. Of the number so displaced, it was necessary to observe, that 12 or 13 had again got into office. When he presented the petition from two brothers of the name of Young, complaining of illegal acts on the part of the magistrates, he was answered; that it was impossible; for the magistrates were a most respectable body of men. The same thing was said when complaints were made relative to Ilchester gaol. He had nothing to do with their respectability. In their individual capacity they might be very respectable men; but what he wished to bring before the House was, their conduct as magistrates of Inverness. The petition of these young men stated, that they had been arrested for a just debt. After being imprisoned for the period specified by law, they applied for the act of grace, by the provision of which, if the creditor did not, within ten days, agree to aliment his debtor, the latter was entitled to his discharge. The creditor having refused to aliment them, they applied for their discharge, and were called upon to enter into conveyances in favour of their creditor, of omnium bonorum, on two sheets of stamped paper. Now, as it was a joint debt, only one bond was necessary; and the act expressly provided, that it was not necessary for any instruments, under the act of grace, to be stamped. The stamps would have amounted to 30s. each, and this sum was demanded of men, who had sworn previously that they had not one farthing in their pocket. Besides this, they were called upon to pay 6l. fees, not one shilling of which could be legally demanded. If they had complied with these demands, they must have committed perjury. They were, in default of making these payments, kept in gaol for five days; when, the business having been brought before the superior court, lord Gillies caused them to be liberated; and the magistrates, to prevent any proceeding against them, compromised the matter, by paving the young men 32l. Here, again, appeared the grossness of the system. Those magistrates had an opportunity of putting their hands in the public purse; and they paid this 32l. out of the funds of the borough.—The noble lord concluded by moving, "That there be laid before the House, a Copy of any Warrant, granted by the Crown, in the year 1822, authorizing any person or persons to elect Magistrates in the Borough of Inverness, in the room of those recently displaced by process of Law."

The Lord Advocate

said, that in rising to object to the motion, he felt no wish to resist the production of any document from which useful information could be elicited. The warrant complained of had not been issued by the crown on the advice of ministers, but on the advice of the privy council of Great Britain; and it authorized the magistrates to make that election which they had previously a right to make by law. He hoped to convince the House, that in issuing the warrant, a wise and a sound discretion had been exercised. With respect to the petition presented from two brothers of the name of Young, complaining of oppressive conduct on the part of the magistrates, he could now state, that nothing had been done by the magistrates with respect to those individuals, which the noble lord himself would not have done under similar circumstances. The learned lord then went through the case of the petitioners; and read a legal opinion, in which the advocate laid it down as the law of Scotland, that magistrates, under particular circumstances, might detain a prisoner, provided they alimented him properly. In this case, the additional confinement took place, in consequence of a dispute as to the necessity of drawing up the conveyance, omnium bonorum, on stamps. The magistrates had the point of law in their favour, but their counsel advised them, rather than contest a suit with two bankrupts, to compromise the matter, and therefore they gave those persons 32l. The learned lord proceeded to say, that he could see no necessity for the present motion; for the very warrant, the legality of which was now attempted to be disputed, was at that moment before the lords of session in Scotland, who would have to adjudicate upon it. Why, then, discuss the matter, when it would be decided without their intervention? It was singular, that the discretionary power of granting these warrants should be now called in question. From the time of the Revolution to the Union, as well as subsequently, the privy council were in the habit of granting them discretionally; and in the only two cases in which the right was litigated, the practice of so granting them was asserted and maintained. It was the ancient and indubitable law of Scotland, that the magistrates, with some peculiar exceptions, should have the power of electing their successors. He was astonished to find the case of Aberdeen again brought forward. He thought that it had been clearly established, that the funds of the corporation had been well disposed of in the improvement of the pier and harbour. A similar application of their funds was also manifest in the case of Inverness. In the course of election which they had pursued, they had the law uniformly with them; and though, owing to the lapse of particular classes of trades, the deviation from the strict rule had in one instance occurred, yet he saw no reason for agreeing to the present motion. The truth was, that if, instead of the course pointed out in the warrant, poll elections were granted, such would be the ingenuity of the minority in the different burghs, excited on every magisterial vacancy, that the towns would be in a state of election fermentation from the beginning to the end of the year.—Convinced that the warrant of which the noble lord complained was issued under a wise and due discretion, and knowing that Inverness had considerably improved under the present management, he should give his negative to the motion.

Mr. Cumming

bore testimony to the local improvements which had taken place in Inverness.

Mr. Hume

stated, that this great mistake ran through the whole of the argument of the learned lord, that he mixed up self-election, on which there was no discussion, with the issue of the warrant, founded on a discretionary power. He contended, that what the learned lord stated to be the uniform practice, rested only on the exception to the general rule—which was, for the crown to issue a warrant to the inhabitants to elect the magistrates. He commented upon the conduct of the magistrates of Aberdeen, who, however respectable in their private character, deserved no credit for their public conduct. They had laid out the public money extravagantly, and without reference to utility; for instance, they had thrown an arch of granite 120 feet wide over a puddle that he could with ease leap over. As to the improvements of the harbour, though he admitted that the trade had increased, it was in spite of the supposed improvements, and not in consequence of them. The rates had been doubled. From time increased expense, one of the most valuable articles of export, stone, was now sent by land-carriage; and as to the finances, with those the magistrates had nothing to do, as they were under the management of trustees, by whom, he was happy to say, they were much better managed than they had formerly been.

Mr. Gordon

defended the magistrates of Aberdeen, and affirmed, that, whatever money had been expended by them, was laid out for the benefit of the town.

Mr. Secretary Peel

said, the weakness of the case of the noble lord was apparent from this single circumstance—that nearly one-half of the debate had been occupied in an attempt to criminate persons who had nothing to do with the matter. The whole of the charge against the magistrates of Inverness resolved itself into this: that not being able to find any maltman in Inverness, they had elected others. The noble lord had admitted the legality, but doubted the soundness of the discretion exercised by the crown; but, after what he had stated of the extent of the crime imputed to the magistrates, he would submit, that no case had been made out by the noble lord, but that the crown had been rightly advised.

Mr. Forbes

said, that the statements of the noble lord on this subject had been so often made, and so often refuted, that he wondered how the House could any longer listen to them with patience. He wished the noble lord would chuse some other hobby, and ride it less unmercifully than he had done the Scotch burghs.

Sir R. Fergusson

vindicated his noble friend from the charge of having made an attack on the personal character of the Scottish magistracy. The question here was, whether the crown, when a burgh had been disfranchised, had a right to interfere in the election of its magistrates? He thought it clearly had no such right; but that the burgesses, in such a case, had a right to elect their magistrates by poll.

Mr. W. Smith

thought, that, without casting any personal reflections on the magistracy in question, it must be admitted, that when gentlemen came into office, there was a certain esprit de corps which made them follow the steps of their predecessors, however objectionable those steps might be. During a long parliamentary experience, he did not recollect, out of many lords advocate, a single one, who had not opposed the infusion of a more popular spirit into those elections.

Lord A. Hamilton

, in reply, begged to repeat, that a grosser case than that of Aberdeen was never heard of. The corporation was bankrupt to the amount of 130,000l., having all the while described the amount of their embarrassments as 6,000l. only. He would also say, that the imputations he had cast upon the magistrates of Inverness, were justified by the report of the commissioners of inquiry into the state of the Scotch burghs.

The House divided: Ayes, 31; Noes, 49.

List of the Minority.
Benett, J. Hobhouse, J. C.
Bennet, hon. H. G. Hume, J.
Bentinck, lord W. H. James, W.
Bernal, R. Jervoise, G. P.
Birch, J. Lennard, T. B.
Blake, sir F. Lushington, S.
Burdett, sir F. Macdonald, J.
Creevey, T. Palmer, C. F.
Davies, T. H. Philips, G.
Ellice, E. Philips, G. H.
Fergusson, sir R. Poyntz, W.
Glenorchy, visc. Rice, T. S.
Grattan, J. Rumbold, C. E.
Taylor, M. A. Wyvill, M.
Titchfield, marquis TELLERS.
White, col. Hamilton, lord A.
Wood, Matthew Smith, W.