Scottish Court of Session Decisions

Subject_1 PROOF.
Subject_2 DIVISION V.

Proved, or not proved.
Subject_3 SECT. III.

Forgery. - Bribery.

Sir John Anstruther
v.
Alexanders, &c

Date: 26 January 1767
Case No. No 573.

Proof and effect of bribery in the Michaelmaselection of a burgh.

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Upon the death of Sir Harry Erskine, member of Parliament for the five burghs of Pittenweem, Wester and Easter Anstruther, Kilrenny and Crail, two candidates appeared, Sir John Anstruther, a gentleman of great estate in the neighbourhood, and Mr Robert Alexander, an Edinburgh merchant, who had no natural connection with any of these burghs. By the force of money, however, he prevailed in three of them, viz. Pittenweem, Anstruther Wester, and Kilrenny, and got his adherents into the Council and Magistracy, so as to secure their votes in the approaching elections for a new Parliament. This obliged Sir John Anstruther to bring a process for reducing the Michaelmas elections of these three burghs, upon the head of bribery and corruption. With respect to Anstruther Wester, there was a clear proof that Alexander had brought over to his interest a plurality of the Town-Council by direct bribery; and the question was, What effect this should have upon the election? As the Town-Council consisted of fifteen members, eight were necessary for a regular election; because in general where no quorum is named, the plurality are understood to be a quorum. Upon this foundation the Court unanimously reduced the election. They held the bribed members to be as dead or absent, which left not a quorum of untainted members.

With respect to Pittenweem, it came out upon proof, that Alexander purchased the town by a private bargain with Bailie Martin, in name of the Town-Council, bearing, that they should receive L. 1000 for payment of the debts of the town, the surplus to be divided among the members of the Town-Council. Here was a bribe to the whole electors in general; and upon that ground the Michaelmas election of Pittenweem was reduced almost unanimously.

The pinching case was that of Kilrenny. As to private conviction, no mortal could hesitate to pronounce that the whole members were bribed. But as there was no proof, except against four or five individuals, there still remained a quorum untainted, as far as appeared from the proof, sufficient to make a legal election.

The only argument for the reduction, that had a show of relevancy, was what follows: Alexander was an absolute stranger to these burghs, and to every individual voter. The neighbouring gentlemen, who had the only influence in these burghs, were all zealous for Sir John Anstruther. 2do, From the circumstances of this case, and from the proof, Alexander could have no other prospect to carry these burghs but by money. 3tio, The Town-Councils of these burghs, and of Kilrenny in particular, were composed of low indigent persons, incapable to resist any money temptation. And it is proved against them, that they were unanimously resolved not to neglect the opportunity of the ensuing election to sell themselves to the best bidder. Upon these and other circumstances, a presumption was founded, that the whole Council of Kilrenny had been bribed, or so many as not to leave an innocent quorum. And it was urged, that unless this presumption be sustained, an open door will be left for bribery; for supposing every individual to be bribed, yet the person who challenges the election can scarce hope to prove the crime against a plurality.

This argument had weight with me, and I voted for reducing the election. But the plurality not being touched with it, Alexander and his party were assoilzied from the reduction. And that the judgment was right, I became afterward sensible, upon pondering deliberately the following topics. With regard to Alexander himself, there is a good foundation for the presumption; for he whose conscience will allow him to bribe five, can have no hesitation to bribe ten. But the case of the Council is different. We extend this presumption from one act to another of the same person; but there is no foundation for extending it from one person to another, though both be members of the same politic body. In the case of a crime, even the strictest of all connections, that of parent and child, will not support such an extention.

2do, Supposing a foundation for this presumption in other instances, it ought never to be admitted in the case of bribery. We frequently presume a fact to have happened upon a semiplena probatio, because there is no offer made to prove the contrary. This last circumstance being the chief foundation of every presumption, it follows clearly that a presumption ought never to be admitted, where the contrary proposition resolves into a negative that is not capable of proof. This is the case of bribery; for to affirm that a man has not been bribed, is a negative not capable of proof. Hence it follows, that to sustain a presumption of bribery where there is no clear evidence, is in effect to give a semiplena probatio the effect of a complete proof.

Alexander at the same time carried on a reduction of the Michaelmas election of Easter Anstruther, which had declared for Sir John Anstruther. It was proved that Bailie Johnston, who had long governed that town, brought the whole Town-Council to vote according to his direction, upon his engaging to pay the debts of the town. Here the whole Town-Council were bribed; but there being no evidence that the persons who were voted into the Council had any knowledge of this corrupt bargain, a doubt occurred, whether these innocent person scould be deprived of their right by the crime of third parties. But the following answer satisfied the Court, viz. That it is against conscience for any man to use a right that he acquires by a criminal act committed by another. And accordingly this election was unanimously reduced, 7th August 1767, Alexander Young contra Andrew Johnston of Rennyhill. (Not reported.) (See No 54, p. 3720.)

Sel. Dec. No 152. p. 323.