Replication of the Commons to the Anfwer of W. Hastings. Crimes and Mifdemeanors, that he had on a former day laft exhibited against Sir Elijah Impey. Sir Gilbert faid, in purfuance of the line of conduct that he had ftated to the Houfe as that he meant to adopt, he continued to think it better to truft to their being able to furnish them felves with the fubftance of the Charges that he had presented against Sir Elijah Impey, from the printed copies that he faw gentlemen had in their hands, than from any flatement he could offer to them, and therefore he fhould proceed to move, that the faid Charges be referred to the confideration of a Committee of the whole House. The motion was agreed to unanimously. Replication of the Commons to the Anf wer of Warren Haftings, Esq. "The Commons have confidered the 473 The following accounts were, upon motion, ordered. viz. "The amount of the revenue arifing from the licence duty of Il. 1os. per gallon, per annum, on ftills in Scotland, from the 5th of July 1786 to the 5th of July 1787." "The like accounts from the 5th of July 1787 to the 5th of January 1788, as far as the fame can be made up ;" and alfo, "An account of the quantity of Britifh fpirits and compounds fent from Scotland to England (diftinguishing each year) from the 5th of July 1786 to the 5th of July 1787." "The like account from the 5th of July 1787 to the 5th of January 1788, as far as the fame can be made up." State of the Revenue and General Expen Customs, Expenditure, anfwer of Warren Haftings, Efq. to the 7 II 4 13,390,255 I 876 احم 16,004,255 I 05 15,500,000 Surplus, after laying? MO 504,255 I 01 It was predicted at the peace, that the revenue could not support the peace esta blifhment-whereas Mr Pitt has added a million to it, and acquired half a million more. SCOTLAND. Dec. 3. Came on before the High Court of Jufticiary, the trial of Mr William Leflie, Minifter of the united parishes of St Andrew's and Longbride, indicted at the inftance of Alexander Penrofe Cumming of Altyre, Efq; and Colonel Grant of Moy, for the alledged crime of perjury, the particulars of which we have often had occafion to lay before our readers. After the indictment was read, Mr Charles Hay, as Counsel for the pannel, infifted, that the profecutors were barred from inuifting in the prefent profecution on account of Mr Cumming's having come forward, by his counsel, on the ad of July laft, and craved to defert 17. A meffage was brought from the Lords by the Two Mafters in Chancery, Holford and Walker, acquainting the Commons, "That his Majefty had been pleased to give orders for a place to be erected in Weftminifter Hall for the trial of Warren Haftings, Efq." The trial is to commence on the 13th of February. 3 N APPEND. to VOL. VI. the the diet fimpliciter against the pannel, which was accordingly done by fentence of the Court, and he difmiffed from the bar. Mr Hay contended, therefore, that the pannel could not again be indicted for the fame offence, and by the fame profecutors: for, though Colonel Grant's name was used in the prefent indictment, along with Mr Cumming's, which was not the cafe in the former indictment, yet the Colonel might be confidered in the fame light with Mr Cumming, having been as much a profecutor before as now, together with all the other Gentle men of the County of Moray who had entered into the affociation for profecuting all those who had taken the Truft Oath. Mr Hay was fupported in his arguments by Mr George Ferguson and Mr Alexander Wight; and anfwered, on the part of the profecutors by Mr William Honeyman, Mr James Grant, and Mr Robert Blair. The Court, after complimenting all thefe Gentlemen for the very able and ingenious manner in which the point had been pled on both fides, confidering the matter of very great importance, were pleafed to order informations upon it; the information for the pannel to be given in on the 2d of January next, and that for the profecutors in ten days thereafter. This being a fubject of great importance to the landholders in Scotland, we here, by defire of feveral of our Correfpondents, take the opportunity of inferting the minutes of the Lord Chancellor's fpeech in the House of Lords, April 30, laft, in the cafe of the Hon. William Elphinstone appellant, John Campbell, Efq; and others, refpondents. Lord CHANCELLOR. THE great importance of this caufe, and its general reference, as has been obferved by the counsel upon both fides, to the laws of Scotland, with refpect to fending members to Parliament, will undoubt edly entitle it to every degree of the moft anxious attention which your Lordships can poffibly bestow upon it. The manner in which it ftruck my mind, laid me under no fmall difficulty and embarrassment, whether we could enter into the queftion of fraud in this cafe. It ftrikes the mind with indignation, where a fraud upon the law has actually been committed, that the Court, and Judges compofing that Court, are the only perfons, and fhould be the only fingle perfons in all the country that are confci ous of the fraud, and incapable of going into it; and confequently not able to de cide upon it. That would be rendering juftice deficient, and embarraffing the Court by its own rules of decifion. Where there is actual fraud, your Lordfhips would certainly be anxious to purfue that fraud, with all the diligence and effect it can poffibly be purfued with, in or der to do justice in the matter. When I ufe the word fraud here I lie under the neceffity of explaining myself, that I speak of fraud purely in the legal fenfe.-It happens, that by the laws of Scotland and this country, and of every country in the world, there is a great number of things that are called fraud in law, which will carry along with them no degree of basenefs or difhonour; therefore, I hope I fhall be understood as speaking of this fubject, and by no means conveying the flighteft imputation, with regard to the perfon whofe name has been fo often mentioned, and who has been fpoken of in very high terms in this cafe; and I make no doubt he deferves to be spoken of in the highest terms as a man of honour. I have not the honour to know him, nor Mr Stuart; but it would be extremely hard, when one is ufing phrases of this fort, that they fhould be looked upon as perfonal. When I fay this is a practice to disappoint the law of the land, and in that way conftitute a fraud upon it that is my true meaning. Upon the other hand, I fhould be extremely forry to proceed by any rule in the difcovery of fraud, which could be fo extenfive as to cut down these votes, which, by the law of Scotland, undoubt edly are admiffible; for it has been very well obferved, and properly agreed by the counfel upon both fides, that your Lordships do not fit here trying the caufe as a Houfe of Parliament, but you fit here as a Court of Seffion merely; and you ought to pronounce no judgment in this place, but that which the Court of Seffion ought to have pronounced in the Court below and for that purpose, you should lay out of your confideration, every view of policy, every view of conveniency; and you should lay out of your confideration, every circumftance and ingredient whatever, except that which the letter of the law preferibes. In confidering of this cafe, I take it to be extremely clear, Th it, by the law of Scotland, the eftate which is pretended in thefe deeds, if it be a real estate, taken and enjoyed by the grantee of that eftate fairly, and bona fide for his own use anđ benefit, in a late Cause respecting the Trust Oath. benefit, docs give a vote for a member to to ferve in Parliament. My Lords, by the ancient law of Scotland, as your Lordships perfectly well know, every vaffal of the Crown, every Baron, properly fpeaking, appeared in Parliament, and his fub-feus were, in ancient times, not regarded much more than tacks are now. It was of no confequence to his title for appearing in Parliament, how much of the beneficial intereft was in him: he reprefented the whole land Afterwards, when the attendance of the lefler vaffals or Barons, who held from the Crown, was difpenfed with, and they appeared only by their reprefentatives, thofe who voted for the reprefentatives voted for them in the very fame right that he fat in Parliament by; confequently the right to vote for the reprefentative was in the immediate tenant of the Crown, let those who held under him enjoy ever so much of the beneficial part of the estate. In 1681, when the mode of electing in Scotland came to be fettled, these principles were exactly followed, and the right of voting was given either to the wadietter of a fuperiority, or to the liferenter of a fuperiority; and it was given to them without regard to the quantity of real and beneficial intereft which they held in the land. In the times I am alluding to, the object of fitting in Parliament, however it might touch the minds of individuals, did not apply to them in the fame way, as, from the lapfe of time, and change of circumstances, it has done fince. The utmoft point that then could strike the ambition of a gentleman, was the honour of representing a number of people in the country in which he lived, and of being preferred by them to that seat in Parliament. That ambition there was, but it did not go the length of difpenfing with the conftituents paying the expence of their reprefentative in Parliament. Ifpeak only of what took place after the act of 1681, if I do not confound that ftatute with the act of 1661; but from that time to this, the law has certainly received no change whatever; because, though a great many acts of Parliament have been made for fecuring the observation of the law as made in 1681, none of them offer to make a change in it, nor by conftruction can be underftood to have made a change in it. Your Lordfhips will fee what the law was in 1681. -It is true, fuperiorities only gave the vote. It is alfo true, every man who had fuch an eftate had a vote; and it was 475 in the contemplation of the law, as it was regulated in 1681, that the right of voting fhould be preferved to each individual-I mean, in contradiftinction to this, the qualification, which your Lordships know is a forty-fhilling land of old extent, holden of the King; or 400l. of valued rent, gave a right of voting; bnt no one perfon, if he had forty or five hundred fuch eftates, which, by being divided into fo many parts, would have given fo many votes, could, while the eftate was in him, be entitled to any more than one vote. At the fame time, if by accident the eftate came to be divided, each of the perfons to whom it fell, in that manner, would have a right of voting. Hence, your Lordships fee, there are two points equally deferving your attention as a court of juftice. I am not confidering now, whether political power should be in proportion to the extent of property; or whether the man who held an eftate that contained the forty or five hundred votes, fhould have them all. This is not our business. We fit as a court of juftice, to carry the law, as it ftands, into execution; and there are two points in the law as it ftands, which it behoves your Lordships anxioufly to fee executed, as far as the rules of law can go. The one is, That every perfon who has an eftate to which the law annexes the vote, fhould be enabled to give the vote. The fecond, That no perfon fhould be able to give more than one vote for the eftate fo abiding in him. It was argued, but little infifted on, (nor do I believe it was capable of being much infifted upon) That the difference of times between 1661 or 1681, and the prefent hour, made a difference in the right of voting: That because at that time there was no fuch practice as that of ftripping the eftate of all its beneficial enjoyment, and afterwards of conveying out the mere fuperiority, for the purposes of fupplying votes; fo it could not then be in contemplation to give the right of voting to the defcription of votes now brought to the bar. I confefs my opini on, as far as that goes, is clear, that by the act of 1681, they meant to give the privilege to the flighteft eftate which, upon paper, could be drawn forth, within the letter of the flatute 1681: fo that if a man entitled to a forty-fhilling land were to feu it out, taxing the cafualties, or charging it in any other manner, fo as to reduce the eftate to a fuperiority of but a penny value yearly, I take it to have been the intent of the ftatute of 1681 3 N 2 to to give to that eftate a vote. Now, if the cafe were fuppofable, I would fay, that when the eftate had been fo ftripped as to have no actual value in it of a fhilling, the perfon having fuch an estate would be entitled to vote. As to what they call wadfetting, your Lordships know perfectly well, that it is the conveyance of an eftate to be enjoyed as long as it is not redeemed, but liable to be redeemed, upon payment of a fum fuppofed to be advanced upon it; and if the fum advanced had been twenty fhillings, or reduce that to fixpence, or if it had been ten fhillings, or lower it down fo low as a penny Scots, imagining the cafe of fuch a wadfet as that to be clear of any fraudulent purpafe, my opinion is, that wadfet gives the right of voting. I will put the cafe, if poffible, even ftronger than that. I will fuppofe, that a gentleman of eftate, who does not care a farthing for either of the candidates, or for politics, fhould refort to the opportunity of felling the fuperiorities of it, I do not know that the act of 1681 would prevent him from doing fo, by the means of feuing out the eftate, and then fending thefe fuperiorities to market, in order to be purchased out and out by other perfons for their own benefit. The right of reprefentation in Scotland has moft lamentably and unfortunately fallen off its, ancient bafis, infomuch that the whole value of the landed property of a county, fpeaking largely and generally about it, may be in the hands of thofe that have no intereft whatsoever in the choice of the reprefentative of the county, which might be placed in the hands of men who have no earthly eftates, but fuch as I have been defcribing. That certainly was not the object of the law; but if it be a political object, and an honeft object, to give to the land of Scotland its due weight in parliamentary reprefentation, I am afraid that is not to be obtained by a judgment of any court of law, but refort must be had to Parliament, to cure the great mifchief that has happened to the conftitution of that country, as well as other countries, where the change of circumftances has been fuch, that the rule and order of government not being changed conformably to it, things have been turned fo abfolutely round as to disappoint all the good fenfe and found policy upon which the constitution food originally. I have been anxious to ftate this, as to what I look upon to be the right of voting in Scotland. I am afraid, in practice, it has been reduced to the con dition of a burgage tenure here; and when I mention that tenure, it may be neceffary to make fome obfervations upon it. I know the Houfe of Commons is a competent court to decide upon all queftions of the election of their own members; and I know there ftand upon their Journals various decifions fupporting burgage tenures, which I do not mean to impeach or throw the fmalleft reflection upon in the world. There is a latitude and fovereign power that belongs to the Houfe of Commons, that perhaps never ought to bind itself by thofe narrow rules a court of juftice fhould go by. If the title to a feat in Parliament had been in England, as now in Scotland, referred to the decifion of a court of justice, we might, without complaining, venture to guefs, that a gentleman would not have been at liberty to fend his fleward with ten or a dozen of parchments, to be diftributed among as many voters round a green table, and then pick them up after the election was over. I rather believe that could not have happened. But whether there be or not that peculiarity in the burgage tenure of England, it is abundantly clear, an abuse like that does not exift in the constitution of Scotland. It is alfo undoubtedly clear, by the ftatute of 1681, and various acts of Parliament, by which they have tried to fecure it againft fraud fince that time, that, how flender foever the beneficial intereft may be that is taken by the conveyance, it must be taken bona fide, and be the abfolute property of the perfon pretending to property in it; and, confequently, if there be any means of impeaching it with fraud, thefe means are open with respect to this fpecies of burgage tenure. There was a great deal of difpute at the bar upon what fhould be deemed a nominal and fictitious vote, created or reserved only for the purpose of giving a vote at the election, and not a real and true eftate in the grantee of the eftate, for his own ufe and benefit only, and for the use and for the benefit of no other perfon. I fpeak of the words of the oath; for whether the words of the oath alter the law or not-and I think they do not alter it-they are certainly a parliamentary recognition of what the law was at that time. It seems, therefore, upon every queftion of that fort that comes before the Court of Seffion, the fingle queftion for them to try is not, What is the extent of the eftate? but, Whether that eftate is vefted in the grantee bona fide, and is a true in a late Caufe refpecting the Truft Oath. true and real eftate for his own ufe and benefit only, and for no other purpose? For if the jus difponendi remain in any other perfon, it is in vain that the Parliament conveys the right to him; for the real ufe of the eftate remains in another, and that objection to the estate is 'now competent. I did put the cafe to the Gentlemen at the bar of one fpecies of title I admit to be a good one; it is a wadfet. I will fuppofe an eftate of fixpence a-year value were mortgaged at 1os. at 5 per cent. and that the fuppofition was, that 201. or 301. had been paid for making out all the charters, fafines, and other inftruments, by which the eftate was to be conveyed away, and the queftion was to arife merely upon the ftate of that, what, would be the effect of it? I did not perceive it was argued a moment; but ex facie, upon fuch a tranfaction as that, it would be deemed an intentional evafion of the law upon the part of the granter and grantee. It was argued, That, in Scotland, truft could only be proved by writing, and, confequently, there could be no means of proving the granter retained any intereft whatever in the eftate, unless it were fo proved. I do not know of any propofiti on that appears to me fo perfectly contrary, not only to the common and received notions of law, but even to common fenfe, and more particularly the common fenfe requifite upon the prefent occafion. By the nature of the thing, the writings must be all clear; but the queftion made by the ftatute is, Whether thefe writings are fincere as well as clear? Whether they convey an eftate for the fole ufe of the grantee, or for the ufe of the granter? It is faid, that must appear out of the writings themselves. It is manifeft, the queftion is a queftion of fraud; and, till I heard it argued here, I never heard that a queftion of fraud was not to be made out by parole evidence, proving fuch facts as infer fraud. In the cafe of fuch a wadfet, my idea is, that it would be a fraudulent vote, though he had taken an eftate fufficient, as the law of Scotland fays, for the purpose of voting, but had taken it in fuch circumftances as fhewed that it was not calculated to ferve his own purpofes, and therefore it afforded pregnant evidence of fraud. This is a cafe where there is a liferent of about a fhilling value; that is, it is abfolutely worth nothing. I am fpeaking of the appellants. But if even fuch an eftate was bought out and out, with a 477 view not to the enjoyment of a fhilling a-year, but for the purpose of enjoying the franchife, which by the conftitution of that country is annexed to that eftate, provided that is diftinctly and clearly done, I fhould apprehend that eflate would convey the vote. But if a perfon conveys the eftate to another, who, instead of paying the purchafe-money, and inftead of paying the expences of conveying it, holds it at the expence of the granter himself; and more particularly fo, if he held it under an honorary engagement, that he would never difturb the title-deeds of the granter (there are a thousand ways it might be ftated;) in that cafe, the perfon that holds it would be thought of in the most reproachable manner in the world, if he was to offer to interrupt the title of the granter. If he holds it under an honorary engagement, the moft imperfect in point of actual obligation, in my opinion, he holds it fraudulently. The right of ufing it is not in reality, or in fact, in him. Rumour fays, that in this and that county in Scotland, great Lords, who have vaft eftates, fo as even to divide the county among them, have taken upon them to convey by parcels the fuperiority, for the purpose of giving what have been, called confidential votes. If they are called confidential, I fhould have no difficulty in faying what I think of them, namely, that they are no votes at all; because, from the very moment a man holds the eftate with any degree of confidence, there is a want of a legal and complete right. I am glad it has occurred to me to mention it now, because it is a matter very important for your Lordships confideration. If thefe eftates, by any of the confidential holders, were to be withheld from the family that granted them, that family has no way whatsoever to get them back again. No proofs of confidence would enable them to get them back: they would be obliged to prove a fraudulent conveyance; and the law would not permit a man to plead upon his own fraud. The eftate, therefore, would not be drawn back by the granter upon the plea of fraudulent confidence; and yet it is not held by the grantee legally. I do not care for pointing out by what means; but this information has been conveyed to me in fuch a form, that I verily believe it will not be long before your Lordships will hear of difputes to a great amount turning upon the ground I am stating. It happened, not a great while ago, that the |