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inhabitants, and observed, that even The motion was seconded by Mr some members of the committee had Horne. not been so zealous as at first. He in. Mr Stuart said, that his learned formed the meeting, that a compromise friend had correctly stated, that the had been offered by the Lord Provost resolution of the committee, recomand Magistrates, which was, that the mending a compromise, had been adopttwo north houses remain as they are ed by a great majority of the commit. -the others to be reduced one story tee. He had the honour to be one of -and the one now erecting to be only the minority when that resolution was two stories above the level of the bridge, adopted, and it was, therefore, his duty in place of the former, as originally in- to state the grounds on which he had tended. This the learned gentleman differed from the majority. Mr Stucontended was a very material conces- art contended, that the eminent counsion, and would hereafter appear as a sel, by whose advice the former meet. proud monument of what had been ef. ing had been guided, still thought the fected by the public spirit of the inha- legal point was in favour of the feuars, bitants of Edinburgh. The compro- and he could not therefore understand mise had been agreed to by a great
how his learned friend entertained those majority of the committee. He knew doubts he had expressed of the result there were gentlemen present who of the law-suit, unless it were on acwere confident as to the ultimate suc- count of the notorious uncertainty atcess of the cause, if proceeded in, but tending all legal proceedings. He for his own part, his hopes were not should not now repeat the grounds now so sanguine as they had been. stated to counsel, and on which the The learned gentleman alluded to an former meeting had agreed to have reintention on the part of the magistra- course to legal proceedings, with a cy, at no distant period, of erecting a view to abate the intolerable nuisance corresponding pile on the east side of complained of ; but he would put this the Bridge, where, as he understood plain question to his learned friend, no servitude existed, they might build whether, if ten or a dozen years ago as high as they pleased. In investiga- he had purchased a house in Charting the question legally he dwelt on lotte-square, and had paid a very high the uncertainty of the law, and sub- price for it, because his charter from mitted, whether, in this doubtful war- the Magistrates contained a declarafare, it were not better for the inha- tion, that the ground mentioned in the bitants to make a drawn battle, while square should in all time coming be one point of victory remained in their kept as pleasure-ground; and whether, favour-a triumph over official mis- if during his absence from the counmanagement-or to proceed to obtain try, the Magistrates had obtained an
decision, the ultimate success of Act of Parliament professedly for which was so uncertain. Mr Jeffrey erecting a chapel at the east end of conceived the labours of the commit- Prince's-street, suppose on old St tee were finished, and concluded an Ann's-street, but containing an enactable speech, of which we have given ment, by virtue of which he found on but an imperfect outline, by moving, his return houses erected on his pleaThat the compromise offered by the sure-ground in the square, would he Lord Provost and Magistrates, of re- tamely submit to such a violent deteducing the buildings, agreeable to the rioration of his property ? If he would plan exhibited, be agreed to.
not have done so in such a case, then
he did not understand on what the which, at very great expense, part of doubts now expressed were founded ; the spires at the west end of the town for not only had the feuars in Prince's. would be visible from the Calton Hill, street declarations in their charters and a little less of the unseemly wall that the ground between Prince's, would be seen from Prince's-street. street and the North Loch should be But it was obvious, even if the meet. kept as pleasure-ground in all time ing agreed with him in the views he coming, but the Magistrates were had laid before them, that nothing bound to dress it up as such at their could be done without a new subscripown expence ; and the feuars had tion of large amount. He would not other strong grounds for opposing this desert the cause, if they afforded him encroachment, which had been fully the means. explained at the former meeting. It Mr Colin Mackenzie agreed with was no doubt true that two of the Mr Jeffrey to a certain extent. AlJudges had delivered opinions unfa- though he had already subscribed, he vourable to their plea, but they had said he was willing to do so again if it founded their opinions on the acqui- was the opinion of the meeting to proescence of the feuars for a considerable ceed. time in the operations carried on, a Dr Yule said he had not seen a plan plea which, after the decision, it had of the intended alteration in the buildbeen found was lately over-ruled by ings, but he understood they would the Court in an important case, (to then present the appearance of a wedge, which Mr Stuart referred,) and which and that among all the improvements at any rate did not attach to the south. in architecture, he had never before most and most objectionable tene- heard the beauty of the wedge enument, because that tenement was not merated. commenced until after the legal pro- Mr Joseph Gordon ridiculed the ceedings had begun. Mr Stuart main- idea on the part of the Magistracy of tained, that if there was the same rea building on the east side of the bridge, son as before to look for success in a where, so far from raising an erection law.suit, there was no reason to con- as high as the third heaven, he defied sider the compromise as expedient, be. them to lay one stone. cause the great object, viz. to regain Mr Henry Cockburn, in an animathe views, from the Calton Hill, of ted speech, coincided with Mr JefPrince's-street and the New Town; frey's motion. He said, that although and from Prince’s-street, of the Calton Mr Cranstoun's opinion on the legal Hill, Arthur's Seat, Salisbury Craigs, point remained unchanged, yet he &c. would not be attained. It was knew that that gentleman strenuously never his wish, nor that of the come advised that the compromise offered mittee, in case of success, to carry should be agreed to. The learned genmatters all lengths ; they were always tleman wished to know what would be ready, on account of the expence in. gained, after an expense of 1500l. or curred, as their correspondence with 2000l., supposing the present buildings the Magistrates proved, to allow the to be removed, if within twenty yards shops, the most valuable part of the another might be erected subject to buildings, although on many accounts no controul. If, said Mr C., it is the objectionable, to remain, but it did not opinion of the meeting that the legal appear to him that much would be proceedings should be continued, let gained by the compromise offered, by me see each gentleman, while he gives hie vote and support for continuing the that, by Act of Parliament, residence litigation, put his hand in his pocket of the Baillies was necessary. Two of and extract five guineas.-(A laugh.) the Judges were of opinion, that the
Mr Stuart explained, that there was fact of non-residence, as made out by no inconsistency in Mr Cockburn's the complainers, ought to have the efand his statements of the opinion and feet of setting aside the election ; but advice given by Mr Cranstoun. All, the other two thought it necessary to however, that could be gathered from institute a farther inquiry as to the usthis advice and that given by the other age of the burgh in this respect. The learned gentleman was, that the un. Court, therefore, being equally dividcertainty of legal proceedings in this ed on this point, it was determined country was such, that even with a that Lord Reston, as Lord Ordinary, good cause no one should go to law- should be called in to give his opinion a doctrine very dangerous for the learn- with regard to it. Another of the obed gentlemen themselves.
jections was, that, in consequence of Mr Jeffrey's motion was put from one of the old Bailies having been, on the chair, and carried without a dis- the day of election, chosen Dean of senting voice,
Guild, and of there being no person, The committee was reappointed, to on that day, chosen to supply his place, see the compromise carried into effect. the election was not completed on the
N. B. The builders, encouraged by day appointed by the set of the burgh. the confessions of poverty, and by the It was alleged, on behalf of the Ma. cessation of interest in the public on gistrates, that, by the usage of the the subject, declined completing the burgh, it was not necessary to fill up compromise, and raised the whole of the vacancy thus occasioned on that the houses to the height originally in. day, but that this might be done aftertended.
wards ; and on this point, also, the Court considered farther inquiry necessary, and accordingly ordered a con
descendence as to the custom of the PROCEEDINGS IN THE COMPLAINT burgh in this particular. On some of AGAINST THE ELECTION OF THE the other objections the Court consiMAGISTRATES OF EDINBURGH.
dered farther pleading necessary.
In these circumstances, the case was DEACON LAWRIE AND OTHERS V. The taken up, in order that Lord Reston MAGISTRATES OF EDINBURGH. might deliver his opinion on the point
remitted to him ; and this opinion was Court of Session, Second Division, expected with much anxiety ; because, March 11.
if his Lordship should think along
with two of the Judges, that the elecThis case had been before the Court tion of the non-resident Bailie was il. on Tuesday the 3d instant, when the legal, and that, therefore, the whole Court took into consideration the pe- election should be set aside, then the tition and complaint against the Ma- question would be decided, without gistrates, with answers, replies, and the necessity of any further discussion duplies. On that occasion, the Court on the other objections. were of opinion,-upon the objection, Lord Reston's opinion was, in subthat the election was null, in conse
stance, as follows: quence of one of the Bailies elected He began by saying, that he delinot being resident within the burgh, vered his opinion with great diffidence, arising from his want of experience in ding to the usage of the burgh, resi'cases of this nature, in not one of dence was not necessary ; a condescenwhich he had ever been engaged, ei. dence of these averments had been ofther during his practice at the bar, or fered ; and he thought a proof of them since he became a member of Court. should be allowed. There could be He proceeded to observe, that it was no doubt, that statutes might go into admitted that Mr Anderson (the Bai. desuetude. The very statutes on which lie in question) did not reside within the present objection was founded had the burgh, his residence being in certainly gone into desuetude with reBroughton Place. The Magistrates, gard to the election of Provosts. By however, had attempted to obviate this these statutes residence was declared objection, by alleging that Mr Ander- necessary, in the case of Provosts as son carried on trade within the burgh, well as Bailies. Usage, however, had but in this attempt they had com- altered the law in the case of Provosts, pletely failed. They had represented and why might it not have the same him as a proprietor of the Commercial effect in the case of Bailies ? In the Bank, and of the Hercules Insurance case of Hunter Blair v. Phin, 31st JaCompany, but neither of these circum- nuary, 1781, at the election of the stances formed any connection between Magistrates of Edinburgh, a member him and the city ; and, as to their al. of the incorporation of Waulkers was legation of his having been a director chosen deacon of that incorporation. of the Commercial Bank, it did not ap- He resided at the distance of three pear that he possessed this character at miles from town, and also carried on the period of the election. The fact, his business without the burgh ; and on therefore, was, that this gentleman nei- this ground a complaint was presentther lived, nor had any place of busi- ed against the election. It was conness, within the burgh. His Lordship tended, however, that, by usage, the then stated, that, independently of any deacon of the Waulkers resided out of considerations drawn from usage, resi. the burgh, being obliged to do so from dence was made necessary for a Bailie, the nature of his trade, which required by two Acts of Parliament, by which the use of a stream of water. The it is declared, that the Provost and complaint was dismissed. The Court Bailies, or Aldermen, shall be resident here proceeded upon the circumstance within the burgh. These statutes were of usage as to residence, and held, that found to be in observance with respect an election bona fide, made on a belief to the election of Bailies, in the case founded on usage, that the person electof the Magistrates of Wick, in 1749, ed was properly qualified, was not to where it was found that none but those be set aside upon a summary comwho were resident in the burgh could plaint, whatever might be the effect, be elected as Bailies, although this qua- as to future elections, of a regular aclification was not necessary in the case tion of declarator instituted for ascerof the Provost, or of Counsellors. Si- taining the set or constitution of the milar decisions had been pronounced burgh. If, therefore, the Magistrates in other cases, particularly that of of Edinburgh could make out their Nairn, and that of Anstruther-Easter. averments as to the usage of the burgh His Lordship was of opinion, how- with respect to the residence of bailies, ever, that the averment of the Ma- his Lordship thought that the present gistrates respecting the usage of the complaint must be thrown out; though burgh was quite relevant. It had been perhaps it might be found, by an acaverred in their pleadings, that, accor- tion of declarator, that residence should
be a necessary qualification in all fu- of Session advised this important case, ture elections. His Lordship consi. when, upon one of the points of the dered this complaint as of a highly libel, the complaint of the petitioners penal nature. The effect of setting was sustained, the election was decla. aside this election, on the ground of red null and void, and the pursuers illegality, would be not only to expose found entitled to their expences.the community to the inconvenience Should no reclaiming petition be preof having no magistracy, but to expose sented to the Court against their in. the respectable persons, who were both terlocutor, it will become final on the electors and elected, to the obloquy 27th curt. This judgment is foundand contumely which attend those who ed on an informality in the election. are held to have done an illegal act, The set provides, that after the deaand who are deprived of situations cons shall have been received and auwhich they had no right to assume. thorised in their offices, the meeting If it appeared, that this election took of council at which this is done shali place on an entire bona fides, both on choose furth of the said fourteen deathe part of the electors and of the cons six, to be the ordinary councilelected, that those who were chosen deacons for the next year. The meetwere duly qualified, according to the ing at which this is done must consist usage of the burgh, then, he appre. of twenty-five persons. On the 17th hended, that this election ought not September, the council being made up to be set aside.
to the requisite number of twentyIn consequence of this opinion, the five, among which number was Mr Court ordered a condescendence of the Denholm, as trades'-councillor of the facts, which the Magistrates averred, former year, the fourteen deacons were and offered to prove, with regard to introduced, and took the oaths, and the usage of the burgh, as to the re. among these Mr Denholm, as deasidence of the bailies. The Magistrates con of the Waulkers, then sitting at wished to be allowed to extend their the council-board, and continuing to condescendence to the usage of other act in his old character of trades’-counburghs ; but this the Court refused to cillor, voted for his own appointment admit, observing, that they might as an ordinary council-deacon,—thus make, in a minute, any averments on acting in two different capacities. Mr that head they might think proper, to Denholm being thus received and which such weight should be after- sworn as a deacon under the new elecwards given as they might appear en- tion, could no longer be considered a titled to. On the other parts of the trades’-councillor ; his place, therecause, the Court pronounced an inter. fore, in that capacity, should have locutor, in terms of their opinion when been filled up before the meeting pro. the case was formerly before them ceeded to elect the six council-deacons that is ; they also ordered a conde- out of the fourteen. This, however, scendence, as to the usage respecting was not done ; consequently, the electhe completion of the election, on the tion of the six council-deacons, of day appointed for the election by the whom Mr Denholm was one, was made set of the burgh; and, on the other only by twenty-four councillors and points, they ordered the parties to give Mr Denholm himself. in memorials.
On the question as to the usage of
non-resident and trafficking persons June 6.
having filled the offices of magistrates, The Second Division of the Court and to which the Court had formerly