Available from Boydell and Brewer
Alternated with Clackmannanshire
Number of voters:
|16 Oct. 1710||MUNGO GRAHAM||7|
|Sir John Malcolm, Bt.||5|
|MALCOLM, vice Graham, on petition, 10 Feb. 1711|
On the only occasion in the period when there was an opportunity of making a return to Parliament, Kinross-shire witnessed a highly controversial election. Party animosities, of a sort, seem to have been the cause. The county’s commissioner to the last Scottish parliament, (Sir) John Bruce (2nd Bt.*), who owned the most considerable estate in the shire, found himself disqualified as hereditary sheriff from election to Westminster. His nomination of the Squadrone politician Mungo Graham of Gorthy, factor to Bruce’s stepson the Duke of Montrose, aroused the hostility of an opposing interest. As the election drew near, the anti-Unionist Lord Colvill of Ochiltree reported to the Earl of Mar’s brother, Lord Grange (Hon. James Erskine†), that ‘all our Kinross-shire lairds’ had ‘very heartily agreed against the wise man’, though they were unsure who would stand against him, and remained unsure until almost the last minute. Sir John Malcolm, 1st Bt., of Lochore in Fife had all along been expected to put up, but as late as three days before the election he was evidently still ‘shifting it’ and refusing to declare his mind, which obliged Colvill to seek whatever means could be found of bringing pressure to bear upon him. The only alternative had been John Haliday of Tulliebole, a determined antagonist of the Bruce interest but a man of slender means: ‘Tulliebole if he had ability would not have declined it’, wrote Lord Colvill, ‘but to my certain knowledge he has not wherewithal to bear the expense.’ At last Malcolm let himself be persuaded to stand.1
The story of the election demonstrated how far the county electorate had decayed and how scarce were potential recruits of any substance. Some ten days previously, Bruce, in his capacity as sheriff, had summoned a freeholders’ head court to make up the roll of voters, according to the terms of the Scottish statute of 1681. The calling of the court was not advertised publicly, and when it did meet only three were enrolled: the sheriff himself, his deputy, and Mungo Graham. The two latter created freeholders for the occasion, or so their opponents were to allege; in Graham’s case it was said that Bruce had ‘split his own freehold’ and granted part to the candidate to hold in trust. ‘And therefore it was no wonder’, Malcolm’s printed election case subsequently remarked,
[that] the freeholders were very much surprised when they met at the said election, and particularly those gentlemen, who for 20 years past had been present, and voted in all elections, and had formerly produced their titles for instructing the right of voting, to find themselves excluded (as having no right) by the sheriff, his deputy, and another gentleman scarce known them, and to be told at the same time with much gravity, that these three were the only barons and freeholders in the shire.
After settling the roll in this way Bruce could effectively dictate the course of proceedings. Malcolm and the four supporters he had brought with him were able to present their own claims, but only after the court had been constituted and Bruce himself had been elected praeses. Not surprisingly, all five were rejected: Malcolm himself, Sir Laurence Mercer of Aldie and Haliday, jnr., of Tulliebole for failing to provide satisfactory documentation to prove their entitlement, and Malcolm’s son and Haliday, sr., on the grounds that their landholdings were of insufficient value. As a safety measure, Bruce then advanced four spurious claimants of his own. According to Malcolm’s case, three of these were ‘bankrupts’ or ‘beggars’, while the fourth was ‘a Presbyterian teacher who has not the twelfth part of the valuation required by law’. They were likewise refused, but after the members of Malcolm’s party had protested and been permitted to poll ‘in periculo’ (i.e. at their own risk) Bruce brought up his reserves and polled the extra four as well. He returned Graham without a qualm.2
Malcolm’s petition was appointed to be heard at the bar. Although it rehearsed the objections previously entered at the electoral court against all of Graham’s voters, the principal thrust of the case was against Bruce’s ‘illegal’ proceedings as sheriff, his conduct of the head court and of the subsequent election. The net effect of his actions, it declared, was to refuse ‘the only five unquestionable votes’, while at the same time admitting a majority of ‘lame votes’ on the other side. In fact, neither faction was entirely sure of the legality of its own votes. Lord Grange, who seems to have taken the role of unofficial adviser to Malcolm’s camp, was warned by fellow Tory Sir Alexander Erskine, 2nd Bt.*, to ‘get very exact formulations drawn to direct the lawyers’. It was essential ‘to persuade the lairds to send up their charters’, and particular care should be taken about ‘clearing’ Malcolm’s son: ‘if I remember it is superiority of my Lord Colvill’s lands, and if there could a way be fallen upon to get some declaration of my lord or his chamberlains or the collector of the cess to prove his valuation sufficient . . .’ The anxieties on the other side, however, were more acute. To his enemies Graham bragged that he was certain of the four additional votes: ‘he pretends’, wrote one Tory, ‘the . . . three we call beggars, that no other body is enfeoffed in their lands and that they are in possession of some of it’. To his friends he talked candidly about his fears, which arose not simply from a sense of the frailty of his own claim to a vote and the claims of some of his supporters, but also from apprehension at the likely partisanship of the newly elected House of Commons. Although he refused to believe that his opponent would be seated, he did not expect to win his case. ‘I believe the upshot will be a new election, for it’s impossible, in my opinion, to pretend any further, and their petition seems to conclude in that’. With this probability in mind, he advised Bruce how to go about creating a few more votes without alerting Malcolm’s friends and provoking them to do the same.
I think the cheapest way will be to resign in favour of any one person as much land as may make two or three votes . . . and pass the charter in that one man’s name; and when it is passed the seals he may assign the precept of sasine a half or third thereof in favour of the other person or persons whom Sir John designs to make barons; they being enfeoffed upon that assignation are publicly enfeoffed, and in the terms of the law have unquestionable votes; and . . . to take off the objection of trust, the new barons after they are enfeoffed may dispone back the lands to Sir John to be holden a me or de me; [?Cleish] he may enfeoff basely, so they remain his superiors and consequently have the vote; and whenever he has a mind they should be no longer barons he may upon the promise of resignation make resignation in the Exchequer and pass a new charter in his own favour.
Bruce declined the opportunity, wisely as things turned out, for the outcome of the hearing proved even Graham’s limited expectations to be unrealistic.3
Before the appointed day Graham visited Malcolm in an attempt to negotiate a compromise. ‘My chief intention’, he reported to Montrose, ‘was to ask him whether or not he would see and interchange papers, as was usual in Scotland.’ But he had gone on to say
that if I had dreamed that he was to petition, I would have done all that was in my power to have brought our affair to an amicable determination in Scotland, and saved us both the trouble and expense of bringing it before the House.
Even now ‘I should be ready to enter into any reasonable method of having our affair determined at the sight of some of our own people here’. Although Malcolm’s reply was ‘very civil’, nothing more than polite prevarication could be wrung from him. The case proceeded to its conclusion. Fearing that ‘whatever point I was to insist on, I should lose it’, Graham was particularly apprehensive that consideration of the complaints against the irregularity of the head court would lead to a censure of the sheriff, and was therefore pleased when in their opening remarks the petitioner’s counsel, having laid the expected stress on this ‘clamorous’ aspect of the affair, passed immediately to the other main bone of contention, the qualification of voters: ‘as it is the custom in the English elections after opening of the case to come into the merits of the election, so they with the same breath proceeded to disqualify my votes’. He promptly took advantage.
I instructed my counsel to say nothing to that point [the sheriff’s conduct], but that nothing having been objected against the enrollment, or the legality of the election at the meeting, no objection against the same was now to be received, and so immediately after this they had the comfort to bring off the other side entirely from that subject, and brought them upon the disqualifying of my votes.
The ground on which Graham now found himself was less dangerous for his sponsor but no more promising for him. He began by giving up the four makeweight votes, and in return Malcolm’s counsel dropped their objection against Bruce. The deputy sheriff also escaped disqualification when Graham pointed out that the question raised about his enrolment, namely the valuation of his property, had been answered conclusively by the retour that he had shown. Finally, attention focused on Graham’s own vote. By blustering he managed somehow to put aside the damaging allegation that he held the property concerned ‘in trust’, only for this charge to be raised again when the petitioner’s other objection was discussed, namely that Graham could not prove he was ‘in possession’. The second point was answered effectively by the production of a decree from the baronial court, but despite an intermediate victory for Graham when the House resolved that the decree be admitted as evidence even though it had not been produced at the election, the Tories, both English and Scots, continued to worry away at both objectio