Scottish Court of Session Decisions

This was a petition against the return of Provost Grieve as member for Greenock at the late Parliamentary election. The petition was at the instance of Mr Christie, the defeated candidate, and was in the following terms:—

“(1) Your petitioner was a candidate at the above election.

“(2) And your petitioner says that the nomination of the above election took place on the 16th day of November last, and that two candidates were duly nominated, viz., James Johnstone Grieve, then the Provost of the burgh, and your petitioner, and that on a show of hands the Sheriff declared your petitioner elected by a large majority; whereupon James Johnstone Grieve demanded a poll, and the polling took place on the next following day, the 17th of November; and on the morning of the next day, the 18th, the Sheriff declared the result of the polling to he 2962 votes for James Johnstone Grieve, and 2090 votes for your petitioner; and the Sheriff declared James Johnstone Grieve to have been elected member for the burgh, and he made a return accordingly to the Clerk of the Crown at Westminster, despatching it from Paisley of the 20th of November, and the Clerk of the Crown received the said return on the 21st November.

“(3) And your petitioner says that the election of James Johnstone Grieve was brought about and effected by an extensive and elaborate organisation of undue influence and large expenditure.

“(4) And your petitioner says that bribery, treating, and undue influence were practised by James Johnstone Grieve and his agents, and by others on his behalf, and that corrupt practices extensively prevailed.

“(5) Your petitoner further complains that the returning officer, the Sheriff of Renfrewshire, acted illegally in appointing a number of distantly separated polling places in some of the wards or polling districts, with assignment thereto by an alphabetical division of different portions of the duly published lists of voters for the said wards or polling districts, disregarding a protest of your petitioner duly and in good time delivered to him, and that he further acted illegally in disregarding and neglecting to comply with a requisition for the appointment of specified numbers of booths, compartments, halls, rooms, or other places, for polling at the duly appointed polling places, of the first, fourth, and fifth wards, according to the provisions of the Act 16th Victoria, chap. 28, sec. 4, which your petitioner made to him at the same time with the aforesaid protest.

“(6) Your petitioner says that the arrangement made by the returning officer as to polling places was prejudicial to his interests, and that in the carrying out of the said arrangement the returning officer employed or acted with the Town-Clerk of Greenock, and tjjat as soon as your petitioner became aware of the intervention of the Town-Clerk in the matter, he warned the returning officer, that as between the then Provost of Greenock and any other candidate, it was next to impossible to expect impartiality from the Town-Clerk.

“Wherefore your petitioner prays that justice

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may be done, and all rightful relief given hint in the premises, and that it may he determined that James Johnstone Grieve was not duly elected or returned member for Greenock, and that the election was void.

“ In respect whereof,&c.

“W. D. Christie.”

After the petition was presented, the following note was lodged by Mr Grieve:—

“To the Honourable Lord Cowan, and the Honourable Lord Jerviswoode, the Judges for the trial of Election Petitions for the time being, pursuant to ‘The Parliamentary Elections Act, 1868.’

“ My Lords,—

“The respondent makes the present application in writing to your Lordships, in accordance with section 24 of the rules of procedure made by your Lordships of date 27th November 1868; and he prays your Lordships to dismiss the petition, in respect that it does not, in terms of section 2 of said rules, ‘set forth articulately,’ ‘according to the rules and practice of the Court of Session in ordinary proceedings,’ the ‘facts Telied on in support of the prayer of the petition.’”

Clark, for the respondent Mr Grieve, M,P., addressed the Court in support of the respondent's application. He said that the ground upon which the motion was rested might be thus generally stated, that the petition contained a mere general statement, and was expressed in the most general way without attempting to give any particulars whatever of the charge which was made against Mr Grieve. In connection with this matter, and to show its importance, it was right to notice that the petition was not laid simply on the ground that agents or persons active in the interest of Mr Grieve had been guilty of bribery, so that his election was null; but that the statement wa3 that he himself, by himself as well as by his agents, was guilty of corrupt practices. He need not mention that to him that accusation raised a very important issue, for their Lordships would see, in the 43d, 44th, and 47th sections of the Bribery Act, what enormous sanctions followed upon the commission of such an offence. In this petition their Lordships had merely a statement in the most general terms asserting that the respondent brought about his election by the use of undue influence, by large expenditure—or, in other words, as stated in article 4, “by bribing, treating, and using undue influence”—but there was no specification of the time, place, or person. Now, the question was whether .this petition was framed in accordance with the rules issued by their Lordships under the Corrupt Practices Act of 1868, in which it was provided that “an election petition shall set forth articulately, in the form of a condescendence, according to the rules and practice of the Court of Session in ordinary proceedings, the facts relied on in support of the prayer of the petition. Mr Clark proceeded to maintain that the injunction in the rule which he had quoted had not been complied with in this petition, because it contained nothing except the most general statement th^t the respondent had been guilty of using undue influence and bribery, and other corrupt practices. The substance of the objection to the petition was that the petitioner proposed to go to trial on the case without giving any specification whatever of the time, or place, or person. The forms and practice of the Court of Session in ordinary proceedings required that there should be specification of the offence charged in the condescendence; and he submitted that it was perfectly out of the question to suppose that this petition had been prepared according to the forms and practice of the Court of Session; it was prepared indirect disregard of these forms and practice, because the Court required in all papers specification of the charges made. He concluded by submitting that this was not an objection to the mere form of the petition, but to its substance, and that the petition ought to be dismissed in respect that nothing was charged which, according to the forms of the Court of Session, could be sent to proof.

Alexander Moncrieff, for the petitioner, submitted. that his friend Mr Clark had presented no argument in support of his statement that the objection made to this petition was one of substance, and not merely of form; the objection, he maintained, was truly one of form, and of nothing else than form. The rules issued by their Lordships had apparently been issued very much with the view of separating the various articles mentioned in the condescendence; and the articles had, in accordance with these rules, been separately mentioned in the petition in the order prescribed in the rules. The petition stated distinctly what was meant by “corrupt practices;” for it stated, in the fourth article, that bribery, treating, and undue influence were practised by Mr Grieve and his agents, and that corrupt practices extensively prevailed. The “corrupt practices” were broken down in the petition into these three separate and distinct things, bribery, treating, and undue influence. The only thing alleged was that the petition did not say with regard to what persons, or upon what dates these various things, bribery, treating, and undue influence, which constitute the corrupt practices of which he complained, were respectively practised. Mr Moncrieff proceeded to argue that the objection to the petition was one merely of form, which, if they were in a summons of the Court of Session, could have been easily cured by adding some details; and that it would be unfair, and would not tend to justice, if petitioners were compelled to state at the beginning of their case the names of all the parties bribed, who might in that case be interfered with. He submitted that the practice in England corresponded with that adopted in this petition, and referred to two English cases reported in the Scotsman of Friday in support of his position. He concluded that there were no grounds for granting the prayer of the application that the petition should be dismissed.

Solicitor-General, for the respondent, submitted that the Act provided that the petition “shall be in such form and state such matters as may be prescribed.” Their Lordships had prescribed that “all election petitions shall set forth, according to the rules and practice of the Court of Session in ordinary proceedings, the facts relied on in support of the prayer of the petition.” This election petition, he maintained, was not in accordance with the rules and practice of the Court of Session, and it failed to set forth the matters prescribed by their Lordships. That was not an objection to the form, but to the substance of the petition. The Solicitor-General proceeded to comment upon the language of the petition, maintaining that it did not even say on which side the corrupt practices prevailed, and that the grammatical construction led to the inference that the

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corrupt practices had prevailed on the side of the petitioner. He referred to a jocular remark made by an old Judge, to the effect that indictments should be so simple as to consist simply of such a statement as “ You are a thief, and you will be hanged;” and remarked that such an indictment would be no more in accordance with the rules and practice of the Court of Justiciary than the petition in this case was in accordance with the rules and practice of the Court of Session. There were many species of bribery and treating, and it was impossible for any one to defend himself against so general a charge as that in this petition. The use of the word “ bribery ” no more gave information to the party accused than the use of the word “ debt ” would give information to a defender in the Court of Session, or the use of the words “ assault ” or “ fraud ” would give information to parties accused in the Justiciary Court. He concluded by submitting that the petition could not be amended, because it did not set forth the facts which it ought to have done, and there was therefore in reality no petition to be amended.

Moncrieff, in reply, said that the radical fallacy of the argument on the other side was that it assumed that a failure to comply with the rules of procedure involved a nullity. Lord Cowan—What do you propose to do? Is it your proposal that you should go to trial with the petition as it stands?

Moncrieff—I do not wish to go to trial with the petition as it stands. If your Lordships say that the petition, which is validly brought, is deficient in such specification as might give fair notice, I am quite prepared that I should be ready to add such specification at the time your Lordships think necessary; but I submit that the proper time would be six days before the trial.