Despite a small electorate and an overweening magnate interest, electoral politics were far from moribund in Orkney and Shetland during this period. The earls of Morton, whose grant of crown lands in the islands had been revoked under Charles II, only regained control in 1707. The original dispensation of 1643 was a reward to William Douglas, Earl of Morton (d. 1648) for his financial support of the Royalist cause. Under the Commonwealth and Protectorate, the survival of the Morton interest had appeared doubtful, particularly after Orcadian support for the Marquess of Montrose in 1650. At the Restoration, however, the family’s loyalty was recognized by a confirmation of the grant, but the relationship between the King and the 9th Earl soured when the latter allegedly failed to remit to the crown all of the Dutch bullion salvaged from a shipwreck in 1664. Morton was probably guilty of a degree of peculation, but the crime was magnified by an over-estimation of the disputed prize. By a punitive act of the Scottish parliament in 1669, the Morton grant was revoked. A protracted struggle ensued, with the family gaining partial compensation by such means as pensions (sometimes unpaid) and tacks of crown rents. The islands were eventually restored to the 11th Earl as a reward for the family’s support of Court measures, particularly the Union. Morton had, inter alia, persuaded Sir Alexander Douglas to change his mind and vote for the treaty; and it was via his influence that Douglas was nominated to the first Parliament of Great Britain.2

Douglas, a local laird who had held one of the two seats for the constituency in the Scottish parliament since 1702, was a natural candidate for the single-Member seat after the Union. According to one newspaper report, he was returned ‘unanimously’ at the 1708 election. However, the apparent ease with which he was returned belied underlying resentment, some of which may be traced to the last election to the Scottish parliament. In particular, Sir William Craigie of Gairsay (d.1712), a Country cavalier and former commissioner for the islands, harboured a grudge against Morton. On behalf of the Scottish Court party in 1702, the Earl had despatched his younger brother Hon. Robert Douglas* to Orkney in order to ‘influence the elections there and to oppose Gairsay’. Robert Douglas had reputedly made use of his powers as a tacksman of crown rents to ‘influence the elections of both town and country’. Although Craigie of Gairsay was returned after a controverted election, he was unable to sustain his commission, which was withdrawn. He remained bitter about the means by which Morton had aided Douglas of Egilsay and another Court supporter, Sir Alexander Stewart of Burray. Also, the unorthodox manner in which the roll of barons (i.e. freeholders) had been drawn up at this election gave rise to subsequent disputes. None of the barons was apparently required to present proof of his entitlement to vote.

It is to be noted [stated a memorial on the 1713 election] that in anno 1702 when the first baron roll was made up in Orkney, they instructed nothing but the valuation of the lands they possessed without production of their rights and Sir William Craigie of Gairsay having protested against the said baron roll upon the account of not production, did withdraw his protest and the reason thereof was because neither he nor his predecessors were ever publicly infeft in the lands he enjoyed and possessed.

It is unclear in what manner voting rights had been verified at earlier elections, but by this account it appears that 1702 was a procedural turning point. Thereafter the insertion of any new voter on the barons’ roll was expected to be accompanied by documentary proof. Yet, voters contrived on several occasions to circumvent this requirement. The notion persisted therefore that a number of barons had managed ‘by connivance’ to have their names inserted into the roll. It should also be noted that the right of voting was possessed exclusively by Orcadians throughout this period. One early 18th-century memorialist asserted that ‘whatever hath given the first occasion for the freeholders of Shetland their not meeting with those of Orkney at elections, it’s certain that now for many years none of them have voted in Orkney’.3

Sir Alexander Douglas was unwilling to stand in 1710, having found the cost of attendance at Westminster a heavy burden. He changed his mind, however, under pressure from Morton and the Duke of Queensberry, who promised him £200 from government to cover his expenses. Douglas was returned unopposed once more, but only narrowly avoided a contest. John Ewing, Morton’s agent, reported from Edinburgh on 21 Nov. that

the return came here this day by an express which your lordship’s brother Robert ordered to be sent with it, and I assure your lordship had not Mr Robert been active in writing to all the gentlemen and obliged them not without both pains and money, [Craigie of] Gairsay bade fair to be elected himself, but when he found he could not prevail, he set upon several of the gentlemen to stand, and he would assist and concur with them, telling them it would never be well with the country as long as any in friendship with your lordship were elected, he has used all methods to disappoint [Douglas of] Egilsay’s election by threatening the gentlemen . . . and is just now pursuing them before the lords [of session] for above 20 years’ commissioners fees as their representative in Parliament.

It became clear during the lifetime of this Parliament that Douglas would not stand again, not least because his pension remained apparently unpaid.4

Meanwhile, opposition to the Morton interest was gaining ground, motivated primarily by local rather than national issues. There was no Whig interest to speak of in Orkney. Douglas of Egilsay, in common with the vast majority of the islanders, was an episcopalian, and readily transferred his allegiance from the Godolphin (Sidney†) ministry to the in-coming Tory administration of Robert Harley*. The episcopalian and even Jacobite sympathies of the islanders were well known. A newsletter in December 1710 noted that an address to the Queen from Orkney praised the Church of England as embodying ‘the quintessence of true doctrine’. Richard Dongworth, episcopalian chaplain to the Duchess of Buccleuch, described the gentry ‘through all that country’ as ‘greatly disposed’ towards episcopalianism, referring also, in April 1710, to a Presbyterian prosecution of the Kirkwall minister for using the English liturgy. From the opposite perspective, the Presbyterian divine Robert Wodrow believed that Orcadian justices of the peace were ‘all malignants and Jacobites’. It is possible that some ill feeling towards Morton may have arisen from this quarter, the Earl and his brothers being undoubted Hanoverians. But Morton himself drew the opposite conclusion in a letter to Lord Oxford (the former Harley) in which he asserted that the loyalty of the islanders to Queen Anne was assured precisely because ‘I really do think there is [only] six Presbyterians in all the country of Orkney and Shetland’. A sense of local pride, embittered by material grievances, predominated in the anti-Morton camp, and it was no coincidence that the candidate chosen by those whom Ewing dubbed the ‘confederate lairds’ was a serving naval officer, Captain James Moodie. A clear objective behind Moodie’s candidacy in 1713 was to make use of his influence at the Admiralty so as to undermine Morton’s claims respecting shipwrecks. The Earl was renowned for demanding a share of profits, irrespective of his actual contribution to any salvage operations. In March 1713 the Dutch East Indiaman Rijnenberg was shipwrecked with a cargo of ‘ten chests of money and one double chest’. Morton claimed one-fifth of the salvage fees and remorselessly pursued his claim. This affair came in the wake of accusations from the islanders that two years previously the Earl had retained two chests of silver from another wreck. Ewing subsequently advised Morton to allow these disaffected lairds ‘a little more salt water liberty - which would cure all their diseases, for that is the cause . . . whence all their distempers flow’.5

The 1713 election was a complex affair, in which resentment against Morton as an absentee proprietor was interwoven with feuds between and within Orcadian families. Morton’s nominee was his brother Colonel George Douglas, whose own motives for standing stemmed from electoral difficulties at Linlithgow Burghs. He was naturally supported by Douglas of Egilsay, who secured the crucial role of praeses of the electoral court, and by Robert Douglas, who assumed the entire management of proceedings relating to disputed entitlements to vote. The driving force within the anti-Morton camp was not the candidate himself but his nephew and namesake James Moodie†. Some understandable confusion has occurred on this score. It is not simply that they shared identical names. Both Moodies also styled themselves ‘Captain’, although only the senior was an officer in the royal navy. They had a joint interest in the Orkney estate of Melsetter, but were not, as is sometimes wrongly stated, father and son. Melsetter was previously owned by William Moodie, brother of James snr. and father of James jnr. William Moodie had fallen on hard times and was rescued from mounting debts by his brother. The lucrative opportunities for turning a profit that had fallen to James Moodie snr. in the course of his naval career had enabled him to rescue the estate. He thereafter allowed it to be managed by his nephew as his factor.6

The uncertainty surrounding the ownership of Melsetter featured prominently in the proceedings of the electoral court, as was explained in a subsequent memorial prepared for Colonel Douglas:

Captain Moodie of London can have no pretence to the privilege of a freeholder in regard his whole right stands upon his own assertion . . . if Captain Moodie should struggle in Parliament for support of his right . . . it will not appear that ever Captain Moodie entered to possession by virtue of his adjudication . . . or any other diligence against the possessors for instructing his possession, and if he support his possession by his factory to his nephew and that will first be of no use to him and will cast his nephew Captain Moodie’s vote.

Furthermore, the younger Moodie’s right might be challenged on the following grounds:

His vote will be null in regard he could have no right by apparency without instructing that of his authors and further that his author was denuded by expired apprisings . . . and its advised that all rights which can be had divesting Captain Moodie’s authors be carried up to London . . . and its further advised that the records be searched for an extract of the factory to Captain Moodie by his uncle and carried up to London for instructing that the captain was not in possession as apparent heir.

This strategy was central to the campaign in support of Douglas and explains the objection lodged at the electoral court that ‘any possession the said Captain James Moodie of Melsetter has of his predecessor’s estate, or intromission with the rents thereof, is by virtue of a factory from Captain James Moodie his uncle one of the creditors and adjudgers . . . and by tolerance of the other creditors’. In the light of this circumstance, the pattern of events at the election becomes clear.7

The first question to be addressed, after the opening of the ‘baron court’ and the election of praeses and clerk, was the drawing up of the roll of electors: ‘several barons compearing and craving to be admitted in the baron roll because not formerly enrolled, the barons proceeded to consider of their several documents produced’. Robert and George Douglas were admitted without difficulty, having been granted sufficient property in Orkney by Morton earlier that year. The necessary charters and sasines were duly presented. Robert Douglas was brought in by eight votes to five, and was thus enabled to vote in favour of the admission, in absentia, of his own brother. The elder Moodie also requested to be admitted to the roll, claiming upon an alleged charter of confirmation from 1699 to be infeft of the estate of Melsetter

of the extent and value of £800 of valued rent and upwards . . . but having been still abroad in her Majesty’s service by sea I could not appear at the appointed times and places within this stewartry to claim my vote . . . but now I claim my vote as an adjudger and appriser of the lands forsaid.

He was not able to produce documentary evidence and, when challenged to do so, altered the basis of his claim accordingly:

He is in possession several years last past of lands to the extent of £400 valued rent and upwards paying cess therefore and holding the same . . . of her Majesty . . . but in regard that his said charter and sasine are instantly lying in process in the court of exchequer of North Britain he cannot recover the same in order to be produced in the baron court.

Anticipating probable exclusion from the roll, Moodie pleaded that if this right were refused ‘that the same may not disable him to vote, elect or be elected himself in this present meeting’. The discrepancy in the valuations stated in Moodie’s first and second protests was noted by Morton’s lawyers, who upon subsequent enquiry devised another potential objection. According to the barons’ roll of 1702, the Melsetter estate was worth only £782, a valuation which would not support two votes at £400 rental, even if proper infeftments were otherwise admissible; nor could Moodie jnr. refute this objection by claiming to have enlarged the estate himself, because ‘he cannot represent his father for purchases made by himself’.8

Moodie snr. was denied admission to the barons’ roll by a mere two votes after John Traill of Elsness, one of Douglas’ supporters, changed sides. This defection was fleeting, however, and on the question of whether to admit Samuel Urquhart, a new voter who would have supported Moodie, the pattern reverted, Urquhart being rejected by nine votes to five. The roll was then read out: it comprised 17 names, which included two absentees. The process of formal ratification ensued. Objections were lodged against every voter present, but none was actually denied a vote. It was already clear that Douglas would defeat Moodie, and so there was no need for the praeses to force the exclusion of hostile voters at this stage. Moodie’s supporters, on the other hand, could not hope to remove any of the barons who intended to vote for Douglas, but sought rather to establish the grounds for their subsequent disqualification by Parliament. The counter-objections lodged against Moodie’s voters were all made by Robert Douglas, and should be regarded as precautionary measures against possible losses on petition.9

The principal tactic employed by Moodie’s supporters was to utilize the provisions of the Scottish Elections Act of 1713 in order to tender an unwelcome oath to several of Douglas’ voters. This Act had been designed to curb the practice, possible under Scottish law, of multiplying votes by fictitious freeholds. No such transactions had been made by Morton for this election, and all voters on that side (including his brothers) possessed genuine superiorities. Unfortunately, some of Douglas’ voters were so impoverished as to retain nothing except a technical right of possession, having conveyed much of their estates to creditors. Harry Graham of Breckness, who produced a charter of 1670 for lands above £400 valued rent, was accused of having lost actual ownership. That he only paid a small contribution of cess was adduced as supporting evidence, and the praeses was asked to proffer the oath from the 1713 Act. Graham refused to swear, plausibly maintaining that the intention of the Act was to verify the rights of new, rather than established, voters. The same tactic was employed against another Douglas voter, Robert Stewart of Newark, who admitted his state of indebtedness but claimed that he retained the superiority and thus his vote, adding that ‘albeit he could freely take the oath . . . the law does not oblige him to it being chiefly designed to prevent fraudulent conveyances to trust to multiply votes’. A third voter was similarly assailed. James Stewart of Graemsay duly produced his rights, but was accused of having ‘denuded himself’. He also refused the oath. The Moodie supporter who registered this objection gleefully proclaimed that ‘whatever detours, flourishes or turns are used in this last reply it’s merely to waive the main point in debate and if possible to take away the force of the laws’. The Morton camp had not been prepared for this frontal assault, and if Parliament were to uphold such objections Douglas’ majority would be rendered precarious. Legal advice subsequently taken by Morton and Douglas confirmed that there would have been no danger in any of the above voters swearing the oath:

As to Breckness, Graemsay, and Newark, they ought and might all lawfully [have] taken the oath which does no wise reach them, seeing all of them might [have] justly sworn that their estate was not conveyed to them upon trust for the behoof of any other person (for it does not oblige them to say or swear that they have not conveyed it themselves to any person, and even though that be true, they are not denuded of the superiority seeing none of their creditors or purchasers stand publicly infeft so that the vote remains full in their persons as superiors) and I’m sure they could all [have] deponed the other part of the oath that they had never given any back-bond for redisponing, so it is not to be understood why they did not take the oath except they have intended to compliment the colonel [George Douglas] with their vote and at the same time the captain [James Moodie snr.] with making it void.

Whatever the reason for refusal, the rot stopped here. When a fourth voter, George Baikie of Tankerness, was asked to swear, he accepted the challenge, and immediately after the conclusion of this objection Robert Douglas countered with one of his own against Baikie’s son, Robert, a supporter of Moodie. Father and son were at loggerheads over the ownership of the estates of Tankerness and Greenloft. George Baikie had claimed that he

possessed the same for many years past and albeit Alexander Bothwall . . . my confidant did clandestinely elicit from me a disposition of the said lands bearing the same to have been granted for payment of a certain great sum of money yet . . . he never paid me one sixpence therefor, the said Alexander Bothwall . . . did without my knowledge and consent transfer his right in favours of Robert Baikie of Tankerness my eldest son and has assigned to him the precept of sasine therein contained upon which my son, the said Robert Baikie, is privately infeft.

The underhand manner in which Robert Baikie had acquired the estate not only led to his father charging him with ‘spulzie and ryot’ (theft and assault), but also gave grounds for Robert Douglas to contest his vote because he had never produced ‘his rights before any baron court and refuses to produce them now, and was by connivance illegally insert[ed] in the baron rolls’. This substantial objection was met by a rather weak attack upon another Douglas voter, which in turn was countered by the incisive protest against Moodie jnr. Indeed, the objections against Robert Baikie and the younger Moodie should be regarded as central to the Douglas case because they were double-edged: there could only be one vote, at most, for the estates of Tankerness and Melsetter.10

None of the remaining objections by Moodie’s supporters was particularly well founded. Each turned upon technicalities concerning superiorities, and Morton’s legal advisers were confident that these votes could be proved valid. The extent to which the opposition was scraping the barrel was evident in an objection against Douglas of Egilsay, notwithstanding his former parliamentary service and the fact that his entitlement had been expressly validated by proceedings in the Scottish parliament. Making allowance for the probable disqualification of the three Douglas voters who had refused the qualificatory oath, Morton’s lawyers later asserted that the remaining six votes were sustainable. Conversely, they doubted if Moodie could prove more than two good votes, those of William Ballenden of Stenness and Patrick Graham of Graemeshall. The entitlement of John Stewart of Burgh, for example, was dubious because the estate had descended to him as a younger son. His elder brother’s sons, all absent abroad, were believed to be dead, but this fact had not been established beyond doubt. It was intended therefore to procure affidavits of their existence (‘which being true anybody may swear’) and if possible to include in these declarations ‘that the elder brother’s sons were alive within these few years’. Such uncertainty would hopefully invalidate Stewart’s vote because it was a legal requirement ‘that the presumption’s for life unless death be alleged, which will not be so easily proven’. The ratification process at the electoral court concluded after Moodie jnr. had registered formal protests against Robert and George Douglas, arguing that the Earl of Morton was not empowered to make grants of land which carried with them an entitlement to vote. The roll having been fully considered, the praeses called for the main vote, and George Douglas was returned by nine votes to five. The pattern of voting was identical to the opening exchanges.11

The Earl of Morton relayed the good news to his brother:

Within a few days after the writs . . . came to Orkney, I returned from Shetland, and find [sic] several of the gentlemen, as both Captain Moodies, Tankerness y[ounge]r, Burgh, and young Graemeshall, who by themselves and others of their faction were opposing . . . me and my interest to the utmost of their power. However (not without great trouble) you are the Member chosen by the plurality of the freeholders . . . you will stand your ground against these gentlemen . . . and make all the friends both mine and yours to assist you, and I shall be at the expense for they resolve to make it a controverted election and to defeat the same in Parliament and to that end have contributed amongst them some money . . . I am persuaded you will be five to one against any Moodie that will set up against our family.

This letter did not arrive in London for over a fortnight. In early November Douglas had reported from London with some alarm that ‘Captain Moodie’s friends have got the man that prints the list of Members to put in Mr Moodie as the Member elected, and truly we cannot contradict it having no information of the matter’. On 17 Nov. he gratefully acknowledged receipt of his brother’s letter,

in which I find your lordship had great trouble by those two unworthy Moodies . . . and that you will be at the law charge. I shall not deserve the honour of being one of your family if I left a stone unturned in defending that election . . . It is proper you write to Earl Findlater to give his assistance . . . and it would also be proper you wrote to the [Lord] Treasurer [Lord Oxford] to cause his friends in the House of Commons [to] give his assistance . . . I shall take the advice of the best lawyers in this place.

Douglas further reported in December that Moodie snr. had called to see him: ‘I made him dine with me on purpose to pump what he designed to do in the election, but he was very reserved.’ In Edinburgh Morton’s agents were busily preparing memorials and searching the public records for relevant evidence. Moodie petitioned, complaining of ‘undue practices’ at the election. The petition was referred to the elections committee, but was never reported.12

Hostility to the Morton interest continued unabated. Douglas informed the Earl in March 1714 that the

five silly little vassals . . . have entered into an association together in writing to do me all the injury that possibly they can, but I hope justice and law will soon bring them to a sense of their malicious unjust intentions. I would have you inform yourself what is the penalty on any younger son who pretends to vote, who is not infeft nor has no right to vote for I resolve to prosecute that old rogue Moodie for scandalum magnatum before my lord chief justice or whichever court it is proper to come before for the scandalous false and injust and lying reports he spreads about upon me.

Douglas had recently travelled to Orkney to meet the disaffected lairds:

I’ll justify it to the whole world that I have not wronged any man in the country of one brass farthing, but on the contrary have had these very men eating and drinking with me every day in the week and when they were eating my meat and drinking my wine they had concerted amongst them to bring on discourses and propose questions to try how far they could trap me . . . but I thank God I was upon my guard . . . they were such villains when they went home they took minutes of every thing that was said particularly [Robert Baikie of] Tankerness . . . [Andrew Young] of Castleyards and Brough [?John Stewart of Burgh] . . . all this was concerted by them and their association signed by them at Edinburgh before I came to Orkney to do me and my family all the harm and mischief they could; they pretended that all their grievances were against my brother, Mr Robert, but they can say as little against him as they can against me . . . They have certainly some hellish contrivance that I have not found out yet for they are pleased to say in their cups that old Moodie had promised them that I should have my estate taken from me before it was long and that they would give all their concurrence and assistance to it.

Douglas’ fears that Moodie snr. ‘was resolved to come back for Orkney’ proved groundless, but his nephew mounted a successful challenge to the Morton interest in 1715.13

Victory came partly by default. Douglas had no need to stand, being guaranteed a seat elsewhere, and Morton himself was in poor health. The preliminary blow against the Morton interest was struck in November 1714 at the Martinmas head court. Moodie jnr. lodged a protest against the stewart-depute’s authority over those holding bishopric lands, accusing him of exercising a ‘very arbitrary jurisdiction’ and being ‘guilty of oppression’. He thereafter challenged the validity of the existing roll of freeholders and orchestrated the drawing up of a new one, from which all of Morton’s supporters were expunged, and to which were added a number of formerly unqualified barons. The response was ineffective. Ewing sent advice to the stewart-depute on how to manage the election, and Robert Douglas proposed William Steuart* (a native of Orkney and client of the Duke of Argyll) as a compromise candidate. Steuart was also the nephew of Andrew Young of Castleyards, a former provost of Kirkwall and a leading opponent of Morton. This candidacy, it was hoped, would ‘reconcile all parties’ because Steaurt was ‘a person interested in none of your private differences and one born and bred amongst themselves who is capable to serve the country’. If this offer were to be rejected, however, Morton’s supporters should ‘make it a controverted election’. One suggested objection was that the recasting of the barons’ roll was performed at a Martinmas rather than a Michaelmas head court. Despite this advice, and because Robert Douglas failed to attend in person, Moodie jnr. dominated proceedings at the electoral court and overawed the stewart-depute into endorsing his return. Belatedly a petition was prepared, based on an objection lodged by Harry Graham of Breckness. By the time this arrived in proper form, however, the time limit for the presentation of electoral petitions had long since passed.14