When the personal attendance of the lesser Barons in Parliament was at first dispensed with by James I., and the privilege of sending Commissioners was substituted in place of that attendance, all the vassals of the Crown, however small their freeholds, were entitled to vote in the election of these Commissioners. This privilege was afterwards, by James VI., limited to those who had a forty-shilling land in free tenantry, and resided within the shire; and was again, by Charles II., extended to those possessed of lands holding of the King, of ten chalders of victual, or L. 1000 Scots of real rent. Afterwards, however, by the statute 1681, which is now, in material points, the rule for determining the qualifications of elections, it was enacted, that none should be allowed to vote but those “who stood publicly infeft and possessed of a forty shilling land of old extent, holden of the King or Prince, distinct from the feu-duties in feu-lands; or where the extent did not appear, stood infeft of lands liable in public burden for his Majesty's supplies for L. 400 of valued rent, whether kirk lands now holden of the King, or other lands holding feu, ward, or blanch, of his Majesty, as King or Prince of Scotland.”
The only exception from the regulations of this statute, is the peculiar constitution of the county of Sutherland, where, by immemorial and continued usage, the right of electing, and being elected, is competent to vassals holding of a subject superior. By statute 16th, Geo. II., such vassals, however, must be possessed of lands paying public burdens to the amount of L. 200 Scots of valued rent. And the same statute contains certain special enactments regarding those anomulous qualifications.
With regard to the manner of keeping the roll of electors - the time of holding the annual Michaelmas head-courts - the form of procedure in those courts - the remedy for those aggrieved by their decisions, by summary complaint to the Court of Session - and the penalty if such complaint is dismised - the statute 16th Geo II. cap. 11. is the rule in all those particulars.
Corruption and perjury in the electors are restrained by penalties contained in act 2d, Geo. II. cap. 24.; and the penalty for the Clerk of Court making a false return, is statuted by act 7th, Geo. II. cap. 16.
Fol. Dic. v. 3. p. 401.
Subject_2 DIVISION I.
Privileges.
Ludovick Grant of that Ilk, v. The Earl of Sutherland
Date: 17 February 1708 Case No. No 2.
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In a process at the instance of the Laird of Grant, against The Earl of Sutherland, the Lords did not sustain the privilege of a member of the British Parliament, which exempts from legal pursuits in the time of Parliament, to hinder circumduction of the term against the Earl of Sutherland, for not reporting a commission which an advocate compearing for his Lordship took a day for; but they superseded extract till the 1st of June.
Fol. Dic. v. 1. p. 572. Forbes, p. 242.*** Fountainhall reports this case.
The Lady Dowager of Down being debtor to the Laird of Grant in a considerable sum of money by bond, and being thereafter married to the Earl of Sutherland, and now deceased, Grant pursues Sutherland for payment of her debt, on these grounds, that he was a vicious intromitter with the Countess's jewels and parapharnalia, to a great value, and was also lucratus by the marriage, over and above what may be reputed a competency ad sustinenda onera matrimonii, and to defray the expense of the marriage and her funerals; and having referred the whole to the Earl's oath, who being at London, a commission was craved by his lawyers to depone here, which was directed to be executed by the Earl of Seafield, Chancellor of North Britain, but being neglected to be reported, the term was circumduced against the Earl for not deponing; whereupon a bill was given in for his Lordship, representing, that he being a member of the Parliament of Great Britain, he was absent reipublicæ causa, and could not be convened in any cause, or obliged to answer during his attendance there. Answered, 1mo, They knew no such privilege competent to the Peers sent up, for they had it not when the Parliament of Scotland used to sit; and at most, it could only extend to new actions raised against them, and not to such as were depending against them before; 2do, His procurator had craved a commission, and did plead no such privilege, et quilibet potest renuntiare favori pro se introducto, and so he cannot retract now. Replied, The advocate had no mandate from him to do it. The Lords would not repone him now after a commission sought, but stopped extracting of the decreet of circumduction till the 10th of June, that my Lord might either depone at home, or on a commission, if he pleased; to have loosed the circumduction, was to make Grant lose his only mean of probation, if my Lord died medio tempore; whereas now, in case of his decease before deponing, the decreet stands firm against him; by which middle temperament, the Lords shunned deciding whether they had the privilege of not being obliged to answer as absentes reipublicæ causa,
