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.
Captain Henry Bruce v. Mr William Dalrymple of Glenmuir, and Alexander Inglis
Date: 17 February 1710 Case No. No 5.
A Member of Parliament allowed to claim his privilege to stop process against him, although he sisted himself invinitio litis, and proponed peremptory defences without founding on the privilege.
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In the action at the instance of Captain Bruce against Mr William Dalrymple and Alexander Inglis, mentioned December 23. 1709, voce Part and Pertinent, the Lords allowed Mr William to claim his privilege of a Member of Parliament, to stop process, albeit he had sisted himself in initio litis, and proponed defences in causa without founding on his privilege, which the pursuer contended was a tacit renunciation of the privilege, since primus actus judicii, est judicis approbatorius. For the Lords seemed to be of opinion, That this was not of the nature of an ordinary declinature, or like the privilege of exemption from answering before inferior courts, that is competent to members of the College of Justice, that may be renounced expressly or tacitly.
