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.
Colonel John Middleton and his Lady, Supplicants
Date: 28 November 1713 Case No. No 7.
The Lords allowed a creditor to raise, use, execute, and register inhibition, without arrestment, and also to execute adjudication, against a cautioner, though a Peer of Parliament; also to raise horning, with out poinding or arrestment; to the effect of preserving the recourse against the cautioner, in terms of act 5th Parl. 1695.
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Upon a bill given in by Colonel Middleton and his Lady, representing that the Viscount of Kilsyth stood bound to them as cautioner in the requisition of an heritable bond for 12,000 merks, granted by the Lairds of Neistoun, older and younger, and that the seven years, within which, by the act 5th Parl. 1695, diligence is to be done against the cautioner, were here expired; and craving, that notwithstanding the Viscount's privilege, as one of the sixteen Scots Peers of Parliament, the Lords would either allow suitable diligence, at the petitioner's instance, to pass against the Viscount, in the terms of the statute aforesaid, or else declare that the seven years mentioned therein is to be computed tempus utile, subducing therefrom the time of the privilege.
The Lords having considered the act of Parliament 1695, anent principal and cautioners, whereby it is provided that cautioners should be bound for no longer than seven years, and that what legal diligence by inhibition, horning, arrestment, or any other way, should be done within the seven years, by creditors against their cautioners, for what fell due in that time, should stand good, and have its course and effect after expiration of the seven years, as if the said act had not been made; they found that the petitioners might raise, use, execute, and registrate inhibition, without arrestment, and raise, use, and execute adjudication, and call the same, reserving to the Viscount of Kilsyth, at calling thereof, to propone against pronouncing act or decreet thereupon; and likewise raise horning without poinding or arrestment, and charge thereupon, ad hunc effectum only, to entitle the petitioners to the benefit of the diligence mentioned in the said act.
