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 II.
The Qualification of a Freeholder possessing a Forty Shilling Land of old extent.
Subject_3 SECT. I.
Evidence of the old extent.
Colquhoun of Luss v. The Voters of the Shire of Dumbarton
Date: 5 February 1745 Case No. No 12.
Lands contained in one retour valued in cumulo in the valent clause, but having their separate values expressed in the descriptive, and the total agreeing, entitle the several heritors to vote.
The objection that the principal retour was not produced, but only an extract from Chancery, was repelled.
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Several freeholders of the shire of Dumbarton, claimed votes in the election of a Member of Parliament, on their estates being retoured to forty shilling lands, in a retour of the dukedom of Lennox and barony of Kilmarnock, 25th April 1662.
Objected, That the principal retour did not appear, and there was only a copy of it in the Chancery books.
Answered, This copy in the books of Chancery is what in law is called a retour, and makes evidence in all Courts.
The Lords repelled the objection.
Objected to the heritors of the dukedom, That their lands, which are severally mentioned as of such a value in the descriptive clause, are only in cumulo valued in the valent, which, besides, exceeds the particular values in L1: 10: 8d., and so not agreeing with, cannot be supported by them.
Answered; The difference is so small, as to be obviously only a mistake in the calculation.
The Lords sustained the retour.
Objected to the heritors of the barony, That the several lands mentioned in the descriptive clause, are only valued in cumulo; and though these clauses agree, yet the mill and mill lands of Mewie are mentioned in both clauses without any value in the description, and make part of the cumulo valuation; and if any part of this value is applicable to them, the several lands cannot be of the same value they are described.
Answered, Mills were not extended, and the mill lands, consisting of two acres, probably never were, besides the several lands are repeated in the valent, with their values in the same manner as in the description, and then the total value in cumulo is given in answer to the brieve.
The Lords sustained the retour, and repelled all the objections.
Act. Lockhart.Alt. H. Home & J. Campbell, jun.Reporter, Kilkerran.
Fol. Dic. v. 3. p. 403. D. Falconer, v. 1. p. 61.
