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.
Sir Michael Stewart v. Hugh Crawford
Date: 22 February 1745 Case No. No 13.
No other evidence but retours can be received of the extent of lands.
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Hugh Crawford, writer in Edinburgh, standing on the roll of electors for the shire of Renfrew, an objection was made to his title, which the Lord Ordinary, before whom the complaint came, on advice with the Lords, sustained, on which he gave in a reclaiming petition, giving this account of the titles whereon he claimed to vote.
He is infeft in the fifty shilling land of Brown's Calderhaugh, the extent whereof appears by a charter of Queen Mary, 6th September 1559, as per register of charters, book 21. numb. 474, to John Brown of Coultermains.
Richard Brown of Coultermains was served heir in these lands to John, 21st June 1712; and, though his retour is lost, there remains an authentic document of it in the responde books in Chancery, book 3. where it is entered, as all other retours are, and bears the lands to be a fifty shilling land, which is supported by the tax roll of the shire, dated 20th January 1613, lying amongst the records in the Laigh Parliament House.
Further, Alexander Glen of Bar was, 23d January 1610, served heir to his brother in the two and a half merk land of Auchincreuch, and fifty shilling land of Calderhaugh, ten shilling land of Langlee, ten shilling land of Cruicks and Johnshill, and ten shilling land of Knockbarmock, which is precisely the same description with the charter founded on, the glens holding feu of Brown of Coultermains; and this retour is recorded in Chancery, book 4. fol. 324; and in the descriptive clause, values all these lands at L.4:3:4d. which agrees exactly with the other documents; but the valent retours them to be worth L.22:16:8d. and 85 stone of cheese, viz. the feu-duty paid to Coultermains.
The petitioner alleged, That the meaning of the clause in the statute, enacting, That no person should be entitled to be enrolled on the old extent of his lands, unless such extent were proved by a retour prior to 16th September 1681, was, that no division since of the old extent should be sustained, and that no retour since should be held as sufficient evidence of the old extent. He pleaded, That retours were the lowest kind of evidence allowed by the act, but that better kind of evidence was not excluded; and frequently better evidence might be got than retours, as in this case.
Answered, That the statute precisely confined the evidence to retours. The Lords adhered.
Act. A. Macdowal.Alt. H. Home.Reporter, Lord Arniston.Clerk, Forbes.
Fol. Dic. v. 3. p. 402. D. Falconer, v. 1. p. 84.
