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. Archibald Campbell of Ellersly
Date: 22 February 1745 Case No. No 14.
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Archibald Campbell of Ellersly, Writer to the Signet, claimed to stand upon the roll of freeholders for the shire of Renfrew, on the title of his said lands, all the old charters whereof bore them to be a five-pound-land; and a retour was produced, in which the descriptive clause also bore them to be a five-pound-land; but, in the valent, they were retoured to be worth one penny.
It was urged, That the retour was of a wadsetter, who held the lands -of the reverser, for a blench-duty, with the casualties discharged; so that the Jury had only considered the burden upon the vassal, and made that the value; but the true extent appeared from the description supported by the charters.
The Lord Ordinary, on advice with the Lords, ‘Found, that the retour founded on did not instruct the old extent of the lands, in terms of the act of Parliament; and the Lords, on bill and answers, adhered.’
Reporter, Lord Arniston.Act. A. Macdowal.Alt. Wallace.
Fol. Dic. v. 3. p. 402. D. Falconer, v. 1. p. 83.
