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. II.
Can Retours be divided? - Retours of Church Lands. - Of Heritable Offices. - Objections to Retours.
Freeholders of Lanark v. Hamilton of Westburn
Date: 6 February 1745 Case No. No 30.
Lands that were common to two heritors retoured to above L.4, being divided by voluntary contract, do not entitle either.
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Hamilton of Westburn claimed a vote in the election of a member of Parliament, in virtue of his being proprietor of the just and equal half of lands retoured to be a twenty-merk land, and produced a voluntary contract, anno 1671, by which the lands, before common, were divided between him and his neighbour.
Objected, That a possession of lands pro indiviso, and so extended, could not give a title to a vote; and the voluntary division could not mend the matter, since there being no legal division of the extent, it did not appear what was the proportion of it allotted to either.
Answered, The contract mentions the particular extent of the several farms, making up ten merks to each of their proportions.
The Lord Ordinary, 7th January, on advice with the Lords, sustained the objection; and this day the Lords refused a reclaiming bill, and adhered.
