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.
Freeholders of Perthshire v. M'Ara
Date: 24 June 1747 Case No. No 16.
The objection sustained, that the old extent was retoured to the same sum with the feu-duty, though there was a retour of the old extent separate from the reddendo.
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In the case of the Freeholders of Dumfries-shire against Irving of Wysby, the Lords sustained the objection to a retour, that it was of feu-lands, and the old and new extent and the feu-duty retoured to be all the same; in respect of the clause in the act of Parliament 1681, which requires the old extent in retours of feu-lands to be distinct from the feu-duty; and gave the like judgment in June 1746, Freeholders of Linlithgowshire against Cleland of Kincavel, No. 15. p. 8574. The like question now again occurred, Freeholders of Perthshire against M'Ara of Drummie, and the like judgment was given.
The Lords understood this clause in the act as a declaration of the Legislature, that where the old extent in the retour and the feu-duty was the same, the old extent was no other than a random answer by the Jury to that head of the brieve, as often the answer to that head of the brieve appears to be by retouring the feu-duty, tax-ward, or blench-duty, as the old extent.
This clause in the act of Parliament has ever been thought dark; but the meaning of it was by some of the Lords thought to be, not that the feu-duty and the retour-duty should be different sums, as there was nothing to hinder the feu-duty and old retour-duty to coincide in the sum, but this, that, beside the reddendo of the feu-duty, there should be a separate retour of the old extent, and that, wherever there was such separate retour, it was a good retour, notwithstanding the feu-daty and retour-duty were the same.
But the Court was, as has been said, of a different opinion. Withal, as the judgments in the two former cases had settled this point in the shires of Dumfries and Linlithgow, it would have been strange to have the law different in the shire of Perth.
Fol. Dic. v. 3. p. 405. Kilkerran, (Retour.) No. 2. p. 497.*** D. Falconer reports this case.
Robert Macara of Drimmie, standing on the roll of freeholders for the shire of Perth, and an objection being made to his title, he, to support it, appealed to a retour in the records of Chancery, 30th May 1667, of the fourth part of the lands of Drimmie, bearing them to be of value per annum summam quinquaginta trium solidorum et octo denariorum, monetæ Scotiæ, et tempore pacis tantum; and to be held feu, pro solutione quinquaginta trium solidorum et octo denariorum, monetæ Scotiæ, cum parte martis et divoriis debit. et consuet. una cum duobus solidis, monetæ antedict. in novam augmentationem rentalis dict. terrarum; and alleged that the value was distinct from the feu-duty.
Answered, That in lands holding feu of the King, the feu-duty is the extent, Craig, 1. 2. D. 17. § 8. and the inquest in this case were in the wrong, in omitting out of their retour the augmentation, and the part of the mart; nor can prescription support it, so as to make the estate of less value, when the feu-duty is still paid; and the law determines these to be the same, unus et verus canon est qui convenerat, et is extentus neque incrementum neque decrementum admittit, itaque pro eodem retornatur.
The Lords sustained the objection.
Act. Scrimgeour.Alt. D. Græme
D. Falconer, v. 1. No. 191. p. 256.
