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.
Ker, and Other Freeholders of Berwickshire v. Redpath and Others
Date: 10 November 1747 Case No. No 17.
Found in conformity with Freeholders of Lanark a against Hamilton, No. 11. p. 8572.
The apparent heir of the eldest of a number of heirs-portioners not entitled to be enrolled as a freeholder.
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Ker of Moriston complained of the proceedings of the freeholders of Berwickshire, met on the 6th instant for the choice of a Member to serve in Parliament; first, Of the last Commissioner, who, in course, did act as Preses in the choice of Preses and Clerk, for that he refused, though required, before he proceeded to call over the roll for the choice of Preses and Clerk, to administer the oaths appointed by law to the whole freeholders present; and concluded, that, on account of that defect, the whole subsequent proceedings of the meeting were void.
This the Lords “Found not to fall under the cognizance of the Court.” He complained that Redpath of Angleraw had been admitted, though his qualification was no other than a retour in 1666, wherein the old extent and the feu-duty are the same.
“This objection was sustained, and Angleraw appointed to be struck off the roll.”
He further complained, that Mr James Primrose was admitted, although his qualification was no other than as apparent heir of his mother, the eldest of three heirs-portioners in a forty-shilling land.
This the Lords “Sustained, and appointed him to be struck off;” notwithstanding it was argued from the Bench, That each heir-portioner is entitled to the subject in solidum, and that only concursu partes faciunt, in so much, that should an heir-portioner serve to her predecessor in the whole subject, her sister, deceasing, she would not need to make up a new title; and that as dignities and superiorities, which are indivisible, go to the eldest heir-portioner, so should the title and qualification to vote, and that the analogy also from the case of adjudgers applied; in respect it was by others answered, That, as to adjudgers, the case is determined by the statute 1681; and as little did the case of dignities and superiorities apply, as those must necessarily be somewhere; whereas, the right of voting may be extinct and nowhere; and so they thought the case to be where a forty-shilling land fell to three heirs-portioners, even though it should be admitted that each might serve in so'idum, which yet was not thought clear to be the proper service of heirs-portioners.
Fol. Dic. v. 3. p. 405. Kilkerran, (Freeholder.) No. 1. p. 225.*** D. Falconer reports this case.
Mr James Primrose, Minister of the Gospel at Crichton, stood upon the roll of freeholders for the shire of Berwick, on the title of the lands of East-Moriston.
Objected, That John Moffat of East-Moriston deceased, leaving three sisters heirs-portioners, and the claimant, the son of the eldest cannot stand upon the roll, having no right to the other two shares, which, together with his own, make up the extent.
Answered, That, as the first adjudger is entitled to the rights of a freeholder, so ought he who is eldest heir-portioner, the lands continuing undivided; especially considering he is infeft base in the property, on a disposition from his uncle, and has it in his power to make his infeftment public; so that he has right really to the whole estate.
The Lords sustained the objection.
Act. Jo. Stuart.Alt. R. Dundas.
D. Falconer, v. 1. No. 207. p. 286.
