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.
Sir Archibald Stewart, &c v. Andrew Stewart
Date: 16 July 1756 Case No. No 35
A charter of the offices of coroner and Serjeant, retoured prior to the year 1681, at 40 shillings of old extent, does not entitle to a vote for a Member of Parliament.
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At the Michaelmas head court for the shire of Lanark, Andrew Stewart claimed to be enrolled as a freeholder. The title he produced was a charter under the Great Seal, with a sasine thereon, both dated in the year 1753; and the subjects contained in this charter are described in the following words:
“Tota et integra heræditaria officia serjeandriæ et coronatoris, et heræditariam gubernationem earundem, per universum dominium et quondam regalitatem de Kilbryde, jacen. in vicecomitat. de Lanark, cum eorundem officiorum proficuis, secundum antiquum morem et consuetudinem, viz. de unoquoque aratro intra dict, dominium dimidiurn bollæ avenarum; de unoquoque seminante, aratrum non habente, unicam firlotam avenarum; de unaquaque sasiua dimidium mercæ vel superiorem tunicam, seu vestimentum, secundum velle recipientis, ex unoquoque domicilio unicum caseum compositum ex lacte unius diei, cum unico denario ex unoquoque amerciamento curiæ, duos solidos argenti.”
To verify the old extent, two retours were produced dated in the 1649, in which the valent clause is expressed in the following words:
“Et quod diet. officia serjeandi et coronatoris, ac hereditaria gubernatio earundem, per dict. totam regalitatem dict. domirii de Kilbryde, jacen. ut supra, velut in antiqua consuetudine habentur, valent nunc per annum octo libras monetæ prædict. et tempore pacis valuerunt quadraginta saidos ejusd, monetæ.”
Upon this title Andrew Stewart being enrolled, Sir Archibald Stewart and other freeholders presented a complaint to the Court of Session, insisting upon the following objections. 1st, That by the act 1681, it is provided, “That none shall have votes in the election of commissioners for shires, but those who at the time shall be publicly infeft in property or superiority and in possession of a forty-shilling land of old extent; or where the old extent appears not, shall be infeft in lands liable in public burdens for his Majesty's supplies for L. 400 of valued rent;” and thence inferring, that Mr Stewart, infeft in an heritable office only, and not in land, is not entitled to be a freeholder; 2d, That the office, independent of the fees, is a subject not capable of valuation, the extent must be understood to relate to the fees only. And it being instructed, that the fees were dismembered, what remained with Mr Stewart, if any, could not bear an extent of forty shillings.
To the 1st, it was answered, That the King's vassals in general, whether holding lands or offices, were bound to give attendance on Parliament. And, to the 2d, That the office itself was extended. And it was endeavoured also to be made out, that none of the original perquisites were alienated, but only some perquisites gifted afterward to the office by John Cumming Lord of Kilbryde.
The matter of the greatest importance insisted on by the complainers is, that none but those who hold land of the Crown are entitled to elect or be elected members of Parliament. By the act 114th, Parl. 1587, none have right but who have a forty-shilling land holding of the King. By the act 18th, Parl. 1641, the fees to the Members of Parliament are proportioned upon the whole heritors holding of the King or Prince, according to the extent of their land or rents. By the act 35th, Parl. 1661, beside the heritors of a forty-shilling land, heritors who formerly held of bishops, and now of the King, shall be qualified to vote, provided their land rent amount to 10 chalders of victual. Then follows the act 1681 above-mentioned, confining the privilege to those who hold land of the King. And, lastly, By act 11th, Parl. 1690, for an additional representation of the larger shires, it is taken for granted that none but landholders have the privilege.
The Lords found Andrew Stewart not entitled to be enrolled, and ordained his name to be expunged out of the roll.
Fol. Dic. v. 3. p. 406. Sel. Dec. No 110. p. 156.*** This case is reported in Faculty Collection:
1761. January 14.—Andrew Stewart having been enrolled at the Michaelmas head-court in Lanarkshire, upon a charter of the offices of coroner and Serjeant within the lordship and barony of Kilbryde, and retoured prior to the year 1681, at 40 shillings of old extent, Sir Archibald Stewart and other freeholders complained to the Court of Session.
Andrew Stewart produced, in support of his title, a grant, so far back as the year 1397, whereby James Prince of Scotland, as Steward of the Lordship and barony of Kilbryde, granted these offices, in fee and heritage, to William of Lickprevick, armour-bearer to his Highness. The charter was in the following words:
“Sciant præsentes et futuri, nos Jacobum senescallum dominii baroniæ de Kilbryde, dedisse, concessisse, et hac præsenti carta confirmasse, dilecto Armigero nostro Gulielmo de Lickprevick, filio quond. Joannis de Lickprevick, officium serjandi, et hereditariam gubernationem ejusd per totam regalitatem dominii de Kilbryde, velut in antiqua consuetudine habeatur in feodo et hereditate in perpetuum, secundum infeodationem, donationem, et concessionem Dom. Joannis Cumyne quond. Domini de Kilbryde, viz. infeodavit, concessit, et donavit, de omni aratro infra dictum dominium, dimi diam bollam avenarum, de omnibus seminantibus non habentibus aratrum, firlotam avenarum, de omni sasina dimidiam marcam, vel superius vestimentum, secundum velle recipientis, de omni domicilio caseum compositum de lacte unius diei, cum singulo denario; et de omni amerciamento curiæ duos solidos argenti; insuper, et officium coronatoris ejusdem dominii, cum omnibus pertinentiis et articulis sibi juste pertinen. et libertatibus quibusque: Tenend. et Habend. dicta officia serjandi et coronatoris dicto Gulielmo, here dibus suis, et suis assignatis, de nobis, et heredibus, assignatis, et successoribus nostris quibuscunque; cum omnibus commoditatibus, eschetis, libertatibus, et asiamentis, ac justis suis pertinen. quibuscunque, tam non nominatis quam nominat. ad dicta officia serjandi et coronatoris spectan. seu quovis modo spectare valen. in futurum, etiam in quo quidem officium serjandi antecessores dicti Gulielmi de Lickprevick feofati et vestiti decesserunt: Et nos vero, dic tus Jacobus, heredes nostri, assignati, et successores nostri quicunque, dicta officia, ut praemittitur, dicto Gulielmo de Lickprevick, heredibus suis et assignatis, contra omnes mortales warrantazibimus, et quietabimus, et in perpetuum defendabimus.”
Mr Stewart also produced several retours which agreed with each otherOne of them run in these words:
“Quod dicta Elizabetha Lindsay obiit ultimo vestita et sasita in officiis serjandi et coronatoris, et hereditaria gubernatione earundem, per totam regalitatem dominii de Kilbryde, &c.; et quod dicta officia valent nunc per annum octo libras, et valuerunt tempore pacis quadraginta solidos; et quod tenentur per servitium wardæ et relevii.”
From thence Mr Stewart contended, That as these were proper feudal offices, granted in fee and heritage, held by the tenure of ward and relief, and both the old and new extent to the legal amount verified by retours prior to the 1681, as all military tenants holding of the Crown were originally obliged to attendance in Parliament, and as the later statutes made no alteration with respect to the nature of the subjects which should entitle to vote, but only modified their value, he was entitled to be enrolled.
Objected; 1mo, Where offices were given in fee and heritage, the natural obligation upon the vassal was, only to perform faithfully the duties of the office, that is, the service of it; but not to give attendance in Parliament, unless it was either implied in the nature of the office, or provided in the charter. It is absurd to suppose, that the heritable offices of gaoler to a particular prison, of coroner to a petty barony, or of cook to his Majesty, obliged the holders of all these offices to attendance in Parliament.
2do, Heritable offices are not lands, in terms of the act of Parliament 1681, The Court interprets this statute strictly, so as not to comprehend other heritable subjects, such as rights of annualrents or feu-duties, to which the word land applies as properly as it does to heritable offices.
3tio, The act 1681 requires that the voter should be in possession of a 40 shilling-land of old extent; but, as the office has been in desuetude for centuries past, the claimant cannot subsume that he is in possession.
The Lords ordered Mr Stewart to be struck off from the roll.
For Objectors, Advocatus, Macqueen.Alt. Lockhart, Johnston, J. Dalrymple.Clerk, Home.
Fac. Col. No 3. p. 5.
