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.
Lieutenant James Stewart v. Mr David Dalrymple
Date: 23 July 1761 Case No. No 38.
A retour bearing forty shillings of old-extent of church-lands found not to entitle to a vote. Reversed on appeal.
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A complaint was entered in the Court of Session by Lieutenant James Stewart, against some freeholders of the shire of Wigton, for refusing to put him upon the roll of electors. It was answered, That the evidence produced of the old extent of his lands was a retour dated anno 1625, bearing indeed a valent clause of more than 40 shillings of old extent, but bearing at the same time the lands to be held of the bishop of Galloway; which cannot be good evidence of the old extent, because church-lands were never extended.
It was urged historically for the respondent, That the act 114th, Parl. 1587, appointing the small barons to elect commissioners to Parliament, entitles no freeholders to vote, ‘but who has a forty-shilling land in free tenendry held of the King.’ This clause is necessarily confined to temporal lands; because previous to it church-lands by act 29th, Parl. 1587, had been annexed to the crown; and therefore could not be held of the crown by small barons, or by any barons. Further, it is certain that church-lands were never brought under the old extent, to which the foregoing clause evidently refers; and accordingly, though church-lands were all along subjected to a part of every taxation, yet that part was subdivided upon particular lands, not by the old extent, which did not comprehend them, but by Bagimont's roll and other old rentals of these lands. It is true, that the bulk of the church-lands were afterwards parcelled out to be held of the crown; and it was thought reasonable, that the proprietors of such lands, though they could not have the qualification of a forty-shilling land, yet might be entitled to vote upon an equivalent value. Hence the act 35th, Parl. 1661, ‘That besides all heritors holding a forty-shilling land of the King in capite (meaning heritors of temporal lands) also heritors &c. who held formerly of bishops or abbots, and now of the King, shall be capable to vote, provided their yearly rent amount to ten chalders of victual, or L. 1000.’ From this deduction it evidently appears, not only that the foregoing retour must be erroneous, as far as it bears an old extent of church-lands; but also, that no proprietor of such lands can be entitled to vote, except upon the last mentioned qualification of the act 1661.
To this reasoning nothing could be opposed, but the bare possibility that the lands in question might have been temporal lands in the reign of Alexander III. when the old extent was established, and have afterwards been acquired by the church. But to this the obvious answer was, That it is incumbent upon the complainer to give evidence of his qualification, by proving that the lands in question were temporal lands when the old extent was made, according to the inviolable maxim affirmanti incumbit probatio. The retour plainly is no proof, nor even presumption of this fact. For the valent clause, being found in most retours, and necessary in all retours of temporal lands, came to be thought by ignorant practioners to be essential; and so was commonly added in the retours of church lands, to which it had no relation.
‘The Lords sustained the objection to the retour, and dismissed the complaint.’ (Reversed on appeal.)
Fol. Dic. v. 3. p. 406. Sel. Dec. No 183. p. 248.
*** The matter of this case is included in No 18. p. 8579.
