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.
Sir Michael Malcolm of Lochore v. Allan Ramsay of Kinkell
Date: 23 January 1767 Case No. No 21.
Two retours of different parts of the same lands, prior to the 1681, amounting together to 40 shilling, sufficient evidence of an old extent for a freehold qualification.
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Sir Michael Malcolm claimed to be put on the freeholders roll for the county of Kinross, upon the lands of Bins, and for instructing, that the said lands were a forty-shilling land of old extent, he produced a retour in the 1666, where one half of them was retoured as a twenty-shilling land of old extent; and he produced another retour in the 1620, which proved the other half of the same lands to be also twenty-shilling of old extent; and these, joined together, he contended, were sufficient evidence of a forty-shilling land, to entitle him to be enrolled.
It was objected, That it was contrary to the spirit and intention of the law to allow a forty-shilling land to be made up of different parcels: That the evidence of an old extent ought to be contained in one retour; and, upon this objection, the freeholders refused to enroll Sir Michael, who applied to the Court by a summary complaint, in terms of the act of the 16th of the late King.
‘The Lords ordered the complainer to be added to the roll; and found him entitled to expenses.’
For Sir Michael, Al. Wight.For Mr Ramsay, Alex. Lockhart.
Fol. Dic. v. 3. p. 403. Fac. Col. No 55. p. 96.
*** A similar decision had been given, 17th January 1759, Blair against Freeholders of Renfrewshire. See Appendix.
