Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.

Sir Laurence Dundas
v.
The Heritors of Orkney

Date: 24 January 1777

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In the question betwixt Sir Laurence Dundas and the Heritors of Orkney, 10th August 1776,—Sir Laurence, inter alia, contended, that, in virtue of the grants of Orkney and Zetland, by the Crown, to the Earls of Morton, and Acts of Parliament confirming the same, and of the after conveyance of these by the late Earl of Morton in his favours,—he had right to enter the vassals of Orkney and Zetland, not only who held of himself, but who held of the Crown. The effect of the grant, as to this, was denied: It was said, no such thing was in the grant, and further, that no such thing could be in the grant, as being unconstitutional. By the law of Scotland, the heirs of the king's vassals fall to be entered upon brieves issuing from and retoured to Chancery, and precept following thereon; and no charter of resignation, confirmation, or adjudication of lands, holding of the Crown, can be given by any other way than under the great seal, and by the advice of the barons of Exchequer, who are constituted commissioners of the Crown for that purpose. And, for this very purpose, power was given to the Exchequer, by the Act constituting the same, immediately after the Union. If the Crown can give such power to Sir Laurence Dundas in the islands of Orkney and Zetland, why may not similar grants be made in every county in Scotland? This would be, not only to repeal the Act of Parliament, but to lodge unconstitutional powers in very dangerous hands, the hands of an individual, whose view might be to manage the elections of the freeholders, by the weight thereby thrown into his arms.

Besides, the whole procedure would be anomalous: a charter under the great seal, of lands holding of the Crown, with a sasine following thereon, has known as established consequences. But a charter to a crown vassal, granted by Sir Laurence Dundas, as king's commissioner, and authenticated by his seal, is very anomalous, and nowhere recognised in our law books. In such a case it would be necessary to know where his exchequer, chancery, and seal office were to be kept, and what compulsitors were to be used, in case that he and his officers refused a charter altogether.

All this was redargued. By the very Act constituting the exchequer, the king reserves power to grant charters by a sign manual, and does so daily; What then is to hinder him to appoint another to do it for him: The bailies, in every burgh-royal, are commissioners for the king to grant feudal investitures in that burgh. The Prince, as Steward of Scotland, has his own commissioners. The Act 1601, c. 53, makes mention of bailiaries, or deputations for entering vassals in church lands. Why then should the king be limited to the barons of Exchequer? and why may he not appoint Sir Laurence Dundas to enter his vassals in Orkney and Zetland?

The election laws have nothing to do with this matter; they do not require a charter under the great seal to give a qualification. They only require that the lands shall be of a certain extent or valuation, and hold of the Crown; so that a charter granted any person, properly authorised by the Crown, will have this effect.

Upon advising a reclaiming petition, with answers, the Lords adhered.