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.
Lieutenant-Colonel Ferrier v. Robert Graham
Date: 7 March 1781 Case No. No 26.
Discrepancy in the desriptive and valent clauses of a retour.
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Colonel Ferrier claimed to be added to the roll of freeholders in the county of Ayr; and, for instructing the old extent of his lands, produced the retour of Sir William Cunningham of Cunningham-head, as heir to his father Sir William Cunningham, dated 12th May 1641.
This retour bore, that the deceased Sir William Cunningham died vest, and seized ‘in tota et integra tenendria de Woodheid, comprehenden, in se particulares terras, annuum reditum, aliaque respective subscripta, viz. totas et integras quatuor mercat. terrarum de Middleton, quatuor mercat. sex solidat. et acto denariat. de Caprinstane, (the lands claimed on) viginti solidat. et octo denariat. de Dreghorn, viginti duas solidatas de Warrie, sex solidat. et octo denariat. de Drumgreislaw, et unam mercatam terrae de Woodheid, cum pertinent. unum annuum reditum tertiae partis unius librae piperis annuatim levand. de terris de Bartonholm, quatuor mercatis terrarum de Warrichill, omnes antiqui extentus jacent. infra balliatum de Cunninghame, et comitat. de Ayr.’ The valent clause was in these words:
“Et quod tota et integra dicta tenendria de Woodheid, comprehenden. in se particulares villas terras, annuum reditum, aliaque. respective supra scripta, viz. quod dictae quatuor mercat. terrarum Middleton, quatuor mercat. sex solidat. et octo denariat. terrarum de Caprinstane, viginti solidat. terrarum de Dreghorn, viginti duae solidat. terrarum de Warric, sex solidat. et octo denariat. terrarum de Drumgreislaw, una mercat. terrarum de Woodhead, cum pertinent. et praedict. quatuor mercat. terrarum de Warrichill, nunc valent per annum sexaginta sex libris duodecim solidis monetae praedictae, et valuerunt tempore pacis undecim libris et duobus solidis monetae praedictae, et quod dictus annuus reditus dictae tertiae partis unius librae piperis nunc valet per annum tertiam partem unius librae piperis, et tantum valuit tempore pacis.”
To this retour it was objected by Mr Graham, That the descriptive values exceed those in the valent by seven merks and eight pence.
Answered for Colonel Ferrier, It is evident, from the repetition of the values of each particular tenement in the valent clause, corresponding precisely with the descriptions, that the variation pointed out by the objector has originated solely from a blunder in summing up the extents of the different tenements.
The Lords repilled the objection.
Act. J. Boswell.Alt. G. Ferguson.
Fol. Dic. v. 3. p. 403. Fac. Col. No 48. p. 86.
