Scottish Court of Session Decisions

Subject_1 MEMBER of PARLIAMENT.

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.

Freeholders of Linlithgowshire
v.
Cleland of Kincavel

Date: 14 June 1746
Case No. No 15.

Temporal lands, where of the old extent is not distinct from the feu-duty, do not entitle to vote.

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Robert Cleland of Wester-Kincavel stood on the roll of freeholders for the county of Linlithgow, in virtue of his said lands, which were retoured thus:

“Et quod præfatæ terræ nunc valent, per annum, summam septem librarum sex solidorum et octo denariorum, monetæ hujus regni Scotiæ, et tempore pacis tantum valuerunt; et quod eædem terræ de S. D. N. Rege et suis successori-bus in feudifirma et hereditate in perpetuum tenentur, pro annua solutione septem librarum monetæ prædict. apud festa Pentecostes, et Sancti Martini in hyeme particulariter, idque tanquam proportionalis partis summæ viginti sex librarum, quæ est feudifirma pro integris terris de Kinkavell persoluta, secundum antiqua et originaria dict. terrarum infeofamenta, nomine feudifirmæ tantum, una cum summa sex solidorum et octo denariorum, in augmentatione pro prædictis septem bovatis terrarum, plus quam unquam eadem pars et portio an-tea persolverit.”

Objected to his title, That the old extent was not distinct from the feu-duty; and, therefore, he could not claim a vote on the extent.

Answered, That the former duty and extent were different, and it was only by the augmentation of the rental that the feu and retoured duties became the same; so that it appeared the Jury had not filled up the valent clause with the reddendo.

Replied, That the augmentation could not be made by the retour, but by some prior, and, probably, long prior deed; so that the augmented duty was the reddendo at the time of taking the inquisition, which the Jury, according to custom, had made the valent; and there arose a presumption from the real value of the lands in proportion with that of others, that this was not the old extent.

The cause being reported, it was further urged for the defender, That, by the late statute, all votes on the extent being cut off, unless it were proved by a retour; therefore, when the extent was so proved, the title behoved to be sustained: Neither did this act refer to the former 1681, by which the old extent behoved to be distinct from the feu-duty. And, besides, the meaning of this rule was mistaken; for, it was not that the sums necessarily behoved to be different, but that the lands behoved really to have been so extended, and not the feu-duty filled up in the place of the extent, of which there was no evidence here, nor was the thing to be presumed.

For the complainers, That the late statute did not make a retour probative, which was not so before; and granting the defender to have put a right interpretation on the expression of the extent and feu-duty's being distinct, yet, when the sums were the same, it was to be presumed that the one was put for the other: And it was of no consequence in the argument, that this was the same in effect with excluding all titles where the sums were alike, now that the evidence was confined to a retour; for, by the act 1681, other evidence might have been brought of the lands being extended.

The Lords, 4th June 1745, repelled the objection.

Pleaded further in a bill for the complainers, That, even by the late act, there might still be a mean of proof competent, if the lands were really extended, for that there were other retours than those of heirs.

On answers, the Lords, 4th June 1746, sustained the objection.

Pleaded in a bill for Kincavel, That the act 16th George II. was not only intended to carry into effect the statute 1681, but also to explain and amend it, as appeared from the title; and this act having expressed in the preamble, ‘That great difficulties had occurred in making up the rolls of electors by persons claiming to be inrolled, in respect of the old extent of their land, where the old extent did not appear from proper evidence;’ went on to enact, without any reference to the act 1681, that the old extent should be proved by a retour, and so took away all objections from the retoured duties and extent being the same. There was another instance of an alteration from the old statute made by this; for, whereas formerly, when the extent of lands did not appear, the heritor was entitled to claim a vote, if he had L. 400 of valued rent; from which it was doubted if he could vote upon his valuation, when the extent appeared and did not amount to 40s. this was amended, and the valuation in all cases made a sufficient qualification.

The defender's retour would, according to the act 1681, have sufficiently instructed his extent, as it was retoured distinct from the feu-duty; the ordinary stile of those which the act intended to exclude being, Et quod præfatæ terræ nunc valent per annum feudifirmas et devorias subterscript. et tempore pacis tantum valuerunt.

The Lords refused the petition, and adhered.

Reporter, Balmerino. Act. H. Home, Ferguson, & Ramsay. Alt. Graham sen. Lockhart, & Philp. Clerk, Murray. Fol. Dic. v. 3. p. 405. D. Falconer, v. 1. No 115. p. 138.