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. II.

Can Retours be divided? - Retours of Church Lands. - Of Heritable Offices. - Objections to Retours.

Mr David Dalrymple Advocate, Captain Forbes of New, Robert Simpson of Thornton,
v.
Sir James Reid of Bara

Date: 4 March 1755
Case No. No 33.

Lands mortified with a reddendo of preces et lachrymæ, and afterwards sold, found to give a title to vote.

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By charter, in the 1574, James VI. granted to the College of Aberdeen certain lands and superiorities, particularly, the chaplainries of Westhall and Falayrule, &c. declaring, ‘Quod omnia dicta beneficia in totum remanebunt, tanquam unita et annexata incorpora et mortificata, ut proprius reditus dicto nostro collegio pro perpetuo in futurum: Tenenda pro perpetuo mortificat, in futurum, cum potestate ipsis per seipsos, dictis beneficiis terris annuis reditibus, eorundem utendi, occupandi, intromittendi, et desuper disponendi; et dicta beneficia et capillanias in feudi-firmam, seu assedationem locandi, &c. Reddendo nobis, &c. servitium communium supplicationum et orationum, &c.’

The pursuers having purchased these subjects from the College, claimed thereon to be enrolled in the roll of freeholders in the county of Aberdeen; but their claim was rejected. They complained to the Court of Session; and the defenders maintained the following objections, viz. 1mo, That the subjects in question appeared, from the complainers' charters, to be mortified lands; and that, by the common law, mortifications are unlienable; the College of Aberdeen had only a power of administration, not of alienation Craig, lib, 1. d. 15. § 7. says, ‘Inter prædia ecclesiastica numerantur, et oblegia religiosa, et rite instituta, quorum res, sine consensu regis, alienari, et in feudum dari, non possunt.’ In this case, the words of the charter are explicit; and the grant of special powers of intrommitting with rents, granting feus, &c. would have been superfluous, had an unlimited property been intended.

2do, The lands hold neither blench, ward, nor feu; and therefore, though they were in commercio, they could not give the right of voting for a Member of Parliament.

Of old, only temporal lands belonging to barons appear, by our law, to have given a right to sit in Parliament; church-lands, lands mortified for pious uses, burgage-lands, gave no such privilege. After the freeholders were allowed to send commissioners to represent them in Parliament, the act 1587, James VI. Parl. 11. cap. 114, appointed these commissioners should be chosen by none but such as had a forty-shilling land, in free tenandry, holding of the King. This would appear to exclude church-lands, and much more lands mortified to pious uses. The act 1681, which introduces valuation in place of extent, makes no variation in respect of tenure; on the contrary, it limits the right of election to those infeft ‘in kirk-lands now holden of the Crown, or other lands holding feu, ward, or blench,’ of his Majesty. Further, till 1712, mortified lands were always excepted from the supply-acts; and, by consequence, were not liable in public burdens; hence it is evident, That, to make mortified lands a title of enrolment, were, in every sense, contrary as well to the words as to the true intent and meaning of the act 1681.

Answered for David Dalrymple and the other complainers, to the first objection; That though the lands in question were mortified lands, yet they were the property of the College; and as there is no law or statute to the contrary, the College must have that power of alienation which is inherent in property. In the next place, Supposing dilapidation could be charged against the principal and masters of the College, which was not pretended to be the case here, yet that was jus tertii to the defenders; and an action of reduction upon that head could only be competent to succeeding principals and masters. Had the complainers' titles been lands purchased from an heir of tailzie, or from a minor, these circumstances might afford reasons of reduction to their proper parlies, but could never be the foundation of any objection to the qualification for having a vote.

To the second objection on the act 1681; That, according to the proper construction of the words of the clause, ‘Whether kirk-lands now holden of the King, or other lands holding feu, ward, or blench, of his Majesty,’ the words ‘ward, feu, or blench,’ do not apply to kirk-lands, they only apply to ‘other lands holding of his Majesty;’ and therefore they could not be intended to apply to lands mortified to pious uses; because mortified lands are in the same class with kirk-lands, whereof the usual reddendo was prayers and tears.

But supposing there was doubt upon the construction ef the act 1681, how far lands, held by mortification tenure, could entitle to vote, yet that doubt is entirely removed by the act 10th Geo II. which, without distinction of the nature of tenure, provides, That lands holden of the King or prince, liable in public burdens for L. 400, shall in all cases be a sufficient qualification.

“The Lords found, that the complainers, in virtue of their titles produced, are sufficiently entitled to be inrolled in the roll of freeholders for the shire of Aberdeen; therefore ordained all of them to be added to the said roll.”

Alt. George Brown. Alt. Burnet et J. Gordon. Clerk, Kirkpatrick. Fol. Dic. v. 3. p. 405. Fac. Col. No. 146. p. 217.