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 III.

The Qualification of Freeholders possessing Lands liable in Public Burden for L. 400 Scots.
Subject_3 SECT. II.

What evidence must the Freeholders receive of the Valuation.

The Honourable Henry Erskine
v.
The Honourable John Hope

Date: 25 February 1790
Case No. No 46.

Proof of the valued rent, by long use of paying the land-tax, where no decree of division appears, sustained.

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In the original valuation of the county of Linlithgow in the year 1667, as well as in the subsequent one in 1687, the whole lands of Little Blackburn were rated at L. 366:13. But after this, for much more than forty years, that parcel of those lands, called “Napier's part of Little Blackburn,” was separately entered in the books kept by the Collector of the Land-Tax, being rated at L. 210:11:4; and the tenants of the lands paid a corresponding share of the public burdens.

It also appeared, that, in the county of Linlithgow, till a very late period, the more formal method of dividing a cumulo valuation by a decree of the Commissioners of Supply, proceeding on a proof of the real rent, and engrossed in their minutes, had seldom or never been thought of. The whole minutes of the Commissioners, from the year 1687, were extant; but no traces could be found of a regular division of the valued rent of the lands of Little Blackburn.

Mr Erskine having acquired the superiority of Napier's part of Little Blackburn, produced to the freeholders of the county, at the Michaelmas meeting in 1789, a certificate from two Commissioners and the Clerk of Supply, bearing, that these lands were rated at L. 210: 11: 4.

Mr Hope, a freeholder in the county, objected to this evidence; and

Pleaded, Where a proprietor cannot shew that he is entitled to vote, in consequence of the old extent of his lands, he must have recourse to the original valuations, made up in every county by the Commissioners of Supply; or where the lands belonging to him have at first been valued in cumulo along with others, he must ascertain the separate valuation of his property by a regular decreet of division, pronounced by a quorum of the Commissioners, in whom alone is vested the power of proportioning the land-tax among the different Crown-vassals; Bankton, b. 4. tit. 9. § 3.; Wight on Elections, p. 183. 184 197. 200.

In the proceedings, too, before the Commissioners of Supply, the payment of the land-tax, however uniform, cannot be considered as an unerring rule. This may have arisen from some erroneous calculation, from the wish of a particular proprietor to magnify the valued rent of his lands, for political purposes, or from other causes. And although, where the records of the Commissioners of Supply cannot be found, it may have been thought just, to hold the payment of the land-tax as sufficient evidence of the valued rent; because it may, in such a case, be presumed that it was authorised by a decree of division; the same determination here would be quite unjustifiable ; 1768, Hogg of Newliston against The Freeholders of Linlithgowshire, infra, h. t.; 10th March 1774, Ross against Sir Roderick M'Kenzie, infra, h. t.; 1776, Nisbet of Dirleton against Lindsay, See Appendix.

Answered, Neither by the enactment of 1681, nor by any of those which followed, respecting freehold claims, has any particular kind of evidence been required for ascertaining the valued rent of lands giving a right to vote. It is sufficient, that the claimant shall be publicly infeft “in lands liable in public burdens, for his Majesty's supplies, for L. 400 of valued rent.”

While the practice of splitting estates, in order to create freehold qualifications, was unknown, very little attention was paid to this circumstance. Even when the Commissioners of Supply proceeded in a formal manner, to distinguish the separate values of those lands which had been originally included in one cumulo, this was rarely entered in the record. After the division was made, it was thought sufficient, if the Collector of Supply inserted the separate values of each parcel in the books kept by him. And hence, in the county of Linlithgow, as well as in many others, it has often happened, that where there is the strongest reason for believing that a decree of division has been pronounced, no traces of it are to be found in the books kept by the Commissioners of Supply.

For these reasons, a distinction has been justly made between those cases where the land-tax has, till lately, been paid by the vassals of the Crown, under a cumulo valuation, and those in which, from a very remote period, it has been paid separately for different tenements, even although these may appear under one general article in the original books of valuation. In the former, in order to ascertain the valued rent of each tenement, a regular decree of division by the Commissioners of Supply may, with propriety, be required; whereas, in the latter, it being reasonable to presume that a proper division has taken place, the terms of the decree may be ascertained by the uniform payment of the land-tax, this being the standard which, if no objection is stated by those more immediately interested, the Commissioners of Supply, in pronouncing any new decree, would certainly adopt as the rule of their proceedings. A contrary practice, in circumstances similar to the present, would be productive of much unnecessary embarassment. Act 1681, Innes against Sutherland, No 50. p. 8642.; 10th February 1781, Traill of Holland against Haldane, infra, h. t.; Wight on Elections, p. 183.

The freeholders having refused to sustain the evidence here founded on by Mr Erskine, he preferred a complaint to the Court of Session, which was followed with answers, replies and duplies,

“The Lords found, that the freeholders had done wrong, and ordered Mr Erskine to be admitted to the roll.”

Act. Robertson, Cathcart, et alii. Alt. Lord Advocate Williamson, et alii. Clerk, Gordon. Fac. Coll. No 122. p. 236.