I < - 4 / A N INQUIRY INTO THE JilSE AND PROGRESS OF PARLIAMENT, CHIEFLY IN SCOTLAND; AND A Completes Y STEM of tiieLaw concerning the Elections of the Representatives from Scot- land TO THE Parliament of Great Britain. TO WHICH IS ADDED AN APPENDIX, CONTAINING SEVERAL CURIOUS PAPERS AND INSTRUMENTS, AND FULL COPIES OF THE ELECTION STATUTES. By A L E X A N D E R WIGHT, Esquire, Advocate, S. S. A. Scot. EDINBURGH: Printkdfor WILLIAM CREECH; AND SOLD BY T. C A D E L L, IN THE Strand, Londok, M,DCC,I.XXXIV. TO THE MOST NOBLE iij t^ WILLIAM HENRY CAVENDISH E, .J < CO cn 4 DUKE OF PORTLAND, &c. &c. THE FOLLOWING SHEETS ARE, WITH THE GREATEST RESPECT, INSCRIBED, BY HIS GRACE'S MUCH OBLIGED, AND MOST OBEDIENT SERVANT, ALEXANDER WIGHT. ;i£B3G05 ADVERTISEMENT. SO M E years ago the Author puhliflied, in Oclavo, a " Trcatife "on the Laws concerning the Elcdion of tlie different Rcpre- " fentatives fcnt from Scotland to the Parliament of Great Britain, " with a Preliminary View of the Conftitution of the Parliaments " of England and Scotland before the Union of the two kingdoms." Since that time, many new cafes have occurred, which have -been the fubjea: of decifion in the Court of SefTion, and in Committees of the Eloufe of Commons. • On that account, and in order to corred fome miftakes, the Author intended to publifli a Second Edition. But the additions which he found it neceflTary to make in almoft every page, foon con- vinced him that his Publication would form a new work rather than- another edition of a former one ; efpecially as, from his refearches, he thought himfelf enabled to throw confiderablc additional light upon the Ancient Conftitution of the Parliament of Scotland, a fub- jed which has been but little attended to by the Hiftorians of that part of the united kingdom. The prefent Volume appears, therefore, under a different title. It has been confiderably augmented, by inferting in the Appendix the Ads of the Parliaments of Scotland and Great Britain relative to the fubjed. The Autlior, however, flatters himfelf that the work will be more complete and ufeful by this addition, which was fug- gefted by a friend, to whom, and to fome others whofe names it would do him honour to mention, he lay under great obligations in the profecution of this undertaking. C O N- C O N T E N T S. INTRODUCTION . . . . Page i Book I. Of the Rife and Progrefs of Parliament in Great Bri- tain . . . . . . . . 5 Chap. I. Of the Parliament of England .... 5 Chap. II. Of the P arliantent of Scotland . . . 17 Sect. I. Of the Origin and Ancient Confitution of the Parlia- ment of Scotland I / Sect. II. Of the Alterations in the Confitution of the Parliament of Scotland, from the Introdu^ion of Reprcfentatives of Bo- roughs, doivn to the Ufiion of the tijoo Kingdoms . 49 Sect. III. Of the mofl Remarkable Differences betzveen the tijuo Parliaments of England and Scotland . . . 82 Chap. III. Of the EJlabli/ljmcnt of the Parliament of Great Bri- tain by the Treaty of Union ; a7id of the Reprefentation alloiv- ed to Scotland . . . . . . 105 Book II. Of the Eledion of the Sixteen Peers of Scotland 113 Chap. I. Of the ^lalif cations neccffary to entitle a pcrfon to Vote in the Election of the Sixteen Peers of Scotland . . 113 Chap. II. Of the Manner of El e cling the Sixteen Peers of Scot- land . . . . . . . 123 Book III. Of the Eledion of the CommifTioncrs from the Shires of Scotland . . . . . . .131 Chap. vlii CONTENTS. Page Chap. I. Of the Freeholders Roll . . . . 131 Chap. U. Of the ^lalijications necejjary to entitle a ferfon to he enrolled a Freeholder . . . . • 158 Chap. III. Of certain Circumfances, independent of the Title^ ivhich d fable perfons from being admitted upon the Freehol- ders Roll, or from Voting in the Eletlion of Commifftoners from Shires ... . . . 267 Chap. IV. Of the Alterations in the Circumjiances of a Free- holder fufficient to frike him off the Roll . . . 279 Chap. V. Of the Perfons entitled to be eleded Commifjioners to Parliatnent from Shires or Steiixirtries in Scotland . 289 Caap. VI. Of the Mode of Procedure in the Flexion of Commif- ftoners to Parliament from Shires in Scotland . . 302 Chap. VII. Of Returns by Clerks a?id Sheriffs . . 318 Book IV, Of the Eledion of the Rcprefentatives of the Royal Boroughs of Scotland . . . . . 329 Chap. I. Of the Conjlittition of Royal Boroughs in Scotland; and of the Annual Eleflion of Magijlrates and Counfellors . 330 Chap. II. Of the Manner of Eletling the Rcprefentatives of the Boroughs . . . . . . 361 Chap, III. Of the ^lalif cations neccffary to entitle a perfon to be elected a Burgefs to ferve in Parliament . , 400 APPENDIX . . . . . 405 No. I, Indenture betiveen Robert Bruce and the Earls, Barons, Freeholders, and Commmiities of Boroughs . . 405 No. II. Charter by James III. to the Borough of Invernefs 408 No. III. AH of William and Mary refpetling the Borough of Anjlruther Wejier . . . . . 4^5 No. CONTENTS. Ix Page No. IV. Litem A^ornatus ad Farliamentum . . 416 1^0. Y. Ad of the Parliament I s^ 5 • • . 418 No. VI. yld of the Parliament 1681 . . . . 420 No. VII. Part of a Letter from Thomas Randolph to Sir Wil- liam Cecil . . . . ... 42 1 No. VIII. Petition of the leffer Barons to the Parliament held in Aitgufl 1560 . . . ... 423 No. IX. Roll of the Parliament 1479 . . . 425 No. X. Roll of the Parliament 1524 . . . 426 No. XI. T'he names of the Lords and Burgejfes of the Parlia- ment held in Scotland in Augiifl 1560 . . . 427 No. XII. Original draught of the Minute of the firfl Meeting of the Parliament 1579 . . . . 431 No. XIII. Commifjion from the Freeholders of a Shire to their Reprefentatinjes in the Parliament of Scotland . . 440 No. XIV. Minute of Parliament Oflober 26. 1669 . 441 No. XV. Order to the DireSlor of the Chancery to iffue Writs or Precepts . . . . . . 442 No. XVI. Precept from the Chancery to a Sheriff or Bailie 443 No. XVII. Special Precept to a Prelate . . , a a a No. XVIII. Special Precept to an Earl or Lord of Parliament 444 No. XIX. Proclamation for calling a Parliament in Scotland 445 No. XX. Warrants for New Eledions during the fitting of Parliament . . . - . . . 446 No. XXI. KeitJjs Account of an Afl in 1542-3, allo'iving the Bible to he read in the 'vulgar tongue .. . 447 No. XXI. Ad of the Parliament 1663, cap. i. . 450 No. XXII. State of the Reprefentatives from England to the Houfe of Commons . . . . . 4^^ No. XXIII. Lif of all the Royal Boroughs in Scotland, as di- vided into their feveral di/lrids, in ivhich the precedence of b the- .s: 'CONTENTS. Page the Boroughs in each diJir'iB is ohferved, according to the or- der in ivhich they ivere called in the rolls of the Parliament of Scotland . . . . . , 453 No. XXIV. Proclamation for Eleiling and Summoning the Six- teen Peers of Scotland . . ... 454 No. XXV. Fortn of a Proxy by a Peer . . . 456 No, XXVI. Form of a Signed Lifl by a Peer . . 457 No. XXVII, Certificate by a Sheriff of a Peers having quali- fied himfelf to grant a, proxy ^ or fend a figned lifi . 458 No, XXVIII. Roll of the Peers that nvas daily called in the lafi Parliament of Scotland . . . . 459 No. XXIX. Certificate or Return by the Clerk Regi/ler^ or Clerks of Seffion, of the Sixteen Peers chofen . 461 No. XXX. Warrant by ^ceen Mary to the Sheriff of ^berdeen^ in 1548, for extending or retouring all the lands of that comi- ty .... . . • . 4^2 No. XXXI. Retour of the Mill and Mill Lands of Carridden 464 No. XXXII. Ad of the Parliament 1681 . . 467 No. XXXIII. Minuteof Parliament of the \Zth of Augjfl 16^1 468 No. XXXIV. Form of the Writ to the Sheriffs upon the calling of a Parliament . . . • . . 469 No. XXXV. Form of a Sheriff'' s intimation of a Writ . 471 No. XXXVI. Form of the Execution of the intimation . 473 No. XXXVII. Form of the Sheriff's amiexmg to the Writ the Return made by the Clerk to the Freeholders . . 474 No. XXXVIII. Charter of EreSlion of the Borough of Ayr 475 No. XXXIX. Judgment of the Privy Council of Scotland re- fpecling the Borough of Stirling . . . 478 No. XL. Warrant for a Poll Election in the Borough of An- fi rut her Wefier . . . . . .486 No. XLI. Precept from a Sheriff to a Borough . . 488 No. CONTENTS. xi Page No. XLII, Cou'.mijfion from a Borough to a Commifftoner or De^ legate^ to vote for a Burgefs toferve in Parliament . 489 No. XLII. Indenture hetiveen a Sheriff and a Clerk of a prefi- ding Borough . . . . . . 491- No. XL II I. Commiff ton front a Borough to the Parliament of Scotland . . . . . . .493 No. XLIV. Letter by Ki?ig Charles II. to the Royal Boroughs^ dated July 2i' 1674 ... . . . 494 No. XLV. Acl of the Convention of Royal Boroughs in fuly i^ys . . . . . . .495 No. XL VI. Proclamation for dijolving a Parliament of Great Britain^ and declaring the calling another . . 49.8 No. XL VII. Warrant for iffuing Parliamentary Writs . 499 No. XLV II I. IVrit of Summons to a Peer . . 500 No. XLIX. Proxy by a Peer to another Peer, to a^ and vote. for him in the Houfe of Lords . . . .501 No. L. Letter of Proxy frofn a I'emporal Lord, in the reign of Henry VIII. . . . . . . 502 No. LI. Letter of Proxy from a Spiritual Lord in the reign of Henry VUL . . . . . . 503 No. LII. Deputation by the Lord Steit'ard of his Majeflys Haife hold, for ad?nini/lering the Oaths to the Members of the Houfe of Commons . . . . . ^■04 No. LIII. Lijl of the Shires in Scotland, according to the order in ivhich they ivere called in the ScottifJj Parliament 506 A£i of James L parliament Hi. 142J, cap. ^2. , , 507 Acl of James L pari. vii. 1427, cap. 101. . . 508 AS} of James //. pari. xiv. 1457, ^^P' 75* • • 5^9 ASl of James IV. pari. vi. 1503, cap. 78. , 509 Acl of James VI, pari, xi. 1587, cap. 114. . . 510 ASl of James VI, pari, xv, 1597, cap, 276. , . 513 b 2. Aa xii CONTENTS. • Page yici of Charles IF. pari. i. 1661, cap. ^^. . , 513 AH of Charles 11. pari. Hi. 1681, cap. ii. . . 515 jiH of S^ueen Anne, pari. i. feff. 4. 1707, cap. 8. . .519 Ad 6(0 Annae, cap. 6. . . ... 524 Ad 6to Annae, cap. 23. . , . . 526 Ad i2mo Antiae, cap. 6. . . . . . 537 Ad into Georgii I. cap. 13. . . . . 540 Ad ido Georgii II. cap. 24. . . ... 542 Ad jmo Georgii II. cap. 16. . . . . 548 Ad 1 6to Georgii II. cap. 11. . . . . 554 Ad i/^to Georgii III. cap. 81. . . . . 580 Ad 22do Georgii III. cap. 41. . . . .582 Ad 22 do Georgii III. cap. 45. . . . . 585 ERRATA. E R R A Page 7. line 14, for Monarch read Monarchs. 23. 13. after poteftate add comma. 90. penult,ycr nth read loth. 121. 23 . for oath read oaths. 157. 1 8. for ftatutory read ftatutable. 163. 23. for returned read retoured. 191. 19. after this dele was. 205. 9. for him read them. 238. II. for Anne read Annae. 253. 29. for an read the. 256. 7. for oath read oaths. 276. 6. for ftatutory read ftatutable. 296. 12. after it add to. 332. penult, y«r ponte rfj(/ parte. 345. 25. y^y exclude ;rrto/)?Jm/, which was not meant to denote any particular rank or order of the legiflature, but the Laity in oppofition to the clergy ; ' clero etiam, adquiefcenteque po- ' pulo;' for in that fenfe it muft always be underflood, whenfoever we find it, as here, joined to the clcnu, or clergy. Of this many inftances might be given from public inftruments. Several are taken notice of by Dodor Brady in his anfwer to Mr Petit, page 70. et The term communitas regni, which frequently occurs in the old ftatutes, is alfo reforted to in aid of this favourite fyftem, but affords it no fupport. The ' tota communitas rcgni,' mentioned in the 7th chapter of the Stattita Willielmi, which begins thus, ' Aflifa regis ' Willielmi, fadta apud Perth, quam Epifcopi, Abbates, Comites, Bar ' rones, Thani, et tota communitas regni, tenere firmiter juraverunt,' is either merely exegetic, or applicable to the fmall barons only, the ' probi Chap. U. OF S C O T L A N D. 25 * probi homines terrac,' taken notice of in the preamble or title, and the ' libere tenentes' of the 32(1 chapter. In the like manner, the fourth chapter of the ftatutes of Alexander II. where it is faid, ' Statult Rex, per confilium et afTenfiim totiiis coramunitatis fuae,' proves only that the particular regulation then promulgated, was enaQed with the advice and confent of the whole flate, or com- munity, as reprefented by the great council, but affords no pre- tence for the introdudlion of burgefles. Were we indeed to apply the ' tota communitas' to them, we muft exclude all the other mem- bers of that aflembly from' having had any hand in the enad- ment of that ftatute. This will alfo ferve as an anfwer to an argument attempted to be inferred from the fame expreflion be- ing ufed iii the preamble to the laws of Robert I, We know, in- deed, that, even in later times, the word communitas was frequently ufed to denote the whole colledive body of the parliament. Thus, in the ftatutes of David II. cap. 28. and 29. we find, ' Statutum fuit * per Regem et communitatera Scociae,' and ' ordinatum fuit coram * Rege in pleno parliamento apud Sconam, et per Regem et com- ' munitatem Scotiae ;' and we are not at liberty to apply this term, of generality to burgefles in particular, unlefs when, as in the in- denture between Robert Bruce and his fubjedhsj the word burgoriim. is added. We fhall pay ftill lefs regard to any argument drawn from thefe. words, when we confider in what fenfe they are ufed in a variety of public inftruments to be found in Rymer's Foedera. A few inftances fhall be given. The letter from the Scottifh nation, or, as it is called, Litera com- munitatis Scotiae^ to Edward I. of England, counfelling a marriage between Margaret of Norway and his eldeft fon. \vi? vrrirten in the D- r^^.:^,r- 26 OF THE PARLIAMENT Book I. names of the four Guardians of the kingdom, ten Bifhops, twelve Earls, twenty Abbots, eleven Priors, and forty-eight Barons. No notice whatever is taken in it of the boroughs ; yet it bears, that they ' avaundyt Gardeyns, Evefques, Countes, Abbes, Priurs, et * Barons,' were to fend ambafladors to London to treat on that mat- ter, and others touching the ftate of the kingdom of Scotland, ' pur ' nus ct pur eus, et pur tote la commune de Efcoce *.' Another inftrument of certain ambafladors from England, relative to a treaty concluded between them and the Scottifli nation, bears, ' Cum inter caetera contingunt negotium et tradtatum, habltum inter ' excellentiffimum principem dominum noftrum fupra didum ex ' parte una, et venerabiles patres, Cufl;odes, et ceteros Epifcopos, Ab- ' bates, et totum clericam, nobiles viros, Comites, et Barones, totam- * que conwmnitatem regni Scotlae ex altera,' &c. "}". \n like manner, the letter from Edward L to Eric King of Nor- way, refpefting the marriage of the Princefs Margaret, after men- tioning his having obtained the Pope's difpenfation, proceeds thus : * Ad quod utique cuftodes, magnates, praelati, ac tota cointminitas ' praedidli regni Scotiae unanimi et exprefla voluntate fua praebue- ' runt jam confenfum if.' We are by no means at liberty to fuppofe, that, by the expreflion tota communitas, or tote la commune, in thefe writings, boroughs, or reprefentatives of them, were alluded to, but muft confider it mere- ly as exegetic, and ufed, in order to denote more clearly, that the meafures agreed to by the ranks and orders of men particularly mentioned, * Foed. vol. 2. pag. 471, f Ibid. vol. 2. pag. 482. X Ibid. vol. 2. pag. 474. Chap. IL O F S C O T L A N I>. 27 mentioned, were to be underftood the meafures of the whole nation. It is indeed a ftrange interpretation of the wovd, communitcu to make it fignlfy the con:mons, a term never ufed in the parliamentary lan- guage of Scotland in thofe days. In England, the fame general term was much ufed, even when totally unneceiTary. The writ iHued to the fheriff of Noithampton- fliirc, in the twenty-third of Edward I. after ordering him to return two knights from the county, and two citizens, or burgcflcs, from each city or borough within it, proceeds as follows: ' Ita quod didti * milites plenam et fufBcientem poteftatem pro fe et commumtate ' comitatus praedidi, et didi cives et burgenfes pro fe ct communitate- * civitatum et burgorum praedidorum, divifim ab ipfis, hinc ibidem ' habcant.' In like manner, a commijfllon for colleding an aid granted in the firft of Edward II. begins thus: 'Rex militibus, libe- * ris hominibus, et toll communitati comitatus de Middlefcx, tarn in- ' fra libertates quam extra, falutem ; cum Comites, Barones, milites, * liberi homines ac commiinitates comitatuum regni noftri, vicefimum * omnium bonorum fuorum mobilium, civefque et burgenfes, ac cotn- * munitates omnium civitatum et burgorum ejufdem regni,' Sec. This was indeed a matter of common ftile, and fhews the impropriety of laying fo much ftrefs upon the word communitas^ and of fuppofing,. that, when it is added to a more particular enumeration of the con- ftituent members of the parliament, or great council of the nation, the commons^ or reprefentatives of cities and boroughs, muft be un- derftood to be thereby denoted. The conmunitates hiirgonim are well known ; They properly fignlfy the feled bodies to whom the guardianfliip and the management of the boroughs were committed, whether they confifted of a mayor and aldermen, or jurats, or of provoft, bailies, and counfcllors. AVhen, therefore, we hear of the commun'itas civitatis de A, or hirgi de B. we arc thereby to under- ftand the rulers of fuch city or borough;, but to fuppofe that the- D 2 commiinitai zS OF THE PARLIAMENT Book I, comuiunltas regni is applicable to burgefles in particular, feems the play of a lively imagination, rather than an opinion formed on ma- ture refledion. Even in the indenture between Robert Bruce and liis fubjcds, vvc find, after the Co mites, Barones, lil)ere tenentes, and ihe comminiitates biirgoruw, the following unneceflary and fuperflu- ous addition, ' ;ic univerfam communitatem totius regni,' A more plaufible argument in favour of this hypothefis, of a very ancient reprefentation of the boroughs, has been drawn from the following, paffage of Fordun : ' Hoc anno (1211) Rex Scotiae * Willielmiis magnum tenuit concilium apud Strivelyn, ubi interfuit ' frater ejus Comes David de Huntyndon, paulo port feftum Sandti ' Michaelis, ubi petito ab optimatibus auxilio, pro pecunia regi ' Anp^liac folvenda, promiferunt fe daturos decern mille marcas, prae- * ter burgenfes regni qui fex millia marcarum promiferunt, praeter * ecclefias, fuper quas nihil imj)onere praefumpferunr.' But, even allowing the moft implicit credit to this author, with refped to the fadl related by him, yet it is by no means a neceflary conclufion, that, in thofe days, the burgeifes were underftood to piake a part of the great council of the nation, or that they were bound to give fuit and prefence there. There was no general tax then impofed. Had that been the motive for calling this council, the clergy, who, in later times, bore the burden of one half of all taxes upon landed property, would not have been fpared, how prefumptuous foever it might appear to the monk Fordun for laics to prefcribe to then in fuch matters, Befides, Fordun does not (ay that the burgefTes were prefcnt at that council, or that it was there they had promifed fix thoufand merks. Taking his words literally, it was from the opti- viates only the aid was afked by the King. It is however needlefs to go lo critically to work; for although, upon an occafion of this kind, the boroughs may have been induced to contribute a confide- rable fum towards payment of the debt due to England, we are not at CiiAP. II. O F S G O T L A N D. 29 at liberty thence to infer, that they were then become a regular and conRitution.yl branch of the great council of the nation, or that any fhare of the legiflative power had been committed to them. Even tlie famous indenture !)etvveen Robert liruce and the Earls, Barons, freeholders, and communities of boroughs, in 1,326, goes no farther than to prove, tliat, when aii extraordinary aid was to be advanced by any particular order or rank of men in the ftate, their own con- fent was neceflary ; and affords no evidence that the boroughs were, at that time, become a nccclTary part of the parliament in other re- Jpedts, tliough they undoubtedly were fo in the reign of David 11. In thofe times it was feldom neceifary to impofe taxes upon the fubjedls, or to require money from them. The royal demefnes, and the feudal incidents, and other accuPtomed duties, were fuflTicient to anfvver the ordinary expence of government; and the military force rcquifitc either for defending the kingdom, or for making incurfions into England, was not compofed of ftipcndiary troops, and needed no extraordinary fupplies. It was only upon very prefTing occa- fions that any thing of that fort became neceflary, and, on thefe oc- cafions, the different orders of the ftate contributed according to their inclinations and abilities. Although, therefore, we read of the King calling a council, and demanding an extraordinary aid, we are not thence to prefume, that all the different orders of men who pro- mifed fuch aid, were neceflary or conftitutional parts of the parlia- ment, whofe deliberations were feldom turned towards fuch objedls, but whofe concurrence was an eflential requifite in the enading of laws, and in every thing of moment that related to the general wel- fare of the ftate. It is believed, that, in England, the burgefles, for fome time after their introduiftion to parliament, feparated after they had confented to the taxes required of them, although the other branches of that afl'embly continued to fit, and to deliberate upon the bufmefs of the nation *. The reprefentatives of cities and bp- rouirhs, * Hume, vol. 2. page 91. 30 OFTHEPARLIAMENT Book I. roughs, who were fummoned ,to parliament in 1283, appear alfo to have met at the village of A£ton Burnet, while the reft fat at Shrewf- bury *. Itiias been farther obferved, that, in the league concluded be- tween John Baliol and Philip of France, the towns and boroughs of Scotland appear as a branch of the parliament, under the defcrip- tion of uni'verfi tales et communitates civitatum et 'uillarum regtii Sco- tiae. But the only ground for this obfervation is, its being mention- ed by Philip in his inftrument, that the ambafladors of the King of Scotland had promiied the concurrence of all the different orders of men in that kingdom in a war againft England, and to fend their letters to the King of France, to that effedt, under their feals: ' Pro- * miferunt infuper pariter procuratores praefati procuratorio nomine ' memorati Regis Scotiae, eundem regem curaturum et effetlturum, * quod tam Praelati, (quatenus eis de jure licebit), quam Comites, ' Barones, et alii nobiles, nee non univerfitates et communitates vil- * larum regnl Scotiae, erga nos et fuccefTores noftros, in guerra prae- * dida, pari modo in omnibus (fieut di£lum eft fuperius) fe habe- ' bunt, didoque Regi Angliae fimili modo totis fuis viribus guerram * facient, ficut fuperius eft expreffum : Quodque tam praelati, quam ' Comvtes, Barones, ac alii nobiles, ac univerfitates coramunitatefque * notabiks didi regni Scotiae, fuas nobis fuper hoc patentes literas * fuis munitas figillis, quam citius fieri poterit deftinabunt t*' This, no doubt, fhews, that Baliol, and his ambafladors, anxious to pro- cure the French King's alliance, wllhed to convince him of the hear- ty inclination of the whole Scottifli nation to join in a war againft England ; but it affords no evidence that the boroughs made a con- ftituent part of the parliament at that period. The * Doftor Henry, voK 4. page 358. j J'oed. vol. 2. pag. 695. Chap. II. O V SCOTLAND. 31 The fiimous letter to the Pope has likewife been appealed to as a piece of evidence in favour of this hypothcfis ; but it is equally indecifive. It v^'as written in the names, iji^oi {cvcrs.\Comites ; 2dly, of the Senefcallus and the Buttelarius Scotiac ; ylly, of Jacobus Dominus de Douglas, Rogerus de Moubray, David Dominus de Brechin, David de Graham, and a number of other individuals; and, lajlly, of ' ceterique Barones, ct libere tenentes, ac tota com- * iminitas regni Scotiae.' But the obfcrvations already made up- on the import of the words tota commtmitas^ will not permit us to applv that expreffion in this letter to burgelTes in particular. Had they been concerned in this bufinefs, or had it been thought necef- fary to hold them forth as concerned in it, a very different term would have been ufed ; and, inftead of ' ceterique libere tenentes, ac * tota communitas regni Scotiae,' we fhould probably have feen, * ceterique libere tenentes ac communitates civitatum et burgo- * rum regni Scotiae.' This letter feems rather to oppofe, than to favour, the fyftem in fupport of which it has been appealed to ; and, at any rate, muft be of little confequence in the controverfy, as it is an agreed point, that, in a few years after its date, repre- fentatives from boroughs were fent to the parliament, and compofed the third eftatc. ' Another ground has alfo been taken up in fiipport of this fyftem. It has been obferved that the burgefles, being the King's freeholders, and as fuch liable to give fuit and prefence in his courts, it is not to be prefumed that they would be relieved of that burden in more ancient times, or would have fubmitted to it afterwards, unlefs they had been bound to do do fo by their mode of tenure *. It muft be admitted that this argument bears a fpecious appearance ; but, when thoroughly confidered, it will not be found more decifive than the others. To examine it properly, we muft diftinguifh periods, and take * Eflays on Britllli Antiquities, Eilay 2. 32 O F T H E P A R L I A M E N T Book I. take .under our view, as far as we have fails, or probable conjediures, to.allift us ill the. inquiry, tlie ftate and condition of boroughs In different ages. In thofe empires which owed their origin to the migration of a few individuals feeklng a new habitation, cities or towns rauft foon have become confpicuous and important. For fome time, tlie limits of the rlfing nation would indeed be confined tO' th^ walls or ramparts ,of the lirfl: fettlement, and a fmall territory in its neighbourhood. .Such is. the .picture given of old Rornej.and fuch, probably, was the cafe of all the ancient ftates in Greece and Italy, Other cities, fuch as Tyre and Carthage, owed their fplendour to commerce. But, in rude and uncultivated nations, (whether confifting of aboriginal in- habitants, or of the defcendants of numerous fwarms of barbarians iffuing from their native woods), whi;h have no intercourfe, either in the way of commerce or of alliance, with foreign and more en- lightened Hates, towns of any extent or confequence are not to be cxpeded. Tacitus informs us *, that the Germans did not live in towns, and could not even endure to have their houfes contiguous; and, through the whole extenfive continent of America, two nations only had attained to that degree of cultivation and refinement as to have built large and populous cities before it was difcovered by the Europeans. England was too long under the adminiftration of the Romans not to have emerged from its original favage ftate. Cultivation, arts, refinement,, and luxury, had made wide advances; and, although the next * Nullas Germanorum populis urbe."; habitari fatis notum eft; ne pati quidem inter fc jun6las fedes. Colunt difcreti ac diverfi, ut fons, ut campus, ut ncnius placuit. Vicos locant, non in noftrum morem connexis et coliaerentibus aedificiis; fuum quifque do- roum fpatia circumdat, five adverfus cafus ignis remedium, five infcitia aedificandi. Chap. ir. O F S G O T L A N D. 33 next invaders threw every thing back into ancient barbarity, we are told, that, during the Roman dominion, the Britons had built twen- ty-eight confidcrablc cities within the province *. But in Scotland, where no regular government can be traced beyond the reign of Malcolm Canmoic, where arts and commerce were little attended to, and where a ftrong degree of barbarifin, and ferocity of manners, fuhfifted in much later ages, it is moft likely that towns, and even villages, chiefly arofe from men among the lower clafs of inhabi- tants, wifliing to take fhelter under the walls of the King's caftles, or thofe of great Lords, or churchmen, to fecure themfelves in part, at leaft, from reciprocal injuries, and from the opprcfiion of power- ful individuals. We accordingly find our oldeft boroughs fituated in the neighbourhood of fuch caftles, and may reafonably conclude, that their territories formerly made part of the caftle domains. Thofe who took up their refidence In fuch places, found it necef- fary, for their farther fecurity, to furround them with walls or fen- ces, and to vratch and ward them in a kind of military ft:ile. Hence the towns or villages were termed Burgs, and their inhabitants Bur^ getifes, long before the pradlice of incorporating, and forming them into communities, by charter, was introduced either in this ifland or on the continent of Europe. Thefe Burge?ifes were of two forts. Some towns were within the royal domains of Sovereigns, others within the territories of great Lords, Barons, or churchmen. The inhabitants of the former were ftiled the Burgeti/es Regis, while thofe who lived and carried on their occupations in the latter were the Burgenfes of the Lord of the territory. That this diftindion was well known in England, is manifeft from Domefday book ; whence we likewife learn, that, in fome towns, the burgenfes were partly the King's, and partly thofe of a fubjed ; and that, in E others, • Gildas, Bede, lib. r. 34 OF THE PARLIAMENT Book I. others, there Avere burgefles belonging to a number of different fub- jeds *. The fame diftin£tion took place in Scotland; and we ac- cordingly meet with it in the 15th chapter of the Leges Burgorum^ which runs thus: ' Bnrgenfis Domini Regis poteft habere duellum ' de Burgenfibus, Abbatis, Comitis, Prioris, vel Baronis ; et non e * converfo.' In thofe days, each burgefs paid a certain fum yearly to the King, or Lord, in whofe town he lived, or had his burgagium "f. Certain cuftoms were alfo exadled by thefe fuperiors, or patrons, upon the fale of different commodities. : But, in return, the burgefles were in- dulged, from time to time, with fundry privileges, which put them upon a very different footing from the tenants, or rujiici^ whofe oc- cupation was entirely confined to agriculture, and who were not al- lowed to betake themfelves to any kind of traffic, or mechanic em- ployment. This was a wife meafure, well calculated to incite the burgeffes to purfue with fpirit their proper callings as tradefmen, manufadiurers, lliop-keepers, or merchants. And, in order to en- courage refort to the towns, we find in the Leges Burgoriim, cap. i j. the following political regulation : * Si homo Comitis vel Baronis, ' feu cujufcunque fervus fuerit, venerit in burgo et emerit fibi bur- ' gagium, et manferit in eodem burgagio per unum annum et unam ' diem, fine calumnia Domini fui, vel ejus balivi, femper erit liber, et ' libeitate burgi gaudebit ficut burgenfis, nifi fit fervus Domini Regis.' Thefe * See Brady's Treafife of Boroughs, page 3. 4. 7. 8. t The very firft chapter of the Leges Burgorum is as follows : ' Imprimis quUibet * burgenfis debet Domino Regi burgagio quod defendit, pro paiticata terrae quinque ' denarios annuatim.' The extent of a pnrticata terrae, which Skene tranflates a rood of land, is thus de- flribed in the 1 19th chapter of the fame laws; 'Particata terrae In baronia debet men- ' furari per fcx ulnas quae faciunt oftodecem pedes mediocres, hoc eft, neque de ma- ' joribus^i^ neqiie de minoribus ; particata terrae in burgo continet viginti pedes,' Chap. II. O F S G O T L A N D. 35 Tliefe privileges were, however, found infufficient to protect even the King's burgefles againft the tyranny and opprefTion of the great Lords, or Barons, in their neighbourhood. To check, therefore, this evil, and, at the fame time, to preferve ftill more efFedtualiy peace and quiet among the burgefles themfelvcs, a new policy was introduced, of eftabliihing them into corporations or communities, by royal charters, granting them a certain territory for payment of a yearly fum, and appointing officers, to be chofen by themfelves, for determining their private difputes, and managing their common affairs. This was an important revolution in the ftate of the towns or boroughs. It is, however, an agreed point, that, even in France, it was only introduced in the time of Lewis the Grofs, who began to reign in the year 1 108 *. In that kingdom, the bulk of vvhich was in the poffefTion of a few great Lords, who, though they held their dukedoms, or counties, of the King, were, in effect, fovereigns within their own territories, it was underflood that the King could grant fuch eftablifhments only to the towns within his own proper domains. The example was, however, foon followed by the great Lords, who, fond of imitating their Sovereign, or glad of a pre- tence for fqueczing money from the inhabitants, alfo granted com- munes to their principal towns. The Count of Champagne granted one to the inhabitants of Meaux in 1 179 f. E 2 Notwiihflanding * Nos auteurs conviennent que Louis h-Gros eft le premier de nos Rois qui ait ac- cordc des communes aux villes. II le fit dans la vue de trouver par la le moyen d'ap- paifer les feditions qui y etoient pour lors tres frequentes, et furtout pour mcttre les ha- bitans de ces villes, en les uniflant ainii d'interet entr'eux, en etat de fes maintenir cen- tre les grand fcigneurs qui les vexoient fortement ; BruJJil^ vol. i. png. 178. t" BrulTel, vol. i. pag. 183. 36 OF THE PARLIAiMENT Book I. Notwithftanding all that has been faid by Tome writers with re- fpe£l to the confequence and importance of the inhabitants of towns in England m more early ages, we have no juft ground to believe that any eftablifhmcnt of this fort took place there till a confiderable time after the Norman conqueft. The fo much boafted charter of the Conqtieror to the city of London is, in truth, only a letter of protedion, declaring, that the citizens fhould be treated as law wor- thy, not as flaves. It is not natural to fuppofe that the boroughs fhould advance more rapidly in point of fecuricy and importance in Scotland than they did in France or England. Confiderable privileges would no doubt be conferred upon the inhabitants of towns in Scotland, as well as in other kingdoms; but it is highly improbable that the eftablifh- mcnt of corporations, or communities, had been introduced there, at a period when they were unknown in other ftates far more culti- vated and commercial. At what precife time the eredlion of fuch corporations firft took place in Scotland, cannot, indeed, be difcovered with certainty. The oldeft charters to boroughs novv extant,^ or of which we have any knowledge from later inftruments, were given by William the Lion; and the moft, if not all of thefe, are rather to be confidered as grants of particular privileges to the inhabitants, than as charters erecting them into communities, or bodies corporate, with power to choofe their own magiftrates *. An unprinted ftatute, in 1661, in favour of the borough of Rutherglen, does indeed mention a fuppli- catlon then made to parliameat by that borough, bearing, that it had * The truth of tliis remark feems to be juftified by a charter of James III. to the town of Invernefs, which recites, verbatim, four different charters by William the Lion, ■md Come others by later Princes. It is to be found in the Appendix, No. 2. Chap. II. OF SCOTLAND. 37 had been eretled a free borough by King David in the year 1 12O; but upon what authority that averment was made does not appear. Thefc obfervations being kept in view, our firft obje£t of inquiry murt; be, Whether or not the burgenfes Regis made part of the great council of the nation before the towns or boroughs in which they refided had been ereded into communities? And here the mind na- turally revolts at the idea of its being* either the duty of the privi- lege of every weaver, taylor, fhoemaker, or other mechanic, pofTcf- fed of a. particata terrae, or other fmall property, in a paltry town or village, to give fuit and prefence in the King's great council, and to fit with high fpirited nobles and dignified churchmen, and take a joint concern in all matters of importance refpeding the ftate and government of the kingdom. Had fuch been the conftitution, their fuperiority in point of numbers might at leaft have enabled them to afTume the whole government, fo far as it depended upon the re- folutions of the national council, had they inclined to exert their power. It may indeed be faid, that, in thofe days, as well as in later times, reprefentatives might be chofen by the King's burgefles, to a6t for them in the great council ; but it is by no means probable that fuch an idea fhould then occur. Reprefentation is a refinement in poli- tics little fuited with the manners of the age now under confidera- tion. It is even natural only where a number of individuals are previoufly formed, by a political operation, into one body. But this could not be the cafe of the inhabitants of towns in Scotland before their being incorporated; for, till that happened, the individuals were no more connected with each other than the pofleflbrs of lands ih the country, except in this fingle particular, that their properties being confined within fmaller bounds, they lived in a clofer neigh- bourhood. ^<3'Uk\3^Ji3 38 OF THE PARLIAMENT Book L bourhood, and took a joint concern in watching and defending the place of their abode. They enjoyed the immunities or privileges that were conferred on them from time to time as individuals re- nding in a particular place, not as members of an aggregate body. We are not, however, under the neceffity of trufting to conjecture, or even to probability alone. From fails that cannot be controver- ted, we obtain fatlsfacflory evidence, that, while the Burgenfes Regis remained unincorporated, they gave no attendance in parliament. The royal boroughs in Scotland were not all ere3 D. 55 " volentes quod idem Joannes, tt Tiaeredes mafculi dc corporc fuo ■* exeuntes, ftatuni Baronis obtincant, ac Dommi dc Beauchamp, ' ct Barones de Kiderminftor nuncupcntur. In cujus,' &:c The firfl: certain iniflancc we -can difcovcr of an Earl created iu •this manner i-n Scotland, is in the beginning of the r6th century, -when Gilbert, Lord Kennedy, was made Earl of CafFilis *. Lords of Parliament had, however, been created in the fame way, at leaf!; ;as early, if not before, as the reign of James I t- And, although pa- tents ■* In the recorcis of the Lords of Coancil we find David Lord Kennedy appeaning as procurator for the Laird of Bergeny upon the 7th of Auguft 1509; and upon tlie i7tk ^of November, in the fame year, mention is made of an aftion at the fuit of 13aviJ Lord ■Kennedy, no-rn Earl of Cafilis, fcfr. Hence it appears that lie was created an Earl in the interval between thefe two periods-, and that his title was merely perfonal, and not the confequence of his eftate being eredted into an Earldom, is evident from the fabfe- quent charters of the family down to the year 1642, in which the lands of Caffilis are always denominated a Barony. It was in that year, and not fooner, that this barony was erefted into an Earldom. f Robert III. died in 1405, when his fon, James I. was both a minor, and a prifoner in England, where he was detained till the year 1424 ; and within three years after his return to Scotland, the a£i: of parliament, difpenfing with the attendance of the fmall Barons, was pafled. But, by this act, it was appointed, that Bifhops, Abbots, Priors, Dukes, Earls, Lords of Parliament^ andBanrents, (Knights Bannerets, created by the King, in the field of battle, under the royal banner), fliould be fummoned to parliament by fpecial precept. This affords fome ground for believing that, the prafliice of conferring perfonal honours had been introduced before that time ; and although, through the careleffnefs of our hiftorians, and the want of regular records, we cannot fix the precife period when this innovation firfl: took place, we know, that, before the year 1459, Gilbert Kennedy had been created Lord Kennedy; and that, in 1473, •'■^ Alexander Home was created Lord Home in parliament, although neither of their eftates had been then erefled into Dominia, or Lordfliips, but remained ftill mere Baronies. Mr Wallace, in his Thoughts on tlie Origin of Feudal Tenures, and the Defcent of Ancient Peerages in Scotland, would have us to believe, that, till the year 1587, when tUc S6 GF.T HE PARLIAMENT Book I. tents were at length introduced, it is highly probable, that, for fome time, no other form was ufed in beftowing that perfonal dignity but what is contained in the records of parliament, bearing, that the King, in full parliament, created fuch a man (and his heirs general, or limited, as there mentioned) a Lord of Parliament, and ordained him to be filled Lord A. of B. or fo forth ; the ordinary mode being to prefix Lord to the firnarae, and to add the name of a certain land or territory, fuch as Lord Lindfay of Byres, or Lord Stewart of Ochiltree. The poffeiTors of thefe honours, in whatever way created, were the Peers, or Great Barons j and, in contradiftindion to them, all the other owners of lands, who held of the King in capita, were deno- minated Small Barons, or Freeholders. It is not improbable, that, at the time of palling this a£l of par- liament, 1427, cap. loi. James I. who had received his education in England, intended to put the parliament of Scotland upon the fame footing with the Engliih parliament, and to render the Commons a feparate houfe. But if fuch was his intention, it did not take effedt. On the rcprefentation of the fmall barons was eftabliflied, no perfonal honours conferred a right to fit in parliament indeptiwient of landed property, every owner whereof, when it held of the crown, had already an ineleclive feat. This, however, may be doubted. If it was not effential to the creation of Peers of Parliament that they fhould be previoufly pofleffed of land, it is not eafy to figure why the Sovereign might not beflow a perfonal dignity of that fort upon.thofe, who, on account of their merit, or other caufes, might appear worthy of it, although poflefTed of no land whatever. I camiot, how- ever, difcover any realbn in the nature of the thing, and far lefs any proof that it was neceffary for a perfon who was to be created a Lord of Parliament to be a land-owner, or that his heirs were to be deprived either of the title, or of any of the privileges attending it, upon their difpofing of the efiate which their anceftor held when he was ennobled. They muft therefore have been entitled to fit in parliament ii> virtue of their perfonal honours, independent of their lands altogether. CiiAP. II. O F S C O T L A N D. 57 On the contrary, no part of this ftatute feems to liave been much regarded. The fmall barons negieiSled to elc£t commiffioncrs, and were, of courfe, flill bound to give pcrfon;il attendance, that being the condition under which they were to be relieved of the biiidcn. We accordingly find a new adt pafled about thirty years after, by which it was enaded, ' That no freeholder under L. 20 fliould be ' conftnilncd to come to parliament, as for prefence, except he were ' a baron *, or were fpecially called by the King's officer, or by ' writ t.' And In the reign of James IV. another a£t paffed, re- lieving all barons and freeholders whofe eftates were within 100 nierks of new extent :}:, unlefs fpecially written for by the King; but enjoining all thofe of a higher extent § to come to the parlia- ment under the pain of the old fine. It was, however, made a con- dition of the difpenfation granted by thefe ftatutes to particular freeholders, that they fhould fend proxies or attornies to anfwer for them. The a(fl of James II. went no farther than to declare that they fhould not be conflrained to come to parliament, as for prefence. And, by the adt of James IV. they were to be relieved of the fines ufually impofed upon abfentees, only on condition of their fending procurators to anfwer for them. The words of the adt are, ' and fa * not to be imlawed for their prefence, and || they fend their procu- * ratores to anfwer for them, with the Baronnes of the fchire, or * the maift famous perfons.' H Notwithftanding * The appellation of Baron, in this ftatute, has no relation to Peerage. Thofe whofe lands were, by their charters, eredted into a free barony, had a conliderable jurifdiftion within their bounds, which ordinary freeholders did not enjoy. f 1457, cap. 75. In England, in the time of Edward II. a knight's fee was, by fta- tute, L. 20 Sterling per ajinum; and, according to Sir Edward Coke, 480 acres of land. X I503>cap. 78. § The meaning of this term will be explained in the fequel. •'i The word and is here ufed for if. sB OFTHEPARLIAMENT Book I. Notwithftanding thefe a£ts, the fmall Barons continued very re- mifs in tlieir attendance. Few of them went to parliament, except upon particular occafions *, fo that, at laft, a doubt arofe of their being entitled to a feat t ; and it was not till the reign of James VI. that their reprefentation by commiffioners was fully eftablifhed. This was done by the ad 1587, cap. 114. which, proceeding up- on a recital of the old ftatute of James I. and of its propriety and expediency, renewed and confirmed that part of it which related to the choofmg of commiflioners, and regulated the manner in which they were to be eleQed and warned to parliament J. The * During the reign of James III. the number of thofe who attended never amounted to thirty, and was often much lefs. In the reign of James TV. twelve was the higheft number ; and, in fome of the parliaments of that Prince, not one appeared. In the time of James V. we find only two or three ; and the cafe was the fame during the firft period of the reign of Mary. -{• This we learn from a letter written by Thomas Randolph to Sir "William Cecil, of the icth of Auguft 1560, in which he tranfmitted a copy of a petition from the fmall Barons, or freeholders, praying to be admitted to the parliament that was then held, and: defiring that all former acts concerning their place and eftate, and in their favour, fliould be confirmed. The original letter is in the paper office in the Tower of London ; and a part of it is to bs found in the Appendix, No. 7. A copy of the petition from the fmall Barons, which Mr Randolph tranfmitted to. Sir William Cecil, is likewife to be found. in the Appendix, No. o. In order to give the reader a better idea of the parliament of Scotland at different periods, before tlie reprefentation of the fmall Barons took cfFeft, there are inferted in the Appendix, No.'s 9, 10. and 11. lifts of fome of the thinneft parliaments, and of thofe which were befl attended. There is alfo to be found in the Appendix, No. 12. a copy of an original minute of the firfl: federunt of the parliament 1579, with which I was favoured by the under keepers of the reccrdss ^; In procuring this aft, James has been fuppofed to have had it in view to ac- ifairc a balance agaiuft the ovcrgrovjn power of the nobility, much increafcd fince the Chap. II. O F S C O T L A N D. 59 The ad of James 1. allowed every freeholder a voice In the elec- tion of commiiTioncrs ; hut, hy the llatute now under confideration, thofe only who were poflcifed of a forty fhilling hind in free tenan- dry, and had their aduai dwelling and refidence within the Ihire, were permitted to vote. The qualification of the commiffioners required hy this ftatute was, that they (hould be the King's freeholders, refident iadwellers (inhabitants) within the (hire, of good rent, and well efleemed. But what the amount of their rent or eftate fliould be is not men- tioned. It is probable that the rent which entitled a freeholder to eleft, would alfo entitle him to be eledled a commifTioner. With regard to the mode of eledion, the freeholders vyere ap- pointed to meet yearly at the firft head court after Michaelmas *, or at any other time when they fhould pleafc to aflemble for that purpofe, or be required to do fo by his Majefty; and, after choofing their commiflioners, they were to notify their names in writing to the Diredtpr of the Chancery. This ad farther ordered the com- H 2 miflions ihe reformation, and by the abolition of the abbacies. Great oppofition was according- ly made to it on the part of the nobility, fome of whom £vcn protefted againft it, but in vain. See Ejpn's on Brkijh Antiquities, page 42. * Of old, the fherifls of the feveral counties were bound to hold three head courts in the year for the due adminiftration of juftice, at which all the freeholders were obliged to attend ; ^lon'. Attach, cap. 32. J 3. and 5. Thofe who owed fuit and prefence were to attend perfonally, but thofe who owed fuit only were allowed to fend their fuitors or proxies, provided fuch proxies were qualified to pafs upon an ailize or jury, 1540, cap. 71. j but at prefent there is only one head court held in the year, upon a fixed day, either Michaelmas day, or near about that time. There the freeholders aflemble to adiuft their rolls, in the manner to be afterwards taken notice of. No freeholder, however, can now be fubjcfted to any fine for abfence from a IherifF-court, unlefs he be fummoned to fcrve as a juryman, or for fome othsr lawful purpofe; 20th Geo. II. cap, 50. 6o O F T H E P A R L I A M E N T Book I. miflions to be fealed and fuhfcribed by at leaft fix of the barons and freeholders; and, by a fubfequent aft of the fame Prnice *, none were to be received as cominlflioners for fhires in parliament, with- out producing fufficient commiffions granted to them in a full con- vention of all the barons of the ihire, and authorifed (authenticated) by the fubfcriptions of a great number of the barons then prefent, and of the clerk of the meeting t- The commifFioners for fliires being thus to be yearly ele£led, the ftatute directed that they fhould be warned to any parliament or convention to be afterwards held, by precepts iffuing from the Chan- cery, the form of fummoning to parliament that was in ufe before the lefs troublcfome mode of a general proclamation took place. It was farther appointed by this ad, that an equal number of com- miffioners from fliires fliould be upon the committee of articles J with thofe put upon that committee from amongft the commiffioners of boroughs, and that their appearance in parliament fliould relieve all the remaining fmall barons and freeholders from the neceffity of perfonal attendance. But, as this ftatute did not exprefily exclude the other fmall ba- rons, it may be afked, Whether they might ftill have attended, in- perfon, notwithftanding their fending commiffioners to parliament ? I apprehend, however, that this queftion muft be anfwered in the negative. To attend both perfonally, and by reprefentatives, would have * 1597, cap. 276. f A copy of a commiflion from a {Imx to its reprefentatives is to be found in the Appendix, No. 13. % The nature of this committee, which was named at the beginning of each parlia- ment, will be fully explained in the fec^uel- Chap. II. OF SCOTLAND. Ci have been inconfiRent ; and, although our flatutes are not always very accurately exprefied, we may lafely conclude that it was the intention of the legidature to exclude them. We accordingly find no inflance of their ever after J^ppearing in parliament but by their commiffioncrs. It may alfo be afked, Whether, after the paffing of this ad, the King might call any particular baron to attend in parliament, though not chofen by his county? Sir George M'Kenzie, ever a mofl: zea- lous ftickler for tlic prerogative of the crown, thought it jull that the King fhould have that power; adding as a rcafon, that he might make any man a Lord of Parliament. See his Obfervations, pa'>-e 114. Of this, however, he gives no inflance ; and thence we may conclude that no fuch prerogative was underftood to be in the crown. As long as the fmall barons were bound to attend perfonally, whh the exception only of thofe who were not poffeffed ot\an eftate tirfl; of L. 20, and afterwards of 100 merks of new extent, it might be fafe to permit the King to require the attendance even- of perfons falling under the exception ; and he was accordingly allowed to do fo by the ads 1457, cap. 75. and 1503, cap. 78. But it would have been inconfiftent, and even dangerous, to continue a prerogative of that fort, after a regular reprefentation of the fmall barons had been introduced. The King might indeed ennoble whom he pleafed, and by that means increafe the number of great barons, . or Lords of Parliament. But he certainly had it not in his power to increafe the number of reprefentatives from counties, or to give feats in par- liament to the eledors, as well as to the eleded. It is accordingly ad- mitted, even by Sir George IVi'Kenzic, in a fupplement to his work, *' that, by the conftant courfe of pofterior ads of parliament con- ^ cerning eledions, and reprefentatives of fliires in parJiament, and ' by the conftant cuftom acknowledged both by King and parlia- * raenr,, €2 OF THE PARLIAMENT Book I. * ment, none can reprefent fhlres in parliament but fuch as are ac- ' tually chofen by the fhlres whom they reprefent.' How plain and fimple foever the plan of eledling commiffioners from fliires, that was laid down by this ftatute, might then appear, it fhould feem that feveral queftions arofe with regard to the right of voting in thefe elecftions. To prevent fuch queftions in time to come, it was declared by the a£t 1661, cap. ;^^. that, befides all he- ritors who held a forty {hilling land of the King in capite, all heri- tors, liferenters, and wadfetters, holding of the King, and whofe yearly rent amounted to ten chalders of vidual, or L. 1000, all feu- duties being dedu<3:cd, {hould be capable of eledling, or being elec- ted. To difcover whether a perfon was truly pofTefl'ed of ten chalders of victual, or L, 1000 Scots of free rent, might, however, often be a matter of fome difRculty ; of courfe, many queftions would ftill arife with regard to the right of voting, and much time would be confumed in parliament by trying the merits of controverted elec- tions. A new ftatute was therefore made about twenty years after, 168 1, cap. 21. by which a variety of rules were laid down for re- gulating the eledions of commiffioners from (hires. By this a£t, it was, in th.e.jirji place, declared, that none fliould have a right to vote but thofe who, at the time, ftood publicly in- feft in property or fuperiority, and were in pofleffion of a forty {hilling land of old extent, holding of the King or of the Prince, diftinflions were tried in the p.irliament itfelf, without being fent to the committee. The difference betwixt a parliament and a convention will be explained in the fequel. f That is, expeditioufly, and without abiding the courfe of the ufual forms of court. X This had been previoufly fixed by a refolution of the parliament, upon the 2(5th of^ Qftober 1669, which is to be found in the Appendix, No. 14. . •66 OF THE PARLIAMENT Book I. againfl; Popery, and aflertingtlie King's fupremacy, appointed by the 6th a€t of the fame fcffion), fhould be fufficient to difqualify from voting. From this a£t, down to the time of the Union, tlie law fufFered no alteration with regard to the election of commifTioners from fliires, except one, which was introduced by a ftatute of King Wil- liam, 1698, cap. 22. declaring, that no perfon, during the currency of a protection from diligence *, fhould be capable to choofe, or to be chofen, a member of parliament, without previoufly renouncing the benefit of fuch protedion. It is, however, to be obferved, that, befides the reprefentatives of counties and boroughs, the great officers of ftate were members of the Scottifli parliament ex officio. When this was. firft introduced is •unknown; but, in the parliament 1617, as fhall be more particular- ly mentioned in the fequel, it was fixed, that, from that time, eight of thefe officers only fhould be entitled to a feat, viz. the High Trea- furer, the Treafurer Depute, the Secretary, the Privy Seal, the Mafler of Requefts, the Clerk Regifter, the Juft;ice Clerk, and the Advocate. Holding their feats in virtue of their offices alone, it was underilood that they neither could eledt nor be eleded: And the Juftice Clerk and the King's Advocate having voted in an eledion for the county of Mid Lothian in 1675, Fountainhall obferves f, ' that they fhould ' not have voted, becaufe, being officers of ftate, they were not ' capable to be eleded ; and to ele£l, and be eledted, funt correlata ' quorum uno fublato tollitur et alterum.' In the year 1703, when Sir James Murray of Philiphaugh, one of the commiffioners for the ihire of Selkirk, was appointed Lord Clerk Regifter, a writ iffijed for * A proteftion againft being arrefted and imprifoncd at the fult of creditors. + Vol. I. jjage 352. Chap. II. O F S C O T L A N D. dj for ele£ting a new reprefentative in his room. Many fimilar inftan- ces might be given. When any of thefe offices were put in com- miffion, one of the commilhoners was named by the King to fit in parliament. Having now exhaufted what feemcd neceflary to be here men- tioned, with refpe(ft to the temporal cftates, I proceed to confider the alterations which took place in the parliament of Scotland with regard to the fpiritual eftate. It has been already obferved, that the reformation, and the aboli- tion of monafteries, occafioncd a confiderable alteration in the fp.iri- tual eftate of the Englilh parliament. The Archbifliops, however, and the Bifhops, ftill remained members of the Houfe of Lords : But, in Scotland, religion produced at lail a more violent effedt, by entirely loping off the ecclefiailical eftate in parliament. How thati. alteration was brought about Ihall now be explained. The Proteftant Church began to affume a regular form in Scot- land about the year 1560. But although the genius of the firft re- formers tended ftrongly towards that fyftem which has fmce pre- vailed under th€ name of Pre/byter'mii, it was not thoroughly efta- blifhed till after many ftruggles. Approaching to the Democratical form of civil government, it was notto be, favourably received by Monarchs even the moft limited, far lefs by thofe who ardently wiftied to extend their prerogative. Very early attacks- were made in the affemblies of the Church upon the order of Bilhops *. In 158 1, an act of the affembly paf- I2 fed, * There were in Scotland twelve Bifhops under the two Archbiihops of St Andrews . and 68 OF THE PARLIAMENT Book I. fed, declaring the office of Bifhop, as then exercifed, to have no foundation or warrant in the word of God. This, however, did nor prevent a nomination being made the very next year to the See of Glafgow, then become vacant. And in 1584, Mr Andrew Mel- vil, one of the ableft enemies of the hierarchy, was fummoned be- fore the privy council, on account of his having complained loudly of the grievances of the nation, in a fermon he preached at St An- drews, and was obliged to fly to England in order to avoid pu- nifliment *. Severe laws were likewife made in the fame year, with a view to reftrain the leaders of the Church, and all thofe who aimed at the abolition of Epifcopacy. The attempting to diminifh the rights and privileges of any of the three eftates, was declared high trcafonf; and the holding councils, conventions, or affemblies, to treat, confult, and determine, in any matter of ftate, civil or eccle- fiallical, without the King's fpecial command or permiffion, was for- bid under the moft fevere fandion X- Thefe laws did not, however, fubdue the fpirit and zeal of the Prefbyterian leaders. In 1586, the provincial fynod of Fife fum- moned Adamfon, the Archbifliop of St Andrews, to appear before them, and anfwer for his contempt of the decrees of former general affemblies, in exercifing the funftion of a Bifhop ; and, notwithftand- ing his refufmg to acknowledge the jurifdidtion of the court, and his appealing to the King, a fentence of excommunication was pro- nounced and Glafgow. St Andrews had for fufFragans the Biihops of Edinburgh, Dumblain, Dunkeld, Brechin, Aberdeen, Murray, Rofs, Caithnefs, and Orkney ; and Glafgow thofe of Galloway, Argyle, and thelfles. There were likewife twenty-feven abbacies, and thirteen priories } Balfour, page 34. * Spottif%vood's Hiftory, page 330. t 1584, cap. 130. % I584> cap. 131. Chap. II. O F S C O T L A N D. 69 nounced againft him. A general afiembly, held foon after, entered warmly into the views of this fynod ; and it was with difficulty the King obtained an a£l permitting the name and ofTicc of a Bifliop. The power of the order was greatly reduced. They became little better than perpetual moderators of prefbyt^iles. They were de- clared to he fubjed, like other paflors, to the jurifdidion of the ge- neral aireinbly ; and Adanifon, the Primate, renounced all claim to fupremacy over the Churcli, and promifcd to demean himfelf fuit- ably to the charader of a Bifliop, as defcribed by St Paul *. In 1587, James VI. came of age ; and, in the Parliament which was then fummoned, a law paffed that threatened a deadly blow to the ecclefiaftical ftate. The public revenue being inconfiderable, and the adminillration of government growing daily more cxpenfive, it became necefliiry to provide fome new fund to anfvver the exigen- cies of a Prince who was naturally profufe, and a bad oeconomlft. The ancient patrimony of the Church had fufFered greatly by the depredations of the laity fince the Reformation ; but what ftill re- mained was very confiderable, and was either held by the Bifhops who poflefled benefices, or by laymen, in confequence of grants du- ring pleafure. It feems to have occurred to the King and his mini- fters, that, from this fource, a fupply might be drawn, without im- pofing any tax upon the people ; and the temper of the nation at the time aflured them, that the meafure would be nowife unpopular. An ad, therefore, pafled in the parliament of that year t, by which the lands that then belonged to any archbifhop, bifliop, abbot, prior, priorefs, or any prelate whatfoever, or to any abbay, convent, or cloifter of friars, nuns, monks, or canons, prebendary or chaplainry, or chapters of cathedral churches, or chantry colleges, were annex- ed • Doftor Robertfon's Hiftory of Scotland, vol. 2. pa^e 1 19. t iS^h cap- 29. 70 OF THE PARLIAMENT Book I. ed to the Crown, ami the King was impowered to apply the rents to his own ufe ; with an exception, however, of the tythes belong- ing to parfonages or vicarages, which were to remain with the per- fons ferving the cure, together with the manfion-houfes, and a few acres of land by way of glebe ; and alfo referving to all Archbifhops, Bifhops, Priors, Commendators, and other pofleflbrs of great benefi- ces of the eftate of Prelates who had a vote in parliament, their prin- cipal caflles and nianfion-houfes, with the buildings and yards there- of, lying within the precincts and inclofures of their places, which were to remain with them and their fucceffors, for their refidence and habitation. In 1592, the Prefbyterian government by general aflemblies, fy- nods, prefbyteries, and feflions, was approved of in parliament *; the ads that had paffed againft the Church in 1584 were refcinded or explained ; and all prefentations to benefices were ordered to be direded to the particular prefbyteries, for the giving of collation. Thefe ads did not, however, totally annihilate the Prelates, or put an end to that branch of the three eftates. They ftill enjoyed the right to fit in parliament ; but, deprived of their revenues, they became not a little contemptible, and were unable to bear the expence of theit rank, or of attending the great council of the nation. This James did not relifh. Befides his natural repugnance to a fyftem that was little fuited to his exalted notions of royal prerogative, he could not fail to fee that the influence of the crown would be greatly di- minift?ed by the total abolition of the ecclefiaftical eftate. He therefore ardently wifhed to fupport Epifcopacy ; but the prejudices which the nation, in general, had conceived againft the name and charader of Biihops were fo violent, that he durft not for fome time * 1592, cap. iiC. Chap. II. O F S C O T L A N D. 71 time avow his intentions. He went therefore to work in a more cautious manner. In 1597 he prevailed with the commiffion * that had been appointed by the lad general aflembly, to complain to par- liament that the Church was the only body in tlic kingdom deftitute of rcprefentatives, and to crave that a competent number of the clergy might be admitted to a feai, according to ancient cuftom f- In confequence of this application an ad: pafled |, ordaining that the paftors and minifters, on whom his Majefty fliould at any time confer the office, place, title, and dignity of a Billiop, Abbot, or other Prelate, fhould have a vote in pailiament, and that all the biflioprics then vacant, or to become vacant, fhould be beftowcd on- ly upon adlual preachers and minifters of the Church. But, in order to prevent jealoufy, it was, by the fame adt, remitted to the King to advife and agree with the general aflembly, what authority ihofe upon whom bifhoprics might be beftowed, fliould have in the fpiri- tual policy and government of the Church. This a£l was far from giving general fatlsfadion to the clergy. Though calculated to refledt luftre upon their order, they were willing to facrifice every confideration of intereft and ambition to their abhorrence of Epifcopacy. The general aflembly was, how- ever, at laft prevailed with, after much debate and cppofition, to declare, in March 1598, that it was lawful for minifters to accept of a feat in parliament; that it would be beneficial to the Church to have its rcprefentatives in that body ; and that fifty-one perfons (a number ' *■ The commifflon Is a committee named by the general aflembly to fmifli tlie bufi- nefs they cannot overtake during their own fitting, and to attend to the intereft of tlie Church. f Spottifwood, 450. t 1597. cap- 235. 72 OFTHEPARLIAMENT Book I. number nearly equal to that of the old fpiritual eftate) fhould be chofen from among the clergy for that purpofe *. The manner of eledling thefe reprefentatlves, and the authority they were to enjoy, were not fixed till the beginning of the year 1600, when a general aflembly was held at Montrofe, in which, notwithftanding all the addrefs the King employed to acquire a ma- jority, he with difficulty got the following regulations agreed to : That the general aflembly fhould recommend fix perfons to every vacant benefice that gave a title to a feat in parliament, out of whom the King fhould name one : That the perfon to be fo named fhould neither propofe nor confent to any thing in parliament that might afFed the intereft of the Church, without fpecial inftrudions to that efletl : That he fhould be anfwerable for his condud to the general aflembly, and fubmit to its cenfure, under the pain of excommuni- cation : That he fhould difcharge the duties of a paftor in a particu- lar congregation, and ufurp no ecclefiaftical jurifdi£tion over his brethren: That, if the Church infiided on him a fentence of de- privation, he fhould thereby forfeit his feat in parliament : And that he fliould annually refign his coinmifl[ion to the general afl'embly, to be reftored or not, as the aflembly, with the approbation of the King, fliould think moft for the good of the Church f. Thefe regulations, howe^'er, did not take place. James fucceeded in a few years to the crown of England, which added much to his authority and influence in Scotland; and, in 1606, he found himfelf enabled to obtain the fandion of parliament to the reflitution of the order of Bifhops, and to a repeal of the ad of annexation, in fo fat as *■ tjpottifwood, 450, Caklenvood's manufcript Hifbory of Scotland, vo]. 5. pag. 278. h Spottlfwood, 453- 457. Calderwood, vol. 5. pag. 368. Chap. IF. OF S C O T L A N D. 73 as it related to their benefices *. Nor did lie flop there; another a(St paffed in 1609 f, reftoring to Archbilhops and Bifhops their former jurildidlion, efpecially the jurifdidtionof commiflaiiots, and the power of adminiflering juflicc, by comminiirics, within their refpedive dio- cefes. Their powers were (Vill farther enlarged by an a£t in 16 12 J ; and, in 1617 (|, all the deans, and other members of the chapters of cathedrals, were reftored to their manfes, glebes, rents, and other patrimony. In this manner did James bring about his fcheme of reftoring Epifcopacy. He indeed wanted to go ftill farther, and to reduce the Church of Scotland to the fame form, in every refpect, with the church of England. That, however, he lived not to accoinplifli; and his fucceflbr, Charles I. treading too precipitately in his father's footfteps, and preffing too eagerly the reception of the liturgy, and the obfervance of ceremonies, to which the Scottifh nation was in general averfe, he thereby kindled the flames of civil war, the con- fcquences of which were fatal to his defigns, and obliged him, in 1640, to confent to fcveral adls of parliament entirely abolifliing the Epifcopal form of Church government, and excluding all Arch- bifliops, Bifhops, and other prelates, from a feat in parliament, which was then declared to confiil of the nobility, barons, and burgefles. This alteration upon the conftitution of parliament, by lopping off one of the three eftates, was not, however, at that time of long continuance. Epifcopacy returned upon the reftoration of the mo- narchy ; and, by an acl of the fecond feflion of the firfl: parliament K of * \6o6, cap. 2. ■[ 1609, cap. 6. X 1612, cap. I. II 1617, cap. I. ;. 74 OF THE PARLIAMENT Book L of Charles II. *, fetting forth, in ftrong terms, that it was an inhe- rent right of the crown, by virtue of the King's prerogative and fupremacy in -caufes ecclefiaftical, to order and difpofe -of the exter- nal government and polity of the Church ; the archbilhops anJ bifhops were reftored to their ancient place and privilege i-n parlia- ment, and to the full exercife of their Epifcopal fundlions, prece- dence in the Church, power of ordination and infliding of ccnfures, and all other adts of Church difcipline f . The-'natldnal averiion from Fpifcopacy was, however, too deepiv Tooted, and too violent, to be eafily deftroyed. It was the caufe of many commotions during the reign of Charles II. and was foftered b}Mhe arbitrary proceedings of his fucceflbr, and the eager defirc that fuperfthious Prince difcovered to introduce Popery. No fooner, therefore, was a period put to his government, than an abhorrence of Prelacy was publicly avowed, and the Epifcopal form of Church government declared to be a great and unfupportable grievance. This was * 1662, cap. I. f It may here be obfervcJ, that the archbilhops and bllhops were brought h^ito par- liament before tlie ftatute reftoring them to their feats had paffed. The parhament met upon the 8th of May 1662, and they were that day received ; but the ar not ; but it was ordered, bylhe a£t 1427, cap. loi. that all bifliops, abbots, priors, Dukes, Earls, Lords of Parliament, and banrenta, fliould be fummoned by •the King's fpecial precepts ; and as, by the fame ftatute, James I. intended to introduce a reprefentation of the fmall barons, it is to be fuppofed that they were to be fummoned edidally, in confe- quence of brieves, or writs, iflued from the Chancery to the fheriffs of the feveral counties: And, although this intended alteration upon the conftitution of parliament did not then take place, wc know that it was the pradtice to ifTue general writs to fheriffs and bailiffs to fummon prelates, peers, freeholders, and commiflioncrs from boroughs, and likewife to fend fpecial precepts to each of the pre- lates and peers, or great barons. This we learn from an order of James HI. entered in the records of parliament on the 21ft of Fe- bruary 1487, in the following wo'rds: ' We do you to wit, that our * Sovereign -Chap.TI. O T S C O T L a N D,, 77 ' Sovereign Lord, by the advice of his council, has, for certain rea- ' fonabie and great c.-iufcs, deferted and diflblvcd his parliament ' that was continued of before to the jth of iMay next to come, and ' has ordained a new general parliament to be fet and proclaimed ' to be holden at Edinburgh th^ 12th day of May next to come, 'with continuation of days; and general precepts, to pafs to all ' Lords, prelates, barons, freeholders, and commiflaries'j and witli ' fpccial letters under his fignet to all the prelates and great Lord.; ' of his realm, to flicw and declare to them the caufe of the fitting of ' his faid parliament.' Copies of the order to Chancery to ifllic writs, or precepts, to the fhenfTs, &c. ; and of thefe precepts, and likewife of the fpecial precepts to the prelates and peers, are infcrted in the Appendix, No.'s 15. 16. 17. and 18. The author of the Eflays on Briiifh Antiquities fuppofes, that the fpecial letters to the prelates and great Lords had gone into difufe before 1587, becaufe, by the adt of that year, eftablifliing the repre- fentation of the fmall barons, it was enadted, ' That the faid com- *«miffioners be warned at the firll be virtue of precepts furth of the * Chancellary, or be his hienelTe miffive letters or charges, and in all * times thereafter be precepts of the Chancellary, as fall be direded ' to the other eftaites.' But this does not feem to be a neceflary con- vlufion. It does, however, appear, that, at laft, even the general precepts from the Chancery had been diopped, and that parliaments came to be called only by proclamation*. When, through a negie£l to elc£t commiflioners at Michaelmas, or from any other caufe, it became neceflary to choofe them upon the approach of a parliament, the diet for eleflion appears to have been fixed by the fheriff. Upon the 7th of July 1681, the privy council, '■ A copy of fiich proclamation is inferted in the Appendix, No. ip. 78 OF THE PARLIAMENT Book I. council, in confequence of a coniplaint from fome of the freeholders of Berwickiliire, that the fherihf intended to furprifethem in eleding tlieir coinmiffioners, by giving only one d.iy's notice, found that the iheriffonly, and not the council, could fix the diet of e!e£tion ; but they, at the fame time, ordered the llierifF to give at lead fix days no- tice, that the freeholders might have tinie and leifure to aflenible ; and that the notice fhould be given at the head borough of the fliire, by proclamation over the market crofs, and by tuck of drum through the town *. The ad 1681, cap. 21. had not then pafled : but it was theieby enaded as follows: ' And to the cfFe£t that fufncient ' advertifement may be given to all parties having vote in elecftions, ' who are to ele<£t at the calling of a parliament or convention, the * fherifFs and ftewarts are hereby ordained to make publication of ' the call and diet of the faid parliament and convention, and of the ' diet appointed for eledion, and that at the head borough of the ' fhire or ftewartry, upon a market day, betwixt ten and twelve in ' the forenoon : And alfo, fliall make the like intimation at each * parifh kirk on Sunday immediately thereafter ; which diets for * eledion fhall at leaft be twelve days before the meeting of parlia- * ment, or eight days before the meeting of a convention, that the ' commiffioners elected may have fufficiency of time to keep the diet ' of the parliament or convention.' When a vacancy happened during the fitting of parliament, an order for a new election iffued in the name of the Sovereign, or his commiffioner, and of the cHates of parliament. It was cuftomary to name the diet of eledion in this order f. Till the reign of Charles I. the parliaments in Scotland, though exceedingly frequent, were never of long endurance. To ufe the prefent * Fountainhall, vol. i. page 140. f Copies of fuch orders arc inferted in the Appendix, No. 20. Chap. II. OF S C O T L A N I\ • 79 prefent pailiarncntary lanj^uagc, tliey lallcJ only one fefllon. We indeed meet with a few inllanccs of their heing coHtinued (adjourn- ed) to a diftant day in the reign of James 1. hut t!)cy did not alwajs .meet again at the appointed time, llicy were to be fiimmoned a certain number of days preceding thofe to which tliey were adjourn- ed ; and if that ly^s neglev^ed, tlie adjournment became equal to a (lifToIution *. It was even an ohjecl to fliorten, as much as poflihle, ihe period of the fitting of parliament ; and, on that account, it was not infrequent to remit bulinefs of the, grcated importance to feleft committees, and to decL i"e the determinations or refolutions of fuch committees to he equally binding as if pafled in full parliament. One remarkable inftance in the time of James III. has already been taken notice of, and many more might be given ; but the following will fuffice. In the feventh parliament of James VI. anno 1581, cer- tain pcrfons were named to confider fuch articles as could not be o- vertaken during its fitting, and to pafs a£ts concerning them, which were to he equally valid aiid obligatoiy as if palTed in parliament. In the eleventh parliament of the fame Prince, aimo isSj, power was given to certain perfons of each eftaie ' to treat, confult, tlclibe- ' xate, and conclude, upon fuch taxation as fhall be thought expe- *dicnt '* In 1683, the parliament flioulJ htive met upon the 17th of July, but no meeting was then held, nor was there any previous prorogation. It was, however, afterwards prorogued, by a letter from the King, to the 6ih of December ; upon which Fountain- hall has made the following remark, vol. i. page 238. ' It was doubted if it was not * extin?ith the Church of England ; and, in order flill more to fecure the influence of the crown, the officers of flate were added t, and the Lord Chancellor was appointed their prelldent. * Calderwood, page 775. f The adding the officers of ftate to the committee of articles was, however, no inno- vation. It was an old practice, though when it was firfl: introduced does not with cer- tainty appear. No mention is made of them in the letter from Randolph to Sir William Cecil, at the opening of the parliament 1560; nor have I found them in any of the records of parliament earlier than that of the firfr parliament of James VI. held in 1567, where the treafurer, the fecretary, the privy fcal, the clerk regifter, and the advocate, are mentioned to be upon the articles. In 1581, I find the chancellor, treafurer, fecre- tary, comptroller, and clerk regifter. In 1592, the fame, only the juftice clerk inftead of the clerk regifter. In 1607, I find the mafter of requcfts, the privy feal, the comp- troller, the colleftor, the juftice clerk, and the advocate; and, in 1617, the high trea- furer, the treafurer depute, the fecretan-, the privy fcal, the mafter of requefts, the clerk reoifter, the juftice clerk, and the advocate. We alfo learn from the records of this parliament, that it was then fixed that thefe officers, (being eight in number), and no more, fhould be upon the articles in time to come. The words of the record are : « A queftion being moved to his Majefty, anent the number of officers of ftate who « were to have place and vote in parliament and the articles; and after that the clerk « regifter had fhewn, out of the regifteris of many parliaments, that they have been « fometimes more and fometimes fewer than eight, his facred Majefly, for making the ' number certain in all time hereafter, was gracioufly pleafed to declare, that in this, ' and \ Chap. II. OF SCOTLAND. 95 prefident. A particular account of the procedure in choofing the Lords of the Articles, at that time, is to be found in the records of the parUanient 1633. The fecond parliament of Charles I. which met in 1640, was not difpofed to follow a precedent fo adverfe to its own freedom. The people had taken up arms in defence of their religion and liberties, and were unwilling to part with either in an indirect manner. An ad accordingly palled *', 'declaring that all fubfequent parliaments fliould be at liberty to choofe committees for articles, or not, as they might think expedient ; that, in the event of their chooiing fuch committees, each eftate fhould name its own members; that all pro- pofitions fliould firft be prefented to the cftates themfelves ; that the committee for articles fhould only confulc upon the expediency or inexpediency of fuch articles as fliould be committed to them by the eftates, and report their opinion ; and that, if they happened to omit making a report as to any of the articles fo committed to them, it fhould be lawful to the prefenters of fuch articles to move them a- gain in parliament. By another a<£l of the fame fefTion f , the above mentioned adl of James VI. 1594, cap. 222. was exprefsly repealed, and all grievances, and other matters to be treated in parliament, were ordered to be given in, and prefented in full parliament. Thefe < and all parliaments hereafter, there fhould be no more of the faid officers of ftate * who fliould fit and have place, and vote in parliament and articles, but only eight fet ' down, and their fucceflors in their place ; and if at any time hereafter there fliould < be any more of the faid officers of ftate nor eight employed in the execution of the * faid offices by deputation, divihon, or othervirife whatfoever, yet no more fhould hare ' place and vote in this and all parliaments hereafter, but eight allenarly.' -* 1640, cap. 3. ■\ 1640, cap. 25. t)6 OF THE P:ARLIAMENT Book I. Thefe beneGcial ftatutes were, however, refcinded after the refto- ration, when the recent memory of the tyranny of ufurpation, and of the diftreiTcs the country fuffcrcd under the civil war, and by the to- tal fubverfion of the ancient conflitution, produced for a while a kind of adoration of monarchy, and the mod implicit fubmifllon to royal prerogative. In 1661, twelve out of each ertate were put upon the articles; and we find in the records of parliament the following entry of the 8th of May 1662: ' The which day the archbifhopa ' of St Andrews and Glafgow, the bifliops of Galloway, Dunkeld, ' Murray, Rofs, Brechin, Gaithnefs, and Ifies, being brought into the ' houfe, took the oath of allegiance and the oath of parliament. ' The Lord Commiffioner adds the nine bifhops above named to the ' Lords of the Articles; and alfo adds Sir John Urquhart of Gro- * martie in place of Sir Alexander Gibfon of Durie. And it is de- ' clared that the nomination and conflitution of the articles at this * time fhall be without prejudice of what courfe his Majefty fhall * take hereafter for the conflitution of the articles.' This commit- tee was accordingly reftored to its full luftre in 1663, by the autho- rity of parliament * ; and the mode of eleding its members that had been obferved in 1633 was ordered to be followed in time to come. But this delufion lafted not long. The ardent fpirit of civil and religious liberty which brought about the revolution, and dictated to the eftates of the kingdom that memorable vote, by which they de- clared that James VH. had forfeited his right to the crown, could not fubmit to a grievance of this kind. It was, indeed, the very firft of fifteen articles of grievance, contained in the i8th adt of the meeting * 1663, cap. I. This aft was a moft fubmiffive acquiefcence in the will of the King, declared by his commiffioner in ftrong terms. A copy of it is in the Appendix," No. 21. Chap. II. OF SCOTLAND. 97 , meeting of the eftates in 1689, and reprefented to King William in order to be rcdrefled in parliament. This article was thus cxprefTcd : ■* The cflatcs of the kingdom of Scotland do reprefcnt, that the coni- * mittee of parliament, called the Articles, is a great grievance to the * nation, and that there ought to be no committee of parliament, ' but fuch as are freely chofen by the eftates to prepare motions and * overtures that are firft made in the houfe.' It v\'as accordingly enacted, in the fecond fefllon of parliament held by William and Mary *, that the committee of articles fhould be abrogated in all time to come; and that the then, and all fubfequent parlia- ments, fliould choofe and appoint committees of v\'hat numbc-r they pleafed, there being always an equal number of each eftate chofen; the noblemen by the eftate of noblemen, the barons by the eftate of barons, and the burgefles by the eftate of burgefles '[", for preparing all motions or overtures firft made in tlie houfe ; and might alter and change fuch committees at pleafure; but with this condi- tion, that, in all committees, feme of the officers of ftate appointed by the King, or his commiffioner, might be prefent, and have power freely to propofe and debate, but no power to vote %. N Although * 1690, cap. 3. •j- It will be remembered, that an end had been put to the fpiritual eftate by the adt 1689, cap. 3. % This was not altogether agreeable to King "William, who confidered it to be for the intereft of the crown to preferve this committee. He was, however, willing to confent to its being regulated, fo that the number might be enlarged and changed as often as the parliament fliould defire it, and that the parliament might bring matters before them though rejefted by the Lords of the Articles. This he thought would an- fwer all the juft complaints that had been made of tliat part of the conftitution ; but it was pretended by the friends of liberty, that, if even the name and fhadow of this committee were allowed to remain, the parliament might again, in time, be infenfibly brought 98 O F T H E P A R L I A M E N T Book I. Although I have confidercd the committee of articles as a diftin- guifliing feature in the parliament of Scotland, yet we find fome- thing fim.ilar to it in the parliament of England in early times. The great barons delighting to lefide at their caftles in the country, and having little tafte for tedious political inveftigations, the feflions of parliament were, for fome time, very fliort in England as well as in Scotland. In order, therefore, to get the neceffary bufinefs quickly defpatched, the laws which the King wifhed to be ena£ted were drawn up by the council, or by the judges, in the form of ftatutes, and, after being read in parliament, were at once either pafTed or re- je£ted *. Certain perfons were alfo appointed by the King fome time before the meeting of a parliament, to receive and try fuch petitions as were to be prefented from the feveral parts of the kingdom. And, on the firft day of .the parliament, proclamation was made at the door of the houfe, and at other public places, that all perfons who had any petitions to prefent fhould give them in to thofe who had been ap- pointed to receive themf- Another diiference between the parliaments of the two kingdoms, worthy of remark, is, that, in England, the granting general fubfi- dies or aids to the crown, was, at leaft, for fome centuries before the union, in a manner committed folely to the Commons; whei-eas, in Scotland, all the three eftates went hand in hand in that, as well as in other matters. It brought under all thofe refti-aints that were then to be provided againft ; and they ac- rordingly carried their point, and got it totally aboliflied. See Burnet, vol. 2, page 2^. 5iV John Dalrympl^s Memoirs, part. 2, took 3. page 78. * Hale's Hift. Common Law, cap. k pag. 13. 14, -}• Ryley placita Parliamentaria, pag. 240. Chap. II. O F S C O T L A N D. -99 It is true, that, in England, every money bill required the con- currence of the Lords as well as of the Commons; but no fuch bill could originate in the houfe of Lords; and, although they might refufe to concur, they had no power to make any alterations or a- inendments. It may therefore with propriety be faid, that, in Hng- landt the Commons had the fole power of iinpofing taxes. This rule could not well take place in Scotland, where all the cflatcs met in a joint body, and formed only one lioufc of j"»arliament. Nor, indeed, was there the fame reafon for it. The upper houfe in Eng- land, confifling of fpiritual Lords, who owed their benelices and feats in parliament to the King, and of temporal Lords, who were a hereditary and permanent body, nowife dependent on the people, and who, by their rank, were naturally called to many great and lucrative offices, might be fuppofed more apt to be influenced by the crown than the Commons, who were a temporary eledive body, freely named by the people. It might therefore be thought dange- rous to intruft'the former even with the power of propofing taxes upon the fubjcd: ; whereas, on the other hand, it was not to be fear- ed that the latter, who were the reprefentatives of the gieat body of the nation, would be fo ready to grant unncceilary fupplies, or to lay a greater burden upon the people than the exigencies of the ftatc truly required. It was fufficient that the Lords had a negative to check the Commons, if they lliould be too lavifh or improvident in their grants *. But in Scotland, where, for a long time, the bulk of the landed property was in the hands of the church and of the nobles, or their vaiTals and dependents ; and, where there was little N 2 trade * See Blackftone, vol. i. page i6^. But how well focver this reafoning may ac- count for the conthuiance of the praftice of all money hills originating in the Houfe of Commons, the introduiftion of it may be afcribed to another caufe, viz. that, when burgefles were firft fent to parliament, they had no power to offer any higher fupply than they were authorifed to grant by their conflituents. See C/ji^f Barcn Gilbert's Trcctife cr: the Court of E^:chequer, prge 3 7, 100 OF THE PARLIAMENT Book L trade or commerce to be the foundation of wealth and indepen- dence, it was late before the Commons could have much influence in the affairs of government. The fpiritual eftate and the nobles, poflefled of great eftates, might fafely be trufted with the power not only of propofing, but even of impofing taxes, which were to be moft fenfibly felt by themfelves*; and it was unneceffary that nieir authority fhould be lefs in matters of that kind than in other affairs that came to be determined in parliament. In Scotland, reprefentatives went only from the counties and the boroughs; but, in England, the univerfities likewife fent reprefenta- tives to parliament. The firft inftance we difcover of this was in the 28th of Edward I. when a parliament being fummoned to confider of that King's right to Scotland, writs were iffued for that purpofe, requiring the univerfity of Oxford to fend four or five, and that of Cambridge to fend two or three of their moft difcreet and learned lawyers "f. It was not, however, till the reign of James I. of Eng- land, and VI. of Scotland, who plumed himfelf much upon his fcho- lar-craft, that each of the two univerfities were indulged with the privilege of conftantly fending two out of their bodies to parlia- ment J. It is likewife to be obferved, that, befides regular parliaments, the Kings of Scotland were wont, upon particular emergencies, which re- quired * While Scotland remained a feparate kingdom, few taxes were known but the land tax, which was in general levied in the following proportion : The church lands paid one half ; the temporal lands one third ; and the boroughs one fixth. Seed.? 1597? cap. 281. The boroughs pay die fame proportion of the land tax at thij day. •} Prynne, Pari, writs i. page 345.- ^ I Blackilone, vol. i. page 168- Chap. II. OF SCOTLAND. lOI quired immediate deliberation and execution, fuch as a fuddcn Invafion, or the ncceflity of raifing a fum of money to anfwer a fudden exigen- cy, to call what were termed conventions of the ejlates. On fuch occa- fions there was no necefruy for any formal citation of all thofe who had a right to fit in parliament : The King called any number that could be fpeedily drawn together, and their powers were limited to that particular bufmefs for which they were called. It fliould ap- pear, that, on fome occafions, it had been negledted to call any of the eftate of boroughs to thefe conventions, and that complaints had been made on that fcore ; for, by a ftatute of James IV. *, it was ordained, ' that the commiflaries and headfmen of boroughs be ' warned, quhen taxes or contributionis are given, to have their ad- * vife thcreintill, as ane of the three eftaites of the realme t>' And by * 1503, cap. 85. t Sir George M'Kenzie, in his Obfervations upon this ftatute, page 11 (5. fays, that < it fliews, that, of old, taxations were laid on in conventions, which confifted of any < the King called fummarly. off the Jlreet ; nor were the boroughs oft times called.' It is no doubt true, that, on particular occafions, money was voted in conventions, confift- ing of a fniall number of the eftates. A remarkable inftance is to be found in the privy council records, 6th October 1556: 'Sederunt Georgius comes de Hunt- « lie, Archibaldus Ergadiae comes. Jacobus Moraviae comes. Jacobus comes de Both- « will, Joannes comes de Athol, Georgius comes de Caithnes, Andreas comes de < Rothes, Joannes archiepifcopus Sti Andreae, Alexander epilcopus Candidae Cafae, ' Joannes epifcopus RofTen. Adam epifcopusOrchaden. Robertus epifcopus Dunkelden. < commiflarii burgornm Edinburgh, Dundie, Aberdein, Striveling, Perth, St Androis, ' Lithgow, Haddington, thefaurariiis, computorum rotulator, clericus regiftri, clericus « jufticariae, advocatus. Taxatioun granted of twelve thoufand pounds. For as meilcle ' as fum of the greateft Princes in Chriftendom hes erneftlie requirit of our Soverans ' that be thair ambafladouris thai may be witnefles and goffepis at the baptifme of thair » Majefties delreft fon the native Prince of this realme, quhais requifiiioun bein" baith ' reflbnabill and honourabiU, thair Majefties hes gladlie condefcendit thairunto and ' daylie lukis for the arriving of the faids ambaluidouris; for the quliiik purpois honou- «• rabill cxpences will be requifite, quhilk movit thair IMaiefties to expone the matter to a 'glide 102 OF THE PARLIAMENT Book I. by another ftatute of Queen Mary *, fetting forth, that the Queen intended rather to augment than to dhninifh the privileges of the inhabitants of boroughs, it was enaded, ' That five or fex of the * principalles proveftes aldermen and bailhes of this rcalme, fall in all ' times to cum, be warned to all conventiones that fall happen the * Queenis grace and her fuccelToures, to conclude upon peace or ' weir with quhatfumever her Hienes confederates or enemies, or * making or granting of general taxationes of this realme ; and that ' her Hienes or councel fall not conclude nor decerne upon peace, * weir, nor taxationes forefaidis without five or lex of the faidis ' principalles proveftes aldermen and baillies of burrowis be warned * thairto lauchfullie as efieiris t-' The ' gude number of the prelatis, nobllltie, and commiffionaris of burrowis conveint * this day to that effeft; and thai underftanding the occafion to be fa necefTarie, tend- ' ing to the honour and eftimatioun of our Soverans thair realme, and common weill ' thairof, hes all with ane confent and avyfe, liberallie and voluntarie grantit to thair ' Majefties for fupplying and relief of the faids expenfes, ane taxatioun of twelve thou- * fand pounds, to be payit be the faids eftaitis at the laft day of November nixt to cume ' in manner following ; that is to fay, fix thoufand pounds be the fpiritual eftait, four ' thoufand pounds be the baronis and freehaldaris, and twa thoufand pounds be the ' burrowis,* &c. ' J 563, cap. 82. "^ >■; V. 1 I.:-., ; , , .. ' . t Keith, in his hiftory, page 151. has given us an account of feveral afts of the parlia- ment held in 1560, which are not on record, or mentioned by other hiftorians. They -were communicated to him from the repofitory of the Scottifh College at Paris, under the following title : ' Heads of acts made in the pretended parliament in Auguft 1560.' One ot them ftands thus: * It is ftatut and ordainit, thair fall be certain commiflioneris ' of burrowis for the marchandis eftate at every convention, at leift 6 or 8 of them to ' gif thair confent and writ to any taxation (that) beis raifit, or weir or peace tain in '■ hand.' Chap. II. O F S C O T L A N D. 103 The famous aflenibly vvqic,h, in 1689, declared that James VII. of Scotland had forfeited his right to the crown, and fettled it upon Wil- liam and Mary, was denominated a meeting of the eftates. It confid- ed of the laft .parliaiailen^ of James, and was called by circular letters from the Priace of; Oran{^,e, under liis hand and feal. The Duke of Hamiltoti was chofen prefident ; and a letter having been prcfented to them from King James, they, before opening it, declared and enaded, * that, notwithflanding of any thing that may be contained ' in that letter for diffolving them, or impeding their procedure, ' yet that they are a free and lawful meeting of the eftates, and * will continue undiffolved, until they fettle and fecure the Pro- ' teftant. religion, the government, laws, and liberties, of the king- * dom.' This declaration was fubfcribed by feven bifliops, forty- ty-two peers, fifty barons, and the like number of burgeftes. Although the conftitution, and not the powers, of tlie ScotliOi parliament, is the objedl of our prefent confideration, it will not be improper to add that it was W'Ont to a£l not only in a Icgiflative,. but alfo in a judicative capacity. In examining the records of parlia- ment, particularly in the time of James III. we find, befides the committee of articles, two other committees, one for appeals from the fentences of inferior judges, and another for caufcs, which, even of the moft trifling nature, were brought diretlly before the parlia- ment. The court of feflion, which was eftabliflied by James V. did indeed, in the laft century, difpute the power of appealing from their decrees to the parliament. An appeal having been offered in 1674, the judges ordered the appellant's counfel to fay whether or no they had advifed that meafure? and, upon their refufing to anfwer, debarred, them from the exercife of their profeffion. They likewife complain- ed to the privy council, who banilhed not only the appellant's coun- fel, but all the other advocates who refufed to declare their abhorience of fuch appeals, twelve miles from Edinburgh. Under this fentence many I04 OF THE PARLIAMENT Book I. many of the moft eminent advocates remained for feveral months, till, at the King's defire, they were reftored to their privileges, upon difclaiming the right of parties to appeal. But the convention of eftates, in 1689, declared the banifliment of thefe advocates without a trial to be a grievance; and, in the claim of right, afTerted it to be the privilege of the fubjed:s to appeal to parliament from the decrees of the court of feflion. CHAP- CiiAi". III. OF GREAT BRITAIN, 105 CHAPTER III. Of the JE/labltJJjinenl of the Parliament of Great Britain by the Treaty of Union ; and of the Reprejentation allowed to Scotland. AN Union of the two kingdoms was early thought of, but did not take place till the reign of Queen Anne. In the time of James VI. of Scotland, and I. of England, the judges of England gave their opinion, that there could be no incorporating union with- out an entire conformity between the laws of both kingdoms *. Sir Francis Bacon was, however, of a different fentiment f . Fie main- tained, that a general union of laws was unnecefTary; and that no more was requiiite, than that fuch laws as immediately concerned the good of the ftate fhould be the fame in both parts of the united kingdom. Experience has now happily confirmed the juftnefs of his fentiments ; and both nations have reafon to rejoice, that the fubtle reafoning of the judges in the reign of James met not with the fame regard in the reign of his great-grandaughrer. It was, however, the fubjedl of much debate in the parliament of Scotland. Thofe who adhered warmly to the Jacobite intereft oppofed it with vehemence, as they faw it muft ftrike at the root of all their views and fchemes for a new revolution. The Prefbyterians were alfo ftrongly pofTefled with a jealoufy, that one confequence of an union would be a change in church government. The reprefentatives of the fhires and boroughs were accordingly almoft equally divided ; G and • Coke, Inft. 4. cap. 75. pag. 347. t See his works, vol. 4. page 84. 185. 210. 217. io6 ©J THE PARXIAMETsIT Book I. and the peers, wliofe luftre at leafl; was to fuffer by it a confiderable dituinution, turned the fcale for the union in every vote *. By this memorable treaty it was agreed, that, upon the ift of May I 707, and for ever after, the two kingdoms of England and Scotland fhould be united into one kingdom, by the name of Great Britain^ and be rcprefented by one and the fame parliament, to be lliled the Parliament of Great Britain. All the Englifh Lords, both fpiritual and temporal, were allowed to retain their privilege of fit- ting in the Houfe of Peers; and the counties, univerfities, cities, bo- roughs, and cinque ports of England, were to fend the fame number of reprefentatives to the Britifli that they formerly fent to the Englifh Houfe of Commons, amounting the whole to 5 1 3 f. But the repre- fentation given to Scotland was much limited. By the twenty-fecond article of the treaty it was agreed, that the reprefentatives for that part of the united kingdom lliould confilll of lixteen peers, to fit and vote in the Houfe of Lords, and forty-five commoners to fit and vote in the Houfe of Comramons %• ^1 ^"^ ^^ pafled in the parliameut of Scotland ||, confirmed in the parliament of England, and declared by both to he equally valid as if it had been engroffed in the treaty of union, it was enadled, that the fixteen peers fhould be elected by the peers of Scotland, and their heirs or fuccefTors to their dignities and honours, out of their own number, by open eledion and plura- hty * Burnet's Hiftory of liis OTcn times, vol.. 2. page 459. f For a more particular account fee the Appendix, No. 22. \ This was, however, as great a proportion as Scotland was to receive when a part of the commonwealth. By the initrument of government under the proteftorate, tinno 1654, the members for England and Wales were not to exceed 400, and Scotland and Ireland were each to fend 30 ; Rapin, vol. 2. page 593. n 1707, cap. 8. Chap. III. O F G R E A T B R I T A I N. 107 lity of voices *: That, of the forty- five commoners, thirty fliould be chofen by the (hires or ftewartries, and fifteen by the royal bo- roughs : That, of the commiffioners for fliires, each Ihire or fiewar- try (hould name one, except the fliires of Bute and Caithnefs, which were to choofe by turns, Bute having the firfl: eledion, the fnires of Nairn and Cromarty to choofe by turns, Nairn having the firfl eledion, and the fliires of Clackmannan and Klnrofs likewife to choofe by turns, Clackmannan having the firft eledion : That, of the fifteen burgefles, the city of Edinburgh ftnould elc. likcwife excludes Papifts, and all thofe who, being fufpeded of Popery, refufe to fwear and fub- fcribe the formula contained in the adt 1700, cap. 3. entituled, ' an * a£l for preventing the growth of Popery '}"•' The * Before this decifion, the harJfliip of the former judgments had, in fomc degree, been mitigated, by introducing a new pra(51ice, of creating the eldeft fons of Scottifli peers Britiih peers during their fathers lives ; fuch creations not being liable to be vi- tiated by their fubfequent fucceflion to the Scottiih peerage. f The formula is of the folio v,'ing tenor; « I do llncercly, from niy heart, profefs and « declare. ii8 OF THE ELECTION OF Book IT. The Britifh a£t, 6to Annae, cap. 23. requires that the peers, be- fore proceeding to cledion, fhalf take and fubfcribe the oaths of al- legiance and abjuration ; but, as thefe are fo generally known, it is needlefs to infert them. I fhall only obferve, that, upon the death of the late Pretender, fome fmall alterations were made upon the oath of abjuration by the aft 6to Georgii III. cap. ^^. The fame ftatute likewtfe requires their taking the oath, and alfo the declaration inferted in the note below *. ''• ■' By ' declare, before God, who fearcheth the heart, that I do deny, dlfown, and abhor, thefe ' tenets and do(Strines of the Papal Romifla Church, viz. the fupremacy of the Pope and ' Blfliop of Rome over all paftors of the Catholic Church ; his power and authority ' over Kings, Princes, and ftates, and the inf;dlibility that he pretends to, either without • or with a general council; his power of difpenfing and pardoning; the doiTtrine of • tranfubftantiation, and the corporal prefence, with the communion without the cup • in the facrament of the Lord's Supper; the adoration and facriSce profefled and prac- • tifed by the Popifli Chui-th in the mafs ; the invocation of angels and faints ; the ' worfhipping of images, crofles, and relicks ; the dodtrine of fupererogation, indulgen- • cies, and purgatorj' ; and the fervice and worfliip in an unknown tongue : All whicH • tenets and doctrines of the faid church I believe to be contrary to, and iiiconfifteni ' with, the written word of God. And I do from my heart deny, difown, and difclaim, • the faid doi^Lrines and tenets of the Church of Rome, as in the prefence of God, ' without any equivocation or mental refervation, but according to the known and ' plain meaning of the words, as to me. offered and propofed. So help me God.' * The oath which is commonly called the oath of Supremacy is as follows : ' 1 j4 B "■■' do fwear, that I do from my heart abhor, deteft, and abjure, as impious and hereti- ' cal, that damnable doiflrine and pofition, that Princes excommunicated or deprived ' by the Pope, or any authority of the See of Rome, may be depofed or murdered by ' their fubjedts, or any other whatfoever. And I do declare that no foreign Prince, ' prelate, ftate, or potentate, hath, or ought to have, any jurifdidtion, power, fuperiori- • ty, pre-eminence, or authority, ecclefiaftical or fpiritual, within this realm. So help • me. God,' The Chap. I. T H E S C O T T I S II P E E R S, 119 By the a€i of the iQlh of George II. cap. 38. § 26. it Is declared, that no peer fhall be capable to eledl: or to be eleiftcd, who, within a year preceding the clcdtion, has been twice prcfent at divine fervice in any Epifcopal meeting, the pallor whereof has not taken the oaths to government, and does not pray for the King by name, and for all the royal family, in the fame form as in the liturgy of the Church of England. It is competent to any peer prefent at the eledion to make this obje£lion, and to prove it either by one wit- nefs, or by the oath of the peer objeQed to, which the clerk Re- gifter, or either of the clerks of feffion officiating at the eledlion, is impowered to adminifler ; and in cafe the fail be proved or admit- ted, 'File declaration, which is commonly called the Teft, runs thus : ' I ^. J?, do folemn'- ' ly and fincerely, in the prclcnce of God, profefs, teftify, and declare, that I do be^- ' lieve, that in the facranient of the Lord's Supper there is not any tranfubftantiation ' of the elements of bread and wine into the body and blood of Chrift, at or after tlic ' confecration thereof by any perfon whatfoever.; and that the invocation or adoration < of the Virgin Mary, or any other fiiint, and the facrifice of the mafs, as they are now ' ufed in the Church of Rome, are fuperftitious and idolatrous. And I do folemnly, < in the prefence of God, profefs, teftify, and declare, that I do make this declaration, * and every part thereof, in the plain and ordinary fenfe of the words read unto me, as • th^y are commonly underftood by Engli/h Protefl:ants, without any evafion, equivo- ♦ cation, or mental refervation whatfoever, and without any difpenfation already gran- * ted me for this purpofe by the Pope, or any other authority or perfon, or without ' any hope of any fuch difpenfation from any perfon or authority whatfoever, or with- ' out thinking that I am, or can be, acquitted before God or man, or abfoh-ed of this < declaration, or any part thereof, although the Pope, or any other perfon or perfons, « or power whatfoever, fliould diipenfi with, or annul tJie fame, or declare that it was « null and void from the beginning.' This declaration, which the peers are necefl'ari'ly obliged to make before they give their votes, approaches fo nearly to the formula as to make one think that the latter might be difpenfed with; but, as the Scottifli a(Sl 1707, cap. 8. ftands unrepealed, the formula may no doubt ftiU be put, and any peer who Ihall refufe to fwear and fubicribc it, will efiF<;ftuaIly difqualify himfelf from voting at that election. 120 OFTHEELECTIONOF Book II. ted, or the peer objedled to refufe to depofe, he is thereby dlfquali- fied from voting at that election. The peers have a privilege, in matters of ele£lion, beyond com- moners. They are not only entitled to vote when prefent, but may, even when abfent, either appoint a proxy to vote for them, or fend a figned lift to the meeting. This privilege is, however, laid under certain regulations. In thefijl place, the perfon appointed proxy muft be a peer, qua- lified according to law, and having a right himfelf to vote at the eledion ; and the mandate by which he is named muft be duly figned before witneffes. Such are the words of the Scottifh a£t 1707, cap. 8. ; and, on the 26th of January 1708-9, the Houfe of Lords refolved, that fuch mandates were not valid without the fubfcription of the witnefTes. It was, however, found, upon the 29th of the fame month, that there was no neceflity for their mentioning the names of the witneffes, or of the perfon by whom they were written, nor for their being fealed, or written upon ftamped parchment. With regard to the lifts which abfent peers are allowed to fend to the meeting, the ftatute requires only that they be figned j but the Houfe of Lords likewife refolved, upon the fame 29th of January 1708-9, that fuch lifts were not valid without fubfcribing witneffes, but were good although they neither mentioned the name of the writer, nor the defignations (additions) of the witneffes. In the next place, fuch as are peers both of England and of Scot- land muft fign their proxies, or lifts, by the title of their Scottifh peerage ; and no peer can ^€t as proxy for more than two peers at one time *. Lq/t/y, * 6tp Annae, cap. 23. § j. 6. Chap. I. THE SCOTTISH PEERS. in Laflly^ The abfent peers who appoint proxies, or fend figned lids to the meeiing, mufl take and fubfcribc the oaths and declaration ordered to be taken by thofe who are prcfcnt at the cledion. Thofe who live in Scotland may do fo in any ftierifT-court * ; and the flierifF- depute, or his fubftitute, before whom they are taken, mufl: return the original fubfcription of fuch oatlis and declaration to the meeting, together with a certificate tinder his own hand and feal, that they were taken and fubfcrlbed in his prefence t. Thofe, again, who, at the time of iffuing the proclamation for the eledlion, refide in Eng- land, are allowed to take and fubfcribe them in the high court of chancery, court of King's bench, court of common pleas, or court of cxchecjuer, to be certified by writ under the feals of fuch courts \: And, as fome peers who had formerly qualified themfelves might be abfent from the kingdom, in the fervice of the crown, at the time of ifluing a proclamation for eledion, and it was thought hard to de- prive them of their votes merely bccaufe they had it not in their power to qualify anew, the ftatute allowed them to appoint proxies, or to fend figned lifts, upon its being certified, in the manner above mentioned, that they had formerly taken the oaths and declaration, * By the aft of the 2cth of George II. cap. 43. § 29. fhcriffs depute are authorifeJ to hold courts not only at the head borougli of the fliir£, but at other places, upon giving the intimation prefcribed by that ftatute. In praflice, they hold courts for the purpofe of adininiftcring the oatl^to peers without any intimation. As the high flieriiF,. or flierilF princip.il, cannot now hold any court, fo neither can he adminiftcr thefc oatlis. f It was accordingly declared by the Houfe of Lords, January 26th 1708-9, that the flieriff's certificate muft be fcaled as well as figned. The words of the ftatute are indeed exprefs; and' the doubt could only arife from its not being ciiftomary to aJhiblt ftats- to writings in Scotland. :t The court of chancery is open all the year, fo the peers can never be at a \o^:.. 122 OF THE ELECTION OF Book II. or upon its being certified under the great feal, in the event of their having taken them in parhament *. Tlie ax5l of the 19th of George II. contains no.provifion for re- je.dling the proxies or figned lifts of abfent peers who may have been, twice at a nonjurant meeting within a year before the elec- tion-; -but, upon a proof of the fa£l, their proxies, or figned lifts, mull be rcfufed, as, otherwife, the object of the law might be alto- gether defeated. The ftatute does indeed, in general, difqualify them, from voting, and their fending proxies, or figned lifts, is vo- ting, in the proper fenfe of the word, as much as if they were pre- fent at the election. It may be afked. Whether a peer who has the misfortune to be- come fatuous can vote in an eledtion ? The law has faid nothing on that head. I incline to think, that, if he is declared to be in tliat. unhappy ftate by an a(ft of the law, and put under the power of a guardian or tutor, his vote cannot be received by the returning offi- cers 5 but that, until that be done, they are not at liberty to rejed: it, although fuch votes, if queftioned in the Houfe of Lords, ought un- doubtedly to be fet afide. If, indeed, a vote were to be claimed by a peer who was manifeftly 7ion compos, I think the returning officer fhould be juftified in rejecting it. CHAPTER * 6to Annae, cap. 23. § 4. Forms of a proclamation for an cleclion of peers, and of a proxy, a figned lift, and. a flierlff's certificate, are inferted in the Appendix, No. 24. 25. 26. and 27- Chap. ir. THE SCOTTISH PEERS. 123 CHAPTER II. Of the Manner of EleB'ingthe Sixteen Peers of Scotland. WIL have already feen, that, when a parliament is to be held, the peers of Scotland are called, by proclamation, to meet for the purpofe of eleQlng their reprclentatives j and that fuch pro- clamation muft be publiflaed at Edinburgh, and the other county towns of Scotland, at leaft twenty-five days before the time ap- pointed for the eledion. The fame ftatute * orders the peers to come to fuch meetings with their ordinary attendants only, under the feveral penalties infiided by the laws and ftatutes of Scotland, prefcribing and direding Vv'ith what numbers and attendants the fubjcds of that part of the king- dom might repair to the public courts of juftice f . 0^2 It * 6to Annae, cap. ;3. § 8. f By the aft 1457, cap. 82. confirmed by 1487, cap. 104. it was ordained, that all the lieges Ihould come to the King's courts, fpiritual or temporal, in a fober and quiet manner, and bring with them no more pcrfons than are in tKeir daily hciilcliokl and family. By the aft 1555, cap. 41. perfons called before a criminal court were only al- lowed to have fix of their friends with them at the bar, befides their advocates, to de- fend them ; the profecutors were allowed to bring no more than four; and the' judges were ordered to charge the breakers of that aft to enter their pcrfons in ward, to remain there during the Queen's pleafure, under the pain of rebellion, and in cafe of their refufal to put them to the horn, i.e. outlaw thc.m. Thefp afts were ratified by 1584, cap. 14c. with this addition, that thofe who repaired to the criminal courts othefwife ttan they were al- lowed 1-4 OF THE ELECTION OF Book fl. It irkewife declares, that it fliall not be lawful for the peers fo met together to ad, propofe, debate, or treat, of any matter or thing \vhatroever, except the eleilion of their reprefentatives ; and that any perfon who fhall at fuch meeting prefume to a£l, propofe, de- bate, or treat, of any other matter, Ihall incur tlie penalty of premu- nire, as exprefled in the ftatute of the i6th of King Richard 11 *. The day named for the election being come, the peers aflemble at the place fixed by the proclamation "f, and are attended by tlie Lord Clerk lowed by fuch atfls, Ihould incur the crims of convocation of the King's lieges. An un- lawful convocation is a commotion of the people raifed without legal authority. The convocating the lieges in bands of men of war for daily or monthly wages, without fpecial licenfe, was made capital by the atfls 1563, cap. 7^. and 1585, cap. 12. But Sir George M'Kenzie informs us, that the crime of fimple convocation, without bands or leagues, was commonly profecuted before the privy council, and was feldom punifli- ed, taitquam crimen per fc, but only as an aggravation of a riot, or other crime. * The ftatute here referred to was defigned to prevent the purchafing of bulls from Rome, and to declare the independency of the crown of England ; and it particularly enaiSted, * that if any purchafe or purfue, or caufe to be purchafed or pur- ♦ fued, in the court of Rome, or elfewhere, by any fuch trandations, procefles, and ' fentences of excommunication, bulls, inflruments, or any other things whatfocver ' which toucli the King, againft him, his crown, and his regally, or his realm, as is ♦ aforefaid ; and they which bring within the realm, or them receive, or make thereof ' notification, or any other execution whatfoever, within the fame realm, or without, * that they, their notaries, procurators, maintainers, abettors, fautors, and counfellors, < ihall be put out of the King's proteftion, and their lands and tenements, goods and * chattels, forfeit to our Lord the King -, and that they be attached by their bodies, if ' they may be found, and brought before the King and his council, there to anftver to < the cafes aforefiiid ; or that procefs be made againft them by pvemunh-e facias, in man- « ner as it is ordained in other ftatutes of provifors, and other which do fue in any ' other court, in derogation of Ihe regalty of our Lord tlie King.* f The place always now appointed is the abbay of Holyroodhoufe. The bailie of the CiiAP. ir. THE SCOTTISH PEERS. 125 Clerk R'eglllcr, or two of the principal clerks of fofnon, xippointcd by him to officiate in his name. After prayers by one of the King's chaplains, two of whom attend for that purpofe, the proclamation, and the execution at the market crofs of Fdinhurgh *, arc read ; but no evidence of the execution at the other county towns is re- quired or produced. The roll is then called f, and the peers prefent are marked in the minutes, as are likewife the proxies and figncd lifts of thofe who arc abfent. This being done, the oaths and de- claration are adininiftered to the peers who are prefent, and the oaths taken by thofe who have fent proxies or lifts are examined ; after the abbay picks out from the inhabitants a guard to attend on the occafion, and names officers to command them. The room wlicre the peers meet is prepared for tli'eir re- ception by the keeper of the wardrobe. * By an execution, in the language of the law of Scotland, is undcrflood the indorfe- ment of the proper officer, certifying that a proclamation, oj- otlicr v^rit, has been duly publiflicd or ferved. -[ The roll is the fame with that which was called in the laft parliament of Scotland, (a copy of which is annexed in the Appendix, No. 28.), with the following alterations. There have been fince added the Prince of Wales as Duke of Rothf;ty, who accor- dingly voted in 1716 by a Cgned lift; the Earl of Solway, (a title conferred upon tlie Lite Duke of Queenfbeny in 1706, then an inflint, and a fecond fon, but now extin£l> and the Lords Sommervill, and Colvil of Culrofs, in terms of an order of the Houfe of Lords of the 27th May 1723. The peers who were attainted for their acceilion to the rebellions 1715, and 1745, are now left out. Some other peerages being fuppofed extinft, the Honfe of Lords have iflued orders prohibiting certain perfons from affu- ming the titles until they eftablifh their right to them; but, as thefe prohibitions are perfonal, the titles remain upon the roll, and are called as formerly. At the eleiflion 1768, a liil: was fent by Walter Lord Aflon of Forfar, but no fuch peerage being upon the roll, the hft was not received, Thofe, however, who can eftablifli their right to a Scottifh peerage, although not upon the roll, may vote under proteftation; and their votes, if brought to a queftion in tlie Houfe of Lords, mull in juftice be fuliained. 126 OF THE ELECTION OF Book If. after which, the votes are carefully colledted, and the lifts invefti- gated, and a certificate of the names of the fixteen peers who have the majority of voices in their favour is made out upon parchment, figned and read in prefence of the meeting by the Lord Clerk Re- gifter, or the clerks of fe/iipn appointed to officiate for him, and re- turned to the court of chancery before the time fixed for t-he meet- ing of the parliament, in a packet addrefled to the clerk of the crown *. The peers have no power to decide upon difputed titles at their meetings for elc£i:ion. When, therefore, two appear to claim the f.\me peerage, both muft be allowed to vote ; but protefts may be entered by the other peers agalaft the votes of both or^ either of them; and, in like manner, they may themfelyes objedl to, and pro- tefl againft, each other's right. No notice is, however, taken in the certificate returned to the crown office of any objections that may have been made irl the meeting; but thofe peers who defire it are entitled to get a copy'of fuch objedions, or an extra£l (exernplifiea- tion) of the minutes from the returning officer, and rnaydifpijte the eledlion of the peer, or peers, objected to, by preferring a petition to the Houfe of Lords complaining of the return. Of this there are two infiances, the one in 1708-9, the other in ij^^-S- Upon the firft of thefe occafions, the clerks of feffion who made the return v.'ere ordered to carry up the proceedings, and to vindicate their condud. The law has eftablifhed no decifive, or cafting vote, in the event of an equality of voices for two or more of the candidates : AH, therefore, the returning officers can do, is to certify the fa£t, leaving it to the Houfe of Lords to ad as they ihall think fit. Hitherto * A copy of the certificate is to be found in the Appendix, No. 29. i Chap. II. T H E S C O T T I S II P E E R S. 127 Hitherto 1 have only fpokcri of a general cledlion upon the calling of a new parliament. The fame rules are, however, obfervcd when a vacancy happens by the death, or legal diiability, of any of the iixtccn peers during the courfe of a parliament. A proclamation illacs for fummoning all the peers to meet and elect a new repre- fentativc to lupply the vacancy ; and the fame form of procedure takes place at that meeting as at a general eled:ion *. All elcdions ought to be free ; and to remove even the appear- ance of rcftraint, it was ordered by an ail of the Sth of .George II. cap. 30. that all foldiers who are quartered in any city, b'jrough, town, or place where an election either of peer or commoner is to be made, fliall be removed to the diftance of two miles, one day at leaft before the day appointed for the elcdion, and fliall not ap- proach nearer till the day after it is ended. Orders to this purpofe mufl: be given by the fecretary at war, or other perfon who offi- ciates in his place; and if he negled; to iffue fuch orders, and be convidted thereof within fix months, he is to be difcharged from his office, and becomes difabled to hold any office or employment in his Majefty's fervice. This adl does not, however, extend to the city of Weftminfter, or borough of Southwark, in refpcct to his Ma- jefty's guards; nor to any place where the King or royal family re- fide at the time, in refpe£t to fuch troops as attend as guards ; nor to any caftle or fortified place where a garrifon is ufually kept, in refpedt to fuch garrifon. The adl likewife declares, that the fecretary at war fhall not incur the forfeiture on account of his not fending orders for the removal of the troops at an eledtion for fil- ling up a vacancy, unlefs notice of the new writ be given him by the clerk of the crown, who is ordered to do fo with all convenient fpeed. No writ iffiies for fupplying a vacancy in the fixteen * 6to Annae, cap. 23. § 11. 12b' Oi- THE ELECTION OF Book II. fixteen peers. Probably the royal proclamation would be held a fufncieat notilication to the fccretary at war. Indeed, the excep- tion of the flatute does not literally apply to that cafe. Ever fince the union, the miniftry has had great influence in the elediion of the fixteen peers of Scotland ; and the court liil has almofl univerfally prevailed. For a long time, the matter was managed, with at leafl; an appearance of delicacy, by fome of the peers themfelves ; but, at laft, it became ufual for the minifter to fend official circular letters to all the peers. At the general elec- tion in 1768, Lord Irvine, though not poffefTed of an inch of pro- perty in Scotland, was eleded one of the fixteen peers. And, on the death of the late Duke of Argyle in 1771, the Earl of Dyfart, a peer of Scotland, but precifely in the fame fituation with Lord Irvine, was propofed by a recommendatory letter from Lord North, then at the head of the treafury. This gave offence to many of the peers, who fet up the Earl of Breadalbain in oppofition, upon which the miniftry wifely dropped the Earl of Dyfart, and, in his room, declared for the Earl of Stair, who was accordingly eledcd by a majority of nine votes. At this eledtion the official letters were complained of in fevcre terms, and feveral protefts were taken a- gainft them. The fame thing happened at the general eledion ia 1774, v«-hen there was a warn conteft between the Earl of Caffillis, fet up by the court, and the Earl of Eglintoun, ftarted againft him by oppofition. On that occafion, another official letter was circu- lated, and the Earl of Caffillis prevailed. This difgraceful pradice of fending thefe letters has, however, ever fince been, difcontinued, and good humour and harmony among the peers have been reftored. In the end of the year 1718, and the beginning of 1719., there •was much talk of a peerage bill. The fcheme was this : Inftead of fxrcteen eledive j)cers from. Scollandj there were to be iwenty-five hereditary,, CnAP.II. THE SCOTTISH PEERS. 129 liereditary, by the jundion of nine, out of the body of the Scottifli nobility, to the fixtecn then fitting in the Houfe of Lords. Six were alfo to be added to the tben Englifli peers ; and from thence the peerage to be fixed. The King gave his confent to this fcheme ; but the bill went off for that feffion, and was no more heard of *. In the year 1733, it was moved in the Houfe of Lords that the cledion of the fixteen peers for Scotland fhould be by ballot j but the motion was rejcded '["• R BOOK * Biog. Brit. vol. i. pag. 38. voce Addifon. Blackftone, vol. i. page 157. mentions, that the bill for limiting the peerage paflcd the Houfe of Lords, but mifcarried in the Houfe of Commons, ■|- Salmon, vol. 2. page 295. BOOK III. Of the Ele6lion of the ComtnifTioncrs from the Shires of Scotland. I N this book various fubjedls will occur. It will therefore be di- vided into feveral chapters. CHAPTER I. Of the Freeholders Roll. IT has been already mentioned, that, by the aft of Charles IT. i68i, cap. 21. the freeholders of each county were ordered to make up a roll of their number, containing the names of thofe who had a right to vote, and exprefling their refpedive extents or valuations; and that they were alfo appointed to meet yearly at the Michaelmas head-court, for the purpofe of revifing that roll, and making the neceflary alterations upon it. From that period no perfon could le- gally vote in the eledtion of a commiffioner to parliament without being put upon the roll. Before, therefore, proceeding to confider either the qualifications required by the law to entitle one to eleft, or to be elected, a commiffioner from a fhire, or the mode of pro- cedure that is obferved in fuch eledlions, it will be proper to ftatc R 2 the 132 OF THE ELECTION OF Book III. the manner in which that roll is kept, and to mention the rules which the legiflature has laid down, in order to guard againd the partiality of freeholders in that refpecl. The a£t of the i6th of George II. cap. ii. intituled, ' An adl to ' explain and amend the laws touching the eledions of members to ' ferve for the commons in- parliament for ^hat part of Great Britain ' called Scotland, and to reftrain the partiality, and regulate the con- ' dudl, of returning officers at fuch ele<3;ions,' is now the governing- rule with regard to the manner of keeping the roll, and the form of procedure a't-tlie-a^hhu^l Mic-haelmas head courts. By this ftatute it was enadled, that fuch perfons as flood upon the roll laft made up by the freeholders, whether at a Michaelmas meeting, or.^t an gl^dlion of a member to ferve in parliament, fhould be the original conftituent members at the next Michaelmas meeting, or meeting fcr ele£lion ; and, as it was fuppofed that many perfons might thenftand updri the rolls who, had no legal qualifica- tion, it was farther provided, that it fhould be lawful to any free- holder flanding upon the roll to objedl to the title of any other per- fon flanding upon it, by applying to the court of feflion, in the form of a fummary complaint, at any time before the firil of December .1743; and, upon the prefenting of any fuch complaint, the court of ■fcffion' was direded to grant warrant for fummoning the perfons complained of to anfwer upon thirty days notice, and to proceed afterwards to determine the queftion in a fummary way ; but it was, at the fame time, declared, that, if no complaint Ihould be exhibited within that period, no freeholder flanding upon the roll laft made up fhould be ftruck ofi", or left out of it, except upon fufficient ob.- jedions, arifing from an alteration of that right or title in refped of w-hlch he had been enrolled. Many complaints were accordingly preferred to the court of feffion within the limited period ;. and, by ■:• the Chap. I. COMMISSIONERS FROM SHIRES. 133 the dec'ifions given in thefc complaints, the rolls of the freeholders through Scotland came to be better adjufted than they had been for- merly *'. The flieriffs having been irregular as to the time of holding their Michaelmas head courts, it was by this ftatute diredled, that every (herifF fhould, at leaft fourteen days before Michaelmas then nc::t, appoint a precife day for holding fuch court in the year 1743, and caufe the fame to be intimated at all the parifli churches v\'ithin the fhire upon a Sunday, at leaft eight days preceding; and that the day fo to be fixed by the fherifFs fliould be the anniverfary for holding the Michaelmas head courts, in their refpedtive ihires, in all time lo come. By this a6t it was farther made competent to any perfon who Ihould be refufcd to be admitted, or who ihould be ftruck off the roll by a judgment of the freeholders at any Michaelmas meeting, or meeting for eledion, to apply within four kalendar months f to the * See a£ts of feJerunr, vol. 2. pag. 56. 57. 5S. 59. f A kalcndiir month is from any day in one month to the fame nominal day in the next month. In the cafe of Carruthers of Denby contra FergufTon of Craigdarroch, in 1 762, tlio court of feillon was of opinion, that a complaint moved by the Lord Prefi- dent on the 6tli of February, was within four kalendar months of a meeting of the free- holders held upon the 6th of Odlober preceding. In the cafe of Gordon co^itra Aber- nethy, the complaint was moved in court upon Saturday the Z3d of January, and was then ordered to be ferved, but the interlocutor was not wTitten out, nor figncd by the Lord Prefidentj till Tuefday the 26th. It was objefted,. that the complaint could not proceed, becaufe Monday the 25th was the laft day of the four kalendar months; but this objcdion was over-ruled, 3d March 1-773. '^^^ -^^ °f parliament only requires the application to be made to the court of fellion witiiin four months, and it is of no confequence that, through accident, or the hurry of other bufinefs, the warrant for fummoning the party complained of bagpens not to be figned,till after^that period lias dapfcJ. 134 O F T H E E L E C T I O N O F Book III. the court of leffion, by fuinmary complaint; and that court, after granting warrant for funimoning the perlbn on whofe objections the complainer was refufed to be admitted, or was ftruck off the roll, to anfwer upon thirty days notice *, was directed to proceed and determine upon fuch complaint in a fummary way. A delay to enroll has been held equivalent to a refufal. At the Michaelmas meeting of the county of Cromarty in Odober 1765, three claims for enrolment were offered, and upon each of thefe the freeholders gave the following deliverance : * The meeting, in refpedl ' that a procefs of reduiflion is now in dependence at the inftance of ' Sir John Gordon of Invergordon, Baronet, before the court of fef- ' fion, of the decreet of divifion of the commiflioners of fupply of ' the fhire of Cromarty, dated in May laft, whereby alone the valua- * tion of the lands, and others contained in the forefaid claim, is * afcertained, do therefore fuperfede, for the prefent, coming to any ' determination upon the validity or invalidity of the claimant's titles ' to be enrolled, not thinking that matter yet ripe for their judg- ' ment, for either fuftaining or refufing his enrolment, till after the ' ifliie of the faid procefs of redudion; referving till then to all par- ' ties concerned, all objedtions and anfwers in relation to the claim- ' ants title.' The claimants preferred complaints to the court of feflion under the authority of the flatute, and prayed the court to grant warrant for their being added to the roll. The freeholders objeded, that the cafe did not fall within the words of the ftatute, in regard that they had not refufcd to enrol, but had only delayed to ■give judgment, until they fhould have an opportunity of knowing whether or no the claimants were truly polleired of the valuation required by law ; and that, at any rate, the court of feflion, which was *■ This notice is now fhortened to fifteen days by a later ftatute of the 14th of Geo. III. cap. 81. CiiAi'. r. COMMISSIONERS FROM SHIRES. 135 was only a court of review, wuhout any original jurifcrKflion in matters olthat foit, could not order an enrolment /r/w^ mjlant'ia^ as prayed for in the complaints, but only diredt the freeliolders to pro- ceed to judge of the merits of the claims at their next annual meet- ing. The court repelled rhefe objedions, and ordered the claimants to be added to the roll ; and afterwards refufed a petition from the freeholders, offering to go into the merits of their objedions to the claimants titles *. A cafe fomewhat fimilar occurred fome years after. Colonel Campbell of Barbreck lodged a claim for being enrolled a freeholder of the county of Bute at Michaelmas 1772. At that meeting only two freeholders attended ; and, although they knew that his claini was lodged, and in the hands of the fheriff-clerk, they took no no- tice of it, becaufe no perfon appeared in the behalf of the claimant. They accordingly proceeded to make up their minutes as if no fuch- claim had exifted ; but, while the prefes was fignlng thefc minutes, the claimant's brother-in-law, who was himfelf a freeholder, came to the meeting, and infifted that they fhould take the claim under their confideration. This they refufed, upon the pretence that the bufmefs was over, and the meeting difTolved. Colonel Campbell preferred a complaint, and the court pronounced the ordinary inter- locutor, finding that the freeholders did wrong in refufing to enrol him, and ordering him to be added to the roll. To Ihow their dif- approbation of the condudl of the freeholders, the court likewife condemned them in cofts of fuit f . This * January 1766, Rofe of Aitnoch and others contra Sir John Gordon and Leonard Urquhart. The Houfe of Lords affirmed both judgments, March 1766. f June 24. 1773, Colonel Campbell of Barbreck contra M'Nicl of Kilmory and M'Conochy of Ambirfljeg. The propriety of the interlocutors in the Cromarty cafes,. refilling 1^,6 OF THE EL ECTION or Book Ilf. ' J This ftatute farther provides, that any freeholder ftanding upon the roll, wlio apprehends that another has been wrongfully enrolled, ni'ay,^ in like manner, complain to the court of feffion within four kalcndar months after fuch enrolment, whether he was prefent at the meeting where the enrolment was made or not ;"but, if no complaint be preferred within that period, the perfon fo enrolled muft continue irpon the roll until an alteration of his circumftances Ihall happen, which the freeholders, at a fubfequent Michaelmas meeting, or meet- ing for election, Ihall allow to be a fufficient caufe for ftriking him oil". If, in any of thefe cafes, the court of fefhon reverfe the determi- nation of the freeholders, by ordering a perfon to be added to, or flruck off the roll, the fheriff, or lie wart- clerk, upon produdion of an extradl of the judgment, muft forthwith make the alteration thereby dirc^io, Relour of the general fervice of John Cathcart, the claimant's father, as heir to T Robert H^ OFTHEELECTIONOF Book III. Robert Cathcart of Genoch, dated February 21. 1738. And, 4/c, Inftrumer.t of fafine in favour of his father, proceeding up- on the above mentioned charter, difpofition, and retour. The freeholders took it for granted that all thefe different titles had ac- tually been produced, and, accordingly, admitted the claimant to the roll ; but it having been afterwards difcovered that the difpofition from Hugh Cathcart of Carleton to Robert Cathcart of Genoch, though an eflential link in the progrefs, had not been produced, a complaint was preferred to the court of fefTion, praying them to find tliat the freeholders did wrong in enrolling Mr Cathcart, and to or- der his name to be expunged from the roll ; but, although Mr Cath- cart did not venture to deny the ground upon which the complaint proceeded, viz, that he had not produced the difpofition to his grandfather at the meeting of the freeholders, (which was indeed offered to be proved by his own oath), yet, upon his producing that difpofition before the court of feffion, the complaint was difmiffed *. This genileman's vote was likewife fuftained by the committee of the Houfe of Commons, appointed to try the merits of the election of the reprefentative for the county of Ayr to the laft parliament. When a complaint is to be preferred againft an enrolment, or a- gainft a refufal, upon the part of the freeholders, to fuftain an ob- jedion for firiking one off the roll, it is fufficient to make the per- fon who has been enrolled, or has been allowed to continue upon the roll, a party to fuch complaint. In like manner, when one who has been refufed to be admitted to the roll, or has been ftruck off intends to comi)Iain, it is fufficient to call the perfon or perfons who objected to his tide in the meeting of freeholders. If the minutes are filent on that head, he muft call all thofe who voted to fuftain the objedion ; if that do not appear from the minutes, he muft call all - March 6. 1781, Hamilton of Sunilrum r*;//™ Cathcart. Chap, I. COMMISSIONERS FROM SHIRKS. 147 all the freeholders who were picfent at the meeting, and a miruomcr of any one of the perfons complained of will be fatal to the com- plaint *. It being fufficient to call thofe freeholders in whofe names an ob- jedlion lias been made, it may be thought, that, upon their with- drawing their oppofition, the prayer of the complaint will be granted of courfc ; but this were to open a door to collufion : Hie court of feflion docs therefore wifely confider the complaint as a common caufe of the whole body of the freeholders, and is wont, in fucli cafes, to order the withdrawing or waving of the objedions to be notified to the other freeholders by the flieriff of the county, at a meeting to be called by him for that purpofe, in order that thev may take them up, and bring the matter to a decifion, if tiiey think it proper to continue the fuit. This was done in the cafe of St Clair and Sutherland conlra M'Kay "j". When a complaint is moved in court, a warrant is granted for ferving it upon the perfons complained of. If they are refiding in Scotland at the time, the fervice muft be made perfonally, or at their dwelling places. If they are abfent, it is fuflicient that it be made at the market crofs of Edinburgh, and pier and fliore of Leith, the ufual places at which all perfons who are abroad are fummoned to appear, when called in any adion before the court of feflion. The warrant for fervice may be extracted immediately without abiding the courfe of the minute-book J ; but the court has found, that an T 2 extratfl * See February 13. 1745, Dkkfon ccii/ra Gibfon, and a cafe to be taken notice of in the fcqiiel, January 1766, Alexander Young lOfi/ra Andrew Johnfton and others. ■f January 17. 1765. I The niinute-book is a record in which all the decrees and interlocutory judgments o£ HS of the election of Book hi. extradl is 'not abfolutely neceffary *. Neither is it neceflary that the fervicc be made by a mefrenger at arms ; nothing more being^requi- iite than tliat the comphiint be properly notified to the perfon com- plained of, and tliat evidence of fuch notification be produced to the court "f". It has been already mentioned, that thoie who ftand upon tlie roll laft made up, are the original conftituent members of the aii- nu:il meeting of the freeholders at the Michaelmas head court; and, in order to prevent abufes, the ftatute requires, that an extract of the roll made up at each meeting, and of the minutes of the proceed- ings, (hall forthwith be delivered by the clerk of the meeting to the IheriiT-clerk Xi gratis, to be inferted by him in the fhcrifF's books kept for that purpofe, which muft be produced at the next meet- ing. If the fheriff-clerk neglect or refufe to infert the rolls, or the mi- nutes of proceedings, in the books to be kept for that purpofe, or negledl of the court of feffion are daily entered, in a compendious way, for the information of the pradlitioners before the court. All fuch decrees, and interlocutory judgments, muft be entered in that book a certain number of days before they can be extraded, in order to be carried into execution. " July 5. 1747, burgefles of Rutherglen cotitra the magiftrates ; July 28. 1761, Mr Walter Stewart contra Mr David Dalrymplc. It is, however, more regular to ex- traft the warrant. •f . This holds as to fummary complaints in general. In the cafe of Rutherglen, the court found, that the rules prefcribed by the a(R: 1672, cap. 6. with regard to the exe- cution of fummonfes, did not apply to fuch complaints. X The ftatutes relative to eleclions talk always of the fherifF or ftewart, and of the flieriff or the flewart-clcrk ; but, as thefe officers differ but in name, I fliall, for the future, mention only the flieriff and flieriff-clcrk. Chap. I. COMMISSIONERS FROM SHIRES. 149 negleifl or refufe to give figned copies, or extracts thereof, to any freeholder who demands them, and is willing to pay the legal fee for an ordinary extradl of tlic fame length, or if he omit to produce the books at any fubfequent meeting, he forfeits the fum of L. ico Sterling, to be recovered by any freeholder within the county who will fuc for it. And, in order that no prejudice may arife through the fault of the fherifi- clerk, the ftatiite farther provides, that, in cafe the principal books, containing the rolls and the minutes, fliall not be produced at any Michaelmas meeting, or meeting tor elec- tion, a copy of the roll and minutes, extra6led and figned by the flieriff-clerk, fhall be fufficient to fupply their place. Another penalty of L. 100 Sterling is likevvife impofed upon the flieriff-clerk, if he give out falfe copies of the roll or minutes, extracted and figned by him ; and by committing that oflencc iic allb becomes incapable for ever after of holding or enjoying his office. The principal books, or, failing them, an extra(5t of the roll laft made up, being produced, the firft thing to be done is to choofe a prefes and a clerk to the meeting ; for which purpofe the roll is cal- led, and the votes afked by the commiffioner laft ele£led, i. e. the per- fon who laft reprefented the county in parliament, or, in his abfence, by the ftierifT- clerk. If, in the choice of prefes or clerk, there hap- pen an equality of votes, the commlfrioner laft eleded, and, in his abfence, the freeholder prefent who laft reprefented the fhire in any former parliament, is entitled to the cafting or decifive vote. If no fuch perfon be prefent, this cafting vote is the privilege of the free- holder who laft prefided at any meeting for eledion ; and, in his abfence, it belongs to the freeholder who laft prefided at a Michael- mas meeting ; and if no perfon be prefent who has either reprefented the county in parliament, or formerly prefided at a Michaelmas meeting, or a meeting for eledlion, it is allowed to the freeholder who ftands tSo OFTHEELECTIONOF Book III. ftands firft upon the roll among them that appear at the meet- ing *. The prefes and clerk being thus chofen, the minutes of their e- lediion are figned by the commiflioner laft elcdled, or, in his ab- fence, by the {lierifF-clerk t. and delivered to the clerk of the meet- ing ; after which, the freeholders proceed to take and fubfcribe the oaths of allegiance and abjuration, and to fign the aflurance f . Il is not, however, abfolutely neceflary to take the oath of abjuration, unlefs it be exprefsly required to be put by one of the freeholders prefent at the meeting, and thofe who refufe it are difabled from voting at that meeting. Quakers are not obliged to fwear thefe oaths ; it is fufficient that they declare the efFedl of them upon their folemn affirmation li. The clerk chofen to the meeting likewife qualifies to government, by taking the oaths now mentioned, after which the freeholders proceed to purge, or clear, the roll, by ftriking out the names of thofe * This part of the ftatute, if Ariftly interpreted, applies onlj" to meetings for elec- tion ; but the fame rule is, in praftice, obferved at the Michaelmas meetings. f The fherlfl-clerk may be unable to attend, or the office may be vacant, and it may be afked by whom, in th.it event, is the roll to be called for the choice of preies and clerk, and the minutes of their election to be figned, if the commiflioner laft elected be abfent ? The ftatute has made no provifion for fuch a cafe ; but, were it to happen, I fhould think it proper to follow the fame order which the aft has appointed with refpeft: to the cafling vote : For greater fecurity, the minutes may alfo be figned by all the eleiTtors of the prefes and clerk. I Although it is cuftomary to choofe the prefes and clerk before taking the oatlis to government, thefe oaths muil be previoufly taken, if recjuired to be put by any free- holder prel(;nt at the meeting, 7mo Ceo. II. cap. 1(3. § lo. II 7010 Will. cap. 34. 6to Aiuiae, cag. 24. Chap. I. COMMISSIONERS FROM SHIRES. 151 thofe who may have died fiiicc the former meeting. Tlicy then confuler the ol)jcdions made to thofe who ftaad upon the roll, if any fuch have heen lodged, and nc.\t take up the claims that are prefentcd for enrolment*; and judgment being pronounced upon thefe claims according to the votes of the majority, a new roll is made up, and an extrad thereof given to the flierilf-clerk, as al- ready mentioned, the prefes of the meeting having the carting vote in every queftion where there is an equality. This is the rule of procedure at the Michaelmas meetings; and, fo far as regards the revifuig of the roll, and making the neceflary alterations upon it, the fame rules are followed at meetings for elcc' tion. To prevent furprife, and to give the freeholders an opportunity of fully confidering the bufinefs that is to come before them, it is, by the fame ftatute, appointed, that every perfon who has it in view to be enrolled at a Michaelmas meeting fliall, at leafl: two kalendar months before that meeting, leave with the flieriff-clerk a copy of his claim, fetting forth the names of his lands, and the nature and dates t of his titles, together with the old extent or valuation on which * This is furely the moft regular moJe of procedure; but, as it is not pofitively cn-» joined by any ftatute, the very reverfe has, upon lome occafions, been adopted by free- holders. f The ftatute is equally explicit in refpe^fl to the dates of the titles as with regard to any other requifite. It has not, however, in this particular, been rigidly interpreted. In the cafe of Ogilvy of Clova contra Coutts of Halgreen, the court of fefiion repelled the objeftion, that the date of the claimant's rctour was not mentioned in tlie claiin ; and, in the cafe of Skene of Skene contra Graham of Flemington, an ohjeclion, that the date of one charter was altogether omitted, and that of another erroneoufly ftated, was like- wife repelled. Thefe cafes were decided in 1 768, and, in the laft, the dates of the m- ftrujnentj' 152 OF THE ELECTION OF Book III. wh'ich he deiires (9 he enrolled, and, If he negled to do fo, he can- net be enrolled at that meeting. In like manner, thofe who intend to objed !o any freeholder who ftands upon the roll, on account of an alteration in his circumftances, muft, two kalendar months be- fore the meeting, leave their objedions in writing with "the fherifT- clerk, who, by the ftatute, is required to indorfe upon the back of the claims or objedions fo left with him, the day of his receiving them, and to give copies to any pcrfon who demands them, upon their paying the legal fee of an ordinary extrad of the fame length *. This legiilation, however, only applies to Michaelmas meetings; and one may be either enrolled, or ftrnck off the roll, at a meeting for eledion, without any claim or objedion being previoufly lodged wiih the fheriff- clerk. A claim bearing, by miftake, that the claimant's fafine was re- corded in one regiiVer, when, in fad, it had been recorded in ano- ther, an objedion made on that head was fuftained f . This was a juft decifion. Claims are ordered to be lodged with the flieriff-clerk in order to prevent furprife : but a claim that does not lead to a dif- eovery of the claimant's infeftraent cannot anfwer that purpofe. It ftruments ef fafine were diftinftly fet forth ; and from them the freeholders could difcover the true dates of the charters. In a fubfequent cafe, where the claim of an apparent heir neither mentioned the dates of his predeceffor's titles, nor the names of all the lands, the court fuftained the objection, although the titles themfelves were lodged along with the claim left with the flieriff-clerk, and although the predeceflbr had been enrolled upon thefe titles; March 3. 1773, Mr Cofmo Gordon contra Aber- uethy of Mayen. * This rule holds although the alteration of circumftances happen within two ka- kndar months of the Michaehnas meeting. It is a general rule ; and the perfon muft continue upon the roll for another year, unlefs he .(hall voluntarily agree to his being firuck off. I January 5. 1762, Goldie. Chap. I. COMMISSIONERS FROM SHIRES. 153 . It was once objedtcd to a claim lodged in due time with the flie- rifT-clerlc, that it did not mention the prccife fum at which the lands were valued, but only bore that their valuation exceeded L. 400 Scots: But that objection was mod juftly repelled *. It was alio objeded to an enrolment, that the claim had not been- lodged with the fheriff-clerk till four of the clock in the afternoon of the 6th of Auguft, and that the freeholders convened at the Michaelmas head court upon the 6th of Odober before two of the clock {-but to this it was held a fuflrcicnt anfwer, that, in all cafes of leg^l hotice, it is only required that theday on which the notice is given, or the day to which it is given, be free, but not both ; and that, if either the 6th of Auguft, or the 6th of October, were rec- koned, the full period of two kalendar months would be found to have run ; a kalendar month being from any day in one month to the fame nominal day in the next f. - It was likewife determined in a meeting of freeholders, that an objedion to:aperfon's continuing. iupon the roll, though lodged with, the flierifF-clerk in due time, could- noxbetaken mder coiifideration, becaufe it neither was figned by any perfon, nor mentioned by whom, or in whofe name it was given in : But, as none of thefe things are required by the ftatute, and as it is in itfelf a matter of no confequence. whether an objedlion be figned or not, or by whom it is lodged, the court of feffion had no difficulty in reverfing this judgment %. The fherilT- clerk is, however, under no obligation to U lay • Januar)' i6. 1754, Sir Archibald Grant ««/ra Leith of Lcithall. •}■ January 15. 1761, Elliot of Arkleton co/itra FergufTon of Craigdarroch. J 1767) Ranken of Colden, and Irvine of Burleigh, coitra RaraHiy of Kinkell and Colvil of Ochiltree. ' 154 OF THE ELECTION OF Book III. lay the objedions that are lodged with him before the freeholders, nor are they bound to take any notice of them, unlefs fome perfon Infift on their being taken under confideration. The fame obferva- tions are equally applicable to claims for enrolment. The ftatute requires only a copy to be left with the fheriff-clerk ; and it is not even necellary that the principal claim produced to the freeholders be figned. Neither is it necellary for claimants to attend in perfon at the meeting of the freeholders. They may appoint any other to appear for them ; and the produ<3;ion of their titles implies a man- date, and a fufficient authority to the producer of them to profecute their claims. It has indeed been made a queftion, Whether a fpe- cial mandate be not neceffary from a claimant who is at the time abroad ? In a cafe where the claimant was in America, and no man- date was produced from him, the freeholders rejeded the claim on that ground ; and although the court of fefTion, in a complaint pre- ferred in the name of the claimant, w4ien ftill abroad, and without any authority from him, at firft reverfed the judgment of the free- holders, and ordered him to be added to the roll, they, upon a re- confideration of the cafe, altered that judgment, and approved of the determination of the freeholders *. It is natural when no party work is going on, to take up the con- fideration of the feveral claims for enrolment in the order of the dates of their being lodged with the fheriff-clerk ; but it is not ne- ceffary to obferve that order ; and the freeholders have in that mat- ter a difcretionary power, which is generally exercifed in the man- ner beft fulted to the views of the majority of the meeting. Where two perfons are enrolled upon the fame lands, the one as fiar and the other as liferenter, they ought to be diftinguifhed in the roll * July 20. 1780, Fergufon centra Major Dundas. CiiAP. I. COMMISSIONERS FROM SHIRES. i^j roll, by adding the Wordstar and I'lferenler to their refpedlive names. It is alio the pradlice to infert the names of the liferenter and fiar in the roll together, beginning with the liferenter, as having the prefe- rable right of voting. This is done even when the liferenter is the laft claimant, which fcems to hurt the regularity of rank in the roll *. The freeholders have no power to review or alter at one meeting, the proceedings of a former meeting, in the roll made up for the county of Kinrofs in 1753, General Irvine of Burleigh was, by a miftake of the clerk, put at the foot of that toll, although he had been enrolled before another freeholder, Mr Ranken of Golden. The General made no complaint on that head; but, at a fubfequent meeting, held at Michaelmas 1766, where only two freeholders were prefent, the prefes, who had thereby two votes to one, ordered the roll to be redlified, and General Irvine's name to be infertcd be- fore that of Mr Ranken. But this order was reverfed by the court of feffion, who were of opinion, that, as no complaint had been brought within four kalendar months after the Michaelmas meeting 1753, the order of the roll made up at that time could not be altered t* U 2 But,, * See January '772. Earl Fife contra General Grant. f January 23. 1767, Ranken of Colden contra Ramfay of Kinkell. Since the fta- tute of the i6th of Geo. II. place or precedency on the roll is of fome confequence, as, in certain cafes, it entitles to a cafting vote. The depriving a freeholder of his place in the roll is therefore a wrong, but it may juftly be doubted if he can competently ap- ply for redrefs by a fummary complaint to the court of leiTion, for which, in fuch a cafe, no provifion is made by ftatute. A declaratory aiflion is certainly a more proper mode of procedure. The incompetency of a fummary complaint was accordingly ob- je<5I:ed by Mr Ramfay ; and, in order to obviate that objeftion, Mr Ranken brought an ai^on of declarator againft Mr Ramfay and General Irvine, in which he concluded, that 156 OF THE ELECTION OF -BookIII. But, although the freeholders cannot, at then- own hand, ftrlke a perfon-off the roll without an alteration of his circumftances, there IS nothing to prevent them from enrolling one upon titles which had been rejefted at a former meeting. At the eledtion for the county of Ayr upon the 13th of Odober 1774, feveral perfons were enrolled whofe claims had been rejedled at the Michaelmas meeting held upon th^ 4th of the fame month ; and, at the eledlion in the fame county, onno 1780, many claims were brought forward which had been rejedted only ten or twelve days before at the Mi- chaelmas head court. « The law does not require any definite number of freeholders to make a quorum. Even one freeholder may conftitute a meet- ing, and go tlu'ough the bufmefs either at Michaelmas or at an elec- tion *; but, if he admit any perlon wrongfully to the roll, any of thofe that it fliould be found and declafed that he Was entitled to hold his former place in the roll. This a£lion was accordingly taken up along with the complaint ; and, al- though the court ordered Mr Ranken to be reftored to his former place, they gave no order to the fheriff-clerk to carry their decree into execution. It was left to the free- holders themfelves to give obedience to the decree ; and, indeed, the flieriff-clerk is only bound to aft in thofe cafes where he is p^i-ticularly required to do fo by flatute. * An inftance of this happened in Orkney fome time ago. At the Michaelmas head court of that county for the year 1 760, only one freeholder attended. Five claims for enrolment having been previoufly lodged with the flieriiF-clerk, the feveral claimants produced their titles, and were admitted to the roll. Some weeks after, complaints were preferred againft thefe enrolments, in the name of another freeholder, who ob- jefted to the legality of the meeting, in rcfpeft: that it was held only by one freeholder. Before an anfwer could be put in to thefe complaints, an eleftion of a commiflioner took place ; and, as the names of the five gentlemen who had been admitted at the Michaelmas preceding ftood upon the roll which had then been made up, the fheriff- clerk, whofe province it was, in the abfence of the commiflioner lafi: elefted, to call the roll for the choice of prefes and clerk, refufed to call that roll, and called another that lud been made up in 1 754. This produced new complaints, at their inflance, for re- covery CiiAP. I. COMMISSIONERS FROM SHIRES, 157 thofe who were abfent may prefer their complaint to the court of fclfion. The freeholders ought to meet regularly every year at the Mi- chaelmas head court. There is, however, no method of compelling their attendance. What then is to be done, if, with a view to difap- point one or more perfons who have lodged claims for enrolment, they all forbear to attend ? I know of no remedy. The cafe hap- pened in 1753, in the county of Cromarty; but, although a com- plaint was preferred by a gentleman who had lodged a claim with the flieriff-clcrk two months before the day upon which the meeting fhould have been held, and although it was ftrongly argued that there could be no wrong without a remedy, the court of fefllon refufed to interpofe in his behalf, and difmifled the complaint as incompetent *. They, indeed, had no power to judge of the claim in the firft in- ftance, having no original jurifdidion in matters of enrolment, and they had as little authority to order the freeholders to aflemble for the purpofe of taking the claim under their confideration. CHAPTER .^^■'^^-Zfes^^-^^ covery of the ftatu t o ry penalties to be hereafter taken notice of; and the court, upon advifing thefe complaints, gave judgment in favour of the complainers, and alfo dif- mifled the complaints which had been previoufly brought againft their enrolment. 1762, Mnck-.iy of Strathy and others, contra John Riddoch and others. This, however, was hot the cafe in former times; for, as the ftatute 1587 required the commiirions to the reprefcntatives of counties to be fealed and fubfcribcd by at leaft fix of the freeholders, we may conclude, that no fmaller number could conftitute a quorum, at leaft at a meeting for eleftion. See 5/V George M^Kenzk's Obfirvctions, page 258. * Decciuber 20. 1753, Mackenzie of Highfield cartra freeholders of Cromarty. cxyJ^E- ^-^ is8 OF THE ELECTION OF BookIIL CHAPTER II. Of the ^tal'ijicatmis necejj'ary to entitle a Perjon to be en- rolled a Freeholder. HAVING confidered the manner in which the freeholders pro- ceed in making up the roll of their number, the next point in order is, to fhow what qualifications the law requires to entitle one to be admitted upon that roll. When James I. of Scotland dlfpenfed with the attendance of the fmall barons, and allowed them to fend commiffioners to parliament, no reftraint was impofed ; every perfon who held of the King being left at liberty to vote in the choice of thefe commiffioners, how finall foever his eftate or freehold might be. But, by the ftatute of James VI. which firft brought this reprefentation of the fmall ba- rons to a regular bearing, none were admitted to vote but thofe who had a forty fliilling land in free tenandry, and had their adtual re- fidence or dwelling within the fhire. By the adt 1661, this privi- lege was extended * to all thofe who were polTeffed of lands hold- ing of the King often chalders of victual, or L. 1000 of real rent. This, however, was altered, by the att 168I ; and, in the place of the real rent, a new kind of qualification was introduced, which v?as to be regulated by the valued rent; for it was then enacted, that none * The word exicmhd may feem to be improperly ufed here ; but it is not ; for many •might be po/Tcflcd of a rent of ten chalders of vitStual, or L. 1000, who could not fho'wr that their eftatu was a forty liiilling land of old extent. Chap. II. COMMISSIONERS FROM SHIRES. 159 none fhould be allowed to vote I)ut thofc ' who flood publicly infcft * and poflbfTed of a forty fliilling land of old extent, holden of the * King or Prince, diftin6t from the feu-duties in feu-lands, or, where ' the extent did not appear, flood infeft in lands liable in public * burdens for his Majefty's fupplics for L. 400 of valued rent, ' whether kirk- lands now holden of the King, or other lands hold- * ing few, ward, or blench, of his Majefty, as King or Prince of * Scotland.' This a£l:, which alfo repealed the ftatute of James VI. in fo far as it required atSlual refidence within the county, was the (land- ing rule at the time of the union, and is, in a great meafurc, fo at this day. The few alterations that have been made upon it will be fully taken notice of in the fequel. The qualifications of a freeholder, in fo far as they relate to the title, may therefore be reduced to the following : i/?, That the land upon which the right to vote is claimed, be either a forty fhilling land of old extent, or amount to L. 400 Scots of valued rent. 2dlyy That fuch land be held by the claimant immediately of the King or of the Prince. 3^/)', That the claimant be infeft. And, /[thly, That lie be in pofleflion. Each of thefe dial! be confidered in its order. The firft divides into two branches ; the forty fliilling land of old extent, and the land of L. 400 of valued tent. In order to explain what is meant by a forty fliilling land of old extent, it will be neceflary to enter a little into the antiquities of the law of Scotland. Land i6a OF THE ELECTION OF Book Ilf. Land is the firft ohjed that prefents itfelf for taxation. A ftate is well advanced before cuftoms or an excife are thought of. To render a tax upon land equal, a general valuation becomes requifite. Such a valuation was likewife neceffary in Scotland on an- other account, namely, for the purpofe of afcertaining the non^-en- try and relief dutieis payable to over-Lords, or fuperiors, by their vaflals. ft At what time a general valuation firfl took place in Scotland can- not with certainty be difcovered ; but that one had been made be- fore the reign of Alexander III. appears from a record intituled, ' Rentale Regis Alexandri lertii vicecomitat. de Aberdene et de Banff,' which contains this article, ' De thanagio de Nathdole fecundum * antiqxiam extentam 49 lib. et 16 denar. ;' for a valuation made du- ring that Prince's reign could not then have been termed did or an- cient *. But, even fuppoflng a new valuation to have been made in the reign of Alexander III. who had occafion for an extraordinary fub- fidy to enable him to pay his daughter's portion, upon her marriage with the King of Norway, and alfo, fuppofing that valuation to have exhibited a real ftate of the rents of the feveral lands of the king- dom at that time, yet, as great part of the countiy was laid waftc, during the wars with England after the death of that Prince, fo thefe wafted lands muft neceflarily have funk in their value, and could not be expected to yield, at leaft for fome time, their former rent. Hence, when a grant of a tenth of the rents of the laity was im- pofed in 1326, to continue during the life of King Robert Bruce, it was thought reafonable that the owners of fuch lands fhould not ba rated * Aanals of Scotland, vol. i. page 184.. Chap. II. COMMISSIONERS TllOM SKI RES. id rated at the old valuation, hut fhould be allowed an abatement, which was to be fettled by a jury '*. This brought on a revaluation of thefe particular lands, and made a diftindlion, even in thofe days, between old and new extent. It foon became cuftomary to require the inquefl or jury called in the fervices of heirs by brieves of mortanceftry, to ingrofs in their verdift, or retour, as it is called in the language of the law of Scot- land, the valuation of the lands in which the heir's predeceffbr died infeft. The retours of lands which had not been revalued, could bear no other valuation but that wliich fubfifted in the reign of Alexander HI. ; but, where the lands had been revalued in the time of Robert Bruce, after 1326, the retours mentioned both valuations, and fet forth the old extent, or quantum i/aluerunt tempore pacts, and the new extent, or quantum nunc •valent. It is plain, that, at this period, the new extent miift have been lower than the old ; but, as the particular lands which had been laid wafle would, in procefs of time, recover, and as the lands through- out the kingdom, in general, came to be improved in their value, the reverfe mufl have taken place after a new general valuation was made up. X At * This wc learn from the indenture formerly mentioned between Robert Bruce and the Earls, barons, freeholders, ;inJ burgellts, in which the tenth given to thst Prince was ordered to be levied, « juxta antiquam extentani terrarum et redituum tempore ' memoriae Domini Alexandri, Dei gratia, Regis Scotorum illuftris ultimo defunfti, ex- < cepta tantummodo deRruclione guerrae, in quo cafu fiet decidentia de decirao denario ' praeconceflb, feeundum quantitatem firmae, quae occaiione praedidla, de terris et redi- < tibus praedicftis levari non poterit, prout per inquiCtionem per vicecomitem loci fideli- < ter faciendam poterit reperiri.' i6z OF THE ELECTION Of Book IIL At what time a general revaluation vras made, is not agreed upon. The author of the Hiftorical Law Trafts cdnjectures *^ that matters continued upon the old footing till 1424, when a fubfidy became neccflar)' for paying what was due to England for the fubfiftence and education of James I. f. But, from retours prior to that period,, and mentioned in Mr Erikine's Inftitute of the Laws of Scotland J, we. learn, that a revaluation muft have been made before that' time, as, in thefe retours, the new extent is higher than the old ; and' that author obferves, that no period appears more likely for this than the year 1365, or 1366, when a tax. was to be impofed for the rarlfoni of David IL It is, however, certain, that a revaluation took place in 1424 j] ; but, although the extent or value thereby afcertained came to be confiderably higher than the old extent in the time of Alexander IIL yet the gradual improvement of land, and the rife in the nominal value of money, foon rendered even it too low a ftandard for fixing the cafualties of fuperiority. It was therefore ordered by an adl of James III, 1457, cap. ^6. that all retours Ihould fpecify both the old extent and the precife avail (value) the lands were worth at the time of the inqueft's ferving the heir to his predeceflbr ; and this laft has ever fince been called the new extent. According to this ftatutc, a proof of the real worth of the lands ought to be taken at the fervice of every heir ; and this pradlice was no doubt followed for fome time ; but it was too troublefome,. and came to be looked upon as too unfavourable to vaffals to be long; contmued.. * Vol. 2. page 204. f Black Adb, fol. 3. pari. 1424, cap.. 10. n,. J Page 225. il Black Afts, fol. 3. pari. 1424, cap. ii- Chap. 11. COMMISSIONERS FROM SHIRKS. 16.3 continued. After lands had once been valued according to the direc- tions of the ftatute, it was cuftomary for the inqueft, in fubfcqucnt fervices, to return the fuin at wliicli the new extent had been fixed in fuch firft rctour, as the nunc 'ualent of the lands ; and we are in- formed by Skene *^, that, where the new extent had not formerly been retoured, it was generally fixed at the quadruple of the old extent "f- He, however, adds, that this rule was not perpetually obferved. It is probable that dilFerent proportions v/ere adopted In different counties. Balfour fays upon this fubjeit X, ' And it is to ' wit, concerning the difference betwixt the auld extent and the new ' extent, that generallie ane merk of auld extent fould be eftemit to ' ane pound of new extent.' Such being the diftindlion between the old and new extent, it need only be farther remarked, that none of the valuations above nientioned extended over church-lands. The proportion of fubfidies payable by the clergy was fixed by different rules. Their revenues were fubjeded to an equal moiety of all taxations upon land [|, the X 2 burden ** De verborum fignificationej voce Extent. f The juftaefs of this proportion is, iii fome degree, confirmed by a warrant from Queen Mary, direfted to the flieriff" of Aberdeen in 1548, for fummoning an inqueft to retonr all the lands in that county, as well church-lands as temporal lands, and the patrimony of the crown ; for it directs that the lands which then gave of yearly mail and duty (/. e. rent) four pounds, (hould be riitiLi ' i ' ied to twenty fliil'ings of old extent, without any exception or regard to any former retour. A copy of this warrant is to be found in the Appendix, No. 30. J ■ Prafticks, page 430. II Several inftances do however occur, \s\ the flatute book, of a different proportion being obferved in laying on taxes impofed fop particular purpofes, where the clergy were only burdened with two-fifths, the barons with other two-fifths, and the boroughs with one-fifth. Sec B/m-I- ^ns, fc/. 6-]. '• i- 06. ^^4j,y C.y'L^'i^ i6.| OF THE ELECTION OF Book IIF. burJcn whereof was divided amongft them in proportion to tlie value of tlie fevenil benefices, as they Hood upon a roll called Bagimont's roll * ; and, as the church never died to make place for the cafuaUies of non-entry or relief, or to give occafion to retours, there was no room for afcertaining either the old or new extent of church- lands. The firft inllance 1 have found of a warrant for retouring, or, to fpe?.k more properly, extending or valuing church- lands, is that mentioned in the preceding note by Queen Mary in IJ48; and, although this order feems to have been made with a view that the extent of all the lands in the county might be known, little regard was paid to it by the churchmen, or their chamberlains, who, as is faid in the retour, ' compeared not, albeit they were * lawfully required and warned thereto by my Lord flierifF's pre- ' cept.' It appears, however, to have been the intention of the le- gillature, after the zQ. of annexation in 1587, that the church-lands Ihould pay the land-tax in the fame manner with the temporal lands; for, by the a£l 1594, cap. 233. it was exprefsly ordered, ' That all few-lands annexed to his Majefties crown be the adt of ^ annexation remain with his Majefty and crown in all time here- ' after ; and that all few-lands annexed, or other few-lands quhat- *■ fumever, within this realme be retoured and availed to marke or * penny lands, that his Majefty may knaw the awner thereof; and ' being retoured that quhen it fall happen ony impoft or taxation to ' be * This roll contained a full rental of all the benefices in Scodantl, as well tcmpora- ilty as fpirituality. It is referred to hi fome afts of the parliament of Scotland, parti- cularly 1471, cap. 43. and 1494, cap. 39. as a ftandard not to be altered 5 and fevere penalties v/ere, by thefe afts, impofed upon thofe who fhould give information, at the- court of Rome, of any higher value of benefices than what was there fct dov/n. Bifliop- Lefley, through a llrange miftake, mentions Bagimont as prefent in a provincial coun- cil held at Edinburgh in 1 5 1 2, at which he fays this roll was made up^ whereas, in the firft of the two ait. He, in faft, came to Scotland in the year 1276. Annuls of Scotland, vol, i. pa^e 18a. Chap. ir. COMMISSIONKRS FROM SHIRES. 165 ^ be r.Tifcd, that the faidis fcwarcR fall be charged according to their ' rctours.' In confcquence of this ad, fome church-lands were re- tourcd, and particularly the Lordfhip of Culrofs, as early as the year 1598, in virtue of a fpecial commiflion under the great feal *; but this notwithflanding, we find, that, upon the firft taxatloFi impofed after 1594, it was expreisly ordered f, tliat all ercdions of pre- lacies into temporal lordfhip?, and all diflblved benefices, (hould be fubjedl to payment of fo much of that taxation as they would have been fubjeftcd to, if no fuch ereftion or diffblution had taken, place J. We likewife learn from an unprinted a£t of the year 1612, that the fame rule was obferved in the taxation then impofed for the payment of the Princefs Elizabeth's portion ; and, in fact, it continued to be obferved down to the time of the troubles in the reign of Charles I. when a new mode was introduced of levying the land-tax, by monthly affeffments, according to valuations v.-hich were then made, and will be more particularly taken notice of in the fequel. Having thus endeavoured to explain what is meant by the old extent mentioned in the ad 16S1, I fliall now proceed to confider what * In a lift of all the lands of Scotland which paid taxations according to the old ex- tent, made up in irtia by commiffioners appointed for that purpofe, and ftiU preferved in the records, only two inftances are to be difcovered of church-lands bein" extended . and of thefe the Lordfhip of Culrofs is one. t IJ97> cap. 281. % We cannot well fnppoCc that this -was done by way of favour to the Lords of Ercftion, or thofe who had obtained grants of chiirch'-lands, and may therefore con- clude, that the clergy were underftood to pay their fidl proportion of the land-tax, when one moiety was impofed upon them ; and this would hold more efpcciaily after the reformation, when, out of their revenues, proper ftipends were allotted to the mini- fters ferving the cun-. i66 OF THE ELECTION OF Book III. what evidence a pcrfon who claims to be enrolled upon a qualifica- tion of that fort muft bring, in order to fhow that his lands are truly a forty fliilhng land of old extent. The a£t 1681 is filent upon this head; and, prior to the aft of the ii 6th of George II. cap. 11. any fatisfadory evidence of the fa6t might be reforted to; but by that ftatute it was exprefsly declared *, that no perfon fliould be entitled to vote for a commiffioner to ferve in any parliament for any fhire in Scotland, or to be enrolled in the roll of eledors, in refpetft of the old extent of his lands, unlefs fuch extent were proved by a retour prior to the i6ch of September 1681 ; and that no divifion of the old extent made fince that day by retour, or any other way, fliould be fuftained as fufficient evidence of fuch ■extent t' No feries of charters, however long and uninterrupted, can * Sea. 8. •i- Whatever niay have. been the real object which the framers of the ftatute had in contemplation by this claufe, the reafon given in the aft itfelf for impofing thefe reftraints, viz. ' That great difficulties had occurred in making up the ' rolls of eleiSlors of commiffioners for fliires by perfons claiming to be enrol- ' led in refpedl to the old extent of their lands, when the old extent did not ap- *. pear from proper evidence, and votes had- ISeeii unduly multiplied by fplitting and ' dividing the old extent of lands fince the r.6th of September 1 68 1 ,' does not appear to be altogetlier. fatisfadlory. If a claimant was not able to bring proper evidence of his old extent, the freeholders were under no obligation to admit him to the roll, and, if they did admit him, the court of feffiori, upon a complaint, could order him to be ftruck off. Why then exclude every other evidence but that of a retour prior to the 16th of September i6Si ? Had all the old retours of fervices been prcfcrved, or had a regular record of them been extant, , there might, have been lefs ground of complaint : But that was by no means the cafe. There never was a record <3f retonrs .eftabliflied by public authority; and I, have been, informed, that no regular record of that fort took place till the year 1.633^ when Sir John Scot of Scotfiarvet,,,.who was then direiTlor of ilic chancery, inftit';'<.- Lieutenant Goldie. Chap. I. COTVIMISSIONETIS TP.OM SHIP.ES. 169 But an objeiflion founded upon tTiis dlfcrepancy was over- ruled by the court of fellion *',. Similar judgments were pronounced in the cafes of Edward Maxwell from the ftewartry of Kirkcudbriglit f"^ and of John Earns from tlve county of Ayr J, in both of v/hich tKe vaient claufe exceeded, by a trifle, the fum total of the joint values put upon the feveral lands in the defcriptive claufe, which, in all of thefe cafes, alfo mentioned each different parcel only as a twenty fhil- ling or a merk land, and fo furth, without the addition of the v.'ords antiqui extentus,. It may, however, i)e afked, What judgment ought to be pronoun- ced when the valent claufe, inft:ead of exceeding, falls fliort of the joint values affixed to the feveral lands in the defcriptive claufe? When fuch is the cafe, there is feme ground for maintaining that the defcriptive claufe muft be erroneous as to one or other of the different parcels of land, and that it being impoflible to difcover where the error lies, none of them ought to be held of the extent or value put upon them in that claufe : Much nicety is therefore requifite. If there appear rcafon to believe that the difcr^epancy arifes from an error in fummation, it is not regarded, efpecially if it be fo fmall, that, after dedudling it from the value allotted to the parcel of land upon which the vote is claimed, there will ftill re- main forty fliillings of old extent. The court of fefTion accordingly fuftained two qualifications in the county of Ayr, although the va- lent claufe of the retour produced in proof of the old extent made Y the ■* February 5. 1745, Colquhoun of Lufs contra freeholders of Dumbartonfliire. A moft formidable attack upon the evidence of this retour of the Dukedom of Lennox was renewed on occafion of tlie general eleftion in 1780; but it was again fuftained^ January 23. 1781, General Fletcher contra James Ferrier. .■)• i775> Maxwell. t December 5. 1780, Barns f«;;/ctf Hamilton of Sundrum. I70 OF THE EL ECT I ON OF Book III. the whole knd therein contahied amount only to L. i r : 3 : o ; whereas the values affixed to the fevcral parcels in the defcriptive claufe, when added together, extended to L. 1 1 : 8 : 8, lliewing an excefs of 6 fh. 8 d. Tiiat excefs, however, either of the parcels claimed upon might fpare, the one being called a L. 3, and the other a L. 2 : 13 : 4 land of old extent *. But, if the fliortcoming of the valent claufe be fo confiderable as that it may reduce the particular lands upon which the vote is claimed under forty {hillings, if ap- plied to them, the objecStion fhould feem to be good. It may perhaps be thought that fome of the judgments above ta- ken notice of are inconfiftent with a decifion pronounced by the court of fefTion in the year 1774, in the cafe of Murray of Brough- ton contra Clerk. In fad, however, there is no inconfiftency, nor did the court, in that cafe, depart from the principles which it af- fumed in determining the cafe of Mr Campbell of Succoth, and- others of a fimilar nature. In the cafe here referred to, the defcriptive claufe of the retour bore, that Robert Earl of Nithfdale died laft veft and feifed ' in toto * et integro officio balivatus omnium et fmgularum terrarum et pof- * feffionum ad monafterium de Sweatheart pertinen. jacen. infra vi- * cecomitatum de Dumfries predidl. ac quarumcunque aliarum ter- * rarum ubicunque infra hoc regnum Scotiae ad did. monafterium * pertinen. exiften. una cum quinque mercatis terrarum de Loch- ' arthur, et pertinen. earundem, jacen. infra baroniam de Lockkin- * dilloch et fenefcallatum de Kirkudbright pro didti comitis ieodo in * ufu et fervitio didi officii balivatus.' The valent claufe bore, ' Et * quod did. officium balivatus monafterii de Sweatheart, cum didis • terris * March 7. 1782, Lieutenant Colonel Ferrier contra Graliam. JEoditn die, James Ferrier contra Eundem. CriAP. n. COMMISSIONETISTIIOT^ SHIRES. iji ' terris de Locharthiu- pro fcodo et falario in ufu didl. officii nunc ' valent per annum fummam undecini mercarum, monetae predial. ' et tantum valuerunt tempore pacis ;' And the queftion was, Whether this retour afTordcd fufficieiit evidence of the feparate old extent of the lands of Locharthur, exclufivel,y of the office of bailie? In order to fhow that it did not, it was maintained, that there was no correfpondence betwixt the defcriptive and the valent claufc, without taking it for granted that the office had been extended to ^fix merks, but that of this there was no evidence from any part of the retour, and therefore the defcription of the lands, as a five merk land, might have been erroneous. The court accordingly fuflained the objedion. It is not neceflary that the principal retour itfelf be extant.' Ex- tracts from the record in chancery, which, although not originally inftituted by public authority, has obtained full credit in the courts of law, are fuftained as fufficient evidence of the old extent *. But a certificate under the hand of one of the keepers of the public re- cords, bearing, that, upon fearching a record of old extent, made up in 1613, he found the lands upon which a claim had been en- tered for enrolment extended in that record to L. 8 : 8 : 2, was not held to be a proper proof of the old extent in terms of the ftatute t. Y 2 The * February 5. 1745, Colquhoun of Lufs contra freeholders of Dumbartonfhire. July 28. 1761, Stewart «»/^a Dalrymple. July 29. 1761, Mackle of Barmore raw^r.j Sir William Maxwell and others. In the cafe of Tytler of Woodhouflee, who, for proof of his old extent, referred to an extraft, from the record in chancery, of a retour made up before the fheriff of Edinburgh in 1554, of all the lauds within the county, it was objedted, that this record concluded with the words in cujus ret tejlimoriium, without .bearing that the feals of the jurors were appended, or mentioning the name of tlie -clerk, or his fubfcription. But this obje ^'^^^ ^^^ a£t 1661 allowed no votes upon any church-lands but fuch as yielded ten chalders of vidlual, ( or * Februai-y 10. 1747, Sir Thomas Klrkpatrick and others co/i/ra Irvine of Gribtonj Kllkerran, voce retour. I Chap. n. COMMISSIONERS FROM SHIRES. 177 or L. 1000 of rent, after deduding the feu-dutles payable to the crown ; that the adl 168 1, in like manner, allowed no perfon to vote upon church-lands in refpeft of the old extent, but only in refpedl of the valued rent, and that the acft of the 16th of George II. by ad- mitting no evidence of old extent but retours, meant to refer to verdids upon brieves for ferving heirs, but not to fuch a retour as that appealed to by the claimants, which was made in confequence of a commiffion under the great feal. To thefe objedions it was anfwered, that neither the ftatute 168I5 nor the a£t of the i6th of George II. required that the old extent fliould be proved by a retour upon a brieve for ferving heirs, and that any retour was fufficlent for that purpofe, provided it was prior to the i6th of September 1681 ; that, althougli it was not ne- cefTary to retour church-lands before their annexation to the crown; yet, as it was then refolved that all the lands throughout the king- dom fhould be taxed in one and the fame manner, diredions were accordingly given by the ads 1594 and 1597, for retouring all the annexed lands, and it was in confequence of thefe ads the com- mi/Tion iffued, in virtue of which the retour in queftion was made; that, as the purpofe of retouring thefe lands was to afcertain the old extent, fo there could be no difficulty in fixing it ; that many tem- poral lands had been acquired by the church after the days of Alex- ander III. when the old extent was ftruck *, and when no certain evidence of it remained, liie jurors were authorifed by the ad 1597, * to retour the lands to the fame avail, quantity, and proportion, as ' any other lands lying next adjacent to the fame, holding of his * Majefty, were retoured to ;' that this was the rule iu chancery by Z which * In this debate, the counfel for both parties Teem to have taken it for granted, that what we now underftand by the old extent was a valuation made up in the reign of Alexander III. j but this is highly improbable, as fhall be fhewn in a fubfequent note.. i7§ OF THE ELECTION or Book IIL which inquefts are diredted to extend lands, when no ancient record appears of the old extent ; that it had been the pra£Hce of the free- holders in the feveral counties to receive fuch retours as the one in queflion ; and that the old extent of moft of the lands in Mid-Lo- thian was only vouched by a fimilar retour, dated in March 1554, and made for the very purpofe of afcertaining it *. The court repelled the objedion to the retour, and difmifled the complaint f . Another queftion occurred in the very fame year from the county of Wigton. A retour in 1625 being appealed to as evidence of the old extent, it was objected, that the lands to which it related were church-lands, formerly part of the See of Galloway, and therefore could have no proper old extent. The court accordingly found, that the retour produced did not afford fufficlent evidence of the old extent of the lands J. But this judgment, which was carried by the fraallefh majority poffible, was reverfed in the Houfe of Lords [|. The eldeft of feveral heirs-portioners enjoys fome privileges over the others. Such dignities or honours as can pafs to females defcend to the eldeft alone ; and (lie and her heirs are likewife entitled by law to all other fubjedts, that, by their nature, do not admit of a divifion. * This is the retour referred to in the cafe of Tytler, taken notice of in a preceding note. f Feb. 27. 1761, Monerieff contra Erlkine of Balgonie and others. \ July 28. 1 76 1, Stewart and others contra Dalrymple. II April I. 1762. In another cafe prior to either of thefe, it was found that lands which had been mortified to tlie college of Aberdeen, with the common reddendo of preccs et lachrymae, ' and were afterwards fold by the college, aflordcd a freehold qualification to the pur- chafer. March 4. 1755, Dalrymple and others contra Sir James Reid of Barra. Chap. II. COMMISSIONERS FROM SHIRES. 179 divifion. How will this afled a freehold qualification, fuppofing the fon of an elder fifter, and two younger fiRcrs, to fucceed to a forty (hilling land of old extent ? The cafe occurred in the ihire of Berwick in 1747: Moffat of ILaft Morieftoun died without iflue, leaving three fifters to take up his fuccefTion : The eldefl: dying, her fon claimed to be enrolled ; but, as he had only right to a third of the landSj and his aunts had right to the other twp thirds, pro tJidivlfo, it was found that he had no title to be admitted to the roll *. The fame rule holds when the qualification depends upon valued rent t* The adl 1O81 requires that the old extent be diftinfl from the feu- duties in feu-lands. This needs an explanation. Feus were called im- proper fees, and were confidered by feudaliftsin the light of locations. The annual feu-duty was reckoned to be the yearly worth of the lands; and the cuflom was, as it is ftill, to retour the lands to be worth the teu- duty, which is all that can be demanded by the crown as the non-entry duty : Of courfe, there could be no difference between the old and the new extent in lands held of the King in feu; and the retours of fuch lands do generally at this day bear, ' quod nunc valent feudi- * firmam, et valuerunt tantum tempore pacis.' But as, by the adls 1594, cap. 233. and 1597, *^^P* ^Si. the annexed lands, and the King's property lands, v/ere ordered to be retoured, and as, by the laft of thefe adls, the ftewarts and bailies were direded, in making fuch retours, ' to have ane fpecial regard to the free rent, that the ' fewars and rentallers hes of the fame lands, beilde their few-fermes ' and dewties payed be them to our Soveraine Lord ;' fo, in confe- Z 2 quence * November ic. 1747, freeholders of the fliu'c of Berwick ««fra Primrofe. This decifion, though perfeftly well founded, lliews how difficult it is, at times, to reconcile law with common fenfc. Had tliis eftate been only a bai-e fuperiority, it would have gone to the eldeft fifter alone as an indlvilible fubject, and her fon would have hada. good title to a vote. Here then is an iaftance of a pcrfon's being in a worfe fituation... in a political view, by having the property as well as the fuperiority of lands. f See INIarch 6. 1 760, Sir Michael Stewart contra Captain Pollcudc, iSo -OF THE ELECTION OF Book III. queflce of the direilions of thefe ftatutes, many public retours were made, and tranfmitted to chancery : Now, as the old law required that one fliould be pofTefled of a forty fliilling land, or, in other words, ftiould be liable in payment of taxes in proportion to a land of that extent, in order to entitle him to vote for a commiffioner to parliament, fo it was reafonable that thofe who held their lands of the crown in feu fhould prove that their free rent, after payment of their feu-duiies to the King, was of that extent, thefe feu-duties be- ing no part of their eftate, but, on the contrary, a burden upon it, for which it was not intended they fhould pay any of the land-tax. Hence it was that the a£t 1681 required, that, in feu-lands, the ex- tent fhould be diftind from the feu-duties. When that is the cafe, the lands are entitled to a vote, but, where the extent, old antl new, is made the fame with thefe feu-duties, they have no fuch privilege, Jiow high foever it may be *. Having * January 19. 1745, freeholders of Lanarkfliire contra Hamilton of Wifhaw. June 14. 1746, freeholders of Perthfliire fc«/ra Cleland. June 24. 1 747, freeholders of Perthfliire contra M'Ara. In this laft cafe, M'Ara, in fupport of his claim to be en- rolled, appealed to a retour of the fourth part of the lands of Drimnin, bearing them to be of value ' per annum, fummam quinquaglnta trium folidorum et odto denariorum ' monetae Scotiae, et tempore pacis tantum,' and to be held feu * pro folutione quin- ' quaginta trium folidorum et o£l:o denariorum monetae Scotiae cum parte martis et * divoriis debit, et confueti una cum duobus folidis monetae antedift. in novam aug- ' mentationem rentalis dift. terrarum,' and inflfted that the feu-duty was diflin<5l from the old extent, and therefore the objeftion founded upon the adt 1681 did not apply. The court, however, fuftained the obje Malcolm, and others, contra coramiflloners o£ Tupply for the ftewartry of Kirkcudbright, Chap. II. COMMISSIONERS FROM SIHllKS. l^^J real rent of the lands fevcrally conveyed to them. The commif- fioners refufed their petitions, upon the pretence that a divifion into fo many parts would occa-fion great and unnccefTary trouble, and render the payment of the land-tax more difficult and precarious, and that they were not bound to give encouragement to proceedings that were evidently carried on with no other view than to create a number of nominal and fl£titious votes, contrary to the principles of the conftitution, and to the exprefs ena£lment of many falutary laws. The petitioners, upon this, applied to the court of feflion bv bills of advocation, and obtained an order in the following words: ' The Lords refufe to advocate, but remit to the comminioners of ' fupply to afcertain the value of the complainers lands by disjoining ' the fame in the cefs- books from the cuwulo valuation of the e- ' ftate with which they ftand prefently valued, and appoint the con- ' vener of the commiflioners to call a meeting as foon as convenient * for that purpofe *.' And the commiJTioners having afterwards thrown frefli obftacles in the way, the court, upon a new applica- tion, pronounced another order in the following words: ' The * Lords having heard this petition, they appoint the commiflioners ' of fupply for the fliire of Forfar, or any five of their number, to * meet at the town of Forfar, in the place where their meetings are * commonly held, upon Thurfday the 1 2th inftant, by ten o'clock ' forenoon, and not fooner, and to proceed diredly to expedite the ' divifion of the valuation of the feveral lands wherein the petition- ' ers ftand infeft ; and, in order that the fame may not be difap- ' pointed or poltponed improperly, appoint the faid commifTioners, ' or their quorum aforefaid, at their faid meeting, to take proof of ' the real rents of the feveral lands which the petitioners fhali infift A a 2" 'are • November 15. 1766, Earl Panmure, and others, contra the commifnoners of fup- ply for the county of Forfar. This judgment was affirmed in the Houfe of Lords, February 10. 1767, with L. 200 cofo. .188 OFTHEELECTIONOF Book llf. are necefTary to be proven, by examining fuch witneffes as the pe- titioners {hall, upon that occafion, adduce before them, who, if any objection is made, are notwithftanding to be examined,, referving the confideration of the objedlions till the divifion comes to be judged of. And after the proof is taken, appoint them immedi- ately to proceed to determine upon the import of it, and make the divifion accordingly j and if the commiflioners fhall find it necef- fary to adjourn their meeting, by reafon that a quorum of five of their number cannot be got to continue togeth-er till the affair is concluded^ the Lords, in that cafe,, allow, authorife, and appoint the adjournment to be made to the firft day thereafter, that any five of the commiflioners fliall declare their willingnefs to attend, who, in that cafe, are appointed to meet at the fame place and hour, and to proceed" in the faid matter with defpatch : And, if any further adjournment or adjournments are found neceflary for the want of a quorum willing to fit longer, appoint the other adjournments to be made according to the rule above direded, and difcharge {i. e, prohibit) every other bufinefs to be taken up by the commiflioners at the faid meetings until the divifion of the petitioners- valuations is concluded ; and declare, that no adjournment made by the ma- jority of any meeting fliall hinder any five of the commiflioners to proceed, who are willing; and, in the laft place, appoint the clerk ■ by himfelf, or a depute for whom he fliall be anfwerable, to attend * the meetings regularly, while a quorum of five commiflioners con- ' tinue together on the faid affair.' A fimilar order was given upon the i8th of December 1772, rela- tive to a divifion of the Duke of Gordon's valued rent in the county ef Banff. The commiflioners accordingly met upon the appointed- day ; but the majority, after flating certain objedlions, flopped fur- ther procedure. The minority, however, went on, and made a di- vifion ; and the court of feflion juftified their condudl, by finding that Chap, n, COMMISSIONERS FROM SHIRES. 189 that they were authorifcd to proceed, in refpedl that the niajority did not do lb *. But, if the majority had proceeded to make a di- vilion, that divifion, however erroneous, mud have been the rule, till rectified. . Another cafe of a hke nature occurred at the time of tlic general election in 1780. It was, however, attended with a peculiarity that gave rife to a warm conteft. William Brown having acquired cer- tain lands in the county of Ayr, negle<5led to get their (eparate va- luation afcertained, till within twelve days of the eledlion for that county, which was held upon the i6th of Odober 1780. Upon the 4th of that month, he applied to the convener to call a meeting of the commiflioners of fupply for that purpofe, and inhfted that it fhould be held upon Friday the 7th. The convener, who was in- a different interefl:, anfwered, *^ That he was very willing to call a ' meeting of the commiflioners as required ; but that it was impof- ' fible for him to call it fo foon as Friday firft, as he had never been * in ufe of calling any meeting without previoufly advertifing it in ' the Glafgow papers ; and as he could not have an opportunity of ' advertifing a meeting fooner than in the Gla'fgow papers of the ' 13th Odlober inftant, he fhould take care to have it advertifed that * day, to be held at Ayr on Wednefday the 18th inftant.' Mr Brown, and fome others in like circumftances, complained to the court of feflion by bill of advocation ; and, on the 7th of the month the judge officiating on the bills pronounced the following delive- rance : ' Having confidered the within bill, petitions, and proteft: ' in name of the complainers, and anfwer by the convener of the * commiffi.oners of the land-tax for the fhire of Ayr, refufing to call ' a meeting of the faid commiffioners, as required fo to do; in re- * fpea: there is not ti,me for appointing this bill to be fecn and an- ' fwered * June 21. 1774, Stephen w;//-^ Abercrombie. T90 OFTHEELECTIONOF Book III. ' fwered in common form, refufes to advocate. But appoints the * commiflioners of fupply of the fhire of Ayr, or any five of their ' number, to meet at the town of Ayr, in the place where the meet- ' Ings are commonly held, on Thurfday the i 2th of October cur- * rent, at ten o'clock forenoon, and not fooner, and to proceed di- ' re£lly to expedite the divifion, afcertainment, or approbation of ' the valuation of the feveral lands wherein the complainers ftand ' infeft J and, in order that the fame may not be difappointed, or ' poftoned improperly, appoints, &c.' as in the order refpeding the cafes from the county of Forfar. Of this deliverance no intimation was made, either to the commiflioners at large, or to their conve- ner, nor was there any notice given of it, even to the clerk, till the very hour of the meeting, when a few of the commifl[ioners, in the fame intereft with Mr Brown, went into the court-room, and in a iliort time afcertained his valuation to be £.471 : ? : 2 Scots, and ordered it to be fo entered in their books. At the meeting held for the election, upon the i6th of the month, Mr Brown claimed to be enrolled ; and, in proof of his being poflefled of the valuation re- quired by law, produced this recent decree. The majority of the freeholders, however, refufed to enroll him ; and, upon his enter- ing a complaint to the court of feffion, their judgment was endea- voured to be fupported chiefly upon the following grounds : ' That, ' although the court of fefllon might review the proceedings of the * commiflioners of the land-tax, yet here there were no proceedings ' to be reviewed, the matter that gave rife to the bill of advoca- ' tion being the exercife of an office, not the fentence of a judge ; ' and that, even when there was room for an advocation, ftill an in- ' timation to the commiflioners was neceflary, fo as that all of them ' might have an opportunity to attend. In the cafe of Malcolm, and ' others, againfl: the commiflioners of fupply of Kirkcudbright, the ' convener was appointed to call a general meeting. And in the ' cafes from the counties of Forfar and Banff, the colledive body of ' the Chap. II. COMMISSIONERS FROM SHIRES. hji tlie commiffioners had been regularly brought into court, arid or- dered to meet ; and, it was only upon tlielr being refradory, that power was given to any five to proceed in the bufinefs ; but here no intimation was made to the commiffioners at large, to acquaint them of the time of the meeting, nor was any notice given, either to them or to their convener, of the application made to the court of feflion, upon which the order proceeded.' This argument was alfo inforced by an obfervation to the following effeifl : ' That, to give validity to fuch proceedings, were to open a door for the greateft injuflice. A perlbn who had a job to carry through at the eve of an eledlon, of which he could not expedt the approba- tion of the commifTioners at large, would be under no difficulty of effeding his purpofe, provided the convener was his friend ; for, in that cafe, he needed only to get him to refufe to call a meeting, and then apply to the Lord Ordinary on the bills for authority to any five of the commiffioners to proceed ; as, in that event, he might keep the whole bufinefs a fecret from every comtniflioner of the county, except thofe in whom he could confide, and who might: be willing to concur in his fcheme.' This(i^Hfe--reafonlng wa», however, attended with no fuccefs. The objedlions made by the freeholders were over-ruled, and Mr Brown was ordered to be add- ed to the roll *. The reporter of this cafe obferves, * That: fome of ' the Judges thought that an oppofite party ought to have been in ' the field, in order to give validity to the judicial procedure;, but, ' as it was not alledged that the commiffioners had done any wrong, '^ and as they had precifely followed the mode pointed out by the * Lord Ordinary, the court repelled the obje<3;ion.' Many queftions have occurred with regard to the validity of de- crees of divifion of valuation. It will, therefore, be proper to con- fider * December 6. 1780, Wiliiam Brown contrn John Hamilton;. 192 OFTHEELECTIONOF Book III, fi<3er in what manner the commiffioners ought to proceed, fo as to ?.£t regularly in matters of that kind. The annual a£ts, impofing the land-tax, name a number of com- miffioners for each county ; but, as it is iinpoffiblefor the legilTature to know whether or not all the perfons fuggefted to them are pof- iefled of property, or iiave an interelt in the county fufficient for prcfuming them worthy of that truft, a. prot'ifo is conftantly thrown in. that none of the perfons fo named fliall be capable to adb with- out being infeft in fuperioiity or property, or poffefled, as proprie- tor or liferenter, of lands, valued in the tax roll of the county where he ads, to the extent of L. loo Scots /)^r ammm, except the eldeft fons and heirs apparent of perfons who are lo infeft of lands to that extent and valuation, and provofts, bailies, deans of guild, treafu- rers, m afters of merchant companies, or deacons conveners of the trades for the time being, of any royal borough, and bailies for the time being of any borough of regality, or barony ; and that any who being fo difqualified, fhall take upon them to atl, ihall forfeit L. 20 Sterling for every fuch a£ting, to be recovered by adlion, com- plaint, or petition, in a fummary way, at the fuit of any heritor within the county, before the county court, or the court of feffion*. The * In interpreting this ftatute, the court of feffion feems now to think it fufficient to inflift one penalty for one meeting, even though adjourned from one day to another, and though the perfon complained of may have afted in many different points. So they decided July 25. 1775, M'Adam, and others, contra Logan. They alio refufed to give cofts in that cafe. A diiferent judgment, in both thefe refpe£ts, was given in fo me former cafes. 1766, Sir John Gordon ro/itra Torhes. Idem contra Forfyth. In a qufftion from the county of Cromarty, two different perfons were found qua- lified to adl in virtue of the fame lands, although neither of them was the immediate vafllil of the crown. The cafe flood thus ; Andcrfon of Udal was bafe infeft upon a difpolkiou Chap. I. COMMISSIONERS FROM SHIRES. 193 The commifil oners are ordered to meet at the head boroughs of their feveral (hires, on a certain day named in each a£l, and are impowered to appoint the lubfequent diets of their meetings, and to name their conveners from time to time. This is wifely ordered to prevent packed meetings of a few commiflioners for the pur[)ofe of ferving a job ; and it has accordingly been fouml by the court of feffion, that a valuation cannot be divided e.Kcept upon the day of their firft meeting named in the ad, or at a meeting by adjourn- ment, or a general meeting properly fiimmoned by the convener*. But if a divifion made by a private meeting be confirmed or homo- logated by a fubfequent legal meeting of the commiffioners, it will be thereby validated t- B b The difpofition from l\Ir Hugh Anderfon, who Held of the proprietor of the Eftate of Cro- marty and this fub-vaflal, having conveyed the lands to Henry Davidfon, who infeft himfelf bafe upon the precept in that conveyance, both were found qualified to aft ; Ja- nuary 21. 1766, Sir John Gordon contra Anderfon. If this decifion be well founded, it is hard to fay where to flop. It Ihould feem, that as many may act in refpeft of ens parcel of land of L. loo valuation as there may be fub-feus of it granted. * Februar)' 21. i753> Abercrombic row^ra Leflie. January 9. 1754, Cunningham contra Stirling. Where there is no convener, any individual commiffioner may call a meeting; December 24. 1767, Willinm Pulteney, and others^ centra Sir John Gor- don, and others. f March 6. 1 754, Campbell contra Stirling. June 16. 1 774, Earl Fife, and others, contra the Duke of Gordon, and others. We may, however, obferve in the decifions of the court of feffion on this point, diflinftions that appear rather nice. The eftate of Newlifton, in the county of Weft Lothian, ftood valued at L. 1 600, and, in 1 740, a committee of the com- miflioiiers of fupply disjoined from it the lands of Gatefide. Thefc they valued at L. 1 30, and a note relative to this procedure w;is entered in the books kept by the collc?ith this provifo, are liable to the penalty, can- not be difputed; but, as the ftatutes do not declare the proceedings of fuch commiffioners to be void and null, it came to be made a queftion. Whether a divifion of a valuation could be quarrelled up- on that ground? and the court of feffion, in a redudion of a decree of divifion made by the commiffioners for the fhire of Gaithnefs, found, ' that the commiffioners not having taken the oaths of al- * legiance and abjuration, purfuant to the ad of parliament 1749, ' were not capable to ad in the execution of that ftatute; and theie- * fore found the divifion void *.' B b 2 . One * February 22. 1751, Sutherland of Swinzie centra Sutherland of Forfe, &c. Per- haps the recency of the rebellion 1745, and the zeal of the judges to curb Jacobitifm. may have contributed fomewhat to this judgment. 196 DF THE ELECTION OF BookIH. One Ihould be apt to imagine, that, In order to render the pro- cedure in the divifion of a valuation valid, all perfons interefted in the cumulo^ or whofe proportion of the land-tax may be afTeded by fiich divifion, ought either to concur in the application to the com- miffioners, or to be called as parties. It is, in fadl, a regular procefs; and in all fuch it is a general rule, that, unlefs every perfon inte- refted be in the field, no procedure can take place. This rule is, however, not puflied with rigour in divifions of this fort. It is not neceffary to call the tenants in the lands, even although, by their leafes, they are taken bound to pay either the whole, or a proportion of the land-tax. Their intereft is but confequential and temporary. Nei- ther is it neceffary to make the fuperior a party, whatever influence the divifion may have upon his political views *. Even where it is negle^fled to call thofe who are fubftantially interefted in the divi-' fion, and may on that account bring it under challenge, the court of -feffion does not allow either a commiffioner of fupply, or a freehol- der, to make that omiffion an objedion, unlefs they can likewifc fliow that the divifion is materially wrong. An intereft is necefl'ary as well as a title j but, unlefs the divifion be faulty, no perfon what- ever has any intereft to challenge it, or to infill that it fliall be fet afide t. The '' July 24. T 760, Earl of Home «n/ra Brootnfield. •f- December 6. 1780, Sir Walter Montgomery-Cuningham contra Hamilton of Suii- drum. In this cafe, the application for the divifion was made by Sir Walter Montgo- mery-Cunningham, who was only fuperior of a part of the lands to which the cumulo was applicable ; and, in fupport of the objei^ion, that the vafTals by whom the land-tax was to be paid ought to have been brought into the field, the following among other arguments were urged : ' When a fet of vallals jointly apply to the commiflioners of ' fupply to divide amongft them the cumulo valuation under which their feveral lands « are included, they are under no neceffity of making their fuperior a party to fuch ap- ' plication, as the total valuation of the whole of their lands muft ftill remain the famej ' but, Chap.il commissioners I-ROM shires. 197 The regular method of dividing cumulo valuations, is by propor- tioning them according to tlic real rents at the time of tlie'divifion ; but, when the land-tax has been paid by the vaO'als for a confiderablc time in certain proportions fixed by tlicir fcu-rights and difpofitions, or other agreement, the coinmifrio.ncrs may follow that rule, with- out inquiring nicely into the juflnefs of fuch proportions. It is not to be prefumcd that any of the vafials will voluntarily agree to pay a greater fliare of the land-tax than truly corrcfponds to liis real rent. * but, wlien tlio application comes rix,':ii ilic I'upcrior, ilu-TC is un abfohitc neoeflity to * make all the vafTals parties, becaufe they have an evident intercft in the apportioning ' of the cumiila among thcmfelves. A decree of divifion, without their being called, * miift therefore be void and null to all intents and purpofcs, and cannot be produced ' as evidence before a court of freeholderr., or be offered to them as a proof of the fe- « parate valuation of the refpective lands belonging to the feveral valTals. It fliould ' make no variation upon the argument, that none of Sir Walter Montgomerj-'s vaflals ' would be permitted to challenge the prefent decree of divifion without ftiowing that < it was prejudicial to them, and was therefore liable to be taxed with injuftice. Thel'e « yaflals have good opportunity to know wh<;ther any of them has met with injuftice or ■♦ not, and it were to no purpofe to allow them to challenge the decree, unlefs they could ' qualify injuftice, as, otherwife, the challenge could be attended with no effedl. But ' the freeholders can neither be A.ippofed to know, nor are bound to inquire into, the < jufticc or injuftice of the decree: It muft be fufficient for them that it is ex fads void, * in refpedt that all parties having intereft were not called ; and on that account it muft * be entitled to no more regard from them than a fheet of white paper. A decree of ' divifion made by one or two commiflioners, without authority, may be as juft and ' impartial as a divifion made at a general meeting called in the moft regular mannci-; * but how much foever the parties may be fatisfied with its juftice, or how clearly fo- ' ever its impartiality may be made to appear, the freeholders will not be bound to pny ' the leaft regard to it, until it meet with the approbation of a general meeting. The » objedlion, that there is no procefs through want of parties, feems, however, to be « equally well founded with the objeftion that there is no regular court.' The court of lefiloii, however, repelled the objeftion. It is true, that, in this cafe, there was no procefs of reduftionj but tliat circumftaoce had no influence in the decifion. It appeared cxfacL- of the proceedings, that Sir Walter Montgomery was only fuperior, and that the vafllils had not been called. The objeftion, therefore, if^ood in the fliapc of a redutStion, wa^ equally good by way of exception. TqS of the election of BookIIL rent *. But, If a perfon pon'effed of an cftatc of little more than L. 400 of valued rent, fhould fell the one half of it, and, with a vic.v to retain a freehold qualification, become bound to take upon him- felf the payment of the whole land-tax, or of fuch a proportion of it as would correfpond to L. 400 of valued rent, it might be argued, that a divifion proceeding upon the ufe of payment con- formable to fuch agreement, ought not to be fuftained to the effetl of entitling the feller to claim a right to vote as a freeholder; be- caufe, although his lands did adlually pay his Majefty's fupplies for L. 400 of valued rent, yet they neither were liable, nor was there jufl ground to prefume them liable, in payment of fuch fupplies to that extent. But, where a peri'on obtains a divifion of his cumulo va- luation, in the view of parcelling it out in different freehold qualifi- cations, trivial objedions will not be liftened to. He can never make more votes out of his eftate than its total valuation will bear j and it is of little moment that one parcel may have got a greater, and another a fmaller proportion, than they would have been en- titled to, if the divifion had proceeded with all the accuracy poffible. In the cafe of General Grant againft Duff of Logie and otliers, the court of feflion reduced a decree of divifion of the valuation of the eftate of Innes, becaufe no proper evidence had been brought of the real rent of a part of that eftate, the witnefles having only referred to an eftimate faid to have been made by fworn apprifers appointed by the fheriff of Murray, who, however, afterwards appeared not to have been put upon oath. But the Houfe of Lords rcverfed this judgment \.. In •January 17. 1775, Galfaraith «/;//•« Cunningharoe. Eodemdie, Campbell of Monzie antra freeholders of Stirlingfliire. + February '773- Chap. II. COMMISSIONERS FROM SHIRES. 199 In dividing cumulo valuations according to the real rents, regard muft be had to fuch fubjcdts only, as by the ads of parliament, or convention, introducing this mode of apportioning the land- tax, are appointed to be valued. Thefe, according to the aft 1649, were ' money-rent, viftual-rent, cafualities paid by tenants, and cafual- ' rent of coal, ("alt, and fahnon fiftiings, and other fiihings in pro- * perty, whereby there is a yearly benefit ,;' but, by an unprinted a£t of the parliament 1681, which piilTed in confcquence of feveral petitions complaining of great inequality in the valuations formerly made in feveral fliires, it was particularly enaded, ' that coal and fait is not to bear any part of the fupply *.' Under the words other Jijhings, oyfler fiQiings, and muicle fifhings, of which the crown is in the pradtice of giving exclufive grants, are clearly com- prehended ; but what fliall we fiy of white fifhings in the fea? Thefe can fcarcely be called fifliings in property, being common to all the nation ; but yet, when they have been adually valued, they have been found to afford a title to a freehold qualification f. It has been much queftioned, Whether, in fuch divifions, any part of the cumulo ought to be allotted to mills. They are not mentioned in the adt 1649 ; it was therefore a difcretionary matter in the cornmlflioners to value them or not. It accordingly appears that fome were valued and others not. Of the firft we have inrtanr ces in the county of Banff, from the records of the commiflioners preferved * A copy of this aft is in the Appendix, No. 32. f M'Leod of Cadboll contra Mr Robert Blair. Auguft 7. 1773, Lord Adam Gordon contra Duff". In this laft cafe it was affirmed, that there were fundry grants of white fifliings by the crown through Scotland, and particularly in the fliire of Banff; tliat thefe, when followed by poffeffion, gave an exclufive property, and that, in divi- ■fiotTs of cumulo valuations, it was ufual to lay a part upon tlieni. In the county of Banff there is alfo an Inftance of a ferry-boat being valued. 200 OF THE ELECTION OF Book Hi. •prclerved in the lower Parliament Houfe. When certain evidence can be brought of their having been once valued, they ought to re- ceive a proportion of the cumulo to be divided ; and, if it be uncer- tain whether they were originally valued or not, the diftinftion be- tween thofe which have a regular thirlage, and others which are not entitled to any, but depend entirely upon voluntary employers, feems to be reafonable. The rent of the latter mufl: be altogether precari- ous, and, in fadt, is only the price of labour ; but the rent of the for- mer may be coni'idered as permanent, and, on that account, they ought to receive a part of the cumido valuation. So the court of feflion judged in the cafe of General Abercrombie contra Gordon of Thorniebank *. And there feems to be no ground for diftinguifti- ing whether the thirlage belonging to a mill be of other mens lands, or of the lands belonging to the proprietor of the mill. Objections have fometimes been made to decrees of divifion, on account of the commiffioners having allotted no part of the cumulo valuation to feu-duties payable to the fuperior. If the cumulo com- prehends lands that were feued out before the general valuation, a part ought regularly to be allotted to the feu-duties payable for fuch ]at)ds, and the remainder upon all the property lands. But no in- flance can be given of allotting any part of a cumulo to feu-duties, where the feus have been granted fmce the general valuation. The land-tax is conftantly levied from the vaflals, and, of courfe, it were improper to lay any part of the valued rent upon the feu-duties payable to the fuperior. The commiffioners of fupply being the only perfons intrufted with the adjuftment of the valued rent, the freeholders cannot take any other evidence that the lands upon which a claim is entered for enrolment are of the valuation required by law, than what arifes from • Auguft 10. 1773. , Chap. II. COMMISSIONERS FROM SHIRES. 201 from their books. It is not, however, ncccffiiry that the books themfelves, or even extracts from them, be produced ; a certificate under the hands of two commiffioners, and of the clerk, of fupply, is held to be fufficient evidence of the fadl * ; that evidence may, however, be redargued by the books themfelves; for, if not agree- able to them, the certificate is falfc. It is worth while here to take notice of a cafe, where a divlfion made by the commiiTioncrs of fupply was (uftained, ali hough both evidently and grofsly erroneous. The lands of Broadflone, in the county of Air, flood valued in cumulo at L. 680 : 2 : 2 Scots. Part of thefc lands belonged to the Earl of Eglinton, and part to Mr Shaw Stewart of Greenock. In 1760, an application was made to the commiffioners of lupply, on the part of Mr Shaw Stewart, for a divifion of this cumulo. The commiffioners, in making the divifion, adopted as their rule the ufiige obferved in paying the land-tax, but, by an accidental error in calculation, they, by their decree, allotted L, 21 : 16 : 4 of valuation to Mr Shaw Stewart's part of the lands, more than it was entitled to by that rule, and, confequently, gave fo much lefs to the other parcel belonging to the Earl of Eglinton. From the date of this decree, the land-ta.\. was paid for the refpec- tive parcels in proportion to the valuation it had allotted to each ; and, in I 780, Mr Shaw Stewart was enrolled a freeholder upon his part of Broadftone, as valued at L. 362 : 6 : 4, and upon certain other lands valued at L. 55 : 19 : 4, making in all L. 415 15: 8. Soon after this enrolment, the miftake committed by the commiffioners at making the divifion was difcovered, and made the foundation of a complaint a- gainft Mr Shaw Stewart's enrolment ; but, as all the parties concern- ed had acquiefced in the decree, and the land-tax had been paid accor- dingly for twenty years, the court of fcffion difmiffed the complaint f. C c By * February 5. 1760, Carnp'oell of Shawneld and Graham of GSartmorerw!';-/? Muir ef Cr.klw.iU. t J"ly 25. 1780, Charles Ferg-uffcr. contra John Shaw Stewart. 202 OF THE ELECTION OF Book HE By the aO: 1681, there was only place for the qualification of valued rent, in cafe the old extent did not appear ; fo that a perfon whofe lands were adtually retoured to a lefs extent than forty {hil- lings could not be enrolled, how great foever his valued rent might be; but this was altered by the adt of the i6th of George II. whicli exprefsly declares*, ' that lands holden of the King or Prince, liable ' in public burdens for L. 400 Scots of valued rent, fhall in all cafes ' be a fufficlent qualification, whatever be the old extent of the ' lands, any law or practice to the contrary notwithftanding.' The ftatutes eftabliHiing the right of voting confine the qualifica- tion to lands. Hence it was found, that a chatter of the offices of Coroner and Serjeant, though held of the crown by the tenure of ward and relief, and retoured prior to 168 i, did not entitle one to be enrolled "f. Fifliings, if valued in the cefs-books, arc, however^ fuftained, in order to make up the qualification of L. 400 Scots if. The teinds of a perfon's own lands, if feparately valued, and pur- chafed by him from the titular, may likewife be taken m computo for that end |j ; but it is not neceflary for one whofe lands are va- lued in the books of fupply at L. 400, to fhew that he has an heri- table right to the teinds of fuch lands §. It has not been determi- ned whether one can be enrolled upon the teinds of another per- fon's lands, though feparately valued in the books of fupply. The queftion. * Seft. 9. f January 14. 1761, Andrew Stewart contra freeholders of LanerkOiire. X July 10. 1 74 J, Freeholders of Aberdeenfliire contra Voxdycc. Eodem dky Free- kolders of Dumbartonfhire fon/z-a Campbell. Auguft 7. 1773, Lord Adam Gordon antra Duff. II January 29. I745> Dunbar «/?/riii\i Campbell of Ardkinglafs. 2o6 OF T H E E L E C T I O N O F Book III, A cafe of a fimilar nature occurred from the county of Ayr at the general eleftioii in 1780. Mungo Campbell liad been enrolled a freeholder of tliat county at Michaelmas 1779, upon certain lands conveyed to him by the Earl of Eglinton, and, amongft others, the lands of Monkcaftle, which had formerly belonged to the abbay of Kilwinning, ereded into a temporal lordfhip in favour of the fami- ly of Eglinton. No complaint was made of this enrolment; but, at the Michaelmas meeting 1780, John Boyes claimed to be enrolled, partly upon thefe lands of Monkcaftle, to which he derived right from the Duke of Hamilton, whofe family vvei-e the church vaflals, and had them contained in their charters from the crown for more than a century. The freeholders rejeded Mr Boyes's claim, in re- fpe(ft that Mr Campbell ftood already enrolled on thefe lands, and no alteration in his circuraftances had taken place. Mr Boyes re- newed his claim at the meeting for eledion held upon the i6th of 0£lober 1780, and Infifted that the former obje£tion ought to have no influence, becaufe Mr Campbell had at that meeting refufed to take the oath of poffeflion, and, therefore, fhould have been ftruck off the roll, although the majority of the freehoWers had wrongful- ly refufed to do fo. But Mr Boyes's claim was again rejeded ; up- on which he complained to the court of fefTion, who pronounced the following judgment: ' Find that the freeholders of the county ' of Ayr convened at their laft Michaelmas head court, held at Ayr ' upon the 3d day of Odober laft, did wrong in refufnig to admit * the complainer on the roll of freeholders for faid county, and that ' the complainer. ouglit to have ftood on the faid roll of freeholders * at the fubfcquent eledion on the 1 6th day of the faid month ; ' find that the freeholders at faid eledion meeting alfo did wrong in * refufing to admit the complainer on the faid eledion roll*,' &c. Before this interlocutor was pronounced, Mungo Campbell had been ordered • December 21. 17&0, John Boyes antra Hamilton of Sundi-um. Chap. II. COMMISSIONERS FROM SHIRKS. 207 ordered to bo llruck off the roll on account of his having rtTufcd to take tl'.e oath of pofTenion at the meeting for cledlion ; but, as the court found that Mr IJoycs ought to have been enrolled at the Mi- chaelmas meeting, it thence appears to have been their opinion that Mr Campbell had been erroneoully admitted to the roll upon thefc lands of Monkcaflle, and that his being fo admitted was no bar to the claim of Mr Boyes, who was the proper crown vaffal, although the Earl of Egiinton, the Lord of ereftion, and Mr Campbell as his aflignce, had right to the feu- duties. It would, indeed, be an evi- dent hardlhip, if one who had an unexceptionable title to get upon the roll was to be kept ofi", merely becaufe another had been im- properly admitted in virtue of the fame lands, or had not been time- oufly objeded to after being diverted of them. A cafe of the laft fort occurred a few years ago. liaurcnce Craigie, one of the free- holders of the county of Kinrofs, conveyed the eftate upon which he ftood on the roll, to Colonel Skene; and, two months before Michaelmas 1775, the Colonel lodged, with the fhcriff-clerk, a claim for being then enrolled. No objedion was, however, lodged againfl: Mr Craigie's right to continue upon the roll. On that account, the freeholders could not legally ftrike him ofF, and they made that a pretence for refufing to enroll Colonel Skene. But the court of fef- fion reverfed their judgment, and ordered him to be added to the roll. They were of opinion, that, by lodging his claim in due time, and by producing a fufficient title to a freehold qualification, he had done all that the law required of him, and that he was not fur- ther bound to lodge an objedion againfl: Mr Craigie, from whom he had acquired that qualification *. The queftion might have been avoided by Colonel Skene's producing a confent by Mr Craigie to his being ftruck off the roll. Royal * December 15. 17751 Colonel Skene rw/Zra coS OFTHEELECTIONOF Book III. Royal boroughs, boroughs of regality or barony, hofpitals, and other corporations, may be infcfc in, and poflefled of lands holding of tlic King; they, cannot however, vote in the eleQion of commif- fioners from fliires in virtue of fuch lands, how high foever their extent or valuation may be. The whole ftrain of the ftatutes con- cerning fuch cledions, which talk always oi freeholders or oi perfonSy feems to exclude all bodies politic or corporate. No freeholder can be admitted to ad by proxy or delegation ; but, without fuch a power, a body corporate cannot poffibly vote. Befides, the oaths which the law allows to be put to freeholders cannot be taken by delegates from fuch bodies. There is, therefore, no room for ad- mitting them to a vote, and fo the court of feffion found after a inoh deliberate confideration *. It * Maicli 6. 1760, Sir Michael Stewart contra borough of Paifley. This borough had long been in the practice of voting by a delegate ; and, it even appeared, that its vote had been fuftained in the Scottifh parliament 1703, on occafion of a controverted election for the fhire of Renfrew. The minute of parliament runs thus : ' Item, the « objection againft the town of Paifley (that being a borough of barony, howbeit infeft « and in pofleffion of a freehold ; yet, fince no burgefs could be a delegate for that end, * therefore, the incorporation could have no vote in the eleftion of barons), was con- • fidcred, and the houfe having acquiefccd to fuftain the vote, the objedlion was pafTed ' froiT), by the party, and allowed to be withdrawn.' Of late, this borough has been in the cuftom of conveying its fuperiorities in liferent to a particular pcrfon, for a price paid by him, and in that way an unexceptionable vote is created. The paying a price is of no other confequence than to guard againft a challenge of the tranfartion on account of a dilapidation of the common good of the borough. It is nothinr; to the freeholders whether a price be paid or not. Upon the 6th of Auguft 1681, it was alfo refolved in parliament » That a mafter of ' a hofpital having lands mortified thereto, holden of the ICing, being a forty fhilling ' land, or ten chalder of victual being kirk-land, holden of the King, wherein the ma- ' ftcr is infeft, may have a vote in the clcftion of a comniiflioner to parliament.' Foun- tainhall makes the following remark upon this and another judgment of that parlia- »nent: ' In the adt made for regulating eleftions'in (hires, there v/ere two points which < had Chap. II. COMMISSIONERS FROM SHIRES. 209 It has become a pretty commoti pradice for the royal boroughs to alien parts of their burgage lands, to be held feu of theuifclves. But, even although after doing fo, they vv'cre, by connivance, to convey the fuperiority to a purchafcr, fo as to make way for his obtaining a charter from the crown, that would not confer upon hiin a right to vote, or entitle him to be enrolled as a freeholder. The lands ftill remain truly burgage, and their owners are reprefcnted by the member for the borougli *. Before concluding this branch of the qualifications of a freehold- er's title, it will be proper to take notice of an exception which long prevailed in refpeift both to the manner of holding, and to the valuation, and indeed does, in a great meafurc, prevail, even at this day. We have feen, that, by all the a£ts of the parliament of Scot- land, from the time of James I. downwards, none were allowed to vote, or to be eleded, but thofe who held their lands Immediatt ly of the King or Ptince, and that, when the old extent did not ap- pear, it was, by the aft 1681, made neceffary to fhew that the lands were of L. 400 of valued rent. But this notwithftanding, the vaf- fals of fubjedt fuperiors in the (hire of Sutherland were always al- D d lowed, ♦ had been decided by the parliament's judicative power as votes and refolves, which ' yet were omitted to be engroffed in this adl ; the firft was, where after an hofpital * acquired a forty (hilling land, holden of his majefty, the mafter had a vote with the ' other freeholders in the eleiSlion of commifGoners to ihires, and was capable to eleifl ' and to be elected, provided they be infcft, and that they only fent one, though they « had never fo many forty fhilling lands. The fecond was, where one hath only a re- * fignation of lands in his favour at the time of chooCng the commiilioners, and is « voting, but, before the meeting and down-fitting of the parliament, he is infeft, or « has got a confirmation from the King of his bafe infeftment, his vote is valid, thouo^h • he was not publicly infeft the time of the voting. But the parliament miferably va- ' ried in thir points, as the wind of favour or prejudice tofled them ;' Vol. I. p. 154. • June 17. 1777, Sir Robert Abercromby contra Alewood, and others. 3IO OF THE ELECTION OF Book III. lov;ed, not only to vote, but even to be eleded commlflioners for that county, and that, too, without being poflefled either of the or- dinary extent, or of the valuation required by law. There was, in- deed, fome reafon for an indulgence in the firft of thefe refpedls. All the lands in the fhire were held, for a long time, of the Earls of Sutherland. There were no fmall barons within it who held of the crown. Of courfe, it could have had no reprefenta- tion, unlefs the Earl's vaffals had been allowed to ufurp the privi- lege of freeholders *. Of this fmgularity no public notice was taken by the legiflature before the ail of the i6ih of George II. fo often mentioned, which, after fetting forth, that, by the conftitution of the flaire of Suther- land, and by conftant ufage, the Barons of that fhire had been re- prefented not only by the immediate vaflals of the King and Prince, but alfo by thofe who held their lands of the Earls of Sutherland, and other fubjeQ fuperiors, and that fuch fub-vafl'als were in the practice of voting at eledions as well as the valfals of the King and Prince, and without any reftridlion as to the quota of the old ex- tent, or of the valued rent of their lands, whereby votes had been un- duly * This diftrift was erefted into a fheriffdom in favour of the Earl of Sutherland, by. an unprinted aft of the firft parliament of Charles I. cap. 32. It had fonuerly been reckoned a part of Caithnefs. The fliire of Kinrofs having been almoft wholly acquired by the two noble families of Morton and Burleigh, fent no commiffioner to parliament for a confiderable time before the year 1681, when Sir William Bruce of Balcafkie, who had then purchafed the Earl of Morton's property in the county, was elefted by himfelf and the few other freeholders. And it fliould feem, that he confidered it to be neceffary on that occa- fion to procure a letter from the King approbatory of his eleftion, and confirming the privilege of the fhire to fend a commilfioner to parliament in time to come. This ap- pears from a minute of Parliament of the 18th of Auguft 1681, which, as being a mat- ter of fome curiofity, is to be found in the Appendix No. 33. Chap. II. COMMISSIONERS FROM SHIRES. 211 duly multiplied, and claimed by feveral perfons in rcfped of the fu- periority and property of the fame lands, enaded, i/ao, That, after the ift of September 1745, no perfon fhould be c;ipable to be eledi- cd a comn.iflioner for that Ihire, or have a right to vote at fuch e- ledions. without being infeft, and in pofieflion of lands liable to his Majcfty's fupplies, and other public burdens, at the rate of L. 200 of valued rent. 2do, That one perfon, and no more, fhould thence- forth be entitled to vote in refpedl of the fame lands. 3/io, That, where lands were held by any Baron or fieeholder, immediately of the King or Prince, fuch Baron or freeholder, but not his vafTals or fub-vafHils, fhould be capable to be eledted and to vote. 4/0, That, where lands were held of the King or Prince, by a Peer, or other perfon, or body politic or corporate, difabled by law to be eletfted a member of the houie of commons, or to vote in fuch elcdtions, the privilege fliould belong to the proprietor and owner of the lands, and that no alienation of the fuperiority to be made by fuch Peer, or other perlon, or body politic, fhould deprive fuch propiieior and owner of his right to vote, or of his capacity to be cle(Stcd, or entitle the purchafer to that privilege. And, 5/0, That the property of lands of L. 200 Scots of valuation, held in part immediately of the King or Prince, and in part of a Peer, or other perfcm, or body politic, incapable to elc£t, or to be eledted, fhould be a fufficient qualifica- tion to the proprietor and owner, any law or ufage to the contrary notwithftanding. The fieeholders were likewife ordered to make up a roll of their number at the Michaelmas he. id court 1745. and to revife that roll at their fubfequent yearly meetings, and mtetings for eledlion, according to the rules prefcribed' by the a£ls of Parlia- ment made for regulating the e1e£^ions of commifTioners for fhires in Scotland, which were declared to extend to the fhire of Suther- land, as well as to the other fhires, except in fo far as it was other- wife provided by this ad of the i6th of George II. in the particu- lars above mentioned. D d 2 The 212 OFTHEELECTIONOF Book HI. The third qualification refpe£ting the title is, that the claimant be infeft in the property or fuperiority of the lands on which he founds a right to vote. The ftatute i6Si did not require that a perfon fliould be infeft for any length of time before he could be enrolled or have a right to vote. Alterations have, however, been made in this refpect by two Britifh ftatutes. By an a£t of the 12th of Qiieen Anne*, it was declared, thait, from and after the determination of the then parliament, no con- veyance or right whatfoever, upon which infeftment was not taken, and the feifine regiflered one year before the tejle of the writs for calling a new parliament, or one year before the date of the war- rant for making out a new writ for an eledion during the conti- nuance of a parliament, fliould entitle the perfon or perfons fo in^ feft to vote, or to be cleded at that eledtion, in any lliire or ftewar- try in Scotland. And, by the ad of the i6th of George II. f, it was enaded, That no purchafer, or fingular fucceflbr, fliould be en^ rolled, until he was pubUcly infeft, and his fafine regiftered, or charter of confirmation was expede, (where confirmation was ne- celTary) one year before the enrollment. The laft of thefe two ftatutes does not exprefsly repeal the for- mer. It was accordingly objeded to a perfon who claimed to be enrolled at the meeting for eledion in the county of Stirling in 1754, that he could not be admitted, becaufe the date of the writ for calling the parliament was April 9. 1754, and his inftrument of feifine was only regiftered on the 27th of April 1753. The freehol-r dei^ ♦- Stat. I. cap. 6.. |- Cap. n. § 10. CiiAP. ir. COMMISSIONERS FROM SHIRES. ar^ ders having rejected the claim, a complaint was preferred to the court of feffion, in which the claimant founded on the ftalute of George II, allowing thofe to be enrolled whofe feifines had been re- gidered a year before the meeting, and contended, that, z% pojlerlora derogant priorlbus, the ad of the I2th of the Queen was in fo f;ir thereby repealed. To this the freeholders anfwered, that the maxim poflcriora derogant priovibiis only takes place where two things enac- ted by different ftatutes are incompatible ; but that here there was no incompatibility ; for the claufe in the tirft act refpe£ted the right of voting, and of being elefted, and the claufe in the other refpeded only the privilege of being enrolled ; and the freeholders would have en- rolled the complainer at the meeting after the eledion of the com- miffioner to parliament was over, if another objedion had not ftood in the way: But it being replied, that the ad of the i6th of George II. by having only required that a perfon be infeft a year before he be enrolled, and by having, at the fame time, in other claufes, impowered every one to vote who is enrolled, muft imply a repeal of that claufe of the ad of the 12th of Queen Anne, on which the objedion was founded, the court of, feffion ordered the, claimant to be added to the roll *. The propriety of this decifion was never publicly contefted til! the period of the general eledion in 1780, when the objedion was re- newed, and ftrenuoufly maintained in feveral counties; but, in all the complaints that were brought before the court of feffion, the former judgment was adhered to. The queftion was treated very fully in a cafe from the ftewartry of Kirkcudbright f. But, even there, it feemed to be admitted, that the claimant would have had fome ground to complain, if, after the. eledion was over, he had defired the * January 17. 1755, Buchannan of Carbeth contra Cunningham of Ballandalloch. . t; December 1780, Alexander Gordon ««/ra Richard Dalziell... 214 OFTHEELECTIONOF Book III. the freeholders to take his claim under their confideration, and they had then refufed it. This was, however, by the other party, held to be decifive of the point at iffue; beccuife it was clear, that, at a meeting for ele Alexander Pierie fw/rfl Hay of Mordlngton; If the party^ how- ever, can fhow, to the fatisfaftion of the court, that, in the deed founded on, he or his author had committed a miftake, and had erroneoufly fuppofed that his lands were held of a fubjeft, when, in reality, they were held of the crown, I apprehend thatJuclk. error ought not to hurt his right.. 224 OFTHEELECTIONOF Book III. of land, viz. iwo, A part of the lands of Eafter Aird and Eafter Tarbat. ^do^ A nart of the lands of St Martins. And, 3//(7, A part of the lands and cftate of Meikle Tarrel. But, in the inftru- ment of fcifine in favour cf theie gentlemen, the notary only men- tioned their being infeft in the lands of taller Aird, Eafter Tarbat, and St Martins, neglefting to mention Meikle Tarrel; and, it ha- ving been objedied, that it did not appear that they were infeft in the v>'!ioIe ot the lands contained in their claim, the objection was fuRamcd by the court, although there was ftrong reafon to believe, from the latter part of the inftrum.ent, that infeftment had adually been taken in the whole, as it concluded in thefe words: ' Aifta e- ' rant haec fuper fundum omnium et fingularum partium, feu por- * tionum praedi£tarum terraruin de EaRer Aird, Eafter Tarbat, et ' Meikle Tarrell^ refpe£live et fucceffive*,' &c. It is a remarkable circumftance, that this ohje(ftion, which did not occur to the parties, but was ftated from the bench, had the confequence to determine the eledion for the county of Cromarty in 1768, in favour of Mr Pulteney. A nice feudal queftion arofe about the fame period. David Ogilvy was enrolled a freeholder of the county of Forfar, at Michaelmas 1767, ujon the following titles, iwo, Charter under the great feal, in favour of William Earl Panmure, of a number of different lands, and, amongft others, the lands of Auchmull. ido^ A conveyance of thefe lands of Auchmull to Mr Ogilvy in liferent, and to the Earl in fee, aiid an aflignment of the precept in the Earl's charter fo far as it refpeded them. And, 3/^0, An inftrument of feifine up- on that precept. Againft this enrolment a complaint was preferred to the court of feflion, by certain freeholders ftanding on the roll, who infifted, that the feifme was null, in refpe£t that infeftment had not * February 18. 1768, M'Leod of Cadboll ««rro Rofs of PrieftWll. CuAP.U. COMMISSIONERS FROM SHIRES. 225 not been taken upon the fevcral ditlcrent ten-.-ments or parcels of ■which ihe qualification was coinpofed, althouj^^h tliey were difcon- " tigucus, but had been taken at one part for the whole. To this it was aniwered, that Lord Panmure's charter contained a difpenfing claufe in the following words: ' Qiiod unica lafina per di£tum Wi- ' lielinum Comitem Panmure cjufqne praedift. fuper aliqua parte ' fund. di(f^. terrarunn, nunc et omni tempore futuro, per dchbcra- * tiouf^ni terrae, et lapidis fundi earundem, abfquc ullo alio fymbolo, * fufFieiens erit pro integris terriy, baronik, rriolendinis, decimis, pif- ' cationihus, aliifquefupra Icrint. cum pertinen. vel quavis earundem. ' parte, non oh(tan. quod dilcontigue jacent.' The complainers ad- mitted that fuch diipenfing claul'es had been eftablifhed by ufage, and were efTedual, fo long as all the lands granted by the charter remained veiled in one perlon j but contended, that wtienfoevcr the union came to be diflblved by an alienation ol a part, tlie Jifpenfatioo- was at an end, and that inftftment mulltiiereaftcr be taken upon each of the feparate p ircels, according to the common rules of law. Mr Ogilvy, in oppofition to ,this, founded . upon feveral inflances, where, upon a partial fale of lands, granted by cliarter from the crown, and upon an affignation of tjie unexecuted precept contam- ed in fuch charter, infeftment had been taken at one particular part for the whole, purfuant to the difpenfation of the charter. Thefe inftances were, however, of a recent datt', and the court Aiflained the objedion *. But their judgment was reverfed in the Houfe of Lords -f. A (Ironger cafe came from the coiinty of Linlithgow, where the infeftment was taken, in virtue of a difpenfing claufe, at a place F f which *- January 19. 1768, George SIcene and Charles Hunter contra David Ogilvy. f March 4. 1768. The fame judgments were fevcrally pronounced in the Court ot Seffion and HouU of Lords, in thirteen other finiilai' cafes from the county of Forfar, 2i6 . OFTHEELEGTIONOF Book III. which was not even conveyed to the claunant, but to another per- fon *. The title of one who claims to be enrolled as a proprietor of land t niufl be abfolute, and not dependent on the will of the per- fon fiom whom it is derived. A revocable difpofition is not fuffi- cieiit, becaufe it is no better than a redeemable right, reprobated by the a£t of the 12th of Queen Anne J, which enaded, ' That no in- * feftment taken upon any redeemable right whatfoever, except ' proper wadfetSy adjudications, or apprifings allowed by the a£t of ' parliament relating to eleftions in one thoufand fix hundred and ' eighty one, Ihall entitle the perfon to vote or be ele£ted in any ' fhire or ftewartry.'' Neither will a conveyance, containing a re- ferved * The cafe here alluded to is that of David Dundas, Efq; This gentleman's claim be- ing rejected by the freeholders, upon the objection made to his infeftment, he com- plained to the court of fefllon, who difmifled his complaint ; December 19. 1767. Af- ter the judgment of the Houfe of Lords in the cafe of Ogilvy, he applied to be enrolled at the meeting for eleftion in April 1 768, and was enrolled accordingly ; but, in a complaint preferred to the court of felEon, upon the footing that their former decree was res judicata, until reverfed upon an appeal, the court found, November 15. 1768, ' That the former decree fuflaining the objedlion to Mr Dundas being enrolled was a ' res judicata, which barred the freeholders from proceeding to confider the claim pre- ' fented by him to them upon the 1 6th of April laft ; and, therefore, granted warrant ' for expunging him from the roll.** Mr Dundas, upon this, appealed from both de- crees, and both were reverfed, March 5. 1770. The cafe of Doclor Glen, from the fame county, was fimilar. The court of feflion fuftained the objecTtion ; but theii- de- cree was reverfed. f By proprietor it is not here meant to diftinguifli between one who has'the full enjoyment of the lands in which he is infeft, and one who has only the fuperiority ; the word is only ufed in contradiftindlion to thofe who have acquired temporary right?, as liferenters, or redeemable rights, as wadfetters. $ Stat. I. cap. 6. See July 3. 1753, Abercromby contra Gordon. Chap, II. COMMISSIONERS FROM SHIRES. 227 fervcd power to the granter to burden or alienate the lands without the confent of the grantee, be fuflained, even though fuch power be exprcfsly renounced, unlefs the renunciation be recorded in the regifter of feifines and reverfions, a year before the meeting at which the grantee claims to be enrolled *. This is not exprefsly enacted by any ftatute, but it is perfedlly analogous to that claufe of the a£l of George II. which requires the regiftration of an abfolute infeftment to be a year before the enrolment. It is the renunciation of the referred power that alone gives a title to the difponee to be admit- ted to the roll of freeholders, and, of courfe, fuch renunciation ought to be recorded as long as an infeftment upon an abfolute and indefeafible conveyance. It was, however, found, that an infeftment upon a difpofition which contained a provifo, that no debts contradled, or deeds done, or to be contraded or done by the difponee, during the life of the difponer, without his confent, fhould affedt the lands or the rents,, ■was a fufficient title f. In this cafe it was pleaded, that the claimant had, in effed, no- eflate at all during the life of the difponee. But, it was anfvvcrcd, That he was in the abfolute and irredeemable right of the lands ; that, as there was no prohibition againfl felling, and no declaration that the debts contracted by him fiiould be void and null, the re- ftrictive claufe of the difpolition was nugatory and ineffedual ; and that, befides, it was common for perfons to be admitted to the roll who were fettered, even with the ftrideft eniciils. F f 2. If • January 17; 1755J Dundas of Manners contra Craig of Dalnair. January \i^. if}6i, Lauchlan Grant contra Alexander Hay younger of vocklaw. ,f January 5. 1762, Goldie of Southwick contra Gordon younger of Campbeltown- 228 OFTHEELECTIONOF Book III. It has been made a qucftion, whether an infeftment proceeding upon a difi)olition granted by an heir of entail, who is ftridtly bar- red from the power of alienating the lands, can afford a title for enrolment ; but, it bfin:^ anfwered to an objection made on that h.ead, that a conveyance by an heir of entail, however flridily fet- tered, is good agalaft every mortal but the fubflitules or remainder men, and that it was jus tcrtii (incompetent) to any third party to plead in their rigiit, the court of feffion fuftained the titles pro- duced for the claimants, and ordered them to be added to the roll*, I. , .. wevcr, rafli and dangerous for heirs of entail to grant fuch conveyances, as, by fo doing, they expofe themfelves to. the hazard of fuits at the inftance of fubftitutcs, even the moft remote, for de- claring their right to the eftate irritated and forfeited. The method moft commonl) ufed, and efteemed the fafeft, is to grant only life- rent rights, and to truft to the honour of thofe upon whom they are beftowed, to renounce them, in the event of a challenge being made by any of the lubftitute heirs of entail. By the law of Scotland, no fupcrior can interpofe another perfon between himfelf and his vaflal, or fplit the right of fuperiority into parts, fo as to multiply fuperiors upon him. This rule is, indeed, firongly founded in the principles of the feudal law, which admit- ted not of the Over-Lord's exerciling his lordiliip to the prejudice of his vaffal, beyond the limits of the grant or contradl by which- they were conne£ted with each other. To one fuperior alone the vaffal was bound to pay homage, and to perform the otiier duties incumbent upon him ; and from that luperior he and his heirs were entitled * February 5. 1760, Campbell of Shawfleld and Graham of Gartmore contra Muir of Caldwall. See alfo the argument in the cafe of Mr David Dalrj'mple, &c. contra Reid, March 4. 1755. ^' makes no difference, that it appears, from the titles produ- ced by the claimant, that his author was barred from the power of aliening, or even of granting liferent rights. Sec January 23. 1781, Houflon centra Ferricr. Chap. ir. COMMISSIONERS FROM SHIRES. 229 entitled to demand a renewal of the invefliturcs, when necefTary. But, if tlie fiiperiority coukl be fplit, at the will of the Pver-Lord, into different parcels, the vaflal mufl not only have beAi liable to pay hoaias;c to different Over-Lords, but mufl: alfo have been obli- ged to reforr to each of them before he could obtain a renewal of the invcUitures by which the property of his land v/as to be veftcd in him. This notwithflandlng, attempts have of late been made to juftify a fuperior's parcelling a i'uperiority into parts. In a cafe from the county of Ayr, it was ftrenuoufly maintained, that now, when homage is out of falhion, and the duty of the vafial confiUs only in paying his yearly feu or blench ciuty, and the cafualities of fupe- riority, or feudal incidents, there could be no harm in allowing fu- periors to create two or more liferent freehold qualifications out of one fuperiority. And, in order to remove any appearance of hard- fhip upon the vaffal by tiiis multiplication of fupcriors, it was ob- fervcd, that the granter of thefe liferents, to whom the right of fee was ftill referved,- was fully entitled to renew the inveflitures of the vaffal, without the confent or concurrence of the liferenters. But to thefe arguments the court of fcflion paid no regird ; and the titles, by which a multiplication of fuperiors upon the vaflal was at- tempted to be impofed, were fet afide as void and null *. This point came again to be more warmly contcfted in a later qucflion, betwe.n the Duke of Montrofe and Sir James Colquhoua of Lufs. Sir James held a confiderable eftate of the family of Mon- trofe, confifting of a variety of different lands, for which fcparate acknowledgements were payable to the fuperior, but all compre- hended in one invefliture. The family of Montrofe, in the view of increafing their political intereft in the county of Dumbarton, fplit this fuperiority into a number of parts, for the purpofe of creating an ^ July 1780, Sir Joki Anftruther contra the Earl of Eglinton, and others. 230 OFTHKELECTIONOF Book III. an equal number of liferent freehold qualifications. Sir James brought the conveyances to thefe different liferenters under chal- lenge, by an adlion of reduction ; and, although, befides the gene- ral plea, it was maintained for fome of the defenders, who had ob- tained liferents of diftin'^ parcels, for which feparate reddendo! were payable, without any connetStion with other parcels, that it was to be prefumed that the lands feverally conveyed to them had, originally, been diftin£t and feparate fees, and that the circumftance of the fuperior's having voluntarily included them all in one charter, ought not to prevent him from bringing matters back to their for- mer fcate, the court of feffion paid no regard to that diftindion, but fet afide all the conveyances brought under challenge *. If, however, the vafial, upon whom a multiplication of fuperiors is attempted, do not choofe to complain, no other perfon is fuppo- fed to have any title to interfere ; and hence it has been held to be jus tert'n to tlie freeholders to obje£l to a qualification on that ac- count. So it was determ.ined by the court of feffion in a cafe from the county of Wigton in 1761 f ; and in another from the county of Kinrofsin 1779$. And, although, in fome queftions that came from the county of Ayr in 1780 |j, one or two of the Judges feemed to be of opinion that it was competent to the freeholders to make the ob- jedion, yet, in fubfcquent cafes fiora the fame county in 1781, the maxini oijus tertii was carried to a great length, infomuch, indeed, as to prevent the freeholders from founding upon an adion of re- dudion, already brought by the vafTal againfl his fuperior and his affigneesj, ♦January 31. 178I, Sir Jarnes Colquhoun cotitra the Duke of Montrofc, and c- thers. This judgment was afErmed in the Houfe of Lords, February 19. 1782- f July zZ. 1761, Mr Walter Stewart, and others, contra Mr David Dab7mpk. -J; 1779 Routledge ««/>-a Adam, 'I Fergufiba ffrt//-fl Montgomery, and others.. Chap. II. COMMISSIONERS FROM SHIRES. 231 aflignees, for the purpofc of fetting afi'de the conveyances upon which the qualification was founded. Of tlicfe, one inftance fliall be given. Campbell of Skcrrlngton held certain lands, and, inier alia, the two merk land of Hoifecleugh, of the Earl of Dumfries, who, iu 1774, conveyed the fuperiority of thefe lands to different perfons in liferent, for the purpofe of giving them freehold qualifications. Up- on thel'c conveyances, infeftments were immediately taken ; but, as none of the difponees made any demand upon Mr Campbell^ he re- mained ignorant of thefe proceedings till within a fliort time of the general eledion in 1780, when he took the proper fteps for getting them fct afidc, by bringing a fuit of redudion before the court of felfion. Captain Sloan Laurie, one of the difponees, claimed to be enrolled at Michaelmas 1780, upon the two merk land of Horfe- cleugh, and certain other lands ; but to this claim Mr Campbell, who was himfelf a freeholder, objeded, that the claimant's titles to thefe lands of Horfecleugh were null, as tending to create an undue multiplication of fuperiors upon the vaflal j and, in order to remove the plea of jus tertii, he produced his fummons of redudion duly executed againft the claimant. The freeholders fuftained the objec- tion ; but, upon a complaint being preferred,- the court of fcffion found that they did wrong in refufing to enrol Captain Sloan Lau- rie, and ordered his name to be added to the roll *. Againft: this judgment a reclaiming petition was preferred, in which the merits of the qucftion were fully ftated. It was, in xht jiijl place, contend- ed, that a deed which infers a multiplication of fuperiors upon the vaffal, and is granted without his confent, is altogether void, and, tpfojiire, null ; and that, as Mr Campbell had declared that he nei- ther * February i . 1 7 8 1 . Captain Sloan Laurie conira Hamilton of Sundrum and Camp- bell of Skerrington. 23^ OF THE ELECTION OF Book III. ther confenfed to the conveyance, nor would acknowledge the clai -riant as his fuperior, and had likewife produced his executed fummons of redu£tion as a proo-f of Jiis purpoi'c. the freeholders could not fiiil to be fatisficd, that, as the conveyance, hitherto, had been attended with no efFedt, fo it could never be attended with any, and were therefore not only entitled, but bound in duty, to difregard it, and to rejed: the claim: That the plea of jus tertii could not take place in a queftion of that fort; That it v.as not jus tertii to Mr Campbell to make the objedion, for he founded not on the right of any third party, but upon his own right, and had certainly both a title and an intereft to oppofe any perfon's esercifing a privilege as liis fuperior who had no legal claim to that charader : That there feemed as little room for that principle in confidering the proceed- ings of the other freeholders; for, although it might be jus tertii to ^fuitor to found upon the right of a third party with whom he was not connedled by conveyance or inheritance, it could not with any propriety be fiid to be jus tertii to z. judge X.o determine matters fall- ing under his cognifance ; and that the freeholders, when confider- ing the qualifications of claimants, aded in a judicative capacity, and were bound to take notice of every objedion which was inftantljr verified, and needed no inveftigation or proof. In the next place, it was obferved, that, as one claiming to be admitted to the roll of freeholders muft'not only produce a title to the lands, but alfo be in pofleflion, (o^ in this cafe, it was perfedly clear, that the claimant iieither had obtained, nor ever could obtain, the pofTeffion of the lands of Horfecleugh, as Mr Campbell, the vaflid, refufed to ac- khov^ledge him, and not being bound to do fo, was at liberty to with-hold from him all the duties payable to his true fuperior, even ope exceptionis^ without the neceffity of a reduction tor fetting afide t-he convevanee in the claimant's favour. Under this branch of the argument it was farther ftated, that, with refped to the pofl!efl)on, which "was a mere queftion of fa£t, it was impoflibie to objed the pJea Chap. n. COMMISSIONERS FROM SHIRKS. 2.33 plea o? jus tertii, or incompetency; tiiat, if a perfon were to claim upon lands, which, hy undeniable evidence, were proved to be in the poflcflion of anotlitr, it would be abfurd to fuppofe that the freeholders were not at lil)erty to liften to that evidence ; and that it muft be c([iKilly competent to ihem to rejedl a claim when it is pro- ved to them that the claimant neither is adually in poffeffion, nor has a legal title to poflefs ; that, if Mr Campbell, before the meet- ing of the freeholders, had obtained a decree of th^ court of feflion, annulling the claimant's titles, the claimant could not have been en- rolled, but that, quoad the qucftion of pofleflion, fuch decree could have added no force to the objcdion ; for the produdion of Mr Campbell's title deeds proved the nullity of thofe in the perfon of the claimant, and, joined to the evidence of his publicly difowning the claimant for his fuperior, afforded demonftration that no poflef- iion had followed upon his right, and that none could be obtained by him in confequence of that right. Thefe arguments were cer- tainly very fpecious; but they were difregarded by the court j and the petition in which they were ftated was refufed *. G g A * There was not time for getting this queftion brought forward in the Houfe of Lords before the fitting of the committee of the Houfe of Commons, appointed to try the merits of the controverted election for the county of Ayr. Mr Sloan Lawrie, and • fome others In limilar circumftances, were accordingly added to the roll, in confequence of the decrees of the court of feffion ; but their votes were ftrenuoufly objcftcd to be- fore the committee ; and, in fupport of the objeiflion, it was contended, that how much foever the court of feflion might confider themfelves bound to enrol thefe claim- ants, while their titles remained unreduced, the committee ought not to admit the votes of perfons whofe titles would, in a fliort time, be found by the decree of that very court to be not only then void and null, but to have been fo from their dates. It was farther obferved, that whatever regard a court of law might pay to the plea of j:.s tei-tir, it were abfurd to fuppofe that a committee of the Houfe of Commons, when judging of a right to a feat in their houfe, could be fettered by a plea of that fort, fo as to bind them to receive the votes of thofe who had no legal qualification ; and that, if the votes in i.jucfl;ion were to be fidl:ained, a door would be opened for much evil ; For, '2 34 OF THE ELECTION OF Book III. A queftion, different in fome refpeds, but fimilar as to the point of pofTeiTion, may, with propriety, be taken notice of here, although we are not yet come to that branch of a freeholder's qualification. Sir John Anftrucher held the Lordfhip of Glffen blench of the Earl of Eglinton for payment of one penny Scots, /i petalur tantum. The Earl fplit this fuperiorlty into different parts, for the purpofe of creating liferent freehold qualifications; and to each of thefe life- renters he conveyed ' the feu-duties of the lands, and others, above ' difponed, payable to him by the feuers thereof, from and after ' the term of Whitfunday 1773, and in time coming, during his ' life, with the whole cafualities of fuperiorlty, non-entry duties, ' and others arifing from the faid rights.' There was an Inaccuracy in thefe conveyances, for the Earl's vaflal did not hold the lands feu, but blench of his Lordfliip ; there were therefore no Jeu-duties to be conveyed. The declfion, however, did not turn upon that clr- cumftance. Befides the objedion of an undue muhlplication of fu- periors, which was dated in the meeting of the freeholders to the claims of thefe liferenters, and upon which thefe claims were rejec- ted, it was farther objeded in the court of feffion, that, as Sir John Anftruther, the vaflal, paid only one penny Scots, Ji petatur, for the whole Lordlhip, fo that blench duty neither was divided, nor was. divifible, and each claimant had only a right to an undivided fhare; but that It was an eftabliihcd maxim, that no perfon could be quail- lied- J'or, as the conveyances granted by the Earl of Dumfries were unknown to tlievaflal till within a fhort period of the eleiflion, when he had not time to get them fet afide ;, fo although they were unqucfUonably to be annulled in the courfe of a few mouths^ they might be revived in the fame concealed manner, and be again made the founda-. tioji of freehold qualifications at the next general ele(Elion. The counfel for Major. Montgomery had great confidence in thefe arguments ; but the committee, contrary to their expeftation, fuftained the votes. The decifion of the Houfe of Lords, in the cafe of Sir James Colquhoua co/iiia the Duke of Montrofe, had not then been pronouiir* ced., / Chap. II. COMiMISSIONERS FROM SHIRES. a.sj fied to vote as a freeholder, without having a diftind: propeity and a diftinit poflefTion ; that it had been fo found in tlie cafe of Sir Mi- chael Stewart againft Captain Pollock, March 9. 1760 ; and that, in the coiitefted eledion for the county of Dumbarton in 1724, the committee of privileges and eledions came to the following refolu- tlon, which was approved of by the houfe: 'That it is the opinion of ' this committee, that any conveyance of undivided {hares of the fu- ' periority of any lands in the rtiire of Dumbarton, in order to mul- * tiply votes, or fplit an intereft in fuch fuperiority amongft, feveral ' perfons, with a view to enable them to vote, is contrary to the a£t * of parliament made in Scotland in 1681, intituled, A be mentioned in the fequel. I March 3. 1753, Abercrombic ««/ra Gordon. ^ January 17. 1755, Galbraith (ontra Cunninghais. Chap. II. COMMISSIONERS FROM SHIRES. 251 Hufbands cannot vote upon the apparency of their wives ; and are only entitled to that privilege when the wife is infefl*. But it is not neceflary for the hufbaiul to wait a year after her infcftment before he can be enrolled f. It may be afked, wliether one who wants to be enrolled as an ap- parent heir mud lodge a claim with the ftierifF-clerk two kalendar months before the Michaelmas meeting? That point has never been precifely decided; but, from a judgment pronounced in a late cafe, it appears to have been the opinion of the court of fefhon that a claim was neceffary. In that cafe, an apparent heir had adually lodged a claim, and was accordingly enrolled : And a complaint having been preferred, in which it was ftated, that the claim was defective, in refpe£t that it neither mentioned the dates of the pre- deceflbr's titles, nor the particular lands upon which the claimant defired to be enrolled, nor their extent or valuation, the court fu- ftained the obje£tion, and ordered him to be ftruck off the roll J. But, if a claim had been unneceflary, it muft have been a matter of no confequence that the apparent heir had lodged one that was de- fective. Indeed, the words of the adt of the i6th of George II. which orders claims to be lodged fo long before-hand, for the pur- pofe of preventing furprife, are general. The ftatute makes no ex- ception with regard to apparent heirs more than others who apply to be admitted to the roll. And, as it is not neceflary to the en- rolment of an apparent heir, that his predeceflbr fhould have flood upon the roll, it is equally reafonable that the freeholders have time I i 2 to * i2mo Annae, C. 6. § ult. January 19. 1745, freeholders of Lanarkfhire cotiirc Hamilton of Wifliaw. f March 7. 1781, Dalrymple and Bremner contra Farquhar Gray. ^ March 3. 1773, Gordon contra Abernethy of ^layen. ^S^ OF THE ELECTION OF Book IIF. to examine. int9;t}Ye, titles to be produced ty apparent heirs, as to in- veiljgate thofe to be founded oa by fingular fucceflbrs. V/hen it is in view to eflablifh a freehold quahfication upon a bare fuperiority, the claimant mufl be able to fliew-that he has a proper feudal vaflal in the lands. It has, accordingly, been deter- mined, that a difpofitipn of lands, containing an afTignation to a charter, but referving the property, or dominium utile^ to the granter of fuchdifpofition, does not afford a title for enrolment*'. A fu- baltern.holding .cannot be eflL§l>Ufhed in that nianner by a fimple refervatiou ,; and when a perfon intends to part with the fuperiority of his lands, in order to give a freehold qualification to another, the beft n,ethod is tofeparate the property from the fuperiority before- hand, hiy-.graniing, a, feu-right tQ ^ thlixjpartyi and'theaito execute a.diipofition of ;,the glands to the perf&n.- whQijs to.get the qualifica- tion, with afi ^xceppoa of that f^unfightfrorn; the; warrandicef (war- ranty), after which the difponer needs only a.. re-conveyance from the third party, ;to v\'hom the feu was given, t^o ve^ the property, or dominium iitile^ in his own perfon f. The laft qualification, fo far as it relates to the title, is, -that the claimant be aftually in pofTefTion of the lands. This is a mofl falu- tary regulation to prevent fiditious freeholds being reared upoti fimulate * 1 759, Elliot contra Shaw and Oliver. f When an eftate is to be fplit into a number of parts for the purpofe of eflablifli- ing as many freehold qualifications, the conveyancer ought to be attentive in order to prevent doubts and queftions with regard to undivided feu or blench duties. The mode adopted by Earl Panmure, above taken notice of, v^as exceedingly cautious ; for as many ft-us were granted as freehold qualifications were intended. That-, however, muft have been attended with a very confiderable expence. See another method in the report of the cafe, Januai7 9. 1755, Forreficr w.'/ra Fletcher. The feu-right may declare, iii.. irracmc. its own purpofc, and that the feuer is bound to reconvey. i Chap. IL COMMISSIONERS FROM SHIRES. 253 fimulatc titles in perfons ivho have no real intereft in the eflatc, in virtue of which they claim a right to vote ; and, in order to carry- it into execution, the utmofl: attention on the part of the legiflaturc has been requifite. The a£t of the i 2th of Anne, cap. 6. after obfcrving, that, of late, feveral conveyances of eflates had been made, in trull, or re- deemable for elufory fums, nowife adequate to the true value of the lands, on purpofe to create and multiply votes, contrary to the true intent and meaning of the laws in that behalf, did, therefore, infer alia, enad, That, from and after the termination of the then parliament, it fhouid be lawful to any one of the eledors pre- fent at a meeting for eledlion, who fufpeded any perfons to hold their eftates in truft, and for the behoof of others, to require the prefes of the meeting to put to fuch perfons the following oath ;. and that thofe who refufed to fwear and fubfcribe fuch oath fhould be incapable of voting, or of being eleded at that meeting. The oath runs thus : ^ \ A. B. do, in the prefence of God, declare and ' fwear, that the lands and eftate of for which I claim * to give my vote in this ele(Slion, are not conveyed to me in trufl:,. ' or for the behoof of any other perfon whatfoever : And I do fwear, * before God, that neither I, nor any perfon, to my knowledge, ' in my name, or by my allowance, hath given, or intends to give, ' any promife, obligation, bond, back-bond, or other fecurity, for ' re-difponlng or re-conveying the faid lands and eftate, any man- ' ner of way whatfoever. And this is truth, as I fhall anfwer to ' God.' This oath, not being thought fufficiently comprehenfive to guard againft the evil the legillature had it in view to prevent, the follow- ing was fubftituted in its place, by *tt-acl of the 7th of George If. cap. 16. ' I ^ i?. do, in the prefence of God, declare and fwear, *ThaL 254 OFTHEELECTIONOF Book III. That die lands and eftate of for which I claim a right to vote in the ele«£lion of a member to ferve in parliament for this county, or ftewartry, is adtually in my pofleflion, and do really and truly belong to me, and is my own proper eftate, and is not conveyed to me in truft, or for, or in behalf of any other perfon whatfoever ; and that neither I, nor any perfon, to my knowledge, in my name, or on my account, or by my allowance, hath given, or intends to give, any promife, obligation, bond, back bond, or other fecurity whatfoever, other than appears from the tenor and contents of the title upon which I now claim a right to vote, diredtly or indiredly, for re-difponing and re- conveying the faid lands and eftate, in any manner of way whatfoever, or for making the rents or profits thereof forthcoming to the ufe or benefit of the perfon from whom I have acquired the faid eftate, or any other perfon whatfoever ; and that my title to the faid lands and eftate is not nominal or fidlitious, created or referved in me in order to enable me to vote for a member to ferve in par- liament, but that the fame is a true and real eftate in me, for my own ufe and benefit, and for the ufe of no other perfon whatfo- ever. And that is the truth, as I fliall anfwer to God.' The ftatute appoints this oath to be taken, when required, * by * every freeholder who fhall claim to vote at any ele6tion of a mem- * ber to ferve in parliament for any lands or eftate, in any county ' or ftewartry in Scotland, or who fliall have right to vote in ad- ' jufting the rolls of freeholders, &c. before he proceed to vote in ' the choice of a member, or on adjufting the rolls.' And it fur- ther ena£ls, ' That, in cafe he fliall refufe, if required, to take and ' fubfcribc the oath aforefaid, his vote fliall not be admitted or al- ' lowed, and his name fliall forthwith be erazed out of the roll of * freeholders : And in cafe any perfon fliall prefume, wilfully and * falfely to fwear and fubfcribe the faid oath, and fliall be thereof ' lawfully Chap. ir. COMMISSIONERS FROM SHIRES. 2; jj * lawfully convidled, he fliall incur the pains and punirtiinent of * perjury, and be profecuted for the fame, according to the laws * and forms in ufe in Scotland *.' At the meeting of the freeholders of the fhire of Ayr, held for eledling their rcprcfentative to the lafi: parliament, Mungo Camp- bell, who had been enrolled the year before, voted in the choice of prcfes and clerk ; but, before any other bufinefs was begun, or any queftioa ftatcd that could give occafion to a vote, he was called up- on to take the above recited oath ; upon which, without faying any thing, he flipped out, and withdrew from the meeting. The free- holder who had required him to take the oath, infifted that his name Ihould be erazed from the roll ; but the majority of the meeting re- fufed to do fo. A complaint was next preferred to the court of feflion ; and, although Mr Campbell, in his anfwer, contended that the oath could not be put till he was proceeding to give a vote, and that his going out of the court upon its being put to him at a time when no queftion was before the meeting, could not, upon a found conflrudlion of the fratute, be interpreted a refufal to take it, the court found, ' That the refpondent having wilfully abfented him- * felf after the truft oath was defired to be put, is to be held as re- * fufing to take the oath : Therefore, found the freeholders of the ' county of Ayr did wrong in refufing to expunge the name of the * faid Mungo Campbell refpondent from the roll of freeholders of * faid county, and granted warrant to, and ordained the IherifT- * clerk of the faid county of Ayr, forthwith to expunge the name * of the faid refpondent froni the faid roll.' The court likewife condemned Mr Campbell in cofls, which they taxed to L. 5, and the expence of extraxfling the warrant "[". By * The aft appoints this oath to be extended on parchment, and tlie tenor of k fhews that a feparate copy muft be made out for every perfon by whom it is taken. ■{■ December 9. 1780, Ferguflbn co^itm Campbell. ^S^ OF THE ELECTION OF Book III. By the fame ftatute, it was appointed, that eveiy freeholder, be- fore he is either enrolled, or admitted to vote at an cledion or meet- ing for enrolment, in any queftion for the choice of a prefes or clerk, or other queftion whatfoever, fliall be obliged, (if required by any other freeholder prefent), to take and fubfcribe the oaths appointed by law to be taken by electors of members to ferve in parliament, when required fo to do, which oatlxfthe prefes or clerk of the meeting is impowered and required to adminifter. It has been made a queftion, whether this part of the ftatute, allowing oaths to be put before the election of prefes and clerk, relates folely to the oaths to government ? or whether it likewife comprehends the oath of truft or pofleffion firft introduced by the a£t of the I2th of Queen Anne, and amended by this a(£t of George II. ? At the election of a reprefentative for the Ihire of Aberdeen in 1734, a motion was made to put it before choofing the prefes and clerk, but that motion was over-ruled. In 1764, it was put to, and taken by feveral of the freeholders of the ftiire of Perth; but one of them having declined it, the matter was not pulhed further at that meet- ing. In the courfe of the complaints that followed the eledtion for the fhire of Cromarty in 1 768, an inquiry was made into the prac- tice ; and reports were obtained from about twenty different coun- ties, that it was not cuftomary to put it till after the eledion of the prefes and clerk. At laft the point came to be folemnly tried in the courfe of certain complaints from the fliire of Murray, where this oath had been tendered, but was refufed to be taken before the eledion of prefes and clerk, at the Michaelmas meeting 1772. The court of feflion found, that the oath was lawfully tendered at that meeting*'. But the Houfe of Lords reverfed the decree, and found that it could not be putf. The * February 24. 1773, Sir Ludovlck Grant, and others, «///>•«! Archibald Duff, f March 31. 1773. This feems to merit the attention of the legiflature. It of- ten Chap. II. COMMISSIONERS FROM SHIRES. 257 The oath hears, that the lands on which the claim to vote is reft- C(J, are adually in the poflelFion of the claimant; but corporal pot- leffion, or what, in oppofition to ci'uil, is teijmed natural ^o{\i:iY\.ox\^ is not necefTary. The word mufl be here interpreted according to its legal fenfe. Thus, the pofleffion of a liferenter is held to be poflcf- fion by the fiar; and the pofleffion of adjudgers, before the expira- tion of the legal reverfion, is underftood to be pofTcfrion by the own- er. Even the right to poliefs, though not adually carried into exe- cution, is fufficient. A decree of maills and duties, or a poinding of the ground, (two modes of forcing payment of rents or feu- duties), affords legal poffefnon, although nothing be hitherto uplift- ed. Indeed, blench duties, fuch as a peacock's feather, a pair of fpurs, or a penny, fi petatitr tantum, are feldom, if ever, demanded from vaffals; but dill the fuperiors are legally in pofTefljon, and in fafety to take the oath. They may do fo, even although they liave difcharged the feu- duly for ever. It is enough that they remain fuperiors. It is not any pecuniary benefit they may reap, or be en- titled to reap, that gives them a right to vote. It is the Lordfhip, or fuperiority, that gives that right ; and, as long as it remains fub- fiantially and truly with them, they are in fafety to take the oath; ihe pofleffion of their vafllils being, in the eye of law, their own .pofleffion, K k The ten happens that the party which carries the qtieftion in the choice of the prefes, does thereby carry the eleiftion ; and, it feems unjuft, that thofe who, by rcafon of their not being able to take the truft oath, cannot vote direftly in the eleftion of a mem- ber, flaoulJ be allowed to do fo indire(Stly by voting for a prefes, whofe decifive or cart- ing vote may give the eleftion to the perfon whofe intereft they want to fupport. The allowing the oaths to government to-be put before the eledlion of the prefes, was cal- culated to prevent the difaffedled from having it in their power to decide the fate of an eleiTtion : And it is equally reafonable, that thofe who have no real eftate, and, on that account, cannot, with a fafe confcience, take the truft oath, fliould likewife be de- prived of that power. 25S OFTHEELECTIONOF Book III. The words ' nominal or fidtitlous, created or referved, in order to ' enable to vote for a member to ferve in parliament,' have been produdive of many queftions ; and the court of fefTion, from a laudable anxiety to carry into efieil what appeared 10 them to be the intention of the legiflattue, perhaps went farther fome years ago, than, as mere interpreters of ftatutes, they had authority to do. The firft inftance I find, of this objedion being ftated againft a title, occurred in 1745, in the cafe of Burnet of Crigie. That gentleman received a difpofition of certain lands from his father, to whom he afterwards granted a charter of the fame lands, to be held blench of himfelf. The freeholders objedled to his claim to be en- rolled, thac he had no real eftate, and that his title was manifeftly collufive and nominal, or fidtitious, created in order to make a vote. But it being anfwered, that a bare fuperiority was a good title, and that the fon's intereft, of how little value foever it might be, was real, and not held for the behoof of any other perfon, the court of fcfFion repelled the objection *. The queftion being, however, again brought under confideration, by a reclaiming petition, in which it was chiefly urged, that it be- hoved the claimer of a vote to fwear that he had not made any dif- pofition of the lands, or rents,. other than appeared from the contents of the titles under which he claimed, the court altered their firft in- terlocutor, and fuftained the objedion f . This ultimate judgment of the court appears, therefore, not to have proceeded upon the ob- jedion of nominal and fiditious, but upon the former part of the oath of truft, relative to redlfponing, or reconveying the eftate, or making the rents or profits forthcoming to the ufe or benefit of the perfon • July 31. 1745, the freeholders of Kincardinefliirc contra Burnet of Crigie. f June ip. 1746. CiiAP. ir. COMMISSIONERS FROM SHIRES. 259 perfon from whom It was acquired *. Had the conveyance to the ion contauied an obligation upon him to redifpone tlie property, or dominintu i/ti/e, to the father, there would have been no room for the ohjedlion. It was, indeed, objcded in 1755, to the titles produ- ced for three leveral claimants, that they were nominal and fidi- tious, becaufe the difpolitions upon which their charters proceeded contained a proviio, that, as foon as they had completed their rights to the lands, as immediate vafl'als of the crown, they fliould recon- vey the property to be held feu of themfelves for a fmall feu- duty, and that the cafualitics of the fuperiority fliould be taxed to fmall clufory fums. But as, in that cafe, there was no obligation upon thefe claimants other than what appeared from their own titles, and it could not be difputed that a bare fuperiority gave a good right to vote, the court of feffion repelled the objedlion f. In 1 757, the Earl of Glencairn conveyed the fuperiority of cer- tain lands to Mr Porterfield, who was the vaflal in thefe lands. Mr Porterfield obtained a charter upon the procuratory of refignation contained in the difpofition, and, without taking infeftment in his own name, immediately conveyed two parcels of the lands to two of the Karl's nephews in hferent, and to the Earl himfelf in fee. Thefe two liferenters being infeft, and having claimed to be enrol- led, it was objeded, that their titles were plainly nominal and fi<£li- tious. But it being anfwered, that each of them had a true and real eftate; that they were under no promife or back- bond, and held their fuperiorities in trull for no perfon whatever; and that it was no ob- jedlion to a claimant, that his chief view in purchahng the right un- der which he claims was to entitle him to the valuable privilege of ■ voting for a member to ferve in parliament, unlefs it could likewife K k 2 be • See this Cafe as ftated in the Remarkable Decifions, No. 7j. *• January 9. 1755, Forrefter and others contra Fletcher and others. 26a OFTHEELECTIONOF Book III. be proved that his right was nominal and fi(f]titious, i. e. not a real and true eftate in himfelf, but held in truft for fome other perfon, the court repelled the obje(fHon *. A fimilar judgment was pro' nouiiced in the courfe of the fame month f, in the cafe of Grant of Drumphad, where it was contended, that, from the very manner in which the titles were made up, it was plain that the claimant had acquired the eftate, not for his own behoof, but to ferve the granter ; and that, as the law reprobated all fuch nominal votes, fo, if the court were fatisfied from the face of the deeds, and from the nature of the tranfadion, that the clahnant's titles came under that defcrip- tion, it was the fame thing as if he had acknowledged upon oath, that his qualification was nominal and fiditious. A ftill ftronger cafe * February c. 1760, Campbell of Shawfield and Graham of Gartmore contra Muir of Caldwall. Thofe who do not confider the view of the legiflature in introducing the truft oath, and take every part of it feparately, are apt to think, that no man can fubfcribe it, with a fafe confcience, who purchafes a fuperiority for the fole purpofe of entitling him to vote in the ele A complaint was preferred againfl this enrolment; and, after cer- tain objedions had been over-ruled, it was pleaded, that Mr Rofs's title was altogether nominal and fidlitious in the conflrudion of law ; and, in fupport of this plea, the following fads were offered to be proved by his oath: i?«o, That he was follicited by Mr Pulte- ney (one of the candidates) to accept of the wadfet, in order to create in him a freehold qualification ; and that, as the fole purpofe of it was to entitle him to vote for that gentleman at the enfuing eledlion, fo he underftood that it was given with that view. 2^0, That he had no previous treaty with M'Leod of Cadboll, (the gran- ter of the wadfet), either with refpedl to the particular lands to be wadfetted to him, or with regard to the wadfet fum, or the term of redemption. 3//0, That he neither paid, nor gave fecurity for the wadfet fum, or, if any fecurity had been granted, it was previoufly concerted, or at lieaft he was given to underftand, that no demand was to be made upon him either for principal or intereft ; and that, upon his renouncing the wadfet, fuch fecurity was to be, delivered up. 4/(3, That the expence of making out the conveyance, and of his infeftment, was defrayed by Mr Pulteney, or others by his or- ders ; and that thefe title deeds never were delivered to Mr Rofs* And, Iqftly, That the expence of defending againft the complaint was likewife defrayed by Mr Pulteney, by whofe agents the whole was managed ; and that Mr Rofs neither had paid, nor confidcred him- lelf as liable in payment, of any part of that expence.. It was alfo farther obje£ted, that Mr Rofs's title could not be con- fidcred as a wadfet; that a wadfet was defined to be 'a right, by ' which lands, or other heritable fubjedls, were impignorated by the * proprietor to his creditor in fecurity of his debt ;' that this defcrip- ticn did not apply when no money was advanced at the time of receiving the right, as, in that cafe, there could be no impignora- tjon ; and, therefore, laying the objedlon of nominal and fiditious L 1 out 266 OFTHEELEGTIONOF Book III. out of the queilion, there was here a feparate objedion, that Mr Rofs was not a px-oper wadletter in terms of the adt 1681. Upon this, however, no ftrefs was laid. A wadfet right may be given with- out any money, or other confideration, being paid to the granter, and the wadfetter becomes neverthelefs a creditor in the eye of law. It was, indeed, in ancient times, cuftomary to grant wadfets of parts of an eftate to younger children, as a fecurity for fuch provifions as their father chofe to fettle upon them. Mr Rofs was ordered to depofe upon the fads referred to his oath, but declined to do fo, upon which the court pronounced an interlocutor fimllar to that in the cafe of Wallace above mentioned. I have chofen thefe two inftances out of many of a fimilar nature, becaufe, in both, the decrees of the Court of Seflion were reverfed in the Houfe of Lords * ; and the reader may have an opportunity of looking into the printed cafes. It is not to be fuppofed that the Court of Seffion will again follow the fame mode of procedure ; and, therefore, until fome new regulation be introduced by the legifla- ture, there can be no check againft nominal and fiditious qualifica- tions, created or referved to ferve a particular purpofe, other than the oath prefcribed by the a£t of the 7th of George II. which mufl: be put upon the requefl: of any freeholder prefent, either at a Mi- chaelmas ineeiing, or at a meeting for eledion. CHAPTER • May 9. 1770. Another revcrfal took place the fame day, in the cafe of John Johnfton, Efq; who, after anfwering fpecial interrogatories put to him in the court of fcflion, was ordered to be ftruck off the roll, that court having found it proved, that his eftate was not a real eftate in his perfon, for his own ufe and beneiit, but that his rights and titles thereto were nominal and fictitious, created in order to enable him to vote at the enfuing ele i^3.t, in a controverted eledtion in the parliament of Scotland in 1686, it was objedled, that a fherifF- depute had no right to vote. No fuch objection, however, lies. Provofts, or bailies of boroughs, may be eleurt ; P.-n''!. "■:/. 2 page 66g. '* A copy of a writ to a flierifl" is to be found in the Appendix, I 304 OFTHEELECTIONOF Book IIL didates, or their agents, upon a receipt and obligation to deliver them. This prae Lord 0rdinai7 officiating on the bills appointed an advocate, properly qualified to hold the office, to a(Sl as interim flieriff. Had there been a competition for the reprcfentation of the county, the regularity of this procedure, and the power of the Lord Ordinary on the bills to appoint an interim fheriff, might probably have been made a queflion. •}• Spottifwood's Law of Eleiflions, page 36. J Forms of the intimation made by the fheriff, and of the publication thereof, arc to be found in the Appendix, No. 35. and 36. II This is ordered by the following claufe of the acl: itfelf : ' And for the more cf- ' fe^tual obfervance of this aft, be it enac'ced, that all and every the Iheriffs, mayors, ' bailiffs. 3^6 OFTHEELEGTIONOF Book TIT. the fheriff-clerk produces the book in which the roll of freeholders, and the minutes of their proceedings, are inferted, together with copies of the oaths of allegiance, and abjuration, and affurance, and of the truft oath prefcribed by the ad of the 7th of George II. writ- ten on a roll of parchment, in terms of that ftatute *. Thcfe preparatory fteps being faiilhed, the flicriff has no farther budnefs in the meeting. The commiflioner lad eleded, if prefent, takes the chair, and adminifters the oaths of allegiance and affurance to the freeholders i", and likewife the oath of abjuration, if it be re- quired to be put J; after which, he proceeds to call the roll, and afk the votes for the choice of prefes and clerk to the meeting, having himfelf the calling or decifive vote, in cafe of an equality. If the commiffioner bailiffs and other officers, to ivhoin tlie execution of any writ or precept for elefUng any member, or members, to ferve in parliament, fliall belong or appertain, fhall, and are hereby required at the time of fuch ele<£lion, immediately after reading of fuch writ or precept, read, or caufe to be read, openly before the electors then aflembled, this prefent aifl, and every claufe therein contained : And the fame fliall alfo be open- ly read once in the year at the general quarter feffions of the peace to be holden next after Eafter, for any county or city, and at every eleftion of the chief magiftrate in any borough, town corporate, or cinque port, and at the annual eleftion of raagi- ftrates and town counfellors for every borough within that part of Great Britain cal- led Scotland.' * The oath of abjuration (though for what reafon I have not been able to learn) is ufually written on parchment, and the allegiance and affurance only on paper. f This is the cuftomary mode of proceeding -, but it is not neceffary that any of the oaths to government be taken before the election of prefes and clerk, unlefs it be re- quired. f A complaint to the court of feflion was once preferred againft a commiflioner laft elefted, for refufing to adminifter the oaths to the freeholders before calling the roll for the elc(n:ion of prefes and clerk; but the court found that it did not fall under their cognizance; November 10. 1747, Ker, &c. centra Redpath, &c. Chap. VI. COMMISSIONERS FROM SHIRES. 307 commiflloner laft eledted be abfent, the oaths are admlniftered, and the roll is called, by the Iheriff- clerk ; and, in that cafe, the calling vote belongs, as at the Michaelmas meetings, to the freeholder prc- fent who laft reprefented the fhire in any former parliament; if none fuch be prefent, to the freeholder who laft prefided at any meeting for elecflion ; and, in his abfence, to the freeholder who laft prefided at any Michaelmas meeting ; and, failing the attendance of all thofe,. to the freeholder prefent who ftands firft upon the roll *. To prevent abufcs in the choice of prefes and clerk, the law has declared, that, if the commiffioner laft eleded, or, in his abfence, the iheriff-clerk, receive the vote of any perfon who does not lland up- on the roll, he fhall for every fuch offence forfeit the fum of L. 300 Sterling to every candidate for the office of prefes or clerk relpec- tively, for whom fuch perfon fliall not have given his vote, to be recovered by them, or their executors, by fummary complaint be- fore the court of feflion, upon thirty days notice ; or, if he fhall net call for, or fhall refufe the vote of any perfon whofe name is upon the roll, he fhall forfeit the like fum to fuch perfon, to be recovered by him, or his executors, in the fame fummary manner f . This is, without doubt, a moft falutary regulation. It however requires to be more fully explained, as many cafes may be figured where a judaical adherence to the letter of the ftatute might appear inconfiftent with that idea of juftice which the legiflature muft be fuppofed to have had in their view. Q^q 2 It • i6to Georgii II. cap. u. $ 13. I formerly obferved, that the law has made no provifion with refpeft to the calfing of the roll, in the event of the abfence of the com- miffioner laft elefteJ, and of the fheriff-clerk being unablcj through ijidifpofuion, to at-- tend. See note, page 150. f l6to Georgii II. cap. 11. § 13^, 3o8 OFTHEELECTIONOF Book III. It frequently happens that two perfons ftand upon the roll in virtue of the fiime lands, the one as liferenter, the other as fiar : Mufl. the commiflioner laft elcded, or the fheriff- clerk, call both, and receive the votes of both in the eledion of prefes and clerk ? If the ftatute is in every cafe to be judaically interpreted, he will incur the penal- ty, if he omit either the one or the other. But, as by other flatutes, the fiar can only vote in the abfence of the liferenter, no court can fubjedl him. to it for omitting to call, or for refufing to receive, the vote of the fiar, if the liferenter be prefent, and claim his vote. On the contrary, he would be juftly liable to the penalty, were he, in that cafe, to receive the vote of the fiar. By the adt of the 2d of George II. cap. 24. thofe who have been convicted of bribery and corruption are for ever difabled from vo- ting in an eledtion of a member to ferve in parliament. Suppofing that a perfon fo convicted ftands upon the roll, mufl his name be called, and his vote received, in the choice of prefes and clerk? It fhould feem to be unnecefTary for the commiflioner laft eledled, or the fheriff-clerk, to do fo; and that their omitting to call him, or refufing to receive his vote, cannot, upon a fair and juft con- flrudion of the ftatute, fubjedl them to the penalty. It were indeed abfurd to fuppofe, that, in order to give obedience to one ftatute, they were at liberty to difregard perfonal difqualifications introduced by other ftatutes. It muft, however, be admitted, that, in general, the powers of the commiflioner laft eleded, or of the ftieriff-clerk, in calling the roll, are merely minifterial ; and that, although they may fo far exercife their judgment as to leave out thofe whom the law has clearly dif- qualified, yet they cannot aflume the right of judging whether a perfon ftands wrongfully upon the roll, and, upon that pretence, re- fufc Chai'.VI. commissioners from shirks. 309 fufe his vote in the choice of prefes and clerk, how plainly focver it may appear that fuch perlbn is liable to be ftruck ofT after the meeting fhall be properly conftituted. Let it be fuppofed that a perfon has been enrolled although not a year infcft. The freeholders did wrong in admitting himj but that wrong the caller of the roll has no power to remedy. His name muft therefore be called, and his vote received, otherwife the penal- ty will be incurred. Nay, the votes of thofe who are diverted of the eftates upon which they were enrolled muft be received in the choice of prefes and clerk, although the very firfl bufinefs of the meeting, after it is properly conftituted, will be to ftrike them off the roll. Let it in like manner be fuppofed, that, by a judgment of the court of feflion, a perfon ftanding upon the roll had been ordered to be ftruck off, but that the fheriff-clerk, in contempt of that order, had negledled or refufed to do fo ; Would the commiflioner laft elected be at liberty to i-efufe fuc,h perfon's vote in the eledion of prefes and clerk, or muft he call him under the fandlion of the pe- nalty ? If exercife of judgment, in a cafe of this kind, be denied to the commiflioner laft elected, the eledion of the prefes, and, of courfe, the eledion of the member to ferve in parliament, may be carried by the voice of one, who, by a judgment of the proper court, has been found to have no right to a freehold qualilication *: But this is a wrong which the commiflioner laft eleded has no power to remedy, without fubjeding himfelf to the penalty. He * It may be thought that abufes of this kind will be effeftually prevented by the flieriff-clerk's being fubjeaed to a penalty of L. 100, in the event of his not obeying the order of the court of feflion ; but penalties are often little regarded in a contefted clc£tion, and may be made eafy to the (lierifF-clerk by the candidate whofe intereft he means to fupport by his trefpafs. 3fo OFTHEELECTIONOF Book III. He muf!: call every perfon who ftands upon the roll produced by the fheriff-clerk, and is not liable to a perfonal difqualification ; and if, by that means, a candidate is chofen who otherwife would have loft the eledion, the only remedy lies in a petition to the Houfe of Commons, who ai£l not in a minifterial, but in a judicative capacity. But what will be the cafe, if, by reafon of the abfence of the com- miflioner laft elefled, the calling of the roll (hall fall to the province of the flieriff-clerk, and he fhall take it upon him to call the name, and receive the vote of the perfon whom he ought to have ftruck off? It certainly fhould be no excufe to him that he has obeyed the ftatute by calling none but thofe who ftand upon the roll, becaufe it was owing to his own malverfation that fuch perfon did ftand upon it ; and although the letter of the law may not, perhaps, exadly reach him, it would furely be no great ftretch to find him liable in the penalty for calling one whom he himfelf ought to have ftruck off. A remarkable cafe occurred in the county of Mid Lothian at a meeting for eledion in 1744- The name of Sir James Stewart of Goodtrees ftood upon the roll 1742, which was the one laft made up; but there were no minutes extant to ftiew either the time when the perfons ftanding upon that roll had been admitted to it, or the titles upon which they were enrolled. The then Sir James Stewart appeared at t-he meeting,, and claimed a vote in the choice of prefes and clerk, faying, ' there ftands my name, and that name you are * bound to call ;' but the commiffioner laft eleded being convinced, from a variety of circumftances, that the words Sir James SHivart of Goodtrees^ in the roll 1742, were not defcriptive of the then Sir Tames, but of his father, whofe name had been omitted to be ftruck out upon his death, (as was the cafe of feveral others whofe heirs had not yet claimed to be enrolled), he refufed to receive Sir James's -ysQte, Sir James complained to the court of feffion, and demanded the CHTip. V[. COMMISSIONERS FROM S1II11I'.S. 311 the ftatutable penalty ; but IiIs complaint was difmincd. This was certainly a juft decifion ; for, although the fame name was to he found upon the roll, yet the complainer never had ftood upon that roll ; he, therefore, was not entitled to any penalty on account of his name not being called, or of his vote being refufed ; and, if the commiflioner lafl: ele(fled had received his vote, he would have fub- jc£ted himfelf to the penalty iinpofcd by the firft part of this claufe of the ftatute, for taking the vote of one who did net ftand upon the roll. Another cafe of a more recent date, which gave occafion to a great deal of argument, Ihall likewife be ftated. Alexander Frafer of Culduthil ftood upon the roll of freeholders of the county of Cromarty made up at Michaelmas 1767, in virtue of feveral different parcels of land rated at L. 426 14:2 Scots of valued rent, according to a decree of divifion pronounced by the commiflioners of fupply in 0£tober 1765. Of thefe there was one parcel called Glenurquhart, which, by the decree of divifion, was valued at L. 57 : 18:8. Be- fore the eleftion, which took place upon the 26th of April 1768, this decree of divifion was fet afide by the court of feflion, in an ac- tion at the fuit of Sir John Gordon of Invergordon, and William Gordon of Newhall, where it was found, that the lands of Glen- urquhart were not entitled to any part of the cumulo valuation di- vided by the commifTioners of fupply. In the courfe of this adion, Mr Frafer had admitted, that, if the purfuers prevailed in it, he would not have a good qualification, as his valuation would be re- duced to lefs than L. 400; but ftill, when the day of eledlion came, no order had been obtained for ftriking him off the roll ; on the contrary, though it was one of the conclufions of the fuit, that it fhould be declared that Mr Frafer was not entitled to continue upon the roll of freeholders, the court of feffion found that conclufion in- competent. It appeared, that, if Mr Frafer was allowed a voice in ■ the 312 OF THE ELECTION OF Book III. the choice of the prefes, his vote would be decifive of the eleftion, there being only fix freeholders in the intereft of Sir John Gordon, and feven, including Mr Frafer, in the intereft of Mr Pulteney, the other candidate. An extradt (exemplification) of the decree of the court of fefTion being produced, Sir John Gordon, who was the com- miflioner laft eleded, tendered to Mr Frafer the truft oath prefcribed by the ad of the yih of George II. after filling up, in the blank left in the beginning of that oath, the defcription of his lands, copied verbatim from his claim for enrolment, which not only mentioned the names of the feveral parcels of which thefe lands were compofed, but alfo bore that they ftood valued at upwards of L. 400. Mr Frafer refu- fed to take the oath in thefe terms, upon which Sir John Gordon attempted to erafe his name out of the roll in the flieriff's book, but was prevented by others of the freeholders, who took the book from. him. Sir John then produced an extract of the roll, and, after era- fing Mr Frafer's name from that extradt, called the votes of the other freeholders tor tlie choice of prefes and clerk. Upon this the two contending parties feparated, and made each of them feparate elec- tions, which occafioned a variety of profecutions for ftatutable pe- nalties. Among others, Mr Frafer profecuted Sir John Gordon for L. 600 on account of his not calling him in the election of prefes and clerk ; and, in fupport of his complaint, infifled, i»70, That, as ■he ftood de faBo upon the roll, Sir John was bound to call him, and to receive his vote, how ill founded foever his qualification might be; and, ido^ That, as the fole purpofe of the truft oath was to af- ccrtain that thofe who claimed a vote were really and truJy owners of the lands under which they fought that privilege, and that they did not hold therh in truft for any other perfdn, nothing could be inferred in the blank left in the beginning of that oath but the names of the lands; and that he was not obliged to take it in the manner it was tendered to him, or to fwear to the valuation. Sir John Gor- don, on the othei hand, contended, iff/c, That the feveral ads of parliament CiiAP. VI, COMMIbblUNERS FROM SHIRES. 313 parlia-ment relative to cledlions muft be expounded by each other, and no particular adl implicitly or literally followed, when, by fo doing, other ftatutes regulating the qualification of electors muft ncceflarily l)e controlled ; that the law had exprefsly required L. 400 Scots of valued rent to entitle one to vote as a freeholder ; and that, as Mr Trafer's valuation was, by the decree of the court of fefTion, brought below that fum, he fhould have been juftified in rcfufing Mr Frafer's vote, even although he had taken the truft oath as it was tendered to him ; and, ido^ That, as the ftatute of the 7th of George 11. liad left it a moot point with what precife words the blank in the truft oath ought to be filled up, it muft have been in- tended, that the perfon with whom the adminiftering that oath was entrufted fliould be at liberty to infert fuch words, adapted to the circumftances of the cafe, as might anfwer the principal objeft of the law, which was to allov/ a vote only to thofe who were infeft in, and pofleffed of lands liable in public burdens, at the rate of L. 400 of valued rent; and that no better rule could be followed for obtaining that end, than by maintaining an exadt correfpondence between the oath and the claim for enrolment. The court of feflion found Sir John Gordon liable in one penalty of L. 300, but aflbil- zied (abfolved) quoad ultra *. What effedl Sir John's not calling Mr Frafer's vote, in the choice of prefes and clerk, ought to have had in the fubfequent fteps of the eledion, or upon the merits of the return, will be afterwards confidered ; at prefent, it will fuffice to obferve, that, according to the judgment of the Houfe of Lords in the cafe of Archibald DufF againft Sir Ludovic Grant and others. Sir John Gordon had no authority to put the truft oath in ai:y (hape before the eledtion of prefes and clerks Rr The • November 19. 1768, Frafer of Culduthil centra Sir John Gordon. 314 .OF THE ELECTION OF Book III. The prefes and clerk being chofen, the minutes of their ele«Stlon mult be figned oy the commiflioner laft elected, or, in his abfence, by the flierifF-clerk, and delivered over to the clerk appointed by the majority of the meeting; and, if either of them negle£t or refufe to fign thefe minutes, a penalty of L. loo is incurred to the perfon truly eleded prefes, to be recovered by him, or his executors, by a fum- inary complaint before the court of fefTion *. This ad farther declares, that it fhall not be lawful for any num- ber of freeholders to feparate from the majority of the perfons pre- fent who ftand upon the roll, and to fet up any perfons as prefes and cleik other than thofe chofen by the majority. In order to en- force this rule, it is ena£ted, that thofe who feparate from the ma- jority, and fet up any other as prefes or clerk, fhall forfeit L. 50 to the candidate who 'fhall be chofen by the majority from whom fuch feparation is made ; and that any perfon who prefumes to adl as prefes or clerk, without being chofen by the majority, fhall forfeit L. 200 to fuch candidate, to be recovered in the fame manner with the penalties already mentioned f . The clerk chofen by the majority qualifies himfelf by taking the oaths of allegiance and abjuration, and fubfcribing the affurance ; and, * i6to Georgii II, cap. 11. § ij. f i6to Georgii II. cap. 11. § 14. It has been already mentioned, that, at the election for the county of Cromarty in 1 768, the two parties feparated upon Sir Jolin Gordon's refufing to receive Mr Frafer of Culduthil's vote in the choice of prefes and clerk, and made feparate ele(Sl:ions. This produced mutual complaints. But the court of feflion found Sir John Gordon's party in the wrong ; and that each of them had incurred a penalty of L. 50 on account of their having feparated from the majority ; and alfo found, that Mr M'Intofli, whom they had fet up as prefes, had forfeited L. 200 for adting in that charafter. Novem- ber 19. 1 76S, William Pulteney and others contra Sir John Gordon and others. Chap. VI. COMMISSIONERS FROM SHIRES. 315 and, by the ftatute of the i6th of George II. fo often referred to, he muft alfo take the following oath, which the prefes is required to adminifler *: ' 1 A. B. do folemnly fwear, that I have not, dircdtly ' or indireiftly, by way of loan, or other device whatfoever, received ' any fum or fums of money, office, place, or cmployrnenr, gratui- * ty or reward, or any bond, bill, or note, or any promife of any ' fum or fuins of money, office, place, employment, or gratuity ' whatfoever, by myfclf or any other, to my ufe or benefit, or ' advantage, to make any return at the prefent election of a mcm- ' ber to ferve in parliament ; and that 1 will return to the flierifF, * or ftewart, the perfon elected by the majority of the freeholders ' upon the roll made up at this eledion, and who fliall be prefent, ' and vote, at this meeting. So help me God.' The trufl: oath is then put, if required by any one of the freehol- ders prefent, and may be put at any ftage of the bufinefs. And, upor>^ the demand of any two of the freeholders, the oath of bribery, in- troduced by the ad: of the 2d of George II. muft likewife be taken before voting for the member to ferve in parliament. This oath is as follows : ' I A. IB. do fwear (or, being one of the people called * Quakers, I A, B. do folemnly affirm) I have not received, or had' ' by myfelf, or any perfon whatfoever in truft for me, or for my ' ufe and benefit, directly or indirectly, any fum or flims of money, ' office, place, or employment, gift, or reward, or any promife or ' fecurity for any money, office, employment, or gift, in order to ' give my vote at this election, and that 1 have not before been ' polled at this eledion f .' R r 2 The * Sea. 37. f 2do Georgii II. cap. 24-. § i. Hail this oath been applicable only to elections m Scotland, the laft words of it would have been unneceflary, but, as it is applicable to all cleftions through Great Britain, and as, in many counties of England, and even in f^me borQiiglis, the number of voters is fo very great as to put it out of the power of the preCdiiig. :, I o O V T f 1 K E L E C T I O N OF Book III. The meciing being thus condituted, the freeholders proceed to nujiift the roll in the fame manner as at the Michaelmas head court; and a new roll being made up, (a figned copy or cxtracSt whereof muft be delivered to the flierift-clerk, to be recorded in the flierlff's books), the prefes calls that rcl!, and afks the votes of thofc prefent who ftand upon it, for the choice of the commilTioner to reprefent the county in parliament, -having himfelf the cafting or decifive voice in the event of an equality *. We liave already. feenj:that fevere penalties are impofed, In order to prevent uiidue pradices in calling the roll for the choice of prefes and clerk; and,_to guard againft the like abufes in the choice of the coniniiffioncr, it is enafted, that if, in fuch eledion, the prefes re- ceive the vote of any perfon who does not ftand upon the roll made up by the meeting, he fhall for fuch offence forfeit L. 200 Sterling to any candidate for whom fuch perfon fhall not have given his vote ; and that, if he do not call for, or refufe the vote of any per- fon whofe name is upon tl>e roll, he fhall forfeit the like fum to the perfon who has not been called for, or whofe vote has been refufed, to be recovered in the fame fummary way with the other penalties inflided by the ftatute f* The law does not require that the perfon who is chofen com- mi/Tioncr fhould be prefent at the meeting for eledion ; but, as the truft prefiding officers to know them all, either by their perfons or faces, the addition was exceedingly proper. * i6to Georgii II. cap. ii. J 13. f i6to Georgii II. cap. 1 1 . § 1 3. It is proper here to mention once for all, that, by the laft claufc of this ftatute, no perfon can be fubjedled to any incapacity, difability, forfei- ture, or penalty, impofed by it, unlefs a profecution be commenced within one year after fuch incapacity, difability, forfeiture, or penalty, fliall be incurred. Chap. VI. COMMISSIONERS FROM SHIRES. 317 trull oath cannot be put to him in his abfencc, it is enacted, that, before taking his feat in the Houle of Commons, he fliall take that oath before the Lord Steward of his Majefty's lioufchold, or any perfon authorifed by him for that end; and that, if any member eleded in his abfence Ihall negleil or refufc to take fuch oath, his ele£lion fliall be void *. The ele£lion being made, and the minutes being figned by the prefes and cleric of the meeting, the freeholders have nothing far- ther to do in the matter. The reft of the bufinefs, which is purely minifterial, devolves, firjl^ upon the clerk of the meeting, and, nexty upon the flieiiff, whole province it is to return the writ for eledlion to the crown office in Chancery. The duty incumbent upon thefe officers, and the forfeitures and penalties impofcd by the leglfature, in order to keep them within the bounds of that duty, and to pre- vent their abufmg the power committed to them, fhall be explained in the next chapter. CHAPTER * i6to Georgli 11. cap. 11. § lo. 3 18 O F T H E E L E C T I O N O 1- Book III. CHAPTER VII. Of Returns by Clerks and Sherij^s. ^ I 'HE reprefearatives of fliires, in the parliament of Scotland, re- -^ ceived c6mmiffions directly from the freeholders, and hence they got the name of Commiflioners. By the ad 1587, cap. 1 14. thofe commiffions muft have "heen fealed and fubfcribed by at leaft fix of the barons ; and,, by a fubfequent ftatute, 1597, cap. 27. no barons were to be received in parliament, as; commiflioners from fliires, without producing fufficient commiffions figned in a full convention of the freeholders, and authenticated by the fubfcrip- tions of a great number of thofe who were prefent, and by the fubfcriptJon xxf the clerk to the meeting. Elections are now, how- ever, verified in a different manner, by the intervention of minifte- rial officers, over whofe condud the legiflature has been particularly watchful. The ineeting of the freeholders being over, their clerk muft im- mediately return to the fheriff the perfon elected by the majority in the manner above dated *; and, in cafe he refufe or negledt to re- turn the perfon fo eleded, or return any other perfon to the fheriff, he^ for every fuch offence, forfeits L. 500 Sterling to the candidate ehofen by the majority. The like fine is alfo impofed upon every perfon who prefumes to a£t as clerk, though not duly elected, and returns. •■ (5to AnnaCj cr.p. 6. ^ 5 . • CiiAP. VII. COMMISSIONERS FROM SHIRKS. ,319 returns any other than the pcrfon ele<£ted by the mnjority of the freeholders *. At the general ele£lion in 1741, the Honourable Mr Hume Camp- bell, and Sir J(ihn Sinclair of Longformacus, were candidates for Berwicklhire. Mr Plume Campbell, as the cominifiioner la. I eled- ed, proceeded to call the roll made up at the laft Michaelmas head court ; but Sir John Sinclair gave in protefts againft eleven of the freeholders {landing upon that roll, in which he ftated obje<3;ions to their right to vote, and infifted that their names fhould not be cal- led for the choice of prefes and clerk. On the other hand, Mr Carre of Nifbet, who fupported Mr Hume Campbell, protefted againft the votes of fifteen freeholders of Sir John Sinclair's party. Mr Hume Campbell called the roil as it ftood, without regard to the prolells on either fide. The number of voters were fixty-fix, of whom thirty-five voted for Sir Robert Pringle and James Pringle, the per- fons fet up by Mr Hume Campbell's party for prefes and clerk, and thirty-one for Sir John Hume of Manderfton and Johri Sinclair, who were fet up for thefe offices by the other party. Upon this a feparation took place. Each party proceeded to erirol, and ftrike off, feveral freeholders ; and each elected a member. John Sinclair, the clerk eleded by the minority, was profecuted by Mr Hume Camp- bell before the court of feflion, upon the aft of the 7th of George II. for having made a falfe return : That court acquitted h^m ; but their judgment was reverfed in the Houfe of Lords, and he was found liable in the ftatutable penalty of L. 500. The defence made for John Sinclair, and fuftained in the court of feffion, was founded up- on the v^'ords of the ftatute, by which the penalty was itnpofed only upon thofe who fhould prefume to ad: as clerks, though not duly eleded, and ivilfully return to the fherifF perfons not duly eledled 7mo Georgii II. cap. \6. J i. idto Georgli 11. cap. i r. J i5. 320 OFTHEELECTIONOF Book IIL by the major part of the meeting ; and he endeavoured to excufe himfelf upon this ground, that he thought himfelf duly eledled clerk, and confiucred the merits of the election to be with the perfon he returned, and, therefore, was not guilty of a iviljul falfe return. But to this it was held a fufficient anfwer in the Houfe of Lords, that, as the whole matter was tranfa£ted in Mr Sinclair's own pre- fence, and the attempts of the feparating freeholders were fo mani- feftly illegal as to leave no room for any pretence of ignorance, or involuntary tranfgrefhon, he had undoubtedly fubje(3;ed himfelf to ■■^ i^enalty of the ftatute *. The partiality of flieriffs is, in the like manner, guarded agaiaft by fevere penalties. Upon production of a copy of the roll laft made up, extracted, and figned by the flierifF-clerk, and of the original minutes of the elecftion of prefes and clerk, figned by the commif- fjoner laft eleded, or, in his abfence, by the fhe riff- clerk, the fherifF muft annex to the Avrit the return made by the clerk chofen by the majority of the freeholders ftanding upon the roll fo produced to him ; and, if he fail to annex fuch return to the writ, or annex to it a return made by any other perfon pretending to be clerk to the eledlion, he forfeits L. 500 Sterling for every fuch offence to the perfon returned by the clerk, and chofen by the majority of the freeholders, to be recovered in the fame fummary manner with the ether penalties or forfeitures impofed by the ftatute '\. Befides • The a<^ of the i6th of George II. had not then pafTed ; but, in the controverted eleftion for the county of Peebles, between Sir Alexander Murray and Sir James Na- finith, tlie Hoilfe of Commons had, upon the i ith of May 1733, refolved, « That the « right of ele<5\ion of a prefes and clerk is in fuch perfons as ftand upon the roll laft * made up by the frceliolders at the Michaelmas head court, or at the laft.eleftion of a. ' member to ferve in parliament.' \ i6to Gcorgii II, cap. 1 1. § 17. Chap. VII. COMMISSIONERS FROM SHIRKS. 321 Bcfides thefe forfeitures, flierlfTs and clerks who are guilty of making falfe returns, are liable to be oiherwife puniflicd when the matter is brought before the Houfe of Commons. In the cafe of Berwickftiire above mentioned, the flierifT-depute accepted of two different returns, one from the clerk chofen by the majority, and another from John Sinclair, who was chofen by the minority of the freeholders; and, having annexed both returns to the writ, the Houfe of Commons not only ordered the return made by Sinclair to be taken off the file, but likewife refolved, ' That David Hume ' of Weddeiburn, fheriff-depute of the fhire of Berwick, having ac- ' cepted, and returned to the clerk of the crown in Chancery, an ' indenture of return of a commifTioner to ferve in this parliament ' for the fliire of Berwick, not being figned by the proper cferk, has * aded arbitrarily and illegally, in defiance of the laws of the land, * and the privilege of this houfe ; and ordered, that the faid David ' Hume be, for his faid offence, taken into the cuftody of the Ser- * jeant at Arms attending this houfe *.' The law does not require that the fubfcquent minutes of the free- holders, after the meeting is conftituted by the election of a prefes and clerk, be produced to the fheriff. He has no concern w'ith the minutes of the ele£tion of the member ; and is bound to annex the return made by the clerk chofen by the majority of the freeholders Handing upon the roll laft made up, without the privilege of in- quiring whether the perfon fo returned to him was properly elected or not. Though one fliould be returned to him who is totally dif- qualified, he muft annex that return, provided it be made by the proper clerk. He is a mere minifterial officer : All he has to look to is the election of the clerk who offers him the return, and that he S f fees * Journals of the Houfe of Commons, Mortis ipno die Januarli, anno ijto Gcor- gii adi regis, 1741. 322 O F T H E E L E C T I O N O F Book III. fees from the roll la ft made up, and the minutes of the choice of prefes and clerk : Pie has no power to exercife his judgment far- ther; and, in general, needs only eyes and honefty to teach him his duty, and enable him to fulfil it. Penal laws, impofing fines and punifhment upon perfons guilty of ftatutable offences, ought to be exprefled in the cleareft and moft un- ambiguous terms, fo as to point out with the utmoft precifion the duty of the minifterial officers, againft whom fuch fines and punifh- ment are levelled, in every pofTible cafe, and to remove every room for doiibt, whether they have been adually guilty or not of the of- fences for which they are impofed. This, however, is not altogetlier the cafe with that claufe of the ad of the i6th of George II. which is now under conQderation ; queftions having arifen upon it attend- ed with a good deal of nicety, and on which, it is believed, even lawyers have entertained diflFerent opinions. A fhort account of one cafe that occurred fome years ago fliall now be given. It has been already mentioned, that, at the eledion for tlie Hiire of Cromarty in April 1768, Sir John Gordon, after the book in which the roll lafl made up was inferted had been ta- ken from him, to prevent his erafing the name of Mr Frafer of Culduthil, produced an extrad: of that roll, and erafed Mr Frafer's name out of that extrad. Sir John then proceeded to call the votes for the choke of prefes and clerk from that extrad : Himfelf and five others voted Mr Robert M'Intolh to be prefes, and George Bean to be clerk ;. Mr Pulteney, and other five, voted Mr Pulteney prefes, and Alexander M'Kenzie, the fherifF-cIerk of the county, clerk to the meeting; and Mr Frafer not being called, Sir John Gordon affumed a cafting or decifive vote, which he gave in favour of Mr M'Intofii and Mr Bean; after which, in the fame charader of com- mifljoner laft cicded, he Ggnted the minutes of their eledion, and delivered-; Chap.vii. commissioners from shires. :i2:i delivered them to Mr Bean. Upon this Sir John's party proceeded to elcd: the memher to ferve in parliament, and gave their votes for him, Mr Pulteney and his friends, though all called upon by the prefes, except Mr Frafer, making no anfwcr. They were not, how- ever, idle fpe(£lators of what was going on ; nor would they acqui- efce in thefc proceedings of Sir John Gordon and his friends. Ha- ving gone to another part of the room with the (herifT's book, in which the roll laft made up was inferted, and having admitted Mr Frafer, who likewife voted for Mr Pulteney to be prefes, and Mr M'Kenzie to be clerk, a minute of their election was made out and figned by Mr M'Kenzie, in the charadcr of fheriff-clcrk, and like- wife by Mr Pulteney, and all the other freeholders in his intereft, after which, they proceeded to make an eledlion of the member to ferve in parliament, and unanimoufly made choice of Mr Pulteney, neither Sir John Gordon, nor any of his party, making any anfwer when their names were called. Both clerks made returns to the flierifF, but with this difference, that Mr Bean produced minutes of an eledion of prefes and clerk, figned by the commifTioner laft eledted; whereas the minutes produ- ced by Mr M'Kenzie were only figned by hlmfelf as flieriff-clerk, and by the freeholders in Mr Pulteney 's intereft. The fheriff annexed to the writ the return made by Mr M'Kenzie, and, in anfwer to a proteft taken againft him by Sir John Gordon, gave the following reafon for his doing fo: ' That, having been pre- ' fent during the courfe of the eledtion, having heard all the minutes * read, and given hisutmoft attention to the whole proceedings there- * in for fixtcen hours, he made his return in favour of William Pul- * tency, Efq; according to confcience, the heft of his judgment, and, ' fo far as he was able to conceive, according to law.' S f 2 r^ir 324 OFTHEELECTIONOF ^ook llf. Sir John Gordon preferred a complaint to the court of feffion, and contended, that the flieriff had no power to review or corredl the proceedings of the commiflioner lad eleded, in calling the roll for the choice of prefes and clerk : That, it the coinmiinoner laft eledted did wrongfully and improperly refufe the vote of a perfon ftanding upon the roll laft made up, he thereby fubjedled.hiinfelf to the penalty impofed by the ftatute for fuch offence ; but the flieriff had no power to corredt that wrong : That he was a mere minille- rlal officer, bound to annex to the writ the return made by the clerk chofen by the freeholders : That, in order to difcover to him the per- fon fo chofen, the lav/ had ordered the minutes of the eledion of the prefes and clerk, figned by the commiffioner laft eleded, or, in his abfence, by the fheriff-clerk, to be produced to him : That he v/as bound tp confider thefe minutes, fo authenticated, as probatio probata of that fad, and was not at liberty to betake himfelf either to the evidence of his own fenfes, or to any other evidence what- ever, in contradiction thereto: That the minutes produced by Mr M'Kenzie were entitled to no regard, becaufe they were not figned by the commiflioner laft eleded, although he was prefent in the courtroom; and that the flieriff, by refufmg to annex the return made by Mr Bean,- and by annexing the return made by Mr M'Ken- zie, had incurred tvjo feveral penalties of L. 500 each. The flieriff, on the other hand, maintained, that, as the law di- r-ed:ed him to annex the return made by the clerk chofen by the ma- jority of the freeholders ftanding upon the roll laft made up, he had accordingly done fo, Mr M'Kenzie having been chofen to that office by feven of thefe freeholders; whereas only fix had voted for Mr Bean : That he was by no means bound to confider the minutes figned by the commiflaoner laft eleded as probatio probata Ahd^i the clerk named in thefe minutes had been truly chofen by a majority of the freeholders ftanding upon the roll laft made up : That, if the law, Chap. VII. COMMISSIONERS FROM SHIRES. 325 law had To intended, it would have ordered nothing more to be pjodu- ced to him; but, as it likcwifc ordered the produdlion ot'a copy ol'the roll lad made up, extraded and figned by the flierifi'-clcik, fo it was ap- parent that the legiflature muft have made that order on purpdie to e- nable him the more ealily to difcover whether the minutes figned by the commlirioner lafl c\e0.td were true or falfe, and whether the perfon named in thele minutes was truly chofen by the majority of the freehol- ders flanding upon that roll: That, if the do£trine pleaded by Sir John Gordon were to be liftened to, it would throw the return entirely into the hands of the commiffioner lafl eledted, which the legiflature certainly never intended ; and that, as he, the llierifT, had complete evidence before him, both from what he himfelf faw paffing at the meeting, and from the minutes of election of prefes and clerk, fign- ' ed by Mr M'Kenzic, and feven freeholders ftanding upon the roll laft made up, that Mr M'Kenzie was the clerk chofen by the majo- rity of the freeholders (landing upon that roll, he was, in the direft terms of the ftatute, as well as in confcience, bound to annex the. return made by that gentleraan* This, as already, obfcrved, was a nice cafe. On the one hand, if IherifFs are bound to confider the minutes figned by the commiffion- er laft eleded, or, in his abfence, by the flieriff-clerk, as the only evidence from which they are to difcover whofe return tliey may with iafety annex to the writ, it is not eafy to figure a reafon why an extradb of the roll laft made up fbould be ordered to be produced to them. On the other hand, it is plain, that the produtlion of that roll may not, in every cafe, have the effedl to fhew them whether the clerk named in the minutes figned by the commiflloner laft eleded, or by the fheriff-clerk, was truly chofen by the majority of the free- holders prefent ftanding upon it. They may, indeed, by comparing the roll with the minutes, difcover whether any perfon has been al- lowed. to vote, who did not ftand upon that roll : But, unlefs thefe minutes. 320 OITHEELEGTIONOF Book III. minutes be both fairly and diftinilly made up, they may not be able to learn from them whether the perfons Handing upon the roll, whofe names are not mentioned as voters in the election of prefes and clerk, were wrongfully omitted to be called ; fuch perfons may have been abfent from the meeting; they may have been difquali- lied ; or may have refufcd to take the oath of abjuration ; and, un- lefs every circumftance of that kind be mentioned in the minutes, ■the fheriff may remain in a ftate of uncertainty whether a perfon, who, in fadl, was legally eleded clerk, had been chofen by a majo- rity of the freeholders (landing upon the roll laft made up. If, how- ever, the minutes be drawn up w^ith proper accuracy and precifion, the IherifF can be under no difficulty of difcovering the truth. In the particular cafe now mentioned, the matter was clear from the very minutes figned by the commiffioner laft eleded ; as it thence appeared, that Sir John Gordon had actually refufed to call one of the freeholders whofe name ftood upon the roll laft made up, and had even erafed his name out of the extrad; of that roll from which he called the votes for the choice of prefes and clerk. The court of feflion, after confidering the queftion with the utmoft deliberation, acquitted the ilierifF from the complaint that was brought againft him *. The flieriff, after annexing the return made by the clerk, muft next return the writ to the court ivhence it ijjued, that is, to the crown office in Chancery t. And, by an a<3: of the Englilh parliament J, made perpetual by a Britiftii ftatute j], the clerk of the crown is or- dered to enter in a book kept for that purpofe, every fmgle or double return * November 19. 1768, Sir John Gordon contra Rofe of Kilravock. J- 6to Annae, cap. 6. § 5. j; 7mo et 8vo Will. III. cap. 7. il i2mo Annae, Stat. i. cap. 15 Chap. Vir. COMMISSIONERS FROM SHIRES. 327 return of any member to ferve in parliament that fiiall come into his oflicc, or into his hands, and every alteration or amendment tliat Ihall be made by him, or his deputy, in fuch returns. It is alfo or- dered by thefe ftatutes, that all perfons (liall have accefs to fuch book, to fearch and take copies from it, upon paying reafonable fees ; and that, if the clerk to the crown do not enter the returns in his book within fix days after they come to his hands, or make any altera- tion upon them, unlefs by order of the Houfe of Commons, or give any certificate of any perfon not returned, or wilfully negled, or o- mit, to perform his duty in the premiflcs, he fliall for every fuch offence forfeit to the party aggrieved L, 500, to be recovered in any of his Majefty's courts of record at Weftminlter, and fliall a!fo for- feit and lofe his office, and be for ever after incapable of holding it *". BOOK * The form of the flieriff's annexing to the writ the return made by the clerk, is- to be feea in the Appendix, No. 37. BOOK IV. Of the Ele6lioii of the Reprcfcntativcs of the Royal Boroughs of Scotland. IT has been already mentioned, that, for near a century before the Union, the city of Edinburgh returned tw-o, and each of the other royal boroughs one reprefentative, to the parliament of Scot- land ; but that only fifteen in all are fent from the cities and bo- roughs in that part of the united kingdom to the Britifli parliament, the city of Edinburgh cle Mafon and others con/ra Magiftrates and Town-council of St Andrews. f 1783, Marlhall and Dick cou/ra Kerr, &c. Chap. I. REPRESENTATIVES OF BOROUG! IS. 357 the eledors, who, with thofc that did attend, would have compofed a majority of the whole body, wilfully abfented on affcdlicd preten- ces *. When an elc(flion of rnagillrates and counftllors is reduced, or, by reafon of difturbances in the country, or fume other caufe, is not made at the ufual time, no new clediou can take place until the King j^rant a warrant for that purpofe. By the law of England, a writ for a poll is granted ex gratia only, and cannot be demanded; but, in Scotland, it is underftood that it may be afked as a matter of right. The diftindion may be thus accounted for: Upon the diflb- lution of a corporation in E.Tigland, the grant by which it was efta- blifhed falleth entirely, and the lands, or other property it enjoyed, return to the grantor ; and as, by the common law, the omitting to eled the mayor, or head officer, on the proper day, diffolved a bo- rough, it was in the King's will to reftore it again or not. But, in Scotland, the redudion of an eledion, or the negleding to make one upon the proper day, does not diffolve a borough entirely. Its pro- perty remains ftill with it ; and the court of feffiofl, upon an appli- cation from the inhabitants, names guardians or managers to take care of its revenue, and authorifes fome perfon to give infeftments to the different burgage holders. It cannot, indeed, meet for elec- tion, but it is not extinguiflied, and is therefore underftood to have a right to demand of the King to authorife it to meet for that pur- pofe. Thefe warrants are of different kinds, according to his Majefty's pleafure at the time. Sometimes the burgelfes and refiding heritors, in general, afe allowed a poll eledion; at other times, the laft magi- ftrates and counfellors are appointed to name the new magiftracy and * July 29. 1747, Mafon and others centra Magiflrates and Town-council of St Aa= ^rews. Kilkerran's Decifions, page 107. :iS^ OFTHEELECTIONOF Book IV. and council; and, in the cafe of the town of Perth, in 1716, the power of nomination was committed to the former magiftrates alone, without the concurrence of the council. In 1745, there was no eledion of magiftrates and counfellors made in the borough of Montrofe, the rebels being then in the pofleffion of that part of the country. Upon the i6th of June 1746, a war- rant was granted by his late Majefty in council, ordering the magi- ftrates and counfellors for the former year to proceed, upon the lOth of July then next, to the eledion of others, in the fame manner they ought to have done if they had not been prevented by the rebellion, and appointing the perfons fo to be cleded to ferve till the ordinary time of the annual eledion. Before the diet appointed for the elec- tion came, three of the former council were apprehended on fufpi- cion of having been guilty of treafonable practices, and committed to the prifon of Perth, in virtue of a warrant iftlied by the late Duke of Cumberland, and, by their abfence, the party which otherwife would have been the minority carried the eleilion. This appeared from the declarations of the imprifoned counfellors, which was pro- duced at the election ; and a complaint having been preferred to the court of feflion, fetting forth, that the warrant for imprifonment had been impetrated upon a falfe information, fraudulently exhibited to his Royal Highnefs, in order that thefe three eledors might be de- tained from the meeting, and therefore praying that the eledion made by the majority fhould be reduced, and the perfons voted for by the complainers declared duly elected, an objeftion was moved to the jurifdi(3:ion of the court, and it was pleaded, that, as the elec- tion had been made in virtue of a warrant from the King in coun- cil, its validity was not cognifable in any court of law. In anfwer- ing this objedion, it was admitted, that, when the King appoints a poll eledion, and names commiflioners to take the poll, and to make a report to his Maiefty in council, the courts of law cannot inter- fere; Chap. I. REPRESENTATIVES OF BOROUGHS. 359 fere; but it was pIcaJed, tliat llic cafe was very dillercnt when his MajcRy fiinply auihorifed the former council oF a borough to name a new council, that being, in efTtct, only a prorogation of the diet of eledion. This dillindion was approved of by the bench, where it was obferved, that, in the particular cafe then before the court, the old council were not made judges, but e!e£lor?, which entirely didinguifhed it from that of a poll elcd.ion, where certain perfons are appointed commilfioners to take the votes of thofe who claim to PqII, and to judge how far fuch perfons have a right to vote in terms of the warrant. It was likewife in that cafe objected, that fum- mary complaints were only competent againfl, annual eledions; but to this it was thought a fuflicient anfwer, that the meaning of the term annua/ election, is the general election for a particular year, although not made at the ordinary time *, The legality of the crown's authorifing an ele<£tion to be made by the former magiftrates and council, or in any other way than by a •poll, may, however, be doubted. We have already feen, that, of old, all borough elcdions were by poll ; and, although that was aK tered by the ad: 1469, cap. 29. it fhould feem, that, when there is no magiftracy and council fublifling, the burgeiTcs at large ought to enjoy their ancient right. It was accordingly obferved by one of the judges, in the cafe of Montrofe, that the warrai,it from the crown, to the magiftrates and council of the former year, to make the new eled.ion, had been ill advifed, and that, as the crown could not rc- fufe the corporation a warrant to meet for eledion, neither could it grant fuch warrant otherwife than according to the rights of the corporation, that is, by a poll eledion, the right being in the burgef- fes, by the lapfe of the day for the meeting of the council to choofe their fucceflbrs t- When * February 17. 1747, James Couts, and others, cotitra David Doig and others, f Kilkerran's Decilions, page 106. Upon 36o OFTHEELECTIONOF Book IV, When a warrant is granted for a poll eledion, it is generally di- rected to the fherift' of the county within which the borough lies, and to the fheriffs of two neighbouring counties *. CHAPTER Upon the ^ih of April 1689, an act of the convention of eftates pafled, autho- i-ifing and requiring the town clerks of Edinburgh to convene, all the burgefles who bore burgage duty, and were liable to watching and warding within the city, (with the exclufion of honorary burgefles, town fervants, penlioners, heidmen, and the like), upon the loth of the month, for the purpofe.of giving in lifts of tT>renty-four perfons for magiftrates and counfellors, and appointing the magiftrates and counfellors then to be chofen to continue in ofiice until the firft Tuefday after Michaelmas, when a new eleftion of magiftrates, counfellors, and deacons of crafts, was ordered to proceed in conformity with the fet of the borough. This a£t proceeds upon the recital, « that ' great invalions had been made of late years upon the privileges of the royal boroughs, • and particularly upon thofe of Edinburgh, in the election of their magiftrates, by re- ' commendations and nominations made by the late King, in an arbitrary and defpotic ' way, contrary to the laws of the kingdom, fo that the prefent magiftrates and coun- • cil were not true magiftrates and council, freely eledled, but plainly fuch as had been, « at leaft by progrefs, impofed by the forefaid court methods and practices ;' Records of Pafliametit. * The reader will find a copy of the warrant for a poll eleven in the borough of Anftruther Wefter in the Appendix, No. 40. CiiAP. II. REPRESENTATIVES OF BOROUGHS. 361 CHAPTER II. Of the manner of JEjIeBing the Reprefentatives of the Bo- roughs. THERE is a difference between the mode of electing a citizen to reprefent the city of Edinburgh, and that of eleding the reprefentatives of the fourteen diftridls into which the other boroughs are claffed. The latter (hall be firft confidered. Each flieriff to whom a writ is iflued muft, immediately upon its coming to his hands, indorfe upon its back the day he receives it ; and, within four days after, he muft make out a precept to each borough within his jurifdidion, reciting the contents and date of the writ, and commanding each of them to eledt a commiflioner, and to order fuch commiffioner to. meet at the prefiding borough of the di- ftrift (which muft be named in the precept), upon the thirtieth day after the tejle of the writ, or the next day, if it fall- upon a Sunday, for the purpofe of choofmg a burgefs to ferve in parliament. The fheriff muft likewife caufe thefe precepts to be delivered, within the four days, to the chief magiftrates redding in the boroughs for the time ; and, if he negle£t his duty in thefe particulars, he, for every offence, forfeits L. 100 Sterling to any magiftrate of the borough whofe precept has not been timeoufly delivered, who ILall fue for it*. The * 6to Annac, cap. 6. j 5. 71110 Geo. II. cap. 16. { 5. i6to Geo. 11. cap. 1 1. § 4c. A form of a flierifF's precept is to be found in the Appendix, No. 4 1 . ,j62 OP THE ELECTION OF Book IV. The magiftrate to whom tlie rtieriff's precept Is delivered, muft, in like manner, indorfe upon its back the day it comes to his hands, and, witiiin two days after, muft call a meeting of the council of the borough, by giving notice perfonally, or leaving notice at the dvvelling-houfe of every counfellor then refiding within it * ; and, in cafe he negledt to do fo, he, for every offence, forfeits L. lOO to any magiftrate or counfellor of the borough who fliall fue for it t- The council being affembled in confequence of this notice, appoint a peremptory day for the election of a commiflioner to go to the prefiding borough of the diftridl to choofe a burgefs to ferve in par- liament. Two free days mult intervene between the meeting of council which appoints the diet for eleding the commifTioner, and the day on which fuch eledlion is to be made J. The firfl ftep at the eledion of the commiflioner is to produce and read the precept from the fheriff, after which the a6t of the 2d of George II. cap. 24. is likewife publicly read. The magiflrates and counfellors then qualify to government, by taking and fubfcribing the oath of allegiance, and fubfcribing the afllirance, and by taking and fubfcribing the oath of abjuration, if put by any member of the meeting. This being done, the clerk of the borough takes the following oath, which is adminiftered to him by any of the magiftrates, or, in their abfence, by any two of the council : * I A, B. do folemnly fwear, * that I have not, direftly or indirectly, by way of loan, or other de- ' vice whatfoever, received any fum or fums of money, office, place, ' or * 7mo Geo. II. cap. 16. § 5. i6to Geo. II. cap. 11. § 41. }■ i6to Geo. II. cap. 11. J 42. t i6to Geo. 11. cap. 11. § 42. Chap. II. REPRESENTATIVES OF BOROUGHS. 363 or employment, gratuity or reward, or any bond, bill, note, or any promife of any fum or fums of money, office, place, employment, or gratuity whatfoever, either by myfelf, or any other to my ufe or benefit, or advantage, to make out any commiffion for a com- miffioner for choofing a burgefs ; and that 1 will duly make out a commiffion to the commiffioner who fhall be chofen by a majority of the town-council affembled, and to no other perfon. So help me God *.' The following oath muft likewife be taken by every member of the meeting, if required by any one of them: * 1 A. B. do folemnly ' fwear, that I have not, diredlly or indiredly, by way of loan, or * other device whatfoever, received any fum or fums of money, ' office, place, employment, gratuity, or reward, or any bond, bill, * or note, or any promife of any fum or fums of money, office, place, ' employment, or gratuity whatfoever, either for myfelf, or any ' other to my ufe or benefit, or advantage, or to the ufe, benefit, or ' advantage,, of the city or borough of which I am a magiftrate, ' counfellor, or burgefs, in order to give my vote at this eledicno *■ So help me God t=! Thefe preparatory fteps being- over, the magiftratcs and counfel- lors prefent at the meeting give their votes ; and thefe votes being feverally marked by the clerk, the minutes conclude by the council declaring the perfon in whofe favour the majority ftands to be their commiffioner, and by their ordering the clerk to draw up a com- miffiori to fuch perfon, and to fign it, and to affix to it the common feal o£ the borough 1^ Z z 2 The *■ i6to Geo. II. cap. ii. § 35. I i6to Geo. II. cap. 1 1. § 34. j A £brm of a commiiTion is in the Appendix, No. 42^, 364 OFTHEELECTIONOF Book IV. The Jegiflature has found it neceflary to guard agalnft abufes, on the part of clerks of royal boroughs, not only by oaths, but by the terror of fevere penalties. It was accordingly provided by the a£l of the 1 6th of George II. that, if the common clerk of any borough fliall negle£l or refufe duly to make out and fign a commiflion to the commifFioner elected by the majority, and affix thereto the feal of the borough, or fhall make out and fign a commiffion to any other perfon, or affix the common feal of the borough thereto, he fliall, for every fuch offence, forfeit L, 500 Sterling to the commif- lioner elefted by the majority, and fliall alfo fuffer imprifonment for the fpace of fix kalendar months, and be for ever after difabled to hold or enjoy the office of common clerk of the borough as effedtu- ally as if he were naturally dead *. This ftatute alfo impofes the like penalty of L. 500 upon every perfon, other than the common clerk of the borough, who takes it upon him to a£t as fuch in the eledlion of a commiffioner to choofe a burgefs to ferve in parliament, and makes out and figns, or affixes the feal of the borough to a commiffion in favour of any other per- fon than the commiffioner appointed by the majority f . This pe- nalty is likewife given to the commiffioner eledted by the majority; but, if the commiffion be made out to him, although figned by ano- ther perfon than the clerk of the borough, no penalty is incurred. Such commiffion may, however, with propriety, be objected to at the elcdion of the burgefs to ferve in parliament. » It is not neceffary that the commiffioner be a refident, or a traf- ficking merchant within the borough, or that he be in pofTeffion of any * j6to Georgii II. cap. 11. § 30. t i6to Georgii II. cap. 11. § 30. Chap. II. REPRESENTATIVES OF BOROUGHS. 365 any burgage lands or houfes holding of it ; nor need any fuch qua- lification be engrofied in the commiffioa *. The commiflioners from the feveral boroughs of the diftrifl meet to- gether upon the thirtieth day after the /^^ of the writ, or, on the day fol- lowing, if it fall upon a Sunday, in the town-houfe of the prefiding bo- rough, betwixt eleven and twelve before noon, and, after production of the precepts from the fheriffs.and reading the aft of the 2dof George II. the commiflloner from the prefiding borough admlnifters the oaths to government to the common clerk of that borough, who ads as clerk to the meeting, and makes the return to the fheriff. The clerk next takes the following oath : ' I A. B. do folcmnly fwear, that I ' have not, diredtly or indiredtly, by way of loan, or other device ' whatfoever, received any fum or fums of money, office, place, * employment, gratuity, or reward, or any bond, bill, or note, or * any promife of any fum or fums of money, office, place, cmploy- * ment, or gratuity whatfoever, either by myfelf, or any other to my * life, or benefit, or advantage, to make any return at this election of * a member to ferve in parliament ; and that I will return to the * fheriff (or ftewait) the perfon elected by the major part of che com- * miffioners aflembled, whofe commiffions are authenticated by the * fubfcription of the common clerk, and common feal of the refpec- * tive boroughs of this diftri£t. So help me God f-' If the clerk negledt or refufe to take this oath, he becomes difabled from acting as clerk to the meeting, and the commiffioners are, in that event, im- powered and required to choofe another clerk, who becomes imme- diately inverted with all the powers and authority in the meeting, and in returning the niember chofen by that meeting, which by law are competent to the clerk of the prefiding borough J. The * i6to Geo. II. cap. 1 1. § 29. f i6to Geo. II. cap. 1 1. § 35. X i6to Geo. II. cap. n. § 36, ^66 OF THE ELECTION OF Book IV. The clerk being thus properly qualified to a£t, the commifTioners produce their rcfpeAive commiflions, which, are read ; and, if ob- jedtions be made to any of them, or any protefts are taken, thefe objeftions or protefts ought regularly to be made part of the minutes. If any perfon to whom no commifTion has-been granted, in the man- ner mentioned in the oath taken by the clerk, apjiear, and infift that he was duly elected a commiflioner from any borough of the diftridt, he mufl be admitted to the meeting, and, upon his taking the oaths required by law, which the clerk is impowered to adminifter, and declaring for whom he would have voted, if he had got a commif- fion properly authenticated, the clerk muft infert fuch declaration in the minutes. This is ordered,, that, in cafe of any unfair dealing in making out the c.ommifEons, it may be known in the Houfe of Com- mons, in the event of a petition, for whom the commiflioner ap- pointed by the majority of the town.-counciI would have voted, had the clerk of the borough performed his duty, by making out, fign- ing, and affixing the feal of the borough to a commifllon in his fa- vour. But the clerk of the prefiding borough, who is the returning officer, is not left at liberty to pay any regard to fuch declaration', how- much reafon foever he may have to be convinced that the per- fon who makes it was truly chofen by the majority of the council, and that it was through the malverfation of the clerk alone that he was prevented, from producing a proper commiffion. His office is merely minifterial. He has no power to corred the abufes of others, or to judge what is right or wrong in their condud-. He mufl liter rally adhere to the didlates of the flatutes, and is prohibited to ad- mit the votes of any but thofe who produce commiffions authentir cated by the fubfcriptions of the common clerks, and the commofi feals of the boroughs within the diflrift. He muil return to the fheriff the perfon" elcfled by the major part of the commiffioners af- fembled, whofe commiffions are fo authenticated; and, if he negleft or refuie to return fuch perfon, or if he return any other perfon,. he, for Chap. II. REPRESENTATIVES OF BOROUGHS. 367 for every fuch offence, forfeits L. 500 Sterling to the candidate eleft- ed by the majority, and is alfo fubje<5bed to imprifonment for fix ka- lendar months, and for ever after difabled to hold or enjoy his office of clerk of the prefiding borough, as if he were naturally dead *. The * i6to Georgii II. cap. ii. § 30. A cafe fliall be here mentioned, which, ahhough it never received a determination, was the fubjeft of much converfation at the time it occurred. In the election of a bur- gefs to ferve in parliament for the diftrift compofed of the boroughs of Anflruther Eaftcr, Anftruther Wefter, PittenWecm, Crail, and Kilrenny, upon a vacancy occafion- ed by the death of Sir Harry Erlkine in 1765, three of thefe boroughs were in the in- tereft of Mr Robert Alexander merchant in Edinburgli, and the other two in the in- tereft of Sir John Anftruther. Of the boroughs which favoured Mr Alexander, Pit- tenween was one ; and, at the ele£tion of a commilTioncr from that borough, fcventeen members of the town-council voted for, him, and three only for Mr Durham of Largo ; but all the twenty figned an order to Andcrfon, the clerk of the borough, to make out a commiflion immediately in Mr Alexander's favour. A comniifilon to him was accor- dingly extended, and figned by the clerk, in the ,prefence of the council; but, when he was defired to affix to it the common feal of the borough, he pretended that it had been abftrafted from him. Upon this, the council knowing that Andcrfon and his family were llrongly attached to Sir John Anftruther, and fufpedting that fomc trick was in- tended, caufed him affix to the commiffion an impreffion of the town's feal, which was then taken from a blank burgefs ticket for that purpofe. The feal of the borough, which had been put into the hands of one of Sir Jolm Anftruthcr's friends, was foon after reftored to the migiftrates ; but Andcrfon having abfconded, and kept out of the way, the magiftrates and council did, upon the 16th of January 1766, deprive him of his office, as guilty of breach of truft, and, at the fame time, appointed William Walker to be clerk in his place. Walker accepted of the office ; and, having taken into his cuftody the feal of the borough, and the records of the council, he was ordered to ex- traiSt from the minutes of clcdlion, and to give out to Mr Alexandei-, one or more com- miffions, if required, and to fign fuch commiffions, and affix to them the feal of the borough. He was likewife ordered to affix that feal to the commiffion in Mr Alexan- der's favour which had been figned by Andcrfon. That was accordingly done; and, in- ■order to remove all pretence for cavil or difpute, a fecond extract or commiffion v.'-.is 'likewife made out from the minutes of eleclion, and was figned and feakd by V.'rlkrr 'in the prefence of the council. 3^8 OFTHEELECTIONOF Book IV. The commifiioners from the feveral boroughs, before proceeding to the eledion of a burgefs to i eprefent the diftridt .in parliament, muft The meeting of the coramiffioners for elcfting the burgefs to ferve in parliament was held at Anftruther Eafter, which was the prefiding borough, upon the 1 7th of January 1 766. Mr Alexander attended, and, producing both commiffions, voted for himfelf. The commifiioners from Anftruther Wefter and Kilrenny likewife voted for him ; and the commilTioners from the other two boroughs voted for Sir John Anftruther. No other commiflion was produced from Pittenweem, but feveral objeftions were made by the commiffioner from the prefiding borough, to both the commiffions produced by Mr Alexander. To thefe it was anfwered in general, that the clerk of the prefiding bo- rough was bound by his oath, and the duty of his office, to fuftain the vote of every perfon who produced a commiffion, authenticated by the fubfcription of the common clerk, and by the feal of the borough by which fuch commiffion was granted; and that, as Mr Alexander hat! undoubtedly produced a commiffion fo authenticated, his vote could not be rejected. This notwithftanding, the commiffioner from tlie prefiding bo- rouvote at fuch eledlion under proteft ; and upon the fuppo- fal that, if the place of eledion could be at all altered from Jed- burgh, it ought to be held at Haddington, they alfo appointed other commiffioners to attend at that borough, and to make an eledion there on the fame day. Three eledllons were accordingly made upon the iith of April 1768. CommiiTioners from Haddington and Lauder appeared both at Jedburgh and Haddington, and at both ihefe places eleded Cap- tain Maitland to be member for the diftridl. The common clerk of the town of Jedburgh having refufed to adt, the commifl'.oners chofe another to officiate in his place, and the clerk fo chofen having re- A a a 2 turned 372 OFTHEELECTIONOF Book IV. turneci Captain Maitland, the flierifF of Roxburgh, within whofe ju- rifdidion Jedburgh lies, annexed that return to the writ which had been iffued to him from the Chancery. At Haddington, the com- mon clerk of the borough aded, and likewife returned Captain Mait- land to the IherifF of Eaft Lothian. At Dunbar, commifTioners attended from all the four boroughs. The coramiffioners from Haddington and Lauder voted under pro- teft for Captain Maitiand, and the commifTioners of Dunbar and North Berwick voted for Colonel Warrander. Each of the com- miflioners from Haddington and Dunbar likewife claimed the caft- ing or decifive vote; but the common clerk of Dunbar returned Co- lonel Warrander, and the fheriff of Eafl Lothian annexed that re- turn to the writ, without paying any regard to the return made by the common clerk of Haddington. Captain Maitland preferred a petition to the Houfe of Commons, complaining of the return of Colonel "Warrander; but, a compro- mife having taken place, that petition was withdrawn, and Colonel Warrander fat as member for the diftridl, until- his feat was vacated by his accepting a place, when a writ iffued for a new eledion. Colonel Warrander again appeared as a candidate, but was oppo- fed by Mr Charles Ogilvy, who had obtained the intereft of the bo- roughs of Haddington and Lauder. - Upon this occafion, no commiflioners were fent to Jedburgh or Haddington, as at the time of the general eledion ; but, at the meeting for eledion held at Dunbar, the commiffioner from Had- dington, who, along with the commiffioner from Lauder, voted for Mr Ogilvy, again claimed the cafling vote ; the common clerk of Dun- bar having, however, as formerly, returned Colonel Warrander, the lheri£F Chap. II. REPRESENTATIVES OF BOROUGHS. 373 flicriir annexed that return to the writ. Mr Ogilvy petitioned the Houfe of (."oniinons, and the queftion having been deJiberately tried before a committee named in terms of the aft of the loth of his prefent Majefty, eap. 16. *, Colonel Warrander was found to be du- ly eledled t. But, as this was reckoned a nice cafe, and the reiolu- tion * Formerly, all controverted elections were determined by the Houfe of Commons, in a full meeting ofthe houfe ; but, fundry inconveniencies arifing from that praftice, a new mode of procedure was introduced by the atSl now quoted, which is commonly known by the name of the Grenville aft, and refle f^^en moved, ' That, as it was acknowledged C c c ' that * Thefe words were an addition to the ufual form of the precept, and were inferted without any authority from the ftatute, which fimply requires the fheriff to iflue his precept to the Lord Provoft. Mr Hamilton, who then held that office, had been for fome time much indifpofed both in body and mind, and had gone to the country, but was brought to Edinburgh before the flieriff's precept was ready to be delivered. f The convener of the trades is one of the fourteen deacons, chofcn by them to pre- fide in their meetings. SBG OF THE ELECTION OF Book IV. * that the fherlff's precept had been ferved upon the Lord Provoft on Monday morning laft, and, as there was evidence of thatfafl: be- fore the council, and, as the provoft had not proceeded in the ufual manner, according to the law and pradice of the borough, by call- ing a meeting of council within forty- eight hours after fuch fervice made upon the provoft, on purpofe to fix the day of eledion, there- fore, he now moved that the council do meet in this place, at the hour of fix o'clock this evening, to name a day for proceeding to the eledion of a member of parliament; and that thofe now prefent be fummoned apud acla, and thofe members of the council who are abfent be regularly cited to attend at the above hour and place, for the purpofe above mentioned.' To this motion John Grieve, dean-of-guild, objetfled on this ground, that the Lord Provoft was the perfon whom the law had entrufted with the execution of the precept ifl'ued by the fheriff, and that, as he had not yet ifTued his own precept for calling a council to fix the time and place for election, the meeting had no power to do fo; and he accordingly entered a proteft, ' that all after proceed- ings to be held or taken, in confequence of this meeting fixing or appointing a day, hour, and place, for fuch an eledlion, fhall be null and void to all intents and purpofes ; and that all and every perfon, or perfons, concerned in any fteps thereof, fliall be liable in the higheft pains and penalties.' Mr Grieve, likewife, by another proteft, objedled, that the eight deacons not of the council, called Extraordinary Deacons, had no manner of right to vote in the eledion of a citizen or burgefs to ferve in parliament, and had ftill lefs a title to vote in fixing or ap- pointing a day for that purpofe, or in any other preliminary ftep to be taken about fuch election ; but to this it was knfwered, that the extraordinary deacons had always been in the pradice of voting on Chap. II. REPRESENTATIVES OF BOROUGHS. 387 oil fuch occafions, and that it appeared from the council records that they had been uniformly cited by the chief magiftrate's precept to attend the meeting for fixing the time of cledion. The vote being put, ' agree to Convener Craig's motion or not,' ten of the ordinary council, and the eight extraordinary deacons, voted a^ree, and fourteen of the ordinary council voted not ; upon which Mr Thomfon, the prefes of the meeting, granted vparrant to George Penman, the council officer, to fummon the members to at- tend at fix in the evening ; but afterwards declared, ' that though, ' in confequence of the vote of the majority of the members of coun- * oil, he had ordered George Penman to fummon the council to ' meet at fix o'clock this evening, in terms of the convener's mo- * tion, yet, as prefes of the ordinary council, he now difcharges * (prohibits) him to put the former order in execution:' Upon this Penman faid, ' that, in confequence of this laft order, he recalled his * former fumraons, and difcharged the council to meet this evening/ Notice of thefe proceedings was given to the Lord Provoft, who was alfo cited to attend by a meffenger at arms, and one of the city officers, and a notary public; but to that notice and citation he paid no regard. The meeting in the evening was attended by the eighteen perfons who had appointed it, but by none of the fourteen who had objedl- ed to it. Mr Grieve, indeed, went there for the purpofe of proteft- ing againft the legality of the meeting, both on account of its not being called by the Lord Provoft, and in refpedt that there were not thirteen members of the ordinary council prefent, without which' number, he contended, there could not be a quorum either of the ordinary or extraordinary council ; but immediately after entering C c c 2- that 3S8 OFTHEELECTIONOF Book IV. that proteft he withdrew. A proteft was likewife taken In the name of the Lord Provoft by a gentleman authorifed by him. After making an anfwer to thefe protefts, Mr Craig produced a notorial (notarial) copy of the IherifF's precept ; and evidence being laid before the meeting of the citation given to the Lord Provoft to attend, it was unanimoufly refolved, ' That, upon Saturday next, * the 1 6th current, at ten o'clock in the forenoon, the council fhould * proceed to eledt a fit and well qualified burgefs to reprefent the ci- * ty in the enfuing parliament.' Bailie Leflle adted as prefes to this meeting; and, in confequence of diredions then given to him, he, the next day, caufed the abfent members of the council to be fum- moned to attend. The eighteen perfons, who had thus fixed a meeting for election, having accordingly afTembled at the appointed time. Bailie Thomfon appeared, and entered a proteft againft their proceeding; another proteft was alfo entered in the name of the Lord Provoft ; but to thefe no regard was paid, farther than by giving them an anfwer; and one of the conjunct common clerks of the city, who attended upon that occafion, having produced the notorial copy of the ftierifF's pre- cept, which had been lodged with him at the former meeting, it was moved, that a deputation fhould be fent to the Lord Provoft, to re- queft of him to tranfmit the original precept to the meeting. Two of their number went accordingly to his houfe upon that errand, but returned without getting any other anfwer to their meflage, which they made under form of inftrument, and delivered to a fervant, than that the Lord Provoft was in bed, and had no anfwer to give. The flierifF-clerk was then called in, and produced the receipt granted by the Lord Provoft to the flieriff for the precept; and a du- plicate of that precept, certified both by the flierift'and himfelf to be CiiAP. II. REPRESENTATIVES OF BOROUGHS. 389 a true copy ; and ihefc papers being farther verified by the oath of the flierifl-clerk, the nneeting proceeded to the ordinary fteps of elec- tion, and unanimoufly made choice of Mr Miller ; upon which an indenture, certifying his eledlion, was made out between the city clerk and the flierifi", and annexed by the latter to the writ iflued to him from Chancery. By this time, the fteps of the annual elcdion of the magiftrates and counfellors of the city for the enfuing year had commenced ; but they were not completed till the third of Odober, on which day the Lord Provoft, the bailies, the dean-of-guild, and the trea- furer, were chofen. By this eledlion. Sir Laurence Dundas acquired a fuperiority in the council; and, as foon as the ordinary bufinefs of the day was over, David Steuart, Efq; the new Lord Provoft, pro- duced to the council a letter of that date, from his predeceflbr in office, addrefled, * To the Lord Provoft of Edinburgh to be this day * ele£led,' and of the following tenor: ' Inclofed I fend you the prin- * cipal precept delivered to me by Archibald Cockburn, Efq; fheriff- * depute of Edinburgh, requiring me to caufe a citizen and burgefs * to be eleded and chofen to reprefent the city of Edinburgh in the * enfuing parliament. 1 likewife inclofe a receipt by George Pen- * man, council and dean-of-guild officer, for the precept iffiied by * me (in confequence of the (heriff's precept) for fummoning the * town-council to meet on Thurfday next, the fifth Odtober, in or- * der to appoint an hour, day, and place, for eleding of fuch mem- * ber, and who will return the fame, with an execution thereof, to * you, as my fucceffiDt in office. I am,' &c. Penman accordingly delivered the late provoft's precept, and an execution, bearing his having fummoned the members of council to attend, as thereby or- dered ; upon which, to prevent any difpute on account of his pre- deceflbr's going out of office before the obje»ll of his precept could be accomplifhed, the new Loid Provoft granted a new warrant in the ^^90 OFTHEELECTIONOF Book IV. the following terms : ' I grant warrant to the officer to fummon, * warn, and charge, the ordinary council to meet and convene in ' this place upon Thurfay next, the fifth of Odlober current, at ten ' o'clock in the forenoon, in order to appoint a day, hour, and place, * for electing a burgefs to reprefent this city in the enfuing parlia- ' ment, agreeable to the fherifF's precept, now delivered to me from ' the late Lord Provoft, and his precept iflued in confequence there- ' of, with the execution of the fame ; and alfo, to fummon, warn, * and charge, the eight extraordinary deacons, not of the council, ' but which fhall not be held as any homologation or acknowledge- ' ment of any claim for their having a vote at fuch meeting.' Agalnft thefe fteps, protefts were entered by Bailie Leflie, and" thofe other members of the new council, who had formerly made an eledion of Mr Miller. But the council met at the appointed time, to the number of thirty-three, when the Lord Provoft moved, * That, upon Saturday next,. the feventh day of Odtober, the council * fhould meet in this place at eleven o'clock in the forenoon, in or- * der to proceed to ele£t a fit and well qualified burgefs to reprefent * the city in the enfuing parliament.' To this motion Bailie Leflie and others objeded, in refpeft that a burgefs had already been eleifted ; but the vote being put, ' agree 'to the Lord Provoft's motion or not,' feventeen members of the meeting voted to agree, and fixteen voted againft it. The council accordingly met again upon the feventh of the month, when, upon produdion of the fherifF's precept, and after a deal of altercation, and a variety of protefts upon both fides, they proceeded to make an eleclion of a burgefs to reprefent the city in parliament. On this occafion there were prefent thirty-two members of the council ; of thefe feventeen voted for Sir Laurence Dundas, and fif- teen CiiAP. II. REPRESENTATIVES OF BOROUGHS. 391 teen voted for Mr Miller, under the following declaration made by each : ' I have already declared that I hold this meeting to be ille- ' gal, and any fecond eledion unneceffary and improper, for the rea- ' fons contained in the protefl: I have taken ; but 1 alfo declare, that, ' if this Ihall be found a legal meeting, my vote (hall be held to ' have been given in favour of William Miller, Efq; Advocate, to ' be the reprefentative of this city in parliament ; and I do hereby ' declare and vote for him accordingly *.' The majority of votes being thus in favour of Sir Laurence Dimdas, the minutes bore, ' That the Lord Provoft, magiftrates, and council, with the deacons ' of crafts ordinary and extraordinary, did, and hereby do, ele£l the ' faid Sir Laurence Dundas of Kerfe, Baronet, citizen and burgcfs, ' to reprefent this city in the enfuing parliament; and the council ' did require the faid John Dundas, officiating as clerk, to return ' him accordingly,' &c. This was immediately done. Mr Dundas made out an indenture, certifying Sir Laurence to have been eleffl- ed, and tendered it to the fherifF, requiring him to enter into and execute it, and annex it to the writ iflued to him from Chancery ; but with this requifition the flierifF refufed to comply, giving for his reafon, that he had already returned the writ, with an indenture an- nexed to it, certifying the eledion of Mr Miller. Sir Laurence Dundas preferred a petition to the Houfe of Com- mons, complaining of the eledion and return of Mr Miller. Two other • It was thought by fome a piece of bad condiKH: in tlr Miller's friends to attend this meeting, knowing, as tliey did, that they were to be outvoted : But tliey, at that time, meant to cliallenge the eleftion of fome of the magiftrates and counfellors in the intereft of Sir Laurence Dundas ; and if thefe fliould be fet afide, they would them- felves be the legal majority. They accordingly preferred their complaint to the court of feffion ; but it was difmifled before the merits of the ele(5tion of the member of parliament came to be tried. 392 OFTHEELECTIONOF Book IV. other petitions were likewife put in to the fame efFeft, the one in the name of the magiftrates and council as a collecftive body, the other in the names of cer-tain individuals who had voted for Sir Laurence: And, upon the i6tli of March 1781, a committee was named to try the merits of the queftion. To enter into every point that was introduced into the argument before the committee would confume too much tune. It will fuffice to take notice of the mod material. To the election of Mr Miller, it was firft objeded, that the only flatute laying down any regulations refpeding the eledion of the member for the city of Edinburgh, was the ad of Queen Anne ; that, by that ftatute, the execution of the fherifF's precept was entire- ly committed to the Lord Provoft, to whom the fherifF was ordered to dired his precept to caufe a burgefs to be eleded ; and that the ftile of that precept was accordingly uniform in requiring the Lord Provoft to caufe a citizen to be chofen, 8cc. and to caufe his name to be returned in certain indentures, &c. ; that as, in all cafes of exe- cutive government, fome perfon muft be anfwerable for the execu- tion, fo the Lord Provoft was alone anfwerable for the condud of an Edinburgh eledion ; that it behoved him, at his peril, to take care that the eledion fhould be timeoufly made ; but that he was not, like the chief magiftrates in other boroughs, bound to take the preparatory fteps within any limited number of days; and that no feeming delay upon his part could entitle the council' to take the execution of the precept out of his hands, or to aflemble of their own accord, either for the purpofe of making an eledion, or in or- der to fix a day for doing fo. In anfwer to this, the counfel for Mr Miller, the fitting mem- ber, infifted, though but faintly, that, in terras of the ads of the 7th and Chap. If. REPRESENTATIVES OF BOROUGHS. 39.3 and 1 6th of George If. it bcliovcd the Lord Provofl to call a meet- ing of tlie council, to fix the diet of elcdlion, witliin two days after l)is receiving the llierifi's precept, and that the records of the coun- cil fhewed tliis to have been the general practice : But what they feemed chiefly td rely upon, was that part of the a£t of Queen Anne which fays, that, on. receipt of the flieriff's precept, the city fliali eled their member : Hence they contended, that the precept was direded to the Lord Provoft only as prefes of the elcdors, and not as, in any refpcd:, a returning officer ; that he was a mere inftru- ment, or hand, to receive the precept, and had no title to controul the clcdlors in any point; that they alone had the right of fixing the day of elcdion; and that the Lord ProvoiVs negleding or delaying to call them together could not prevent them from aflembiing of their own accord for that purpofe ; that, from the moment the pre- cept came into his cuftody, it was in the receipt of the city; and that, of courfe, the maglftrates and council were, from the fame moment, at liberty to meet together, in order to fix a day for the elcdion, without waiting till he fliould think proper to convene them. Li this ftage of the argument, it was farther ftated by the counfel for Mr Miller, that. In fa£l, it was Sir Laurence Dundas, and his friends, thai had aOumed the power of executing the precept, it be- ing notorious that the Lord Provoft, whofe name they made ufe of to fanftify their own jobs, had been for a confidcrable time deprived of his reafon. They were accordingly proceeding to call witneflcs to prove his fituation and ftate of mind ; but the counfel for Sir Laurence Dundas having objedted to the committee's going into an inquifition of that fort, efpecially as the other party had, in the courfe of their argument, conlidered that officer as a mere hand, or inftrumeiU, requiring no head to diredl him in the execution of his duty, the comanittee refolved that the evidence fhould not be re- ceived. D d d The 394 OFTHEELECTIONOF Book IV. The counfel for Sir Laurence Dundas, in the iiext place, objeifted, that the eight extraordinary deacons had no right to vote in the queftion brought on in the meeting of the forenoon of the 13th of September, when, by their voices, it was carried to meet at fix of the clock in the evening of that day to fix the diet of eledion ; for that, admitting them to have a right to be called, and adjoined with the ordinary council at the eledion, and to give their votes for the member of parliament, and even fuppoiing it competent to the council, without the concurrence or approbation of the Lord Provoft, to call a meeting for fixing the time of election, yet thefe extraor- dinary deacons, not being of the council, could have no title to in- terfere in that bufinefs, and thereby to thwart the meafures of the majority of the ordinary council. To this it was anfwered, that, if the extraordinary deacons had a right to vote in the eledion, they muft, of courfe, have likewife a vpice in every preparatory ftep refpe£ling it. The counfel for Sir Laurence Dundas, in the third place, con- tended, that neither the meeting of the evening of the 13th fixing a time for an eletlion, nor the meeting of the l6lh of September, at which Mr Miller's eledion took place, could proceed to any bufi- nefs whatever, in refpedl that, at none of thefe meetings, there were prefent thirteen members of the ordinary council of twenty-five, without which, it was fald, there could not be a quorum even of the extraordinary council, although, including the extraordinary dea- cons, there might be more than feventeen affembled. This was an important branch of the argument, and was fully difcuffed. In fupport of the general pofition, it was Hated, that, by the decree-arbitral of James VI. the full government and admini- .ftratioa of the borough was committed to the council of twenty- five,. Chap. II. REPRESENTATIVES OF BOROUGHS. 39; five, except in foinc particular cafes, where all the fourteen deacons of crafts were to be called, mid adjoined to them ; that, in like manner, tlie fubfequent decree, pronounced by the Earl of Hay, had declared, that, when bufinefs was to come on in which the extraor- dinary deacons WGve allowed a voice, they were to be adjoined with the ordinary council, and that this expreflion ncccffarily implied, that no fuch bullnels could be proceeded in without the prefence of a quorum of the ordinary council, as, while that was wanting, there could be no ordinary council, and, confequently, no cxilling body with whom to adjoin the extraordinary deacons ; that although, by the Earl of Hay's award, fcventeen were requilite to conflitute a quorum in matters of that fort, yet it was not neceffary that any determined number of thefe feventeen fhould be extraordinary dea- cons, but it was fufficient that they were called or fummoncd to at- tend ; and that, although the members of the ordinary council of twenty-five were fined when abfent, or late of corning in, yet no fuch fines were ever impofed upon the extraordinary deacons; that, to fuppofe there could be an extraordinary council without the pre- fence of a quorum of the ordinary council, would lead to the great- eft inconfiftency and abfurdity; for, upon that fuppofinon, the coun- cil of the city of Edinburgh, which, hovN^ever compofed, or for what purpofe foevcr aflembled, was certainly at all times to be confidered, when a£ting, only as one body, might be divided into two feparate bodies, each of which might legally a£t at one and the fame time ; as, while thirteen, nay fixteen, of the ordinary council, were fitting at one end of the council board, for the fake of tranfacling bufinefs falling under their province, and requiring immediate defpatch, the cieht deacons not of the 'council, with the other nine members of the ordinary council, might, at the other end of the table, or in ano- ther room, hold an extraordinary council, and determine upon mat- ters of the greateft importance ; and that, in fad, there was no pre- cedent in the records of the city of a meeting of the council, though D d d 2 exceeding 396 OFTHEELECTIONOF Book IV. exceeding feventeen in number, proceeding to any bufinefs what- ever without the prefence of thirteen of the ordinary council, nor was any attempt to do fo known, except one in 1763, when, on ac- count of the want of that number, the Lord Provofl left the chair, and Mr WiUiamfon, the fame clerk who had certified Mr Miller's name to the fherifF, refufed to acknowledge the legality of the pro-, cecdings, and would not make up any minute of them in his cha- rader of city clerk, but only atteft them as a notary. The counfel for Sir Laurence Dunuas, in confirmation of this part of their argument, alfo called as witneffes the chamberlain, and one of the deputy clerks of the city, who concurred in depofmg, that they always underftood the prefence of thirteen of the oidinary council to be neceflary to enable even an extraordinary council to proceed to bufinefs, and that they never knew an attempt to the contrary but in 1763, which they, however, confidered to be of no effedl, as the proceedings on that occafion never entered the records^ of council, and were challenged by a bill of fufpenfion (a bill for an injunction), prefented to the court of feffioru The anfwer made by the council for Mr Miller amounted in fub- ftance to this, that, as the Eail of Hay's decree in fixing the quorum made no diftindion between the members of the ordinary council and the extraordinary deacons, but fimply declared, that, in order to confiitute a meeting of the extraordinary council, the attendance ©f feventeen members was neceflary, fo it could be of no moment in what manner that quorum was compofed, and that the conclu- fion fought to be inferred from the word ' adjoined,' was a mere criticifm, not to l)e regarded in explaining deeds or writings, where fubftance was more attended to than accuracy of expreflion; that it was in the power of all the members of the ordinary council to at- tend if they pleaftd upon every occafion, and that bufinefs in which thei Chap. 11. REPRESENTATIVES OF BOROUGHS. 397 the extraordinary deacons had likewife a voice was not to flop on account of the want of any particular number of thofe to whom the more connnon and ordinary concerns of the borough were com- mitted ; that it was of no confequence that no precedents appeared of bufinefs being done when fewer than thirteen of the ordinary council were prefent, as that only proved the general punduality of their attendance ; and that, although fault had been found with the proceedings at the meeting in 1763, and the clerk had refufcd to fandify thefe proceedings for want of a quorum of the ordinary council, that was not to be wondered at, becaufe it was a difputed point whether the buhncfs then in agitation was of that nature that the extraordinary deacons could legally interfere, or take a concern in it, and, upon the fuppofition that it was a matter in which they could not vote, the prelence of thirteen of the ordinary council was without doubt abfolutely requifite *. The * The election of a member of parliament for the city of Edinburgh is a corporate aiTt, and each individual magiftrate and counfellor votes as a member of the body cor- porate. Hence the attendance of the fame number is neceffary in that bufinefs that is requifite to conftitute a quorum in matters of ordhiary adminlftration. "VVere not this the cafe, no quorum would be requifite at an election. One of the counfel for IVfr Miller did accordingly contend, that each individual member of the council voting In the right of his own freehold, it was of no confequence whether a greater or a fmaller number attended ; but the other counfel, who had occalion to be better acquainted ■with the poHtical conftitution of the boroughs in Scotland, did not think himfelf war- ranted to maintain fuch a doftrine. He had indeed objeded to Mr Grieve's being called as a witnefs for Sir Laurence Dundas, in refpcft that, by being a member of the town-council, he was to be conildered as a party, in confequence of the petition that was preferred againft Mr Miller's eledtion by the magiitrates and council in their cor- porate capacity, although his name did not appear in the other petition that bad been prefcnted to the houfe by individual eleftors. The commiilions given to burgeiTes fent to the parliament of Scotland were, by an act of the convention of the royal boroughs, ih 1642, appointed to be figned by the magi ftrates, and by the clerk, In the name of tslie council, and to have the common feal of the borough appended to them. A form of a commiffion of this fort is to be found in the Appendix, No. 43 39S OFTHEELECTIONOr Book IV. The election of Mr Miller was, in the fourth place, objeded to, in reCpect that it proceeded without the precept iffued by the fheriff" to the Lord Provoft, which the counfel for the petitioner confidered as the fole authority for making an eledion. Upon this head refe- rence was made to Lord Coke, who fays, ' That any eledlion or ' voices given before the precept be read and pnbliflied, are void, ' and of no force, for the fame electors, after the precept is read and ' puhliHied, may make a new eleftion, and alter their vdicQs^feciin- * dam legem et confnetiidinem parliamenti.^ The adt of the 2d of George II. cap. 24. was alfo appealed to, which being appointed to be openly read before the electors, immediately after the reading of the writ or precept, fliewed, it was faid, the lenfe of the legiflature, that no eledion could proceed without the precept ; and it was far- ther added, that it was of no confequence that a duplicate, or copy, of the precept had been produced, efpecially by perfons to whom it neither was, nor could be direded. To this It was anfwered, that the Lord Provoft, or thofe whofe tool he was, having wilfully with-held the original precept, for the purpofe of preventing the then council from making an eledion, they were entitled to proceed under the authority of a duplicate of that precept properly verified; and that to difpute that propofition, were to maintain that it was in the power of the Lord Provoft alone, in oppofition to the unanimous wifh and inclination of the whole body of the council, to prevent altogether an eledion of a member for the city, an abfurdity that was repugnant to common fenfe, and which no law could be fuppofed to authorife. The counfel who appeared for- the other petitioners, the magi- ftrates and council of the city, likewife objeded to the right of the extraordinary deacons to vote in the eledion of the member of parliament. This point had been left undecided by Lord Hay's award. Chap. II. REPRESENTATIVES OF BOROUGHS. 399 award. Some inftances of their voting before the Union apf)earcd on the city records. From that period, downwards, they had con- flantly exercifed that privilege ; but, till a few years before this con- teft, their right to do fo had always been obje(5tcd to byway of pro- teft, wliich, however, had been omitted at the four laft eledtions. Upon the fuppofition that Mr Miller's cledion was void, no good objection could lie againft the eledion of Sir Laurence Dundas, which was regular in every refpe£t. The committee accordingly, upon the 22d of March 1782, refolved, \mo, That Mr Miller was not duly eleded ; and, 2(h, That Sir Laurence Dundas was duly elec- ted. They alfo refolved, that, in the elecftion of a member for'tlie city of Edinburgh, the extraordinary deacons had a right to vote j but, although this refolution was communicated to the agents for the parties, it was not reported by the committee to the houfe. CHAPTER 400 OF THE ELECTION OF Book IV. CHAPTER III. Of the ^lalijications necejfary to entitle a perfon to be eleSled a Burgefs to ferve hi Parliament. WE have feen that commiffioners from fhires muft be pofleffed of a freehold within the counties which they reprefent. There is, however, no necefllty that a perfon who reprefents the city of Edinburgh, or any of the fourteen diftrifls into which the other boroughs are divided, be pofTefied of any property within thefe boroughs. By an a€i of the eleventh parliament of James VI. *, it was or- dained, ' That there fall be na confufion of perfones of the three * eftaites, that is to fay, na perfon fall take upon him the function, * office, or place, of all the three eflaites, or of twa of them, hot fall * only occupy the place of that felfe eftait quhairin he commonly ' prefelTes h'mfelf to live, and quhairof he takes his flyle.' Sir George Mackenzie, in his obfervaiions on this a£t, fays tj that the parliaments having grown very faiflious in the time of Queen Mary, the Popifh and Proteftant parties contending which fhould prevail, fuch of the Popifh bifhops, or other church dignitaries, as were pofTefTed of lands and heritage, claimed two votes, one as churchmen, and another as barons, and that the firft part of this flatute, * ^S^ly "P- 33- f Page 236. Chap. III. REPRESENTATIVES OF BOROUGHS. 401 ftatute, prohibiting any perfon to take upon him the olTicc of all the three ellatcs, or ut' any two of them, was made to prevent fuch at- tempts for the future, lie feems, indeed, to have been more diill- culted what to make of the latter part of it, but fupj)ofes that it was intended to keep barons who could not get themfelves fent to par- liament from (hires from being chofen as burgefles. It may, how- ever, be obferved, that, although an ad preparatory to the introduc- tion of the reprefentatives from Ihires had pafTed in the year 1585, yet the a£l eftablilhing that reprefentation, although pifled in the fame parliament, vvas pofterior in point of date to the one now under confuleration. During the i6tli century, the convention of royal boroughs made feveral ads prohibiting any perfons from being chofen commiffion- ers from boroughs to the parliament, but freemen, merchants, and traffickers ; but this regulation having been at times tranfgreffed, and Charles II. thinking it for his iutereft to have it revived, he, upon the 3d of July 1674, wrote a letter to the royal boroughs upon that fubjed, in which, after teftifying his refolution to maintain them in their immunities, and mentioning his having received information, that, of late, an innovation had been brought in amongft them by their eleding eommiffioners to parliament, and to their own parti- cular and general conventions and meetings, who w^ere not adual refidenters within the boroughs by whom they were commiflioned, and bore not proportional charges with the inhabitants, nor could lofe or gain in any of their concerns, he required them to take fpe- cial care that their ancient cuflom in that refped fliould be revived^ and the like abufes prevented for the future *. E e e In * A, copy of this letter is in the Appendix, No.-44,> 402 OFTHEELECTIGNOF Book IV. In obedience to this requifition, the boroughs paffed an a£t of convention in July 1675, by which, after mentioning that many inconveniencies had arifen from eleding commiffioners who were not merchants, traffickers, refidenters, bearing common burden with the reft of the inhabitants, and could not lofe or gain in the concerns of the boroughs, and that fuch a pradlice was dellrudive to the intereft of their eftate, they ordained, that, in all time to come, none Ihould be elefted commilfioners by any of the royal boroughs to particular conventions of eftates, or to the particular and general meetings of the boroughs, but fuch as were ' merchants, ' traffickers, prefent refidenters w^ithin the borough commiffiona- ' ting them, and who bore common burden with the reft ot the in- ' habitants, and were fuch perfons who could gain and lofe in the ' concerns of the boroughs.' By this ad', all eledions of perfons not fo qualified were alfo declared to be, ipfofaSlo, void and null. High penalties were likewife impofed upon the voters for unquali- fied perfons, and upon thofe who, in that fituation, accepted of com- miffions ; to all which there was added the following claufe : ' And * for the better and more pundual performance and execution of ' this prefent adt, the convention ordains, that this claufe fhall be ' added to the oath dejideli, which is to be taken of every burgefs * of every royal borough within the kingdom, at his admiffion to ' be a counfellor of their refpedtive boroughs, viz. that he fhall not, ' in time coming, vote, nor confent to the choofing of any perfon to ' be commiffioner from the royal boroughs to parliaments, conven- * tions of eftates, and to the general and particular meetings of bo- * roughs, but fuch perfons as are qualified in manner forefaid ; and * farther ordains their common agent, prefent, or to come, to raife * letters of horning thereupon, for charging the haill royal bo- * roughs of this kingdom to make their eledions of commiffioners ' to parliament, conventions of eftates, and to their general and ' particular conventions and meetings, when the famen Iliall occur, ' conform Chap. III. REPRESENTATIVES OF BOROUGHS. 403 conform to the qualifications forefaid, under the pain of rebellion, and putting of them to the horn, if they failzic; and ficklik'e, or- dains the faid agent to raife other letters of horning, charging every particular perfon who fhall hereafter vote for fuch unwar- rantable eledions, or ilich as fliall accept of fuch unwarrantable commifhons, not being qualified as faid is, to make payment to him, for the common ufe of the boroughs, of the forefaid penalty of a thoufand merks, as oft, and fua oft as they fhall tranfgrci's thir prefents, and that under the pain of rebellion, and putting of him to the horn, whcreanent thir prefents fhall be a warrant *. In 1 68 I, the borough of Selkirk having chofen Sir Patrick. Mur- ray, who did not refide in that borough, to be their comrnifrioner to parliament, a charge was given both to the borough and to Sir Patrick for payment of the penalty impofed by this adt of conven- tion ; and the matter having been brought before the court of fef- fion by a bill of fufpenfion, that court found, ' that the town of * Selkirk had contravened the King's letter, and adl of the ho- * roughs made thereon, difcharging the boroughs to eledl any to ' reprefent them but adual trafficking and refidenting burgeffes;; * and found the faid ads of boroughs obligatory, and that Selkirk ' had incurred the fine.' This we learn from Fountainhall t, who alfo informs us, that the parliament which met in that year fet afide all the ele£tions of gentlemen for boroughs, unlefs they were a£lual refidenters and traffickers. We accordingly meet in the re- cor;;s of parliament, with a minute of the 5th of Auguft 168 i, in the following words : ' The report of the committee concerning the ' double elections for the borough of North Berwick being read, K e e 2. ' debated, * A copy of this n tholoneO' N D I X. 413 tholoneo et parva cuftuma didi burgi ; necnon cum omnibus aliis et fingulis libertatibus, commoditatibus, et afiamentis, redtis confuc- tudinibus, ac juflis pertinentiis quibufcunque, tarn non nominatis quam nominatis, ad praedidlum burgum et terras praediflas fpec- tan. feu quovis modo jufte fpedlare valen. in futurum, libere, quiete, plenarie, integre, bene, et in pace; reddendo inde nobis et hercdibus noftris annuatim, ad terminos Pentecoftes et San£ti Martini in hi- eme, per equales portiones, oduaginta mercas Sterlingorum : In cu- jus rei teftimonium, praefenti cartae noftrae figillum nollrum prae- cipimus apponi; teftibus venerabilibus in Chrifto patribus, V/mo £pQ Sandti Andreae, et Patricio Epo Brechinen. cancellario noftro, Roberto Senefcallo Scotiae, nepote noftro, Willielmo Comitc de. Douglas, Roberto de Erfkin, Archibaldo de Douglas, et Willielmo de Difhingtoun, militibus, apud Perth, tertio die Martii, anno regni noftri quadragefimo." Tenor vcro cartae didi ferenifTiml avi noftri, Jacobi primi Scotorum regis, fequitur in hunc modum : " Jacobus, Dei gratia. Rex Scotorum, praepofito et ballivis burgt noftri de Invernes, falutem : Qiiia pro parte burgenfium burgi no- ftri de Invernes," per viam communis qucrelae noftris auribus eft. dedudum, quod nonnullae perfonae bondas et libertatem didi burgi inhabitantes, mercaturas, aut alia bona venalia, extra didum burgum emendo et vendendo, ipfius privilegium et libertatem ufurpant et infringunt, in didi noftri burgi non modiclim prcjudicium et gra- vamen ; vobis igitur et veftrum cuilibet ftride praecipimus et man- damus, quatenus in folempnioribus locis didi burgi et libertatibus. ejufd. auchoritate noftra publice proclamari faciatis, quatenus omnes- et fmgulas bondas did. burgi et libertatem. ejufd. inhabitantes qui aliquas habuerunt mercaturas, feu bona vendenda quaecunque, ad forum didi burgi noftri pro ipfis vendendis conveniant, et realiter fe praefentent, prout in aliis burgis noftris, et eorum libertatibus> confuetum extitit, infra regnum noftrum, pariter et ohfervatum. Quod fi mandatis noftris minime obtemperaverint in praemiffis, vo- lumus. 414 APPENDIX. lumus et ordinamus, quod omnes praemiffi hujufmodi mercaturaa et bona fic de cetero extra didlum burgum noftrum empta et ven- dita, per vos auihoritate noftra plenarie efchaeentur, confifcantur, et ad ufum noftram ac commodum fpecialiter conferventur ; fuper quibus vobis et veftrum cuilibet, conjundtim et divilim, vices noftros et mandatutn committimus per praefentes. Datum fub teftimo- nio magni figilli iioftri apud Invernes, vicefimo o£tavo die Au- gufti, anno regni noftri vicefimo tertio." Quas quidem cartas, lite- ras, et evidentias, ac donationes et conceffiones, libertates, immuni- tates, et privilegia in eifd. content, fupplicationibus didlorum prae- pofiti, ballivorum, burgen. et communitatis annuen. ne gratia a noflris progenitoribus dido burgo noftro fa£ta deperiret, de noftro maturo confilio in omnibus fuis pundlis, et articulis, conditionibus, et modis ac circumftantiis fuis quibunfcuque, forma pariter et effeftu in omnibus, et per omnia approbamus, ratificamus, et pro nobis, here- dibus, et fuccefforibus noftris, ut praemiflum eft, pro perpetuo con- firmamus ; falvis nobis hcredibus, et fucceflbribus noftris, juribus, et fervitiis de di, 146, 42S APPENDIX. George Lord Gordoun ; Jlion Lord Erfkyn ; Patrik Lord Ruth- ^'en ; Alexander Lord Home ; Jhon Lord Lyndefay ofF the Byris ; William Lord Hay ofF Zeflir ; James Lord Somervile ; William Lord Levingftown ; Andro Lord Stewart ofl' Ouchiltre ; Alexander Lord Saltoun ; Robert Lord Boyd ; Robert Lord Elphinftoun ; Jhon Lord Innermeith ; Patrick Lord Gray ; James Lord Ogylvie ; Jhon Lord Glamis ; Jhon Lord J3orthuick j Allane Lord Cathcart ; James Lord Sand; Johnis. James Commendatare off the Priorle off San£t Andros and Pettin- weme ; Jhon Commendatare off Abirbrothok ; Robert Commen- datare off Halyrudhows ; Jhon Commendatare off Coldinghame ; Jhon Abbot off Lundoris ; Donald Abbot off Couper ; Andro Com- mendatare off Jedburgh and Reftennot ; Marke Commendatare off Newbottle ; Adam Commendatare off Dundrannen ; Jhon Abbot of New Abbey ; Commendatare off Dryburgh and Inchma- home ; Poftulat off Cambufkyneth ; James Commendatare off Sand Colmis Inche ; William Commendatare off Culrofs ; Wal- ter Abbot off Kinlofs ; Gawine Commendatare off Kilwynnyng ; Nichol Abbot off Feme ; Robert Commendatare off Deir ; Jhon Priour off Portmoak ; Robert Commendatare off San£t Marie Ifle; Robert Minifter off Faulfurde. The commiflaries of burrois, viz. Edinburgh, Striveling, Perth, Abirdene, Dunde, Air, Irwein, Hadingtown, Lynlythgow, Glaf- gow, Peblis, Jedburgh, Selkirk, Coupar, Kingorne, Banff, Forfar, Invernes, Montrofs, Kircudbricht, Wigtoun, Innerkething. William Maifter Merfchcal ; Jhon Maifter off Maxwel off Ter- liglis, Knycht ; Patrik Maifter Lindefay ; Henry Maifter Slnclare ; V/illiam Maifter off Glencarne ; Hew Maifter Somervile ; James Dowglas APPENDIX. 429 Dowglas off Drumlangrig, Knycht ; Jhon Gordoun off Lochinver ; Alexander Stuart off Garleifs ; Jhon Wallace off Cragye ; William Cwniiighame off Cwninghameheid ; Jhon Cvvningh.arnc off Caprin- toun ; Jhon Mvvre off Kowaliane ; Patrick Hovviloun off that Ilk ; George Buqwhannanc off that Ilk ; Robert Mciiteith off Kerfs ; James Striveling off Keir ; William Murray off Tullibardin ; Andro Murray off Balwardc ; Jhon Wiflieart off Pitarro ; Wil- liame Douglas off Lochlevin ; Colin Campbel off Glenurquhard ; Williame Sinclare off Rofsling ; Jhon Creichtoun off Stratharde ; A- lexander Irwein off Drum ; Ailardes off that Ilk ; Alexander Frafer off Philorth ; Williame Innes of that Ilk ; Sutherland off Duffus ; Jhon Grant off Freuchy ; Robert Monro off Fowlis ; George Ogylvie off Dunlugus ; David Ogylvie off that Ilk ; Jhon Ogylvie off Innerquharite ; Ogylvie off Cloway ; Ouchterlony off Kelly ; Jhon Straithauchin off Thorntoun ; Andro Straton off Lavs'rieftoun ; Jhon Creichtoun off Ruthvennis ; Tho- mas Blair off Baltheock ; Ogylvie off Inchemertyn ; Thomas Mawle off Panmure ; Archibald Douglas off Glenbarve ; Thomas Fottringhame off Powry ; llol)crt Grahame off Morphy ; Robert Stewart off Roffyth ; Walter Lundy off that Ilk ; Myreton off Cammo ; Arthure Forbes off Rcres ; Andro Wod off Largo ; Jhon Kynneir off that Ilk ; Jhon Edmefton off that Ilk, zounger ; Gilbert Wauchope off Niddrie Merfcheal ; George Home off Spot ; Hamiltoim off Innerweik ; David Home off Wedderburne ; Nifbet off that Ilk ; Jhon Swintoun off that Ilk ; William Hamlltoun off Sanchar ; George Cravvfurde off Leffures ; James Cockburne off Scraling ; Twedy off Drumelzear ; Hew Wal- lace off Carnel ; Robert Lyndcfay off Dunrod ; Robert Maxvvel off Calderwood; Patiik Lermonth off Derfy ; Jhon Carmichael off that Ilk ; Jhon Carmichae! off Medowflat ; George Haliburton off Pet- cur ; James Haring off Glafclunc ; Stewart off Gran- tuly J 430. APPENDIX.. tuly ; Jhon Stewart off Arntully ; James Meinzeis off that Ilk j Jhon Forrel off that Ilk ; Maifter Alexander Levingftoun o'ff Do- nipace ; Jhon Cwninghame off Drumquhaffill ; David Hamiltoua off Fingaltoun ; Henpy Wardlaw off Torry ; Ramfay off Banff ; James Heriot off Trabron ; Walter Ker off Cef- fiirde ; John Ker off Phernihurft ; Jhon. Johnftoun off that Ilk ; Williame Dowglas off Quittinghame ; Neil Montgomery off Lang- fchaw ; Patrik Montgomery off Giffine ; Montgomery off Hefil-heid ; Williame Cranftoune off that Ilk ; Thomas Macdowal off Makcarfton ; Jhon Home off Coldingknowis ; Patrik Hepburne off Wauchtoun ; James Foreftar off Gorftorphin ; Jhon Sandilandis off Calder ; William Lauder off Haltoun ; Jhon Cockburne off Or- meftoun ; George Brown off Colftoun ; James Sandelandis off Cru- vy ; Baillie off Lamyngtoun ; Sir James Hamiltoun off Crawfurde ; Jhon Knycht j Arbuthnot off that Ilk. To thefe names are fubjolned, by the perfon who fent the lift to Secretary Cecil, the following words : * \Vith mony utheris, bar- ' ronis, freholdarlsj and landit men, but (i. e. without) all ar- *■ mour.' Nm I P E N D 1 X. 431 No. Xir. (Page 58.) Original draught of the Minute of the firfl Meeting of the Parlia- ment 1579. PARLI AMENTUM excellentiffimi Principls Jacobl fexti, Sco- torum Regis, tentum et inchoatutn, apud Edinburgh, vigefuno Oc- tobris, anno Domini millefimo quingentefimo feptuagefimo nono, per dominos commifTarios I'libfcriptos fpecialiter conftitut. viz. Co- linum Comitem Ergadie, Dominum Campbell et Lome, Cancella- Tium, Andream Arolie Comitem, Conftabulariiun, Hugonem Comi- tem Eglijitoun, Dominum Montgomery, Johannem Coir.item Mon- trofie, Dominum Ghrame, reverendifTimos et vencrabiles in Chrifto patres, Adamum Epiicopum Orchaden, Alexandrum Eplfcopum Brechinen, Robertum Commendatarium Monafterii noftri de Dum- fermeling, noftrum fecr^tarium, Robertum Commendatarium de Deir, Alexandrum Commendatarium de Culrofs, diledtos noftros familiares, magiftrum Davidem Borthwick de Lochhill, Robertum Creyghton de Eliok, advocatos ; Alexandrum Clerk de Balbirnev prepofitum burgi de Edinburgh, una cum Andrea Comite de Ar- role conftabulario, Roberto Keyth de Canterland, deputato maref- calli, magiftro Ollvero Coult, deputato vicecomitis de fcdinburgh, et Andrea Lyndefay adjudicatore nunc juratis et admifEs, SeQis voca- *is, curia affirmata. The fuittis being callit, and in the firfl: the fherreff of Edinburgh, thir perfonis underwryttin cornperit perfonalle, and utheris be their adtornays and procuratoreis as followis : Edia. 432 N D X. Edin. principal! comperand per- fonalle. The laird of Innerleyth. The laird of Roiling. The laird of Mercheinftoun. The laird of Kilbalberton, Thir of the fhereffdome of Edin, principal be adtornays and pro- curatoreis. The Lord Borthuick. The laird of Edmeftoun. The laird of Nethrie MerflielL The laird of Reidhall. The Lord Rofs. The laird of Gordonifhall. George Haliburton, for his lands of Gogar. The laird of Dammahoy, for his lands of Dammahoy and Lib- bertoun. Andrew Howefon, futter for William Dowglas of Cramont regis. The commifleris of Edin. be A- lexander Clerk of Balbirnie, provoft, and Henrie Neilbett. The Shereff of Edinburgh, within the conftabularie of Hadingtoun. Thir perfonis comperand perfon- Thir perfonis comperand be ac= alle. tornays and procuratoreis, George Hamiltoun, for his landis The laird of Colftoun. of Bancrief. The laird of Hirdmeftoun, The laird of Blance. The laird of Cranftoun. The laird of Bafs. Robert Lawfon of Humble, Jonct Gibfone and James Adame- foun comperand for the landis of Goldinflanes^ The APPENDIX. 433 The commlfleris of Dunbar, "William Bonkle. The commifleris of Hadingtoun, Johne Cockburne. The commifleris of Northberwick, Thomas Lawder. The commifleris of Lauder per llo. Home. The SherefTdome of Beruick. Thir perfonis comperand perfon- Thir perfonis comperand be ac- alle. tornays and procuratoreis. The laird of Gockburn of that Ilk. The laird of Svvintone. The laird of Wyliecleuch. The SherefF of Roxburgh. Thir perfonis comperand perfon- Thir perfonis comperand be ac- alle. tornays and procuratoreis. Johne and James Henefleis, com- mifl'eris for Jedburgh. ^ The SherefF of Selkrig. Thir perfonis comperand perfon- Thir perfonis comperand be ac- alle, tornays and procuratoreis. John Murray, adlornay for the fhcreff of Selkrig, with the fuitt-roll. John Mitchellhill, commifler for the burgh of Selkrig. I i i The 434 APPENDIX. The Shereff of Pelblis. Thlr perfonis comperand perfon- Thir perfonls comperand be ac- alle. tornays and procuratoreis. Adam Dickefone, for his landis Andrew Chifliolme, for his landia of Rofkuviefield, and third of Aikerfield. pairt landis of Smythfield. The laird of Troquhair. Johne Cockburne, for his landis The laird of Horfeburgh. of Glennis. The laird of Pirne. The laird of Romanois comperit John Bowhay, for his landis of for the fhereflF of Peiblis, and Bonytoun. producit his fute-roll. Gilbert Twedie commifler for Peiblis. The SherefF of Lanerk. Thir comperand perfonalle. Thir comperand be adornays. The laird of Dunrod. The laird of Cambufnethane.. The laird of Quhyttfurd. The laird of Ley. The laird of Jervifwode. Sir James Hammiltoun. Rolland Mure for Lanerk. The Shereff of Dumfreiis. Thir perfonls comperand perfon- Thir perfons be aftornays, alle. Patrick M'Brair proveft, and commifTer for Dumfreis, prefent The Stewart ojf Annerdaill. The APPENDIX. 435 The Stewart of Kirkulbrytt. Thir perfonis comperand perfon- Thir perfonis be aitornays. alle. Harbert Gledftancs commiflerfor Kirkulbrytt. The SherefF of Wigtoun. The Shereff of Air. Thir perfonis comperand perfon- Thir perfonis be adtornays. alle. Thomas Taitt of Knockindaile. The laird of Auchinlek. Johne Lockhart and Edward Wal- Jace, commifTeris for Air. The Baillzie of Carrick. Thir perfonis comperand perfon- Thir perfonis be adlornays. alle. The laird of Lochnorreis comper- and be Richert Bynning, his ac^ tornay. The Eaillzie of Conyghame. Thir perfonis comperand perfon- Thir perfonis be adornays. .alle. The laird of Dunlop. Mure fen. for his landis of Mak- behill, be Air. I i i 2 The 43^ APPENDIX.. The Shereff of Ranfrew. Thir perfonis comperand perfon- Thir perfonis be a£tornays. alle. The Shereft" of Bute. Thir perfonis comperand perfon- Thir perfonis be adkornays. alle. The ShereiF of Dumbartane. Thir perfonis comperand perfon- Thir perfonis be acSlornays. alle. The Shereff of Striveling. Thir perfonis comperand perfon- Thir perfonis be adornays, alle. The Shereff of Lynlythgow. Thir perfonis comperand perfon- Thir perfonis be adornays. alle. Andro Kerr commifler for Lyn- David Dundasfbcreff-deputtjpre- lythgow. fentit his fuit-roll.. The Shereff of Perth. Thir perfonis comperand perfon- Thir perfonis be adlornays. alle, William Fleming, 7 ■r,- ■ n \y^° Penh. Dioneis Cjonqueror, j The E N D I X. The Stewart of Straithernc. 437 Thir perfones comperand perfo- Thir perfones be adtornays. nalle. The Stewart of Monteith. Thir perfones comperand perfo- Thir perfones be adornays. nalle. The Sherefl" of Clackmannan. Thir perfones comperand perfo- Thir be adornays. nalle. The Shereff of Kinrofs. Thir perfones comperand perfo- Thir perfones be adornays, nalle. The SherefF of Fyff. Thir perfones comperand perfo- Thir perfones be adlornays. nalle. James Lathrifk,deputt for the fhe- The Lord Sinclar. fefF of Fyff, producit his fuit James Hamiltoun for himfelf, role. and Jeane Difchingtoun, his fpous, for his landis of Kil- brachmont and utheris. Robert Ferguifone cominifler of Innerkeideing. David Paterfoun commifler of Coupar. Mr David RufTell for Sandan^ deris.. William: 438 APPENDIX. William Bouflle for Craill. Mr Thomas Beinftoun for Pit- tenweme. John Bofwel for Klngorne. The Shereff of Forfer. Thlr perfones comperand perfo- Thir perfones be adtornays. nalle. Alex^ Scrymgeor for Dunde. Johnne Traill for Forfair. David Perfoun for Arbroith. George Petrie for Montrofs. The Shereff of Klncarne. Thir perfones comperand perfo- Thir perfones be a<3:ornays. ..nalle. The Erie Merchell comperand be Robert Keith of Canter- land, producit his fute role, and ane a<2:ornay for his haill landis. The Shereff of Aberdeine. Thir perfones comperand perfo- Thir perfones be adornays. nalle. Gilbert Meinzies, proveft, for Aberdeine. Mr Thomas MalyfToun for Kin- tor. The Appendix. 439 The Shcreff of Bamff. Thir perfones comperand perfo- Thir perfoncs be aclornays. nalle. The Shereff of Elgin and Forefs. Thir perfones comperand perfo- Thir perfones be adlornays. nalle. Johne Annand. James Game for Elgin, and proteftitt rex^e. W*". Wauch commiffer for For- refs. The Shere£F of Name. The Shereff of Crummertie. Thir perfones comperand perfo- Thir perfones be adornays^, nalle. The Shereff of Innernefs. Thir perfones comperand perfo- Thir perfones be adornays, nalle. James Kinrofs commifTer for Innernefs. No. 440 APPEND No. XIII. (Page 60.). Comm'ijfion frojn the Freeholders of the Shire of Ayr to Sir j^ohn Coch^ rane and Sir John Cunyn^ham^ 168 1. W E barrones and freeholders within the fhereffdom of Air, un- der fubfcryveing, confidering that there is ane parliement to be hol- den att Edinburgh upon the tuentie-eight day of July inftant, and ■wee, conforme to the call givne to us be William Earle of Dumfreis, IberefF principal of the faid fhereffdome, who had order from his Majefty's privie counfell, having mett this day for elecfting commif- fioners within the faid {hereffdorne, for: attending the forefaid par- liement, and being confident off the fidelitie and caire off our com- miffioners after fpecified, have unanimoufly eledl, nominat, and cho- fene, and be the tenor heirof eleds, nominats, and choifles, Sir John Cochrane of Ucheltrie, and Sir John Cunyngham of Lamberttoune, knights, our commifTioners for us, and in our names, giveand, granteand, and committeand to tTiem, and aither of them, our full, free, plaine power, expres mandement, and charge, to repair to Edinburgh, or qr it fall hapne them to fitt the forfaid day, and their, and att all other dyatts that fhall hapne the faid parliement to meit, and ay and wheill the final end and cloafe yrof, to meit with the re- mander members of parliement, and to treat, deale, voyce, and con- clude, in all matters that fliall hapne to be hanaled at the faid par- liemcnr, and feverall mcittings yrof, ay and wheil the cloafe of the fameine, for the glory of God, happienes, and profperitie of the Ki;nge's Majelly, and wcill of this nattione, ficklyk, and als freillie in all refpeds as any other commiffioner of the feveral fhyres with- in A P P E N D I X» 44.1 in tills rcalme does, promelfing to hold firmc and ftablc all and qt- Ibmever thinges our faids commiffioncrs in the prcmifles laufullie docs. In teftimonic qrofT (thir prefcntis, writcn be Fergus Plouftounc wrytei in Air) we have fiibfcryviie thir prefcntis with our handes, at Air, the fcvcnth day of Julii, jaivj & fourfcoir ane ycircs. « The above commifllon is fubfcribed by forty-three gentlemen, and by " Jo. MafToun, notar publick, clerk to the above writ- *' en coniilhone." No. XIV. (Page 63.). Minute of Parliament y Ochber 26. 1669. OUR Sovereign Lord, and eftates of parliament, having con* fidered the report of the committee for the eledions of commiflion- ers, concerning the two commilfions granted in the fhirtiffdome of Stirling, do find, that neither of the eledions have been formal, and conform to the adls of parliament, but that both a4)pear to have been partially carried on ; and therefore his Majefty, with advice and confent of his eltates of parliament, doe appoint a new eledtion to be made of commiffioners for that fliire ; and for that end, or- dains the fheriff-clerk to give information to all perfons who, be a£t of parliament, are capable to vote in the eledion, or to be elect- ed commiffioners, to meet at Stirling upon the fourth day of No- vember next to come, and that there, at that tyme, they make choile. of one of their own number to be their prcfident, and then to pro cced to the eledlion of commiffioners to the parliament, confr Kkk 442 APPENDIX. to the laws of the kingdom. And ii is hereby declared, that non- refidence fhall not be an exception why any (otherwife capable) naay not vote in the eledion, or be elected commiffioner. Forafmuchas diverfe queftions have arifen in the election of com- miffioners from the fhires to the parliament, Whether fuch heretois, and others, who, be law, are capable to vote in the e!e£lion of com- miffioners, or to be eledled, being non-refidenters within the fhire, fhould be admitted as capable to vote in the eledlion, or to be elect- ed ? For clearing whereof, his Majefly, with advice and confent of his eftates of parliament, finds and declares, That non-refidence fhall not be an exception why any (otherways capable) may not vote in the eledlion, or be eleded coramiffioners.. No. XV. (Page 77.). Order to the Direclor of the Chancery to ijfuc Writs or Precepts, THE King's Majefty, with the advice of his council, has or- dained an parliament to be proclaimed to begin in the burgh of Edinburgh, the day of for ordering, treating, and concluding of fuch great matters as in* ftantly occur concerning the King's grace, the weal of this realm, and the lieges thereof: Therefore, ordains the director of the chan- cery to diredt precepts to all prelates, barons, commifTars, and beal-^ zies of boroughs, and all others our Sovereign Lord's freeholders, within this realm, charging them to compear the faid day and place, for I APPENDIX. 443 for their advice to be had in fuch things as at that time fhall be pro- poned to them. No. XVI. (Page 77.). Precept from the Chancery to a Sheriff or Bailie. JACOBUS, Dei gratia, Rex Scotorum, baUvo fuo de Cowal], et dc- putatis fuis, ialutem: Quia ex avifamento et deliberatione Domino- rum noflri concilii, ordinavimus parliamentum noftrum tenendum apud Edinburgum, et inchoandum cum continuatione dierum, vobis praecipimus et mandamus, quatenus fummoneatis, feu publici fummoneri faclatis, omnes et fingulos cpifcopos, abbates, priores, comites, barones, et caeteros liberetencntes, totius baliae veftrae, et de quoUbet burgo, tres vel qiiatuor, de fufficientioribus burgenfibus, fuflicientem commiflionem habentibus, quod compare- ant coram nobis, didlis die et loco, in dido noftro parliamcnto, una cum aliis regni noflri prelatis, proceribus, et burgorum comraiflariis, qui tunc ibidem propter hoc intererunt congregati, ad tradtandum, concordandum, fubeundum, et determinandum, ea, quae in di<5lo noftro parliamento, pro utilitate regni noftri, et reipublicae tradanda fuerint, concordanda, fubeunda, et determinanda: Et vos fitis ibidem didto die, habentes vobifcum fummonitionis veftrae teftimonium, et hoc breve. Et hoc, fub pena quae competit in hac parte, nullate- nus omittatis. Datum fub teftimonio magni noftri figilli apud Edin- burgum, die anno regni noftri. Balivo de Cozuall, "> pro parliamento. $ K k k 2 No, 444 N D I X. No. XVII. (Page 77.). Special Precept to a Prelate. JACOBUS, Dei gratia, reverendiffimo in Chriflo patri, Archiepifcopo Sandi Andreae, falutem : Quia ex avifamento, et deli- beratione Dominorum noftri concilii, ordinavimus parliamentum no- ftrum tenendum, &c. (ut fupra), vobis praecipimus, et mandamus, quatenus fitis ibidem, dido die, coram nobis, in dido noftro parlia- mento, una cum aliis regni noftri prelatis, proceribus, burgorum commidliriis, qui tunc ibidem propter hoc intererunt congregati, ad tradand. concordand. fubeund. et determinand. ea quae in dido no- ftro parliamento, pro utilitate regni noftri, et reipublicae tradanda funt, concordanda, fubeunda, et determinanda. Et hoc fub pena quae competit in hac parte nullatenus ommittatis. Datum, &c. No. XVIII. (Page 77.); Special TVecept to an Earl, or Lord of Parliamenf, JACOBUS, Dei gratia, diledo confanguineo noftro Comite de falutem : Quia ex avifamento et deliberatio- ne, &c. vobis praecipimus et mandamus, quatenus fitis ibidem, dido die, &£, N D I X. 445 No. XIX. (Page 77.). Proclamation for Callino; a Parliament. 't> At Edinburgh^ the fifteenth day of July ^ one thoifandfix hundred and fxty-nhie. CHARLES, by the grace of God, King of Scotland, England, France, and Ireland, defender of the faith, to all and fundry our good fuhjedls, whom thefe prefents do, or may concern, greeting : Forafmuchas, upon divers great and weighty confiderations relating to the eftablifliment of the quiet and happinefs of this our ancient kingdom in all its interefls, and for the good of our fervice, we do think it neceflary to call a parliament to be held at Edinburgh,, and to begin the nineteenth day of OQober next, at which time our commillioner, fufficiently authorifed and inftructed by us, fhall be prefent ; therefore, we, with advice of the Lords of our privy coun- cil, do hereby require and command all the Lords, Spiritual and Temporal, the Archbifhops and Bifhops, the Dukes, MarquifTes, Earls, Vifcounts, Lords, and our officers of ftate of this kingdom, to be prefent at our parliament the faid day; as alfo, we do require and command all thofe who have right to choofe con:imiffioners for the feveral fhires, to meet within the refpedive fhires at the Michael- mas head court next enfuing, and make their elections according to law ; and ficklike, we require and command our royal boroughs to meet in due time for choofing of their commiffioners, and that the Lords Spiritual and Temporal, and our officers of fiate aforemen- tioned,. 446 A P ? E N D I X. •tioned, commlflioners of fhlres and boroughs, and all other pcrfons concerned, and having intcreft, be prefent at Edinburgh the forefaid nineteenth day of Odober, to keep this meeting of our parhament^ under the pains contained in our acts of parHament made therea- nent. And that all our good fubjeds may have notice of this our royal will and pleafure, we do hereby command our Lyon King at Arms, and his brethren heralds, macers, purfuivants, and meffengers at arms, to make timeous proclamation hereof at the market crofs of Edinburgh, and at the market croffes of the head boroughs of the feveral fhires of this our kingdom, that none pretend ignorance. (Signed) Tho. Hay, Cls. Sii Confilii. No. XX. (I>age 78.). Warrants for Neiv Ek^ions during the Sitting of Parliament, May II. 1703. HER Majeflies High Commiffioner, and the eftates of parlia- ment, confidering that Sir James Murray of Philiphaugh, one of the commifTioners eleded for the fhire of Selkirk to this prefent parliament, is now promoted, by the Queen's Majefty, to be Lord Clerk Regifler, and one of her officers of ftate, therefore, they here- by ordain, and give warrant to the freeholders of the faid {hire, to meet, and eledt another of their number to be commiffioner, to the effedl forefaid, at Selkirk, the i8th day of May inftant, in the ufual manner. May APPENDIX. 447 May 14. 1703. Her Majefly's High CommifTioner, and the eflatcs of parlia- ment, confidcring that the commiffion formerly granted by the ba- rons and freeholders of the fhire of Fyfe, to Robert Douglas of Strathendrie, for reprcfentlng them in this parliament, is now by parliament declared null, have therefore granted, and do hereby grant warrant and order to the fheriff-principal of the faid {hire, and his deputes, to call and convene the barons and freeholders of the faid fhire together, at the ufual place of their meeting, on the 25th of May inftant, to the eflFed they may of new make choife of one to reprefent them, with their other three commiflioners, in this prefent parliament. To which they are hereby impowered; and ordains intimation, in the ufual manner, to be made hereof. No. XXI. (Page 84.). KcitJjs Jccount of an Acl in 1542-3, allcwing the Bible to be read' in the vulgar tongue. THE new dodlrlnes concerning religion had fo far prevailed la Scotland, notwithftanding the feverities ufcd againft the profelfors thereof in the late King's reign, by the influence of the fettled clergy, that, in the very firft parliament holden after his death, by- James Earl of Arran, tutor of the Queen, and governour of her kingdom, there was a propofal offered by the Lord Maxwell, oa the 15th day of March 1542-3, being the fourth of the parliament, for a liberty of reading the Bible in the vulgar tongue : Which pro- pofal was received and approved by the Governour and the Lords of the Articles : And becaufe this wis the firll public ftcp towards a 448 APPENDIX. a reformation of religion, perhaps the reader will not be dlfpleafed to fee the ad inferted in this hiftory, which is as foUoweth : " Anent the writting givin in be Robert Lord Maxwell, in prefens of my Lord Governour and Lordis of Articklls, to be avifit by them, gif the famin be reafonable or not, of the quhilk the tenor followis : It is ftatute and ordanit, that it fall be lefull to all our Soverane Ladyis lieges to haif the haly writ, to wit, the New Tefta- rnent and Auld, in the vulgar toung, in Inglis or Scottis, of ane gude and true tranflatioun, and that thai fal incur na crimes for the baiting and reding of the famin, providing alwayis that nae man difpute or hald oppinzionis, under the painis contenit in the adls of parliament. The Lordis of Articklis beand avifit with the faid writting, finds the famin reafonable ; and therefore thinkis that the fcimin may be ufit amangis all the lieges of this realm in cure vul- oar toung, of ane gude, true, and juft tranflatioun, becaufe there was na law fhewin nor producit in the contrair, and that nana of our Soveraine Ladyis lieges incur ony crimes for haifing or reding of the famin in form, as faid is, nor fall be accufit therefore in time coming, and that na perfonis difpute, argow, or hald oppinzionis of the famin, under the faidis painis contenit in the forefaidis adis of parliament." It feems this draught of an ad for having and reading the Holy Scriptures in the vulgar language had not been fo privately concert- ed, but that the clergy had got notice of the defign ; and, there- fore, immediately after reading of it, the Archbifliop of Glafgo-w^ then chancellor of the kingdom, offered to the parliament thefe fol- lowing reafons why the ad flaould not be pafTed into a law at that time, viz. The APPENDIX. 449 ■" The quhilk clay, ane maifl: Reverend Fader in God, Gawine Arclihlfliop of Glafgow, chanceler, for himfelf, and in name and behalfe of all the prelates of this realm, beand prefent in parlia- ment, fchevv, That there was an a<3; inftantly red in face of parlia- ment, that the haly writ may be ufit in our vulgar toung, and that na crime fuld follow thereupon throw the ufing thereof, and alegit in the faid adl that the three eftates concludit the famen, whilk he, for himfclfe and the remanent of the prelates, being prefent as ane of the three eftates of the faid parliament, diflaffentit thereto fimpli- citer, bot apponit thaim thereto unto the tyme that ane provincial counfel might be had of all the clergy of this realm, to avile and conclud thereupon gif the famen be neceffar to be had in vulgar toung, to be iifit amang the Quein's lieges or not, and therafter to fhaw the utter determination that fal be done in that behalfe ; and thereupon alkit inllrumentis." But, notwithftanding this proteftation, the Lord Maxwell's bill was certainly enabled, feeing that, within two days after the par- liament had rifen, the Governour, who found himfelf beft fupport- cd by the adverfaries of the eftabliflied religion, thought fit to caufe iffue out a proclamation, for notification to all the lieges of the adt: concerning the Holy Scriptures. Here follows the prdcrs for the proclamation : " GUBERN^TOR, Clerk of reglfter, it is our will, and we charge yow, that ye gar proclaim this day, at the marcat crois of Edinburgh, the adis maid in oure Soverane Ladyis parliament, that fuld be proclamit and gi- vin furth to hir lieges ; and in fpeciale, the adt made for having the New Teftament in vulgar toung, with certain additionis, and ther- efter gif furth the copyis thereof, attentick as efferis to all thaim that will defyre the famyn, and infert this oure command and L 1 1 ■ charee 450 APPENDIX. charge in the bukis of parliament, for zoure warrant. Subfcrivit with our hand at Edinburgh, the ninteenih day of Marche, the teir of God fifteen hundred and ferty-two zeris. JAMES G. No. XXI. (Page 96.). A(5l of the Parliament 1663, cap. i. jin anent the ivay and manner of the EleSlion of the Lords of the Jlrticles. THE which day, the Earl of Rothes, his Majefty's Commif- fioner, reprefented to the eftates of parliament, that it was his Ma- jefties exprefs pleafure, that, in the conflitution of parliaments, and choofing of Lords of the Articles at this feffion, and in all time coming, the fame form and order fhould be kept which had been ufed before thefe late troubles, efpecially in the parliament holden in the year 1633. And the manner of eledion of the Lords of Articles at that time being now feen and confidercd by the eftates of parliament, they did, with all humble duty, acquiefce in his Ma- jefties gracious pleafure thus fignified unto them : And, in profecution thereof, the clergy retired to the exchequer chamber, and the nobi- lity to the inner houfe of the feifion, (the barons and burgefles keeping their places in the parliament-houfe). The clergy made choice of eight noblemen to be on the articles, viz. the Duke of Hamilton, the Marquifs of Montrofe, the Earls of Errol, Marr, Eg- lintoun. APPENDIX. 451 lintoun, Haddingtoun, Callendar, and Annandale ; and the nobility made choice of eight bifhops, viz. the Archbifhops of San£l An- drews and Glafgow, the Biftiops of Edinburgh, Galloway, Dun- keld, Breichcn, Caithnes, and Iflcs ; which being done, the clergy and nobility met together in the inner exchequer-houfc, and, ha- ving fliown their eledlions to others, the pcrfons eleded, at Icafl; fo many of them as were prefcnt, flayed together in that room, whilll all others removed ; and thev joyntly made choice of eight barons, and eight commiflioners of boroughs, viz. Sir John Gilmour of Craigmillar, prefident of the feffion, Sir James Lockhart of Lee, Sir James Foulis of Collingtoun, Sir Archibald Stirling of Garden, Sir Peter Wedderburn of Gosfoord, Sir Thomas Hamiltoun of Preflon, Murray of Polmais, and William Scott of Ardrofs, Sir Robert Murray, provoft of Edinburgh, Mafter John Paterfon of Perth, Alexander Wedderburn of Dundee, Gilbert Gray of Aber- deen, Duncan Nairn of Stirling, Andrew Carftairs of Sancl An- drews, Andrew Glen of Linlithgow, and William Cunnyinghain of Air, burgefles ; and then reprefented the whole elections to his Majefties CommilTioner, who being fatisfied therewith, did then, with the clergy and nobility, return to the parliament-houfe, where the lift of eight bifhops, eight noblemen, eight barons, and eight burgefles, being read, it was approven ; and his Majefties Commif- fioner did add to the lift the ofiiccrs of ftate, and appointed the Lord Chanccllour to be prefident in the meetings of the Lords of the Articles, who are to proceed in difcharge of their truft, in preparing of laws, ad:s, overtures, and ordering all things remitted to them by the parliament, and in doing every thing elfe which, by the law and pradick of the kingdom, belonged, or were propper to be done by the Lords of Articles at any time bygone. L 11 2 No. 452 APPENDIX. No. XXII. (Page 106.). State of the Reprefentatives from England to the Houfe of Coiiunons. FORTY counties in England fend each two members . 80 Twenty-five cities, of which Ely fends none, but London four, and all the others two . . . . . 50 One hundred and fixty-feven boroughs fend each two . 334. Other five boroughs, viz. Abingdon, Banbury, Bewdly, High- am-Ferrers, and Monmouth, fend each one . . ^ The Cinque Ports, and their dependencies, fend . . 16 Two univerfities fend each two ... . . 4. Twelve counties in Wales fend each one , . 12 Twelve boroughs, one each ... , . 12 No. E N D I X. 453 No. XXIII. (Page io8.). Lijl of all the Royal Boroughs in Scotland^ as divided into their feve- ral Claffes or D'l/lrids ; in zuhich the precedence of the Boroughs of each diflriEt is obferved^ according to the order in "which they ivere called in the rolls of the Parliament of Scotland. Edinburgh Diftria I. Tain Diftria 5. Perth Dingwall Dundee Dornoch St Andrews Wick Coupar Kirkwall Forfar 2. Invernefs 6. Anftruther Eafter Nairn Pittenweem Forres Grail Fortrofe Anftruther Weftei 3- Elgin Kilrenny BanfF 7- Dyfart CuUen Kirkcaldie Kintore Bruntifland Inverury Kinghorn 4' Aberdeen; 8. Stirling Montrofe Inverkeithing Brechin Dunfermline Aberbrothcck. Culrofs Inverbervie, Queensferry Diftria 454 N D X. Diflrid 9. Glafgow Dumbarton Renfrew Rutherglen 10. Haddington Jedburgh ' Dunbar North Berwick Lauder 11. Linlithgow Selkirk Lanerk Peebles Diftrid 12. Dumfries Kirkcudbright Annan Lochmaben Sanquhar 13. Wigton Whithorn New Galloway Stranrawer 14. Ayr Irvine Rothfay Inverary Campbelton. No. XXIV. (Page I2 2.>. Prcclamation for Ele^ing and Sumimning the Sixteen Peers of Scot' land. G. R. WHEREAS we have, in our council, thought fit to declare our pleafure for fummoning and holding a parliament of Great Bri- tain on the day of next enfuing the date hereof; In order, therefore, to the eleding and fummoning the Sixteen Peers of Scotland, who are to fit in the Houfe of Peers in the faid parliament, we do, by the advice of our privy Appendix. 4^5 privy council, ifllic forth this our royal proclamation, flridly char- ging and commanding all the Peers of Scotland to afTcmble and meet at Holyroodhoufe, in Edinburgh, en th6 day of next enfuing, between the hours of twelve and two in the afternoon, tq nominate and choofe the Sixteen Peers to fit and vote in the Houfe of Peers in the faid enfuing parliament, by open cledion, and plurality of voices of the peers that fhall be there prcfent, and of the proxies of fuch as fhall be abfent, (fuch proxies being peers), and producing a mandate in writing, duly figned before witnefles, and both the conftituent and proxy being qualified according to law. And the Lord Clerk Regifter, or fuch two of the principal clerks of the feffion as fhall be appointed by him to officiate in his name, are hereby refpedively required to at- tend fuch meeting, and to adminifter the oaths required by law to be taken there by the faid peers, and to take their votes j and, im- mediately after fuch election made, and duly examined, to certify the names of the Sixteen Peers fo cleded, and fign and attefl the fame in prefence of the faid peers, the eledlors, and return fuch cer- tificate into our high court of Chancery of Great Britain. And we do, by this^ our proclamation, flrldly command and require the Provoft of Edinburgh, and all other the magiftrates of the faid city, to take fpecial care to preferve the peace thereof during the time of the faid election, and to prevent all manner of riots, tumults, difor- der, and violence. And we ftridly charge and command, that this our royal proclamation be duly publilhcd at the market-crofs of Edinburgh, and in all the county towns- of Scotland, twenty-five days at leaft before the time hereby appointed for the meeting of" the faid peers to proceed to fuch eledtion. Witnefs ourfelf at Weftminfter, the day of in the year of our reign, God Save the King ! Proclamationy 45(5 APPENDIX. .Proclamation, on the death of one of the Sixteen Peers, for ekning another. a R. Whereas Earl of who was duly eleded, and returned, to be one of the Sixteen Peers of Scotland, to .fit in the Houfe of Peers, in the prefent parliament of Great Bri- tain, is fince deceafed ; In order to the eleding another peer of Scot- land to fit in his room, we do, by the advice of our privy council, iflue forth this proclamation, ftridtly charging and commanding all the peers of Scotland to affemble and meet at Holyroodhoufe, in Edinburgh, on the day of next, between the hours of twelve and two in the afternoon, to no- minate and choofe another peer of Scotland to fit and vote in the Houfe of Peers of this prefent parliament of Great Britain, in room pf by open eledlion, &c. as in the other. No. XXV. '(Page 122.). Form of a Proxy by a Peer. I by virtue of the power allowed by a£t of parliament to the peers of Scotland, to make proxies for nominating and appointing peers whom they fhall judge fitted to fit and vote in the Houfe of Peers of the parliament of Great Britain, and APPENDIX. 457 and In obedience to his Majefty's proclamation, charging and com- manding all the peers of Scotland to meet at Holyroodhoufe, in Edinburgh, on next, to nominate and choofe the Sixteen Peers for Scotland, to fit and vote in the Houfe of Peers of the enfuing parliament of Great Britain, do, by thefc prefents, no- minate and appoint to be my proxy or attorney, to the efFe£l under written, giving, granting, and committing full power and commifTion to my faid proxy, for me, and in my name, to appear at the enfuing meeting of the peers of Scotland, at Holyroodhoufe aforefaid, for eleding Sixteen Peers of Scotland to fit and vote in the Ploufe of Peers of the enfuing [lar- liament of Great Britain, and to do every thing relating thereto, as fully, and in every refpecSt, as I might or could do myfelf, were I perfonally prefent. In witnefs whereof, I have fubfcribed thefe prefents, wrote on flampt paper by at the day of before thefe witnefles, &c. No. XXVI. (Page 122.). Form of a Signed Lift by a Peer. r by virtue of the powers allowed by a Charter of Erenion of the Borough of Ayr, WILLIELMUS, Dei gratia, Rex Scottorum, epifcopis, ab- batibus, comitibus, baronlbus, jufticiarlis, vicecomltlbus, praepofitis, miniftrls, et omnibus probis hominibus totius terrae fuae, clerlcis et O o o 2 Jaicis, A'j^ APPENDIX. laicis, faliitem : Scinnt prefen'cs et fiituri me, ad novum caflellum mcum fuper Are *, biir;^um fecifle, et eidem burgo, et burgenfibus jnels in eo manentibus, omnes libertates, et omnes liberas cqnfuctu- dines conceflifle, quas alii burgi mei, et mei burgenfes in eildem manentes, per regnum meiim habent: Affedi etiam in eo quolibct die Sabbati diem fori : Conccfli etiam burgenfibus qui illuc venerint ad burgum m-eum inhabitandum, et ibi fedentes et manentes eruni, ut q.uieti fmt a tolneo, et omni alia confuetudine, per totam terram meani, de dominicis catallis fuis: Prohibeo itaque firmiter, ne quis in regno jneo ab aliquo illorum tolneum, aut aliquam aliam confuetudinem de dominicis cattallis fuis exigat, fuper meam plenariam forisfadlu- ram : Conceffi etiam eidem burgo meo, et burgenfibus meis, qui in bur- go illo fedentes et manentes erunt, quinque nummatas terrae, quae pertinent ad villam de Are, per diviias inferius fcriptas, fcilicet de Inverdon, furfum ufque in Innerpolecurteran, et de Innerpolecur- teran, furfum ufque ad Crottun, et fic per Curcetan ufque ad caput Curcetan, et fic a capite Curcetan afcendendo per Boghefkin, uf- que ad Monedamdereg, et fic a Monedamdereg per ncum, uf- que in Monemethonac, et a Monemethonac per ficum, ufque ia Polecleuan, et fic per Polecleuan ufque in Lochfergus, et a Loch- fergus defcendendo ufque in Doufhat, et a Doufhat defcendendo per ficum ufque ad rivulum ex orientali parte Drumnefaneill, et a rivulo Drumnefaneill defcendendo ufque in ficum ex occiden- tal! parte rivuli illius, et fic per ficum ilium ufque in Poleclon- coranguli, et fic per Polecloncoranguli ufque in Doufijoch, et inde ufque in Pollemulin, et fic per Pollemulin defcendendo, ufque in Are, et fic per Are defcendendo, ufque in mare : Csnceffi, etiam burgenfibus meis ibidem manentibus, ut cum quolibet plaenario tof- to fuo habeant fex acras terrae, quas de bofcho exterpaverint infra predidas • The Caftle of Ayr was built by this Prince in 1 197; Chr. Mel. 181. Ford. viii. 59- APPENDIX. 477 predidas quinque nummatas terrae, ad faciendum Inde commodum fuum : Redcndo annuatim mihi,pro quolibet tofto, et fex acris terrae illi adjacentlbus xii denarios : Mando itaque, et firmitcr precipio, ut omnes homines qui cum mercantiis fuis, ad vcndcndum et cmen- dum ad ilium pracdidum burgum menm vcnerint, firmam pacem ,mcam habeant, et foruni exerccant, et in bene et pace rcdeant. Pre- cipio etiam firmiter, ut apud Mach et Kairnbught, et Loudun, et Croflancloun, et Lachcalplne, tolneum, et aliae confuetudines que burgo debentur, dentur, et recipiantur : Prohibeo itaque firmiter, ne quis tolneum, aut aliquam aliam confuetudincm, quas predidto bur- go meo de ratione facere debet, ultra predidas divifas afportare pre- fumat, fuper meam plcnariam forisfaifluram. Si quis vero tolneum, vel aliquam aliam confuetudinem praedi<£ti burgi mei, ultra praedic- tas divifas, aiportare praefumpferit, precipio firmiter, ut omnes homi- nes infra praedidas divifas manentes, fint auxiliantes fervientibus meis, ad adquirendum jus meum, et ad capiendum et attachiandum ilium qui tolnea, aut aliquam aliam confuetudinem ad praedidlum burgum meum pertinentem, ultra praedidtas divifas afpoitaverit, vel afportare contenderet. Teftibus Florentio eledo Glafguen. can- cellario meo, AValtero et Wi!l° capellanis meis, Philippo de Valen. camerario meo, Roberto de Lundon filio meo. Will" de Bofch, et Hugone clericis meis, Wiir de Valin, Thoma de Colvil, Reginaldo de Crawford, apud Lanarc xxi die Maii«. No. 478 APPENDIX. No. XXXIX. (Page 351.). yudgment of the Privy Council of Scotland refpeSling the Borough of Stirling. A N E N T the petition given In to the Lords of his Majefty's privy council be John Burcl, late bailie of Stirling, and Robert Gibb merchant there, for themfelves, and in name and behalf of the true Proteftants and Prefbyterians within the faid burgh of Stirling, and Sir John Dalrymple of Stair, younger, his Majefty's Advocate, for his Highnefs intereft, againft Hew Kennedy, prefent pretended prc- voft of Stirling, Alexander Chryftie, John M'Naw, and James Keir, bailies, Patrick Thomfon deacon of the flefhers, and Thomas Cuthberd deacon of the glovers, and the reft of the town-council of the faid burgh, fhewing. That, where the continuation of any fett of people in the office of magiftracy within any of his Majefties royal boroughs for longer than a year, and the inverting the ancient cuftom and ele£lion of magiftrates and officers, and the threatening and menacing of any of the electors, and the endeavouring to pre- occupy and fubdue the crafts and their deacons, by taking them obliged not to vote but for fuch and fuch perfons, and the contempt of the Lords juft commands, are crimes of a hye nature, and fevere- ly punilliable, and particularly by the 29th a£t, parliament 5th, James IIL whereby it is ordained, that the officers in burghs be not continued furder then a year, and that the old council fliould firft: choife the new, and then both old and new choife the officers ; and by the 108 a£l, pari. 14. Ja. IIL it is appointed, that the eledion of officers in burghs be without partiality or mafterlhip, efpecially when APPENDIX. 479 when the continuation of fuch perfons in the magiftracy is mana- ged and carried on by perfons folemnly engaged upon oath not to continue, or be continued in the magiftracy above the fpace of two years, and when the fame is done contrair to an a£t of counfell of the faid burgh, after afolemn decifion of the Lords of Sejfion^ finding that the i()th a6l of parliament ^th, y antes III. ivas not in difuetude^ and therefore have found and declared, that no perfon fhould be con" timicd by eleclion in the magifiracy of the faid burgh longer than tivo years at once ; neverthelefs it is of verity, that, upon a reprefenta- tion made l)y the petitioners againft Hew Kennedy, pretended pro- voft of Stirling, and his accomplices, as men that had purchafed, by letters and recommendations of them to the late King James, the places of iruft, and government of the town, as moft proper and fit inftruments to carry on his Popifta and arbitrary powers that were then on foot, and who thereafter moft unwarrantably and il- legally, for continuing themfelves in the magiftracy and govern- ment of the faid place, did not only hinder and marr the free elec- tion appointed by the meeting of eftates, to have been made by the community of the faid burgh, in the month of June laft, but alfo by evil practices, obtained themfelves to be continued in their for- mer ufurpaiion, notwithftanding of the feveral protcftations taken by the petitioners againft them thereanent, whereupon they did ex- hibit and prefent to the eftates of parliament ane bill of complaint againft them, to which they ftill adhere: As alfo, they have of new, at this laft eledion, perfifted in their former, and worfe evil prac- tices, to obtain themfelves perpetuate, and continued in the magi- ftracy and government of the burgh, with ane exprcfs, avouched, and declared defign, that no Prefbyterian fhould ever enter in the government with them, to the manifeft wrong of the fellow ci- tizens, and the ftirring up of an fadtious tyranny, to the ruin of the faid burgh, and the prejudice alfo of the fecurity and policy of the whole kingdome ; whereupon the Lords, by their ad, of date the 21II 4Bo APPENDIX, 2ift of September laft, after confideration of the forefaid reprefen- tation, did ordain the faid magiftrates to allow the petitioners to fee the lift of the perfons that were to be chofen magiftrates, counfel- lors, and deacons of crafts at Michaelmas laft, and alfo allowed them to be prefent the time of the faid ele(3:ion, and take inftru- ments againft any illegal procedure therein, in cafe the fame (hould be ufed by the prefent magiftrates in the eledion, that the Lords might take the fame to their confideration, as the faid adt, of the date forefaid, in itfe'f more fully bears ; according to which ordi- nance, the petitioners John Burd and Robert Gibb did appear the day of the faid eledion, in prefence of Hew Kennedy, pretended provoft of Stirling, Alexander Chryftie, John Macnavv, and Jsmes Keir, baillies, James Ruffell, late dean-of-guild, James Baird coun- fellor, and others prefent, and made their objections and protefta- tions upon the feveral grofs illegalities there pradifed, as inftiu- ments taken thereupon therewith produced will teftify. Where- upon, and conform to the Lords ordinance, and not to mention all the particular mifcarriages that there occurred, the petitioners hum- bly report and rcprefent, that the procedure of the faid eledion was rnoft illegal, in fo far as, two, That, albeit the petitioners did tnne- oufly intimate and Ihew to the faid Hew Kennedy, pretended pro- voft, the council's order, appointing ihem to lee their iifts, and that they had retjuired him lo give the fame, yet they were ihiited and put off, and had no communication thereof till within an hour of inaking the e'edion, which was plain illuhon, in contempt of the council's authority, 2^/0, And albeit there be ane exprefs ad of council of the faid burgh, dated the izd of September 1679 years, that none of the magiihates thereof fliould continue longer than two years at once, and that each couiifellor, at his admiffion, fliould fwear not to infringe the faid ad, and neitrier to continue himlelf, nor ro vote to the continuation of any other, which ad is ftill in good obfervance ; and this fame pretended Piovoll Kennedy, Al -x- aiider APPENDIX. 481 ander Chryflie, John Macnaw, and James Keir, the prcfcnt pre- tended bailies, and Patrick Thomfon deacon of the flcQiers, and Thomas Cuthberd deacon of the glovers, the prefcnt pre- tended deacons have, ch fa^o^ fworn the faid oalh, as appears by the books of the faid burgh ; and, though this was rcpre- fented by the petitioners at the faid eledion, yet the faid pre- tended provoll and bailies, and all that voted for them, did noways regard the fame, but have manifeftly broke the faid ad ; and the- faids pretended provoft and bailies plainly perjured themfelves, in fo far as this is now the fourth year that the faid Hew Kennedy, pre- tended provoft, doeth moft wrongoufly continue in the faid office, and moft of the pretended bailies and counfellors have, contrary to their oath, voted for their continuation. 3//0, Becaufe there being a decreet of declarator given and pronounced by the Lords of Sef- fion, inforocontradtSiorio, upon the 27th of January 168 1, anent the rights and privileges of the faid burgh, they exprefsly therein found, that the aft James III. parliament 5. cap. 29. ' Ordaining, * That officers in burghs be not continued farder then a year, was- * not in difuetude, and, therefore, that no perfon fhould be coa- * tinued, by election, in the magiftracy of the faid burgh longer * than two years at once ;' as the faid decreet infifted upon and ob- jeded at the faid eledtion, bears : Yet neverthelefs, contrary to the faid a£t of parliament and the fiid decreet, the faid Hew Kennedy, pretended j^rovoft, is continued in the fourth year, as faid is, where- by it is manifcft, that the forelaid ele61:ion was mofl: illegal and un- warrantable. 4^0, Becaufe the forefaid eledtion was no ways free, in fua far as the faid Hew Kennedy, pretended provoft, with his ac- complices and his emiffaries, did threaten the eledors, particularly James Grame, the conveener, and manifeftly endeavoured to pre- occupy and fuborn the crafts, and their deacons, and others, by ta- king them obliged not to vote for any Prefbeteryan, but to vote for. their leittis, or as they flaould hear them vote ; which accordingly B P. p wass 482 APPENDIX. was clone, and the freedom and legality of the faid eledlon thereby quite fpoiled. And, Iqfily, that, albeit be the forefald a'^ of parlia- ment, and decreet of declarator following thereon, with the conftant and uninterrupted cuftomes aad fett of the burgh, it be provided, that the old council being filled up, ftiall firft choife the new, and that then both old and new fliall choife the magiftrates and officers, which Is alfo confirmed by the dayley practice of all the eledions fince fyne ; yet it is mod certain, that, at this laft elec- tion, the old council, without filling up the vacancies therein, did firft choife the new counfellors, and then, getting them to their mind, did aflbciate the new counfellors with themfelves, and voted for the fupplying of the four vacancies in the old council, that fo the whole might be better packt to carry on their forefaid illegal eledlon : And albeit the late and prefent magiftrates and council of the faid burgh were obliged, and did take the oath of alledgance, yet the famen was done and taken by them, and allowed and ap- proven by the adminiftrators thereof, to be taken by them by an particular qualification and reftridlion to their own mind and ex- planation ; to wit, that they were no longer bound by that alled- •gance to their prefent Majefties then they were able to prote I X. No. XL. (Page 360.). Warrant for a Poll Eledion in the Borough of Anftru- ther Wefter. At the Court of St James's^ the 26th day of June 1767, PRESENT, "The King's mofl excellent Majefly in Council. WHEREAS there was fome time fince prefented to his Ma- jefty, at this board, a petition of Robert Robb, and others, burgeffes, heritors, and inhabitants, of the borough of Anftruther Wefter, in North Britain, praying, That his Majefty would be gracioufly plea- fed to grant warrant for making an eledtion of magiftrates and coun- fellois for the faid borough, by a general poll of fuch refident bur- geffes, heritors, and inhabitants, paying, and liable in public bur- dens within the fame; and likewife a petition of Robert Hunter, and other burgeffes and heritors of the fame borough, praying, That his Majefty would be graciouHy pleafed to order a warrant in council for reftoring the magiftracy and town- council of the faid borough, by a poll eledion of the burgeffes refident in the burgh, and herl- tjors bearing part of the public burdens, excluding honorary burgef- fes, fervants, and penfioners of the town : His Majefty having taken the fame into confideration, and received the opinion of his Majefty's Attorney General, the Lord Advocate of Scotland, and his Majefty's SoUicitor APPENDIX. 487 Solllcitor General, thereupon, is pkafed, with the advice of his privy council, to order, That, for the reftoring the peace and good govern- ment of the faid borough, the inhabitant burgcfles of the faid bo- rough, who refided there on the i8th day of September 1765, and heritors who, on the faid i8th day of September 1765, were liable in, and did bear a part of the public burdens of the faid bo- lough, (excluding honorary burgeflcs, fervants, and penfioners, of the town, or of any corporation within the fame, and others who are now, or fliall be, under any legal incapacity of ading at fuch eledion), be, and they are hereby authorifed and commanded to af- femble themfelves at the council chamber, within the faid borough of Anftruther Wefter, at ten o'clock in the forenoon, upon Wed- nefday the 15th day of July next, with continuation of days, of which the fherifl-depute of Fifc-fhire is hereby required to. give pu- blic notice eight days before the day of eledion, then and there to eledt fit pcrfons, (not exceeding fifteen in number, being the num- ber elected at Michaelmas 1764), properly qualified in terms of the fet and ufage of the fiid borough, to be magiftrates and town coun- fellors of the fame ; and that the perfons fo to be eleded by a majo- rity of the burgefTes refident in the faid borough, on the faid iSth day of September 1765, and lieritors aforefaid, fliall continue from that time magiftrates and counfellcrs till the ufual time of eledtion in the current year, 1 767 ; and that all perfons claiming to vote as burgefi'es, do give their burgefs tickets, or authentic extradts from the records of this borough, of their admiffion to the freedom there- of; and that the faid heritors do likewife give in certificates, under the hands of the colledor of the public burdens of the faid borough, or other fatisfaflory evidence, of their being liable in, or bearing a part, on the faid i8lh September 1765, in refped of the lands and tenements upon which they fliall claim a right to vote at the poll eledion, and that they are then liable in, and do bear a part of the public burdens of the faid borough of Anftruther Wefter, fix days. at 488 APPENDIX. at lead before the day of eledion, to the faid (hcriff-depute, or h'i3 clerk, that their names may be called before the eledion : And that the fherifF-depute of Fifefliire, (within which the borough lies), the fheriff-depute of Perth-fhire, and the fheriff-depute of Mid-Lothian, being the two adjoining counties to Fife-fhire, or any two of them, be, and they are hereby authorifed and required to attend, overfee, and dired:, fuch eledion, according to law, and the rules ufed to be obferved in fuch cafes, and to form an authentic inftrument there- upon under their fubfcription manual, to be reported to his Majefty in council, for his royal confirmation ; and that they do adminifter to the ele£tors, before they be admitted to poll, the oaths appointed by law to be taken in Scotland, by the ele£lors, at ordinary eledions of magiftrates, and likewife the oath againft bribery and corruption, jf required by any perfon having a right to vote at the faid eledtion. Of all which the perfons aforenamed, and all others whom it may concern, are to take notice, and pay due obedience hereto. No. XLI. (Page 360.) Precept from a Sheriff to a Borough, A. B. Efquire, fheriff-depute (or fubflitute) of the county of to the magiflrates and town-council of the borough of "Whereas, by a v.-rit of eleilion to the parliament to be holden at- Weftminfter on the day of direded to me, and bearing tefe the day of I. am commanded, that, of every royal borough- APPENDIX. 489 borough of tlie aforcfald county, I freely and indlfierently caufe to be elected one commifTioner, to eled one burgcfs of the moft difcrect and fufTicient, for the clafs or diflridt, according to the form of the ftatutcs tliereupon made and provided, as in the faid writ, at more length, is contained : Herefore, I require and ordain you, that, with all convenient fpeed, ye freely and indiflerently eledi one commif- fioner, (in the fame manner as you was in ufe to eledl commiffioners to the parliament of Scotland), in order to eled a burgefs for the clafs or diftrl£t of boroughs whereunto your borough does belong, of the more difcreet and fubilantial men ; and that ye order the faid commiflioncr, fo to be eledled by you, to repair to the prcfiding borough of the faid clafs or diflridt, upon the day of (being the thirtieth day from the tejie of the faid writ), and then and there to eledt the faid burgcfs to parliament, according to the form of the ftatutes thereupon made and provided, and in terms of the faid writ. Given under my hand and feal, at the day of feventeen hundred and years, and of his Majefty's reign the year. No. XLII. (Page z^;^.). CommiJJion from a Borough to a Co7nmiJ[ioner or Delegate to vote for a Burgefs to ferve in Parliament. I N a council of the borough of holden in the court-houfe thereof, being the ordinary place where the coun- cil ufes to fit, the day of Q^q q one 490 APPENDIX. one thoufand feven hundred and years ; The which day, the magiftrates and council of the faid borough of being convened, in obedience to a precept direded to them by Efq; fherifF- depute of the Iheriffdom of of date the day of requiring them to eled a commiffioner for the faid borough, as they ufed for- merly to ele£l a commiffioner to the parliament of Scotland, and ordering the faid commiffioner to meet within the town-houfe of the borough of being the prefiding borough of the clafs or diftrid, upon the day of at twelve of the clock in the forenoon, with the reft of the com- miffioners chofen for the feveral boroughs of the faid diftrid, and there to vote for and eled a burgefs out of the difcreeteft and moft fufficient, freely and indifferently, for reprefenting the faid diftrid in the enfuing parliament of Great Britain, to be held at Weftmin- fter upon the day of next, by a writ direded to the ffieriff of the fhire of bearing date at Weftminfter, the day of laft ; The faid magiftrates and cQuncil being all qualified conform to law, and having heard read the ad of parliament againft bribery and corruption, did unanimoufly, (or by a majority), eled and choofe, and hereby eled and choofe whom they teftify to be a man fearing God, of the true Proteflant religion, now publicly profeffed, and authorifed by the laws of this realm, expert in the common affairs of this borough, and a burgefs thereof, their very lawful and undoubted commiffioner, to the effed under written,, giving, granting, and committing, to him, their full power, for them, and in their names, and upon their behalf, to meet and convene within the faid town-houfe of as being the prefiding borough of the clafs or diftrid of boroughs, whereof this borough is one, upon the faid day of APPENDIX. 491 of Inftant, with the reft of the comminioners chofen for the feveral boroughs of this diftrid, and there to vote for and eledl a burgefs of the faid clafs or di(hi£t, out of the difcreetcfl and moft fufficient, freely and indifferently to reprefent the faid diftri£l in the parliament of Great Britain, appomtcd to be held at Weftminfter the faid day of next, promifing to hold firm all and whatever things their faid com- miflioner does in the premiffes ; and ordain the clerk to give out an cxtradl of the above commiflion, and to affix the feal of the bo- rough thereto. Extraded forth of the council record, and the feal of the borough is hereto affixed by me, (Signed) Clerk, No. XLII. (Page 378.). hidenture between a Sheriff and a Clerk of a prefiding Borough. THIS Indenture, made at the borough of the day of one thoufand feven hundred and years, and of the reign of our Sovereign Lord, 8cc. the year, betwixt A. B. Efq; fheriff-depute (or fuhflitute) of the fliire of ' on the one part, and C. D. common clerk of the borough of and clerk to the cledion of a burgefs to ferve in parliament for theclafs or diftrid after mentioned, fpecial- ly appointed to make the return of the faid eledion, conform to the ftatutes made on that behalf, on the other part, witnefleth, that, by virtue of his Majefty's writ of eledion, bearing tejle the day of laft, direded to the fheriffof the faid fhire of and to the fheriffs of the fhires of and and of the faid fheriffs, their fcveral precepts thereupon, direded to the boroughs of for choofing each of them a commiffioner or delegate, to the efied Qjj q 2 . under- 492 APPENDIX. underwritten, and ordering the refpeQive commiflioners to meet at the faid borough of as the prefiding borough for the time, of the clafs or diftridt of boroughs above mentioned, upon the day and date of thefe prefents, being the thirtieth day after the tejle of his Majefty's writ of eledion aforefaid, and to choofe a bur- gefs for the faid diftrid to reprefent them in the enfuing parUament, to be holden at the city of Weftminfter upon the day of next : The commifFioners chofen for the boroughs aforefaid, being this day met in the council-houfe of the faid bo- rough of the prefiding borough at the faid eledlon, did, by an unanimous vote (or by a majority of votes) of the faid commiflioners, who produced commiflions duly authenticated, free- ly and indiiferently choofe and ele£l E. F. Efquire, a burgefs of the borough of to attend and ferve in the enfuing parlia- ment of Great Britain, for the faid clafs or diftridt of boroughs a- bove mentioned, giving and granting to the faid E. F. full and fuf- ficlent power for himfelf, and the commonalty of the faid clafs or diftrid, to do and confent to thofe things which then and there fhall happen, by the common council of the kingdom, (by the blefling of God), to be ordained upon the affairs mentioned in the faid vi'rit. In witnefs whereof, to the one part of thefe prefents remaining with the faid A. B. Efq; to be annexed to, and returned with, his Majefty's writ of eledion, direded to the fheriff of the faid ftiire of he the faid A. B. and C. D. have fet their hands and feals ; and to the other part remaining with the faid C D. for the ufe of the di- flrid of boroughs before mentioned, the faid A. B. has alfo fet his hand and feal, place, day, month, year of God, and King's reign aforefaid *. No. • When a burgefs is to be chofen to fupply a vacancy happening during the courfe of a parliament, there is neceflarily an alteration in the fonn of the flieriff's precept, of the commiflions granted by the feveral boroughs to their commiffioners or delegates, and of the indenture between the flierifl' and the clerk of the prefiding borough. N D I X, 493 No. XLIII. (Page 397.). Commijfion to John Bell to the Parliament for the Borough of Glaf- goiv, 1 68 1. B E it knoune to all men be thir prefent Ires, us the proveift^ baillies, and counfell of the burgh of Glafgow : Forfuameikle as the King's mod excellent Majeftie hes, by his proclamatioune, given at Whythall the eight of Junil laft, having indytted ane parliament to be holdin att Edinburgh ye twentie-eight of Julii jaivi, &c. eightie- ane yeares, does requyre and command all Archbifchops, Duks, Marqueifes, Earles, Vifcounts, Lords, and Officers of Stait to be put and attend that dyett, and all the fchirreffs in the rexive Ihyres, and their deputs, to call and convein all the frieholders in the rexive fhyres, to the end, that, according to ye iavves and adls of parlia- ment, eledions may be made of fitt perfones to be commiflioners for the faid parliament j as alfo, the royall burrughs to mack choyfe of commiiTioners accordingly, and them, and all perfones having intercft, to attend the faid parliat, under ye paines conteined in the lawcs made thereanent, as the faid proclamatioun beires : Wher- for, and in obedience to the faid proclamatioun, to have nominated, conftituted, and appointed, as we the faid maglftrats and counfell of ye faid burgh of Glafgow nominat, conftitut, and appoynt John Bell, prefent proveifl; of the faid burgh of Glafgow, our lauli com- miflloner for the famyne burgh to the faid parliament, giving, granting, and committing to him our full, frie, plaine power, ex- prefs bidding, mandament, and charge for us, and in our names to meit and convein with ye remanent commiflioneis of parliament att the 494 APPENDIX, the faid burgh of Edinburgh the fald twentle-eight day of Julli n'lxt, and there to fitt, treat, vott, and conclud upon all and everie held, poynt, and artlckles fall happin to be proponed in the faid parlia*^, in fua far as may concerne the honor and faifFtie of ye King's moft excellent Majeftie, ye good of his fervice, and the peace of this his Majefties kingdome, and generallie all and fundrie uyr things neid- full to be done, to doe and exerce yranent, holding firme and ftable all and qtfomever our faid commifTioner does in the premiffes. In witnes qrof, thir pntis are fub' be George Anderfone, our com- moune toune-clark, att our command, att Glafgow this twentie-fyft day of Junii jaivi, &c. and eightie-ane yeares, the commoune feall of office of the fd burgh is heirto affixit. (Signed) G. Andersone. The feal is affixed, and is perfectly diftind:. No. XLIV. (Page 401.). Letter by King Charles 11. to the Royal Boroughs ^ dated July 3. 1674. Charles R. TRUSTY and well beloved, we greet you well, as we have, upon all occafions, fince our happy reRauration, given teftimony of our care to maintain the jufi: right and priviledges of all our good fubjedts of that our ancient kingdom, fo we are refolved particular- ly to maintain and fupport our royal burrows in their immunities ; and being informed, that, of late, an innovation hath been brought in amongft them, by eledting commiffioners, and fending them from feveral burghs to ferve in parliament, conventions, and at their own particular APPENDIX. 495 particular and general conventions and meetings, who are not actual refidenters within thefe burghs commiflionating them, nor bearing proportional charges with them, or fuch as can lofe or gain in any of their concerns, which, as we are informed, are diredlly contrair to the ancient conftitution of the burghs, and to many of their a£ls \- Therefore we have thought fit to require you to take fpecial care that your ancient cuftom concerning this matter be revived and maintained, and the like abufes to be prevented for the future ; fo we bid you heartily farewell. Given at Hamptoun Court the tliird of July 1674, and of our reign the twenty-fixth year. No. XLV. (Page 403.). ^H of the Convention of Royal Boroughs in July i6y^, THE general convention of boroughs having taken to their fe-^ rious confuleration the many abufes and inconveniencles that has happened to the eftate and interefts of the royal burrows, in eledt- ing commifTioners to parliaments, conventions of eftates, and to their own general and particular conventions and meetings, fiich perfons as are not merchants, trafficquers, refidenters, bearing common bur- den with the reft of the inhabitants, and who cannot lofe nor gain in the concern of the burrows, which, as it was contrair to many of their ads, and- particularly to the ads of burrows, holden at Edin- burgh the 15th of July 1574, and to the ad at Couper the 3d day of May 1586 years, and to the ad at Glafgow the ift day of July years, and to fcveral other ads of burrows, and to the ancient and primitive conftitution of the burrows by their firft eredion, fo likeways it is dcftrudive to their intereft, which is to be an intire: and 496 APPENDIX. and unanimous body among themfelves, making a tlilrd diftlndt e- ftate of the kingdom, without being mixt vvitli perfons of another rank or quality, than of the merchant eftate, who ufually carries on rather collateral defigns, than the direct, true, and folid interefl: of royal burrows, whereby, t-hey become divided, and lofes their chief interefl: and fl:rength, which confifts in their unanimity, and confe- quently the contempt and mine of the burrows follows, as too fad experience manifefls : Sicklike, taking to their ferious confideration his Majefties princely care and zeal for the prefervation of the pri- viledge of the royal burrows, contained in his lafl: gracious letter direded to their general convention at Stirling, of the date the 3d of July 1674, requiring them, that they take fpecial care that their forefaid ads anent the faid matter may be revived and maintained, and the like abufes prevented for the future : Therefore the faid general convention, by thir prefents, revives all preceding ads of burrows, ordaining commiflioners for parliament, convention of e- flates, and to the general and particular meetings of the burrows, to be of perfons conform to the qualifications forefaid, and that in all the heads, points, and claufes of the faid ads, which for brevities fake are holden as herein repeated ; but alfo of new ftatutes, enads, and ordains, in all time coming, and which is to be obferved as an inviolable rule, conform whereunto all future eledions fhall be made, that no perfon (hall be eleded or chofen commiffioners by any of the royal burrows to particular conventions of eftates, and to the particular and general meetings of the burrows, but fuch perfons who are merchants, traffickers, prefent refiden- tcrs within the burgh commiflionating them, and who bears common burden with the refl of the inhabitants, and are fuch perfons who can gain and lofe in the concerns of the burrows : De- claring, likeas it is fpecially declared, that all eledions of commif- fioners to particular conventions of eftates, and to the particular and general meetings of the burrows, made of perfons not qualified, as aforefaid, APPENDIX. 497 aforefald, to be, ipfofaHo^ void and null, and of no force, Arength, nor efFedt in time coming ; as likeways declaring, that every pcrion who fliall vote for fuch illegal and unwarrantable eleiflions, ihall lofe the freedom of the burgh where he is a burgefs and inhabitant ; and further certifying, that every particular perfon accepting of fuch a commillion not being qualified, fhall be lyable in pain and penalty of I GOO merks as oft, and fua oft as they tranfgrefs this prcfent a(St, and for the which fine and penalty they fhall have no relief from the burgh, but fhall pay the fame out of thtir own proper means and eflate. And for the better and more pundual performance and execution of this prefent a£l, the convention ordains, that this claufc fhall be added to the oath de fiddly which is to be taken of every burgefs of every royal burgh within the kingdom, at his admif- fion to be a counfellour of their refpedive burghs, viz. that he fliall not, in any time coming, vote nor confcnt to the choofing of any perfon to be commiflioner from the royal burrows to parliaments, conventions of eftates, and to the general and particular meetings of burrows, but fuch perfons as are qualified in manner forefaid : And: further, ordains their common agent prefent or to come, to raife letters of horning hereupon, for charging the haill royal burrows of this kingdom to make their eledions of commifTioners of parlia- ments, conventions of eflates, and to their general and particular conventions and meetings, when the famen fhall occur, conform to the qualifications forefaid, under the pain of rebellion, and putting of them to the horn, if they failzie : And ficklike, ordains the faid agent to raife other letters of horning, charging every particular perfon who fhall hereafter vote for fueh unwarrantable elections, or fuch as fhall accept of fuch unwarrantable commifTions, not being qualified, as faid is, to make payment to him, for the common ufe of the bur- rows, the forefaid penalty of a thoufand merks, as oft and fua oft as they fhall tranfgrefs thir prefents, and that under the pain of re- R r r bellion,, 498 APPENDIX. bellion, and putting of him to the horn, whereanent thir prefents iliall be a warrant. No. XL VI. JProclatnation for Diffol'ving a Parliament of Great Britain^ and de- claring the Callmg of another^ George R. WHEREAS we have thought fit, by and with the advice of our privy council, to diflblve this prefent parliament, which ftands prorogued to the day of we do for that end publifh this our royal proclamation, and hereby dilTolve the faid parliament accor- dingly ; and the Lords Spiritual and Temporal, and the knights, citizens, and burgefles, and the commiffioners for fhires and bo- roughs, of the Houfe of Commons, are difcharged from their meet- ing and attendance on the faid day of And we being defirous and refolved, as fbon as may be, to meet our people, and have their advice in parlia- ment, do hereby make known to all our loving fubjeds, our royal will and pleafure to call a new parliament ; and do hereby further declare, that, with the advice of our privy council, we have this day given order to our Chancellor of Great Britain to iflue out writs in due form for calling a new parliament, which writs are to bear /^^ on the day of APPENDIX. 499 <5* and to be returnable on the day of next. Given at our court, &c. the day No. XL VII. Warrant for IJfuing Parliamentary Writs. GEORGE the Third, by the grace of God, &c. To our rlghr trufty and well beloved Lord High Chancellor of our kingdom of Great Britain, greeting ; Whereas we, by the advice of our privy council, for certain and urgent caufes concerning us, the good eftate and commonwealth of this our realm, and of the Church of England, and for the good order and continuance of the fame, have appointed and ordained a parliament to be holden at our city of Weftminfter, the day of next enfulng, in which cafe, diverfe and fundry writs are to be ifTued forth, under our great feal of Great Britain, as well for the prelates, bifhops, and nobility, of this our realm, as alfo for the eledion of knights, citizens, and burgefles, of the feveral counties, cities, and boroughs and towns of the fame, to be prefent at the faid parliament, at the day and place forefaid ; whereupon we will and command you forthwith, upon the receipt hereof, and by warrant of the fame, to caufe fuch, and fo many, writs to be made, and fealed, under our great feal, for the accom- plifhing of the fame, as in like cafes hath been heretofore ufed and R r r 2 accuftomed, . 500 APPENDIX. accuftomed. And this bill, figned with our own hand, fliall be, as well unto you, as to every fuch clerk and clerks as fhall make and pafs the fame, a fufficient warrant or difcharge in that behalf. Given, &c. No. XLVIII. Writ of Summons to a Peer. GEORGE the Third, &:c. To his moft noble coufin, Duke of greeting: In as much as, by the advice and confent of our privy council, we have ordain- ed our parliament to be held at our city of Weftminfter on the day of next enfuing, by reafon of fome arduous and urgent affairs concerning us, the (late and defence of our king- dom of Great Britain, and Church of England, to have conference and treaty with you, and the prelates, bifhops, and peers, of our faid kingdom, we firmly enjoin you, upon the faith and allegiance in which you are bound to us, that, taking into confideration the weightinefs of the faid affairs, and the imminent dangers, laying afide all excufe, you be perfonally prefent on the faid day and place with us, and the prelates, bifliops, and peers, aforefaid, to treat and give your advice on the faid affairs ; and this you are on no wife to omit, as you love us, our honour and fafety, and the defence of the afore- faid kingdom and church, and the difpatch of the aforefaid affairs. Witnefs ourfelf at Weftminfter, the day of in the year of our reign. No. APPENDIX. 501 No. XLIX. Proxy by a Peer to another Peer to a6i and vote for him in the Houfe of Lords. OMNIBUS Chrlfti fidelibus ad quos p'^fens fcrip*. pervenerit, falutem; Noveritis me prfat. per licentiam fereniflimi Dni nri Georgli Secundi, Dei gra. Mag. Britan. Franc, et HIbnie Regis, fidei defenforis, &c. a parliament, fuo tent, apud Weftmr 22° die Novrs, anno regni did:i Dni Regis decimo 70 fuffi- cienter excufat. abefle, nominare, ordinate, et conftituere dile"M>f-4>«"<»"'*<>" ■<>"-<>—<»•■-<►- ■■^►-•■<>—<>—<»*'"<>-*<>-"--<>""«>-"4^—4>"»4>-"0-"<>-'<>"-<>-'^>*'K>"<>. -4 ►--O- -<►"-<►- JAMES I. Parliament III. 1425. Cap. 52. That all Prelates, Baronnesy and Freeholders y fall compeir perfonaUlc in the Parliament, T T E M, it is ordained and flatute, that all Prelates, Eries, Baron- ■*■ nes, and Freehalders of the King, within the realme, fen they ar halden to give prefence in the Kingis parliament, and general coiin- cel, fra thine foorth, be halden to compeir in proper perfon, and not be a procuraiour ; but gif the procuratour alleage there, and prove, a lauchfull caufe of their abfence. S f f All prelate?, peers, and freeholders to give pre- fence in par- liament per- fonally : Not by pro- curator, without a lawful caufe of abfence. JAMES s^§ N D X. JAMES I. Parl. VII. 1427. Cap. lor. Th^t Small Baronnes and FreehaUers needis not to come to Parliameutes. Small ba- rons, &c. need not come to par- liament or general councils. Commiflion- ers of fhires, to be chofen, in each two or more, ac- cording to its largenefs. Clackman- nan and Kin- rofs, one each. Who are to choofe a common fpeaker of the parlia- ment : To have full power of hearing and determining all caufes : And to have cods off their conflituents, and their rents, pro- portionally. AH prelates, peers, and ban. rents to be fpecially fummoned. ITEM, the King, with confent of the haill councel, generallie hes ftatute and ordained, that the fmall baronnes and free tennentes neid not to cum to parliaments nor general councels; fwa that of ilk fchirefdome there be fend, chofen at the head court of the fchiref- dome, twa or maa wile men, after the largenes of the fchirefdome ; out-tane the fthh-cfdomes of Ciackmannaa and Kinrofle, of the quhilkis ane be fende of ilk ane of them, the quhilk fall be called Commiffares of the Schire ; and be their commiffares of all the Schires iall be .chofen an wife man and e.^pert, called the Commoun Speaker of the Parliament, the quhilk fall propone all and fmdrie needis and caufes perteining to the commounes, in the parliament or general councel j the quhilkis commiffares fall have full and haill power of all the laif of the fchirefdome, under the witneffing of the fchireffis feale, with the feales of diverfe baronnes of the fchire, to heare, treate, and finallie to determine all caufes to be proponed in councel or parliament : The quhilkis commiffares and fpeakers fall have collage of them of ilk fchire that awe compeirance in parlia- ment or councel; and of their rents, ilk pound fall be utheris fallow to the contribution of the faid codes. All Bifhoppes, Abbottes, Priors, Dukes, Erles, Lordes of Parliament, and Ban-rentes, the quhilkis the King vvill, be received and fummound to councel and parliament be his fpecial precept. JAMES E N D I X. 509 JAMES ir. Parl. XIV. 1457. Cap. 75. That na Freehalder be conjireinzied to the Parliament^ bot he be of tiventy Pounds ivoorth of Land, ITEM, the Lordes thinkis fnecdcful, that na freehalder that No freehol- . fie, under haldis of the King, under the funime of twentie pounds, be con- 20 pounds, ftreinzied to cum to the parliament, or general councel, as for pre- to"cornc"to fence, bot gif he be ane baronne, or els be fpecially, of the Kingis p; payment and fiiti.sfa(f>.ion, unlefs a decreet of declaratour, or vo^ Kuitar redemption, renoundatlon, or reu^ationj be produced j and that appeirand heirs, being in poflelfion, by virtue of their predecciTors infeftment, of the holding, e.xtent, and valuation fore- faid, and likewife jiferenters, and hufbands, for the freeholds of their wives, or having right to a liferent by the courtefie, if the faids liferenters clalme their vote, otherwayes the fiar (hall have vote 5 but that both fiar and liferenter fhall not have vote, unlefs they have dlftln£t lands, of the holding, e.'ctent, or valuation fore- faid ; but that no perfon infeft for relief, or payment of fums, flull have vote,"but the granters of the faids rightS; their heirs or fuccelTors. Llkess, his Majefty ordains the whole freeholders of each fhire and (lewartry, having cledion of commiffioners, to n\eet and con- veen at the head burghs thereof, and to make up a roll of all the freeholders within the fame, whether lying v/ithin ftewartries not having commifTjoners, or baliiaries of royalty, or regality, or with- out th'2 farac, upon the firfl; Tucfday of May next to come, ac- cording as the fanie fliall be inftru^led to be of the holding, ex- tent, or^ valuation forefaid, containing the names and defignatlons of the fiars, lifercnters, and hufbands, having right to vote for the fame, in manner above written, and exprcfTing the extent, of va- luations of the faids freeholders, v/ith power to continue or adjourn their meetings, untill the faid roll for clcdions be fully compleat. Lllteag, the faids freeholders fnall meet and conveen at the head burf^hs of the faid (hires and ftewartrics, rcjpc^ive, at the Michael- mas head court, yearly thereafter, and Audi revife the faid roll for eledlon, and make fuch alterations therein as have occurred fincc their lafl: meeting, from time to time; v^rhich roll for eledlion fhall be infcrt in the Iheriflf or ftewart books, particularly appointed for that end, according as they (hall be ftated each Michaelmas court: And A r, N D I 5^7 And at ilic cledion of comminioncrn, cither at the Michaelmas court, or at the calling of parliament, or convention?, the fads freeholders fhall meet and convecn at the head burgh of the fliire, or ftewartry, in that room where the flierifT or ftewart court uleth to he lield, be- twixt mid-day ami two afternoon ; which room fivill be patent to them, and ail others removed but whom they call ; and the fir ft or fecond commiifioner laft elecled, or, in tlieir abfciice, thefheriiTor ftewart-clerk, fliall a(k the votes, Who fliall prelidc? and, Who fhall be clerk to the meeting? And in cafe any alteration have happened in the faid roll of cledions fince the laft meeting, the perfons then coming to have right to vote fliall he infert in the roll ; and there fhall no objedion be admitted againfl any infert in the faid roll, as faid is, but what fhall be propounded before they begin to vote to eledlion : And if the ohjedtors fhall not be cleared, and acquicfce, they fhall take inflrumcnts, containing their objedions againft the admitting to, or excluding any perfon from the forefaid roll, And it is hereby declared, that no other objedion fhall be competent in parliament or convention, but what fliall be contained in the inftru- ments taken, as aforefaid: And in cafe objections he made when a parliament or convention is not called, a particular diet fliall be ap- pointed by the meeting, and intimat to the parties controverting, to attend the Lords of ScfTion for their determination, who fhall determine the fame at the faid diet fummarily, according to law, upon fupplicatioM, without farther citation. And it is hereby de- clared, that horning for a civil caufe, or non-refidence, fliall be no fufficient objedion ; but that the minority, being inftantly verified, fliall be a fufllcient objedion, or the not taking the teft appointed by the fixth a£t of this prefent parliament, which is hereby ordered to be fubfcribed by all the voters, in prefence of the meeting, before they proceed to the eledtion, and recorded in the fheriff court-books, and fo returned, with the commifTion, to the clerk of regifter. And if TJij freehol- ders at elec- tions to mpet in the fhcrifF or flcwart- couit room 'twixt niiJ- cl;iy and two afternoon. Manner of proceeding in chcolin;; prefes and clerk, and inferting vo- ters. Noobjeiflions to be admit- ted, uulefs made before beginning to Noobjeflions competent iii parliament, &c. other than ihofc contained in an inftru- ment taken at clcJlion. When the meeting is to appoint the parties a diet, to attend the Lords of Sef- fion for their determina- tion. Horning for a civil canfj, or non-rsfi- dence, no fufficient ob- jection. Minority i>, or not taking the tell be- fore elcdion. 5i8 END! X. Penalties up- on the objec- tions being fuftained by- parliament, or not. The fiieriiFs, &c. to make public inti- mation of the call and diet of parlia- ment, and of the elec- tions. Manner thereof. The heritors, &c. to contri- bute for the commiffion- ers charges and foot- mantles, ac- jcording to their valua- tions. if the perfons objedted againft fhall appear at the parUament, or convention, and inftru6l the right to vote, the objeder fhall pay their expences, and be farther fined in five hundred merks: And if the objection be fuftained in parHament, the obje£ters appearing fhall have their expences, and the party objefted againft: fhall be fined in five hundred merks. And to the cffeQ. that fufficient adver- tifement may be given to all parties having vote in election, who are to eledl at the calling of a parliament, or convention, the fherififs and ftewarts are hereby ordained to make publication of the call and diet of the faid parliament, and convention, and of the diet ap- pointed for eledlion, and that at the head burgh of the fhire or ftew- artry, upon a mercat-day, betwixt ten and twelve in the forenoon ; and, alfo, fhall make the like intimation at each paroch kirk on Sun- day immediately thereafter; which diets for election fliall, at leaft, be twelve dayes before the meeting of parliament, or eight dayes before the meeting of a convention, that the commiftioners eledled may have fufficiency of time to keep the diet of the parliament, or conven- tion. Likeas, his Majefty, with confent forefaid, ftatutes and ordains the whole heritors, liferenters, and wodfetters, within each fhire and fl:ewartry, to contribute for the charges of the commiflloners there- of, according to their valuation, except only thofe who hold off noblemen or bifliops, or lands belonging to burrows royal in burgage ; and alfo to the expences of the foot-mantles. Queen P P E N D I X. 519 Q^EEN ANNE, Parl. L Sess, 4. 1707. Cap. 8. J ^ fettling the manner of EleEiing the Sixteen Peers, and Forty - five Commoners, to reprefent Scotland in the Parliament of Great Jiritain. •OUR Sovereign Lady confidering, that, by the twenty-lecond article of the treaty of Union, as the fame is ratified by an SlCi pafl in this feflion of parliament, upon the fixteenth of January laft, it is provided, that, by virtue of the faid treaty, of the peers of Scotland, at the time of the Union, fixteen flrall be the number to fit and vote in the Houfe of Lords, and forty-five the number of the reprefen- tatives of Scotland, in the Houfe of Commons of the parliament of Great Britain ; and that the faid fixteen peers, and forty-five mem- bers in the Houfe of Commons, be named and chofen in fiich man- ner, as by a fubfequent a£t in this prefent feflion of parliament in Scotland fljall be fettled ; which a<£t is tliereby declared to be as va- lid as if it were a part of, and ingroffed in the faid treaty : There- fore, her Majcfty, with advice and confent of the eltates of parlia- ment, ftatutes, enacts, and ordains, that the faid fixteen peers, who fhall have right to fit in the Houfe of Peers, in the parliament of Great Britain, on the part of Scotland, by virtue of this treaty, fhall be named by the faid peers of Scotland, v/hom they reprefent, their lieirs or fucceflbrs to their dignities and honours, out of their own number, and that by open eledion, and plurality of voices of the peers prefent, and of the proxies for fuch as fhall be abfent, the faid proxies being peers, and producing a mandate in writing, duly fign- cd before witnefTcs, and both the conftituent and proxy being qua- lified according to law ; declaring alfo, that fuch peers as are abfent, being qualified as aforefaid, may fend to all fuch meetings lifts of the Pre.-inibli.-. Twenty- fc- ccad article of union. Sixteen peers for Scotland to Ct in the parliament of Great Bri- tain, to be named by the peers of Scotland out of their own number. Abfonts may- vote by pro- xies. or fend fign- cd lifts. 5^^ E N D I X. In cafe of death or in- capacity of any peer e- leoied, an- other Co be chofen \a his place in the fame man- ner. Of the forty-- five com- moners for Scotland, t'lirty to be chofen by the fhires, &c. and fifteen by the bo- roughs. Each fliire and flewart- ry to have one. Exceptioru In cafe of death or in- capacity of any member, another to be chofen by the fhire, &c. in his place. Edinburgh to have one. And four- teen to be choftnby the com mi Qi on- ers of the o- tjier bo- roughs, -who are divided into fourteen diftrids. the peers whom they judge fitteft, validly figned by the faid abfent peers, which (hall be reckoned in the fame manner as if the parties had been prefent, and given in the fiid lift. And, in cafe of the death, or legal incapacity of any of the faid fixteen peers, that the forefaid peers of Scotland (hall nominate another of their own num- ber in place of the faid peer, or peers, in manner before and after mentioned. And that, of the faid forty-five rcprefentatives of Scot- land in the Houfe of Commons, in the parliament of Great Britain, thirty fhall be chofen by the fhires or ftewartries, and fifteen by the roval borroughs, as follows, viz. one for every Ihire and ftewartry, excepting the fhires of Bute and Caithnefs, which fhall choofe one by turns, Bute having the firft election ; the fhires of Nairn and Cromarty, which ihall alfo choofe by turns, Nairn having the firfl eledion; and, in like manner, the fhires of Clackmannan and Kin- rofs fhall choofe by turns, Clackmannan having the fi.rft eledion. And, in cafe of the death, or legal incapacity of any of the faid members, from, the refpedtive fliires or ftewartries above mentioned, to fit in the Houfe of Commons, it is enacted and ordained, that the fliire or ftewartry who ele£ted the faid member fliall eledl ano- ther member in his place. And that the faid fifteen rcprefentatives for the royal boroughs be chofen as follows, viz. that the town of Edinburgh fnall have right to ele£t and fend one member to the parliament of Great Britain; and that each of the other burghs fhall eleft a commifTioner, in the fame manner as they are now in ufe to eled commiflioners to the parliament of Scotland ; which commif- fioners and burghs (Edinburgh excepted) being divided in fourteen claflTes or diftrids, fhall meet at fuch time and place, within their refpeQive diftrids, as iter Majefty, her heirs, or fucceflbrs, fhall ap- point, and eled one for each diftrid, viz. the burghs of Kirkwall, V/ick, Dornock, Dingwall, and Tayne, one ; the burghs of Fortrofe, Invernefs, Nairn, and Eorrefs, one ; the burghs of Elgin, Cullen, BamfF, Inverury, and Kintore, one; the burghs of Aberdeen, Inver- bervie, N D I X. Sit bervy, Montrofc, Ahcrbrothock, ami Drecliln, one; the burghs of Forfar, Perth, Dundee, Cowpcr, and St Andrews, one; the burghs of Crail, Kih-cnnie, Anflruther-Earter, Aiiflruther-Wefter, and I'it- tenweem, one; tlie I)urghs of Dyfart, Kirkcaldie, Kiiighorn, and Burntilland, one ; the burghs of Inverkeithing, Dunifermling, Qucensfcrry, Cuhofi, and Stirling, one; the burghs of Glafgow, Renfrew, Rutherglen, and Dumbarton, one; the burghs of Hadding- toun, Dunbar, Northberwick, Lawder, and Jedburgh, one ; the burghs of Selkirk, Peebles, r.inllthgovv, and Lanerk, one; the burghs of Dumfries, Sanquhar, Annan, Lochmaban, and Kirkcudbright, one; the burghs of Wigtoun, Nev/galloway, Stranrawer, and Whitc- hcrn, one ; and the burghs of Air, Irvine, Rothefay, Campbeltoun, and Inverary, one. And it is hereby declared and ordained, that, where the votes of the commilTioners for the faid burghs, met to choofe reprefentatives from their fevcral dirtrids to the parliament of Great Britain, fhall be equal, in that cafe, the prcfident of the meeting lliall have a cafting or decifive vote, and that by and attour his vote as a commiffioner from the burgh from which he is fent ; the commiffioner from the eldeft burgh prefiding in the firft meet- ing, and the commiiTioners from the other burghs, in their refpcc- tive dillrids, prefiding afterwards, by turns, in the order as the faid burghs are now called in the rolls of the parliament of Scotland. And in cafe that any of the faid fifteen commiflioners from the burghs fiiall deceafe, or become legally incapable to fit in the Houfe of Com- mons, then the tow^n of Edinburgh, or the diftridt which choofed the faid member, fhall eledl^a member in his or their place. It is always hereby exprefsly provided and declared, that none fhall be capable to ele£t, or be eledted, for any of the faid eftatcs, but fuch as are twenty-one years of age compleat, and proteftant, excluding all Papifts, or fuch, who, being fufped of Popery, and required, refufc to fwear and fubfcribe the formula contained in the third adt, made in the eighth and ninth fedions of King William's parliament, inti- U u u tulcd. Where the votes at elec- tions are e- qual,tliepre- fidcnttohave the calling vote, befide* his own. In cafe of death, or in- capacity, an- other to be chofgn by the town of Edinburgh, crtliedillrift. None but til oie of twen- ty-one years of age, and Proteftants, acd who take the Formula, if required, capable to vote, or bee- Ict^edforanj of the e- ftates. i22 E N D I X. None to be a commoner for any place in Scotland, . but fuch :is were capable to be eleifted to the parlia- ment of Scotland. Upon calling a parliament •writs fhall be direifled to the privy council of Scotland, who are to iffiie a pro- clamationfor elefting fix- teen peers for Scotland. Manner thereof. The names of the peers eleded to be certified to the clerk of the privy council by the clerk re- gifier, &c. and for elec- ting the com- milfioners of fhires, their names tobecertified lulet], ' A£l for preventing the growth of Popery :' And alfo decla- ring, that none fiiall be capalile to elevSt, or be eledled, to reprefent a Ihire or burgh in the parliament of Great Britain, for this part of the united kingdom, except fuch as are now capable, by the laws of this kingdom, to cled:, or to be elefted as commiffioners for (hires or burghs to the parliament of Scotland. And, further, her Majefty, with advice and confent forefaid, for the efFedtual and orderly eledion of the perfons to be chofen to fit, vote, and ferve, in the re- fpcdive houfes of the parliament of Great Britain, when her Majefty, her heirs, and fucceflbrs, fhall declare her or their pleafure for hold- ing the fiift, or any fubfequent parliament of Great Britain, and when, for that effect, a writ fhall be iflued out under the great feal of the united kingdom, direded to the privy council of Scotland, conform to the faid twenty-fecond article, ilatutes, ena£ls, and or- dains, that, until the parliament of Great Britain fhall make further provifion therein, the faid writ fhall contain a warrant and com- mand to the faid privy council to iffue out a proclamation in her Majefty's name, requiring the peers of Scotland for the time, to meet and affemble at fuch time, and place, within Scotland, as her Majefty and royal fuccefTors fhall think fit, to make eledion of the faid fixtcen peers; and requiring the Lord Clerk-Regifter, or two of the clerks of lefTion, to attend all fuch meetings,, and to admini- fter the oaths that are, or fhall be, by law required, and to afk the votes ; and, having made up the lifts in prefence of the meeting, to return the names of the fixteen peers chofen (certified under the fubfcription of the faid Lord Clerk Regifter, clerk or clerks of feffion attending) to the clerk of the privy council of Scotland : And, fick- like, requiring and ordaining the feveral freeholders in the refpedive fhires and ftewartries, to meet and conveen at the head burghs of their feveral fhires and ftewartries, to eled their commiffioners, con- form to the order above fet down ; and ordaining the clerks of the faid meetings, immediately after the faid eledions are over, refpec- tively, N D I X. 523 lively, to return the names of il^e perfons cleded to the clerks of the privy council. And, laftl}\ ordaining the city of Edinburgh to eledl their commifTioner, and the other royal boroughs to eled each of them a commilTioncr, as they have been in ufe to t\c€i commif- fioners to the parliament, and to fend the faid refpedive commii- fioners, at fuch times, to fuch butghs, within their refpedivc di- ftrids, as her Majefly and fuccelfors, by fuch proclamations, fliall appoint; requiring and ordaining the common clerk of tlie refpec- tive burghs, where fuch elcdions Ihall be appointed to be made, to attend the faid meetings, and, immediately after the eledion, to re- turn the name of the perfons fo eleded (certified under his hand) to the clerk of privy council; to the end, that the names of the fixteen peers, thirty commilTioners for fliires, and fifteen commiflioners for burghs, being fo returned to the privy council, may be returned to the court from whence the writ did ilfue under the great fcal of the united kingdom, conform to the faid twenty-fccond article. And whereas, by the faid twenty-fecond article, it is agreed, that, if her Majefly fhall, on or before the firft day of May next, declare that it is expedient, the Lords and Commons of the prefent parliament of England, fliould be the members of the refpedive houfes of the firfl parliament of Great Britain, for and on the part of England, they fliall accordingly be the members of the faid refpedive houfes, for and on the part of England ; her Majefly, with advice and confent forefaid, in that cafe only, doth hereby flatute and ordain, that the fixteen peers, and forty-five commifFioners for fhires and burghs who fhall be chofen by the peers, barons, and burghs, refpedively, in this prefent feffion of parliament, and out of the members there- of, in the fame manner as committees of parliament are ufually now chofen, fliall be the members of the refpedjve houfes of the faid firfl parliament of Great Britain, for, and on the part of Scotland: Which nomination and eledion being certified by a writ under the Lord Clerk Regifler's hand, the perlbns fo nominated and eleded U u u 2 fhall after tieclion by the ckik oi' the meet- ing. Andforclcc- tin^thcconi- niiffiontis of boroufflis. M:inncr ct' eledion. Tiie clf! k of the prcfiding boroughs to cei tify the iVrimei of the perfons elec- ted. The names of the fixteen peers, and forty-five commiirion-. crs, to be re-. turned by the privy council. Manner of elefling the peers and commoners for Scotland to the firft parliamentof Great Bri- tain, in cafe the prefent members for England be coatinued,' 5^4 E N D I X. fhall have right to fit and vote in the Houfe of Lords, and in the Houfe of Commons, of the faid firll parliament of Great Britain. Anno Sexto A N N .E R E G I N iE, Cap. 5. ^n AH for rendering the Union of the tivo kingdoms more entire and complete. The two following paragraphs of this ad relate to the eledions of members of parliament for Scotland. In what manner the forty-five re- prefentatives of Scotland fhall be elec- ted. V. AND for the more uniform and exprefs method of eleding and returning members to parliament, be it likewife further enadted, by the authority aforefaid. That when any parliament fhall, at any time hereafter, be furamoned or called, the forty-five reprefentative^ of Scotland in the Houfe of Commons of the parliament of Great Britain, fhall be eleded and chofen by authority of the Queen's wiits, under the great feal of Great Britain, dire£ted to the feveral ftieriffs and ftewarts of the refpeftive ihires and ftewartries ; and the faid feveral fheriffs and ftewarts fhall, on receipt of fuch writs, forth- with give notice of the time of eledion for the knights or commif- fioners for their refpe£live fliires or ftewartries ; and at fuch time of eledion, the feveral freeholders in the refpedlive ftiires and ftewar- tries fhall meet and convene at the head burghs of their feveral fhires and ftewartries, and proceed to the eledion of their refpedive commiflioners or knights for the fliire or ftewartry ; and the clerks of the faid meetings, immediately after the faid eledions are over, fhall refpedlively return the names of the pcrfons eleded, to the ftieriff or ftewart of the fliire or ftewartry, who fliall annex it to his writ, and return it with the fame into the court out of which the writ E N D I X. S^S writ ifTued : And as to the manner of elcdion of the fifteen repre- fentatives of the royal boroughs, the flieriif of the fhire of Edin- burgh ihall, on the receipt of the writ diredled to him, forthwith diredl his precept to the Lord Provoft of Edinburgh, to caufe a burgefs to be elefted for that city ; and, on receipt of fuch precept, the city of Edinburgh fliall eledl their member, and their common clerk ihall certify his name to the fherifF of Edinburgh, who fhall annex it to his writ, and return it with the fame into the court from whence the writ ifTued : And as to the other royal boroughs, di- vided into fourteen clafTes or di(lri'ing, contained in an ad made in the fixth year of her late Majefty Queen Anne, intitu- led, ' An ad to make further provifion for eleding and fum- * moning fixteen peers of Scotland to fit in the Houfe of Peers in ' the parliament of Great Britain ; and for trying peers for offences ' committed in Scotland ; and for the further regulating of voters ' in elections of members to ferve in parliament ;' whereby it is enaded, that every perfon who fliall refufe to take the oath laft therein before recited, or, being a Quaker, (hall refufe to declare the efled thereof upon his folenin afllrraation, as direded by an ad of pailiament made in the feventh year of the reign of his late Majefty King William, intituled, ' An ad, that the folemn affirmation and * declaration of the people called Qiiakers, fhall be accepted inftead ' of an oath in the ufual form,' (which oath or declaration the flieriff, jirefident of the meeting, or chief officer taking the poll at any eledion ©f APPENDIX. 541 of members to fervc in the Iloufc of Commons for any place in Great Britain, or commiffioners for clioofing burgeffes for any place in Scot- land, at the requeft of any candidate, or other perfon prefent at fuch election, are hereby impowered and required to adminifter ;) fhall not be capable of giving any vote for the eledion of any fuch member to ferve in the Houfe of Commons for any place in Great Britain, or commiflioners to choofe a burgefs for any place in Scotland : On account of which words, fome have pretended to vote in the meet- ings of free eledlions in Scotland, at the choofing of the prcfident and clerk of the meeting, without taking the oath mentioned in the Jaft recited ad, whereby it has happened that rolls of eleftors have been unduly made up, and wrong returns made : And alfo, where- as divers of his INlajcily's good lubjcdls, who have given good con- vincing marks of their loyalty to his royal perfon and government, have fcruplcd to take the faid oath, apprehending that the reference in the faid oath may be conftrued, in fome refpedt, to be iaconfiftent with the eftablifliment of the church in Scotland according to law,, and to a claufe concerning oaths to be impofed in Scotland after the union, contained in an a€t made in the parliam.ent of Scotland, in the year one thoufand feven hundred and fevcn, intituled, ' An aCt ' for fecuring the Proteftant religion, and Prefbyterian church go- * vernment ;' which adl is declared to be a fundamental and efien- tial condition of the treaty of union : To the end, therefore, that the faid fcruples, and all miftakes and divifions on account of the fame may ceafe, be it further enaded and declared by the authority aforefaid, that every perfon who fliall refufe to take the aforefaid oath of abjuration, or, being a Quaker, fiiall refufe to declare the effect thereof upon his folemn affirmation, in manner aforefaid, (which oath and declaration the member laft elcded for any countv or ftewartry in Scotland, or, in his abfcnce, the fijeriff or ftewart's clerk, until a perfon be chofen to prefide in the faid meeting, accor- ding to the diredioiis contained in the twcnty-fTrfl; ad of the third parliameni 542 APPENDIX. parliament of King Charles the Second, held in Scotland, intituled, ' Ad; concerning the eleclion of commiffioners for fhires ;' and, af- ter fuch choice, the perfon fo chofen to prefide, or any perfon cho- fen to prefide in any meeting of any county or ftewartry, there in which rolls for elections fhall happen to be made up, is hereby au- thorifed and required to adminifter, at the requeft of any candidate or other perfon prefent at fuch meeting for election, before or after the choofing of the prefident of the meeting, or making up of the rolls ;) fliall not be capable of giving any vote for the eledion of a prefident of the meeting, making up of the rolls, or of any member to ferve in the Houfe of Commons for any place in Scotland, or commiffioner to choofe a burgefs for any place there : And further, that, by no words in the faid oath or oaths, formerly impofed, con- tained, it is or was meant to oblige his Majefty's faid fubjeds to any ad or ads any ways inconfiftent with the eftablifhment of the Church of Scotland according to law. Anno Secundo GEORGII If. Regis. Cap. 24. Jin ASl for the more effeSiiial preventing Bribery and Corruption in the Ele^ions of Members to ferve in Parliament. WHEREAS it is found by experience, that the laws already in being have not been fufficient to prevent corrupt and illegal prac- tices in the eledion of members to ferve in parliament ; for remedy, therefore, of fo great an evil, and to the end that all eledions of members to parliament may hereafter be freely and indifferently made, without charge or expence, be it enaded by the King's mofl: Excellent Majefly, by and with the advice and confent of the Lords Spiritual and Temporal, and Commons, in this prefent parliament aflembled, N D I X. 543 men to take the follow- ing oath, if demanded. afleinbled, and by the authority of tlie fame, that, from and after ^^'^^"^ r.f ' ■' ■' parhainctit- the twenty-fourth day of June, in the year of our Lord one ihou- fand fevcn hundred and twenty-nine, upon every eledion of any member or members to ferve for the Commons in parliament, every freeholder, citizen, freeman, burgefs, or perfon having, or claiming to have a right to vote or be polled at fuch an eledlion, fhall, before he is admitted to poll at the fame eledlion, take the following oath, (or, being one of the people called Quakers, fhall make the folemn affirmation appointed for Quakers), in cafe the fame fliall be de- manded by either of the candidates, or any two of the elcdlors ; that is to fay, ** I A. B. do fwear, (or, being one of the people called Q].iakers, Eicifior* I A. B. do folemnly affirm) I have not received, or had by uiyfelf, or any perfon whatfoever in truft for me, or for my ufe and benefit, diredlly or indiredtly, any fum or fums of money, office, place, or Employment, gift, or reward, or any promlfe or fecurity for any money, office, employment, or gift, in order to give my vote at this eledlion, and that I have not before been polled at this ele6lion»" Which oath or affirmation the officer or officers prefiding, or ta- Prenjin" cf- king the poll at fuch eledion, is, and are hereby impowered and re- fi«rtoadmi- quired to adminifter, gratis, if demanded, as aforefaid, upon pain forfeiture o£ to forfeit the fum of fifty pounds, of lawful money of Great Bri- tain, to any perfon that fhall fue for the fame, to be recovered, to- gether with full cofts of fuit, by adion of debt, bill, plaint, or in- formation, in any of his Majefty's courts of record at Weftminfter, wherein no eflbign, proteiftion, wager of law, or more than one imparlance, fhall be admitted or allowed ; and if the faid offence fhall be committed in that part of Great Britain called Scotland, then to be recovered, together with full cofts of fuit, by fummary a^on, or complaint before the Court of Seffion, or by profecution^ btfbr.o. 544 D X. Shciii? or o- ther return- ing officer admitting any to be polled, be- fore fworn, to forfeit L. 100. Voters to in- cur the like penalty. Returning officer, after reading the writ, to take the following oath. before the Court of Jufticlary there, for every negledt or refufal fo to do ; and no perfon fliall be admitted to poll, till he has taken and repeated the faid oath in a public manner, in cafe the fame fliall be demanded, as aforefaid, before the returning officer, or fuch others as fliall be legally deputed by him. II, And be it further enacted, that if any flieriff, mayor, bailiff, or other returning officer, fliall admit any perfon to be polled, without taking fuch oath or affirmation, if demanded, as aforefaid, fuch re- turning officer fliall forfeit the fum of one hundred pounds, to be re- covered in manner aforefaid, together with full cofts of fuit; and that if any perfon fliall vote or poll at fuch eledlion, without having firfl; taken the oath, or, if a Quaker, having made his affirmation, as aforefaid, if demanded, fuch perfon fliall incur the fame penalty which the officer is fubje 548 APPENDIX. Anno Septlmo G E O R G 1 1 II. Regis. Cap. i6. An AH for the better regulating the EkSiion of Members to ferve in the Houfe of Commons, for that part of Great Britain called Scot- land, and for incapacitating the Judges of the Court of SeJ/ion, Court of Jufticiary, and Barons of the Court of Exchequer in Scot- land, to be eleded, or to fit or 'vote as Members of the Hoife of Commons. WHEREAS doubts may arife, whether the a£ls of parliament made in hngland, for preventing falfe and undue returns of members to ferve in parliament, extend to that part of Great Britain called Scot- land ; and whereas feveral queftions have arifen concerning the eledlion of commoners to ferve in parliament for that part of Great Britain ; therefore, to obviate fuch doubts, difputes, and queftions, for the future, and for the more effedually preventing returning officers in that part of Great Britain, called Scotland, making falfe and undue returns ; May it pleafe your Majefty that it may be enaded, and be it enaded by the King's moft excellent Majefty, by and with the advice and confent of the Lords Spiritual and Tempo- ral, and Commons, in this prefent parliament afiembled, and by the After ift authority of the fame, that if the clerk of any meeting of freehol- L.Too'pt* ders for the eledion of a commiffioner to ferve in parliament for naltyoneve- ^^^ ^\xt or ftewartry in Scotland, after the firft day of May, one rv i"3_lfG r£» turn. ihoufand feven hundred and' thirty- four, fliall wilfully return to the {herifF or ftewart any perfon, other than him who fhall be duly eleded, or if any other perfon pretending to be clerk, ihough not duly eleded, fhall prefume to ad as clerk, and wilfully to return to the fheriff any perfon as eleded, who Ihall. not be duly eleded by the major part of fuch meeting, the party fo offending ihall, for every fuch offence, forfeit the fum of fiive hundred pounds Sterling, to A END X. 549 to be recovered by the candidate fo elected, to whofe prejudice fuch falfe return is made, in fuch manner as is herein after direded. II. And be it further enaQcd, that every freeholder who fhall claim to vote at any election of a member to ferve.in parliament, for any lands or eftate in any county or ftewartry in Scotland, or who fhall have right to vote in adjufting the rolls of freeholders, inftead of the oath appointed to be taken by an ad: made in the twelfth year of her late Majefty Queen Anne, intituled, ' An ad for the better re- • gulating eledions of members to ferve in parliament for that part * of Great Britain called Scotland,' fhall, upon the requeft of any freeholder formerly enrolled, before he proceed to vote in the choice of a member, or on adjufting the rolls, take and fubfcribe, upon a roll of parchment, to be provided and kept by the fherifF, or ftewart- clerk, for that purpofe, the oath following, which the prefes or clerk to the meeting, either for the enrolment or eledion, is hereby im- powered and required to adminifler ; that is to fay^ " I A. B. do, in the prefence of God, declare and fwear, that the lands and eflate of for which I claim a right to vote in the eledion of a member to ferve in parliament for this county or ftewartry, is adually in my pofrefTion, and do really and truly belong to me, and is my own proper eflate, and is not conveyed to me in truft, or for or in behalf of any other perfon whatfoever- and that neither I, nor any perfon to my knowledge, in my name, or on my account, or by my allowance, hath given, or intends to give, any promife, obligation, bond, back-bond, or other fecurity whatfoever, other than appears from the tenor and contents of the title upon which I now claim a right to vote, diredly or indiredlv^ for redlfponing or reconveying the faid lands and eftate in any manner of way whatfoever, or for making the rents or profits there- of forthcoming to the ufe or benefit of the perfon from whom I have Freeholders, on requeft, to fubfcribe the following oath, inftead of that ap- pointed by the a(fl 12. Annae. -55° N D I X. have acquired the fald eftate, or any other perfon whatfoever ; and that my title to the faid lands and eftate is not nominal or fi£tiiious, created or referved in me, in order to enable me to vote for a mem- ber to ferve in parliament, but that the fame is a true and real eftate in me, for my own ufe and benefit, and for the ufe of no other per- fon whatfoev^r ; and that is the truth, as I fhall anfwer to God." Tn cafe of re- fufal, vote not to be ad- mitted, and name erafed out of the roll. Penalty on falfe fvvear- ing; or fub- o fcribing. III. And that, in cafe he ftiall refufe, if required, to take and fub- fcribe the oath aforefaid, his vote fliall not be admitted or allowed, and his name fhall forthwith be erafed out of the roll of freeholders; and in cafe any perfon (hall prefume wilfully and falfely to fwear and fubfcribe the faid oath, and fhall be thereof lawfully convided, he Ihall incur the pains and punifhment of perjury, and be profecuted for the fame according to the laws and forms in ufe in Scotland. Judges of feffion, jufti- ciary, or ex- chequer, in- fapable to be elefted. IV.* And be it further enabled, that no judge of the court of feflion, or jufticiary, or baron of the court of exchequer in Scotland, fliall be capable of being eleded, or of fitting or voting as a member of the Houfe of Commons in any parliament which Ihall be hereafter fummoned and holden. Sheriffs, four days after re- ceipt of the •writs, to ilFue precepts for chooling de- legates; and chief magi Urate, two Jays af- ter, to futn- moii the council of the borough; V. And be it further enaded by the authority aforefaid, that the feveral fheriffs and ftewarts in Scotland fliall, within the fpace of four days after the writ fhall come to their hand, iffue their precepts to the feveral boroughs within their jurifdidion to eled their delegates, and fnall caufe the fame to be delivered to the chief jnagiftraie of fuch borough, refiant in the borough for the time being ; and that fuch chief magiftrate, to whom fuch precept fhall be delivered, fhall, within two days after his receipt of the fame, call and fummon the council of the borough together, by giving notice perfonally, or leaving notice at the dwelling-place of every counfellor then refiant in fuch borough, which council fhall then appoint a peremptory day for E N D I X. 5JI for the cledion of the delegate ; but two free days fhall intcrvcen betwixt the meeting of the council which appoints the day of elec- tion of the delegate, and the day on which the eledlion of the dele- gate is to be made. which coun- cil IhuU ap- point a day for eleding dclcejites. VI. And to prevent double eledlions of magiftrates in boroughs, which frequently occafion double commilhons to delegates, beitenadled by the authority aforefaid, that, at the annual eledion of magillrates and counfellors for boroughs, no magiftrate or counfellor, or any number of magiftrates or counfellors, (hall, for the future, upon any pretence whatfoever, take upon him or them to feparate from the majority of the magiftrates and counfellors, who have been fuch for the year preceding, and to appoint or eled feparate magiftrates or counfellors, but fliall fubmit to the election made, and to the magi- ftrates and counfellors eledled and appointed by the majority of the town-council affembled ; and if, contrary to the direQion of this a€t any number of magiftrates or counfellors fhall, in oppofition to the majority, take upon them to make a diftinft and feparate eledlion of magiftrates or counfellors, their aft and eledion fhall be ip/o/aclo void, and every maglftrate or counfellor who concurred therein fliall forfeit and lofe the fum of one hundred pounds Sterling, to be re- covered by the magiftrates and counfellors from whom they fepa- rated, in manner herein after direded. L. 100 pe- nalty on eve ry counfellor or magi (Irate feparating from the ma- jority at the annual elec- tion for bo- roughs. VII. Pi-ovided always, and it is hereby declared and enadled, that it ftiall and may be lawful to, and for, any magiftrate or counfellor of the borough, who apprehends any wrong was done at any annual eledion, to bring his adion before the court of feffion in Scotland for rectifying fuch abufe, or for making void the whole eledtion (if illegal) only within the fpace of eight weeks after fuch eledion is over;, and the Lords of Seffion fhall, and they are hereby exprefsly authorifed Mag'iftratej or counfel- lors of bo- roughs may bring their aflion in 8 weeks after the eledion. V. 55^ A N D I X. authorifed and required to hear and determine the caufe fummarlly, and to allow to the party that fhall prevail their full cofts of fuit. %.. 500 pe- jiaky on ne- gleifting to return the perfon duly elected. To be reco- vered in a fummary way. Complaints of undue re- turns to be commenced in fix months after return. Who may fue for fuch penalty, and la -what ^me. VIII. And be it further enadled, that every fherifF or ftewart in Scotland, who fliall wilfully annex to the writ any falfe or undue re- turn, and every common clerk of any prefiding borough, who fhall wilfully return to the fherifF or ftewart any perfon other than the perfon eledted, or who lliall negleil or refufe to return the perfon duly eleded, iTiall forfeit the fum of five hundred pounds Sterling to the perfon intitled to have been returned, and not returned, to be recovered from the faid fherifF, ftewart, or common clerk, their heirs, executors, or adminiftrators, refpedtively, in a fummary way, by adion, petition, or fummary complaint, before the faid court of fef- fion, uponfervice of fuch fummons, or of a copy of fuch petition, or fummary complaint, on fifteen days notice or warning, without abiding the courfe of any rolls, or further delay whatfoever; which adion, petition, or complaint, the judges of the faid court are here- by required to judge of, and determine with all convenient fpeed: Provided always, that fuch adion, petition, or complaint, be com- menced, prefented, or made within the fpace of fix months after the return is made. And in cafe the perfon duly eleded, and not returned, fhall negled or omit to fue for the faid penalty within the time before mentioned, then any freeholder within the fliire or ftewartry, or any magiftrate, or perfon bearing office, in any of the boroughs of the diftrid for which the return is unduly made, may fue for and recover the fame to his own ufe, by fuch adion, peti- tion, or complaint, and in fuch manner as is before mentioned, with double cofts of fuit ; provided always, that fuch freeholder, magi- ftrate, or perfon bearing office, fhall commence or bring fuch adion ■within the fpace of twelve m^onths after the return is made. And APPENDIX. sSi IX. And be it enatSled by tlic autliorlty aforcfaid, that every pe- P«n^'''" ' _ ^ •' ' how to be rc- nalty by this adl impofed, with refpedl to ilic recovery of which no covered. partJcular proviiion is herein before made, Ihall and may be fued for, and recovered, by way of fummary complaint before the court of fefTion in Scothmd, upon fifteen days notice to the pcrfon complain- ed of, without abiding the courfe of any roll ; which faid complaint the court of feffion is hereby authorifcd and required to determine with all convenient fpeed. X. And be it further cnadlcd, that every freeholder in Scotland FiechoKlcrs, , . if required, fliall, before he be either enrolled, or admitted to vote at any future to tnkc the election, or meeting for enrolment, in any queftion for the choice of eieaionof a a clerk or prefes, or other qucflion whatfoever, (if required by any '^^^^'^' ^^'^' freeholder prefent), be obliged to take and fubfcribe the oaths ap- pointed by law to be taken by eledors of members to ferve in par- liament, when required fo to do ; which oath the prefes or clerk of the meeting is hereby impowered and required to adminifter. XI. And whereas there have been fome miftakes in the diftrict of the boroughs of Wigtoun, Whitehorn, New Galloway, and Stran- rawer, in relation to their prefiding at eledionsof members of parlia- ment for that diftridl, which may occafion difputes at future cledions, Method of - ,.,_,. ^1111 prefiding at tor remedying thereof, be it enadted, that the boroughs continue to eleciions. prefide in the courfe they are now in, and that the borough of Wi"-- toun ihall prefide at the eledion of a member to reprefent that di- ftrid in the next parliament, and that the other boroughs of the diftridt prefide afterwards in the method prefcrlbed by the adt of parliament of Scotland, made in the fourth feflion of the firft par- liament of Queen Anne, intituled, ' An a£t for fettling the manner * of electing the fixteen peers and forty-five commoners, to repre- * fent Scotland in the parliament of Great Britain.' 4 A Anno 554 APPENDIX. Anno declmo fexto G E R G 1 1 II. Regis. Cap. ir. An Act to explain qnd amend the Latus touching the Eleclions of Members to ferve for the Commons in Parliament^ for that part of Great Britain called Scotland^ and to refrain the Partiality ^ and regulate the Conduct, of Returning Officers at fuch Eleclions. WHEREAS many returning officers of members to ferve for the commons in parliament, for that part of Great Britain called Scotland, have of late prefuraed to aft in a moft partial and arbitrary- manner, fometimes upon falfe pretences, that the rolls of eledors of commlflioners for fliires were not regularly made up, or that the commiflioners for the feveral boroughs intitled to vote in the choice of a member for 'the refpedive diftrlfts of boroughs were not duly eledled, or were not authorifed by proper commiflions, and fome- times, without any pretence at all, encouraged thereto from hopes of impunity, by reafon that the laws in being have either provided no fufficient punifhment for fuch offences, or, where penalties are provided, it has been found by experience to be extremely difficult, and fcarcely poffible to recover them ; for remedy thereof, be it enaded by the King's moft excellent Majefly, by and with the ad- vice and confent of the Lords Spiritual and Temporal, and Com- mons, in this prefent parliament affembled, and by the authority of the fame, that fo much of an a£l of parliament made in the twelfth Prtofihe yc^"^ of ^^ reign of her late IVlajcfly Queen Anne, intituled, ' An 3^1 Z.Anns, < ^Q^ for tj^e better regulating the elections of members to ferve in ^ 6. \ 3. re- * parliament for that part of Great Britain called Scotland,' as enads, pealed. Xhat no perfon or perfous, who have not been enrolled, and voted at former eleaions, fliall, upon any pretence whatfoever, be enrol- led, or admitted to vote at any elcdion, except he or they firfl pro- duce a. fufficient, right or title to qualify him or them to vote at that eleftica,. APPENDIX, 5J5 elcdion, to tlic latisfaftion of the freeholders formerly enrolled, or the majority of thern prefent, and ordains the returning officers to make their returns of die perfons eiedcd, by the majority of the freeholders enrolled, and thofe admitted by them, referving always the liberty of objeding againft the perfons admitted to, or excluded from the roll as formerly, fliall be, and is hereby repealed. II. And whereas the rolls of eledors of eommifTioncrs to fcrve in parliament for the feveral fhires and ftewartrics within that part of Great Britain called Scotland, have not, in every one of the faid fliires and flewartries, been made up every year, at the Michaelmas head courts, purfuant to the diredlions of an ad of parliament made in that part of Great Britain called Scotland, in the year one thou- fand fix hundred and eighty-one, intituled, ' An ad concerning the ' eledion of commiflioners for fliires ;' for remedy thereof, and the more effedually to carry the good intentions of the faid ad Into execution, be it enaded and declared, by the authority aforefaid, Aa mad ' that fuch perfons as ftand upon the roll lafl made up by the free- ^'^ot'^nd in 1681, holders, whether at the Michaelmas meeting, or at the laft eledion ftiengthea- of a member to ferve in parliament, fliall be the original conftituent members at their next Michaelmas meeting, or meeting for eledion, to revife the faid roll. ed. ers III. Provided always, and be It enaded by the authority aforefaid, Freehold that it fliall and may be lawful for any freeholder flanding upon '"'^ ^^^'^^' the roll, to objed to the title of any perfon who fiiands at prefent upon the roll laft made up, and for that purpofe to apply at any time before the firft day of December, which fhall be in the year of our Lord one thoufand feven hundred and forty-three, by fummary complairi.t to the court of feffion, who fhall grant a warrant for funi- moning fuch perfons, upon thirty days notice, to ani'wer, and fhall proceed, in a fummary way, to hear and determine upon fuch com- 4 A 2 plaint; S5<^ E N D 1 X. plaint ; and if no fuch complaint fliall be exhibited within the time aforefaid, then, and in that cafe, no freeholder, who at prefent (lands upon the rolls laft made up in the faid counties and ftewartries re- fpedively, fhall be ftruck off, or left out of the roll, except upon fufEcient objedlions arifing from the alteration of that right or title, in refped of which he was enrolled, fuftained by the other freehol- ders (landing upon the faid roll. Manner of afling, when a perfon claims to be -enrolled. If any free- holder ob- jedl%, appeal may be made to the Court of Sef- Aon. IV. And be it enaded by the authority aforefaid, that if, at any Michaelmas meeting, or meeting for eledion, any perfon claiming to be enrolled fhall, by judgment of the freeholders, be refufed to be admitted, or if any perfon who flood upon the roll fhall, by like judgment, be ftruck off, or left out of the roll, it fhall and may be lawful for him, or them, who is fo refufed to be admitted, or whole name is fo ftruck off, or left out of the roll, to apply (fo as fuch ap- plication be made within four kalendar months after their being fo refufed, ftruck off, or left out) by fummary complaint to the court of feffion, who fhall grant a warrant for fummoning the perfon or perfons upon whofe objedion or objedions he was refufed to be ad- mitted, or was ftruck off, or left out, as aforefaid, upon thirty days notice, to anfwer, and fhall proceed to hear and determine, in a fum- mary way, on fuch complaint ; and if any perfon flaall be enrolled whofe title fhall be thought liable to objedion, it fhall and may be lawful for any freeholder ftanding upon the faid roll, (whether fuch freeholder was prefent at the meeting or not), who apprehends that fuch perfon had not a right to be enrolled, to apply in like manner by complaint to the court of fefTion, fo as fuch application be made within four kalendar months after fuch enrolment ; and the faid court, after fervice of fuch complaint, on thirty days notice, upon the perfon faid to be wrongfully admitted to the roll, fhall, in man- ner aforefaid, hear and determine ; and if no fuch complaint fhall be exhibited within the time aforefaid, the freeholder enrolled fliall ftand E N D I X. j5/ ftand and continue upon the roll until an alteration of his circum- ftances be allowed by the freeholders at a fubfcquent Michaelmas meeting, or meeting for election, as a fuificient caufe for ftriking or leaving liim out of the roll. V. And be it enaded by the authority aforefaid, that if, in any of Penalty o«. officers not the aforefaid cafes, the judgment of the tourt of felTion (hall alter or obeying the reverfc the determination of the meeting of the freeholders, by di- £0^, reding that any perfon Ihall be added to, or expunged from the roll of eleftion, the fheriiF or ftewart's clerk fhall, upon prefenting to him the extradl of fuch judgment, forthwith make the alteration thereby direded in the books that are kept by him ; and in cafe of his refufal or delay, he Ihall forfeit the fum of one hundred pounds Sterling to the perfon in whofe favour the judgment of the court of feflion is given, to be recovered by him or his executors in the man- ner herein after direded. VI. And be it further enaded by the authority aforefaid, that if Penalty on the judgment of the freeholders, refufing to admit, or flriking off the Court of any perfon from the faid roll, fliall be affirmed by the court of fef- ^e'^onaffirm fion, the perfon fo complaining iliall forfeit to the objedor the fum <^"s order, of thirty pounds Sterling, with full cofls of fuit. VII. And be it enaded bv the authority aforefaid, that, to prevent Manner of ' _ aiftingtopre- all furprife at the Michaelmas meetings, every freeholder who in- vent furprife, tends to claim to be enrolled at any fubfequent Michaelmas meeting ders'^claim*- of the freeholders, fhall, for the fpace of two kalendar months at '"g '» 1^« ««i' '^ rolled J leaft before the faid Michaelmas meeting, leave with the fheriff or ftewart's clerk a copy of his claim, fetting forth the names of his lands, and his titles thereto, and dates thereof, with the old extent or valuation, upon which he defires to be enrolled; and in cafe of his negled to leave his claim as aforefaid, he fhall not be enrolled at 5J8 N D I X. •or on making objeiflions to others al- ready enrol- led. at fiich Michaelmas meeting; and in like manner, whoever intends to objedl to any freeholder who ftands upon the roll, on account of the alteration of his circumftances, fhall, at lead two kalendar months before the Michaelmas meeting, leave his objedions in wri- ting with the fherifF or ftewart's clerk, as aforefaid, who is hereby- required, upon receipt of the aforefaid claim or objeftions, to in- dorfe on the back thereof the day he received the fame, and alfo to give a copy of the aforefaid claim or objedions to any perfon who fhall demand the fame, upon paying the legal fee of an ordinary estrad of the fame length. Divifion of the old ex- tent of lands to multiply eledors pro- hibited. VIII. And whereas great difficulties have occurred in making up the rolls of electors of commiffioners for fhires, by perfons claiming to be enrolled, in refped of the old extent of their lands, where the old extent does not appear from proper evidence, and votes have been unduly multiplied, by fplitting and dividing the old extent of lands, fince the fixteenth day of September one thoufand lix hun- dred and eighty-one; for remedy thereof, be it enaded and de- clared, by the authority aforefaid, that no perfon is, or fhall be, en- titled to vote for a commifTioner to ferve in parliament, for any fliire or ftewartry in that part of Great Britain called Scotland, or to be enrolled in the roll of eledors, in refped of the old extent of his lands, holden of the King or Prince, unlefs fuch old extent is proved by a retour of the lands, of a date prior to the fixteenth day of Sep- tember one thoufand fix hundred and eighty-one, and that no'divi- fion of the old extent, made fince the aforefaid fixteenth day of Sep- tember one thoufand fix hundred and eighty-one, or to be made in time coming, by retour, or any other way, is or fhall be fuftained as fufBcient evidence of the old extent. Provifo. IX. Provided always, that lands holden of the King or Prince, liable in j)ublic burdens for four hundred pounds Scots of valued rent. p E N D I X. 5S9 rent, lliall in all cafes be a fufficient qualification, whatever be the old extent of the faid lands ; any law or pradice to the contrary notwithftanding. X. And be it further enadted by the authority aforcfaid, that no purchafer or fingular fiicceffor fhall be enrolled till he be publickly infeoft, and his feifin regiftercd, or charter of con- lirmation be expede, where confirmation is neceffary, one year before the enrolment ; and that no heir apparent fliall be enrolled until his predeceifors titles are produced, and allowed by the free- holders as a fufficient qualification for his voting for a member of parliament ; and that any perfon may be enrolled, though ab- fent at the time of fuch enrolment, provided the titles and vouch- ers of his qualification are produced, and laid before the free- holders ; and if any perfon fliall be chofen a member to fcrve in parliament for any fhire or ftewartry within that part of Great Bri- tain called Scotland, who fliall not be prefent at the meeting of e- ledion J be it enadled by the authority aforefaid, that the member to ferve in parliament fo eleded, before he takes his feat in parlia- ment, fhall take the oath appointed to be taken by every freehol- der who fliall claim to vote at any eleftion of a member to fcrve in parliament, by the a£t of the feventh year of his prefent Majefty, intituled, ' An adt for the better regulating the eledion of mem^- * bers to ferve in the Houfe of Commons, for that part of Great * Britain called Scotland ; and for incapacitating the judges of tlie ' Court of SefFion, Court of JuRiciary, and Barons of the Court of ' Exchequer in Scotland, to be eleded, or to fit or vote as members * of the Houfe of Commons, before the Lord Steward of his Maje- fty's houfehold, or any perfon or perfons authorifed by him for that effect, which he or they are hereby impowered and required to ad- minifter ;. and if a member to ferve in. parliament,, fo eleded, fliall iicgledl I low a pur- cliafcr Hiall 3(51 before he is enrolled ; alfo an heir apparent. Perfons may fend their vouchers, and be en- rolled, though ab- fcnt. Every one chofen in his abfence to ferve in par- liament, iliall take the free- holder's oath before he takes his feat.. On refiifing the oath, the cledion de- dared v<>id. 500 N D I X. negled or refufe to take the aforefaid oath, fuch eledion fliall be void. Who are to be original conftituent niembers. Minutes of proceedings to be entered in books kept by the Iheriff or Rewart's clerk. Mimite- books to be produced at public meet- ings. Penalty on refufal. XI. And be it further enaded by the authority aforefaid, that, at the annual meetings of the freeholders at Michaelmas, the original conftituent members fhall be fuch perfons only as fhall (land upon the roll that fliall have been laft made up, whether at a Michaelmas meeting, or at a meeting for an eledion of a member to ferve in parliament, and that a copy figned and extradted of the roll, made up by the freeholders at their Michaelmas meetings, or meetings for cledions, together with the minutes of their proceedings at their faid meetings, fhall, by the refpedive clerks of fuch meetings, be forth- with delivered to the fherifF or ftewart's clerk gratis, and fhall be inferted in books, to be kept by the faid flierifF or flewart's clerk for that purpofe, who fhall forthwith deliver copies of the fame, extraded and figned, to any freeholder who fhall defire the fame, paying the legal fee for any ordinary extrad of the fame length, and fhall, at every fubfequent meeting at Michaelmas, or meeting for any eledion, produce the faid books for the ufe of the freehol- ders ; and in cafe fuch fheriflf or ftewart's clerk fhall negled or re- fufe to enter the aforefaid rolls of eledion, or minutes of proceed- ings, into books fo to be kept for that purpofe, as aforefaid, or fhall negled or refufe to give copies thereof, extraded and figned, or fhall omit to produce the books at any fubfequent meeting, as afore- faid, he fhall for every fuch offence forfeit the fum of one hundred pounds Sterling, to be recovered by any freeholder, within fuch fhire or ftewartry, who fhall fue for the fame, in fuch manner as is hereafter direded ; and if the aforefaid principal books, containing the rolls and minutes as aforefaid, fhall not be produced at the Mi- chaelmas meetings, or meetings for eledion, a copy of the faid roll and minutes, extraded and figned by the fherifF or ftewart's clerk, fhall be fufficient ; and if the fheriff or ftewart's clerk fhall give out t of the mi- nutes A P P E N D I }i. jCr out falfe copies of the faid roll or minutes, extradtcd and ligned by r-^iiaiiy on , , , K'viriK out hiin, he fhall for every fuch ofieucc forfeit the fum of one liuudrcd faife copies pounds Sterling to the perfon to whom the falfe copy is given, to be recovered by him or his executors in the manner herein after di- re<5tcd, and lliall be for ever after incapable of holding or enjoying his faid office. XII. And be it further enaded by the authority aforefaid, that, at The roll of . , eleflors laft every eledion ot a commiflioner to ferve in parliament for any fhire madeupfhail orftewartry w-ithin that part of Great Britain called Scotland, the roll of nextekAiout eledlors which fliall be laft made up by the freeholders, whether at the Michaelmas meeting, or at the laft eledlion of a member to ferve in parliament, Ihall be the roll to be called over by the commiffioner laft eleded, or, in his abfence, by the fheriff or ftewart's clerk, in order to the eledion of prefes and clerk, as alfo by the prefes, after he is chofen, for the choice of the member to ferve in parliament, and for the determination of all the qucftions that fliall arife in the adjufting the roll, and in the courfe of the election, excepting fo far as the faid roll fliall, after the meeting is duly conftituted by the choice of prefes and clerk, be altered by judgment of the majority of the freeholders ftanding on that roll, by leaving out thofe whofe circumftances are altered, aud by adding others who produce pro- per titles. votes. XIII. And be it further enaded by the authority aforefaid, that, renaity for J? 1 rk • r ■ rr- - . tukins: falfe at every meetmg tor an elettion ot a commiflioner to lerve m par- liament, if the commiflTioner laft eledted, or, in his abfence, the ftie- rifF or ftewart's clerk, fliall, in the choice of prefes or clerk, receive- the vote of any perfon that does not ftand upon the faid roll, he {hall, for every fueh offence, forfeit the fum of three hundred pounds Sterling to every candidate for the oflice of prefes or clerk re- fpedively, for whom fuch perfon fliall not have given his vote, to be. 4 B recovered-' sGa E N D X. ;Penalty on refufing good votes. On equality of votes, in •thoofing a prefes or jclerk, who fhall have the caftij-ig vote. recovered by him or them, his or their executors refpedively, in manner herein after direded ; or, if the commifTioner laft eleded, or, in his abfence, the fheriff or ftewart's clerk, fhall, in the choice of prefes or clerk, not call for, or fhall refufe the vote of any pcr- fon whofe name is upon the faid roll, he fhall, for every fuch of- fence, forfeit the like fum of three hundred pounds Sterling to the perfon whofe name fhall not be called for, or whofe vote fhall be refufed, to be recovered by him, or his executors, in the manner herein after direded ; and if the prefes, after he is chofen, fliall, in the eledion of the member to ferve in parliament, receive the vote of any perfon who does not ftand upon the roll duly made up by the faid meeting, he fhall, for every fuch offence, forfeit the fum of two hundred pounds Sterling to every candidate for whom fuch perfon fhall not have given his vote, to be recovered by him, or his exe- cutors, in the manner herein after direded ; or, if the prefes, after he is chofen, fhall, in the eledion of the member to ferve in parlia- ment, not call for, or fhall refufe the vote of any perfon whofe name is upon the faid roll fo made up as aforefaid, he fhall, for e- very fuch offence, forfeit the like fum of two hundred pounds Ster- ling to the perfon whofe name fhall not be called for, or whofe vote fhall be refufed, to be recovered by him or his executors in the man- ner herein after direded : And it is hereby declared, that, in cafe of equality of votes in the choice of prefes or clerk, the commif- fioner laft eleded, and, in his abfence, any freeholder prefent who laft reprefented the fhire or ftewartry in any former parliament ; and if no fuch perfon is prefent, the freeholder prefent who prefi- ded laft at any meeting for any eledion, and, in his abfence, the freeholder who laft prefided at any Michaelmas meeting ; and if none of the faid perfons fhall be prefent, the freeholder prefent who ftands firft on the roll, fliall, befides their own votes as freeholders, have the cafting and determining vote, and that the prefes chofen fhall, after his eledion in the choice of the commifHoner to ferve in parliament, K N D I X. 5^,3 parliament, and all other queftions where the votes arc equal, In like manner, belkles his own vote as a freeholder, have the carting and determining vote. XIV. And be it further enaded by the authority aforefaid, that the perfons chofen to be prefes and clerk by the majority of the freeholders prcfent, (landing on the faid roll, fliall be prefes and clerk of the meeting for fuch cledtion ; and it fliall not be lawiul for any number of freeholders to feparate from the majority of the perfons prefent who (land upon the faid roll, and fet up any perfon as prefes or clerk other than thofe who (hall be chofen by the ma- jority of the freeholders prefent (landing on the faid roll, and that it (hall not be lawful for any perfon to a£t as prefes or clerk at any fuch eledion, unlefs they are chofen by the majority of perfons (landing on the faid roll ; and every freeholder who (hall fo fepa- rate from the majority of the freeholders on the roll, and fet up any perfon as prefes or clerk, other than thofe who (hall be chofen by the majority as aforefaid, he (Iiall for every fuch offence forfeit the fum of fifty pounds Sterling, to the candidate who (hall be cho- fen by the majority of the freeholders from wh,om fuch feparation was made ; to be recovered by him or his executors in the manner herein after direded : And if any perfon prefume to aQ. as prefes or clerk who is not chofen by the majority of the freeholders pre- fent (landing on the faid roll, he fliall, for every fuch oflfence, for- feit the fum of two hundred pounds Sterling to the candidate who (hall be chofen by the majority of the freeholders, as aforefaid, to be recovered by him or his executors, as herein after directed. The prefes and clerk be- ing chofen by the majority of freehol- ders, no fe- parated par- ty ftall choofe ano- ther. Penalty on feparatiug from the freeholders,. Penalty on afling as prefes or clerkwithout any authon- XV. And be It further enaded by the authority aforefaid, that Minutes of the commifTioner lafl eleded, or, in his abfence, the (herifF or flew- prefjsand art's clerk, fliall fign the minutes of the eledion of prefes and clerk, '^'^''^ 'o ^^ and deliver the fame to the clerk chofen by tl^e. majority of the free- delivered w 4-^2 holders, cLofeo. 'Penalty on refufing to Jign, or on figning falfe xniimtes. 564 N D I X. holders, as aforefaid ; and if the commiffioner laft eledlcd, or, in his abfence, the fherifF or (levvart's clerk, fhall negledl or refufe to fign the aforefaid minutes of eledlion of prefes and clerk, and deli- ver the fame to the clerk chofen, as aforefaid, or fhall fign falfe mi- nutes thereof, he fhall, for every fuch offence, forfeit the fum of one hundred pounds Sterling to the perfon elected prefes, as afore- faid, to be recovered by him or his executors, in the manner here- . after diredted. Clerk, to make a true return. Pepalty oji refufing, or making a falfe one. XVI. And be it further enacted by the authority aforefaid, that the clerk chofen by the majority of the freeholders on the aforefaid roll, fhall return to the fherilf or ftewart fuch perfon as fhall be eled- ed by the majority of the freeholders on the roll made up at the meeting for election, in the manner aforefaid ; and if the clerk chofen as aforefaid fliall refufe or neglect to return the perfon eled- ed by the majority of the freeholders -on the roll made up at the meeting for election, or fhall return any perfon other than him who fhall be ele£ted by the majority of the freeholders, as aforefaid, he fliall, for every fuch offence, inftead of the penalty or forfeiture to which he is made liable by the aforefaid a£t, made in the feventh year of his prefent Majefty, forfeit the fu-m of five hundred pounds Sterling to the candidate chofen by the majority of the freeholders on the aforefaid roll, to be recovered by him, or his executors, in the manner herein after directed. XVII. And -be it further ena£ted by the authority aforefaid, that every flieviff or ftewart of any fhire or ftewartry, within that part of Great Britain called Scotland, upon producing to him a copy of the aforefaid roll laft .made up by the freeholders ai the laft Michaelmas meeting, or at the laft eledtion of a member to ferve in parliament, ex- traded and figned by the flieriff or ftewart's clerk, and upon producing and fliewing to him the original minutes of the election of prefes and clerkj. -1' P E N D I X. i6> clerk, figned by the comminioncr laft elcdcd, or, In his abfence, hy the flierifl' or ftewart's clerk, fliall annex to the writ the return made by the clerk chofen by the majority of the freeholders on the aforc- faid roll; and if any fuch fli^riff or ftevvart fliall neglcdt or refufe to annex to the writ fuch return, or if he fliall annex to the VvM'it TJic return the return made by any other perfon pretending to be clerk to the ed to the cledion, he fliall for every fuch ofl'ence, inftead of the penalty or ^'"^'^' forfeiture to which he is made liable by the aforcfaid act, made in Penalty for the feventh year of his prefent Majefty, forfeit the fum of five hun- fence. dred pounds Sterling to the perfon returned by the clerk, and cho- fen by the majority of the freeholders on the aforefaid roll, to be recovered by him, or his executors, in the manner hereafter diredled. Hiall be heJd. XVIII. And be it further cnadled by the authority aforefaid, that ^'''«" '''* n • rr n r n • n • Michaelmas every Iherift or itewart or any Ihire or Itewartry, withm that part head court of Great Britain called Scotland, fliall hold the Michaelmas head court, in all time to come, on the day on which it fliall appear to him to have been mofl: ulually held in times paft : and to prevent all uncertainty in time coming, every flieriff' or ftcwart fliall, at lead fourteen days before Michaelmas next, appoint a precife day for holding his Michaelmas head court, in the year one thoufand feven hundred and forty-three, and fliall caufe intimate the day of hold- ing his court at all the parifli churches within his faid fliire or ftew- artry, upon a Sunday, at lea ft eight days preceding the next Mi- chaelmas head court: And it is hereby declared, that the day fo to bcibrc. ' be appointed by the faid flieriff or ftewart before Michaelmas next, fhall be the annlverfary for holding the Michaelmas head court of the faid fliire or ftewartry in, all time comiiig. To be inti- mated in a'J parifli churclie* .XIX. And whereas, by the conftitution of the fliire of Suther- Ufa^e of land, and by conftant ufage, the fmall barons of the faid fliire have Sutherland, baen reprefcnted in parliament, not only by the immediate vafliils of the S66 E N D I X. the King and Prince, but alfo by thofe who held their lands of the Earls of Sutherland, or of other fubjed fuperiors, and fuch vaflais holding their lands of fubje£t fuperiors, have been in ufe to vote at the eledion of the commiffioners for itte faid fhire of Sutherland, as well as the vafTals of the King and Prince, and that without any reftridion as to the quota of the old extent, or of the valued rent of the lands, in refpe£t whereof a right to vote at fuch eled:ions, or to be eleded commiffioner for the faid fhire was claimed, and there- by votes have been unduly multiplied, and feveral perfons have claimed a vote in refped of the fuperiority and property of the fame lands, whereby great confufions are likely to enfue in future eledions; for remedy thereof, be it further enadted by the autho- Qualificatioa rity aforefaid, that from and after the firft day of September, which «nd ekftors. fhall be in the year of our Lord one thoufand feven hundred and forty-five, no perfon ftiall be capable to be eleded commiffioner for the faid fliire, or fhall have right to vote at fuch elecElion, unlefs he be infeoft, and in poITeffion of lands liable to his Majefty's fupplies,. and other publick burthens, at the rate of two hundred pounds Scots valued rent. Candidates and eleflors to hold their lands imme- diately from the King or Prince. XX. And be it further enaded by the authority aforefaid, that one perfon, and no more, fhall be entitled to vote at fuch eledions, or to be eleded, in refpe£t of the fame lands ; and that where lands are now holden by any baron, or other freeholder, immediately of the King or Prince, fuch baron or freeholder fhall be capable to be eleded, and fhall be entitled to vote for thofe lands ; and no vaiTal or fub-vaffal of the faid baron or freeholder fliall have right to vote, or to be eledted, in refpedl thereof; and that where lands are now holden, or fhall at any time hereafter be holden, of the King or Prince, by a peer, or other perfon, or body politic or corporate, who by law are difabled to be a member of llie Houfe of Commons, or APPENDIX. 567 or to vote in fuch eledions; in fuch cafe, the proprietor and owner of fuch lands, and not any of his fuperiors, fhall be entitled to vote, In whu cafc- . . tl'<; proprie- or to be eleded, in refpe£l: of the fame lands; and that no alicna- tors only tion of the fupcriority to be made by fuch peer, or other perfon, or ''' ^'"''"* body politic, incapable to ele£l, or to be eleded, fhall deprive the proprietor and owner of the lands of his right to vote in the elec- tions for the faid {hire, or his capacity to be elected ; nor intitle the purchafcr of the faid fupcriority to vote or to be eledcd ; and that Lands held the property of lands of the valuation aforefaid, holden, in part, im- KjnJ'^anj mediately of the King or Prince, and in part of a peer, or other per- P'"'t^ ^ ^ ion, or body politic, incapable to eled, or to be eledled, fhall be a ihan'tiuaiify fufficient qualification to the proprietor and owner of fuch lands, e'icVor"be e- and fhall entitle fuch proprietor to vote, and to be elected for the l«-''":d. faid fhire, any law or ufage to the contrary notwithftanding. XXI. And be it enafted by the authority aforefaid, that the free- wjien free- holders and proprietors, having right to ele£t, or to be eledted, a Sutherland commifFioner for the fhire of Sutherland, flaall meet at the head bo rough of the faid fhire, at the Michaelmas head court, which fliall i^oU be in the year of our Lord one thoufand feven hundred and forty- five, and fhall make up a roll of the eledtors having right to vote in the choice of a commifFioner, in the terms of this prefent adt, and of the other a£ls of parliament made touching the eledtion of com- miflioners for the fhires in Scotland ; and which roll, fo made up, fhall be revifed yearly at the Michaelmas meetings, and at after elections, according to the rules prefcribed in this a£t, and in other ads made for regulating the eledions of commiffioners for fliires in that part of Great Britain called Scotland : And it is hereby de- clared, that the faid ads of parliament do extend to the fliire of Sutherland, as well as to the other fliires in Scotland, except in fb far as it is otherwife provided by this prefent ad. xxir. fhall meet and make a 568 A N D I X. At sr.nual eleftions, the minority fhall not fe- parate from the aiajcrity. Penalty on offenders. XXir. And whereas at the eledllon of members to ferve in par- liament for the diftrids of boroughs in that part of Great Britain called Scotland, it often happens that more perfons than one claim to be admitted to vote as commiflioners for the fame borough, which furnilhcs pretences to the clerks of the prsfiding boroughs for par- tially making falfe and undue returns; for remedy thereof, be it enadted by the authority aforefaid, that, at the annual eledion of magiftrates and counfellors, and in all the proceedings previous to the ele£lion of the magiftrates and counfellors for the fucceeding year, it fhall not be lawful for the minoiity of any meeting for eledion, either of magiftrates or counfellors, or deacons, or other perfonSj who, by the conftitution of the refpedive boroughs, may have votes in the eledion of niagiftrates or counfellors, to feparate from the majority of thofe having right to ad by the conftitution of ths borough at fuch meetings, upon any pretext whatfoever ; nor to make any feparate eledion of magiftrates, counfellors, or eledors ; but the minority fhall, in all cafes, fubrait to the eledion made by the majority in all the parts of eledion; and if any perfon eleded by the minority of any fuch meeting fhall prefume to vote in the eledion of magiftrates or counfellors, or in leeting the magiftrates or counfellors, or in any other ftep of the eledion, he fhall forfeit the fum of one hundred pounds Steiling to any one of the majority of fuch meeting, to be recovered. by him in the manner hereafter direded. No perfon e- XXIII. And be it further xnaded by the authority aforefaid, that lected by the oerfon clcdcd to be a maciftrate or counfellor by a minority of minority i^ ° ■' ■/ (hail have a thofe having, right to vote in eledions of the magiftrates and coun- fellors, fhall, .upon any pretext whatfoever, prefume to ad as magi- ftrate or counfellor ; and if any perfon fhall, notwithftanding, pre- fume to ad as magiftrate or counfellor, he fliall, for every fuch of- fence, forfeit the fum of on"e hundred pounds Sterling to the ma- giftrates rijjht to ad Penalty on afling when ■ fa chofen. APPENDIX. 569 glRiatcs or counfellors cleded by the majority, or to any of them wlio fhall fue for the fame, to be recovered by liim or them in the manner lierein after dire£led. XXIV. Provided always, and it is liereby declared and enae recovered by him or his executors in the maniier herein after di- ■reded. XXVIII. And whereas, by an ad pafTed in that part of Great Britain called Scotland the fifth day of February, in the year one thoufand feven hundred and feven, intituled, ' Act fettling the man- * ner of electing the fixieen peers, and forty-five commoners to re- * prefent Scotland in the parliament of Great Britain,' it is, amongfl other things, ena£ted, that, where the votes of the commiffioners for the faid boroughs, met to choofe reprefentatives from their feveral diflrids to the parliament of Great Britain, fhall be equal ; in that cafe, the prefident of the meeting fliall have a cafling or decifive vote, and that by and attour his vote as a commiffioner from the borough from which he is fent ; but no provifion is made, in cafe of the abfence of the commiflioner from the prefiding borough, or Whofliai; = of his refufing to vote at fuch eledion : For remedy thereof, be it "I '^^^" '" the pit.i r enaded by ihe authority aforefaid, that, if the commiffioner from commifficv 4 G 2 the ST- E N D I X. the prefiding borough fiiall be abfent from the meeting of commlf- fioners for choofing burgefles to ferve in parliament, or fliall refufe to vote at fuch elc£lion, the commiflioner from the borough which was the prefiding borough at the laft eledlion ; and, if he alfo be abfent, or fhall refufe to vote as aforefaid, the commiflioner from the borough which was the prefiding borough at the eledion im- mediately preceeding the laft ; and in cafe he fhall be likewife ab- fent, or fhall refufe to vote as aforefaid, the commiffioner from the borough which was the laft prefiding borough but two fhall have, in the aforefaid relpedive cafes, befides his own vote, the cafting or deciUve vote. Ho objeiflion agaiaft non- refidenters,- XXIX. And be it further declared by the authority aforefaid,. that it is no objeflion to any commiffioner for choofing a burgefs,. that he is not a refidenter within the borough bearing all portable charges with his neighbours, or that he is no trafficking merchant therein, or that he is not in pofTeffion of any burgage lands or hou" fes holding of the faid borough, and that fuch qualifications need- not be engroffed in his commiffion ; any law, cuftom, or ufage to the contrary notwithftanding. What votes Ihall be al- lowed.. XXX. And be it further enatl-ed by the authority aforefaid, that, at all meetings of coinmilfioners for choofing burgeffes to ferve in parliament, the common clerk of the prefiding borough fhall allow the votes of fuch perfons only who produce commifTions authenti- cated by the fubfcription of the common clerk, and the common feal of the refpedive boroughs within the diftridt, and fhall return to the fherifT or flewart the perfon eledled by the major part of the oommiflioners aflembled, vvhofc commifTions are authenticated as aforefaid ; and if he neglect or refufe to return fuch perfons fo elec- ted to the fherifF or ftewart ; or, if he fhall return to the fherifF or ilcwart any perfon other than him who is fo eleded, he fhall, for every. APPENDIX. sn " every fiicli oficnce, inftead of the penalty or forfeiture to which he is made liable by the r.forcfaid a6l, made in the fevcnth year of his prefent Majcdy, tbrfeit the fum of five hundred pounds Sterling to Penalty. the candidate elected by the majority of the commiflioners alTem- bled, whofe cominifhons are authenticated as aforefaid ; to be reco- vered by him or his executors in the manner herein after dire£ted ; and he fliall alio fuffer imprifonment for the fpace of fix kalendar months, and be for ever after difabled to hold or enjoy his faid of- fice of common clerk of the faid prefiding borough,. as if he was na- turally dead. XXXI. And be it enabled by the authority aforefaid, that every Writ and rc- iheriff" or ftewart, in that part of Great Britain called Scotland, Ihall ^"Tex'^d!"* annex to the writ the return made by the aforefaid clerk of the pre- fiding borough ; and if any fuch fherifF or ftewart negledl or refufe to annex to the writ fuch return, or if he fliall annex to the writ any return made by any other perfon, he fliall, for every fuch of- fence, inftead of the penalty or forfeiture to which he is made li- able by the aforefaid a£t, made in the feventh year of his prefent Majefty, forfeit the fum of five hundred pounds Sterling to the can- Penalty,- didate returned by the aforefaid clerk of the prefiding borough, to be recovered by him or his executors in the manner herein after direded. XXXII. Provided always, that. If any perfon to whom no commif- rroviw.- fion is made out, as aforefaid, fliall infift that he was duly eledcd the commiflioner from any royal borough, the perfon fo claiming fliall be admitted to the meeting of the commiflioners for choofing burgeflcs to ferve in parliament, and may at the faid meeting make ofler of taking all the oaths required by law, and declare for whom he would have voted had he been duly commiflTioned ; which oaths the clerk of the prefiding borough is hereby required and imp.ower- etl' 574 APPENDIX. ed, to admlnifter ; and the fa'id clerk (liall alfo fet down in the minutes of proceedings, the declaration of fuch perfon as to the candidate for whom he would have voted, had he been duly commiflioned ; but the faid clerk fhall, upon no pretence whatfoever, receive or confider fuch perfon as a legal voter, or fuch declaration as a legal %'ote at fuch election. Aa 2. XXXIII. And whereas doubts have arifen, whether the aft of .confirmed. parliament made in the fecond year of the reign of his prefent Ma- jeily, intituled, * An ad for the more efFedual preventing bribery ' and corruption in the eledion of members to ferve in parliament,' extends to the eledors of commifTioners for choofing burgeffes ; be it hereby enaded by the authority aforefaid, that the eledors of commiflioners for any royal borough, within that part of Great Britain called Scotland, for choofing burgeffes to parliament, are within the true intent and meaning of the faid ad, to be confidered as eledors of the member to ferve in parliament, and fhall be fo deemed and adjudged to all intents and purpofes whatfoever, and fhall be liable to all the provifions, forfeitures, and incapacities to which perfons voting, or claiming to vote for any member to ferve in parliament are made Jiable by the faid ad. XXXIV. And be it further enaded by the authority aforefaid, -that, at eveiy eledion of commiffioners for choofing burgeffes for the feveral diftrids of boroughs in that part of Great Britain called Scotland, and at the eledion of a burgefs to ferve in parliament for thjs city of Edinburgh, every magiftrate, town counfellor, or perfon having, or claiming to have a right to vote at fuch eledion, inftead of the oath prefcribed to be taken by the faid ad, before he is ad- mitted to vote at the fame eledion, Ihall take the following oath, ia ,fiafe the fame fhall be demanded by any one of the eledors ; and which APPENDIX. 5-75 which oath any of the maglftrates, or, in their abfencc, any of the town-council are hereby impowered and required to adminifter. ** I A. B. do folemnly fwear, that I have not, diredly or indi- Oath to b« •' ' . ' ^ . taken by the re£tly, by way of loan or other device whatfoever, received any magiftrates fum or futns of money, office, place, employment, gratuity, or re- tion of a bur- ward, or any bond, bill, or note, or any promife of any fum or fums S*^^^' ^*^' of money, office, place, employment, or gratuity whatfoever, either by myfelf or any other, to my ufe, or benefit, or advantage, or to the ufe, benefit, or advantage of the city or borough of which I am magiflrate, counfellor, or burgefs, in order to give my vote at this eledion. So help me God." XXXV. And be it further enaded by the authority aforefaid, that, in all eledions of commiffioners for choofing burgefles, and before they proceed to eledion, the common clerk of each borough Ihall take and fubfcribe the oath following, which any of the ma- giftrates, or, in their abfence, any two of the town-council are here-- by impowered and required to adminifter. " I A. B. fo folemnly fwear, that I have not, diredly or indi- Oath to be re£tly, by way of loan or other device whatfoever, received any common fum or fums of money, office, place, employment, eratuity, or re- <^'"k before ' _ * * ' ° -' ' the eleciion ward, or any bond, bill, or note, or any promife of any fum or ofcommif- fums of money, office, place, employment, or gratuity whatfoever, choofe bur- either by myfelf or any other, to my ufe, or benefit, or advantage, ^^'^"* to make out any commiffion for a commiffioner for choofing a bur- gefs ; and that I will duly make out a commiffion to the commif- fioner who lliall be chofen by the majority of the town council af- fembled, and to no other perfon. So help me God." Aodi S7^ N D I X. And that at all meetings of the commiffioners for choofing burgefles to fcrve in parliament, and before they proceed to the eledlion, the clerk of the prefiding borough fliall take and fiibfcribe the follow- ing oath, which the commifTioner for the prefiding borough, or, in his abfence, any other of the commiffioners is hereby required and Impowered to adminifter. Oath of the " I A. B. do folemnly fwear, that I have not, dire£tly or indi- '^'^fidb'^" re£lly, by way of loan, or other device whatfoever, received any borough be- f^j-j^j or fums of money, office, place, employment, gratuity, or re- lore else* tion. ward, or any bond, bill, or note, or any promife of any fum or fums of money, office, place, employment, or gratuity whatfoever, either by myfelf, or any other to my ufe, or benefit, or advantage, to make any return at this eledion of a member to ferve in parliament ; and that I will return to the fherifF or flewart the perfon eleded by the major part of the commiffioners aflembled, whofe commiffions are authenticated by the fubfcription of the common clerk, and com- mon feal of the refpedive boroughs of this diftrid. So help me God." Penalty on the clerk of the prefiding borough's negleft. XXXVI. And be it further enaded by the authority aforefaid, that, if the clerk of the prefiding borough fliall negled or refufe to take the oath aforefaid, fuch clerk fo refufing or negleding fhall be incapable to ad as clerk to the faid meeting, and it fliall be lawful to and for the faid commiffioners, and they are hereby impowered and required to choofe another clerk to the meeting for the eledion, and who flaall have all the powers and authorities in the f^ld meet- ing, and in the returning the member chofen by them, that by law are competent to the clerk of the prefiding borough. XXXVII. And be it further enaded by the authority aforefaid, .that, at all the eledions of a member to ferve in parliament for any county APPENDIX. 577 county or (Icwartry in that part of Great Britain called Scotland, the clerk cliofcn by the majority of fuch pcrfons as ftand upon the faid roll lafl made up by the fi'eeholders, whether at the Michael- mas court, or at the lafl: elcdion of a member to ferve in parlia- ment, fhall immediately after his cledion take and fubfcribe the fol- lowing oath, which the prcfes of the meeting is hereby required and impovvcred to adminifter. " I A. B. do folemnly fvvear, that I have not, dire£lly or iiidi- O.ithofthe reiStly, by way of loan or other device whatfoever, received any fum ic-aion of or fums of money, office, place, or employment, gratuity, or reward, "^'^"^ " or any bond, bill, or note, or any promife of any fum or funis of money, oflice, place, employment, or gratuity whatfoever, by ..iv- felf or any other to my ufe, or benefit, or advantage, to make any return at the prefent cledion of a member to ferve in parliament ; and that I will return to the fheriff or fte-wart the perfon eledled by the majority of the freeholders upon the roll made up at this elec- tion, and who fliall be prefent and vote at this meeting. So help me God." XXXVIII. And whereas, by the faid a£l of parliament, made in Repeal of the fecond year of the reign of his prefent Majefty, it is enadtcd, Aa 2. t^at every fherifF, mayor, bailiff, head-borough, or other perfon be- ing the returning officer of any member to ferve in parliament, fliall, immediately after reading the writ or precept for the eledion of fuch members, take and fubfcribe the oath contained in the afore- faid aft ; be it enafted by the authority aforefaid, that fo much of the faid a£t as requires the faid oath to be taken by any returning officer within that part of Great Britain called Scotland, fhall be, and is hereby repealed. 4 D XXXIX. Geo. IL 578 E N D I X. What fhall XXXIX. And be it further ena£led by the authority afbrefaid, conviaion of tliat, if any perfon fliall prefume wilfully and falfely to fwear and perjury. fubfcribc any of the oaths required to be taken by this a£t, and fhall thereof be lawfully convicted, he fliall incur the pains and puniflr- ■ments of perjury, and be profecuted for the fame, according to the laws and forms in ufe in Scotland, Writs cf XL. And be it further enaded by the authority aforefaid, that, fumrnons,for • l r l /• calling a new whcn any new parliament (hall, at any time herearter, be lumraon- pariiament, ^ ^^ called, the Lord Chancellor, Lord Keeper, or Lords Commif- to be made ' ' r j out immedi- fioners of the great feal for the time beine, fhall iflue out the writs- ately. ° . . for election of members to ferve in parliament for that part of Great Britain called Scotland with as much expedition as the fame may be done ; and that, as well upon the calling or fummoning any new parliament, as alfo in cafe of any vacancy during this prefent, or any future parliament, the feveral writs fhall be delivered to the flierifF or flewart to whom the execution thereof does belong or ap- pertain, and to no other perfon whatfoever ; and that every fuch Iheriff or ftewart, upon the receipt of the writ, fliall, upon the back, thereof, indorfe the day he received the fame, and fliall forthwith upon the receipt of the writ, at leaft within the fpace of four days after the receipt thereof, make out a precept to each borough with- in his jurifdidlion, to eleiSt a commifTioner for choofing a burgefs to ferve in parliament, and fliall cauft the fame to be delivered to the chief magiftrate of fuch borough, refient in the borough for the time being ; and in cafe fuch flierifF or flewart fliall negled to indorfe on the back of the writ the day he received the fame, or fliall negledl to make out his precept, and to deliver the fame to the chief magi- ftrate within the time, and in the rnanner above directed, he fliall, Penalty. ^or every fuch offence, forfeit the fum of one hundred pounds Ster- ling to any magiftrate of the borough to which the precept is not timeoufly APPENDIX. ,-;y timeoufly delivered, who (hall fue for the fame, to be recovered in manner herein after direded. XLI. And he it further enaded hy tlie authority aforefaid, tliat fuch chief magiftrate to whom the precept fliall he delivered in manner above dire£led, upon the receipt thereof, fliali, upon the When tiie back of the precept, indorfe the day he received the fame, and (hall, be called 'for within two days after his receipt of the precept, call and fummon '^^"'"3^''^^ the council of the borough together, by giving notice perfonally, or commiinon- I • • Lin- / er for clcc- Icavmg notice at the dwelling-place of every counfellor then refient iing ;i bur- in that borough ; which council lliall then appoint a peremptory ^'^ ^' day for the eledion of a comniilfioner for choofing a burgcfs to ferve in parliament. XLII. Provided always, that two free days fliall intervene be- Two days to twixt the meeting of the council which appoints the day of eledioa betweerihe of the faid commiffioner, and the day on which the election of the <^°""<^'^ . . ' , meeting and Gommiffioner is to be made ; and in caic fuch chief magiftrate fliall the day cf negle^fl to indorfe the day he received the precept on the back thereof, or to fummon the council within the time, and in the inan- ner above direded, he fliall for every fuch olfence forfeit the fum Chief nugi- , , I J c !• -n - ftrate to in- oi one hundred pounds bterling to any magiftrate or counfellor of dorfetheday the faid borough who fliall fue for the fame, to be recovered in fhc'^trc'^^f manner herein after dircded. XLIir. And be it further enaded by the authority aforefaid, that Manner of every penalty or forfeiture by this ad impofed, in that part of "^cM^ltieT^ Great Britain called Scotland, fhall and may be fued for and reco- vered by way of fummary complaint before the Court of ScfFion, upon thirty days notice to the perfon complained of, without abi- ding the courf'e of any roll ; which faid complaint the Court of Sef- hon is hereby autkorifed and required to determine ; as alfo to dc- 4 D 2 clare 58o E N D I X. clare the difabilities and incapacities, and to dired the impiifon- ments, as herein provided. i Limitation of aiSions. XLIV. Provided always, and it is hereby declared and ena£led by the authority aforefaid, that no perfon fliall be made liable to any incapacity, difability, forfeiture, or penalty by this adl impofed in that part of Great Britain called Scotland, unlefs profecution be commenced within one year after fuch incapacity, difability, forfei- ture, or penalty fhall be incurred. Anno Decimo Quarto G E O R G I T III. Cap. 8 i. jiti Act for altering and amending an ASl made in the fixteenth year of his late Majeflys reign, intituled, An a£t to explain and amend the laws touching the Elections of Members to ferve for the Com- mons in Parliament, for that part of Great Britain called Scotland, and to reftrain the partiality, and regulate the conduit of returning officers at fuch eledions, by altering the time of notice ordered by thefqid a6l to he given in thefervice of complaints to the Court of Seffion, of zurofigs done in ele^ions, and by regulating the inanner, and fettling the place of eledion of a burgefs to ferve in parliament for a diftri^ of boroughs in Scotland, ivhen the eleSlion of the ma- gif rates and council of a borough, ivhich ought in courfe to be the prcfiding borough at an ele6lion, happens to be reduced, and made void by a decree of the Court of Seffion, and not revived by the croivn ivhen fuch an eleflion is made. , Preamble. Aa 1 6. Geo. ir. WHEREAS, by an aft made in the fixteenth year of his late Majefty's reign, intituled, ' An adl to explain and amend the laws * touching the eleftions of members to ferve for the Commons in * parliament for that part of Great Britain called Scotland, and to * reftrain A P P E N D I X. 581 ' reftraiii tlie partiality, and regulate the condud of returning ofTi- cers nt fuch ele£tions;' complaints to the Court of ScfTion, for rc- drcfs of wrongs committed by the enrolling, or refufing to enrol- perfons claiming to be enrolled in the roll of freeholders, or in the annual eleiTlions of royal boroughs, are ordered to be ferved upon thirty days notice ; and whereas it is found by experience fo long CourtofSef- notice is unnecefTary, and occafions delay in the fummary determi- te"endaysno- nation of fuch complaints, agreeable to the intendment of the faid ''"' ^^' , . grant war- a£l, May it therefore pleafe your Majefty that it may be enadled, rants for fcr- and be it enaded by the King's moft excellent Majefty, by and with plaints, for^' the advice and confent of the Lords Spiritual and Temporal, and ^^'^^'^^^ °^ ^ ^ ' wrongs com- Commons, in this prefent parliament aflembled, and by the autho- fitted by rity of the fame, that from and after the twelfth day of June, in &c. the year of our Lord one thoufand feven hundred and feventy-four, the Court of SeiTion Ihal! grant warrants for the fervice of all fuch complaints as aforefaid, upon fifteen days notice. II. And whereas the eledions of magiftrates and counfellors Ox Ekaionof a, burgefs to royal boroughs in Scotland haA'e fometimes been reduced and made fe^^fV void' by decrees of the Court of Seflion, in adlions or complaints I'ament re- gulated. brought before the faid court for that purpofe, by which the corpo- rate power of fuch boroughs are, in effed, in a ftate of nonexiftence, until reftored by the juflice and favour of the crown j and whereas no provihon is made in the forefaid a£l of the fixteenth year of the reign of his late Majefty, or any other adl'now in being, for rc^-u- lating the manner, and fettling^ the place of eledion of a burgefs to ferve in parliament for a diftridt of boroughs in Scotland, when the eledion of maglftrates and council of a borough, .which ought in courfe to have been the prefiding borough at the eledion, happens to be reduced, and not revived when the eledion is made; for re- medying thereof, be it enaded by the authority aforefaid, that in every eledion of a burgefs to ferve in parliament for a diftrid of boroughs 582 N D I X. boroughs in Scotland, when it fliall happen that the eledlon of the magiflrates and council of the borough, which ought to have been the prefiding borough at fuch eledlion, is reduced, and not revived, the next borough inticled to prefide in turn fhall be the prefiding borough, and the election (hall be made at that borough, and the commiflioner for that borough fliall be the prefident of the meeting of commiffioners for the elecflion, and have a cafting and decifive vote, befides his own as commiflioner, where the votes of the com- miflioners are equal; and the common clerk of that borough fliall be clerk to the election j and every matter and thing concerning the eledion fliall be proceeded in as if that borough had been the pre- fiding borough in the ordinaiy courfe of rotation. The prefi- HI. And be it further enaded by the authority aforefaid, that the rou'crh of the borough whicli VN^ould have been the prefiding borough at the elec- diftnci hnw • j£ ^|^g eledlou of the maeiftrates and counfellors of fuch bo- te be alcer- ' o tained. rough had not been reduced, fliall, when revived by the juftice and favour of the crown, have no right or title to be a prefiding bo- rough in the eledion of a burgefs to ferve in parliament for the di- fl:ri£t of boroughs of which it is one, until the other boroughs of the diftrid, each in their turn, have fucceflively prefided, and that the right, devolves upon fuch borough in the ordinary courfe of rotation. Preamble. Anno Vicefimo Secundo G E O R G I I III. Regis. Cap. 41. jin A6i for belter fecur'tng the freedom of ele^ions of Members to ferve in parliament , by difabling certain officers emp/oyed in the col- I'e^iion or manaj^ement of his Majeflys revenues from giving their votes at fuch elections. FOR the better fecuring the freedom of eledlions of members to ferve in parliament, be it enaded by the King's moll excellent Majefty, APPENDIX. 58.5 Majcfty, by and with the advice and confent of the Lords Spiritual and Temporal, and Commons, in this prefent parliament afTemhied, and by the authority of the fame, that from and after the firft day From Au- of Augufl one thoufand fcven hundred and eighty-two, no commif- no cornmif- ' fioner, colledor, fupervifor, eauaer, or other ofhtcr or perfon v^hat- ''on-''«roffi- foever, concerned or employed in the charging, colleding, levying, in collciting ' ' _ or managing or managing, the duties of excife, or any branch or part thereof; the duties of nor any commifFioner, colledor, comptroller, fearclier, or other offi- fto^^s' «o'c' cer or perfon whatfoever, concerned or employed in the charging, AwH have ... . ° ° any vote in colleding, levying, or managing the cuftoms, or any branch or part the eleflion thereof; nor any commifiioner, officer, or other perfon, concerned of parha"" or employed in coUedling, receiving, or managing, any of the du- ^^lent. ties on ftan?ped vellum, parchrnent, and paper ; nor any perfon ap- pointed by the commiffioners for diftributing of llamps ; nor any commifTioner, officer, or other perfon employed in coUedtlng, levy- ing, or managing, any of the duties on fait; nor any furveyor, col- ledor, compti oiler, infpedor, officer, or other perfon employed in collecting, managing, or recei-ving, the duties on windows or houfes; nor any poftmafter, poftmafters general, or his or their deputy, or deputies, or any perfon employed by or imder him or them, in re- ceiving, colleiSting, or managing, tlie revenue of the poft-office, or any part thereof; nor any Captain, mafter, or mate, of any fhip, packet, or other veiTel, emploj-ed by or under the poftmafter, or poflmafters general, in conveying the maill to and from foreign ports, fhall be capable of giving his vote for the eledlion of any knight of the ffiire, commiffioner, citizen, burgefs, or baron, to ferve in parliament for any county, ftewartry, city, borough, or cinque port, or for chooftng any delegate in whom the right of eleding members to ferve in parliament for that part of Great Britain called Scotland, is vefted: And if any perfon hereby made incapable of Penalty on votine, as aforefaid, fhall ncverthelcfs prefume to give his vote du- P.*''^°"s vo- o' '^ '^ ting who are ring the time he Ihall hold, or within twelve kalcndar months after difquaiified , by this aft. lie. 584 A P P E N D I X. he ihall ceafe to hold, or execute any of the offices aforefald, con- .trary to the true intent and meaning of this ad, fuch votes fo given •{hall be held null and void to all intents and purpoles whatfoever, -and every perfon fo ofFending (Kail forfeit the fum of one hundred ■pounds, one moiety thereof to the informer, and the other moiety thereof to be immediately paid into the hands of the treafurer of the county, riding, or divifion, within which fuch offence fhall have been committed, in that part of Great Britain called England; and into the hands of the clerk of the juftices of the peace of the counties or ftewartries in that part of Great Britain called Scot- land, to be applied and difpofed of to fuch purpofes as the juftices, at the next general quarter feffion of the peace to be held for fuch county, ftewartry, riding, or divifion, {hall think fit, to be recovered by any peifon that {hall fue for the fame, by adion of debt, bill, plaint, or information, in any of his Majcfty's courts of record at Weftminfter, in which no effoin, protedion, privilege, or wager of law, or more than one imparlance fhall be allowed ; or by fummary complaint before the court of feffion in Scotland ; and the perfon convided on any fuch fuit {hall thereby become difabled and in- capable of ever bearing or executing any office, or place of trufl whatfoever, under his Majefty, his heirs, and fucceffiars. Not to ex- IT. Provided always, and be it enaded, that nothing in this ad miffionersTf Contained fliall extend, or be conftrued to extend, to any perfon or the land tax, perfons, for or by reafon of his or their being a commiffioner, or aaing under commiffioners, of the land-tax, or for, or by reafon of his or their ^^^"^ ading by or under the appointment of fuch commiffioners of the land-tax, for the purpofe of affeffimg, levying, colleding, receiving or managing, the land-tax, or any other rates or duties already grant- ed or imppfed, or which {hall hereafter be granted or impofed by authority of parliament. JII. A P E N D I X. S^S III. Provided alfo, and be it further enaded, that nothinc; in this KortoorTicc« adt contained fliall extend, or be conflrued to extend, to any oflice tcrs patent now held, or ufually granted to be held, by letters patent, for any ofVnJieri- '^ -eftate of inheritance or freehold. lance. IV. Provided always, and be it enabled by the autliority afore- ^'"r ^^ V'- •faid, that nothing herein contained fliall extend to any pcrfon who fhail rcugn iliall refign his office or employment on or before the faid firft day i, fore Au- of Auguft one thoufand feven hundred and eighty-two. their oflice>) b.fore Au- gull I. lybz. V. Provided alfo, and be it enadled, that no perfon fliall be liable Limitation to any forfeiture or penalty by this a6l laid or impofcd, unlefs pro- fecution be commenced within twelve months after fuch penalty or forfeiture fhall be incurred. Anno Vicefimo Secundo GEORGII III. Regis. Cap. XLV. ^H y/df? for rcjlraining any Perfon cencerned in any contract^ comm'if- fion, or agreonent made for the public fervice from being elected or fitting and 'voting as a member of the Houfe of Commons. FOR further fecuring the freedom and independence of parlia- ment, be it enadted by the King's mofl: excellent Majcfty, by and with the advice and confent of the Lords Spiritual and Temporal and Commons, in this prefent parliament aflembled, and by the au- thority of the fame, that, from and after the end of this prefent [di- fion of parliament, any perfon who fliall, diredly or indiredly, himfelf, or by any perfon whatfocver in trufl: for him, or for his ufe or benefit, or on his account, undertake, execute, hold, or en- joy, in the whole or in part, any contrad, agreement, or commif- fion made or entered into with, under, or from the commiffioners 4 E of Preamble. After the end of this feillon, all perlbns hold- ing contra-Ss for tlie pu- blic fervice fliall be in- capable of being elec- ted or fitting iu the Houfe ofCommons. 586. A P N D I X. of his Majefty's treafury, or of the navy or vidlualling-office, or with the mafter-general or board of ordnance, or with any one or more of fuch commifTioners, or with any other perfon or perfons whatfoever, for or on account of the public fervice, or fhall know- ingly and wilHngly furnifli or provide in purfuance of any fuch iigreement, contra£t, or commiflion which he or they fhall have made or entered into, as aforefaid, any money to be remitted abroad, or any wares or merchandize to be ufed or employed in the fervicer of the public, {hall be incapable of being eledted, or of fitting or voting as a member of the Houfe of Commons during the time that he ihall execute, hold, or enjoy any fuch contrad, agreement, or commiffion, or any part or fhare thereof, or any benefit or emolu* ment arifmg fi-om the fame.. A'ny mem* her accep- ting a con- traft, or continuingto hold any con- tract after the commence- ment of the next feifion, his feat (hall be void. 11, And be it further enadled by the authority aforefaid, that, if. any perfon, being a member of the Houfe of Commons, fhall, di-- redly or indirectly, himfelf, or by any other perfon whatfoever in truft for him, or for his ufe or benefit, or on his account, enter into, . accept of, agree for, undertake, or execute, in the whole or in parr, any fuch contracfl:, agreement, or commiflion, as aforefaid; or- if any perfon, being a member of the Houfe of Commons, and having already entered into any fuch contrad, agreement, or commiffion, or part or Iliare of any fuch' contra £1, agreement, or commifTibn, by himfelf, or by any other perfon whatfoever,. in tru ft for him, or for his ufe or benefit, or upon his account, fhall, after the commence- ment of the next feifion of parliament, continue-to hold, execute; or enjoy the- fame, or any part thereof, the feat of every fuch per^- fon in the Ploufe of Gcmmons fhall- be, and is hereby declared to be void. . Not to ex- III. Provided always, and be it enadted, that nothing herein coht corponited taincd fliall extend, or be conftruexl to extend to any contradl, agree- iradingcom- UlCnt, panics. - ■ one year. APPENDIX. 587 ment, or commiflion made, entered into, or accepted by any Incor- porated trading company, in its corporate capacity, nor to any com- pany now exifting or eftabliflicd, and confifting of more than ten perfons, where fuch contradt, agreement, or cominifTion fhall be made, entered into, or accepted, for the general benefit of fuch in- corporation or company. IV. Provided alfo, and be it enaded, tliat nothing in this ad con- Not to er.. ■tained fliall extend, or be conftrued to extend to any contra^, agree- uaasSrcrd^ ment, or commiflion made, entered into, or accepted before the paf- "^»'^«<"r fmg of this adl, the term whereof will expire in the fpace of one year from the time of making thereof. V. Provided alfo, and be it enaded, that, where any eontracl:, Ciaufe rcia- agreement, or commiflion has been made, entered into, or accepted, traftsVi^ch with a provifion that the fame fliall continue until a year's notice a'"^ not to , , , . expire until Ije given of the intended diflx)lutIon thereof, the fame fiiall not dif- a year's no- able any perfon from fitting and voting in parliament, until one '^ -' year after the faid notice fliall be adually given for the determina- tion of the faid contradl, agreement, or commiflion, or till after twelve kalendar months, to be computed from the time of pafl!ing this ad. VI. Provided alfo, and be it enaded, that nothing herein con- i^^t to ex- tained flhiall extend, or be conftrued to extend to any perfon on ^^°^ '° '^'l"' ' 7 r trafls by de- whom, after the pafling of this ad, the completion of any contrad, fcent.&c.un- agreement, or commiflTion fliall devolve by defcent or lim.itatlon, or months pof- by marriage, or as devifee, legatee, executor, or adminifi;rator, until ^*'^'°'^- twelve kalendar months after he fliall have been in pofl'eflTion of the ;fame. 4 E 2 vir. j88 E N D I X. Members VII. Provided alfo, and be it enadled, that any perfon who ie iiotdiag con- - r i • traflsmaybe HOW a member of the Houle of Commons^ and holds and enjoys therefrom, any fuch contraft, agreement, or commiffion, as aforefaid, may be on giving 1 2 (Jifeharged from the execution thereof, on giving twelve months notice to the perfen or perfons with, or from whom fuch conrradt,. agreement, or commiflion is made, entered into, or accepted, of his- defire that the fame fhall ceafe and determine ; and fuch contradl, agreement, or commiffion, after the expiration of the term afore- fiid, fliall be null and void. months ae tke, Claufe rela- tive to pa- tentees for new inven- tions. If any per- fon, hereby difqualifieJ, Ihail be elec- ted, fuch e- leiSion fhall be void. D'ifabledper-- fons who Ihall fit in the Houfe of Commons after this fef- iion, fhall forfeit L. 500 for cujh day. . VIII. Provided alfo, that, if any perfon, adually pofTefTed of a patent for a new invention, or a prolongation thereof by adl of par- liament, and having contra(5led with government concerning the objedt of the faid patent before the paffing of this adl, Ihall give notice of his intention to diffolve the faid contradl, the fame fhall be null and void from the time of giving fuch notice. IX. And be it further enaded by the authority aforefaid, that, if. any perfon, hereby difabled or declared to be incapable to fit or vote in parliament, fhall neverthelefs be returned as a member to ferve for any county, flewartry, city, borough, town, cinque port, or place in parliament, fuch eledlion and return are hereby enafted and declared to be void : And if any perfon, difabled and declared incapable by this ad to be eleded, fhall, after. the end of this prefent feffion of parliament, prefume to fit or vote as a member of the Houfe of Commons, fuch peifon, fo. fitting or voting, fhall forfeit the fum of five hundred pounds for every day in which he fhall fit or vote in the faid Houfe, to any perfon or perfons who fhall fue for the fame in any of his Majefty's courts at Weftminf^er ; and the money fo forfeited flaall be recovered by the perfon or perfons fo fuing, with < full cofts of fuit, in any of the faid courts, by any adion of debt, bill, plaint, or information, in which no eflbin, privilege, protedion, or. E N D I X. 589 ■ or wager of law, or more than one imparlance fliall be allowed, or by fummary complaint before the Court of Scflion in Scotland : And every perfon againfl: whom any fuch penalty or forfeiture fhall be recovered by virtue of this aft, fliall be from thenceforth inca- pable of taking or holding any contrail, agreement, or commiffioii for the public fervice, or any fliare thereof, or any benefit or emo- lument from the fixme in any manner whatfoever. X. Arrd be it enac place of the flieriiTj books when not produced, p. i.\r). — — Their mode of proceeding at Michaelmas meetings, ibid. — at meetings for election, 305. i/fc/j. Who entitled to cafting vote, 149. 316. Need not take the oaths before the eleclion of prefes and ckrk unjefs re- quired, 150. One freeholder may conflitute a meeting, 156. Cannot be compelled to meet at Michaelmas, 157. Cannot review or alter the proceedings of former meetings, 155.— -but may enroll claimants on titles formerly rejected, 156. Have no ri^ht to call for the warrant of a charter, or to object that it is not conform to the fignature, 222. — but may difregard charters or infeftments null, exfticie, or liable to objections eftablifiied under the hand of claimants, or their au- thors, 223. ^ Have no authority to cite witnefTes, or adminifter oaths, ibid. Refufing to take the oaths to government cannot vote, but are not to be flruck off the roll, 269. Note f. — The cafe the fame when they refufe to take the formula, ibid. Refufing to Take the oath of trufl: or poflefllon, or withdrawing purpofely to avoid it, muft be ftruck off the roll, 254. Twice within a year preceding prefent at divine fervice in a non-jurant meeting-houfe difqualified from voting in the elecSlion of a commilHoner, 272. 273. — may however vote in the eleftion of prefesand clerk, ibid. Can they vote in adjufting the roll .? ibid, ~ Their judgments refufing to admit, or ftriking off the roll, maybe review- ed by court of feffion, if complained of within four kalendar months, 133. — What to be done if they wrongfully enrol, or repel an obje»ftIon, 136. 137. Their delaying to enrol equal to a refufal, 134. Their qualifications. See ^mliJicaUon, — Their clerks. See Clerks. H Hawkers and pedlars, clerks and deputies in the office of, incapable to be elected, tgr. Head courts, formerly three, now only one in a year, jp. Note *. Heirs apparent. See apparent Heirs. Homo, meaning of, in barbarous Latin, 20. Hofpitals, matters of, cannot be enrolled, or vote in eleftions of commlffioners from lliires, 208. iloufes, •500 INDEX. Houfes, perfons employed in receiving, colledling, or managing duties on, difabled to elect or be elefted, 277. 294. Hufbands may vote in right of their wives freeholds ; and widowers of heirefles in vir- tue of the courtefy, 64. 238. Cannot vote on liferent rights in their wives, 239. — nor on their apparen- cy ; — but not necelTary that the wife be a year infeft in her predeeeffor's eftate, 251. Indenture between Robert Bruce and the Earls, barons, freeholders, and communities of boroughs, 22. 405. Between a flieriffand clerk of the 'freeholders, 474, Between a flieriffand clerk of a prefiding borough, 491. Infeftment, in general, neceflary to the conftitution of a freehold qualification, 159. For relief, or payment of money, does not entitle to vote, 64. Mufl be taken and regiflered one year before enrolment, 212. Not neceflary that it be regiflered a year before the tejle of a writ for elec- tion, ibid, et feq. , When is the year underflood to expire .'' 220. ... — Difpenfing claufe in a charter fufHcient to fupport an infeftment taken at one place for feveral difcontiguous parcels of land, although the union be difTolved,, by alienation of part of the united lands, 224. etfeq. m — Taken in confequence of a charter from the ctov^n, fupplendo vices, does not entitle fub-vafTals to be enrolled, or prevent the immediate fuperior from being fo,, 204. On a difpofition by heir of entail fufEcient, 228. On a difpofition containing a provifo that no debts contra(rted, or deeds done, during the life of the granter, without his confent, fhall affeiTt the lands, fuIH- cient, 227. ~ On a difpofition containing an affignation to a charter, but referving the. dominium utile, not fufHcient, 252. See further, Re gijl ration, Seifiue. Interdiftion, what, 268. Note \. Does it prevent a perfon's being enrolled, 268. Judges, none of the twelve judges of England, or of the courts of fefEon, Jufliciary, or exchequer, fn Scotland, can be elefted, 291. 292. Jus tertii, is it to freeholders to objeft a multiplication of fuperiors, 230. et feq. K Kalendar month, what, 133. Note ^. Kilrenny, borough of, refigned its royalty in parliament, 48. Note *. Kinrofs, INDEX. tfoi Klnrofs, fliire of, fent no commiflioncr to the parliament of Scotland for a confidcrablc time before i63i, p. 210. Note • 468. — . Eledts only by turns with Clackmannan, 107. L Land-tax, how proportioned formerly, 160. 181 — how now, 181. 182. Colle(ftor of, can he vote for a commiflioner from a fliirc or borough, 278. Liferenter. See Fiar. Lifts, figned by peers, what neceflary to render them vaUJ, 120. M Magiftrates, chief of royal boroughs, mud: immediately indorfe upon the flieriff's pre- cept the day it comes to their hands, and within two days after call a meeting of council to fix a day for choofing their commiffioner, 362. If fet afide on bribery or other grounds, the whole election is voided, 351. , and counfellors, oatlis to be taken by. See Oaths. i "What number necelTary to make a quorum, 356. — See further, Bormght Royal, Complaint, Penalty. Michaelmas head-court. See Head-court. Mills, were they ever extended, 172. — — Muft receive a iliare of a nimulo valuation, if evidence appear of their having been formerly valued, 199. — If that is uncertain, a diftiniStioa made between thofe thu have an eflablilhed thirlage and others, 200. Minors, cannot be enrolled or eledled, 267. 290. i Cannot vote in eleftion of peers, 117. Minute-book, what, 147. Note f. Mifnomer, fatal to a complaint, 146. 147. 338. Multiplication of fuperiors on a vaflal contrary to law, 228. etfeq. See Jus TertiL N Nairn, fhire of, clefts by turns with Cromarty, 107. Navy, clerks or deputies in office of, incapable to be clefted, 29J. Officers of, do not vacate their feats on getting new commiffions, 299. Nominal or fiftitious, 258. to 266. Oath, of bribery, 315. -— Of fupremacy, 11 8. Note*. O 4 G Oath 6o2 INDEX, Oath of trufl: and poflelllon, p. 253. 254 — When can it be put? 256. — Explanation of it, 260. Note * Miift be taken by commiffioners from fhires, eleifted in their abfcnce, be- fore they take their feats, 316. — Blank in the beginning of it how to be filled up, 312. Oaths to be taken by peers, 118. 1 19. To be taken by freeholders, 150. 306. To be taken by clerk to freeholders, 150. 314. 315. To be taken by magiftrates and counfdlors at an annual ele- Three cftatcs met always in one houfe, 82. Majority of the aggregate body fuflkient to enadt laws, or impofe taxes, although one of the ellates fhould entirely diflent, ibid, et feq. Fines impofcd on abfcnt membcns, 50. Lords of Articles, fee Articles. Of Great Britain, its eftabliflimcnt, loj. Of what members compofed, 106. et fiq. Manner of ifluing writs for election of reprefentatives of fiiires and bo- roughs in Scotland, 110. __ Manner of iffumg and publifliuig proclamations for eleiSling the fixtecn peers of Scotland, iio. iii. 123. Parliamcntum indoftum, 300. Peers, fixteen, of Scotland, by whom elected, 113. et feq. Muft come to eleiflions with their ordinary attendants only, 123. Mufi: not aft, propofe, debate, or treat of any matter or thing but the election of their reprefentatives, 124. Before proceeding to eleftion, muft take and fubfcribe the oaths of allegiance and abjuration, 118. Alfo the oath of fuprcmacy, and the teft, 118. 119. Manner of tlieir proceeding at an election, 1 24. et feq. Not capable to eleft or be elefted, if twice, within twelve months preceding, prefent at divine fervice in a nonjurant meeting-houfe, 1 19. If abfent, may fend proxies or figned lifts, fee Proxies, Lijls. Fatuous, can they vote ? 122. Peerefs, in her own right, can Ihe vote in the eleftion of tlie fixteen peers ? 117. Peers of Scotland, can they be created Britifli peers, fo as to lit in the Houfe of Lords ? 114. ttfeq. — — Their eldeft fons cannot be enrolled, 269. Or be elected for any county or borough in Scotland, 271. 290. Of Ireland, may eleft and be elected for lliires or boroughs, 272. Penalty on clerk of the crown ncglefting to enter returns in his book, or making any alteration on them, unlefs by order of the Houfe of Commons, or giving cei'tilicate of any perfon not returned, 326. 4 G 2 Penaltr 6o4 INDEX. Penalty on commiffioner Lift elected, or flieriff-clei-k, receiving the vote of any per- fbn who does not ftand upon the roll, or not calling for or refuiing the vote of any perfon whofe name is upon the roll, in the choice of prefes and clerk, p. 307. et feq. On their neglecting or refufing to fign minutes of eleftion of prefes and clerk, 3 '4- On commiflioners of fupply acting without being properly qualified, 192. On chief magiftrates of boroughs neglecting to call a meeting of council within two days after receiving a flierifF's precept, 362. On a minority of magiftrates and counfellors feparating from the majority in elections, 335. On perfons elected by a minority voting in eledions, or acting as magiftrates or counfellors, 336. On clerks of royal boroughs neglecting or refufing to fign and feal a commlffion to the commiffioner eledted by the majority of magiftrates and counfellors, or fign- ing and fealing a commiflion to any other perfon, 364. On any other perfon than the common clerk of a borough, aCting as fuch, and giving out a commiffion to any other perfon than the commiffioner appointed by the majority, ibid. On clerk of a prefiding borough negleCting or refuiing to return to the fheriff the perfon eleCted by the majority of the commiffioners who produce legal commif- £ons, or returning any other perfon, 366. 367. On freeholders feparating from the majority, and fetting up any perfons as prefes or clerk, other than thofe chofen by the majority, 314. On perfons aCting as prefes or clerk without being chofen by the majority. ibid. On prefes receiving the vote of any perfon not ftanding upon the roll made up by the meeting for eleCtion, or not calling for or refufing the vote of any perfon ftanding upon that roll, 316. — On clerk to the freeholders negleCting or refufing to return to the fheriff the perfon eleCted by the majority, or returning any other perfon, 3 1 8. On thofe who, without being duly eleited, aCt as clerks, and return any other than the perfon eleCted by the majority of freeholders, 3 1 8. etfeq^. . On ftierifts not timeoufly ifluing their precepts to chief magiftrates of bo- roughs, 361. On their negleCting or refufing to annex to the writ the return made by the clerk chofen by majority of freeholders ftanding upon the roll, or annexing a re- turn made by any other perfon, 320. 321. On their negleCting or refufing to annex the return made by clerk of prefiding borough, or annexing a return made by any other, 378. Penalty INDEX Valued rent, dlvifion made 1)7 ;i private meeting becomes valid if confirmed by a fub- feqiient legal meeting, p. i^j. Tenants need not be parties to procefles of divifion, nor fiiperiors, tij6. —— Divifions fuftained when materially right, although thofe intcreftcd in them have not been called, ibid. luftance of a divifion fuftained although grofbly erroneous, the land-tax having been paid accordingly for twenty years, and no fault being found v/ith it by eitlicr of the two jiarties concerned, 201. What is the regular mode of dividing valued rent, 197. What fubje£ls muft receive a (hare, 199. ' Where the ciimulo comprehends lands feued out before the general valua- tion, a part ought to be allotted to the feu-duties, 200. — : A valuation of L. 400 fufficient for enrolment, although the lands be re- toured to Icfs than forty Ihillings of old extent, 202. A certificate of two commirTioncrs, and clerk of fupply, fufficient evidence of valued rent, unlefs redargued by books of fupply, 201. See Cominijfioners of Supply. Vidtualing-office, commiffioners and clerks, or deputies of, cannot be elefted, 294. 295. W Wadfet, what, 6t,. Note %. Proper, entitles to a vote, ibid. 240. —, Need not contain a claufe of requifition, 243. What if the reverfer be allowed the cafualities of fuperiorlty to become due before redemption, 243. 244. Of fuperiorlty fuftained although the feu-duty be precifely equal to the inter- eft of wadfet fum, 245. __ Is it necefTary that wadfet fum be truly advanced .'' 265. Sometimes difhcult to diflinguifh a wadfet from a redeemable difpofition, 241. et fcq. Wadfetters ceafe to vote when a declarator of redemption, or a refignation or renun- ciation is obtained by reverfer, 245. Way-laying of elcftors, and enticing them by drinking, or otherwife, to keep away from an eledtion, grounds for a complaint, 345. Wine licenfes, commiflioners of, and clerks or deputies in ofHce of, cannot be eledled, 294. 295. Writs, how iffued to fheriffs, 302. How ought they to be tranfmitted ? 303. INIuft be read in the prefence of the freeholders at meetings for election, 305. N UNIVERSITY OF CALIFORNIA AT LOS ANGELES THE UNIVERSITY LIBRARY This book is DUE on the last date stamped below 5£P3 m URL WAR L m MAR 2 19#i^ OlSCKARGE-URC JUN ^^981 Form L-9-20m-8,'37 '"«»» \ mnVIESITY OB' CAUFOENU 'i 1158 00158 /'jf.; ^ « %^.