Scottish Court of Session Decisions

Subject_1 MEMBER of PARLIAMENT.

When the personal attendance of the lesser Barons in Parliament was at first dispensed with by James I., and the privilege of sending Commissioners was substituted in place of that attendance, all the vassals of the Crown, however small their freeholds, were entitled to vote in the election of these Commissioners. This privilege was afterwards, by James VI., limited to those who had a forty-shilling land in free tenantry, and resided within the shire; and was again, by Charles II., extended to those possessed of lands holding of the King, of ten chalders of victual, or L. 1000 Scots of real rent. Afterwards, however, by the statute 1681, which is now, in material points, the rule for determining the qualifications of elections, it was enacted, that none should be allowed to vote but those “who stood publicly infeft and possessed of a forty shilling land of old extent, holden of the King or Prince, distinct from the feu-duties in feu-lands; or where the extent did not appear, stood infeft of lands liable in public burden for his Majesty's supplies for L. 400 of valued rent, whether kirk lands now holden of the King, or other lands holding feu, ward, or blanch, of his Majesty, as King or Prince of Scotland.”

The only exception from the regulations of this statute, is the peculiar constitution of the county of Sutherland, where, by immemorial and continued usage, the right of electing, and being elected, is competent to vassals holding of a subject superior. By statute 16th, Geo. II., such vassals, however, must be possessed of lands paying public burdens to the amount of L. 200 Scots of valued rent. And the same statute contains certain special enactments regarding those anomulous qualifications.

With regard to the manner of keeping the roll of electors - the time of holding the annual Michaelmas head-courts - the form of procedure in those courts - the remedy for those aggrieved by their decisions, by summary complaint to the Court of Session - and the penalty if such complaint is dismised - the statute 16th Geo II. cap. 11. is the rule in all those particulars.

Corruption and perjury in the electors are restrained by penalties contained in act 2d, Geo. II. cap. 24.; and the penalty for the Clerk of Court making a false return, is statuted by act 7th, Geo. II. cap. 16.

Fol. Dic. v. 3. p. 401.
Subject_2 DIVISION III.

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

By what rule are cumulo Valuations to be divided.

Patrick Campbell of Monzie
v.
James Campbell of Ardkinglas

Date: 17 January 1755
Case No. No 52.

Found in conformity with the above.

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At the meeting for electing a Commissioner to Parliament from the county of Stirling, mentioned in the preceding case, Patrick Campbell of Monzie claimed to be enrolled in the roll of the freeholders entitled to vote. His claim was founded, partly upon his right to the superiority of certain lands, which had been disponed to him by Sir James Stirling, and partly upon his right to certain feu-duties, payable out of the lands of Bothkennar, which had originally belonged to the abbacy of Cambuskenneth, and after the Reformation had been erected into a temporal Lordship; to which feu-duties Mr Campbell of Monzie had acquired right.

It was objected by James Campbell of Ardkinglas, one of the freeholders, That Mr Campbell of Monzie was not entitled to be enrolled; 1st, Because be was not infeft in either the property or superiority of the lands, out of which the feu-duties were payable; for the vassals in these lands had taken the benefit of the acts of annexation, and held their lands immediately of the Crown; so that they were not vassals to the claimant, who, by his charter, had no other right than that of uplifting the feu duties; which could no more entitle to a vote, than a perpetual annuity upliftable furth of lands; 2dly, That the valuation of those lands purchased from Sir James Stirling had not been properly diviced from the original valuation in cumulo of the lands of Glorat, whereof they were a part; as the Commissioners of Supply had not taken a proof of the real rent of the lands, but only of the use of payment of the cess.

The majority of the freeholders sustained the objections; and Mr Campbell of Monzie complained to the Court of Session, and pleaded, for obviating the first objection, 1mo, That he was the Crown's vassal in these feu-duties, and that ‘they were liable in public burdens for his Majesty's supply;’ and as their valuation, joined to the valuation of the complainer's other lands, is above L. 700 Scots, he was, in terms of the act 1681, entitled to a vote. These feu-duties were the rents of the lands at the time when the lands were feued out; the complainer is entitled to use a poinding of the ground for payment of them, and has a preferable right in the lands to the vassals, who have only right to the new or improved rent, after the feu-duties or old rent is paid.

2do, That the act 1681 ought to beneficially interpreted, so as to comprehend every heritable subject holding of the Crown, and liable in the payment of public burdens, though these subjects should not be lands in the strict sense of the word, as it is for the advantage of the constitution that all the property in the kingdom be represented in Parliament, and that those who bear the burden of the taxes should have a share in laying them on; and as these feu-duties in Scotland, which formerly belonged to churchmen, amount to about L. 60,000 Sterling yearly, it would be very improper to exclude the proprietors of them from a representation in Parliament.

3tio, The Court of Session has in many instances interpreted the words of the act 1681 more extensively than is now contended for. Thus, 29th January 1745, Sir Patrick Dunbar contra Sinclair of Bremster, No 42. p. 8627. it was found, That one infeft in teinds holding of the Crown, was entitled to vote upon their valuation, although teinds fall but very improperly under the denomination of lands, and are rather a servitude on the lands; and are not debitum fundi, as these feu-duties are, but only debitum fructuum. And, Freeholders of Aberdeenshire contra Fordyce of Monkshill, infra h. t. and Freeholders of Dumbartonshire contra Campbell of Succoth, infra h. t. a right of salmon fishing was found to entitle to a vote; in the former of which cases the claimer had no right to the adjacent lands; and as the extension in the above cases was most just, because the teinds and fishings were rights holden of the Crown, and liable in public burdens for his Majesty's supplies, so the act ought also to be extended so as to comprehend the said feu-duties; for, as Cicero observes, valeat æquitas quæ paribus in causis paria jura desiderat.

It was answered for James Campbell of Ardkinglas, That it appears from our ancient acts of Parliament, that none but proprietors of lands were obliged to give attendance in Parliament; and from our later ones, that none but such proprietors were entitled to elect representatives to Parliament; particularly the act 1681, and 16to Geo. II. (which are now the rule,) expressly mention ‘lands holden of King or Prince.’ The complainer's right to the feu-duties is undoubtedly no right to lands either in property or superiority. The right in his charter is thus described. ‘Et similiter omnes et singulas feudifirmæ divorias subtus specificat. solubiles ex terris postea mentionat. pertinen. ad personas postea mentionat. feudifirmarios et portionarios de Bothkennar respective,’ &c. and the vassals who were the proprietors of the lands hold them immediately of the Crown, and not of the complainer; and therefore this right to the feu-duties can no more entitle to vote, than a perpetual annuity or annualrent could; for it is not the paying of cess, but the holding lands of the Crown, that entitles to vote. And however proper the complainer's arguments for extending the act 1681, so as to comprehend his case, might be before the Legislature; yet they can have no place in a court of law, which must decide according to the words of the law, without regard to considerations of expediency. If the Court has already extended the law, so as to comprehend subjects not directly falling under it, that is no reason for extending it further to other subjects. But the cases mentioned by the complainer were no undue extension; for, in the case of Sir Patrick Dunbar contra Sinclair, it was only found, that the valued rent of the teinds to which the proprietor of the lands had acquired right, might come in computo with the valuation of the lands: And justly; for when the proprietor of the lands had acquired right to the teinds, they ceased to be a servitude or burden on the lands, and the lands became liable for the whole valuation of both stock and teind. But it never was found, that a titular of the teinds of other mens lands was entitled to vote, where the valuation of the teinds exceeded L. 400 Scots. And a right of salmon fishing falls properly under the description of lands, because, by the common principles of law, the channel of a navigable river, as well as all the emoluments and advantages arising from the river, are considered as part and pertinent of the adjacent grounds.

The arguments with respect to the manner of dividing the valued rent, were the same with those used in the case immediately preceding.

The Lords repelled the objections to the complainer's qualification, so far as concerned the division of the valuation of the lands derived from Sir James Stirling; but sustained the objection made to that part of the qualification founded upon the title to the feu-duties payable out of the lands of Bothkennar; and therefore dismissed the complaint. See Div. 4. § 1. h. t.

Act. And. Macdowall, Ro. Dundas & Bruce. Alt. Lockhart & And. Pringle. Clerk, Forbes. Fol. Dic. v. 3. p. 407. & 408. Fac. Col. No 128. p. 190.

*** This case is reported by Lord Kames, No 9. p. 2443. voce Commissioners of Supply.