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 I.

Privileges.

George Livingston
v.
Morison of Prestongrange

Date: 15 November 1709
Case No. No 4.

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In the action at the instance of George Livingston against Prestongrange, the Lords sisted process against the defender, as being a Member of Parliament, albeit he was not yet attending the Parliament; in respect the Parliament was sitting, and he claimed his privilege, and represented that he was under the necessity to go and attend it.

Fol. Dic. v. 1. p. 572. Forbes, p. 353. *** Fountainhall reports this case.

Livingston having been a partner in the glass-manufactory at Morison's Haven, and their treasurer, he advanced and debursed, for the use of the society, L. 1275 Scots, and pursues Prestongrange, as he who had acquired all the shares, for payment of the balance of his account; and he refusing to answer at this time, in respect of his privilege as a Member of the British Parliament, and just going away for that end, it was objected, The Parliament not being yet set down, his privilege took no place. Answered, They had the allowance and interval of 14 days before their sitting, and as much after, for their going and coming, so his privilege was already commenced and existing. Some moved the question, whether a Member not going, but staying at home, could claim his privilege, as if he were actually attending? It was argued on the one hand, that the privilege was given in respect of their absence, as absent reipublicæ causa, and not to divert them from attending and giving advice in the public affairs of the nation; but if they did not go to Westminster, but staid at home, the cause of the privilege ceased, et cessante causa privilegii cessare debet effectus. It was reasoned on the other side, that he behoved to be once received in the House, and sworn as a member; but after that, if he was absent, it did not deprive him of the privileges annexed to the said office and trust, but made him only liable to, and censurable by, the Parliament for his withdrawing. The Lords waved this point, in regard it was informed he was actually going to London to attend the Parliament. Some thought this privilege a great remora and stop to the administration of justice, seeing it is pleaded not only to extend to the 61 members from Scotland, but to as many servants as they please to take with them: so that bankrupts have no more to do for protecting their persons, but to get themselves listed by collusion under the name of their attendants.

Fountainhall, v. 2. p. 526.