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charged with the Fees of their Deputies, which is the filt Act Ja. if Para whereupon the Elective Members were received in Parliament. cap. 7. 101,

It does not appear that this Form of sending Commissaries did take full Effect at first (for Reasons too long here to be mention's) nor indeed until the Reign of James the Sixth of Scotland, and First of Great Britain. In the Eleventh Parliament of Scotland, 7a. 6. Parl. held under that Prince, two Acts were made which concern that 11. AET 33. Case. By the Recital of the First it appears the King intended and 114. to restore the ancient Forms of Parliament, which had suffered Alterations during the Minorities and Troubles that happen'd after the Death of King James the Fifth, his Grandfather. And therefore it is there provided, that there shall be no Confusion of Persons of the three Estates ; that is to say, no Person shall take upon him the Function, Office, or Place, of all the three Estates, or of two of them ; but shall only occupy the Place of that Self-Estate wherein he commonly profelles himself to live, and whereof he takes his Stile, id eft, Designation.

By the latter, the Manner and Qualities of Election and Electors was better settled than it had been to that Time; and since that Act, which was made in the Year 1587, the Elective Representation has taken Place.

This last Act was made on the Fact of, and to render effectual that above cited Law made in the Time of King James the First, and consequently the Election allowed to be made in Favour of, and to represent the small Freeholders.

It is true, that several of the Freeholders, who had great Eftates, took the Advantage of this Law, and in Place of coming personally to Parliament, choose to join in electing of Commissioners or Knights for the Shire with the Freeholders.

But as the Designation of small Freeholders was never meant to comprehend Noblemen and the eldest Sons; so they never pretended to elect or be elected, except in one Case, where they were found incapable, as will by and by be made appear.

Nor indeed would it have been allowed, that they could elect or be elected, because of the fore-cited Act, whereby it is pro- 33 Aet 11. vided, that no Man shall take upon him the Function, Office, or Parl. ja. 6. Place of more than one of the States, and that of the Estate whereof he makes Profession, and takes the Stile ; now the eldest Sons of Peers took Stiles suited to the Estate and Quality, and were not charged with the Expences of the Fees due to the Commissaries, or, as they were afterwards called, Commissioners from Counties. And there being an Act made in the Reign of King 21 de Sell. Charles the Second, declaring, that it is only allowed for Noble- 3. Parl, 2, men and Bishops to subscribe by their Titles, the eldest Sons Ch. 2d.

of

of Noblemen have ever continued to subscribe by their Titles, as being included in the general Name of Noblemen : So that on the whole Matter it is plain, that first the Peers eldest Sons were never understood to be Imall Barons or Freeholders, nor could congruously be fo understood ; for the eldest Son was commonly called the Fiar, and was in a Manner fuus bares, & parente vivo, quodammodo rerum paternarum Dominus. Secondly, Conform to this they took Stiles, and made Profesion of one of the Estates, separate from that of Freeholders and Burgesses. Thirdly, They enjoyed an Immunity from Commissioners Fees. And, Fourthly, They never in the Course of an Hundred, and about thirty Years, and indeed never since Electors came to any Kind of Form, pretended to elect or be elected. On the contrary, there were, Fifthly, Two very plain and positive Decisions against them, one in the Parliament 1685, noted for the too great Zeal to the Prerogative, and the other in the Meeting of Estates, which restored the Liberty of that Country, both deciding che Cafe now in Question in express Words : As these Cafes hereunto subjoined will abundantly shew.

This being premised, it will be no hard Matter to determine the Question, if, or not, the eldest Sons of Peers in Scotland were, at the Time of the Union, by the Law of Scotland, capable to elect or be elected for Shires and Boroughs there; for if they were not capable then, that they cannot be admitted now, is as certain, as that the Treaty of Union, and the Act settling such Elections, which is a Part of it, is the inviolable Rule to direct in the Decision of the Case.

But there has been a printed Paper delivered at the Door of the Honourable House of Commons, pretending to offer Reasons why the Scots Peers eldest Sons should be allowed to be elected to fit in the House of Commons, which is next to be consider'd; and to do it fairly, it shall be inserted Word for Word, with Observations to clear the Mistakes it contains: Only it is to be notic'd, that the very Title is in a begging and precarious Stile; as if it were a Matter wherein there were no folemn Rule established, but which might be govern'd by Indulgence, or Allowance, or Grounds of Expe. diency.

Two Records taken from the Parliament of Scotland.

In the Parliament bolden at Edinburgh, the 23d Day of April, 1685. .“ T'N Respect the Viscount of Tarbat's eldest Son, who was elected " I one of the Commissioners for the Shire of Rofs, by Reason that " his Father is Nobilitat, carnot now represent that Shire, as one of their

« Com

« Commissioners ; Warrant was given to the Freeholders of that Shire, to “ meet, and elect another fit Person in his Place.

Extra£ted forth of the Records of Parliament, by me, David, Earl of
Glascow, Lord Clerk Register.

Sic Subscribitur,

Glasgow, Cl. Regr.

At Edingburgh, the Eighteenth of March, 1689. 6 THE Meeting of the Estates having heard and considered the Report a 1 of the Committee for Elections bearing, That in the controverted • Elections for the Burgh of Linlithgow, in Favour of the Lord Livingston 66 and William Higgins, it is the Opinion of the Committee, That William 6. Higgins's Coinmillion ought to be preferred first, in regard of the Lord « Livingston's Incapacity to reprefent a Burgh ; being the eldest Son of a " Peer: And, secondly, in respect William Higgins was more legally and “ formally elected by the Plurality of Votes of the Burgesses: They have "s approven, and approves the said Report in both Heads thereof, and inter" pones their Authority thereto."

ExtraEted förth of the Records of Parliament, by me, David, Earl of

Glascow, Lord Clerk Register.

• Sic Subfcribitur,

Glasgow, Cl. Regr. Remarks on the Reasons offered for the Peers. D Y the Act of Union it is declared, “That none shall elect, or be elected,

D “ to represent a Shire or Burgh in the Parliament of Great Britain, from “ this Part of the United Kingdom (Scotland) except such as are now capable “ by the Laws of this Kingdom to elect, or be elected, for Shires or Burghs or to the said Parliament."

These are the Words on which the Question depends.

But by the ancient Conftitution of Scotland, and the standing Laws of that Kingdom, Peers eldest Sons were capable of electing, and being elected, as will appear from the following standing unrepealed Laws.

This is to be proved.. · In the 113th Act of the nith Parliament of King James the Sixth of Scotland, “ All Tenants in Capite to the King, in each County, who have " a Forty Shilling Land, which generally amounts to 60 l. per Annum,

“ should

* should choose two of their own Number to serve in Parliament ; and " that all Freeholders, under the Degree of Prelates and Lords of Parlia" ment, should be fummoned to the Election." · There are more Things than one to be mended, but paling by the Amount which this Paper puts upon a Forty Shilling Land, It is well to be noticed, that the Words, under the Degree of Prelates and Lords of Parliament, do Cven comprehend Lords eldest Sons; for first, these Words describe all who were not under the Notion of Small Freeholders, or Free-Tenants, mentioned in the fore.cited Axt of James the First. Now, that never did comprehend Peers eldest Sons; for, secondly, the Father and the Son were, in the Eye of the Law, as conjunct Persons, which could be made out by many Instances; but this one may fuffice, viz. That any Vassal bolding of the Crown-Ward, · or by Military Service, could not alienate the whole Fie not even to his second

Son; and if be did, the Fie returned to the Crown, which, by a Term well known in Scotland, was called Recognition, But if a Faiber pould convey bis Estate to bis eldest son, it was sustained as good : Why? Because this, in the Construction of Law, was no Alienation ; and the eldest Son was commonly called Fiar, for to him at last the Estate behooved to descend, seeing indeed the antient Custom of Scotland did not admit of any Alienations without confent of the Crown, in Prejudice of the Heir of the Investiture ; so that the Father and Son were of one Estate in all publick Accounts, and the younger Sons were confidered as Strangers. Now this is the stronger in this Caje; because, as has been said, the Appearance in Parliaments was a Duty upon the Father, with respeEt to tbar Estate, whereof the Son was Heir ; for the Nobility in Scotland antiently fat as dignified Freeholders. Secondly, To this it may be added, that the eldest Sons of Peers, receiving Dispositions or Conveyances of any part of their Father's Fstate, are not properly said to acquire a Freebold, but præcipere hæreditatem; and therefore are liable as Heirs for their Fathers Debis. So that the Words, Lords of Parliament, must be taken in the sense of these. Laws, so as to comprebend all that are not Free-bolders, and especially all that make Profeßion, and assume the Style of the Estate of Peers; and that these Words, Lords of Parliament and Noblemen, are synonimous, every Man, unbiased, must acknowlege : Now that under the Word Nobleman, the eldest sons of Peers are comprehended, is very evident from the above AEt 21, Sel. 3, Parl. 3, Ch. II, especially as to the Privilege of Subscription above-mentioned. Thirdly, That has been abundantly cleared by 130 Years Practice, and the fore-cited Decisions, in which the Peers as well as Commons must be included, being done in an Assembly composed of both.

All the eldest Sons of Peers, who at present claim their being elected from North-Britain, are precisely under the Compass of this Law, being all Tenants in Capite to the King, of Lands of the said Value, are under the Degree of Prelates and Lords of Parliament.

Precarious

Precarious and Redargued by what is aboue. ' .

By the 35th Act of the Parliament of King Charles the Second, 6. All • Heretors, (i. e, Free-holders) who hold Forty Shilling Land of the King's 06 Majesty in Capite, shall be and are capable to vote in the Election of « Commissioners to Parliaments, excepting always from this Act all No“ blemen and their Vassals.".

This is another wrong Gloss on the Words of the Statute, and taken off by what is above.

This Act is not only a plain Repetition and Confirmation of the former, Act, and of the Privilege therein contained, belonging to Peers eldest Sons, but likewise, by an Exception therein mentioned of Noblemen and their Vassals, it doth, in a very extensive Manner, confirm these Privileges to the Noblemens eldest Sons, fince they are not included in that Exception, according to that Maxim, Exceptio afirmat Regulam in non Exceptis.

What is said bere on the general Maxim, Exceptio affirmat Regulam in non Exceptis, is like all Arguments of tbat kind, liable to many Exceptions ; and in this case it is plain that this Exception is none of the most delebrate or regular ; for the Aet baving vested the Privilege of Eležtion in the Free-holders of the Crown, subjoins an Exception of Lords and their Vasals, although the Vasals bolding of Lords were not so much as comprebended in the Rule ; which is sufficient to prove, that the Exception has not been very exactly expressed, and therefore not much to be minded. .

This too is confirmed by an Act of Parliament in 1661, and other Laws, which need not be here repeated, the two former Acts being sufficient to prove, that the Peers eldest Sons have, by the standing Laws of Scotland, a Right to elect and be elected.

This Appeal to the Azt of Parliament 1681, and in general to other Laws, is very blunt ; for in the Act of Parliament 1681, there is not one Word that favours the eldest Sons of Peers. As to the other Laws referred to, we may suppose they are very obscure or little to the Purposé, or else they had been mentioned more expressly.

It is objected against this, That, by the Custom of Scotland, 'twill appear when any Peers eldest Sons were elected, the Parliament would not allow them to take their Places; and of this, two. Instances are given, one of Mr. Mackenzie, eldest Son to the Lord Viscount of Tarbat; the other of the Lord Livingston, eldest Son to Earl of Linlithgow, ".

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