charged with the Fees of their Deputies; which is the first Act fa. 1ft Par whereupon the Elective Members were received in Parliament.

cap. 7. 101,

It does not appear that this Form of fending Commiffaries did take full Effect at firft (for Reasons too long here to be mention'd) nor indeed until the Reign of James the Sixth of Scotland, and First of Great Britain. In the Eleventh Parliament of Scotland, Ja. 6. Parl. held under that Prince, two Acts were made which concern that 11. A&t 33. Cafe. By the Recital of the Firft it appears the King intended and 114. to restore the antient Forms of Parliament, which had fuffered 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 fhall be no Confufion of Perfons of the three Eftates; that is to fay, no Perfon fhall take upon him the Function, Office, or Place, of all the three Eftates, or of two of them; but fhall only occupy the Place of that Self-Eftate wherein he commonly profeffes himself to live, and whereof he takes his Stile, id eft, Defignation.

By the latter, the Manner and Qualities of Election and Electors was better fettled than it had been to that Time; and fince that Act, which was made in the Year 1587, the Elective Reprefentation 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 confequently the Election allowed to be made in Favour of, and to reprefent the fmall Freeholders.

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

But as the Defignation of small Freeholders was never meant to comprehend Noblemen and the eldest Sons; fo they never pretended to elect or be elected, except in one Cafe, 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 48 11. vided, that no Man fhall take upon him the Function, Office, or Parl. Ja. 6. Place of more than one of the States, and that of the Eftate whereof he makes Profeffion, and takes the Stile; now the eldest Sons of Peers took Stiles fuited to the Eftate and Quality, and were not charged with the Expences of the Fees due to the Commiffaries, or, as they were afterwards called, Commiffioners from Counties. And there being an Act made in the Reign of King 21 A&t Seff. Charles the Second, declaring, that it is only allowed for Noble- 3. Parl. 2. men and Bishops to fubfcribe by their Titles, the eldest Sons Ch. 2d.

of

1

of Noblemen have ever continued to fubfcribe by their Titles, as being included in the general Name of Noblemen: So that on the whole Matter it is plain, that firft the Peers eldest Sons were never underftood to be mall 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 Profession of one of the Estates, feparate from that of Freeholders and Burgeffes. Thirdly, They enjoyed an Immunity from Commiffioners Fees. And, Fourthly, They never in the Courfe of an Hundred, and about thirty Years, and indeed never fince Electors came to any Kind of Form, pretended to elect or be elected. On the contrary, there were, Fifthly, Two very plain and pofitive Decifions 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 the Cafe now in Queftion in exprefs Words: As thefe Cafes hereunto fubjoined will abundantly fhew.

This being premifed, 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 fuch Elections, which is a Part of it, is the inviolable Rule to direct in the Decifion of the Cafe.

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 Houfe of Commons, which is next to be confider'd; and to do it fairly, it fhall be inferted Word for Word, with Obfervations 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 Expediency.

66

IN

Two Records taken from the Parliament of Scotland.

In the Parliament bolden at Edinburgh, the 23d Day of April, 1685.

N Refpect the Viscount of Tarbat's eldest Son, who was elected one of the Commiffioners for the Shire of Rofs, by Reason that "his Father is Nobilitat, carnot now reprefent that Shire, as one of their

"Com

"Commissioners; Warrant was given to the Freeholders of that Shire, to 66 meet, and elect another fit Perfon in his Place."

cr

Extracted forth of the Records of Parliament, by me, David, Earl of
Glafcow, Lord Clerk Regifter.

"T

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Sic Subfcribitur,

Glasgow, Cl. Regr.

At Edingburgh, the Eighteenth of March, 1689.

HE Meeting of the Estates having heard and confidered the Report of the Committee for Elections bearing, That in the controverted "Elections for the Burgh of Linlithgow, in Favour of the Lord Living ston "and William Higgins, it is the Opinion of the Committee, That William "Higgins's Coinmiffion ought to be preferred firft, in regard of the Lord "Livington's Incapacity to reprefent a Burgh; being the eldeft Son of a "Peer: And, fecondly, in refpect William Higgins was more legally and "formally elected by the Plurality of Votes of the Burgeffes: They have approven, and approves the faid Report in both Heads thereof, and interpones their Authority thereto."

Extracted forth of the Records of Parliament, by me, David, Earl of
Glafcow, Lord Clerk Regifter.

Sic Subfcribitur,

Glasgow, Cl. Regr.

BY

Remarks on the Reasons offered for the Peers.

Y the Act of Union it is declared, "That none shall elect, or be elected, "to reprefent a Shire or Burgh in the Parliament of Great Britain, from "this Part of the United Kingdom (Scotland) except fuch as are now capable by the Laws of this Kingdom to elect, or be elected, for Shires or Burghs "to the faid Parliament."

Thefe are the Words on which the Queftion depends.

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

This is to be proved.

In the 113th Act of the 11th 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 60l. per Annum, "fhould

"fhould choose two of their own Number to ferve in Parliament; and "that all Freeholders, under the Degree of Prelates and Lords of Parlia66 ment, fhould be fummoned to the Election."

There are more Things than one to be mended, but paffing 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 even comprehend Lords eldest Sons; for first, thefe Words defcribe all who were not under the Notion of Small Freeholders, or Free-Tenants, mentioned in the fore cited Act of James the First. Now, that never did comprehend Peers eldeft Sons; for, fecondly, the Father and the Son were, in the Eye of the Law, as conjunt Perfons, which could be made out by many Instances; but this one may fuffice, viz. That any Vaffal holding of the Crown-Ward, or by Military Service, could not alienate the whole Fie not even to his fecond Son; and if he did, the Fie returned to the Crown, which, by a Term well known in Scotland, was called Recognition, But if a Father fhould convey bis Eftate to his eldeft Son, it was fuftained as good: Why? Because this, in the Conftruction of Law, was no Alienation; and the eldest Son was commonly called Fiar, for to him at last the Eftate behooved to defcend, feeing 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; fo that the Father and Son were of one Eftate in all publick Accounts, and the younger Sons were confidered as Strangers. Now this is the stronger in this Cafe; because, as has been faid, the Appearance in Parliaments was a Duty upon the Father, with respect to that Eftate, 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 Difpofitions or Conveyances of any Part of their Father's Eftate, are not properly faid to acquire a Freehold, but præcipere hæreditatem; and therefore are liable as Heirs for their Fathers Debts. the Words, Lords of Parliament, must be taken in the Senfe of thefe Laws, so as to comprehend all that are not Free-holders, and especially all that make Profeffion, and affume the Style of the Estate of Peers; and that these Words, Lords of Parliament and Noblemen, are fynonimous, every Man, unbialled, must acknowlege: Now that under the Word Nobleman, the eldest Sons of Peers are comprehended, is very evident from the above Act 21, Seff. 3, Parl. 3, Ch. II. efpecially as to the Privilege of Subfcription above-mentioned. Thirdly, That has been abundantly cleared by 130 Years Practice, and the fore-cited Decifions, in which the Peers as well as Commons must be included, being done in an Affembly composed of both.

So that

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

Precarious

Precarious and Redargned by what is above. '

By the 35th Act of the Parliament of King Charles the Second," All "Heretors, (i. e. Free-holders) who hold Forty Shilling Land of the King's "Majefty in Capite, fhall be and are capable to vote in the Election of "Commiffioners to Parliaments, excepting always from this Act all No"blemen and their Vaffals."

This is another wrong Glofs 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 likewife, by an Exception therein mentioned of Noblemen and their Vaffals, it doth, in a very extenfive Manner, confirm these Privileges to the Noblemens eldest Sons, fince they are not included in that Exception, according to that Maxim, Exceptio affirmat Regulam in non Exceptis.

What is faid bere on the general Maxim, Exceptio affirmat Regulam în non Exceptis, is like all Arguments of that kind, liable to many Exceptions; and in this Cafe it is plain that this Exception is none of the most delebrate or regular; for the Act having vefted the Privilege of Election in the Free-bolders of the Crown, fubjoins an Exception of Lords and their Vaffals, although the Vaffals bolding of Lords were not fo much as comprehended in the Rule; which is fufficient to prove, that the Exception has not been very exactly expreffed, 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 fufficient 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 Act 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 obfcure or little to the Purpose, or else they had been mentioned more exprefsly.

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

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