duties already imposed, or hereafter to be imposed, by Parliament'. Neither does it apply to any office held, or usually granted to be held, by letters-patent for any estate of inheritance or freehold 2.

No person shall incur the penalty of this act, unless the prosecution is commenced within twelve months after such penalty has been incurred 3.

The act 22d Geo. III. c. 41, did not extend its disabilities to freeholders voting in the choice of preses and clerk, or in adjusting the rolls. This defect was remedied by the statute 37th Geo. III. c. 138, which provided, that no person de

scribed in the said recited act, (i. e. 22d Geo. III. c. 41.), ' and thereby rendered incapable of voting in the election of 'members to serve in Parliament, shall be capable of voting at any election for the choice of preses or clerk to the free'holders of any county in that part of Great Britain called Scotland, or in any questions relative to the adjustment of ⚫ the roll of freeholders of any such county, not only at such 'elections, but at all other meetings of the freeholders of any such county; and if any person, hereby made incapable of voting, shall nevertheless presume to give his vote during 'the time he shall hold, or within twelve kalendar months after he shall cease to hold or execute any of the offices mentioned in the said act, contrary to the true intent and mean'ing of this act, such votes, so given, shall be held null and void to all intents and purposes whatsoever. The offender was farther made liable in the same penalties and disabilities prescribed by the act 22d Geo. III.; the fine to be divided in the same manner; and to be recovered by summary complaint before the Court of Session.

The commissioners of the land-tax were, by certain acts, appointed to levy the window-duties and income-tax, with power to name their collectors. A gentleman, who was collector of land-tax, appointed by the commissioners, had been

1 Ib. sect. 2.

2 Ib. sect. 3.

3 Ib. sect. 5.

also nominated to the offices of collecting] these additional duties, receiving a portion of the duties as his recompence. At the time of an election of a member for the stewartry of Kirkcudbright, he was collector and assessor of the house and window duties for Dumfriesshire, and had been collector of the income-tax for the same county, within twelve months preceding the election. The parliamentary preses at an election meeting declined, on these grounds, to call his vote in the choice of preses and clerk. The Court of Session, however, were unanimously of opinion that he was not disqualified under the act 22d Geo. II. and 37th Geo. III., as neither the appointment nor the emolument in this case flowed immediately from government1. In another case, a person who received a quantity of stamps from the distributor at Cupar, for distribution at Kinghorn, was held not to be disqualified, as he was not under the controul of the commissioners of the stamp-office, nor an immediate servant of government 2.

1 Heron v. Maxwell, 11th February 1803; Fac.

Note from the Session Papers of Lord President Campbell.

'Revenue officer. Duty of Parliamentary preses. His office is merely 'ministerial. He cannot erect himself into a court, and exercise jurisdic'tion. His power of cognisance is of the most limited kind, no higher than that of the sheriff-clerk, acting in his absence, or the clerks of 'Session in the election of peers. The act 37th of his Majesty does not enlarge his powers. He must call every name on the roll, good or bad, ' otherwise, if he omits to call, and receive any name, he does it suo peri'culo, and is liable in penalties if he does wrong; and any person who wrongfully gives a vote, does it also suo periculo. This is the case even in those instances which are mentioned in p. 3. of the replies. The power, it is said, must be somewhere. This is true, but not with him. 'Complainer's office did not disqualify him, ergo his vote must be counted. "The Committee of the House of Commons will certainly count it; and ' we must hold it good here. The best, or rather the only, defence which 'the respondent can make, is, that he truly did not omit the complainer, but called him, and that, if there was any mistake as to counting the ' vote, it was not his doing, but that of the clerk. If there be any dispute ' about this, the cause must go to proof.'

2 Goodsir v. Hutton, 25th February 1803; Fac.

Boroughs, or other bodies corporate, although infeft in lands holding of the crown, have no right to stand on the roll of freeholders. The town of Paisley had stood for many years on the roll of Renfrewshire, and had been in the regular use of sending to the meetings of freeholders a delegate, who voted in all questions at Michaelmas or election meetings. In the year 1760, the right of this burgh to stand on the roll was objected to, on the general ground of the incapacity of bodies corporate to exercise the elective franchise in counties; and the Court of Session found accordingly that the town had no right to stand on the roll 1.

1 Stewart v. Borough of Paisley, 6th March 1760; Fac.

CHAPTER IV.

OF THOSE PERSONS ENTITLED TO BE CHOSEN REPRESENTATIVES IN PARLIAMENT OF A SHIRE IN SCOTLAND.

THE qualification, in respect of estate, which entitles a person to be chosen the representative of a Scottish county in Parliament, is the same in point of holding, valuation, &c., with that which enables him to vote in the election of such a representative, no one being entitled to be chosen who has not been placed upon the freeholders' roll on a legal qualification. When a person, however, has once been duly chosen commissioner for a county, he will continue to retain his seat in Parliament, although he should afterwards be divested of the estate on which he was enrolled a freeholder, unless it be held that the House of Commons has some power to deprive him of his seat. It is at least certain, that neither the freeholders, nor any other court in Scotland, have the right of depriving him of his privilege.

There are many personal circumstances disabling individuals from being elected to represent a county. These disqualifications arise not only from various laws expressly applicable to Scotland, but also from a general enacting clause of the statute 6th Anne, c. 7. sect. 30, by which it was provided, that every person disabled from sitting in the House of Commons of England, should also be disabled from sitting in the House of Commons of Great Britain. This clause has had the effect of introducing all the disabilities which, before the Union, prevented any one from being chosen a member of the English House of Commons.

The eldest sons of peers, for a considerable time before the Union, were understood to be disqualified from representing

a county or burgh in the Parliament of Scotland1; and it is now settled that they cannot be admitted to the roll of freeholders 2, and therefore cannot be chosen to represent a county in Scotland.

Minors were, by the act 1707, c. 8, passed at the time of the Union, declared to be incapable of being elected for any of the estates in Parliament.

Aliens cannot be elected.

By act 12th and 13th Will. III. c. 2. sect. 3, it is provided, that no person born out of the kingdoms of England, Scotland, or Ireland, or the dominions thereunto belonging, although naturalized or made a denizen, unless born of English parents, shall be capable to be a member of either House of Parliament. And by act 1st Geo. I. stat. 2. c. 4. sect. 4, it is enacted, that no person shall hereafter be naturalized, unless in the bill there shall be a clause providing that such person shall not be enabled to be a member of the House of Commons.

Persons convicted of treason or felony are ineligible. The same rule also appears to apply to one outlawed for a crime3.

By act 41st Geo. III. c. 63. sect. 2, it is provided, that if any ordained priest, or deacon, or any minister of the Church of Scotland, shall be elected to serve in Parliament, such election shall be void; and if any person, after his election, shall be ordained priest, or deacon, or become a minister of the Church of Scotland, his seat shall become void. And, by sect. 4, celebration of divine service, according to the rites. of the Churches of England or Scotland, in any church or chapel consecrated or set apart for divine service, shall be prima facie evidence that such person is priest, deacon, or

minister.

The Judges of the Courts of Session and Justiciary, and

1 See Wight, p. 269 et seq.

2 Lord Daer v. Keith Stewart and others, 24th January 1792; Fac. App. See Male on Elections, p. 36.