powered to administer the oath of reference1. It seems clear that it cannot be stated at a Michaelmas Meeting. The statute 2d Geo. II. c. 24, has provided, that no person convicted of wilful and corrupt perjury, or subornation of perjury, shall be capable of voting in any election of a member of Parliament. The further question occurs, whether those, who have been declared infamous by the sentence of a court for other offences, or have been convicted of other crimes inferring infamy, are disqualified from voting. Infamy is sometimes appointed under certain statutes as the punishment of certain offences, as in the case of fraudulent bankruptcy, bigamy, &c. ; and sometimes it naturally attaches to a conviction, by the verdict of a jury, of offences of a base and degrading nature, as theft, or which involve deep deceit and wilful wrong, as forgery and swindling 2. This stigma has also been affixed by the Courts of Justiciary and of Session to persons guilty of malversations in situations of public trust. By the act 1621, c. 18, fraudulent bankrupts are declared false and infamous, and incapable of honours, dignities or offices, or of being jurymen or witnesses; and yet it was found in one instance, that a person declared, by the Court of Session, infamous in terms of this act, was capable of voting, and of being enrolled. Lord Elchies, however, who reports the case, says, that several of the judges thought the objection good, and others, including himself, were not clear, and did not vote 1. 1 1 See Wight, p. 273. 2 Hume, vol. ii. p. 271. 3 Case of Sutherlandshire, 17th February 1741; Elchies, M. P. No. 7. * In another case, a bailie of regality, who had been found guilty, by the Court of Session, of an illegal extortion of money, while he acted as a judge, and had been declared incapable of exercising the office of a judge in all time coming, was found not to be disqualified from being a councillor in a borough: Buckney and others v. Ferrier, 10th March 1753; Fac. and Session Papers. And yet this was an offence to which it appears that infamy ought naturally to have been attached. In this case there certainly was no conviction by the verdiet of a jury; but it has been rather with respect to sentences of inferior judges without a jury, that a distinction on this ground has been drawn regarding the disqualification of witnesses by infamy 1. At all events, it can hardly be doubted, that persons convicted by the verdict of a jury of the higher species of crimes, such as theft or forgery, must be held as incapable of exercising the elective franchise. In England, convicted felons are held to be disqualified. This was held in the committee even with respect to a conviction at the Quarter Sessions, for stealing some horse furniture, and in which the sentence was only hard labour for fourteen days 2. 1 The eldest son of a Scots peer is not entitled 3 to be enroll Hume, vol. ii. p. 342. 21 Peckwell, 508. 3 Lord Daer v. Keith Stewart and others, 24th January 1792; Fac. Notes of the Opinions of the Judges from the Session Papers of Lord Presi dent Campbell. 24th January 1791.-After hearing.-Lord Hailes. Difficult to go far'ther back than 1587. Persons sometimes set down by mistake as pre'sent when they were not; Montrose an example in 1569. Resident 'freeholders only could vote, yet this afterwards fell into disuse. In 'Parliament 1661, and at other times, it was very desirable to have had ' eldest sons of peers. As to loss of records, will presume from what I see. Fragment 1660 not conclusive, as the heir apparent seems to have been C excluded. Case of Tarbat. Parliament obsequious to crown; and 'Lord Cromarty a favourite. Reasons assigned, not well founded. Sa'crifice to altar of popularity. No such altar then. Succeeded by Sir 'G. Monro of Culcairn, whose politics were very different. Then case ' of Lord Livingstone. Poll elections of the burghs were in consequence ⚫ of recommendation of Prince of Orange. Matters ran high in Parlia'ment during all the reign of King William. If eldest sons had been 'supposed to have right, would have asserted. 1708. Four counsel 'heard. Solemn determination. As to case of Duke of Athole,-Disabi'lity carried no farther than use had carried it.—Ankerville. Strange that claimant should not have same privilege with every . Constitu ' tion daily improved. To deprive him, would require positive enactment, ' or something very decisive. Particular reasons for resolutions in Parliament.-Rockville. Claimant is a commoner. Subject to trial as such. , Disuse not sufficient. Res mere facultatis, and depending on choice of ed; but the eldest son of a British peer is not disqualified from being enrolled 1. 'others. Question quite new as to the House of Commons,-not very ' competent to judge of points in the law of Scotland. Lord Aberdeen 'would not have permitted his son to stand candidate for Aberdeenshire, 'if he had not thought the matter entire. English lawyers could not 'know much of Scotch law.-Monboddo. Two questions, 1st, Whether 'claimant has a right to be enrolled; 2d, Eligibility. In England, * many instances of this. Eligibility not competent. Clear that he is 'entitled to be enrolled. No custom proved as to not voting-Dreg'horn. Opinion stands clear of antiquities. A commoner. Title and 'precedency to rank only. Expectancy of a peerage is not, in general, ' a good objection. Petition in 1708 does not go upon antiquity or usage, 'but singly upon expediency. As to Union, the only articles of Union 'that are unalterable, are religion and malt-tax. But redress can only 'lie in Parliament, where all parties can be present by themselves, or representatives. No difference between enrolment and eligibility. For dis'missing complaint, because usage of Parliament is against it, and we can'not give effectual redress. We cannot invert possession summarily.— Eskgrove. Expediency cannot be admitted. If I could throw out of 'view every thing previous to 1685, would be of opinion that not disqua'lified. Parliament not entitled to make law by a resolution, but could 'expound law. Persons living in 1708 may have known what we do not 'know.-Justice-Clerk. In what capacity they attended before 1587 cannot ⚫ now be cleared up. In 1685 we do not see the proposition controverted. Clear that not eligible.-Swinton. Same.-Dunsinnan. Same.-Hender'land. Question is, What was the constitution of Scotland at Union. We scarcely had a Parliament before Union. Usage of greatest weight. * Series rerum judicatarum; what passed at Union. Decision 1708.' 1 Abercromby v. Speirs and others, 9th March 1802; Fac. Note from the Session Papers of Lord President Campbell. Question, Whether eldest son of a British peer lately created can be enrolled? The question, in the case of Lord Daer, turned altogether ' upon the constitution of the Scots Parliament before the Union, and the 'Scots Peerage at that period. Complainer's predecessor was not a Scots peer, and he himself is not the son of a Scots peer or peeress; and "therefore the disqualification does not attach to him; See Replies, p. 38, ' &c. A Scots peer made a British peer since Union is in different situation, for he still remains a Scots peer, as well as a British peer, and votes as a Scots peer, for the sixteen peers of Scotland. Complainer has no 6 By the act 22d Geo. II. c. 41, it was provided, that no commissioner, collector, supervisor, gauger, or other officer 'or person whatsoever, concerned or employed in the charg'ing, collecting, levying or managing the duties of excise, or any branch or part thereof; nor any commissioner, collec'tor, comptroller, searcher, or other officer or person whatso'ever, concerned or employed in the charging, collecting, 'levying, or managing the customs, or any branch or part 'such privilege, having no connection at all with the old Scots peerage. 'He is not represented by the sixteen Scots Peers, and he has no concern 'with their elections.—Justice-Clerk. Although Scots peers are declared 'peers of Britain, it does not follow e converso, that British peers are made Scots. Nothing disqualifies an English peer's eldest son.-Hermand. Former decision in case of Lord Daer right; See Hatsell's Reports. Ita 'lex scripta. But no precedent or rule in the constitution which applies to the present case. An Irish peer himself may be enrolled here, if not actually in Parliament.-Woodhouselee. Strict interpretation. Freeholders have done wrong.-Cullen. Judgment in case of Lord Daer well 'founded. As to case in 1708; See Lord Somer's tracts, and see collected 'decisions in Lord Daer's case.-Meadowbank. Transient instances in a 'few cases of Lord Stopford, &c. sitting since Union, although British 'peers, not sufficient to form usage. Peers of Great Britain not a patri'cian order, at least their families are not. An English peer himself was ' a commoner here, and might have been elected for a county or burgh in Scotland, and would have been tried by our law for a crime committed here, and not by his law. If the disability applies to peers of Scotland ' created British peers since Union, it is difficult to distinguish between 'their case and pure British peers. Therefore the judgment of the free'holders ought to be adhered to.-Bannatyne. The disability does not apply.-Craig. A British peer has not all the privileges of a Scots peer; cannot elect or be elected as a Scots peer. Ergo, Not subject to the disqualifications. Methven. Some doubt here. Suppose question had oc'curred recently after Union, when it was understood that peers of Scot'land, created British peers after the Union, were incapable of electing, Elliot v. Freeholders of Selkirkshire, 11th Mar. 1806; Fac. : Case of Abercromby decisive. Scots peers, a distinct body of men ' represented in a particular way, and not to be confounded with other peers.' thereof; nor any commissioner, officer, or other person con'cerned or employed in collecting, receiving or managing any ' of the duties on stamped vellum, parchment and paper; nor any person appointed by the commissioners for distribu'ting of stamps; nor any commissioner, officer, or other person employed in collecting, levying or managing any of the 'duties on salt; nor any surveyor, collector, comptroller, inspector, officer, or other person employed in collecting, managing or receiving the duties on windows or houses; nor "any postmaster, postmasters-general, or his or their deputy, 6 or deputies, or any person employed by or under him or 'them, in receiving, collecting or managing the revenue of 'the post-office, or any part thereof; nor any captain, master ' or mate of any ship, packet, or other vessel, employed by or under the postmaster, or postmasters-general, in conveying the mail to and from foreign ports, shall be capable of giving his vote for the election of any knight of the shire, com'missioner, citizen, burgess, or baron, to serve in Parliament 'for any county, stewartry, city, borough, or cinque port, or 'for choosing any delegate in whom the right of electing 'members to serve in Parliament for that part of Great Bri'tain called Scotland is vested.' If any of these persons shall vote during the time he holds such office, or within a twelvemonth after he gives it up, his vote is null, and he forfeits L. 100, one-half to the informer, and the other half to be paid to the clerk of the Justices of the Peace, to be applied as the Justices shall think fit; and to be recovered by any one who shall sue for the same by summary complaint before the Court of Session; and the person convicted thereby becomes incapable of bearing any office or place of trust under his Majesty 1. This disqualification does not extend to the commissioners of the land-tax, nor to any one acting under those commissioners, in assessing or collecting the land-tax, or any other 1 22d Geo. III. c. 41. sect. 1. |