In the event of the Court of Session altering the judgment of the freeholders, by ordering any one to be added to the

' question. Proper part is not here, nor the proper evidence. As to ju'risdiction of Court, great doubt of it. If cannot judge of it by declara'tor, multo minus incidentally. Cases of incidental jurisdiction do not ap'ply here. They apply only where the end is to forward justice, e. g. no 'occasion to stop here in a question of aliment, till marriage determined by Commissaries. Case of Elgin, remitted to Court of Session to try prejudi'cial question. Suppose a case of thirlage,-will sist till master called. 'King ought to be called.-Gardenstone. Clearly of the opinion last de'livered,-not competent in any form to try a case of controverted peer6 age. In certain cases may enquire, but not in such a case as this,-no" toriety. But here no such evidence of peerage as we can admit,-must 'be continued in possession. Case of Forbes and Lady Strathmore,'called here for payment of debt,-could not proceed till declarator of 'marriage before proper court.-Rockville. Objection here relevant. In 'Court of Justiciary, if objection of peerage made, it would be very inconve 'nient to stop short. Same as diligence,-tendency of plea is to make him 'both peer and commoner.-Henderland. Distinction of peers and com'moners. Jurisdiction of freeholders, &c. goes to disqualification real or 'personal. If allegation now made goes to a change of his personal si'tuation, every freeholder entitled to bring it here. Fixed, that title of peerage devolves jure sanguinis. Nature and substance of issue is this"You are not a commoner.' He answers, I hope to be so, but am not so yet.' Change in your personal circumstances. Every man vested 'with a right, entitled to try it. Every door-keeper of House of Lords trys it every day in first instance, not merely a possessory question, 'must try the right. At a loss to determine what is possession of peerage. Do not know whether there is another case to decide or not. Case ' of Sir William M---- bill signed William Montgomery.—Eskgrove. 'If personal situation altered, this must be competent, e. g. attainted of high treason. Succession to a peerage no exception from that rule. 'Line of notoriety will not do,-no instance of a jurisdiction regulated by popular opinions or ideas,—no instance of a direct trial of peerage, 'except in two cases, either that the party himself applies to king, or that ⚫ an order issues, directed to particular peers. As to possession, his as'suming the title or not, will not vary the right.-Monboddo. Clear that 'jurisdiction is competent; distinction between right of peerage and exercise of that right. Freeholders would apply to no other court. No matter whether goes to ten generations or one. If election turns upon his vote, 'will not House of Commons determine ?-Eskgrove. In case of Mr Dou'glass would not listen to any objection to-

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roll, or expunged from it, the act provides, that the she'riff or steward's clerk shall, upon presenting to him the ex'tract of such judgment, forthwith make the alteration thereby directed, in the books that are kept by him ',' under a penalty of L. 100 to the person in whose favour the judg ment has been given.

1 16th Geo. II. c. 16. sect. 5.

CHAPTER III.

OF CERTAIN PERSONAL DISQUALIFICATIONS FROM BEING ENROLLED OR VOTING.

A MINOR cannot be admitted on the roll. The act 1681 provides, that Minority being instantly verified' shall be a disqualification; and from the context it may be collected, that it is meant to be enacted that it shall be an objection to the admitting to' the roll, and not merely to voting, although certainly Mr Wight has taken up a different view of this provision. The act 1707, c. 8, declares, 'that none shall be 'capable to elect or be elected for any of the said estates, but such as are twenty-one years of age complete;' but, from a decision in regard to the formula against popery, to be mentioned immediately, it appears that it would be held that those expressions amount to a disqualification from being admitted on the roll, and also would authorise the freeholders to strike off one already on the roll, even after four months, if he was discovered to be a minor. In a previous case, indeed, the Court either giving this interpretation to the act 1707, or proceeding on the act 1681, ordered a gentleman to be struck off the roll who had been enrolled a few months before attaining majority, under a proviso that he should not be entitled to vote in any question until he was of perfect age; and this judgment the Court pronounced, although he had in the mean time become major 2.

A person who has been cognosced as insane cannot be enrolled. But suppose that a claim is presented for one who has not been cognosced, and is not otherwise under legal tutory as insane, it would appear that the claim cannot be re

1

Page 267. Mr Bell supports the view in the text, p. 338.

2 Macleod v. Gordon, December 1765; Wight, p. 267.

jected on mere allegation that he is not of sound mind; and it seems doubtful, if any other evidence would be admissible, unless, indeed, the personal appearance of the claimant should carry conviction to the minds of all present. Again, let us suppose that a person who is already on the roll, should appear and claim a vote, although evidently labouring under strong insanity, it would seem that the preses would be justified in rejecting the vote. A plan which has been recommended in England for excluding such votes, and which, to a certain extent, might be effectual, is to be strict in requiring the person to take the usual oaths 1.

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The act 1707, c. 8, provides, that none shall be capable 'to elect or be elected, for any of the saids estates,' but such as are 'protestant, excluding all papists, or such who, being suspect of popery and required, refuse to swear and subscribe the formula contained in the third act, made in the eighth and ninth sessions of King William's Parliament, in' tituled Act for Preventing the Growth of Popery.' If the terms of this statute are taken literally, there is perhaps no authority for holding that a person already on the roll may be struck off for refusing the formula 2. But in a case in which a claimant having been enrolled at Michaelmas, and having, at an election meeting in July thereafter, refused the formula of the act of William when tendered, the Court of Session found that he must be expunged from the roll, although more than four months had thus elapsed between the enrolment and the presenting of the complaint 3.

1 Male on Elections, p. 165. Second Edition.

2 See Wight, p. 269, note.

* Ferguson v. Glendonwyne, 17th February 1803; Fac.

Note of the opinion of Lord President Campbell from his Session Papers.

Objection of being a Roman catholic. Respondents' construction of the act 1793 not well founded. Clear that the disqualification of the act 1707 continues as to elections, though Roman catholics are freed from other "disabilities. No distinction between papists and Roman catholics in our statutory language. The act 1707 says nothing about enrolment,

By the act 19th GeoJII. c. 38, it is provided, that no person shall be capable of being elected, or of voting in any election of a member of Parliament for any shire or borough,' who shall have been twice present within a year of such election at divine service in any episcopal meeting in Scotland, not held and allowed in pursuance of the act 10th Anne, c. 6', or not registered as directed by the act (19th Geo. II.), or where the minister did not in express terms pray for the king by name, and all the royal family; and it is declared, that this objection may be stated by any candi ' date or member of the meeting assembled for any such elec'tion;' and may be proved by one or more witnesses upon oath, or by referring it to the oath of the person objected to, which oath the preses or clerk of such meeting is empowered to administer.

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It seems to follow, from the expressions of this act, that this objection cannot be stated before the election of preses and clerk; because the disqualification is stated to be from ' voting in any election of a member of Parliament;' and, because it is the preses or clerk of the meeting who is em'but as it makes a total disability of electing or being elected, it follows ' of course, that the party liable to such disqualification, ought not to be ' enrolled, or, when the objection is discovered, which can only be on his 'refusing to take the formula, he ought to be expunged; as in the case of 'minors," peers, &c. The rule of four months does not apply to latent ' personal disqualifications. Clear that the objection here was made be'fore the election of member, and he ought then to have been struck off, on account of his refusal. Whether his vote must be counted for preses and clerk, it is not hujus loci to enquire. Had the legislature 'thought that it was possible for a Roman catholic to be on the roll, he 'would have been included in the description of persons mentioned in the act 37th Geo. III. c. 138.-Justice Clerk. Roman catholic not entitled to 'elect, or to be elected. Act 1707 not repealed.-Meadowbank. Same 'but hesitate as to the question of form, whether he may not stand on the 'roll, though not entitled to vote?—Craig. Cannot be allowed.'

1 By this act it is, inter alia, provided, that the pastor must be ordained by a protestant bishop, and take certain oaths to Government, and pray for the Queen, and that the meeting shall be with open doors.