Scottish Court of Session Decisions

Subject_1 FORFEITURE.

Lord Pitsligo's Case

1749, Nov. 15.
Case No. No. 8, 9.

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Alexander Lord Forbes of Pitsligo claimed the estate, for that only Alexander Lord Pitsligo was attainted, whereas by his patent produced his title was Alexander Lord Forbes of Pitsligo; although he was always known by the name of Lord Pitsligo, always signed Pitsligo, was uniformly so named in the rolls of Parliament, and so named in Lord Registers list, a copy of which was reported to us by the House of Lords, and so in several acts of Parliament and of Convention, in many adjudications of his estate, and conveyance by Foveran to him, though in many of the bonds he was named Lord Forbes of Pitsligo, but signed Pitsligo, and in all his charters and retours Lord Forbes of Pitsligo, The questions were three, Whether the dignity rested on the word “Pitsligo,” or on all the three words, “Forbes of Pitsligo?” 2dly, Supposing the last, whether that would vitiate the act of attainder, modo constat de persona? and 3dly, If there is sufficient certainty that the claimant is the person intended to be attainted. As to the first, the President, who in effect spoke last, (that is last but Easdale, who after him repeated a second time some things that he had said before,) was clear that Pitsligo was the sole title of the Peerage. He argued long and well, and said that though he could by use alter the title, yet his constant subscriptions, rolls of Parliament, &c. were sufficient to explain and ascertain on which of the words the Peerage rested, and mentioned our act anent Peers subscribing by their titles. Tinwald was of the same opinion, and observed that the Parliament could have no other way of naming or designing persons but as they were known, and both of them thought, that the precedents adduced of objections that would be good at common law would not reach acts of attainder in Parliament. But neither of them said much now, other than what was contained in Lord Advocate's Information. I was forced to speak before them, four having spoken before me and all the rest declining. As to the first point, though I inclined much to the same side with the President, yet by all the precedents and authorities in the Informations, I was so doubtful, that if it depended on that point, I own I did not think myself at liberty to give any vote. As to the second, the claimant maintained, that at common law, the proper name and sirname must be expressed, and if the person is dignified as a Knight or a Baronet the name of the dignity must be added, and if of a higher dignity, that that becomes part of his name, and that the omission of any of these vitiates the whole proceeding;—and I own that they had brought great authorities to prove that these rules must be observed in the common Courts of law;—but then I thought that did not hold in acts of attainder, and that if it certainly appeared who was the person intended, that the act must be effectual notwithstanding the omission of name, sirname, or legal designation, and that the Parliament could attaint by description without any name; —first, from the reason of the thing; The inferior Courts are limited by the common law, and by the statutes, and all proceedings not agreeable to them were void; but the Legislature is under no limitation. They could alter the common law. They could enable the inferior Courts to proceed to outlawries where the persons were described, though not named;—and multo magis may they do it themselves; and there cannot be a defect in the will, where it with certainty appears who was the person meant to be attainted;—and I referred for precedents to some acts in King Charles the Second's time, quoted by the Lord Advocate, and added further 5th act, 8vo Guliel. III. where not only many persons are attainted without additions, but also several without Christian names, which were left blank; and the act 42 anno 1mo Georgii I. where Mr George M'Kenzie, son to Delvin, is attainted in these words, though he had an employment, an Advocate in this Court; and James Ogilvie, commonly called Lord Ogilvie, though that title did not in law belong to him; Robert Campbell, alias M'Gregor, commonly called Rob Roy, &c.; and whereas at common law inferior dignities of Knights or Baronets must be added, there are no less than five Baronets there attainted having “Sir” prefixed to them, without saying whether they are Knights or Baronets, and in fact I have heard that one of them was neither, viz. Sir John M'Kenzie of Coull, and none of these persons were advised to object to the attainders, though some claimed their estates on other grounds, and several of them sold, and in those cases where the Christian name was omitted, or the addition or the dignity, the Legislature could not overlook the omission, and must know that it would be a defect at common law. I also quoted the 3d act 13 and 14 Guliel. III. attainting the Pretender, which is under the name of the pretended Prince of Wales without any other, though it is plain they did not acknowledge that that was his legal title, or that he was apparent-heir of the Crown, and therefore call him pretended; and lastly I quoted act 17mo Geo. II.—the eldest, or any other son of the said Pretender, that should land or be found in any of his Majesty's dominions, and that in those very words, without name or sirname, or legal designation,—and therefore I concluded that whatever words the Legislature used in attainting any person, the attainder must be effectual, modo constat de persona; and as to the 3d, that constat de persona, because the whole names in the act agree to the claimant, and they agree to no other person, and here lies the difference between this case and General Gordon of Inveray, and Thomas Ormond, Knight, quoted for the claimant; that Major-General Thomas Gordon, laird of Auchintoul, could agree to no man that was not of the name of Thomas, and it signified not that there was no other person that it could apply to;—it was enough that it could not apply to him, though if the name of Thomas had been left out, and the Christian name left blank, the attainder would have been good, as in the statute 8vo Guliel. III. C. 5, et sic de ceteris. Upon the question, it carried that the claimant was not attainted, and to sustain the claim. The Court was quite equally divided, six to six, Lord Leven being at London, and Minto and Haining both indisposed. For the interlocutor were Drummore, Strichen, Dun, Monzie, Shewalton, and Easdale. Against it were Milton, Kilkerran, Justice-Clerk, Murkle, Elchies, and the President, who had no vote, and I mark them in the order we happened to vote.—Reversed in Parliament unanimously, 1st February 1750, after four days hearing, and getting the unanimous opinion of the Judges, upon the same grounds that I argued.