Scottish Court of Session Decisions

Subject_1 FORFEITURE.
Subject_2 SECT. IX.

Act I. Geo. I. chap. 20. called the Clan Act.

The Duke of Gordon
v.
The King's Advocate

Date: 25 January 1750
Case No. No 71.

The Clan act found not to regard solely the rebellion in 1715.

That act takes effect though in the record of the attainder it be not specified to have been for the treasons mentioned in the act.

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The Duke of Gordon claimed the lands of Mamore, part of the estate of the late Donald Cameron of Lochiel, recognosced to him as superior thereof, on the attainder of his vassal by act of Parliament 19th Geo. II. in virtue of the statute 1st Geo. I, made for that purpose. The same objection was made to this claim as to that of Farquharson of Invercauld, No 69. p. 4758. to which reference is here made.

Objected, 2dly, The act of King George I. gives the encouragement thereby provided, to the superiors of persons guilty of high treason, by corresponding with the Pretender, or those employed by him, or by giving money for his use, or who should adhere to him within this kingdom, and should be attainted thereof; whereas Lochiel was attainted simply of levying war, which is treason by the 25th Edw. III. and not any of the treasons in the said act.

Answered, Levying war in favour of the Pretender, which was the fact for which Lochiel was attainted, was undoubted adhering to him within the meaning of the act; and the nicety now pleaded, would, if gone into, make this statute of no effect; as it was always in the power of the conductors of any prosecution, to make it simply for levying war; or indeed for compassing the death of the King; it has not been ordinary to lay, in indictments for levying war, the ground thereof; and the whole attainders which past by statute, either for this, or the last rebellion, were for levying war; and so were those which proceeded by judgment; as they were all carried on in virtue of the acts 1mo Geo. I. and 19 Georgii II. allowing trials in different counties from that wherein the treason was committed, which was confined to levying of war; and so none of those trials could be for any other treason; and yet, on these attainders, many persons were allowed the benefit of this act; the war for which Lochiel was attainted, was notoriously in behalf of the Pretender; and, if this is not allowed, can be proven, and is proven by the statute 20th Geo. II. for vesting in his Majesty the estates of certain traitors; which proceeds on the preamble, that a war had been levied in favour of the Pretender, and thereupon vests the estates of those attainted of high treason in the King; whereupon this estate has been seized, and is now claimed; and also, by act 19th Geo. II. for the more easy and speedy trial of such persons as have levied or shall levy war against his Majesty, which, because a war had been levied, with design to depose and murder his Majesty, and to set up the Pretender, enacts, “That all persons in custody for the said high treason in levying war, and all persons who were or should be guilty of high treason, by levying war, and should be apprehended within a limited time, should be tried as directed by the act.” In consequence of this act all the trials have proceeded; and as the indictments have been for levying war, the whole procedure must have been erroneous, unless that war is understood to have been in favour of the Pretender.

Replied, That the attainted person, in levying war, did thereby adhere to the Pretender, cannot be taken upon notoriety; nor otherwise proved but by the record of his attainder; and does not at all follow from the acts of Parliament founded on for that purpose; for though these acts narrate in the preamble, a war raised in behalf of the Pretender, yet the one vests the estates of all persons guilty of high treason; and the other regulates all trials for treason by levying war, which might have been on any other account; and with regard to the precedents, of cases after the rebellion in 1715, they can have no influence in this question, as the objection was not made; and perhaps, at that time, it was thought proper not to be too critical in objecting to those who claimed under this act of Parliament; which now, it is proper, should be more narrowly attended to, as it has been found to have consequences different from what was intended by it; and yet there is a case wherein it may take place, to wit, Lord Lovat's, who was impeached directly of corresponding with the Pretender's agents, and thereof found guilty.

Objected, 2dly, The claimant has not done diligence for attaining possession without collusion, or obtaining himself infeft, in terms of the statute; it is said he pursued an action of mails and duties, wherein he called the forfeiting person, his tenants, and the officers of state; and that he infeft himself on his own precept; but the first of these is annulled by act of Parliament, and the other was out of time.

Answered, The doing diligence for obtaining possession was proper for a superior; and the obtaining infeftment for a vassal, intending to take the benefit of this act; so this last step was useless to the claimant; and though his decreet was annulled, yet it was true he had sued it out, which at the time was the proper diligence for getting possession.

‘The Lords found the act to subsist, and repelled the objections.’ See a case between the same parties, 15th Feb. 1750, voce Papist.

Fol. Dic. v. 3. p. 236. D. Falconer, v. 2. No 125. p. 141.