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In a suspension of a decreet of removing obtained by the Lo. Cranston against Colston, wherein a sentence of excommunication being pronounced and extracted against Colston for incest, in respect whereof the charger alleged, That he had no person to stand in judgment; the Lords found, That the suspender ought to be heard to insist in his suspension notwithstanding that he was so excommunicate, seeing he was not at the King's horn; for they found, that excommunication could not prejudge the party of these things, quæ sunt juris naturalis vel juris gentium, as was to defend themselves with their lawful rights; but I think, and then was of the mind, that a person excommunicate for so vile a crime as horrible incest, which was fearfully related and aggravate in the sentence, bearing ‘the party to have lain in double incest (for so were the words of the sentence) and that for no admonition he could forbear,’ ought not to be admitted to have any favour in any civil judicatory, which was not granted to a rebel at the King's horn, except that he had satisfied the kirk and made repentance, and the sentence had been suspended some way; for any at God's horn should be refused in all things which are refused to a rebel to the King; but the Lords ordained him to find caution to satisfy the kirk, and this was repelled, for he might defend notwithstanding thereof, as a suspender is compted; but the canon law permits not any excommunicated person to pursue.
Act. Craig.Alt. Belshes.Clerk, Gibson.
Fol. Dic. v. 2. p. 84. Durie, p. 812.
