Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

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Date: 23 February 1667

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This day there being a query formerly given by the Lord Treasurer, Whether or not there should be a process of forfaulture intented against those who rose in the late rebellion, before the Justice-General, so that the Justice might proceed against them, though absent, by putting the dittay to the trial of an assize, and taking witnesses thereupon; and, upon probation, to proceed to the sentence of forfaulture: or whether probation in absence could not be admitted but before the Parliament:—There were reasons given with the query for the affirmative, viz. that there was a special statute for forfaulture of persons after their death, in which case they were absent,—multo magis when they were living and contumacious. 2dly. Because, by the civil law, albeit probation, especially in criminals, cannot proceed unless the defender be present, yet the chief criminal doctors except the case of lese-majesty, as Clarus Farenatius and Bartolus,3dly. That the Parliament proceeds to the forfaulture in absence, not by their legislative authority, but as a judicature; and what is just by them, it is just also by the Justice. The Lords demurred long to give their answer, upon thir considerations, That, by Act of Parliament, it is statuted that probation shall be only led in presence of the party; and that there had never been such a practice for the Justices to forfault absents, but only to declare them fugitives; whereupon, being denounced, their escheat fell, and after their liferent: and that it was not proper to the Lords, especially in cases criminal, to give advice in that which might predetermine the Justice-General and the Justice-Clerk and Advocate, who had been desired to peruse the books of adjournal, and they reported, that they had not found a forfaulture by the Justices in absence; but that they had found that a party accused for treason in holding out a house against the king, was declared fugitive, but they did not find that it was proponed to the Justices to put an absent to an inquest for treason, and that it was repelled. The matter being resumed this day, the plurality resolved for the affirmative: especially considering that, of old, Parliaments were frequent in Scotland, and now are but rare; and that the Lords of Council and Session were the king's council, to give his Majesty their advice, in general cases, what might legally be done, whether civilly or criminally.

Vol. I, Page 451.