Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION. 1684.
The King's Advocate v. The Creditors of the Earl of Argyle
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January 29.—The King's Advocate upon a bill gets his cause against the Creditors of the Earl of Argyle called summarily; against whom he alleged, That his Majesty's gift of forfeiture, in favours of his creditors, did not extend to the properties of those vassals of Argyle which fell in the King's hands through their not being confirmed before his forfeiture; seeing these vassals' estates were no part of Argyle's fortune at the time of his forfeiture; and it was the King's design to dispone and convey no more to Argyle's creditors than what was his, the time of his forfeiture; and therefore, that the vassals' estate still remained with the King, and he was not denuded thereof; nor had the creditors any jus quæsitum thereto. And that the creditors could not say that it was upon the faith or in contemplation of these vassals' estates that they lent Argyle their money; and so they lose nothing of what they then relied on for their payment.
It was answered, for some of the creditors, (for they were not cited in the ordinary way, but only at the market-cross of Edinburgh generally,)—That they opponed the King's signature and charter under the Great Seal, whereby the King had disponed, to them and others, all the benefit that had accresced and befallen to him through the Earl's forfeiture. But, ita est, under that generality the unconfirmed vassals' estates and properties will also fall to them.
The King's Advocate enlarged on the King's jus supereminentis dominii over the goods and possessions of his subjects, where the public good was concerned, from Grot. lib. 1, de Jur. Bell, et Pac. But see Zeiglerus in his animadversions upon him, who calls this eminens dominium, figmentum Grotianum. This was continued to a farther hearing. Vide 5th March 1684.
Vol. I. Page 265.
March 5.—There is a letter from the King, anent the Earl of Argyle's vassals, mentioned 29th January 1684. The King, by this letter, declares, it was not his meaning that the vassals should fall under his gift in favours of the creditors; for the vassals, by the very clauses of warrandice contained in their charters from the family of Argyle, were creditors as well as the rest were. Yet this does not determine whether the unconfirmed vassals' properties shall fall under the forfeiture or not; for these, it maybe, are reserved to be the foundation of a new donation from the King in favours of some statesmen: so that it was not fully agreed whether this letter meant a favour to the vassals or not.
