Scottish Court of Session Decisions

Subject_1 FOREIGNER.

Count Antonius Leslie
v.
Gordon

1749, June 8.
Case No. No. 5.

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Count Antonius Leslie having carried the succession to the estate of Balquhain by an appeal to the House of Lords against a judgment given by us in favours of Major Leslie of Pitcaple, the Count as heir of entail raised reduction of a settlement of a part of the estate made by the last Balquhain in favours of his brother-uterine James Gordon, and failing him of his two sisters-uterine, whereof the eldest is now Lady Forbes, as made contrary to the limitations of the entail of the estate. James Gordon being excepted from the indemnity and a bill for high treason found against him, no compearance was made for him, but it was made in name of his two sisters substitutes, who objected to the Count's title, that he was incapable to succeed to land in Scotland as an alien born out of the King's allegiance and not naturalized,—2do as Papist. The pursuer objected to the Ladies' title to oppose his reduction, that they were not called, and that it was a substitution at large, alterable at pleasure, and gave them no right. All the questions were reported by Drummore last Session, and the defenders undertook to produce a factory or mandate from James Gordon, and the Court remitted the objection of Popery to the Ordinary to enquire what was the pursuer's age, and appointed the other point to me heard Tuesday last,—and then a factory was produced by him to his Lady to uplift the rents of this estate, appoint factors, set tacks, &c. which was objected to as not sufficient to defend against this process. Some of us, particularly the President and I, thought the Ladies substitution was no sufficient title to defend, being alterable at pleasure. But we all agreed that the Lady's factory was a sufficient title to defend against a reduction of Cowbardie's right to these lands, as it was undoubtedly to maintain his possession, and as every tenant having a tack from him had interest to defend against the reduction, much more had the factor who had power to grant these tacks; and therefore they proceeded to debate the general point, whether an alien can inherit lands in Scotland? as to which vide the papers. The pursuer's lawyers were not quite agreed whether an heritor in Scotland must be a ligius homo, owe allegiance to the King or not. Lockhart seemed to think that not necessary. But then there was a glaring obstacle, that there could be a King's vassal proprietor of lands in Scotland, and yet no subject of the King's, nor subject to his laws, nor who owed any allegiance to him, and who consequently could not be guilty of treason, nor be punished, or forfeit as a traitor, and though if he came to Scotland he might owe a temporary allegiance, that would evanish as any other stranger's upon his going away, and he and his successors might continue proprietors without ever being in Scotland. Craigie again maintained that he would owe allegiance and be entitled to protection and all other privileges as a natural born subject, and consequently to elect or be elected to Parliament, though by the act made some years ago naturalization in Parliament cannot give a foreigner right to hold any office or to sit in Parliament. But then the purchasing a warehouse or cellar, or a cottage and yard, not only would before the Union, give any foreigner all the rights limited even by statute to Scots subjects as the making and transporting salmon, herring, and cod-fish, by the 2d act 1705, &c. but also now since the Union it would give him all the privileges of trade, holding offices, sitting in Parliament. &c. that a British subject can have, and more than an act of naturalization can now give. In the argument, there were quoted for both sides Craig De Feudis in divers places where his whole reasoning is against aliens, but concludes that he is quite uncertain as to the practice, and a decision from Harcarse, Infeftment, No. 595, March 1683, Creditors of Kincardine against Heere Van Somerdyke, (Dict. No. 1. p. 4635, and the pursuer quoted M'Kenzie's observations on R. M., act 1558 naturalizing Frenchmen, and 7th act 1669, who at the same time hardly gives any opinion. On the other hand to prove the necessity of naturalization, the defenders appealed not only to these two acts but to many acts of naturalization, some by the King, some by the Parliament from 1537 down to the Union, and one gift by the Crown to Herriot's Hospital of land belonging to a stranger dying here, because there were no heirs within the kingdom,—and they quoted many lawyers to prove that such was the Roman law, feudal law, the laws of all the nations in Christendom, and that by the principles of law a man could not be the subject or liege-man of two different States, (though that certainly does not hold, for a naturalization in one State does not exeem the person from the allegiance he owes to the State where he was born,)—and the pursuers were forced to give up both the old Roman and feudal laws, only said that this last was local, and varied in different countries, and that succession was a natural right which could not be refused without some statute or custom. The defenders admitted that aliens may purchase and even testate on moveables, (as they also may do in England, though they strictly adhere to the law that strangers cannot succeed in heritage) and quoted an old statute for it, Stat. Gul. Cap. 30. The Court unanimously found, that an alien could not by the law of Scotland succeed to heritage without being naturalized, and found that the pursuer is an alien,—for it was disputed, that since his grandfather was originally a Scotsman, though both his father and he were born in Germany and never were in Scotland, yet he was a Scotsman, which we repelled without any difficulty.

I should also have noticed, that the pursuer founded on the former judgment with Major Leslie not as res judicata, for the parties were different, and this point never pleaded. But as the Court knew that the Count was a foreigner, it was pars judicis to notice it though not pleaded. I should also have noticed, that the defenders quoted for them Craig in his book De Successione, which is much more positive against aliens than his treatise De Feudis, though the purpose of his book was to maintain King James's right of succession to the Crown of England.