Before Lord Keith of Kinkel, Lord Scarman, Lord Brightman, Lord Templeman, Lord Aberdare, Lord Caccia, Lord Beswick and Lord Campbell of Alloway, QC(Speeches delivered July 23)
The Committee for Privileges of the House of Lords considering the petition presented to her Majesty by Patrick Andrew Wentworth Hope Johnstone of Annandale and that Ilk, praying that her Majesty might admit his succession to, and declare him entitled to the title, style and dignity of Earl of Annandale and Hartfell in the peerage of Scotland, created by King Charles II in 1662, proposed that it should report to the House that the petitioner had made out his claim.
Mr John Murray, QC and Sir Crispin Agnew of Lochnaw (of the Scottish Bar) for the petitioner, Lord Cameron of Lochbroom, QC, Lord Advocate and Mr JG Reid (of the Scottish Bar) for the Crown.
LORD KEITH said that the petitioner was a descendant, partly through females, of James, first Earl of Annandale and second Earl of Hartfell ('the first earl') whose father was by King Charles I created Lord Johnstone of Lochwood in 1663 and Earl of Hartfell by letters patent in 1643, the destination of the latter being to the grantee 'and his heirs male'.
The first earl was created Earl of Annandale by letters patent of King Charles II in 1661, with precedence according to letters patent creating his father Earl of Hartfell in 1643.
Those recited inter alia, that another Earl of Annandale had died without heirs male of his body so that a patent of that title and dignity (granted in 1624) had come to the king's hands and that no one was so worthy as the first earl to enjoy that title.
The letters accordingly created as Earls of Annandale and Hartfell, Viscounts of Annand and Lords of Johnstone and Lochwood, Lochmaben and Evandale, the first earl 'and his heirs male whom failing the eldest born heir female without division of (his) body . . . and the heirs male of the body of the said eldest born heirs female legitimately begotten . . . and all of which failing the nearest heirs whatsoever' of the first earl.
The first earl died in 1672 and was succeeded by his male heirs until 1792 when the heirs male of the body of the first earl became extinct.
A claim was thereupon advanced by James, third Earl of Hopetown, who was the grandson of the first earl's eldest granddaughter. Following the death of that claimant a claim was presented by his daughter Lady Ann Hope Johnstone and subsequently pursued by her son and grandson. Those claims which were all unsuccessful were founded upon the letters patent of 1661.
They depended for their success upon establishing that, upon a true construction, the words 'heirs male' in the destination of the peerage thereby created meant heirs male of the body the first earl, not his heirs male general, with the consequence that upon the extinction of heirs male of the body the succession opened to the eldest heir female of his body and the heirs male of the body of such eldest heir female. The Committee for Privileges rejected that construction in 1844 and again in 1879.
The present claimant relied not upon the letters patent of 1661 but upon a Signature under the sign manual of King Charles II dated April 23, 1662 and a Charter under the Great Seal of Scotland following thereon and bearing the same date.
His contention was that that Charter brought a new creation in favour of the first earl of the Earldom of Annandale and Hartfell, separate from and independent of the creation brought about by the letters patent of 1661. The Charter which was in Latin, detailed a great many lands, some of which were held by the first earl directly of the Crown and others of which he had acquired by purchase, and recited that they had been resigned for new infeftment.
It then proceeded of new to grant all those lands to the first earl and the heirs male lawfully begotten or to be begotten of his body, whom failing to his heirs female carrying the name and arms of Johnstone, whom all failing the nearest heirs and assignees whomsoever of the first earl.
The petitioner's pedigree and status as heir male of the body of the eldest heir female of the body of the first earl, and also the fact of extinction of heirs male of the first earl's body was accepted without the requirement of formal proof, as suggested by the Lord Advocate in his report to her Majesty.
The crucial issue was whether the 1662 Charter made a new creation of an Earldom of Annandale and Hartfell. It was not contended that the earldom created by the letters patent of 1661, following a resignation, was granted anew by the 1662 Charter and there was no trace of an instrument of resignation. It was also significant that the words of the regrant de novo dedimus governed only the described lands.
The Charter then embarked upon a new clause introduced by et similiter which contained the erection of the lands into a territorial earldom cum titulo stylo et dignitate comitis.
The first matter to be considered is resolving that issue was whether or not any precedent existed for the royal creation of a second title of nobility in the same name as that of an earlier creation. That question must be answered affirmatively, the best known example being the Earldom of Mar where there were now two holders of a title of the same name recognized as eligible to sit in their Lordships' House.
It was therefore within the legal competence of the soverign to grant the same title of nobility to more than one person concurrently, or to grant a title of nobility to an individual on more than one occasion without there having been any resignation of the prior grant, and that the subsequent grant might be on a different destination from the earlier one.
The question was whether the Signature and Charter of 1662 upon their true construction demonstrated the royal intention of making a new grant of the title and dignity of Earl of Annandale and Hartfell. The conveyancing procedure followed was, in accordance with the practice of the time, apposite for the grant of a title.
The Signature was superscribed by the royal sign manual and there was appended to it a docquet signed by the secretary of state summarising its effect and mentioning in particular that the lands specified were to be united in a free barony, lordship and earldom to be called the Earldom of Annandale and Hartfell with the dignity of an earl having the precedence of the earlier patents in favour of the first earl and his deceased father.
The Charter itself followed the terms of the Signature and duly passed the Great Seal of Scotland. There was no doubt that if there had been no earlier creation of peerage dignities of the same name, the Charter would have been completely effective to make a first creation of Earl of Annandale and Hartfell.
Many charters of the period contained a grant of lands, followed by the erection of those lands into a territorial barony of earldom under a particular name, followed by the grant of a title of nobility of that name.
There were precedents where, following a grant of lands later expressed as being erected into a territorial lordship, mention of title and dignity was introduced by the preposition cum, which the general conveyancing practice of those times indicated was quite regularly used to add to what was earlier granted further heritable subjects of considerable importance.
His Lordship concluded that in the present case the circumstance that mention of the title and dignity of an earl was introduced by cum and that the title and dignity was not directly made the object of words connoting a grant was not inconsistent with the intention to create a peerage dignity.
Read literally the words used were capable of bearing that interpretation:
'we have created (creavimus) a territorial earldom (comitatum) with the title, style and dignity of an earl'.
It was clear that the king by the 1662 Charter intended to and did create, not only the territorial Earldom of Annandale and Hartfell, but also the new title, style and dignity of Earl of Annandale and Hartfell to go with it upon the same destination.
It followed that just as the title of Annandale might have followed a different destination from that of Hartfell, so might that of Annandale and Hartfell have followed a different destination from one at least of the others.
The findings of the Committee for Privileges, adopted by the House in the proceedings of 1844 and 1879 relating to claims by the petitioner's ancestors, did not constitute a bar to the petitioner's claim since no attempt was made in the earlier proceedings to rely on the Charter and Signature of 1662.
The question now at issue was not then considered or decided, and the nineteenth-century proceedings could properly be treated as different from that of the present claim. Moreover, it was well settled in the law of Scotland that heritable rights and rights of blood did not prescribe unless there had been adverse possession. The conclusion therefore was that the petitioner had made out his claim.
Lord Scarman, Lord Brightman and Lord Templeman agreed.
Solicitors: Martin & Co, parliamentary agents, for JC& A Steuart, Edinburgh.
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