The Right Hon. Thomas, Earl of Elgin and Kincardine, L. Blackwood of Pittreavie, Esq., Robert Wellwood of Garvock, Esq., and Others, Heritors of the Parish of Dunfermline v. The Rev. Allan M'Lean first Minister of Dunfermline [1812] UKHL 5_Paton_593
[1]The patent of the dignity of an Earl granted to Robert Lord Roxburghe in 1616, by which he was in all time coining directed to be denominated Earl of Roxburghe, Lord Ker of Cessfurd and Cavertoun. July 17, 1643.[2]Procuratory of resignation executed by Robert Earl of Roxburghe of his estates and of his dignities.[3]The notarial instrument of resignation proceeding upon that procuratory, 26th Feb. 1644.[4]The charter granted by King Charles the First, to Robert Earl of Roxburghe, of his estates, and of his dignities to himself and the heirs-male of his body, “Quibus deficientibus heredibus suis vel assignatis quibuscunque in ejus optione designandis, nominandis vel constituendis, per ipsum aliquo tempore in vita sua vel ante ejus decessum per assignationem designationem nominationem seu declarationem sub subscriptione,” &c. Dated 31st July 1646.[5]An exemplification of the act of Parliament, ratifying the above charter. 11th June 1648.[6]The tailzie, nomination, and designation, executed by Robert Earl of Roxburghe, of his estates and of his dignities. 23d February 1648.[7]An exemplification of an act of Parliament of Scotland, 20th May 1661, again ratifying the aforesaid charter of 31st July 1646, and the foresaid tailzie, nomination, and designation of Robert Earl of Roxburghe of 23d February 1648. Upon these, and upon the patent of the Dukedom of Roxburghe, to be afterwards mentioned, the right of the present claimant was founded. Page: 603 ↓ By the previous appeal it has been seen upon what ground General Ker's claim was founded to the estates and dignities, ante p. 333. Both stated a preliminary objection to the right of Mr. Bellenden Ker, as well as to the right of Lady Essex Ker, appearing for their interest before the Committee of Privileges, which objection was disposed of by the Lord Chancellor in the following manner. Lord Chancellor ( Eldon ) said,— “My Lords, Your Lordships are aware that an objection was taken before the Committee of Privileges on the part of Sir James Innes Ker and Brigadier-General Walter Ker, against the right of Mr. Bellenden Ker and the Lady Essex Ker, who do not claim the dignities, to be heard as parties before the committee, against those who do claim those dignities; and that this objection was referred by the committee to be considered by the House. Upon this point counsel have been heard for several days. The chief objection is made to Mr. Bellenden Ker; as to Lady Essex Ker, the objection taken is but faintly stated. Of the latter, it is to be remarked, that she disputes the right of all the other claimants, and says she has a better right; though she has not laid a claim thereon to his Majesty. Mr. Bellenden Ker is in a situation perfectly different; he makes no suggestion of a claim to the dignities, but he insists he has an interest to be heard, because he says the dignities can only be given to the claimants on a construction of certain deeds, and which he says will affect his right to those estates, which also originally passed by the same deed. I conceive it is impossible to say that this kind of concern is a proper interest. From the practice in this country, familiar instances might be adduced upon this point. A person might have devised, by will, landed estates, to different individuals, in nineteen different counties, and in a question betwixt the heir at law and the devisee in one of these counties, as to the validity of the will, not one other of the nineteen devisees, though their interests depended on the same question with regard to the will, could be heard for his interest. Mr. Bellenden Ker is admitted to have a direct interest in the competition of brieves, but with regard to the peerage he has no such interest. And I hold it to be quite clear, that, according to all the rules that prevail in this House, unless he has an interest in the very thing to be discussed, he has no right to be heard with regard to it. On his behalf, various cases were cited. (The cases cited were Page: 604 ↓ those of Willoughby v. Parkham, Kircudbright, Sutherland, Caithness, Anglesea, and Glencairn . In the four first, all having interests, were ordered to be beard. The Anglesea case is stated in the Glencairn case). Of these, I shall only mention the Anglesea case, as it alone appears to have reference to this question. In that case, the question turned on the legitimacy of the claimant; and the ancestor of Lord Mulgrave, who had right to certain estates, if the claimant was a bastard, presented a petition, praying to be heard against the claim to the peerage, as the decision therein would affect his right to the estates. He was upon this admitted to be heard. It is impossible to say that this petitioner had an interest in the dignity; he could not take the peerage in question. If he was admitted upon the point of interest , it is clear that this case proceeded upon a bad principle. But if it proceeded upon a point of discretion , this may have been very properly decided. In claims of peerage you always proceed with deliberation. The question of legitimacy was one in which the House might look for information from a private party, as being more fully within his research, than in that of the Attorney-General or Lord Advocate. But in every case, this House must exercise a sound discretion, and consider what is fit to be done, otherwise claimants might be put to a ruinous expense. In a Scotch peerage, destined to heirs whatsoever, you might have 1500 petitioners at your Bar, were such discretion not to be exercised. Lady Essex Ker is in a very different situation. She says she has a better title than the other claimants, by legal inheritance and descent, though she has not brought this forward by petition to his Majesty. I conceive that you are in the constant habit of hearing petitioners for their interest under circumstances similar to those in which she stands. With regard to Mr. Bellenden Ker, his alleged right to the estates gives him no interest in the dignity. It is quite clear that he is not to be admitted as matter of right. That brings it to the question, if, in sound discretion, he ought to be heard. And, in deciding upon this, I must call your attention also to the present shape of this business; the question referred by the House to the committee is, If the titles and dignities did pass by the charter 1646, and deed 1648, to the persons described in a certain clause of the deed 1648? Whether they did so pass or not is a question in which he has no interest; he claims the estate under a different deed. Upon this question, we shall have the assistance of the Attorney-General and Lord Advocate. On the whole, I shall move that it be our instructions to the committee that Mr. Bellenden Ker is not entitled to be heard, but that Lady Essex Ker is entitled to be heard before the Committee.” This was ordered accordingly. Page: 605 ↓ Two points then remained to be argued in the competition for the estates and honours. Whether under the words “Richt to the said estate,” in the deed of tailzie, nomination, and designation, executed by Robert Earl of Roxburgho in 1648, the titles and dignities of Earl of Roxburghe were conveyed? 2d. What was in law the true intent and meaning of the following clause in the same deed, “And qlkes all failing be deceis, or be not observing of the provisions, restrictions, and conditions above wr'n, the richt of the said estait shall perteine and belang to the eldest dochter of the said unql Hary Lord Ker without divisioun and yr airis maill, she always mareing or being maried to ane gentleman,” &c., and who were the persons in law to be considered as described by the word “the eldest dochter of the said Hary Lord Ker, without divisioun, and yr airis maill.” On the 18th June 1810, the Lords' Committees for Privileges, after hearing counsel for several days, came to special resolutions on both these points as follows:— On the first they resolved, Journals of the House of Lords. “That under the words ‘richt to the said estait,’ the titles and dignities of Earl of Roxburghe are conveyed; provided Robert Earl of Roxburghe was in due form of law qualified to make the nomination contained in the charter or deed 1648; or provided every disqualification was subsequently legally removed, so as to give effect to the nomination therein made?” On the second point they resolved, Journals of the House of Lords. “That the words, “the eldest dochter of the said Hary Lord Ker, without divisioun,” are to be understood to describe the several daughters of Hary Lord Ker seriatim in their order; and that the words ‘yr airismaill,” are to be understood as describing the heirsmale of their respective bodies lawfully begotten. The Committee are therefore of opinion, that, in case there are no heirs-male of the body of Lady Jane Ker, the eldest daughter, nor of Lady Anne Ker, the second daughter, the heir-male of the body of Lady Margaret Ker, the third daughter, is to be preferred to the heir-male of Lady Jane Ker, and to the heir of line, or heir-female of Hary Lord Ker.” A decision to a similar effect was come to at same time by the House of Lords, in the question relative to the landed estates. Since then the claimant has been served, retoured, and Page: 606 ↓ infeft as heir of entail in these estates under the tailzie, nomination, and designation, executed in 1648. In further prosecuting his claim to the dignities and honours, the claimant gave in evidence, the patent of the Dukedom granted to John, the fifth Earl of Roxburghe, in 1707, founding upon the following parts thereof:— “Anna, Dei gratia, &c. Noveritis igitur nos fecisse, constituisse, creasse, et inaugurasse, sicuti nos tenore præsentium facimus, constituemus, creamus, et inauguramus, eundem Joannem comitem de Roxburghe Ducem de Roxburgh, Marchionem de Beaumont et Cessford, Comitem de Kelso, Vicecomitem de Broxmouth et Dominum Ker de Cessford et Caverton, dando, concedendo, et conferendo sicuti nos per præsentes damus concedimus et conferimus in dictum Joannem Comitem de Roxburgh ejusq. hæredes musculos de suo corpore quibus deficientibus alios hæredes suos titulo et dignitati Comitis de Roxburgh per priora diplomata prædecessoribus dicti Joannis Comitis de Roxburgh eatenus facta et concessa succedere destinatis dictum titulum honorem ordinem gradum et dignitatem Ducis,” &c. Apud aulam nostram de Kensington 25 die. mensis Aprilis anno Domini 1707,” &c. It only remains for the claimant, in terms of the resolutions of the Lords' Committees for Privileges above quoted, to show:—[1]That there are no heirs-male of the body of Lady Jane Ker, the eldest daughter of Hary Lord Ker.[2]That there are no heirs-male of the body of Lady Anne Ker, his second daughter. And, 3d. That the claimant is the heir-male of the body of Lady Margaret Ker, his third daughter. (Here the case went into a detail of each of those heads.) Under the third head, Sir James Norcliffe Innes Ker proved that his great grandfather, Sir James Innes, Knight, eldest son of Sir Robert Innes of Innes, married Lady Margaret Ker, third daughter of Hary Lord Ker, and that he was heir-male of the body of his great grandmother, Lady Margaret Ker. Sir James did not offer any remark upon the claim to the Barony of Roxburghe and Cavertoun; and seemed rather to stand on his own rights to the titles and dignity of Earl of Roxburghe and Dukedom. Sir Samuel Romilly, Ar, Cullen . Page: 607 ↓ (Before the Lords' Committees for Privileges). Case of the Lady Essex Ker , Claiming the Titles, Honours, and Dignities of the Duchess and Countess of Roxburghe, Marchioness of Beaumont and Cessfurd, Countess of Kelso, Viscountess of Broxmouth, Baroness Ker of Cessfurd and Cavertoun, and Baroness Roxburghe. Sir Robert Ker of Cessfurd, who was born in the year and died in the year 1650, was first raised to the dignity of a Baron, or Lord of Parliament in Scotland, by the title of Lord Roxburghe; but in what year, or by what form of creation, the claimant, with all the diligence which she has employed in the search, has not been able precisely to ascertain. In the Rolls of Parliament of Scotland which are preserved in the General Register House at Edinburgh, it appears that Lord Roxburghe is entered by that title as present in the year 1604. He is also marked as present among the peers and lords of parliament in the years 1607 and 1612. No patent or charter has been found creating this barony of Roxburghe in the person of Sir Robert Ker; although it is strongly to be presumed, if the dignity had been granted to him by an instrument of that description, that it would have been preserved carefully with the other title-deeds of the family. It is known, however, to your Lordships that, besides the form of creation by patent or charter, another mode of creating dignities of peerage was established in the laws of Scotland by summons and investiture in parliament, a form of granting the dignity of the peerage much more ancient in the constitution of that realm than that by patent, and which, though it became less frequent than the latter in the grant of the higher dignities, was still not wholly disused in the time of Sir Robert Ker, when the first step in the peerage was conferred. The claimant is humbly to maintain before your Lordships, that as no patent appears, which would doubtless have been preserved if it ever existed, the title of Lord Roxburghe is to be held as having been conferred upon Sir Robert Ker by investiture in parliament; and she will then further Page: 608 ↓ contend, that all titles so granted, do, by the law and constitution of Scotland, descend to heirs female in default of heirs male, unless a special limitation of the descent is stated upon the Rolls of Parliament in the entry of the record of the investiture. Further, she claimed right to the title of Earl of Roxburghe, because Lord Roxburghe was raised to the title of Earl of Roxburghe and Lord Ker of Cessfurd and Caverton, by patent bearing date 18th Sept. 1616. The limitation in this patent being “ sibi suisque heredibus masculis .” She further deduced her title to the dignities in the same manner as it has been seen she did with reference to the estates, as follows: 1st, That the whole descendants in the male line of the body of the said Robert, first Earl of Roxburghe, and likewise of the bodies of Sir William Drummond and Lady Jean Ker, the eldest daughter of Hary Lord Ker, have failed; and also that all the younger sons of John Lord Fleming, and the heirs male of their bodies called by the deed of nomination 1648 have failed. 2d, That the claimant is eldest lawful daughter of Robert, second Duke of Roxburghe, and consequently she is clearly eldest female heir by descent and primogeniture of Hary Lord Ker; and hence she humbly presumes she has right to the honours of the Dukedom of Roxburghe. And also, in the same character, she claims, and humbly hopes your Lordships will find her entitled to the dignity of Lady Ker of Roxburghe and Caverton. The Lords' Committees for Privileges, after hearing counsel for several days, Journals of the House of Lords. “Resolved and adjudged, That none of the persons claiming the Barony of Roxburghe have established any title thereto, it being the opinion of this House that as the said dignity might have been granted by letters patent to the grantee, and a series of heirs not so comprehensive as to carry the said dignity to such heirs as the claimants respectively represent themselves to be, it ought, according to law, to be presumed that the same was not granted to such heirs; and it appears to this House that the said dignity has not been in fact assumed or enjoyed since the death of Robert, Baron of Roxburghe, without heirs male of his body begotten by any heir or heirs of the said Robert Baron Roxburghe.” Page: 609 ↓ Resolved and adjudged, That Sir James Norcliffe Innes, Bart., hath made out his claim to the titles, honours, and dignities, of Duke and Earl of Roxburghe mentioned in his petition. Counsel: For Lady Essex Ker, J. Henry Mackenzie, Alex. Maconochie, Henry Brougham, Fra. Horner. 1812