5th August 1853.

HOUSE OF LORDS.

Before the Lords' Committee for Privileges. JAMES EARL OF CRAWFORD & BALCARRES, Claimant : THE CROWN, & THE DUKE OF MONTROSE, Objectors. Peerage, Title to-Royal Charter-Clause-ConstructionPrescription: RESOLVED, That the dukedom of Montrose, created by King James III. on 18th May 1488 to David Earl of Crawford et heredibus suis, was annulled and made void by the Act of the first year of the reign of King James IV., called the Rescissory Act: That the grant of the dukedom made by James IV., to the said David Earl of Crawford in 1489, was a grant for the term of his life only; and that the claimant had not established any title to the dukedom of Montrose created in 1488.

The speeches of the Lord Chancellor in moving the resolution of the Committee, and of Lord St. Leonards in support of the motion, state very fully the whole questions which were raised under this important and interesting claim. These speeches, as taken and extended by Mr. Gurney, the official short-hand reporter, are now given; and it is only necessary to preface them with a brief outline of the leading propositions and arguments maintained by the parties for and against the claim.

In the original and supplemental cases lodged by the noble claimant, and in relative "abstracts," he set forth, that, upon the 18th of May 1488, David Fifth Earl of Crawford obtained a charter or patent from James III., King of Scotland, changing and elevating his earldom of Crawford into the hereditary dukedom of Montrose, and conveying certain territorial subjects, to be held "in libera regalitate," and under a general limitation to himself" et heredibus suis." This was on account of the duke's steady loyalty and eminent services hitherto, and especially, as the sovereign stated in the preamble of the patent, "quod liberaliter, ut debebat personam suam, suosque nobiles et vassallos, pro persone nostre et corone tutamine et defensione, nostro etiam honore conservando, frequenter exposuit periculis cum effectu, et precipue ac novissime contra nostros infideles ligeos, qui se contra nostram majestatem et vexillum in campo bellico apud Blaknes opponebant, et pro suo servitio nobis in futurum impendendo." The king was then at war with his nobility, headed by his eldest son, the Prince of Scotland, afterwards James IV. In this war the king was slain on the 11th of June, or less than a month after the date of the patent of the dukedom. SCOTTISH JURIST.

The noble claimant undertook to establish three propositions:

I. That the patent of the dukedom, 18th May 1488, still subsisted, and was valid and effectual in law.

II. That the limitation in that patent to "heirs," a term of confessed flexibility in Scotch law and practice, in the said patent denoted and signified" heirs-male."

III. That the claimant was the heir-male of the first grantee.

The noble claimant maintained these propositions at great length; and the "summary of his entire argument,' in so far as applicable to the validity of the patent, which alone came to be considered by the Committee, is thus set forth in his cases:-

(1.) The dukedom belongs to him as the heir-male of the patentee, unless it has been resigned, or forfeited by attainder, or otherwise determined by Act of Parliament.

(2.) No resignation or forfeiture can be alleged; and the only Act of Parliament which can be contended to affect it the Act Rescissory-has no legal operation upon it, because the act being penal, must be strictly construed, and it does not mention the dukedom of Montrose: The duke was recognized as such, and held the lands of the dukedom after the act; and the act did not take proper effect."

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(3.) Even if the Act Rescissory did apply, the royal recognition of the Duke of Montrose by James IV. after the act, and the remission of the royal displeasure against him, would do away with its effect.

(4.) So also would the Act Revocatory of 1503-4. (5.) No legal argument can arise upon a claim to a dignity from mere lapse of time.

(6.) The litera, or supposed second grant of the duke dom, dated 19th September 1489, cannot affect the merits of the case, because neither the original nor a copy of it exists. It is only known by an imperfect abridgment, or analysis, irregularly interpolated in the Great Seal Register. This interpolation must, under the circumstances, be looked upon with the utmost suspicion; and may be presumed to have been thus inserted with the view of misrepresenting the tenor of the original instrument (if ever fully extended), and thus excluding the duke's heirs from taking up a title which none of the VOL. XXVI.-No. I.

nobility could brook. The Act of Parliament, on the contrary, of the preceding day, on which the "litera" proceeds as on its warrant, exists in extenso. Had a restriction been contemplated, it would have been set forth therein as in similar royal grants. Even if the "litera" had been regular and beyond question, and even viewing it apart from the act on which it proceeded, it would not follow that it was a re-grant or new creation for life only, inasmuch as the words " pro toto tempore vite sue," occurring in the notice, do often, by Scottish practice, preface grants in fee or subsequent limitations, and are in this instance accompanied by other words which include the limitation to heirs in the original patent of 1488, and thus make the "litera" harmonize with the act, in connection with which it falls to be construed. As the act is the sole ground and warrant of the "litera," and the former is not restricted to the duke's life, the latter, if it can be supposed to have contained such restriction, would to that extent be null, as disconform to its warrant, and the limitation of the original patent of the dukedom, and of the older earldom, which merged into it, would apply and operate in the new grant. The litera may thus resolve simply into a royal confirmation or grant "de novo," which frequently obtained in the case of original grants, quite valid ab initio. And this is corroborated by the high eulogy passed upon the duke as a loyal subject, not only to the king's predecessors, but to the king himself, in the Parliamentary Act alluded to, of 18th September 1489, the day preceding the "litera." At any rate, as it is clearly proved from the previous Act of Parliament, 18th September 1489, and the abstract of the litera, even such as it is, that the latter did not proceed upon any surrender or resignation, the original patent in 1488 cannot be affected thereby; and the 66 litera," even holding it to be a creation for life only, must be viewed as yet another arbitrary and oppressive measure against Duke David, in addition to the deprivation of the sheriffdom, instigated by the rebellious faction, his natural enemies, on account of his loyalty-an attempt however, in this instance, from the want of a resignation, as futile as unjustifiable.

The Duke of Montrose (11th June 1850) presented a petition to the House, praying for leave to be heard before the Committee for Privileges " in opposition to the claim of James Earl of Crawford and Balcarres; and that he might also have leave to lodge a case, and reasonable time for researches and investigations."

This petition was opposed on the part of the noble claimant; and upon the preliminary question thus raised of the right of the Duke of Montrose to interpose as an objector, cases were lodged for the claimant and His Grace.

After a discussion before the Committee for Privi leges on 14th April 1851 (Rep. of Ap. Ca. &c., Sessions 1851-52, 1, 1, 57), it was resolved, that so much of the petition for James Duke of Montrose as sought leave to lodge a printed case, in opposition to the Earl of Crawford's claim upon the merits, should be granted, without prejudice to his grace being afterwards heard by counsel, if their Lordships, on inspecting the case, should think fit so to order.

In terms of this resolution a case was lodged for the Duke of Montrose, in which he maintained, in opposition

to the propositions of the noble claimant, in reference to the validity of the original patent

1. That the charter or patent of King James III., of the dukedom of Montrose, 18th May 1488, if it was ever executed, and really existed as a valid patent of nobility, was annulled by the Act Rescissory of the Parliament of King James IV., in October of the same year. 2. That David Earl of Crawford was never royally, legally, nor even popularly recognized as duke, by virtue of that charter or patent.

3. That he did not hold any of the lands and revenues contained in that charter by virtue of it.

4. That the same David Earl of Crawford, still only earl, had a grant of the dukedom of Montrose, with the same lands, revenues, and privileges as were contained in the former charter, on the 18th and 19th of September 1489. That that re-grant was not a confirmation of a previously existing and operative patent, but an independent Parliamentary grant of a dukedom, and for life only.

5. That David Duke of Montrose enjoyed his title and the estates that accompanied it, precisely according to the provisions of the Parliamentary grant of 1489, and not at all according to the terms of the previous charter of 1488.

6. That the tenure of his ducal honour and estates, both legally and actually, terminated with his life.

A supplemental case was lodged for the Duke of Montrose, in answer to the supplemental case of the claimant, in which he maintained the following propositions:

1. That the alleged charter or patent by James III., to David Earl of Crawford of the hereditary dukedom of Montrose, dated 18th May 1488, if it was completed, was annulled by the royal proclamation issued by James IV., on 12th June, and the Act Rescissory passed on the 17th of October 1488.

2. That James IV., on 18th-19th September 1489, made a new grant of the dukedom of Montrose to the said David Earl of Crawford, but for his life only, and the ducal title accordingly became extinct on his death, in 1495, when also the whole territorial subjects included in the dukedom reverted to the Crown.

3. That even if the charter or patent of the hereditary dukedom were still subsisting, the noble claimant is not the heir of the patentee under its limitations.

The Committee met for the consideration of the claim on the 18th July 1853-Sir Fitzroy Kelly was heard to open the case of the claimant. He was further heard on the 19th, 21st, and 22d of July, when he concluded his opening, so far as related to the operation of the Rescissory Act. The members of the Committee, after consulting together, intimated that they had determined, as the question of the continued existence of the dignity was entirely distinct from the question of its descent under the limitations of the patent, to divide the case into two parts, and to call upon the counsel for the claimant to conclude their case, both as to evidence and argument, upon the first branch of the case, with respect to the existence of the patent, after which the counsel for the Crown would be heard upon that part of the case, before entering upon the second, with respect to the descent under the patent.

Documentary evidence was then adduced on the part of the claimant.

The Solicitor-General (Bethell) was also heard for the claimant on the 26th and 28th of July.*

The Attorney-General (Cockburn) was heard for the Crown on the 28th and 29th July.

Documentary evidence was then adduced on behalf of the Crown, to prove the statements of fact contained in the cases for the Duke of Montrose. This evidence, along with the claimant's, is now in the course of being printed.

The Lord Advocate (Moncreiff) was also heard on behalf of the Crown on the 29th July and 1st August.

Sir Fitzroy Kelly replied on behalf of the claimant on the 1st and 2d of August.

The arguments maintained by the respective counsel were mainly those contained in the several printed cases for the claimant and the Duke of Montrose. It is unnecessary to set forth these arguments in greater detail than the summary of them which has been given above, as they are dealt with so fully in the speeches which follow. The Committee adjourned till the 5th of August, when the Lord Chancellor (Cranworth) moved the resolution of the Committee in the following speech:

My Lords, this case, which has occupied so much time, is a claim by the Earl of Crawford to the title and dignity of Duke of Montrose; and his claim arises under an alleged grant by King James the Third of Scotland, bearing date the 18th of May 1488. The matter has been so long before your Lordships, and so often mentioned, that I am afraid, in mention. ing any of the circumstances, I shall be apparently calling your Lordships' attention to matters which must be so fresh in your memory that you hardly need even to be reminded upon the subject. But, at the same time, in order to make clear to my self, as well as to your Lordships, that I do understand the case, I will venture to call your Lordships' attention, as shortly as possible, to the different documents and facts which are important, in order to enable your Lordships to arrive at a correct conclusion.

With regard to the original charter some doubts were raised as to whether any such charter ever existed. But for the purpose of the motion which I am now about to submit to your Lordships, I shall assume that it did exist; and that, on the 18th of May 1488, King James the Third of Scotland did execute a charter, the outline of which I will now state to your Lordships. It begins by saying, that "it contributes to the glory and honour of kings when persons of illustrious race, their illustrious merits exacting this, are preferred to exalted dignities," and so on." Hence it is, that we, reflecting upon the actual obe. dience and the grateful and commendable promptitude which our faithful and most dear cousin, David Earl of Crawford and Lord Lindsay, has exhibited towards us, with unwearied zeal and in many modes; and especially considering, that be bas freely, frequently, and effectually exposed his own person, his nobles, and his vassals, to perils for the protection and defence of our person and crown, also preserving our honour, and chiefly, and most recently, against our faithless lieges who op

In the course of his speech, the Solicitor-General referred to the claimant's case as "a great repository of learning." Lord Broughan-"I quite agree with you that this case is a great repository of most curious and important learning. Whatever may be the decision, no one can doubt that it does the greatest credit to the learning, as well as to the industry of those who prepared it." Solicitor-General-"That is applicable in a remarkable way to the case on both sides. I think, my Lords, the supplemental case, which we have produced on the part of the claimant, does to the knowledge, industry, and talent of my learned friend, Mr. Riddell, who has been the author of it, the greatest possible credit. And I am the mere mouthpiece of a very small portion only of the materials that are collected here." The supplemental case here referred to, with the addenda, &c., extends to about 270 large and closely printed pages.

posed themselves against our Majesty and standard in the field of battle at Blackness, as well as for his service to be paid unto us in future; we, [therefore] willing that the said David, our cousin, should shine with ampler dignity, and changing the foresaid title of earl into a greater and loftier one, have, from our certain knowledge, plenitude of power, and special grace, exalted, made, and created, and by the tenor of our present charter, we do exalt, make, and create, the said David, our cousin, a duke, to be entitled and called in all future times, Duke, hereditarily, of Montrose. And we give and grant to the same David hereditarily, the capital messuage and place of the castle of Montrose, called the castle-stead, with the burgh and town of Montrose, and the port and baven of the same burgh, with its pertinents, with the water rights and fishing appertaining to us, for ever; and we have given the great and small customs for ever; we have given and granted, and by the tenor of this present charter, we give and grant, hereditarily, to the same duke, the capital messuage and lands of our lordship of Kinclevin, and the dominical lands of the same; which said capital messuage, and other lands, we create into a dukedom." Then it states the lands of Kinclevin to be the same "which the spouse of the late William Haket now has for her life"-" which said capital messuage and place of the castle of Montrose, and the burgh and town of Montrose, with the liberties of the same, also the capital messuage and castle-stead of Kinclevin, and the dominical lands of the same, and the other lands of the lordship of Kinclevin," and so on, "are now created and incor. porated into a real and free dukedom, to be called the dukedom of Montrose, to be held and had by the same David and his heirs," in the Latin, "dicto David et heredibus suis." "The said David and his heirs rendering from thence annually to us and our successors, Kings of Scotland, a red rose at the said capital messuage of Montrose, on the feast of St. John the Baptist, in Summer, in name of blanchferm, if only it be demanded." That was the original grant.

Of

My Lords, two questions arise upon this. First of all, is the grant, which we will assume for the present was clearly made, now a valid grant, and in force? If it is, has the noble claimant made out that he is the party entitled under that grant ? The case branching out to a very great length, it was the opinion of your Lordships that the more convenient course to take would be to have these two matters decided separately. course, in order to entitle the Earl of Crawford to the title of duke, he must make out both propositions; and it appeared the most convenient course that they should be separated into two propositions, and that one should be decided before the other was entered upon. Of course the decision of that in one way, might render any further inquiry unnecessary. Now, my Lords, the only point which has been considered is the first, viz., whether or not, upon the evidence, the acts and the documents which have been before your Lordships, it has been made out that that grant is now a grant in force for the benefit of some one, if there be any person answering to the description of "heredibus" of the original grantee. A peerage, it was said, can only be lost by attainder, or some other acts, none of which, it is said, have been shewn to be applicable to the present case, and therefore that grant must remain in force. But, on the other hand, it is said, that although by no ordinary course can a peerage end except by attainder, or some other mode, in Scotland, yet there must be one exception to the rule so defining the mode in which a peerage may become alienated, for it may be put an end to by what we sometimes call the omnipotence of Parliament. Parliament can destroy a peerage, or take a person's property, or do anything else. Then, it is said, that this dukedom, almost immediately after it was granted (having been granted in the month of May), in the following October, was destroyed by the operation of an Act of Parliament directed against it, and which expressly destroyed it.

My Lords, in order to understand this, it is necessary to revert to what has been so often mentioned, namely, the circumstances of the times. The grant was made by King James the Third on the 18th of May, at a time when he was at war with his nobles, and had had a battle with them at Blackness, in which he had worsted them. Those nobles had on their side his son, who afterwards became James the Fourth. How far he took an active part is a matter left for further enquiry, and

we need not go into it; but undoubtedly we may treat his son as at that time in league with the nobles who were opposed to his father, King James the Third. In that state of things, King James the Third granted this dukedom on the 18th of May. On the 11th of June following, James the Third, with those nobles who adhered to him, including amongst them the Earl of Crawford, then Duke of Montrose, had a battle with the other nobles who took the part of the young king, and who had secured the young king on their side, and the result was the total defeat of James the Third. He was himself killed in the battle, and many of his nobles perished, but not amongst them the Duke of Montrose. Of course what followed, as might naturally be anticipated, was confiscation, and all those terrible events that always follow civil broils of this sort. James the Fourth met his Parliament, or rather his Parliament assembled, in the following month of October, and on the 17th day of October an Act of that Parliament was passed, which is what gives rise to the present question. It is the Act which in the course of this argument has been called the Act Rescissory.

My Lords, in this case I will read the original, because it is almost as easy to understand as the translation put into more modern language:-" Item_anent the proclamacione maid at Scone" that was the proclamation made by James IV., who afterwards became king, in favour of the lords who adhered to him, and against those who had taken part against him— "It is statut and ordanit that all alienacions of landis heretage lang takkis fewfermez officez tailzeis blanceferm creacion of new digniteis grantit or given to ony persone or personis qubat estate condicioun or degre that ever thai be of sene the secund day of Februar last by past be umqubile our Soverane Lordis taider quham God assoilze quhilk mycht be preiudiciale to our Soverane Lord and to the Crowne that now is be cassit and annullit and of nane effect nor force in ony tyme to cum becaus that sic alienacion giftis and privilegis war grantit sene the said tyme for the assistance to the perverst counsale that war contrar the comon gud of the realme and cans of the slauchter of oure Soverane Lordis fader."

Now, the question is, did or not that Act of Parliament, or whatever it was, annihilate the grant of the dukedom of Montrose that had been made on the 18th of May preceding? take it to be a matter that can admit of no controversy, that if it was an Act of Parliament, and if the "creation of new digni. ties" is an expression properly referring to the creation of the dukedom of Montrose, the effect of it was to destroy that creation. It was not necessary that there should be any attainder or any other Act of Parliament. As I have already stated, Parliament was omnipotent.

Now, prima facie, I think it must strike everybody, that not only it may point to that creation, or any other creation of a similar sort, but that it is impossible for language to do so more clearly. All the creations of new dignities, alienations of lands, &c., are abolished. It is true that it goes on to say, "which might be prejudicial to our Sovereign Lord, and to the Crown that now is." But what is the meaning of that? Does it mean, as was contended on the part of the claimant, that nothing was abolished that was not prejudicial; and so that it was to be left open to argument, in each particular case, whether it was or was not prejudicial; or is it merely an inaccurate (if it be inaccurate) way of explaining the motive that induced the Legislature to annihilate those gifts? Does it mean that such of the alienations of lands and grants of new dignities as may be prejudicial to his successor, shall be "cassit and annullit;" or does it mean that all those alienations and creations of new dignities shall he annulled, because they are, or might be, prejudicial to the successor? My Lords, I must confess that the latter appears to me to be the clear meaning of the words. And it there were any doubt upon that subject, I think all possible doubt is removed by the statute to which both parties before your Lordships, that is, both the claimant and the Crown, have referred, but which seems to me to put beyond doubt the proper interpretation on this part of the prior statute.

I allude to the statute passed about a year and a-half afterwards, on the 15th of February 1489 old style, 1490 new style, in which I find that this was ordained- Item, It is thought expedient, that because there was a statute made in our Sovereign Lord's Parliament, that now is bold at Edinburgh, on

Wednesday the 8th day of October, the year of God 1488 years, declaring all alienations of land, heritages, long lease, Jeu-ferms, officez, tailzies, blench-firms, lands made of ward, of nove avail after the second day of February, which was the day of our Sovereign Lord that now is coming forth of Stirling, unto the coronation of our Sovereign Lord's Highness, made by his father of most noble mind, made of none avail, force, nor effect, for certain causes, contained in the said Act and Statute; that, therefore, all they which got the pretended gitis of alienation of heritage, long leases, feu-firms, officez, tatizies, giving of blench-firm of wardlands, should bring their letters and evidence granted hereupon to our Sovereign Lord within forty days," that they might be cancelled.

It appears to me that the Legislature there have put their own construction upon the former statute; because they have bere said that there has been a statute passed declaring all these alienations of lands of none avail, and they therefore called upon the persons to surrender their title-deeds; clearly shewing that it was not to be a question in any case whether it was prejudicial, but that the reason why the Legislature thought fit to interfere, was because it was prejudicial. The Legislature clearly thought that all those alienations of lands were bit at by the former statute, and they enact that every one must come and surrender his title-deeds. I am aware that in this Act there is no mention of titles and dignities; but I do not think that that signifies at all. Probably every creation of a dignity contained (as I think we certainly see in this case) a grant of lands. There might have been a creation of a dignity without lands. In that case the surrendering the title did not signity at all, but the surrendering the titles to lands might be very important, because they might get into the hands of other persons, and questions might arise as to the title afterwards, but no such difficulty could exist with respect to a mere title of honour, and that affords a very good reason for the Legislature not having mentioned the creation of dignities in the second Act.

Therefore, putting, as I said, upon that first statute, the clear interpretation, that all new dignities that had been created by King James the Third since the day mentioned, namely, the preceding 2d of February, were struck at by that Act, called the Act Rescissory, if I had any doubt about it, it seems to me that that doubt is removed by the subsequent statute; but indepen. dently of that subsequent statute, I should have had no doubt. If that is so, my Lords, in truth, if we could be quite certain about it, if that admits of no possible doubt, there is an end of the case; because I certainly feel that the exact question, and the only question that we can be called upon to decide, is, Did that Act of Parliament destroy this dignity, or did it not? As

I have already stated to your Lordships, construing the Act of Parliament in the way in which I construe it, confirmed by the subsequent Act of Parliament, I think it clearly did. But although that is the view I take of the subject in construing these very ancient Acts of Parliament, undoubtedly the principle bas been often acted upon, and not unwisely or improperly, that matters of this sort being in very great obscurity, may sometimes be elucidated by what has been called contemporanea expositio, seeing how they were understood at the time; and if such a priuciple is in any case admissible, I think it is pre-eminently so in a case of this sort, where all is in great obscurity, not only from the lapse of three centuries and a-half and more, but from the troubles of the times, and from other causes. Therefore it is, that great attention has been directed to see how far contemporaneous exposition would enable us to come to a conclusion One way or the other, as to what was understood to be the effect of the Act Rescissory.

Now, my Lords, I must confess that it appears to me that there is a body of evidence shewing that it was understood by everybody at the time to have annihilated the dukedom, and that it was so acted upon at the time, and acted upon afterwards, down to the time at which I have the honour of addressing your Lordships, though it was exceedingly improbable that in a case involving all the difficulties of antiquity which attend this case, such a body of evidence should be found. It is rarely, indeed, that you can, by diving into the past, have a matter brought out so clearly as to what was the interpretation at the time.

Now, my Lords, if the dignity was annihilated, what would