`The following is in the style adopted by Burke's and other genealogical publications.
GRAHAM NASSAU GORDON SENIOR-MILNE, ACA, 41ST BARON AND 34TH PRINCE PALATINE OF MORDINGTON AND A LORD ADMIRAL IN THE ADMIRALTY OF SCOTLAND, [The Much Hon. The Baron of Mordington, 39 Castle Street, Norham, Northumberland TD15 2LQ], formerly of Edrington House, Mordington, Berwickshire (1998-2004), The Dovecote, Lowick (1996-1998), Sanson Seal, Berwick-upon-Tweed (1985-1996), 113 Gowan Avenue, London SW6 (1982-1985), 40 Barons Court Road, London W14 (1982);
recognised as Baron of Mordington by interlocutor (decree) of the Court of the Lord Lyon dated 11 Nov 2004 and matriculated arms at the LO 30 October 2007; changed name by warrant of the Lord Lyon King of Arms dated 20 Dec 2004 as heir male of his mother, Pamela Mary Milne (née Senior), elder daughter and senior heraldic co-heiress of Oliver Nassau Senior, who d 30 Jun 1992, heraldic heir of his ancestral uncle, Ascanius William Senior (1728-89), High Sheriff of Hampshire, to whom arms were granted 26 Mar 1767 under the hands and seals of Garter King of Arms and Clarenceux King of Arms (see lineage of Senior below); b 29 Sept 1955 at the Nuffield Maternity Home, Radcliffe Infirmary, Oxford; educ Fonthill Lodge Pre-Prep. and Prep. Schools, nr. East Grinstead, W. Sussex 1960-1969, Tonbridge 1969-71, Epsom College 1971-74; 2nd Lt. Royal Marines 1976-77; Asst. Film Dir. Cygnet Guild, London 1978; City of London Polytechnic (Foundation in Accountancy - passed with Credit) 1979-80; Served articles (ACA 1985) with Ernst & Whinney, Chartered Accountants, Southampton and London 1980-86; IT Auditor, Arthur Young, Chartered Accountants, Edinburgh 1987-88; IT Auditor, Scottish Homes, Edinburgh 1989-92; Fin. Cntrllr. & IT Mngr, Scottish Borders Enterprise, Galashiels 1992-96; Prtnr, Cogent Communications, Berwick-upon-Tweed 1996-98; IT Audit Mngr, Lloyds TSB, London and Edinburgh 1998-2004; Prtnr, ABC Publications, Berwick-upon-Tweed 2004; Chrmn, Berwick Parish Church Trust 1993; Freeman Worshipful Company of Tallow Chandlers from 1994; Member of the Council of the Scottish Genealogy Society 2002-09; m 25 Jun 1983 (div 2011) Annabel Catherine Margaret Horsfield and has issue,
The Milne/Mylne/Miln family is widespread in the North-East of Scotland, having been settled in Aberdeenshire and its neighbouring counties since the Middle Ages. In 2006 Milne was the 386th name in order of frequency in the United Kingdom. According to Black's 'Surnames of Scotland' the name was first recorded as 'de Molendino' in a charter of 1382 (but see the reference to the Ragman Roll of 1296 below) and is derived from the Old English 'myln', thus referring to a person living at or near a mill. It is possible, however, that 'de Molendino' was a Latinized form of 'de Molines' or 'de Molyneux' since the arms borne by Milne/Mylne in Scotland (or, a cross moline azure) are a reversal of those of Molyneux, Earls of Sefton (azure, a cross moline or). The de Molyneuxs were a Norman family from Moulineaux near Rouen who settled after the Conquest at Sefton in Lancashire, being granted the lands of Sefton by Roger of Poitou, the Domesday tenant, in about 1100. The family held these lands for almost 900 years, until the death of the 7th Earl in 1972. A younger son of this family, Vivian de Molyneux, a knight or squire, accompanied Avice de Lancaster (d 1190), daughter of William de Lancaster, Baron of Kendal (d 1170), into Scotland on the occasion of her marriage to Richard de Morville (d 1189) in 1167, settling at Oxton, Lauderdale (Berwickshire) and then Saltoun, East Lothian ('The Anglo-Norman Era in Scottish History', Professor G W S Barrow, Clarendon Press, 1980); he probably occupied the castle or tower house at Saltoun then held by the de Morville family which is now Saltoun Hall. An Elizabeth de Molyn of Berwickshire, evidently a landowner, signed the Ragman Roll in 1296, so 'Molyn' may represent a transitional form of the name from Molyneux, through Molyn, to Milne. Vivian de Molyneux's descendants, of whom there appears otherwise to be no trace, may have moved North with the Gordons of Gordon, Berwickshire (about 10 miles from Oxton), of which clan the Milne family are a sept, following the Gordon acquisition of the Lordship of Strathbogie, Aberdeenshire, in the early 1300s (see HUNTLY M.).
Several families of the name (with a probable though not established relationship) have achieved prominence, including Mylne of Balfarge (Glenrothes, Fife), Milne of Mureton and Milne of Balwyllo. The most notable branch were the Mylnes of Balfarge who were Master Masons to the Kings of Scots for seven generations, beginning with John Mylne (d 1513), Master Mason to James III, whose son, Alexander Mylne (d 1548), was first Lord President of the Court of Session 1532-1543, and continuing down to Robert Mylne (1663-1710), Master Mason to Charles II. The line continued down to Robert's great-grandson, another Robert (1733-1811), also an architect, a founder member of the Society of Civil Engineers, who is buried in St. Paul's Cathedral, and his son, William (1781-1863), also an architect - giving an unbroken line of architects for 400 years. John Mylne (d 1621), of this family, Master Mason to James VI, Master of the Lodge at Scone, admitted that king, 'at His Majesty's own desire', as 'frieman, mason and fellow craft' (M. Baigent and R. Leigh, 'The Temple and The Lodge - Inside Freemasonry', p.167). 'The Castellated and Domestic Architecture of Scotland' (Vol. V, p. 564) says of the Mylnes of Balfarge that they were 'an illustrious family who, during eleven generations, may be almost said to have established architecture as a profession in Scotland, and raised it to and maintained it in a position of dignity and importance to which it had hitherto been a stranger.' Amongst individuals of the name who have achieved distinction are Field Marshal Sir George Milne (1866-1948), 1st Lord Milne of Salonika and Rubislaw, Co. Aberdeen (see MILNE B.) and Admiral Sir Archibald Berkeley Milne, 2nd and last Bt. (1855-1938), famous for saying 'They don't pay me to think, they pay me to be an Admiral', son of Admiral of the Fleet Sir Alexander Milne, 1st Bt. (1806-1896), son of Admiral Sir David Milne of Milne Graden, Coldstream, Berwickshire (1763-1845). Admiral Sir David Milne was ancestor of the family of Milne-Home of Wedderburn Castle, Duns, Berwickshire, and Paxton House, Paxton, Berwickshire, (Sir David's son, another David, married Jean Home, heiress of Wedderburn and Paxton, and took the name Milne-Home), and of the family of Home-Robertson of Wedderburn Castle and Paxton House (Helen Milne-Home (1905-87), heiress of Wedderburn and Paxton, married John Robertson, who took the name Home-Robertson) (see BLG various ed.). Professor John 'Earthquake' Milne (1850-1913) is acknowledged as the father of seismology; he invented the horizontal pendulum seismograph and set up the worlds first world centre for seismology at Shide, Newport, Isle of Wight. Col. William Smith Gill, CB, VD (1865-1951), father of Ruth Sylvia Roche, Lady Fermoy (1908-1993), grandmother of Diana, Princess of Wales (1961-1997), was the great-great-grandson of Alexander Milne of Fyvie, Aberdeenshire (see FERMOY B.).
ROBERT MILNE, tacksman (tenant) of Charles Henry Mordaunt (1758-1814), 5th Earl of Peterborough, at West Boat of Durris, parish of Banchory Ternan, Kincardinshire; an elder of the Kirk for over 30 years; d 30 Apr 1823, aged 90, leaving with other issue a second son,
ROBERT MILNE, tacksman at West Boat of Durris; b 1770; m 4 Dec 1802 Clementina Paul of Mill of Invercanny (d 9 Nov 1846) and d 8 Jul 1838 leaving with other issue by her a third son,
JAMES MILNE, farmer, of South Lasts, Peterculter, Aberdeenshire and later of Kebbaty, Midmar, Aberdeenshire; b 6 Jan 1809; m Elspet Gordon (d 3 Apr 1879) and d 11 Feb 1875 leaving with other issue by her a fourth son,
Dr. Robert Milne (1849-1922) - Colleague of Dr. Barnardo. Members of his family were in continuous service with Dr. Barnardo's Homes from 1880 to 1972, a period of 92 years, providing over 120 combined years of service. 'The monument to the Milne family [is] to be found in the hearts and lives of countless Barnardo children' ('Night and Day', Autumn 1951). See also Rose, June, 'For the Sake of the Children: Inside Dr Barnardo's: 120 Years of Caring for Children', Hodder & Stoughton, London, 1987.
ROBERT MILNE, MD, physician, called the 'Beloved Physician', sometime of Kebbaty House, Midmar, Aberdeenshire, latterly of 75 Windsor Road, Forest Gate, London; b 26 Jul 1849; educ Aberdeen Grammar School and Marischal College, Aberdeen (graduated MB and CM 1874); in practice at Midmar 1876-1880; joined Dr. Barnardo at his special request in 1880 following an outbreak of scarlet fever at the Girls' Village Home, Barkingside and was Chief Medical Officer of Dr. Barnardo's Homes from 1880 to 1919, during which period he is estimated to have treated some 50,000 children; author of 'Infectious Diseases (Scarlet Fever, Measles, Diphtheria)', 'The Prevention of Infectious Diseases', 'Plea for the Home Treatment and Prevention of Scarlet Fever', 'The Prevention of Infectious Diseases (Scarlet Fever and Measles)', 'The Treatment and Prevention of Measles', 'Triumph of the Home Treatment and Prevention of Scarlet Fever', 'Measles: Its Treatment and Prevention' and 'The Elimination of Cross Infections'; m 6 Apr 1877 Mary Stuart Thomson (d 20 Jan 1925) and d 8 Nov 1922 having had issue,
Australian 'Cobbers Memorial' at Fromelles, commemorating the attack at Fromelles on 19 Jul 1916, "the worst 24 hours in Australia's entire history" (the statue is of a soldier of the 57th Battalion (Sergeant Simon Fraser) carrying a wounded soldier of the 60th Battalion). See also here, here, here, here and here.
'Few more gallant episodes than this dashing, hopeless assault exist in the annals of any army in the world.' - Capt. A D Ellis MC, 'The Story of the Fifth Australian Division, being an authoritative account of the division's doings in Egypt, France and Belgium', Nabu Public Domain Reprints (originally Hodder & Stoughton, London), p. 101, describing the assault by two companies of the 58th Battalion on 19 July 1916 at Fromelles.
'Stammering scores of German machine-guns spluttered violently, drowning the noise of the cannonade. The air was thick with bullets, swishing in a flat criss-crossed lattice of death ... Hundreds were mown down in the flicker of an eyelid, like great rows of teeth knocked from a comb ... Men were cut in two by streams of bullets [that] swept like whirling knives ... It was the charge of the Light Brigade once more, but more terrible, more hopeless.' - W H Downing (a survivor of the battle)
'What these men did nothing can alter now. The good and the bad, the greatness and smallness of their story will stand. Whatever of glory it contains nothing now can lessen. It rises, as it will always rise, above the mists of ages, a monument to great-hearted men; and, for their nation, a possession for ever.' - C E W Bean (Official historian writing about the AIF generally)
'the lowest point of military incompetence in the Great War' - Ekins, Ashley, The battle of Fromelles, Wartime 44 (2008) 18-23
'perhaps the greatest loss by a single division in 24 hours during the entire war' - Ekins, Ashley, The battle of Fromelles, Wartime 44 (2008) 18-23
2nd Lt. (later Lt.) George Gordon Milne (alias Leonard Henry Dardier), 58th Battalion, Australian Imperial Force, sitting bottom-left. A photograph of officers representing British Imperial Forces at the Bastille Day Parade in Paris in July 1916. The two Australian officers left Paris on 17 July 1916 and took part in the attack at Fromelles two days later. Both officers were wounded and 2nd Lt. (later Capt.) Norman Lovett, 54th Battalion (killed in action 6 Apr 1918), standing top right, was awarded the MC. Over 5,500 Australians were killed, wounded or captured in a matter of hours.
GEORGE GORDON MILNE, MRCS (1924), LRCP (1924), physician, of Lerwick, Shetland (1924-28), 214 Algernon Road, Lewisham (about 1932-34), 54 Pickhurst Lane, Hayes, Kent (about 1934-35), 38 Hayter Rd, Brixton (1936) and latterly of 86 Elizabeth Street, Hobart, Tasmania; b 31 Jan 1894; educ at The Coopers' Company School, Upminster and Univ. of London, Faculty of Medicine (Part I (Distinction) 1913, Part II (Testament of Merit) 1922); volunteer medic in Bulgaria with the British Red Cross during the Balkan War 1912-13 (British Red Cross Society Balkan War Medal and Bulgarian 'For Merit' Medal); under the assumed name of 'Leonard Henry Dardier' he joined the Australian Imperial Force at Melbourne as a volunteer in May 1915; was promoted 2nd Lt, Lt. then acting company commander, D Company, 58th Battalion, Australian Imperial Force (AIF) 1916-1917; was one of two officers representing the AIF at the Bastille Day Parade, Paris, 1916; was wounded during the Attack at Fromelles on 19 July 1916 and at Ginchy, Somme on 19 January 1917 (bullet throught the right shoulder); was assigned as Adjutant 60th Battalion, Australian Imperial Force Jul to Sept 1916, all the officers of that battalion except one having been killed, wounded or captured at Fromelles; Instructor at Brigade School for Officers and NCOs, Egypt (1916) and Bapaume, France (1917); Bayonet Fighting Instructor at 5th Australian Division School, Sailly, France (1917), seconded to 15th Training Battalion, Hurdcott, Wiltshire, then Overseas Training Brigade, Longbridge Deverill, Wiltshire (1917-18); was court-martialled, cashiered and deprived of pay, war gratuity and right to war medals in March 1918 for being drunk while on a day's leave in Salisbury on 9 Feb 1918* and subsequently absent without leave**, in spite of a character reference from Lt. Col C R Davies, former commanding officer of 58th Battalion, that he 'bore an excellent character' and was 'a most promising officer', and a recommendation from Lt. Gen. Sir Henry Schlater, Commander-in-Chief, Southern Command, that his sentence should be commuted to loss of seniority and severe reprimand (according to the records he walked into a police station, not being aware that it was a police station, to complain about a bright light outside the building, presumably because there was supposed to be a blackout due to Zeppelin raids); served in the merchant marine 1919-21 between London and Australia (trimmer (coal shoveller) and later fireman (stoker)) and 1929-31 between London and Australia, India, China and Japan (surgeon), m 13 Apr 1925 (divorce 1936) Margaret Nightingale Campbell (b 19 Mar 1900, d 18 Dec 1983), sometime of the War Department, daughter of Hugh Ross Campbell (b 3 May 1868), Police Inspector, and Margaret Gilchrist Nightingale of Arch House, Ecclefechan, Dumfries & Galloway (birthplace of Thomas Carlyle (1795-1881) and now owned by the National Trust for Scotland) (b 22 May 1871, d 26 Dec 1956), and sister of Lt. Col. Sir Alexander ('Uncle Sandy') Campbell, MC (1916, East Africa), (1890-1963), who served on the staff of Earl Mountbatten of Burma and later with the Burma Civil Service, and of Robert ('Uncle Bob') Nightingale Campbell, OBE (1891-1963), Controller of Scotland, Ministry of Labour, and had issue,
*This was the maximum sentence, imposed for a first time offence committed while on leave in England. Note also that the doctor who was called to give evidence as a prosecution witness at the court martial testified that L H Dardier 'had been drinking', not that he was drunk, which contradicted the evidence of the police. The doctor also said, when cross-examined, that Dardier's 'speech was clear', which also contradicted the evidence of the police. 'Young officers, at this period, were expected, as someone has noted in his war-memoires, to be roistering blades over wine and women.' - Robert Graves, 'Goodbye to All That'.
**The evidence provided by the prosecution witnesses only established that L H Dardier was not in his cubicle or mess at specific times, not that he was not in the camp at those times. As L H Dardier stated 'the evidence of neither witness proves that I was out of the camp'. When cross-examined a prosecution witness acknowledged that an officer (and Dardier had only been in that camp a short time) might not know the limits of a specific camp (there were several camps together).
George Gordon Milne (otherwise Leonard Henry Dardier), Lt. and commander of D Company, 58th Battalion, Australian Imperial Force - Forfeited war medals.
British Red Cross Balkan War Medal (Bulgarian clasp) and Bulgarian 'For Merit' Medal (less than 300 of the former were awarded)
Was George Gordon Milne the Last English Crusader Knight?
Illustration from Punch, 21 October 1914. Nurses of the St. John Ambulance Association tend a wounded soldier. The ghost of a Knight of the Order of St. John of Jerusalem attends.
There is no doubt that the Balkan War of 1912-13, in which George Gordon Milne served with the British Red Cross as a dresser (later being raised to the rank of Surgeon-Lieutenant in the Bulgarian Army), was the Last Crusade (holy war against Islam) and was regarded as such by the European belligerents, whose aim was to drive the Turks from European soil (WW1 was not a religious war of course and so was not a crusade). The manifesto of Tsar Ferdinand of Bulgaria said 'This is not a war like any other war, but the war of the Cross against the Crescent. Our enterprise is righteous, great and sacred.' (Despot, Igor; 'The Balkan War in the Eyes of the Warring Parties', iUniverse, 2012, p. 62). As far as I am aware the only British/English participants in that war were the British Red Cross volunteers, who, in looking after the sick and wounded, were performing the same function in the Balkan War as the Knights of St. John of Jerusalem in the Crusades in the Holy Land many centuries before (at that time the St. John Ambulance Association was part of the British Red Cross). Coincidentally, these people also served under the red cross on a white background; the cross of the Knights Templar. Only 300 British Red Cross Balkan War Medals were awarded and many of these were to people who cared for the Turkish wounded (the Red Cross looked after the wounded of both sides), so perhaps half (150) were awarded to people who served with the Christian armies. This small band were the last British/English crusaders (in the true knightly sense) in history and the medals awarded to them are the only medals awarded to British/English crusaders ever. These medals were, of course, awarded for saving life, rather than taking it, and are infinitely rarer than the Victoria Cross. Bear in mind also that medical staff continually exposed themselves on the battlefield to the greatest danger, often unarmed.
The 58th Battalion at the attack at Fromelles
'By then night was closing in, and in the failing twilight there had already gone forward, punctually to the minute, one of the bravest and most hopeless assaults ever undertaken by the Australian Imperial Force. The two companies of the 58th were commanded by Major Hutchinson, a young graduate of Duntroon, son of a Tasmanian clergyman, and a boy of the finest type that his country produces. Before the actual order to advance, the men - as was often the case with Australians, especially when first in action - could be felt straining like greyhounds on the leash, and were not easily restrained from anticipating the word of command. On its being given, they went forward with splendid dash opposite the Sugar-loaf, carrying with them a number of survivors of the 59th, until, when they were two-thirds of the way across No-Man's Land, there was opened from the salient a fire of machine-guns so severe that the line was shattered and the men dazed. The survivors obtained slight cover in a ditch. As they lay there, with the terrifying din of the machine-gun bullets cracking overhead, Hutchinson, apparently in an endeavour to lift the wave farther, went on himself, alone, and fell riddled by bullets close to the German wire.* The two companies of the 58th which made the attack were practically annihilated.' - Official History of Australia in the War of 19141918, 12th Ed. (1941), Vol 3, p. 394
*2nd Lt. L H Dardier signed the recommendation for, and made a statement supporting, the award of a posthumous VC to Major Hutchinson (which was not granted), as a witness, so must have been near him when he was killed, and was certainly one of his platoon commanders (L H Dardier's military record states that he was 'in Fleurbaix-Fromelles attack on 19.7.16', which can only be the attack at 9pm on 19 Jul 1916). Major Hutchinson was killed in front of the German wire near the Sugar Loaf, which can only mean that he and his men had continued to attack, right in front of the German machine guns, after the two attacking companies of the 58th Battalion had been practically annihilated. In my view, anyone who took part in this hopeless assault in the face of almost certain death deserves a VC. Evidence from Hutchinson's batman, Private Lynch, states 'We got up and went forward. As we rose he was hit and fell.' (Letter of Australian Red Cross dated 15/8/1916 in Hutchinson's AIF record).
Not only was Major Hutchinson not awarded the VC, he wasn't even mentioned in despatches, which is quite extraordinary. One author has speculated that this may well have been because the citation for the VC mentioned that the attack had been made in support of a British attack 'which unfortunately was not made', something that higher command wanted to conceal (not least because many Australians blamed the British for not supporting them at Gallipoli and the same thing appears to have happened the very first time Australian troops were engaged on the Western Front, that is at Fromelles, with similarly tragic results). Not one of the officers who took part in the suicidal attack by the 58th Battalion received any medal or even a mention in despatches. As Robin Corfield wrote in his definitive account of the attack, 'Don't forget me, Cobber - The Battle of Fromelles', 'this [list of medals awarded to the 58th Battalion] is a curiously bare list considering what the 58th did and was expected to do'. Of the 59th Battalion he wrote 'Perhaps like the 58th and 60th this sparse list might have more to do with the lack of survivors than lack of bravery. Of the 60th Battalion, which had a 90% casualty rate (killed, wounded or captured) in the space of a few minutes, he wrote 'For the most damaged battalion there was little comfort in the list of awards.' This lack of awards to the 58th, 59th and 60th Battalions contrasts with awards made to Divisional Headquarters staff, which included an MC to one Captain who 'controlled all the necessary provision and distribution of ammunition and stores for the fight 19/20 July and did it admirably' (that is a bravery award for an administrative job at headquarters) and a Mentioned in Despatches to one Lt. Col for traffic control.
A summary of the attack at Fromelles:
1. The attack at Fromelles
on 19/7/1916 was intended to prevent the Germans
reinforcing their positions on the Somme, where the
British Army had launched a major offensive on 1/7/1916
(The Battle of the Somme). It was acknowledged to be
unnecessary by senior British military commanders even
before it took place. All that was actually required to
give the Germans the impression of a forthcoming attack,
and so to achieve the objective, was a sufficiently large
artillery barrage and troop movements indicating a
build-up to an attack, and this is what was initially
proposed. The attack only went ahead at the insistence of
the British corps commander, Lieutenant General Richard Haking, who was convinced that it would
succeed (even though a previous attack in this area - the Battle of Aubers Ridge - had been a disaster), but, even
then, it was an attack with no physical objective (i.e.
to take and hold ground).
'Abide with me; fast
falls the eventide;
He m, secondly, Joyce Hazel Hanslowe and d Mar 1942 having had further issue,
'I am the rose of Sharon, and the lily of the valleys.' - Song of Solomon 2:1
Arms: Quarterly, first and fourth,
azure a cross moline between four fleur-de-lys or (for
MILNE), second and third, per fess, gules and azure, a
fess ermine between, in chief, two lions heads erased or
and, in base, a dolphin naiant embowed argent (for
*Gules, three rams heads couped erminois.
Seal of William de Mordington dated 1246 (Durham University Library Archives & Special Collections: Medieval seals based on Greenwell & Blair's catalogue, no. 2896)
According to Black's 'Surnames of Scotland' the name 'Mordington' is derived from the 'old barony of the same name in Berwickshire, the 'tun' of a Saxon named Mordyn, Mording or Morthing. William de Mordington, the first recorded of the name, appears soon after 1200 as a vassal of the prior of Durham (Raine*). William de Morthington held part of the vill of Lamberton, c. 1235, was Chancellor of Scotland in the reign of Alexander II.... He and his son, Sir Peter de Mordingtoun, are frequent witnesses to Coldingham charters (Raine*, App.)... The family appears to have ended in an heiress, the afore-mentioned Agnes, daughter of Sir Peter de Mordingtoun, who married Henry de Haliburton.'
*'The History and Antiquities of North Durham...', Rev. James Raine, London, 1852.
The first mention of Mordington is in a charter (now lost) of King Edgar (c.943-975) granting various lands in southern Scotland, including Mordington, to Durham cathedral; this grant was confirmed by William Rufus on 29 August 1095 (Durham University Library Archives & Special Collections, Durham Cathedral Muniments, Miscellaneous Charter 559). However, the original charter of erection of the feudal or territorial Barony of Mordington (Berwickshire), which is now a personal title as a consequence of the Abolition of Feudal Tenure etc. etc. (Scotland) Act 2000 (but see below), is lost at a date before 1312 to 1329, in which period the Barony was resigned by Sir Henry de Haliburton (a signatory of the Ragman Roll of 1296 as 'tenaunt le Roi du counte de Berewyk') and his spouse Agnes de Morthingtoun (evidently the heiress) to Robert the Bruce for re-grant to Thomas Randolph, 1st Earl of Moray, who commanded the left wing at the Battle of Bannockburn (1314) and was Regent of Scotland from 1329. It seems likely that the barony was granted to Thomas Randolph after he and Sir James Douglas ('the good Sir James') captured Berwick-upon-Tweed in 1318. A lordship of Mordington, held by the family of that name, is referred to in charters dating from the time of Patrick, 5th Earl of Dunbar (1152-1232), which means that the lordship/barony of Mordington is older than the oldest surviving Scottish peerage, the Earldom of Sutherland, which dates from about 1235, and also older than the oldest surviving English peerage, the barony of de Ros, which dates from 1265. In 1335, on the death of John Randolph, 3rd Earl of Moray (who commanded the first Scottish division at the battle of Halidon Hill, near Berwick-upon-Tweed, in 1333), the Barony passed via an heiress from the Earls of Moray to the Earls of Dunbar or March and then also by marriage (as dowry) to the Douglas family of Dalkeith, later Earls of Morton, and was held by that family from 1372 until 1636, apart from a period of forfeiture between 1581 and 1585 when it was held by the 1st and 2nd Dukes of Lennox and 1585 to 1588 when it was held by Archibald Douglas, 8th Earl of Angus. In 1634 the lands of Over Mordington were detached from the Barony and granted to Sir James Douglas (second son of William Douglas, 10th Earl of Angus), later 1st Lord Mordington (which title became extinct in 1755), and in 1636 the Barony, which then consisted solely of the lands of Nether Mordington (with Edrington House, the manor place of Nether Mordington, as the caput), was granted to Thomas Ramsay (of the family of Ramsay of Edington, near Chirnside, Berwickshire, apparently a branch of the family of Ramsay, Earls of Dalhousie), Minister of the Kirk at Foulden, Berwickshire, and Helen Kellie, his spouse, to be held in free regality ('in libera regalitate'). The Barony was subsequently owned by the families of Douglas of Mordington (1658-1685), Douglas (1685-1773), Douglas Watson (1773-1785), Marshall (1785-1834), Soady (1834-1864), Chirnside (1864-1939), Sutherland (1939-1949), Edwards (1949-1962), Robertson (1962-1975) and Elphinston (1975-1998) until it was acquired jointly by the present owners in 1998 when they purchased Edrington House, the caput (legal head) of the barony, and the remaining lands.
The Barony of Mordington has been held in free regality ('in libera regalitate'), that is as a palatine lordship, since 24th March 1381-2 when, on the marriage of his son, James (d. before May 1441), to Elizabeth, daughter of the future Robert III, Sir James Douglas received a grant of Mordington and other lands from Robert II in free regality, with the 4 pleas of the Crown ('Scots Peerage', VI, 350 referring to Reg. Honor. de Morton; also Register of the Great Seal, II, 993 being a charter of confirmation under the Great Seal dated 9th July 1470 to William Douglas of Morton and Whittingham referring, inter alia, to the 'baroniam de Mordingtoun' and to grants of Mordington 'in libera regalitate' by Robert II and Robert III).
*Two arguments have been suggested concerning the validity of the grant of regality in 1636. Firstly, that the grant of a new regality required the personal signature of the king (because the Barons of the Exchequer had no authority to grant something new i.e. alienate Crown rights) and, secondly, that a subject could not create a lord of regality. However, the regality was not a new regality because the Barony of Mordington had been held in regality since 1381-2 (so there was no creation of a new regality, merely the transfer of an existing regality, and the Barons of the Exchequer could receive resignations and make re-grants of existing subjects) and, in any event, in 1407 the Earl of Douglas bestowed regality rights over Buittle, Preston and Borgue on Sir James Douglas of Dalkeith (see Alexander Grants Franchises North of the Border, p. 14 and Reg. Honor. de Morton, vol. II, p. 203), which shows that a lord of regality could in fact transfer regality rights over part of his lands to another person. In addition, an ordinary baron could not create a baron (as such) but he certainly could create a baron (in effect) by selling his barony. The charter of 1386 (Reg. Honor. de Morton, vol. II, p. 154) which purportedly erected the regalities of Dalkeith and Morton is key because while it erects the various lands and baronies referred to into one barony and regality of Dalkeith ('in unam integram et liberam baroniam et in liberam regaliam feu regalitatem') there are no parallel words of erection for the lands and baronies of the purported regality of Morton (i.e. the baronies of Morton, Mordington and Whittinghame), probably because these lands and baronies were held not of the King but of the Earl of March.* The erroneous reference to a regality of Morton being erected at that date (in Alexander Grants Franchises North of the Border, p. 37) appears to have arisen because the service due from the relevant lands and baronies (one silver penny) was to be paid at Morton. While these lands and baronies were held in regality they were not united into one regality, which means that the Barony of Mordington was originally held on its own in regality. This is significant because when the Barony of Mordington was dissolved from the Regality of Dalkeith in 1636 (into which it was incorporated in 1540), what was dissolved from that regality was what was incorporated into that regality in the first place; a barony held in regality. It cannot be otherwise because, as Croft Dickinson makes clear ('The Court Book of the Barony of Carnwath 1523-1542', p. xxxvii, l), a barony, being impartible and indestructible (p. xxxii, xxxvi)**, retained its separate legal identity (and its separate court) unless united 'in unam et integram baroniam', which is why the Barony of Mordington continued to exist as a separate legal entity even after it had been incorporated into the Regality of Dalkeith; that legal entity was a barony held in regality. The barony held in regality was a creation of the Crown (in 1381/2) so it would have been creating 'something new' to have split off the regality rights from that barony, not the other way round. But these arguments are academic in any event in view of the resignation and confirmation (which is a re-grant) by Crown Charter in 1856.
*The Earldom of Dunbar/March was forfeited to the Crown in 1435 (RPS, 1435/3) so the Barony of Mordington was held of the Crown from that year.
**See also Peter McIntyre, 'Introduction to Scottish Legal History', Ch. XXVIII, 'The Franchise Courts', p. 375, where he states 'It required a royal grant to create a baron court; once created it was impartible and indestructible; only a royal act, the Heritable Jurisdcitions Act 1747 (20 Geo. II c.43) could limit the franchise jurisdiction of the baron court.' and APS, ii, 49, c. 16 (1457) where it was enacted 'Item, as to regalities, it is statute and ordained that all privileges and freedoms be kept as they were founded.' Note also that the Regality of Dalkeith, including the Barony of Mordington (held in regality) was, by an Act of Parliament of 1567 (NAS, PA2/10, II, ff.30r-33v.), protected from any form ('any manner of way' - see below) of revocation for all time ('On the which day our sovereign lady, with the advice of the three estates of her realm in this present parliament, ratifies, approves and confirms, for her highness and successors, the charter and infeftment made and granted by her majesty to her trusted cousin and counsellor James, earl of Morton, lord Dalkeith etc., and Dame Elizabeth Douglas, his spouse, the longer liver of them, their male heirs contained in the said infeftment and assignees, of all and sundry the lands, lordship and regality of Dalkeith and earldom of Morton, which is specified and contained at length in the said infeftment of the date at Edinburgh, 17 October 1564, and all and sundry points, articles and privileges thereof, and discerns the same to be as good and sufficient to the said James, earl of Morton and Elizabeth, his spouse, the longest liver of them, their male heirs contained therein and assignees, for possessing and enjoying of the said lands, lordship, earldom and regality perpetually in all time coming, as if the same had been given and granted by her majesty after her lawful and perfect age of 25 years complete, with the advice and consent of the three estates of her realm, notwithstanding our sovereign lady's revocation made in this present parliament or to be made in any time hereafter, under which said infeftment shall never be comprehended by any manner of way;').
Note, in this context, that the Act of the Scottish Parliament of 1469 (RPS, A1469/2), by which, in perpetuity, the heir to the throne automatically becomes Duke of Rothesay on birth or on the accession to the throne of his mother or father, and by which any alienation (without due consideration and consent) is deemed void, is still held to be good law (if it wasn't then then the Prince of Wales would not be Duke of Rothesay). So, if the Act of 1469 which governs succession to the Dukedom of Rothesay (a regality) in perpetuity is still vaild then the Act of 1567 which protects the Barony of Mordington (a regality) in perpetuity must also still be valid. Further, since the Dukedom of Rothesay (a feudal barony and regality as per 'Complete Peerage', 2nd Ed., vol. XI, p. 208, n. b) is deemed to be a peerage it follows that the Barony of Mordington (a feudal barony and regality) must also be a peerage.
Note also that a charter of 20/6/1589 (RMS, V, 1674) granted the Regality of Dalkeith, including the barony of Mordington, to William Douglas, Earl of Morton, and to a series of heirs, whom failing 'to the assignees of said earl whatsoever'. According to J. F. Riddell, in his 'Inquiry into the Law and Practice in Scottish Peerages' (Edinburgh, 1862, Vol. I, p. 208-211) this power of assignation would have been enough to allow the simple conveyance of a personal peerage title to an assignee, as happened with Cardross ('Complete Peerage', 2nd ed., vol. 3, p. 18-19), so would logically have been enough to allow the sale of a feudal barony held in regality to a purchaser (being an assignee). In other words, if the Earl of Morton had the power to assign the Barony of Mordington to an assignee at all, he must also have had the power to assign the Barony with its impartible regality jurisdiction.
Palatinates and regalities
Palatinates (or regalities as they are called in Scotland) were usually lawless border regions granted to a high-ranking noble who was given royal jurisdiction to enable him to maintain law and order in the palatinate ('palatine' is derived from the Latin palatium, that is 'palace'), and he reigned within his lands legally as a 'reguli' or 'little king' (according to Lord Bankton*, 'An Institute of the Laws of Scotland', II, III, para. 83, where he refers to a regality as a 'royal dignity'). 'Hence owners of counties palatine were formerly said to have "jura regalia" in their counties as fully as the king in his palace' (1 Bl. Comm. 117); that is, they exercised full royal power.
*Lord Bankton is an institutional writer which means that his works are regarded as authoritative in Scottish courts of law.
Lord Bankton, 'An Institute of the Laws of Scotland' (1751-53), II, III, para. 83
In his 'History of Scotland' John Hill Burton (1809-1881), Historiographer Royal (1867-1881), stated (vol. viii, p. 516) that a regality was 'a separate little kindgom carved out of the realm, where a great man was indulged with a gift of supreme [i.e. royal] authority'.
Sir George Mackenzie, an institutional writer regarded as authoritative in Scottish courts of law, states that Lords of Regality in Scotland had the same powers as Earls Palatine in England (Nisbet, System of Heraldry, vol. II, p. 46) and he also says ('Observations', 47) that 'A lord of regality is Regulus, a little king, and takes off the people from an immediate dependence on the king'. Thus a regality was a kingdom and the title 'lord of regality' was a royal title. Note that the caput or head of a regality was technically a palatium, that is a palace or 'seat of royal authority' (Nisbet, 'System of Heraldry', Vol. II, Part IV, p. 46).
'Regality powers were superior to those traditionally exercised by earls within the old earldoms'. (Alexander Grant, Franchises North of the Border, p. 39)
For use of the style Palatine in Scotland see Complete Peerage, vol. 12A, pp. 389-391, which refers to David Stewart, 5th Earl of Strathearn, and his successors being called Earl Palatine of Strathearn following the erection of that earldom into a regality in 1371.
In England the Palatine Counties of Chester and Durham, for example, were created to administer the border areas between England and Wales and England and Scotland respectively. The Duchy of Lancaster still retains certain palatine powers relating to the County Palatine of Lancaster.
The Palatinate of Durham was ruled by the Bishop of Durham, who was known as the Prince-Bishop of Durham until the passing of The Durham (County Palatine) Act 1836, reflecting the fact that palatine lords were legally sovereign princes of their domains, from which the royal authority was excluded, although the lord of the palatinate still owed allegiance to his sovereign ('There are two kings in England, namely, the lord king of England wearing a crown in sign of his regality, and the lord bishop of Durham wearing a mitre in place of a crown in sign of his regality in the diocese of Durham' - William de St. Botolph, 1302, Public Record Office, London, Assize Roll 226, m. 1d).
'Anthony [Bek], Prince-Bishop of Durham, one of the chief potentates of his age, and "the prowdest Lorde in Christientie." "No man in all the Realm, except the King, did equal him for habit, behaviour, and military pomp: and he was more versed in State affairs than in ecclesiastical duties; ever assisting the King most powerfully in his wars; having sometimes in Scotland 26 Standard Bearers, and of his ordinary Retinue 140 Knights, so that he was thought to be rather a temporal Prince than a priest or Bishop." - Dugdale. As Prince Palatine, there was not, in point of fact, a single attribute of sovereignty that did not belong to him. He levied taxes; raised troops; sate in judgment of life and death; coined money; instituted corporations by charter; created Barons, who formed his council or Parliament, and granted fairs and markets. He was Lord High Admiral of the seas or waters within or adjoining the Palatinate; impressed ships for war; and had Vice-Admirals and Courts of Admiralty. Nor was aught wanting of the state and dignity of Royalty. Nobles addressed him only on bended knee; and knights waited bare-headed in his presence-chamber. His wealth was enormous, and his expenditure as magnificent as his income.' (The Duchess of Cleveland, 'The Battle Abbey Roll', vol. I, p. 121).
According to Burke's 'Dormant and Extinct Peerages', the Palatine Earldom of Chester was granted in 1070 to Hugh de Abrincis (d'Avranches), otherwise 'Hugh Lupus' or 'Hugh the Fat', by William the Conqueror 'to hold as freely by the sword as the King himself held England by the crown', that is with complete royal jurisdiction. In Scotland, the legal term 'in libera regalitate' conferred all the powers exercised by the king, excluding only the right to try treason, but including complete criminal jurisdiction, including the power to try the Four Pleas of the Crown (murder, rape, arson and robbery). The Palatine Earldom of Chester had its own parliament until 1543 and the County Palatine of Durham had its own court system until 1971. See also the Paladins or Peers of Charlemagne, the most famous of whom was Roland.
The arms of the Bishop of Durham. These arms include a crozier and sword in saltire, as opposed to the two croziers in saltire borne by other (non-palatine) Bishops, and are surmounted by a bishop's mitre issuing out of a coronet. This is not a crest as such because in heraldic theory clerics do not fight and so cannot use helmets in their arms or, consequently, have a crest (which surmounts the helmet), but equates to the coronet which surmounts the shield in the arms of a peer. These two additaments, the sword and the coronet, symbolized the temporal power of the Bishop as a palatine lord or count palatine. The coronet is often referred to as a crest coronet or a ducal coronet but the design seems to vary; the first or left-hand seems to be a ducal coronet (strawberry leaves), the second and fourth seem to be the same as currently used by grandchildren of the sovereign (strawberry leaves and fleur-de lys) and the third seems to be the coronet of a marquess (strawberry leaves and pearls). One Bishop of Durham, Nathaniel Crew, 3rd Baron Crew, showed an earl's coronet. It would appear that temporal (i.e. non-clerical) earls/counts palatine in England were entitled to use the coronet of an earl, as demonstrated by the seal used by the 2nd Lord Baltimore (1605-1675), which was subsequently adopted as the seal of the state of Maryland.
The seal of the state of Maryland, originally sent from England at the time of settlement, showing the earl's coronet used by the 2nd Lord Baltimore, to whom Maryland was granted by Charles I in 1632. The statute adopting the seal states 'Above the shield is placed an Earl's coronet (indicating that though only a baron in England, Calvert was an earl or count palatine in Maryland)'. The crown charter granting Maryland to Lord Baltimore grants, against the heading 'Jurisdiction of a Count Palatine', 'all and singular the like, and as ample rights, jurisdictions, privileges, prerogatives, royalties, liberties, immunities, royall [sic] rights and franchises of what kind soever temporal, as well as by sea, as by land, within the county, iles, iletts, and limits aforesaid; to have, exercise , use and enjoy the same, as amply as any Bishop of Durham, within the Bishoprick, or County Palatine of Durham, in our Kingdome of England, hath at any time heretofore had, held, used, or enjoyed, or of right ought, or might have had, held, used or enjoyed.' Note also that the same charter grants, as a count palatine, 'the free and absolute power [...] to conferre favours, rewards and honours, upon such inhabitants within the Province aforesaid, as shall deserve the same, and to invest them, with what titles and dignities soever, as he shall think fit (so as they be not such as are now used in England).' This conferred the right to create a colonial nobility (Browne, William Hand (1890), George Calvert and Cecilius Calvert: Barons Baltimore of Baltimore, New York, Dodd, Mead, and Company, p. 36). On p. 37 it states: 'This charter, as Gardiner has well remarked, provided for a consitutional government according to the ideas of James and of Charles. There was to be a hereditary feudal monarchy, surrounded by a body of nobility deriving its rank, dignities and privileges from the prince as the fountain of honour. The law-making power was vested in the prince, not in the people, who could only advise and assent or dissent. The proprietary lacked no single royal power; his title ran 'Cecilius, Absolute Lord of Maryland and Avalon' and the only difference between him and an independent sovereign was the acknowledgment of fealty typified by the tender of the arrows and the reservation of the fifths of gold and silver.' See also the charter of Charles II in relation to Carolina dated 30/6/1665 which grants similar palatine powers.
In a letter to me dated 16/8/2012 Portcullis Pursuivant (College of Arms, London) wrote that, in his view, 'the Bishop of Durham is entitled to a ducal coronet in addition to a mitre by reason of his former secular status as a palatine', so even a former lord palatine is entitled to a ducal coronet. In his 'A Complete Guide to Heraldry' (1909, p. 604) Arthur Fox-Davies wrote: 'The Bishopric of Durham, until the earlier part of the nineteenth century, was a Palatinate, and in earlier times the Bishops of Durham, who had their own parliament and Barons of the Palatinate, exercised a jurisdiction and regality, limited in extent certainly, but little short in fact or effect of the power of the Crown. If ever any ecclesiastic can be correctly said to have enjoyed temporal power, the Bishops of Durham can be so described. The Prince-Bishops of the Continent had no such attributes of regality vested in themselves as were enjoyed by the Bishops of Durham. These were in truth kings within their bishoprics, and even to the present day though modern geographies and modern social legislation have divided the bishopric into other divisions one still hears the term employed of ''within" or "without" the bishopric. The result of this temporal power enjoyed by the Bishops of Durham is seen in their heraldic achievement. In place of the two crosiers in saltire behind the shield, as used by the other bishops, the Bishops of Durham place a sword and a crosier in saltire behind their shield to signify both their temporal and spiritual jurisdiction. The mitre of the Bishop of Durham is heraldically represented with the rim encircled by a ducal coronet, and it has thereby become usual to speak of the coronetted mitre of the Bishop of Durham; but it should be clearly borne in mind that the coronet formed no part of the actual mitre, and probably no mitre has ever existed in which the rim has been encircled by a coronet. But the Bishops of Durham, by virtue of their temporal status, used a coronet, and by virtue of their ecclesiastical status used a mitre, and the representation of both of these at one and the same time has resulted in the coronet being placed to encircle the rim of the mitre. The result has been that, heraldically, they are now always represented as one and the same article.'
Earls and bishops palatine (in England) and lords of regality (in Scotland) therefore had the right to create their own barons; that is, effectively, to create franchise baronial jurisdictions out of their own franchise palatine/regality jurisdiction. The Barons of the Earldom of Chester were, in order of seniority: The Baron of Halton, the Baron of Mantalto (Hawarden), the Baron of Wich Maldebeng (Nantwich), the Baron of Malpas, the Baron of Shipbrook, the Baron of Dunham Massey, the Baron of Kinderton and the Baron of Stockport. The barons of the County Palatine of Durham included the Hyltons of Hylton Castle, the Bulmers of Brancepeth Castle, the Conyers of Sockburne (Sockburn), the Hansards of Evenwood, the Lumleys of Lumley Castle and the Nevilles of Raby Castle.
With regard to Scotland, Professor Croft Dickinson (1897-1963), the leading academic authority on Scottish feudal baronies, states in his introduction to 'The Court Book of the Barony of Carnwath 1523-1542'* (p. lix): 'Finally, in considering these grants of rights of public justice it is clear that the tenant received them from his lord because his social position entitled him to them, because, in fact, he was already a "baron" as the word was understood in feudal society. He might not hold of the King; he might not hold in liberam baroniam. Nevertheless his jurisdiction was baronial and while bearing Craig's caveat in mind, we are bound to conclude that those tenants who held of an earl or lord and who had a right of furca and fossa were 'barons'. The jurisdiction must be our test, irrespective of whether that jurisdiction was derived from an earl or king.' See also p. l, n. 2, where he gives examples of baronies held of earls (e.g. Newdosk held of the Earl of Crawford and Cowie held of the Earl of Errol) and of grants by earls 'in liberam baroniam', and p. lii, where he states 'It is clear that in certain cases the earls granted lands to be held of them with rights of public justice, and that their "barons" regarded these rights as being derived directly from the earl who, to them, was "regulus" if not "rex". An example of a barony granted by a Lord of Regality is Muckart which was granted by the Archbishop of St. Andrews (Sir Thomas Innes of Learney, 'Robes of the Feudal Baronage of Scotland', P.S.A.S, Vol. LXXIX, p.117, n. 2).
*Described by Sir Malcolm Innes of Edingight, formerly Lord Lyon, as 'the most authoritative account of the formation and functions of baronies in Scotland', 'The Scottish Genealogist', vol. 47, June 2000, pp. 35-41.
Sir William Betham (1779-1853), Ulster King of Arms, in his 'On Palatine Honours in Ireland' (The Journal of the British Archaeological Association, 1850, vol. V, p. 200) stated: 'These [palatine] lords could create tenures and barons, or erect a fee into a barony, which gave the possessor the title of baron and the same rights and jurisdiction, within his barony, as a baron of the kingdom had, that is, jurisdiction of life and limb, or infangethef and outfangethef. They could also create burgage tenures, and incorporate towns, and grant by their charters of incorporation similar privileges to their men as the crown did.'
The power to create barons still exists in Scotland and was exercised into the 1990s* according to Hugh Peskett, Consultant Editor for Scotland, Burke's 'Peerage, Baronetage & Knightage'. See Peskett, Hugh; 'Scottish Feudal Baronies', 'Peerage, Baronetage & Knightage', Burke's, 107th Ed. and 'East Lothian Life', Autumn 2003, p. 17, where he wrote: 'There are some rare exceptions [to baronies being held of the Crown], deriving from the ancient power exercised by the earls of the seven ancient earldoms, and by the Lords of the Isles, to erect baronies (a power which they still have and which was exercised into the 1990s)'.
Note that 'Irish Pedigrees' (John O'Hart, 5th Ed, vol. II, p. 214 under 'FitzGibbon'), states that John FitzGerald (d 1261), 1st Baron of Desmond (Ireland), 'by virtue of his royal seignory as a Count Palatine' created his three sons hereditary knights (John FitzGerald was created 'The Knight of Glin' or 'The Black Knight', Maurice FitzGerald was created 'Knight of Kerry' or 'The Green Knight' and Gilbert FitzGerald/FitzGibbon was created 'The White Knight' on account of his fair hair). This shows (1) that a baron who held a palatinate was a Count Palatine and (2) that a Count Palatine could create hereditary knights. The last White Knight died in 1611, the last Knight of Glin died in 2011; the Knights of Kerry are still extant.
The 'Correspondence and Report of the Commission appointed to inquire into the Claims of the Maltese Nobility', presented to the Houses of Parliament in May 1878 by the Governor of Malta, C. T. van Straubanzee, states:
'20. These islands
were granted to the Order [of Malta] as a noble, free and
absolute fee (feudum nobile, liberum, et francum) by the
Emperor Charles the Fifth as King of Sicily Ultra or of
the Island of Sicily, by a patent given at Castelfranco,
on the 24th May 1530, under the royal seal of the Kingdom
of Sicily Ultra. The Grand Masters were, by that deed,
bound to acknowledge, as lords of the feud, the Kings of
Sicily and their successors for the time being, to whom
they were to pay annually the homage of a falcon, and
from whom they were to receive the investiture, according
to the enactments of the common law.
The above extract shows that the sovereign right to create titles existed where sovereign power was held by a prince as the feudal tenant of a sovereign superior; in this case, the Emperor as King of Sicily. It also shows that such sovereign princes could, inter allia, grant the titles of Baron, Count and Marquis. These titles were recognized by the British Government and therefore provide a legal precedent with respect to titles granted by other sovereign princes within the jurisidiction of the British crown, since the titles were recognized by Crown on the advice of the Committee of Privileges of the House of Lords (which is the same process of recognition used for British peerages). What makes a tenant a sovereign prince is the exercise of the royal power, and Lords of Regality in Scotland exercised ALL the powers of the Crown except the right to try cases of treason. Thus, Lords of Regality are sovereign princes, according to this precedent, and as such can create titles, including the titles of Baron, Count (Earl) and Marquis.
Note that right of regality in Scotland included, along with rights of chancery and other rights, rights of admiralty (Croft Dickinson, p. xlii*), where appropriate, and that these rights were protected by article 19 of the Act of Union of 1707 which states 'that the Heritable Rights of Admiralty and Vice-Admiralties in Scotland be reserved to the respective Proprietors as Rights of Property, subject nevertheless, as to the manner of Exercising such Heritable Rights to such Regulations and Alterations as shall be thought proper to be made by the Parliament of Great Britain'. Lords of Regality would therefore also have been Lords Admiral in the Admiralty of Scotland, if their lands were coastal (which Mordington is, given that it is bounded by the River Whitadder and that there is no bridge in Scotland below the barony before the open sea), and the title of Lord Admiral survived the Heritable Jurisdictions Act of 1747 in the same way that the title of Hereditary Sheriff, as recognised by the Lord Lyon (e.g. Argyll, Bute, Wigtown), and Lord of Regality, also survived that Act; that is, on the basis that, according to Senior Counsel, the Act must be construed by reference to its purpose and was an Act to remove jurisdictions, not titles. Note also that s.10 Public Offices (Scotland) Act 1817 confirmed that the title Vice-Admiral of Scotland still existed at that date. See also Sacheverell, William, 'An Account of the Isle of Man', Manx Society, 1859, Essay III, where it states '[The Lord of Man's] right of Admiralty was likewise asserted in this assembly [the Manx Parliament], as wrecks, royal fish, &c., are his by his regality.' For use of the title 'Lord Admiral' by a Lord of Regality see Grierson, James, 'St. Andrews as it was and as it is', 3rd Ed., Cupar, 1838, p. 56 where it says 'The power and privilege of admiralty was also among the rights of the see, and the archbishop was lord admiral in all places within the bounds of his own regality.' Since the Archbishop was lord admiral he was entitled to describe himself as 'Lord Admiral' and the admiralty within which he was a Lord Admiral was the Admiralty of Scotland; hence he was a Lord Admiral in the Admiralty of Scotland.
*'The lord of regality might possess his own chancery for the issue of brieves, which were served in his own name and not in the name of the King; his own mint; his own rights of admiralty, and so forth... The only right which a full regality did not possess was the right to try treason'; that is, a grant of full rights of regality was a grant of all the rights exercised by the King, including rights of admiralty and excluding only treason. See also Grant, Alexander, 'Franchises North of the Border: Baronies and Regalities in Medieval Scotland', The Boydell Press, 2008, p. 12, with reference to the regality of Sprouston being held with 'the same liberties as the Lord Alexander King of Scotland used to hold his other lands of his kingdom'. Of course, these rights included the right to grant arms, as described above, which right was preserved by s.63 Abolition of Feudal Tenure etc. (Scotland) Act 2000.
In 1936 it was written that 'The Regality Court of Holyroodhouse is still active. The Hereditary Keeper of the Palace, the Duke of Hamilton, as Lord of Regality, appoints a bailie and other officials to the Court.' - 'An Introductory Survey of the Sources and Literature of Scots Law', by various authors with an Introduction by the Rt. Hon. Lord Macmillan, Lord of Appeal in Ordinary, Stair Society Publications, Edinburgh, 1936, printed by Robert Maclehose & Co., Vol. I., p. 112-114. The Office of Hereditary Keeper of the Palace of Holyroodhouse is one of the great Offices of the Royal Household in Scotland and is held by the Duke of Hamilton; it is a Lordship of Regality which is acknowledged to exist today. The current (2012) Baillie of Holyroodhouse is John Scott Moncrieff of Murray Beith Murray, Edinburgh. See 'A treatise on the history, law, and privileges of the palace and sanctuary of Holyroodhouse' by Peter Halkerston (1831), p. 11 etc., for more information.
With regard to the power of earls and lords of regality to grant arms, it would be nonsensical if an earl or lord of regality could nobilitate (e.g. make a baron) but not grant marks of nobility (i.e. arms) at the same time. Since arms are the means by which nobility is 'known' ('nobilis') it follows that a right to nobilitate must necessarily imply a right to grant arms. A careful reading of the Acts of Parliament of 1592 and 1672 establishing the powers and duties of the Lord Lyon reveals that the 1592 Act conferred the power to visit (i.e. examine) the arms of noblemen, barons and gentlemen, to distinguish (i.e. to grant marks of difference to cadet branches) and to matriculate (i.e. record) arms, to inhibit common sort of people from bearing arms and to impose penalties on those who contravene the Act. There is nothing here that prevents an earl or lord of regality from exercising an existing right to grant arms, which says that arms already granted by such people before that date were not valid or which says that such a right cannot be exercised in the future. The 1672 Act provides that everyone who uses arms should submit an account of their arms with evidence confirming their right to the arms, gives the Lord Lyon the power to grant arms to virtuous and well-deserving people (but this does not necessarily exclude others from doing the same), to furnish extracts of registered arms (i.e. provide official copies of entries in the register) and to impose or remit penalties for the unauthorised use of arms (but this does not means that arms authorised by others are unlawful). The Act also says that the Lyon's register will be the true and unrepealable rule of all arms and bearings in Scotland but this does not of itself prevent arms granted otherwise than by the Lord Lyon from being recorded in the register. In other words, there is nothing in either of these Acts which gives the Lord Lyon the exclusive right to grant arms or which deprives those who had that right from exercising it in the future. It is true that Sir Thomas Innes of Learney in his 'Scots Heraldry' (2nd ed., p. 83) quotes the case of Macdonell v Macdonald (1826) to the effect that 'a person cannot create arms unto himself' in support of his assertion that the 'the granting of arms is part of the Royal Prerogative committed to the Kings of Arms' but the fact that a person cannot assume arms does not exclude an earl or lord of regality from granting arms. Note that even today some nobles still appoint their own pursuivants, such as the Finlaggan Pursuivant to the Baron Macdonald of Sleat, the Slains Pursuivant to the Earl of Erroll, the Garioch Pursuivant to the Countess of Mar and the Endure Pursuivant to the Earl of Crawford and Balcarres, although these pursuivants do not grant arms (See 'Complete Peerage', vol. XI, app. C, 'Heralds of the Nobility' for further information). Sir Thomas Innes of Learney, former Lord Lyon King of Arms, says in his 'The Robes of the Feudal Baronage of Scotland' (P.S.A.S, Vol. LXXIX, p.117, n. 2) that in Scotland 'the Crown was not the "sole" Fountain of Honour'.
One important point about regalities is that a lord of regality could be given regality powers over a barony which he did not own. Peter McIntyre states ('An Introduction to Scottish Legal History', Stair Society, 1958, p. 378) that Like the barony, the regality was an impartible hereditament. The regality was a superior jurisdiction to the barony and the lord of regality might be given regalian rights over a barony which he did not hold. The barons within the regality retained baronial jurisdiction, and the lord of regality exercised his higher regality jurisdiction over the lands of baronies within his regality. Over lands included within the erection and not part of an existing barony the lord of regality had complete shrieval jurisdiction, that is, baronial and regality jurisdiction. Hence lands were frequently erected in liberam baroniam et regalitatem. This proves that lands within a regality could be held of the King. With an ordinary barony, if lands were disposed of to be held by the purchaser of the King, then those lands were disjoined from the barony and came within the jurisdiction of the Sheriff. This was done via a 'charter by progress', where the lands were resigned into the hands of the King and then re-granted by the King to the new vassal to be held of the king by that vassal. This is to be contrasted with a 'feu charter' whereby the purchaser became a vassal of the seller (a superiority was created). This did not hold true of lands within regalities which remained part of the regality even if disposed of by the lord of regality to be held of the King; the lord of the regality still exercised regality jurisdiction over such lands. Thus, when the lands of Nether Mordington were disposed of by the Earl of Morton (Lord of the Regality of Dalkeith) in 1636, those lands were specifically dissolved from the Regality of Dalkeith (though, of course, because the Barony of Mordington was a barony held in regality before it was incorporated into the Regality of Dalkeith, what was dissolved from that Regality in 1636 was what had been originally incorporated into that regality; a barony held in regality). If the lands had not been specifically dissolved from the regality then they would have remained part of it. Lord Bankton states ('An Institute of the Laws of Scotland', II, III, 93) that 'If the Lord of Regality disponed certain of the lands, tho' to be holden of the crown, they were not exempted from the regality jurisdiction, unless it was specially expressed; or the lands conveyed jure regalitatis, whereas such disposition would disjoin the lands from a barony, as is above observed'. That this is so is also proved by the current arrangements concerning 'bona vacantia' in the Duchy of Lancaster. The right of 'bona vacantia' (basically the right to the assets of intestate estates or dissolved companies without identifiable owners) extends over all the lands comprising the Country Palatine (or rather Honour) of Lancaster even though the majority of those lands are not actually owned by the Duchy of Lancaster, which extends to some 19,000 hectares. The fact that the Duchy exercises the right of 'bona vacantia' proves (1) that palatine powers (at least those not expressly removed by legislation) still exist within England and (2) that those palatine powers extend over the original extent of the palatinate and are not restricted only to those lands actually owned by the lord of the palatinate. In other words, when lands were sold by the Duke of Lancaster they remained within the palatinate. The Duchy of Lancaster receives several million pounds a year from 'bona vacantia'.
The Treaty of Union 1707 and its effect on subsequent Acts of Parliament
The Treaty of Union 1707 (which united England and Scotland under one crown and parliament, though they retained separate legal systems and established churches) contains some important provisions as follows:
Article 20: 'That all heritable Offices, Superiorities, heritable Jurisdictions [which includes baronies and lordships of regality], Offices for life, and Jurisdictions for life, be reserved to the Owners thereof, as Rights of Property, in the same manner as they are now enjoyed by the Laws of Scotland, notwithstanding of this Treaty.' This clause is still in effect (or has not purportedly been repealed - see below). Note that there is no provision to amend or alter this article.
Article 22: 'That by virtue of this Treaty, Of the Peers of Scotland at the time of the Union 16 shall be the number to Sit and Vote in the House of Lords, and 45 the number of the Representatives of Scotland in the House of Commons of the Parliament of Great Britain; And that when Her Majesty Her Heirs or Successors, shall Declare Her or their pleasure for holding the first or any subsequent Parliament of Great Britain until the Parliament of Great Britain shall make further provision therein, A Writ do issue under the Great Seal of the United Kingdom, Directed to the Privy Council of Scotland, Commanding them to Cause 16 Peers, who are to sit in the House of Lords to be Summoned to Parliament and 45 Members to be Elected to sit in the House of Commons of the Parliament of Great Britain according to the Agreement in the Treaty, in such manner as by a subsequent Act of this present Session of the Parliament of Scotland shall be settled; Which Act is hereby Declared to be as valid as if it were a part of and ingrossed in this Treaty...'
Article 23: '  That the foresaid 16 Peers of Scotland, mentioned in the last preceding Article, to sit in the House of Lords of the Parliament of Great Britain shall have all Priviledges of Parliament which the Peers of England now have, and which They or any Peers of Great Britain shall have after the Union, and particularly the Right of sitting upon the tryals of Peers: And in case of the tryal of any Peer in time of Adjournment or Prorogation of Parliament, the said 16 Peers shall be summoned in the same manner, and have the same powers and priviledges at such tryal, as any other Peers of Great Britain; And that in case any tryals of Peers shall hereafter happen when there is no Parliament in being, the 16 Peers of Scotland who sate in the last preceeding Parliament, shall be summoned in the same manner and have the same powers and privileges at such tryals as any other Peers of Great Britain; and  that all Peers of Scotland, and their successors to their Honours and Dignities, shall from and after the Union be Peers of Great Britain, and have Rank and Precedency next and immediately after the Peers of the like orders and degrees in England at the time of the Union, and before all Peers of Great Britain of the like orders and degrees, who may be Created after the Union, and shall be tryed as Peers of Great Britain, and shall Enjoy all Privileges of Peers, as fully as the Peers of England do now, or as they, or any other Peers of Great Britain may hereafter Enjoy the same except the Right and Privilege of sitting in the House of Lords and the Privileges depending thereon, and particularly the Right of sitting upon the tryals of Peers.' The first part of article 23 was (apparently - see below) repealed by the Peerage Act 1963, which gave all the peers of Scotland the right to sit in the House of Lords (thereby replacing the system of elected representative peers established under articles 22 and 23).
Article 25: 'That all Laws and Statutes in either Kingdom so far as they are contrary to, or inconsistent with the Terms of these Articles, or any of them, shall from and after the Union cease and become void, and shall be so declared to be by the respective Parliaments of the said Kingdoms.' This clause is still in effect (or has not purportedly been repealed - see below). The interesting question about this article is whether it only relates to laws in existence at the time or whether it covers laws enacted after the Union. The statement would seem to imply that the article only relates to the former, so that the new Parliament of Great Britain (now of the UK) could enact laws inconsistent with articles of the Treaty - but this would literally make the Treaty meaningless. What is the point in agreeing a treaty provision which makes an existing law void but which allows that same law to be re-enacted one day after it had been declared void in accordance with the Treaty? No, the only possible meaning of article 25 is that it renders void all laws in existence at the time that were incompatible with the Treaty and prevents their re-enactment. In addition, any new law passed after the Union, not being a re-enactment, which was inconsistent with the treaty would also be void - but such laws would be void as contrary to a specific provision of the treaty in any event (i.e. even without a general saving clause). The overall effect therefore is that any law that is incompatible with the treaty is void, whether it was passed before or after the Treaty. This includes, for instance, the privileges of peers. When the Treaty says that the peers of Scotland are to enjoy the privileges of peers it means the privileges of peers as they were at the time of the Treaty, so that any law passed after 1707 which purports to alter those privileges is void as contrary to the Treaty, subject to any amendment expressly allowed by the Treaty.
1. The combined effect of
articles 20 and 25 is that the Heritable Jurisdictions
Act 1747 (which limited baronial jurisdiction, mainly
by abolishing the right to impose the death penalty) and
the Abolition of Feudal Tenure etc. (Scotland) Act
2000 (which abolished baronial jurisdiction entirely)
were unlawful and therefore void as contrary to article
20. Note also that article 20 preserves heritable
jurisdictions as 'rights of property' so the separation
of baronies from the land under the Abolition of Feudal
Tenure etc. (Scotland) Act 2000 was void in this respect
One thing to bear in mind is that the Treaty of Union was ratified by the Parliaments of both countries; in other words that laws were enacted in both countries implementing the treaty, so it is important to distinguish between the treaty and the consequential laws enacted in both countries implementing the treaty (The Union with England Act 1706 in Scotland and the Union with Scotland Act 1706 in England). The critical point is that it is the Treaty which is binding between the two countries and even if the Parliament is supreme and cannot bind its successors (which would mean that Parliament has the power to repeal any provision of any domestic law, including the Acts of Union), Parliament does NOT have the power to unilaterally amend an international treaty governed by international law (at least not without the potential effect of rendering the treaty void). For instance, Parliament could repeal the Human Rights Act 1998, which implements the European Convention of Human Rights in the UK, but it cannot repeal the European Convention on Human Rights. It follows that if Parliament cannot repeal the provisions of the Treaty (otherwise than as allowed by the Treaty itself) and if it does so (or purports to do so) then the Treaty becomes void and ceases to bind the parties. This matter is explained more fully in an article of June 2007 by David M Walker, Regius Professor of Law at the University of Glasgow 1958-1990, in The Journal of the Law Society of Scotland, 'The Union and the Law'. As he says in that article 'In his judgment in McCormick v Lord Advocate 1953 SC 396 Lord President Cooper, admittedly obiter, observed that the principle of the unlimited sovereignty of the Westminster Parliament was a distinctively English principle which had no counterpart in Scottish constitutional law. In particular the Lord Advocate had conceded in that case that the Parliament of Great Britain could not repeal or alter fundamental and essential conditions of the Treaty and associated legislation' which means that the unalterable nature of the Treaty has been acknowledged by the principal law officer of the Crown in Scotland.
Note that the British government still holds that the Treaty of Utrecht of 1713, by which Spain ceded Gibraltar to Great Britain, is binding in law. See the statement made in the House of Commons on 27 March 2006 by the then Secretry of State for Foreign and Commonwealth Affairs that 'I will note that, in the view of Her Majesty's Government, Gibraltar's right of self determination is not constrained by the Treaty of Utrecht except in so far as Article X gives Spain the right of refusal should Britain ever renounce Sovereignty. Thus independence would only be an option with Spanish consent.' If the rights of the United Kingdom with respect to Gibraltar are constrained by the Treaty of Utrecht of 1713, then are not the rights of the United Kingdom with respect to Scotland also constrained by the Treay of Union of 1707? Either such treaties are binding in law or they are not. Which is it?
A possible argument is that since an international treaty is a treaty between two or more countries and since both countries ceased to exist (being united into one country by the treaty) the treaty simply ceased to exist when the parties to it ceased to exist as countries. In the first place, this cannot have been the intention of the parties (Why agree binding treaty terms which will cease to be binding the moment the treaty comes into effect?) and, in the second place, although the countries were united under one crown and parliament they continued to exist as separate countries with separate legal systems and separate established churches and, as is stated in article 22, the Scottish peers and Members of Parliament sat in parliament as REPRESENTATIVES of Scotland (the MPs are specifically referred to in article 22 as 'representatives of Scotland' and the peers were always known as 'representative peers'). These peers and MPs cannot have represented a country that didn't exist, so Scotland must have continued to exist as a separate country after the union with its own legal system, its own established church and its own REPRESENTATIVES in parliament (Scotland also continued to exist as a physical place of course and the people of Scotland continued to be Scots - in spite of a failed attempt to rename Scotland to 'North Britain'). In other words, both countries continued to exist as separate countries after the union and the treaty cannot be said to have 'vanished into thin air' on the basis that they didn't.
Further, with regard to the doctrine of the supremacy of parliament it is noticeable that when courts make judgments on the matter they invariably do so largely on the authority of A. V. Dicey's 'An Introduction to the Study of the Law of the Constitution' (1885) or previous cases which do the same. What this means, in effect, is that judges say that the fact that they approve of an opinion makes that opinion law. This is, of course, complete nonsense; it is a self-referencing argument ('It is law because I say it is law.') and only parliament has the power to turn its opinions into laws. In other words, if Parliament is supreme then only parliament can define its own powers, including its own supremacy, which it hasn't done (otherwise judges would not need to refer to Dicey in the first place), and the fact that Parliament has passed a law which contravenes, say, the Treaty of Union, is not, in itself, proof that it had the legal power to do so (this is also a self-referencing argument along the lines of 'The fact that we did something proves that we had the legal right to do that thing.' No it doesn't.). And so the argument comes round to where it started. Neither the opinions of writers nor the opinions of judges nor the actions of parliament are sufficient to legitimize the doctrine of the supremacy of parliament, except that any action of parliament that expressly limits the power of parliament, such as the Treaty of Union, makes it clear that, at that time at least, parliament believed it could limit its own powers in such a way; that is, permanently. If parliament clearly believed that it could limit its own powers then on what basis can a writer or judge contradict it or assert that the situation has changed since that time - in the absence of any express act of parliament? It is clear that the doctrine of the supremacy of parliament is a judicial invention; a house of cards resting on no authority other than the opinions of judges of the opinions of writers (it certainly isn't based on any express law); not a sound basis for a fundamental constitutional law.
So, if parliament is not supreme then who is? The logical answer is the people. If the people, through their representatives, agree to limit the power of those representatives then the people, being supreme, can do so. Being supreme, the people can, through their representatives, undo that limitation, but what they cannot do is to agree with another body of people, such as the Scots, to form a new joint community on the basis of agreed limitations on the powers of their respective representatives and then use the fact that they are a majority in that new community to ignore those limitations, at least not without asking the other body of people for their consent to such a step - unless the other body of people has agreed a mechanism for amending the agreement without such consent. This is not only fair and democratic but it is legally sound; all other options are either unfair, undemocratic or legally unsound (and probably all three) and require the sort of jiggery-pokery that judges have used to develop the doctrine of parliamentary sovereignty. The option is also practical since the representatives of that other body (i.e. Scottish MPs and peers in this case) and that other body (i.e. the Scots) are (or were) there to be asked.
In the judgment in McCormick v Lord Advocate 1953 SC 396 Lord President Cooper stated 'Further, the Treaty and the associated legislation, by which the Parliament of Great Britain was brought into being as the successor of the separate Parliaments of Scotland and England, contain some clauses which expressly reserve to the Parliament of Great Britain powers of subsequent modification, and other clauses which either contain no such power or emphatically exclude subsequent alteration by declarations that the provisions shall be fundamental and unalterable in all time coming, or declarations of a like effect.' (as quoted in Hansard 27 Jul 1999, Column 1422).
See also Jackson & Ors v. Her Majesty's Attorney General  UKHL 56, a House of Lords case binding on all lower courts, where reference was made to Bribery Commissioner v Ranasinghe  AC 172 where the Privy Council stated at p. 197-8: 'A legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law. This restriction exists independently of the question whether the legislature is sovereign, as is the legislature of Ceylon, or whether the constitution is 'uncontrolled,' as the board [in McCawley'scase  AC 691] held the constitution of Queensland to be. Such a constitution can, indeed, be altered or amended by the legislature, if the regulating instrument so provides and if the terms of those provisions are complied with: and the alteration or amendment may include the change or abolition of those very provisions. But the proposition which is not acceptable is that a legislature, once established, has some inherent power derived from the mere fact of its establishment to make a valid law by the resolution of a bare majority which its own constituent instrument has said shall not be a valid law unless made by a different type of majority or by a different legislative process.'
See also Jackson & Ors v. Her Majesty's Attorney General  UKHL 56 at 106 and 107 where Lord Hope of Craighead said: 'It has been suggested that some of the provisions of the Acts of Union of 1707 are so fundamental that they lie beyond Parliament's power to legislate. Lord President Cooper in MacCormick v Lord Advocate, 1953 SC 396, 411, 412 reserved his opinion on the question whether the provisions in article XIX of the Treaty of Union which purport to preserve the Court of Session and the laws relating to private right which are administered in Scotland are fundamental law which Parliament is not free to alter. Nevertheless by expressing himself as he did he went further than Dicey, The Law of the Constitution, 10th ed (1959), p 82 was prepared to go when he said simply that it would be rash of Parliament to abolish Scots law courts and assimilate the law of Scotland to that of England. In Gibson v Lord Advocate, 1975 SC 136, 144, Lord Keith too reserved his opinion on this question and as to the justiciability of legislation purporting to abolish the Church of Scotland. In Pringle, Petitioner, 1991 SLT 330, the First Division of the Court of Session again reserved its position on the effect of the Treaty of Union in a case which had been brought to challenge legislation which introduced the community charge in Scotland before it was introduced in England. But even Dicey himself was prepared to recognise that the statesmen of 1707 believed in the possibility of creating an absolutely sovereign legislature which should yet be bound by unalterable laws: Thoughts on the Scottish Union, pp 252-253, quoted by Lord President Cooper in MacCormick at p 412. So here too it may be said that the concept of a Parliament that is absolutely sovereign is not entirely in accord with the reality. Nor should we overlook the fact that one of the guiding principles that were identified by Dicey at p 35 was the universal rule or supremacy throughout the constitution of ordinary law. Owen Dixon, "The Law and Constitution" (1935) 51 LQR 590, 596 was making the same point when he said that it is of the essence of supremacy of the law that the courts shall disregard as unauthorised and void the acts of any organ of government, whether legislative or administrative, which exceed the limits of the power that organ derives from the law. In its modern form, now reinforced by the European Convention on Human Rights and the enactment by Parliament of the Human Rights Act 1998, this principle protects the individual from arbitrary government. The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based. The fact that your Lordships have been willing to hear this appeal and to give judgment upon it is another indication that the courts have a part to play in defining the limits of Parliament's legislative sovereignty.' See also AXA General Insurance Ltd & Ors v. The Scottish Ministers & Ors  ScotCS CSIH 31 at 62 et seq.
In Whaley v Lord Watson 2000 SC 340 Lord Prosser said at pp. 357-8: 'If and in so far as a parliament may have powers which are not limited by any kind of legal definition, there is no doubt scope for concepts of 'sovereignty', with the courts unable to enforce boundaries which do not exist. But if and in so far as a parliament and its powers have been defined, and thus limited, by law, it is in my opinion self-evident that the courts have jurisdiction in relation to these legal definitions and limits, just as they would have for any other body created by law.'
The binding nature of international treaties as fundamental and unalterable laws in situations where two countries merge or where two peoples agree to live together in one country is illustrated by the United Nations General Assembly Resolution 181 of 29/11/1947 concerning Palestine. This stated that 'The stipulations contained in the Declaration are recognized as fundamental laws of the State and no law, regulation or official action shall conflict or interfere with these stipulations, nor shall any law, regulation or official action prevail over them.' The nature of such treaties is therefore quite clear and, more importantly, internationally acknowledged; they become fundamental and unalterable (i.e. constitutional) laws of the new state and, to that extent, limit the sovereignty of the government of that country, whatever its democratic mandate (which is not to say that such laws cannot be altered but this can only be done with the specific consent of the original parties to the treaty, in so far as they remain identifiable (e.g. Scots and English or Jewish and Arab). Since the whole purpose of such agreements is to protect minority rights, it is a nonsense to allow the majority to negate such agreements simply because they are the majority (which is what the doctrine of the supremacy of parliament effectively does). Only if one of the parties no longer exists or is no longer identifiable would such action be justified, which is not the case in the United Kingdom.
Regardless of the above arguments concerning the supremacy of parliament, the current international law on treaties (Vienna Convention on the Law of Treaties 1969, Article 46) holds that an internal law (such as the supremacy of parliament) cannot be used to circumvent a treaty unless (1) the violation of that internal law was manifest at the time of signing and (2) the internal law is fundamental. While the doctrine of the supremacy of parliament is fundamental, it was clearly not manifest at the time because the English parliament held itself out as being able to bind itself permanently by the Treaty of Union and the Scottish parliament believed that to be the case (see below re the view of the Scottish parliament at the time) and that is because the doctrine of the supremacy of parliament was not developed until long after the Treaty of Union. While the Vienna Convention is not retrospective, it can be taken as a clear guide to international law before it came into effect. In short, a country cannot use an internal law or doctrine existing at the time of signing to circumvent a treaty (subject to the exception above) or 'develop' an internal law or doctrine after a treaty has been signed and then use that law or doctrine to circumvent the treaty. If this was not the case then treaties would not be worth the paper they are written on because they could simply be circumvented by saying 'Oh, we've developed this internal law. Sorry.' It's 'odd' that the three law lords referred to below did not identify this point when considering the House of Lords Act 1999 - but perhaps they didn't notice the word 'Treaty' in 'Treaty of Union'. On the other hand, if the English Parliament was not bound by the Treaty of Union by virtue of the supremacy of parliament then it certainly misled the Scottish Parliament into thinking that it could agree to binding and unalterable treaty terms. In this case the treaty would be void for fraud (Vienna Convention on the Law of Treaties 1969, Article 49).
But the real issue concerning the supremacy of parliament is this. Constitutional laws are laws of the state that are fundamental and unalterable (except by using special constitutional procedures such as requiring a 75% majority to change them) and they are generally used to protect the fundamental (i.e. basic and essential) rights of the citizen against possible (or rather inevitable) incursion by an over-mighty state; rights like the right of free speech, the right to privacy and the right not to be deprived of your liberty without due process of law. Many countries have constitutions and almost all of these are written; in fact the United Kingdom is the only country that I am aware of that has (or it is claimed has) no written constitution. But if there is no written constitution and parliament is supreme then you have no constitution at all; all you have is, by definition, a set of laws, customs and procedures which can be over-ridden by parliament at will. But if other countries can have binding, unalterable written constitutions (as we know they can) then what is it that prevents the United Kingdom from having a binding, unalterable written constitution? Answer? Nothing at all. We cannot be the only country in the world that is incapable of protecting the fundamental rights of its citizens in this way. After all, all other countries accept that it is possible to have laws that are fundamental and unalterable, so why are we different? Well, we aren't of course. Having accepted that we can have constitutional laws the next questions is 'Do we have any?' In other words, do we have any laws that limit the power of parliament to do what it likes? Of course we do; at the very least we have the Treaty of Union and the associated Acts of Union, as well as things like Magna Carta and the Bill of Rights. So the argument is this - in 1707 England and Scotland had the capability to create constitutional laws like any other country, as we have just shown; they agreed such laws fully intending them, and making it clear that they fully intended them, to be unalterable laws that limited the powers of the newly-created Parliament of Great Britain. These two parliaments had the capability to make such laws and they did make such laws. On what basis therefore can a court of law say that these parliaments did not have the power to do what they undeniably did (the words of the treaty are quite clear)? It amounts to the courts saying that we, the people of the United Kingdom, are unique amongst the nations of the earth in being incapabale of being protected by constitutional laws - and this is even portrayed as being somehow a strength of our 'democratic system'. Are the courts in this country somehow under the impression that the US Constitution leads to some sort of democratic deficiency? On the contrary, the absence of constitutional laws is the direct result of a tacit agreement between the legislature, the executive and the judiciary to deprive the people of their rights. Have you noticed what has happened to the right to trial by jury in recent years? How much more restricted in has become? And what about the right to bear arms that is enshrined in the Bill of Rights of 1688? Gone in a puff of smoke. Today, if you are caught in public with a blade more than 3 inches long you will be taken off to jail so fast your feet won't touch the ground. They have reduced you to a little animal that Robert Burns, the national poet of Scotland, would certainly have recognized; a 'wee, sleekit, timorous, cowering beastie' (a mouse) - and that, my friends, is just the way they like it. The Bill of Rights of 1688 is trumpeted as being the cornerstone of British democracy. It would have been it if had been a constitutional law (i.e. unalterable) but how much of a 'cornerstone of democracy' is a law that can be quietly dismantled without you even noticing it? Quite.
Were feudal barons peers?
But what was the status of feudal barons and lords of regality (who were feudal barons of a higher type) at the time of the Treaty of Union 1707? Were they peers? It is clear that feudal barons were the original peers of Scotland, as tenants in chief of the king, and that they sat in parliament by virtue of being feudal barons, as did the earls (who also held their lands 'by barony'). This is a simple historical fact and Bankton (above) confirms that all feudal barons were Lords of Parliament. Feudal barons retained their right to sit in the Scottish Parliament as peers but by an Act of Parliament of 1428 (which was never implemented) and a declaration of King James VI of 1587 implementing the Act of 1428 they were allowed to appoint representatives (Commissioners) in each sheriffdom to represent them; they could still attend in person if they so wished*. This right (and duty - from which barons were only exempted on the condition that they appointed Commissioners) did not fall into desuetude (disuse), as some have argued (Sir Thomas Innes of Learney, 'Scots Heraldry', 2nd Ed., 1956, p. 130**), because under Scots law an act of parliament cannot fall into desuetude by mere non-usage, even for the greatest length of time, in the absence of some 'positive act showing the intention of the community to repeal it by contrary practice' (William Bell, 'A Dictionary and Digest of the Law of Scotland', Edinburgh, 1838, p. 298) and no-one has identified such a positive act before 1707 (not doing something is not a positive act of course). In addition, the right to sit in parliament was both a private right and a public duty (the baron represented the land of his barony in parliament) but even if only a private right could only have been lost by negative prescription (i.e. non-use) if the right was one in which two parties were directy interested, so that while one party lost a right the other gained immunity from it, but where a right concerns 'the privileged person only, without directly affecting others, or, in other words, when it is what is termed res mera facultatis, no lapse of time can diminish or take away the right' (Lord Daer v The Hon. Keith Stewart and Other Freeholders of the County of Wigton, Court of Session, 1792. See also Lord Kames 'Elucidations' and Erskine, Book I, Tit. I, Sec. 46). Furthermore, Lord Corehouse, in McDonnell of Glengarry v Duke of Gordon, Feb. 26, 1828 (6 S. & D. 600.), said: 'If there be a principle well settled in the law of Scotland, it is this - that the right of ownership in a feudal subject, being complete, cannot suffer the negative prescription ...'. This case concerned the right of patronage of a particular church (i.e. the right to appoint the minister of the church) so it relates to a right arising out of ownership of land. In addition, Sir Thomas Innes of Learney refers ('The Robes of the Feudal Baronage of Scotland', P.S.A.S, Vol. LXXIX, p. 144) to the case of Sundry Barons v. Lord Lyon (1672) ('Brown's Supplement', Vol. III, p. 6) where those sundry barons 'successfully maintained, in claiming their supporters, that they were as good Barons after that Act (1587) as before'. In 1599 (i.e. after the Act of 1587) James VI (and I of England) wrote of the feudal barons in his 'Basilikon Doron' (Book II) that 'the small barons are but an inferior part of the Nobilitie and of their estate'. If a feudal baron was a member of the nobility and of the same Estate in Parliament (the Estate of the Nobility) and had the right to sit and vote in Parliament as a member of that Estate and was a Lord of Parliament (according to Bankton) and never ceased to be such (according to Sir George Mackenzie), on what basis can it be asserted that a feudal baron was not a peer? Even exclusion from the Union Roll, the official list, is not enough, because if two people demonstrably have the same rights (to sit and vote in Parliament as nobles) then, de facto and de jure (because the de facto act of sitting follows the acknowledged de jure right to sit), they are of the same class and must be treated accordingly. Interestingly, the Dukedom of Rothesay was excluded from the Union Roll in 1707 but this did not prevent that peerage (which was and is a feudal barony) being included in the roll of Scottish peers in 1714. You will appreciate that the right of the 'greater barons' to receive an individual summons, which was the only difference between them and the 'small barons', makes no difference because the underlying right (to sit and vote as a noble) is the same; it is just the method of being called to exercise that right that is different. It is the substance that matters, not the form. The same applies to being expressly created a 'Lord of Parliament' because being so created only gave the right to what? The right to an individual summons. This is just a circular argument; a person is a 'Lord of Parliament' because he has the right to an individual summons, but he only has the right to an individual summons because he is a 'Lord of Parliament'. The real issue is what it is that the right to an individual summons gives him a right to do, which is to sit and vote in Parliament as a noble - and the feudal barons also had that right.
*'Statute 1587, cap. 120, was a relieving and not a disabling Act' (Sir Thomas Innes of Learney, 'Scots Heraldry', 2nd Ed., 1956, p. 131). Sir George Mackenzie ('Science of Heraldry', Chap. XXXI) as quoted by Seton ('The Law and Practice of Heraldry in Scotland', p. 294) states that barons 'were members of Parliament with us, as such, and never lost that privilege, though, for their conveniency, they were allowed to be represented by two of their number (in each shire)'.
**You will appreciate that the fact that Sir Thomas Innes of Learney (Lord Lyon 1945-69) argued that the right to attend Parliament had fallen into desuetude after 1633 (45 years after 1587) meant that he acknowledged that the right to attend Parliament was not abolished by the Act of 1587 and still existed after 1587 (because it cannot have fallen into desuetude in 1633 if abolished by an Act of Parliament in 1587). Thus the Lord Lyon, a judge in the Scottish legal system, has acknowledged that the 1587 Act did not remove the right of feudal barons to sit in Parliament as peers; the issue is solely whether that right was lost through non-use (which it clearly wasn't, as shown above).
As an example, a list of the 'nobilmen' attending the parliament of 1/3/1478 includes the following feudal barons: Stobhall, Tullibairdin, Elliotstoun, Halkestone and Restalrige - all of whom are designated as 'Dominus de...' (i.e. 'Lord of...') (Carmichael J A, 'Various Tracts concerning the Peerage of Scotland', Edinburgh, 1791, p. 58). The lists for 4/10/1479 and 13/4/1481 includes Lords of Parliament and feudal barons under the heading 'Lords' (pp. 61 & 63), although forming separate groups. In 1456 certain persons were selected to administer justice in a time of pestilence; these included, for example, the 'barones' Lord Lindsay of the Byres (a Lordship of Parliament created in 1444), the 'Laird of Murthlie' (a feudal barony) and the 'Constable of Dundee' (a feudal barony). This shows that there was no distinction, as barons, between Lords of Parliament and feudal barons.
The position was the same in England. Sergeant Dodderidge in the Abergavenny case of 1605 said: 'And although there may be conceived this difference last mentioned between Baron by tenure or Writ, and the Baron by Patent, yet they being all members of the higher house of Parliament, they are hereby equally made Noble, and Peeres of the Realme, as they are Barons only, without any distinction that I have observed' (quoted in Gadd, 'Peerage Law', ISCA Publishing Ltd., Bristol, 1985, p. 18). Gadd also confirms that peerages were originally annexed to land: 'the dignities of the peerage having been originally annexed to lands were considered as tenements or incorporeal hereditaments wherein a person might have a real estate; and although dignities are now become little more than personal honours and rights yet they are classed under the head of real property.' (Earl of Cowley v Countess of Cowley  App. Cas. 450 as quoted in Gadd, 'Peerage Law', ISCA Publishing Ltd., Bristol, 1985, p. 14). In addition, Gadd says that in modern usage a peerage is "that dignity of nobility to which attaches the right to sit and vote in the House of Lords" (p. 2). Clearly it is the right to sit and vote as a noble that matters, not the method of summons or the method by which the peerage was created (tenure, writ or patent). Of course, in Scotland there was no House of Lords and the three estates (clergy, nobility and the burghs) all sat in the one place; so in Scotland it was the right to sit and vote in Parliament as a member of the nobility that mattered.
Thus feudal barons were peers of Scotland at the time of the Union in 1707 (since they had the right to attend the Parliament of Scotland as peers at that time) and as such they became peers of Great Britain under article 23 of the Treaty. They remain peers of Great Britain to this day with a right to elect representative peers to sit in the House of Lords because the House of Lords Act 1999 was void with respect to their rights under Articles 22 and 23 of the Treaty. It is worth noting, in this context, that in a memorandum by the then Lord Advocate, the senior law officer of the Crown in Scotland, which appeared at Appendix 12 of a Report of a Joint Committee on House of Lords Reform in 1962 he observed (and in relation to the right of Scottish peers to resign their honours to the King for re-grant to a new series of heirs): 'On the whole I am of the opinion that the pre-Union procedure [i.e. law] has never been abrogated and is still legally competent' (Sir Malcolm Innes of Edingight, Lord Lyon 1981-2001, 'Peers and Heirs', Scottish Genealogist, Sept. 1995, p. 99). This makes it clear that a pre-Union law of Scotland remains in force until specifically abrogated.
There are at least three pre-1587 Scottish feudal baronies which are recognized as peerages today.
The first is the Earldom of Sutherland ('Complete Peerage', Vol. XII, Part I, p. 546, 548, 549, 553 etc.), there never having been a grant of a personal title of that name (in the case of other feudal earldoms personal titles were granted, so the earl held two earldoms of the same name, one feudal, the original earldom, and one personal). The question is 'If the Earldom of Sutherland is recognized as a peerage by virtue of being a feudal barony (and it cannot be by virtue of being anything else) then why are not all other feudal baronies so recognized?'
The second is the Barony of Torphichen ('Complete Peerage', Vol. XII, Part I, p. 776), where there has also never been a grant of a personal title.
The third, and most significant, is the Dukedom of Rothesay, which, under an Act of the Scottish Parliament of 1469 (RPS, A1469/2), is automatically held by the heir to the throne (if male, the title being restricted to 'princes') from birth or from the accession of his mother or father to the throne. As the 'Complete Peerage' states (2nd Ed., vol. XI, p. 208, n. b) this peerage 'must have been of a feudal or territorial kind' (see also vol. III, p.444, n. c). There have been subsequent creations of personal peerage titles of this name (Carmichael J A, 'Various Tracts concerning the Peerage of Scotland', Edinburgh, 1791, p. 137-9) but these were for life only (no succession to the dukedom being specified in each case) and so they either merged with the crown on succession or became extinct on the death of the grantee if he died before succeeding to the crown. The feudal Dukedom of Rothesay was held in regality ('Complete Peerage', 2nd Ed., vol. XI, p. 209, n. b and Grant, Alexander, 'Franchises North of the Border', pp. 37, 41) and, interestingly, this means that the Prince of Wales, as Duke of Rothesay, has more power than the monarch, being able to hold courts and grant titles (something the monarch only does today on the recommendation of the government, with the exception of certain orders such as the Royal Victorian Order), as stated above. The fact that the Dukedom of Rothesay is a feudal barony means that it does not merge with the crown (as a personal peerage title would), as stated erroneously in the 'Complete Peerage' (vol. XI, p. 209 for example); this is because if a feudal barony falls into the hands of the crown it, being impartible and indestructible, retains its separate identity, as stated above. Professor William Croft Dickinson states ('The Court Book of the Barony of Carnwath 1523-1542', p. xxxvi) that 'even when a barony fell into the King's hands, it still preserved its identity´ and that the barony rested in the Crown 'distinct and unmerged'.
Put simply, if these three Scottish feudal baronies are peerages then so are all other Scottish feudal baronies. Consider this. What if the Earl of Sutherland and Lord Torphichen had been excluded from the Union Roll (list of peers at the time of the Union) and had objected to their exclusion because they claimed to be peers? On what basis would their right to be recognized as peers have been assessed? Clearly, on the basis that they had the right to sit in the Parliament of Scotland as nobles. Once this criteria is established, any person who met that criteria at that time must in law be recognised as a peer - and it is the legal right to be recognized as a peer, and only that legal right, that is relevant. J. F. Riddell, in his 'Inquiry into the Law and Practice in Scottish Peerages' (Edinburgh, 1862, Vol. I, p. 92) says 'The Peerage [of Torphichen], therefore, from the above statement [Acts of Parliament, Vol. V, pp. 102-5 (1636)], taken along with our legal doctrine and practice and applicando singula singulis, was clearly vested in the principal superiority and messuage, or castle of the barony of Torphichen, (including the site) within the "mean" or middle "portion" of the inheritance in Linlithgowshire, and Torphichen proper, where it is correctly affirmed to "subsist". In other words, the feudal barony of Torphichen is a peerage and that peerage is attached to and passes with the principal messuage ('caput' or legal head) of the barony. See also the case of Somerville which was undoubtedly a feudal barony because the 7th Lord Somerville lost his peerage when he alienated his estates ('Complete Peerage', 2nd ed., vol. 12a, p. 100, n. f) but his descendant, James Somerville of Drum (d 1765), was admitted to the roll of peers in 1723 ('Complete Peerage', 2nd ed., vol. 12a, p. 104). See also the case of Ochiltree where Sir James Stewart of Killieth (d c 1659), 'having bought from his cousin the lands of Ochiltree, and acquired his Barony by resignation with consent of the Crown, 27 May 1615, as stated above, was confirmed in the same by a charter under the Great Seal 9 June 1615, and thus was held to have become LORD OCHILTREE ('Complete Peerage', 2nd ed., vol. 10, p. 7). Although this charter was declared to be invalid in 1793 for technical reasons it proves that the peerage was a feudal barony because it would have been a peerage but for the technicality. See also Alexander Grant, 'The Development of the Scottish Peerage', The Scottish Historical Review, Vol. 57, No. 163, Part 1 (Apr., 1978), p. 16, where it is stated that the peerages of Hamilton, Keith, Lorne and Avandale (Stewart of Avandale in the Complete Peerage) were also feudal baronies; the last two peerages also being lost to purchasers when the lands were sold. The fact that other feudal baronies have not been formally recognized as peerages since 1707 (i.e. for over 300 years) is no obstacle because a number of peerages have been recognized after longer periods, including the English baronies by writ of Camoys (recognized in 1839 after 413 years), Fauconberg (recognized in 1903 after 440 years) Strabolgi (recognized in 1916 after 547 years) and Botetort (recognized in 1764 after 358 years). The law relating to the recognition of peerages is so strict that a hereditary peerage will be recognized even where a writ of summons to the House of Lords is issued in error, either to the wrong person or in the wrong name (a new peerage of that name is created), which proves that what matters is strict compliance with the law and nothing else (e.g. political expediency). Examples of peerages created in this way are Strange (1628), Powlet of Basing (1717) and Percy (1722). See also 'Barony Title - A Response', Adam Bruce, Journal of the Law Society of Scotland, April 1993, p. 157, which cites authority to the effect that feudal earldoms are peerages (which, of course, begs the question as to why feudal baronies are not also so considered).
Sir William Betham (1779-1853), Ulster King of Arms, in his 'On Palatine Honours in Ireland' (The Journal of the British Archaeological Association, 1850, vol. V, p. 200) stated: 'The noble persons holding these great palatine honours were always considered of the barones regni, and members of the curia regis, to which they were summoned, and might attend whether they were summoned or not; after the king's high court of parliament became a legislative assembly they were called lords, or peers of parliament, a title which grew out of the revolutionary movements which commenced under Simon de Montfort, Earl of Leicester, in the reign of Henry III, and continued at intervals until the parliaments assumed the functions of legislation, and the forms and practice of the present day.'
The House of Lords Act 1999
The question of whether the Treaty of Union of 1707 remains binding was considered by the Committee for Privileges of the House of Lords in 1999 before the passing of the House of Lords Act 1999. The issue was whether the Act would contravene article 22 of the Treaty of Union by removing the right of Scottish peers to sit in the House of Lords. The unanimous opinion of the Committee was that it would not, although only the three law lords involved gave their reasons. It is worth considering these reasons briefly. But note, in particular, part of the case for Lord Grey which says (para. 20):
Thus the intention of the Scottish Parliament was made abundantly clear.
Lord Slynn of Hadley's reasons were (1) that the doctrine of the supremacy of Parliament means that Parliament has the power to amend or repeal the two Acts (one Scottish and one English, as explained above) and has done so with respect to article 22 in the Statute Law Revision (Scotland) Act 1964, which repealed article 22 of the Scottish Act of 1707, and the Statute Law (Repeals) Act 1993, which repealed article 22 of the English Act of 1706, and (2) that even if a provision of the Treaty (as opposed to the Acts implementing the Treaty) could be regarded as entrenched, article 22 'was not intended, and is not to be read, as fixing for all time a representation of sixteen or any other precise number of peers. It must have been intended that changes could be made with changed times, so long as Scotland was not discriminated against unfairly in comparison with England'. There are two very short answers to these points as follows: (1) that a legislature has no power to ignore the conditions under which it was itself established as a law-making body, as shown above, and (2) that had the Parliaments of Scotland and England wanted to make provision for amendment of article 22 then they could have so done (as they did with other articles of the treaty) and the fact that they did not do so must be taken to prove that they did not intend to do so (this argument is regularly used by judges who say 'If Parliament had wanted to make x rule they would have done so'). In short, Lord Slynn of Hadley turned the normal approach to legislative interpretation on its head ('They could have included provision for amendment, they knew they could, they did so with respect to other articles, they clearly chose not to in this case but we will assume that they intended to allow amendment.').
With regard to interpretation, in Magor and St Mellons v Newport Borough Council  HL it was held that filling in gaps in legislation was a naked usurpation of the legislative function under the thin guise of interpretation if a gap is disclosed the remedy lies in an amending Act. In other words you do not put in words that aren't there. In Duport Steels Ltd v SIRS  HL Lord Scarman said: In the field of statute law the judge must be obedient to the will of Parliament Parliament makes the law: the judges duty is to interpret and to apply the law, not to change it to meet the judges idea of what justice requires Unpalatable statute law may not be disregarded or rejected, merely because it is unpalatable... If Parliament says one thing but means another, it is not, under the historic principles of the common law, for the courts to correct it We are to be governed not by Parliaments intentions but by Parliaments enactments. Lord Diplock said: 'Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral. In controversial matters such as are involved in industrial relations there is room for difference of opinion as to what is expedient, what is just and what is morally justifiable. Under our constitution it is Parliament's opinion on these matters that is paramount.' He added at 157G: 'It endangers continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law, if judges, under the guise of interpretation, provide their own preferred amendments to statutes which experience of their operation has shown to have had consequences that members of the court before whom the matter comes consider to be injurious to the public interest.'
In Inco Europe Ltd and Others v. First Choice Distribution (A Firm) and Others  UKHL 15 Lord Nicholls of Birkenhead said: 'I freely acknowledge that this interpretation of section 18(1)(g) involves reading words into the paragraph. It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words. Some notable instances are given in Professor Sir Rupert Cross' admirable opuscule, Statutory Interpretation, 3rd ed., pp. 93-105. He comments, at page 103:
This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation.'
Lord Nicholls of Birkenhead's reasons were (1) that article 22, so far as it concerned the peers of Scotland, was repealed by the s.7 Peerage Act 1963, (2) that article 22 was concerned with the composition of the first parliament after union, was bound to become outdated, and change was inevitable, (3) that clear language would be needed before article 22 'could sensibly be interpreted as intended to preclude all change', (4) that Scotland would still be 'represented' in the House of Lords by peers with Scottish connections and Scottish interests (even though they do not actually represent Scotland as such) and that such representation is 'adequate' and (5) that 'What matters is sufficient representation in fact. I do not see how, so long as adequate representation exists, there can be any question of a breach of the Treaty of Union.' There are some very short answers to these points as follows: (1) the fact that article 22 was repealed by the Peerage Act 1963 merely begs the question as to whether that Act was itself legal, a question that Lord Nicholls did not answer, (2) the idea that article 22 only related to the composition of the first parliament is contradicted by the fact that the article refers to the Lords of Parliament of Great Britain (which includes the representative peers of Scotland) taking an oath 'in the first and all succeeding Parliaments of Great Britain' ('until the Parliament of Great Britain shall otherways direct', which is provision for changing the form of oath but not the people who take the oath); the question being how the representative peers of Scotland can take an oath in 'all succeeding Parliaments' if they are excluded from any succeeding parliament, (3) it is not clear language that is needed to exclude change but clear language to allow change, as explained above, (4) the idea that Scotland can be adequately represented by peers who merely have a connection or an interest in Scotland is plain nonsense (Would the UK be happy to be represented at the UN by someone whose only connection to the UK is an 'interest' in the UK? Would that be 'adequate representation'?) and (5) what constitutes 'sufficient representation' was specified in the Treaty of Union and there is no provision for changing the nature of that representation (This is like a judge saying 'Well, he ordered a Rolls Royce but a Mini is quite sufficient for getting him from A to B'.).
Lord Hope of Craighead's reasons were (1) that the the doctrine of the supremacy of Parliament means that Parliament has the power to amend or repeal the two Acts (but in Jackson & Ors v. Her Majesty's Attorney General  UKHL 56 at 104 he said 'But Parliamentary sovereignty is no longer, if it ever was, absolute.'), (2) that article 22 was not 'fundamental law' (i.e. an article that cannot be changed) because 'it seems unlikely that it was the intention of the Commissioners that the numbers mentioned in the first paragraph were to be treated as fixed in all time coming' and (3) that the important principle is that Scotland should be adequately represented, that the representative peers did not and do not represent the people of Scotland but the peers of Scotland, that the people of Scotland were and are represented by the Scottish members of the House of Commons, that House of Lords Act does not disciminate against Scotland as compared with England, that Scotland will continue to be represented in the House of Lords by peers with Scottish connections and Scottish interests, that the House of Lords Act will not end effective representation of the people of Scotland and that the idea that the peers of Scotland still have a mandate to sit and vote in the House of Lords under article 22 is 'quite out of touch with reality'. I have already dealt with these points above and will only add that while these arguments may appear reasonable and just as historical and practical arguments, they are not legal arguments in the main (though couched in legal terms) and it is the legality of the House of Lords Act that was the issue that the Committee was asked to address.
In short, when the Parliament of Scotland entered into the treaty it did not do so with the intention that the treaty could simply be amended or repealed at will by the new Parliament of Great Britain and, indeed, the whole purpose of the treaty was plainly and undeniably to protect the interests of Scotland in that new parliament by agreeing certain terms that would apply after the union. Some articles in the treaty (or associated legislation) are declared to be unalterable for all time coming*, some have specific provision for amendment and others do not specify either that they are unalterable or that they can be amended. The question is whether it is safe (or legal) to assume that an article of this latter type was intended to allow amendment or repeal. The critical point here is the one I have already made above and which is regularly used by judges; namely that had parliament intended to allow amendment or repeal then they could and would have made specific provision to that effect. So what do you do when you want to change a treaty in such circumstances? Well, the answer is quite simple; you hold a referendum. Was this thinking really beyond all the members of the Committee for Privileges, given their 'concern' for adequate representation? I don't think so. In short, the decision of the Committee for Privileges was a political one, not a legal one, and as a legal decision clearly does not hold water.
*e.g. The Protestant Religion and Presbyterian Church Act 1707 states that the Presbyterian Church in Scotland 'shall remain and continue unalterable... for ever'.
The Scotland Act 1998
It is also necessary to consider the Scotland Act 1998, which established the devolved Scottish Parliament. Section 29 says that 'an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament' and this includes any provision which relates to reserved matters (s.29(2)(b)) and any provision which makes modification of Scots private or criminal law 'as it applies to reserved matters' (s.29(4)(b)). Under Schedule 5, Part I, honours and dignities are reserved matters, so it follows that the Scottish Parliament has no competence to make laws affecting honours or dignities or private or criminal law as it applies to honours or dignities. Without going into the question of whether abolishing a criminal jurisdiction exercised by the holder of a dignity falls within the scope of s.29(4)(b), it is clear that Scottish feudal baronies are dignities (apart from anything else s.63 Abolition of Feudal Tenure etc. (Scotland) Act 2000 refers to feudal baronies as dignities*) and that the Scottish Parliament therefore has no competence to make laws affecting them.
It follows that the purported abolition of baronial jurisdiction under the s.63 Abolition of Feudal Tenure etc. (Scotland) Act 2000 is void and of no effect. Put bluntly (and in the words of the Scotland Act 1998) it 'is not law'. Salvesen v Riddell  CSIH 26 shows that an Act of the Scottish Parliament can be struck down by the Courts.
*A practice note of the Lord Lyon dated 3/12/2008 also refers to the 'persons owning a dignity of baron'. Other references to feudal baronies as dignities are Bankton, II.iii.84, Erskine, 'Institutes', II.iii.46, Stair, 'Institutions', II.iii.45 and George Joseph Bell, 'Principles', 10th Ed., para. 750.
The Abolition of Feudal Tenure etc. (Scotland) Act 2000
The Scottish Law Commission's 'Report on the Abolition of the Feudal System' said (para 2.43 and 2.44) that, in their view, it would be within the competence of the Scottish Parliament to 'deal' with feudal baronies because they are not an 'aspect of the constitution' as referred to in Schedule 5 Scotland Act 1998 and because the Queen has no prerogative functions in relation to feudal baronies. The argument here appears to be that anyone can buy and sell a barony and that the prerogative of the Crown is not involved in the process.* Firstly, in law the sale of a barony equates to (though it does not actually involve) a resignation to the Crown and a re-grant by the Crown (i.e. legally it is a resignation to the Crown and re-grant by the Crown - and the re-grant is an exercise of the prerogative of the Crown), so the Crown was, in law, involved in the process and, secondly, a barony is a jurisdiction held as a franchise from the Crown and exercised on behalf of the Crown (it is part of the regalia majora); it is the private administration of a part of public justice created by a grant from the Crown. Since the grant of the jurisdiction was an exercise of a royal prerogative, removing that jurisdiction was an exercise of a royal prerogative. It is therefore incorrect to say that feudal baronies do not involve the exercise of the prerogative of the Crown. In addition, Schedule 5 Scotland Act 1998 says that honours and dignities (it mentions no exclusions) are part of the prerogative of the Crown and are reserved as such. It is not open to the Commission to then say 'Oh, but we have decided that such-and-such a type of honour or dignity is not part of the prerogative of the Crown and is therefore not reserved' in direct contravention of Schedule 5 Scotland Act 1998; if a feudal barony is an honour or a dignity it falls within the reservation - period.
It follows that the purported abolition of baronial jurisdiction under s.63 is void and of no effect, as are any consequential changes in the practice of the Lord Lyon in relation to the heraldic additaments of barons and baronial officers.
Thus it is clear that the abolition of baronial jurisdiction was not only void under s.29 Scotland Act 1998 (because honours and dignities are reserved matters outside the competence of the Scottish Parliament) but it was also void under Article 20 of the Treaty of Union 1707 (which protects heritable jurisdictions as rights of property) and the associated Acts of Parliament - a double whammy.
*If you compare a feudal barony with, say, a dukedom, both are created by the Crown, both pass in accordance with the terms of their charter of creation (i.e. in the case of a dukedom when the duke dies it goes to his heir without any involvement of the crown (i.e. by inheritance); in the case of a barony it either passes by inheritance or by sale, but this is still in accordance with its charter which allows succession by an assignee) but since the removal of the right of peers to sit in the House of Lords the duke no longer exercises any public function, but before the Act the baron still exercised a jurisdiction on behalf of the Crown, being part of the regalia majora. So, in fact, it is the dukedom that is a dignity which involves no prerogative of the Crown not the feudal barony. So perhaps the Scottish Parliament should have abolished all peerage titles (and baronetcies) rather than feudal baronies. An interesting thought.
It is also worth noting that in para. 2.20 of their report the Scottish Law Commission say that rights of criminal and civil jurisdiction are inalienable Crown rights, as part of the regalia majora, and that 'it is clear that inalienable Crown rights can never have entered into the feudal system of land tenure as it is defined for the purposes of this report. Having always been retained by the Crown they can never have been held of the Crown or of any subject superior. They would be unaffected by the abolition of the feudal system of land tenure.' But if criminal and civil jurisdiction is not a part of the feudal system how can the criminal and civil jurisdiction of barons be abolished by abolishing the feudal system? Clearly, this part of the report is wrong in the sense that barons did exercise rights of criminal and civil jurisdiction so these rights were alienated from the Crown. However, the Commission was right in the sense that rights of jurisdiction are not part of the feudal system; they are part of the regalia majora exercised by barons on behalf of the Crown, quite distinct from the land. Crown charters of baronies refer to the 'lands and barony of x'; in law they are two separate and distinct things. The land is held of the king as paramount feudal superior but the jurisdiction (the barony) is exercised on behalf of the Crown as part of the regalia majora (it could be taken back by the Crown if not exercised properly). Nowhere in their report did the Commission identify the critical fact that the barony and the jurisdiction are one and the same thing; the barony is the jurisdiction. So not only was the jurisdiction of barons not affected by the abolition of the feudal system per se, because it was never part of the feudal system of land tenure (and it is 'the feudal system of land tenure' that was abolished by s.1 of the Act), but the jurisdiction of barons was outside the competence of the Scottish Parliament because baronies are dignities which are specifically reserved under Schedule 5 Scotland Act 1998. It is important to realize the critical distinction between the holding of land as part of the feudal system and the grant of a part of the rights of public justice of the Crown (i.e. part of the regalia majora) over that land. A baron (indeed any landholder) had rights of private jurisdiction as a landholder (e.g. concerning disputes between tenants) but he had separate rights of public jurisdiction as a baron. The former were part of the feudal system; the latter were not, as the Scottish Law Commission itself acknowledged. Even if the Scottish Parliament could abolish the rights of private jurisdiction that landholders enjoyed under the feudal system it could not abolish the rights of public justice enjoyed by barons and exercised by them on behalf of the Crown, partly because those rights were not part of the feudal system and partly because they were reserved matters under Schedule 5 Scotland Act 1998.
We can conclude as follows:
1. Feudal barons were the
original Peers of Scotland and sat in Parliament as such
(This is simple historical fact).
It is clear therefore that a lordship of regality in Scotland is, in addition to being a peerage of Scotland as described above, a royal title which makes the grantee a sovereign prince (if not actually a king) and carries with it the right to (1) hold civil and criminal courts (with a right of appeal in civil cases to the Scottish parliament), (2) impose the death penalty and other criminal sanctions, (3) confer titles, (4) grant arms, (5) use the title 'Lord of Regality', (6) use the title 'Lord Admiral' (if the regality is coastal and carries rights of admiralty), (7) bear the coronet of a duke, as well as supporters (as a peer) and (8) enjoy the privileges of peers (see here also) as they existed in 1707, including the right to trial by peers* (purportedly abolished in 1948), the right of access to the sovereign at any time and freedom from arrest in civil matters (including contempt of court). The Regality of Mordington was, as stated above, confirmed by a Crown Charter in 1856 (although, in any event, regalities are, like Scottish feudal baronies, legally indestructible except for an act of the Crown (e.g. an Act of Parliament), as confirmed by Professor William Croft Dickinson ('The Court Book of the Barony of Carnwath 1523-1542', p. l & xviii)).
*The right to trial by one's peers originates in clause 39 of Magna Carta, where it is said 'No free man is to be taken, or imprisoned, or disseised, or outlawed, or in any way destroyed, nor will we proceed against him, except in accordance with the judgment of his peers, or in accordance with the law of the land.' Gadd states that this did not originally cover criminal matters but later on it clearly did. It would seem therefore that the right to trial by one's peers covers both civil and criminal matters, if Magna Carta still applies (which it does). (Gadd, 'Peerage Law', ISCA Publishing Ltd., Bristol, 1985, pp. 80-81).
The Duchies of Cornwall and Lancaster
The Duchies of Cornwall and Lancaster are the two royal duchies in England. It should be noted that they are duchies (which are territories to which the title of duke is attached) as opposed to dukedoms (which are mere personal titles not attached to lands). They are 'royal' in the sense that by virtue of their charters of erection, as well as subsequent charters and Acts of Parliament, the first is held by the heir to the throne and the second is held by the monarch. The other thing that they have in common is that both duchies include counties palatine; that is, counties that were erected into palatinates (Cornwall and Lancashire). Within the palatinates the dukes originally held and exercised the entire powers of the crown (to the extent that royal officers had no right of access to the palatinate), and though these powers have gradually been diminished or have (according to some) become obsolete, they remain to a significant degree.
'Much valuable information concerning the origin and constitution of the Duchy [of Lancaster] will be found in Plowden's Report of the great case of the Duchy of Lancaster, in Michaelmas Term, in the fourth year of the reign of Queen Elizabeth (1 Plowd. 212) ; and the recent cases of Alcock v. Cooke (6 Bingham, 840) and Jewison v. Dyson (9 Meeson and Welsby, 540) may be advantageously consulted with relation to the pre-eminent rights exercised within the Duchy under the several royal grants, and the confirmations of them by Parliament, which provide for its rule and government as an inheritance vested in the person of the Sovereign, but apart from the rest of the royal patrimony. These cases seem clearly to establish the doctrine that all the prerogatives and privileges of the King belong to him with reference to the lands parcel of the Duchy of Lancaster, in no less a degree than they do with reference to lands which belong to him immediately in right of his Crown.' (Hardy, William, 'The Charters of the Duchy of Lancaster', London, 1845).
The crown rights (jura regalia) exercised by these duchies extend over the entire counties of Cornwall and Lancashire even though the duchy does not actually own most of the land within those counties. Originally, and as previously described, the jura regalia included complete, or nearly complete, criminal and civil jurisdiction within the palatinates, which were actually completely separate court systems which were a replica of the King's court system at Westminster. These court systems were abolished by the Judicature Act 1873 and the Courts Act 1971. The remaining jura regalia include, for instance, bona vacantia, by which the crown (or in these cases, the duchies) is legal heir to intestate estates or the property of dissolved companies. In the year ended 30 September 2012 the gross income of the Duchy of Lancaster from bona vacantia was over £5 million, though the net income is given to charity.
Interestingly, the Crown Estate (part of the hereditary possessions of the Sovereign 'in right of the Crown' which are managed under the provisions of The Crown Estate Act 1961 by The Crown Estate Commissioners) includes rights in relation to the seabed stretching to the limit of territorial waters and beyond to the continental shelf and, as a result, the Crown Estate is now making many millions of pounds a year from licences for offshore windfarms. But according to the Scottish Law Commission's 'Report on the Abolition of the Feudal System' (Scots Law Com No 168), para. 2.21, the regalia minora, which (the report says) are capable of alienation*, include 'the sea, the seabed, foreshore and tidal rivers'. But if a grant of a palatinate or regality was actually a grant of the entire rights of the crown, which included the jura regalia (including rights of admiralty over adjoining seas), and by which the king's writ did not run within the area of the palatinate or regality, and by which the King's officers were excluded from the palatinate or regality, did not such a grant include rights over the seabed adjoining such palatinates or regalities as part of the regalia minora? If a grant of a palatinate or regality automatically included regalia minora such as salmon fishings (as we know it did) then did it not also automatically include all other regalia minora, including the seabed? Palatinate or regality rights certainly included the right to wrecks and it was for this reason that the agreement of the Duke of Argyll was required for the excavation of the wreck of a ship of the Spanish Armada (the San Juan de Silicia) in Tobermory Bay. If such rights were alienated by the Crown it was, of course, still be possible for Parliament to resume such rights (i.e. take them back) but only with payment of appropriate compensation.
*'The King has an undoubted sovereignty and jurisdiction, which he has immemorially exercised through the medium of the Admiralty Courts, over the British seas, that is, the seas which encompass the four sides of the British Islands.... By implication of law the property in the soil under these public waters is also in the King... As to the soil or fundum maris, there can be no doubt that it may be claimed either by charter or prescription...' (Chitty, Joseph, 'A Treatise on the Law of the Prerogatives of the Crown', London, 1820, p. 142-3). Thus a lord of regality who has jurisdiction (sovereignty) over an area of sea also had the rights of the crown in the soil under that sea, given that a grant of a regality was a grant of all the rights of the crown (except the right to try treason).
Interestingly, the fact that the king's writ did not run in a palatinate is the reason why the consent of the Prince of Wales, as Duke of Cornwall, is still required for any Act of Parliament that affects the Duchy of Cornwall and, to this extent, the Duchy of Cornwall is outside the law of the United Kingdom; in effect, a separate kingdom. This is also, apparently, the reason why the Duchy is not subject to taxation. The 1913, Opinion on the Duchy of Cornwall by the Law Officers of the Crown' states:
'1. We are of the opinion that the same principles which render the provisions of an Act of Parliament inapplicable to the Crown unless the Crown is expressly named, apply also to the Prince of Wales in his capacity as Duke of Cornwall. This result arises from the peculiar title of the Prince of Wales to the Duchy of Cornwall. In other respects, the Prince of Wales, as being the first subject of the Crown is, like other subjects, bound by statutory instruments.
2. Taxation is not and cannot be exacted from land; it is exacted from subjects who are taxpayers. For the reason given in our answer to the first question, The Duke of Cornwall is not liable to such taxation, but it may be that he will not wish to insist upon his privilege of exemption.'
The point is that ALL palatinates and regalities had the same status as the Duchy of Cornwall and the Duchy of Lancaster; the king's writ did not run in them (that was and is the definition of a palatinate or regality) and thus it is clear that palatinates and regalities must be exempt from Acts of Parliament and taxation in the same way.
What the existence of these duchies and their surviving rights of jura regalia show is that counties palatine continue to exist in England to the extent not abrogated by law. But if palatinates continue to exist in England, what has happened to palatinates (or regalities) in Scotland? What happened to their rights of jura regalia? It has been claimed that regalities were abolished by the Heritable Jurisdictions Act 1747 but this is not so because that Act was an Act to abolish part of the jurisdiction of baronial and regality courts (the power of life and death) and the reduced jurisdiction survived until the abolition of the feudal system in 2004. The survival of regalities is proved by the continued existence of the Regality of Holyroodhouse; the survival of jura regalia is proved by the fact that salmon fishings (part of the 'regalia minora' or minor rights of the crown, which, with the 'regalia majora' make up the 'jura regalia') continued to pass with baronies until the abolition of the feudal system in 2004. In any event, and as shown above, the Heritable Jurisdictions Act was itself void as contrary to the Treaty of Union, which preserved heritable jurisdictions as rights of property. So, if regalities and their rights of jura regalia continued after 1747 then what happened to the right of bona vacantia for example? In the case of the Regality of Mordington the regality was, like the duchies of Cornwall and Lancaster, protected in perpetuity by an Act of Parliament of 1567 but, in addition to this, the Regality of Mordington was also protected by an international treaty (The Treaty of Union).
What if the Barony of Mordington had passed with the lands of Over Mordington in 1634?
NB - In a letter to me dated 19th October 2004 the Lord Lyon wrote: 'The 1634 charter clearly did not include the barony [of Mordington]'.
Before 1634 the Barony of Mordington consisted of the lands of Over Mordington and the lands of Nether Mordington. The lands of Over Mordington were disposed of by the Earl of Morton in 1634, who resigned them into the hands of the king for regrant to Sir James Douglas, who then held them of the king. If the barony of Mordington went with the lands of Over Mordington in 1634 then the lands of Nether Mordington must have been dissolved from that barony at that time (Sir James Douglas cannot have had baronial jurisdiction over lands he had no legal interest in). Normally, when lands were dissolved from a barony it was because part of the barony had been surrendered to the king for regrant to another person, to be held by that person of the king, and they therefore fell within the jurisdiction of the sheriff (who exercised royal justice as representative of the king), like other lands not within a barony; unless, of course, the king erected the lands into a new barony. But, in this case, we are not dealing with the lands surrendered by the superior to the king but the lands retained by the superior. So what would have happened to the lands retained by the superior (the lands of Nether Mordington) in this case?
According to the rule outlined above, lands dissolved from a barony (the lands of Nether Mordington in this case) would have been held of the King under the jurisdiction of the sheriff. But since the Earl of Morton retained regality jurisdiction over the lands of Nether Mordington (we know this because those lands were expressly dissolved from the Regality of Dalkeith in 1636), it follows that appeals from the sheriff court would have gone to the regality court, thus making, in effect, the king's jurisdiction (through the sheriff) subject to the jurisdiction of one of his own vassals, the Earl of Morton. This is not possible because (1) the king's courts could not be subject to the jurisdiction of one of the king's own vassals and (2) lands were either within the 'royalty', where royal jurisdiction pertained, or within 'regality', where regality jurisdiction pertained; they cannot have been partly within one and partly within the other at the same time (Lord Bankton, 'An Institute of the Laws of Scotland', II, III, para. 83).
Of course, if the lands retained had not been within a regality then they would have fallen under the jurisdiction of the sheriff. But lands within a regality remained within the regality even if resigned by the lord of regality to the king for re-grant to someone else to be held by that person of the king, unless those lands were expressly dissolved from the regality.* So, if lands resigned by the lord of regality remained within the regality, how can lands not resigned by the lord of regality be dissolved from the regality? Clearly, they can't. So the lands of Nether Mordington remained within the regality after 1634, and because they remained within the regality the Earl of Morton must have continued to hold baronial jurisdiction over those lands.
*Lord Bankton states ('An Institute of the Laws of Scotland', II, III, 93) that 'If the Lord of Regality disponed certain of the lands, tho' to be holden of the crown, they were not exempted from the regality jurisdiction, unless it was specially expressed; or the lands conveyed jure regalitatis, whereas such disposition would disjoin the lands from a barony, as is above observed'.
The ONLY solution, therefore, is that the Earl of Morton continued to hold baronial jurisdiction over the lands of Nether Mordington, but not as Baron of Mordington (if that barony passed to Sir James Douglas); it was, if you like, a separate parcel of baronial jurisdiction distinct from the regality (in the same way as the Barony of Mordington itself had been a separate parcel of baronial jurisdiction before 1634). This baronial jurisdiction over the lands of Nether Mordington CANNOT have merged with (i.e. become an indivisible part of) the Regality of Dalkeith because a regality was impartible and indestructible (legally a 'unum quid' or 'one thing'), so the baronial jurisdiction must have remained legally separate from it, like the Barony of Mordington itself when part of that regality. Baronies within regalities remained separate unless specifically united 'in unam integram et liberam baroniam et in liberam regaliam feu regalitatem' (Croft-Dickinson, 'The Court Book of the Barony of Carnwath 1523-1542', p. xxxvii, l) and this clearly did not happen in this case.
So when the Earl of Morton resigned his WHOLE interest in the lands of Nether Mordington to the King in 1636 for regrant to Thomas Ramsay, that whole interest included baronial jurisdiction over the lands of Nether Mordington - but separate from the Regality of Dalkeith. Those lands were dissolved from the Regality of Dalkeith in 1636 but the entire remaining interest of the Earl of Morton (including baronial jurisdiction) passed to Thomas Ramsay. We know this because the 1636 charter states 'that the said Mr Thomas, his spouse and their foresaids may enjoy and possess them in all respects, just as the said earl possesses and enjoys, and his successors and others will possess and enjoy the said lordship and enjoy the regality of Dalkeith'. In other words, ALL the remaining rights of the Earl of Morton went to Thomas Ramsay, including the baronial jurisdiction, even if the barony was not specifically mentioned (as happened when all the lands of a barony was disposed of). Since Thomas Ramsay held baronial jurisdiction over the lands of Nether Mordington he was baron of those lands, regardless of whether this was the original Barony of Mordington or some other barony created in 1634 in the manner described above. In other words, and in terms of baronial (as opposed to regality) jurisdiction, it doesn't matter if the Barony of Mordington went with the lands of Over Mordington in 1634 because there MUST have been another barony over the lands of Nether Mordington after 1634.
The above ignores the issue of the regality jurisdiction attached to the barony since 1382 but that would have been parcelled with the baronial jurisdiction, so if it existed as a parcel with the baronial jurisdiction (and we know it did) then it went with the barony jurisdiction in the manner described above. You would have just had a barony held in regality within a regality (in the same way that the Regality of Dalkeith once formed part of the Dukedom of Lennox) rather than an ordinary barony within a regality.
Postscript (The Rule of Law)
'The law as I see it, has two great objectives: to preserve order and to do justice; and the two do not always coincide. Those whose training lies towards order, put certainty before justice; whereas those whose training lies towards the redress of grievances, put justice before certainty. The right solution lies in keeping the proper balance between the two.' (Lord Denning, Master of the Rolls 1962-1982). He also said 'It is better that some innocent men remain in jail than that the integrity of the English judicial system be impugned.'
Er, nope. The law has one great objective, which is to apply the law, not to develop the law through judicial activism or to decide on public policy ('preserve order'). Justice consists of applying the law. If the law needs to be changed that is the job of Parliament, not judges.
It is clear that the House of Lords Act 1999 was in breach of the Treaty of Union 1707 (indeed, that the Act was void under the Treaty) but that the Committee for Privileges, which consisted of both judges (Law Lords) and politicians (members of the House of Lords), decided to ignore that fact. Why did they do this? One can only assume that they did it because they believed that they were acting in the public interest; the greatest good for the greatest number of people. This sounds eminently reasonable.
But let's consider the matter further. The Committee was asked to consider the legality of the House of Lords Act 1999; it was not asked whether it thought it was in the public interest or not. Yet three Law Lords, knowing this, decided to do what they considered to be in the public interest rather than simply apply the law to the facts. What are the implications of this?
In the first place, if a judge is prepared to ignore the law and make a decision purely on the basis of his idea of the public interest, he has ceased to be a judge and has become.... a politician. He is breaking the most fundamental of constitutional safeguards - the separation between the legislature and the judiciary (i.e. between those who are elected to decide what the public interest is, and make laws accordingly, and those who are employed to apply those laws with impartiality). When one judge, or a number of judges sitting together, can both make the law (in effect) and punish you for breaking that law then you are living in a tyranny. It's as simple as that. In the second place, if a judge is prepared to ignore the law when faced with a constitutional issue of the first importance and of high public visibility, how much more likely is it that he will do so when faced with an issue of lesser importance, such as when deciding whether or not to convict you for a minor offence?
Consider this real-life example. You have a minor verbal spat with, say, a traffic warden, who summons the police. You are charged with committing an offence; say, conduct likely to cause harassment, alarm or distress under s.5 Public Order Act 1986. This is quite possible and you might remember the case where a youth was arrested and charged with a public order offence because he told a mounted policeman that he thought his horse was gay. You didn't commit the offence but the police decide to nail you because, in their view, you 'gave them lip' and they want to teach you a lesson (as in the 'gay horse' case). You are duly summoned to appear before the local Magistrates' Court. The traffic warden and police cook the evidence between them to get you convicted, saying that you went berserk and were shouting and screaming in public. Not to put too fine a point on it they commit perjury in order to give you a criminal record. Unfortunately for them there is close-up CCTV evidence which shows you talking quietly to the traffic warden and police while members of the public (elderly ladies and so on) walk past only a few feet away without batting an eyelid (Question: How can it be said that you were likely to cause alarm and distress when you demonstrably didn't?). Shockingly the Magistrates find you guilty and give you a suspended sentence. Why did they do it? Well, they saw the conclusive CCTV evidence so they know what actually happened; there can be no doubt about that. The reason they found you guilty is because, while they were fully aware that you did not actually commit the offence, you did call a traffic warden a 'twerp' and they think it is better to give you a suspended sentence than to find that the traffic warden and police lied in court*; in their view that would not be in the public interest. The choice, as they see it, is between causing you some 'minor inconvenience' and doing what they actually ought to do, which is to have the traffic warden and police charged with perjury.
*Judges have no compunction about branding ordinary people liars (in public and with no right of reply).
Perhaps this is not a serious issue in the grand scheme of things, although for the police to commit a criminal offence in order to criminalize an innocent person is actually very serious, as is the conscious failure of the courts to hold them to account for doing so. But what if the police (largely as a result of their own incompetence) blow a young man's brains out on the London tube under the mistaken impression (and perhaps not even that) that he is a suicide bomber, then lie about it, and the courts decide not to pursue the matter - in the public interest? What if the courts decide not to allow servicemen who were deliberately exposed to radiation from nuclear tests in Australia shortly after World War II, and who develop cancer as a result, to sue the government - in the public interest? What if the courts decide that our soldiers are not covered by the Human Rights Act while serving in Iraq but that Iraqis are (and can sue in UK courts as a result) - in the public interest? What if a young boy becomes ill, dies unnecessarily as a result of medical negligence, the records exposing that medical negligence are deliberately falsified and the courts then deny his parents a remedy - in the public interest? What if a judge finds a man guilty of a 'race-hate crime' when clearly aware that he is innocent* - in the public interest - and that man commits suicide as a result?
Can judges really act in that way? Well, the above cases are all real, so we need to identify how these things can not only happen but happen regularly (indeed, every day).
Most members of the public see the judicial process as being essentially quite simple; it is just a process of finding out the facts and applying the law to those facts. Not only do the courts have carefully drafted laws and regulations to go by, they have court procedures, rules of interpretation, rules of evidence and the benefit of hundreds of years of case law (precedent). What could possibly go wrong? Lawyers and judges (and victims of the judicial mincing machine) know that a court can basically engineer the process to come to any conclusion they want; they know that this is actually what judges do (and consider themselves very clever in doing - in fact, that is the whole fun of the process). Indeed, they know that the judicial process consists of deciding on an outcome and then finding a way to justify that outcome, using whatever mixture of legal principle, interpretation and case law is required ('Ah, but the facts of this case need to be distinguished slightly from the well-known case of X v Y.'). It's all about the meaning of words. The way in which even the highest courts in the land can tie themselves up in knots over the meaning of one word is illustrated by the fact that the courts in the UK took over 20 years to decide the meaning of the word 'reckless' in the context of manslaughter. Is it objective, by reference to what a reasonable person ought to have known (i.e. the risk of death arising from a course of action), or subjective, by reference to what a person actually knew (See R v Cunningham  2 QB 396 (subjective test) and R v Caldwell  AC 341 (objective test))? Of course, in this situation there was no deliberate distortion of the meaning of words but it illustrates the scope for deliberate distortion; if courts cannot work out the meaning of a word when they are genuinely trying to do so, how much worse will it be when they deliberately try to distort the meaning of a word?
Let's consider the words of a Professor of Law:
With reference to the Committee for Privileges and the House of Lords Act 1999 this type of conduct is illustrated by the contradictory statements of two law lords. Lord Hope of Craighead told the Committee that 'I do not think that it is open to this Committee to question the extent and application of the doctrine of sovereignty' but in Jackson & Ors v. Her Majesty's Attorney General  UKHL 56 at 106 he said: 'So here too [with respect to the Treaty of Union] it may be said that the concept of a Parliament that is absolutely sovereign is not entirely in accord with the reality.' He then goes on to do exactly what he said the Committee could not do - question Parliamentary sovereignty, which, after all the legal arguments, he rules in favour of (Para. 128) on the basis that it is a political reality! Lord Nicholls of Birkenhead told the Committee that clear language would be needed before article 22 'could sensibly be interpreted as intended to preclude all change' (i.e. he effectively inserted words into the Act in order to allow change i.e. when a document says 'x will apply' there is no express limitation of time and it amounts to inserting words to say otherwise) but in Inco Europe Ltd and Others v. First Choice Distribution (A Firm) and Others  UKHL 15 (one year later) he said that a court could only add words where there was a drafting mistake.
So, the courts make decisions based on their sense of justice. What is wrong with that you say? There are a number of things that are wrong with it, all of which are very serious.
1. The first problem is that the courts do not make decisions based purely on their sense of justice; they weigh the need to do justice to you (which is not entirely absent from their minds) against what they see as the public interest* - and the former nearly always loses out to the latter (and when a judge sees himself as a god-like figure guiding the destiny of the nation - and believe me, that is how they see themselves (and so would you if you wore a funny hat and people called you 'My Lord' all the time) - your life and concerns do not figure largely in the scheme of things). This can, and very often does, lead to the grossest injustice to the individual, including causing people's deaths, ruining their lives and denying them a remedy, as illustrated. At the most fundamental level it is quite simply not the job of a court to decide what the public interest requires; that is the job of elected representatives - and they define what the public interest requires via.... laws. The only (I repeat only) function of a court is to decide on the facts and then apply the law to those facts. As Lord Halsbury said in the Earldom of Norfolk case of 1907 (R. P. Gadd, Peerage Law, p. 110): Our duty is to the best of our ability to ascertain what the law is, and, having ascertained it, to give effect to it; to alter it or even modify it is the function of the Legislature, and not of your Lordships House.'
*Of course, where you have an essentially private issue, like an argument between 2 Russian billionaires, the court has no reason not to do justice; there is no public interest issue. They are quite happy to do justice to you where it doesn't conflict with their interests.
2. The second problem is that when a court can reach any decision it likes you no longer have the rule of law; in fact, you effectively have no law. You are left to depend entirely on what an individual (the judge) thinks is 'right in the circumstances'; the whim of an individual ('Ah, but I am the right sort of individual' counters the judge). That is not law; it is the antithesis of law. When you go to a lawyer for advice and ask him whether you will win a case he will invariably say that he doesn't know. He is not being annoyingly cautious in saying this; he genuinely has no idea because he knows that whatever the law, rules of procedure, rules of evidence or precedent (case law) may say the judge can and will decide whichever way he likes. Uncertain law is no law; you cease to be a litigant and become a supplicant (which is the way they like it).
3. The third problem is that judges are almost entirely unaccountable for their decisions because (1) they are free from civil suit (you cannot sue them), (2) because judges are very, very (very, very) reluctant to find fault with fellow judges (and a lot of them know each other) and (3) because the machinery for making complaints against judges actually operates as a mechanism for protecting judges from complainants, not for holding them to account*. In other words, judges know that they can do what they like and get away with it.
4. The fourth problem is that a judge's idea of the 'public interest' is geared heavily towards (1) protecting the legal profession and (2) protecting the establishment - in that order (these are the public interest in his view). To illustrate this point I only need to point out that a person is not allowed to be represented in court by anyone other than a solicitor or barrister. So if you are a poor old lady, who cannot afford legal representation, but who has a friend who, while not being qualified in law, is undoubtedly an expert in it, the courts will deny you the right to be represented by that person - but the party opposing you will, if they can afford it, be entitled to hire the best lawyer in the land. Thus the courts deliberately deny you the opportunity to have the best representation that you could obtain (that is, equality of arms), in spite of, I may say, an over-riding duty under the Civil Procedure Rules (CPR 1) to ensure justice between the parties (which makes those rules meaningless). Why do they do this? To protect the monopoly of the legal profession; that is themselves. In other words, they deliberately deny you access to justice (a fair trial) for money. This is what it boils down to. Clearly, as far as they are concerned, the legal system is there for their benefit, not yours. People who are prepared to act in this manner cannot be relied upon to be impartial - period. See also the heart-rending story of Peggy Wood (also article in The Indpendent 29/7/1993) where the courts decided that the Law Society did not owe her a duty of care. If you think about it this means that while the Law Society has a duty to investigate complaints against solicitors, the victim has no remedy against the Society if it fails to do a proper job i.e. we have a duty with no remedy/sanction for breaching that duty, which is no duty at all. Perhaps the court had not heard of the maxim of equity 'Equity will not suffer a wrong to be without a remedy' (but they would have found a way round that in any event). In Ashby v White (1703) 92 ER 126 Lord Holt said: 'If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it, and, indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal.' Clearly, if a right must have an associated remedy for a breach of that right (otherwise it is not a right) then a duty must have an associated remedy/sanction for a breach of that duty (otherwise it is not a duty) - but this was apparently beyond the court's reasoning powers. Furthermore, while the ambulance service, for instance, owes no general duty of care to respond to medical emergencies, once the ambulance service has responded to an emergency call, it does owe a duty of care to the relevant person (see Aitken v Scottish Ambulance Service & Anor  ScotCS CSOH_49) and it follows that once a regulator, such as the Law Society, has undertaken to investigate a complaint, it then owes a duty of care to the complainant to carry out the investigation properly (partly because he may well cease to consider alternative methods of obtaining a remedy). How can it be otherwise?
5. The fifth problem is that judges (indeed the whole judicial system) are heavily prejudiced against certain types of person, and the type of person they hate most is a litigant in person. This is confirmed by the report 'Litigants in person' (Moorhead, Professor R., and Sefton, M, Dept. for Constitutional Affairs, 2005) which says (p. 89): 'As we noted at the outset, many of those we engaged with about unrepresented litigants shaped their immediate reactions around notions that unrepresented litigants were bad or mad. The judges we spoke to were a notable exception and many staff were sympathetic and constructive in their attitude to unrepresented litigants [or said they were when talking to the authors of the report]. Many however also displayed a less flattering undercurrent. It could simply be that the mad, dangerous and stupid litigants were what occupied their thoughts because they posed the greatest challenge to their resources and skills, or that they provided better stories, but a notable effect of this tendency was the stereotypical portrayal of unrepresented litigants which in fact is not borne out by a more considered analysis of how often unrepresented litigants become obsessive.' (the evidence shows that litigants in person are no more obsessive than any other type of litigant). In short, if you are a litigant in person then not only do you have no guarantee about the outcome of your case but you can pretty much guarantee that you will be treated as 'bad or mad' and obstructed every step of the way*. This is, of course, a major problem when the majority of people cannot afford to hire a lawyer. Almost the only guarantee you do have is that the legal process will take years, be ruinously expensive and that if you are up against the establishment in any form, or a big company, you will almost invariably lose.
The question may have occurred to you: 'If the judicial system is so bad then why don't our elected representatives do something about it?' The answer is (1) that a high proportion of politicians are lawyers or ex-lawyers (they do not have your interests at heart), (2) those politicians who are not lawyers are probably not aware of the situation, (3) those politicians who are not lawyers but are aware of the situation are too scared, selfish or lazy to do anything about it (which leaves about 2 MPs who are actually trying do do something about it - which neatly equates to the actual proportion of MPs with a conscience), (4) there is, in effect, a silent 'pact with the devil' between the legislature and the judiciary along the lines of 'We politicians will leave you judges to live the high life off the back of the legal system and go way beyond your proper powers (i.e. decide what constitutes the public interest) if you protect us (the establishment) from the little people'. Deal.*
You will appreciate from what I have said that the legal system is effectively out of control. You are not a litigant able to demand your rights from them but a supplicant with no remedy against them. This is the reality of the situation. Even the European Court of Human Rights (ECHR) does not really affect this situation. Sometimes the UK courts are over-ruled by the ECHR (but ECHR judges broadly share the same attitudes as UK judges) but they just take that in their stride with a shrug of the shoulders; it's no skin off their noses. Whatever the outcome they will not be held to account (and by the time it gets through the ECHR they will probably have retired anyway).
So, which judicial system do you prefer? The judicial system as it exists in the UK today, as described above, where you have no guarantee whatsoever of the outcome, other than that the need to do justice to you will almost certainly take second place to the judge's idea of the public interest, and where going to court is not only uncertain as to outcome but is a ruinously expensive process that will take years and probably cost you your home (to pay legal fees), or would you prefer a feudal baronial court, where you will be tried in an afternoon by a jury of local people (your peers) who may not know how many angels you can fit on the head of a pin but do have common sense and a sense of fair play? Has it occurred to you that you are actually worse off (vis a vis the legal system) than a feudal peasant? Bring back the bad barons! All is forgiven!
Before you answer that question may I remind you of the words of Lord Devlin, a Law Lord:
'The power that puts the jury above the law can never safely be entrusted to a single person [including a judge] or to an institution, no matter how great or how good. For it is an absolute power and, given time, absolute power corrupts absolutely. But jurors are anonymous characters who meet upon random and unexpected summons to a single task (or perhaps a few), whose accomplishment is their dissolution. Power lies beneath their feet but they tread on it so swiftly that they are not burnt.' (Lord Devlin, 'The Conscience of the Jury', Law Quarterly Review, July 1991, Vol.107, p.404.)
and the words of Thomas Jefferson:
'Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny'
The answer to the problem is that the rule of law can only be safeguarded by a jury system and by having an effective remedy against bad judges (preferably involving an axe or a length of rope). The first ensures the fairest outcome for you; the second ensures that bad judges will be held to account. In any event, the role of the judge should be severely restricted to matters of procedure and nothing more (give them an inch and they will take a mile).
The choice is yours (Well, it isn't actually but you know what I mean).
The Barons of Mordington
(Note that Peter de Mordington was almost certainly not the first baron of Mordington, he is merely the first Baron of whom we have a record.)
Regalities, earldoms and lordships in early 15th-century Scotland - from Alexander Grants Franchises North of the Border (available as a download at http://eprints.lancs.ac.uk/633/). The Regality of Mordington is shown in the extreme bottom-right on the border near Berwick-upon-Tweed, as indicated. See also Edinburgh Universitys An Atlas of Scottish History to 1707 (p. 207).
The progenitor of this family in the United Kingdom, (Moses) Aaron Senior (d 1736), was described as a 'West Indian Jew' and owned land in Barbados. His probable father or grandfather, Joseph Senior Saraiva of Barbados (d 1694), son of Antonio Coronel (d 1665 in Hamburg), who was one of the co-founders of the Bank of Hamburg (which became part of the Reichsbank in 1875), was a direct male-line descendant of Don Abraham Senior (b 1410/12), Chief Rabbi and supreme magistrate of the Jews of Castile, and favourite of Ferdinand of Aragon (1453-1516) and Isabella of Castile (1451-1504), whose marriage in 1469 he arranged. This marriage led to the unification of the kingdoms of Aragon and Castile and, ultimately, to the formation of the modern Spain. Don Abraham also brokered a reconciliation between Isabella and her brother, Henry IV (1425-1474), by which Isabella was acknowledged as heir to the throne of Castile, and negotiated the surrender of the great castle of Segovia, which helped to end the Second Castilian Civil War (1475-9).
Christopher Columbus kneels before Ferdinand and Isabella.
As a financier, tax farmer and factor-general of the army Don Abraham also played an important role in funding and supplying the armies that drove the Moors from Spain (in fact the Crown would have been bankrupt without Jewish finance), helping to bring to a successful conclusion the 800 year long Reconquista (722-1492), the crusade against the Moors. Behind the scenes Don Abraham seems to have tried to minimize the suffering of his fellow Jews during a very difficult period. In Segovia in 1485 he intervened to prevent the rabble-rousing activities of Antonio de la Pena, a Dominican monk, against the 'Jewish wolves' who should be 'driven away by fire'. In other Spanish cities such activities had led to pogroms in which many hundreds of Jews had been murdered or forced to convert. In 1486 he interceded with the King to prevent the expulsion of the Jews from Valmaseda. In 1489 he paid, largely from his own fortune, the ransoms of 450 Jews captured at the fall of Malaga, mainly women who would otherwise have been sold into slavery.
The Moorish King, Boabdil, surrenders Granada, the last stronghold of the Moors in Spain, to Ferdinand and Isabella in 1492. Painting by F. Padilla.
Don Abraham also appears to have been one of the Jewish backers (led by Luis de Santangel) of Christopher Columbus' voyage of discovery to America, who he first met in Malaga in August 1487 ('Christopher Columbus', M. Kayserling, 1907, p. 42, 52-55). Such was his authority that, on one occasion in 1492, he even sued the Inquisition in order to recover property - and won. When the Jews were expelled from Spain in 1492 Don Abraham converted to Christianity, together with most of the close members of his family. He did this partly on account of personal pressure from Ferdinand and Isabella, partly on account of his advanced age, but mainly, it appears, on account of threats of reprisals against the Jewish community at large. Ferdinand and Isabella, with Cardinal Mendoza and the Papal Nuncio, were the sponsors (godparents) at Don Abraham's baptism, when he and his family took the name 'Coronel', and they clearly regarded the event as a triumph.
The discovery of America - 'The triumph of Columbus was the triumph of the Converso Luis de Santangel, visionary and champion of the perennial lost cause of history, the cause of the Jews.' - John Boyd Thatcher. A member of the Coronel family, Pedro Fernandez Coronel, took part in Columbus' second voyage and was appointed Constable of the Indies. Was this an attempt to establish a Jewish state in the New World?
'The Expulsion of the Jews from Spain' (1889) by Emilio Sala Frances, Museo de Bellas Artes de Granada. The Jewish man is either Don Isaac Abravanel or Don Abraham Senior. This is the moment when Torquemada, head of the Inquisition in Spain, told Ferdinand and Isabella that to accept the money that the Jews had offered to reverse the decree of expulsion would be like Judas accepting the 30 pieces of silver. According to 'Nassau William Senior' by S. Leon Levy, p. 202, 'Attended by a retinue of thirty mules, the aged Abraham Senior hastened to the palace of Alhambra from which that infamous edict had been issued in order to implore the Spanish monarchs for its revocation. Associated with him were his brother-in-law, Meir, who happened to be the King's secretary, and Abrabanel - both of who had rendered invalubale services to their country, the latter having also loaned their Majesties 1,500,000 maravedis for financing the late war. 'Thrice on my knees I besought the King', states Abrabanel himself in the preface to his commentary on Kings. 'But... the King declared he would not revoke the edict for all the wealth of the Jews. The Queen at his right hand opposed it.''
In the decades and centuries following the expulsion, branches of the family emigrated to Amsterdam, Hamburg, Brazil (Recife, Pernambuco), Curacao, the West Indies and elsewhere, usually via Portugal, where some remained; this was often to escape the Inquisition (Sephardic Jews provided the impetus for the development of the sugar industry in Barbados, which by 1660 generated more trade than all other English colonies combined). Many of these branches reverted to Judaism and re-adopted the Senior name (or the name Senior-Coronel) when it was safe to do so. Many were crypto-Jews, that is people who were officially and outwardly Catholic but who retained their Jewish faith and observed Jewish religious practices in secret. It was a common (and necessary) practice for crypto-Jews to have one or more aliases, which were often retained even after they had settled in places beyond the reach of the Inquisition. Other branches of the family remained Catholic and inter-married with non-Jewish or non-Converso families; some abandoned the name Coronel. Amongst Don Abraham's direct male-line Catholic descendants in Portugal are the Counts and Marquises of Penafiel (formerly of the Palace of Penafiel, Lisbon and the Palace of Correio-Mor, Loures, nr. Lisbon, and feudal lords of Penafiel, near Porto), which title later passed through an heiress, the first Marchesa, to the Gomes family, Brazilian diplomats, who adopted the family name of da Mata de Sousa Coutinho (the family changed its name from Coronel to da Mata Coronel, then to da Mata, and later added de Sousa Coutinho via marriage (de Sousa de Arronches being the surname of an illegitimate branch of Portuguese royal family descended from Alfonso III (1210-1279) and Coutinho being the surname of the Counts of Marialva, Marshals of Portugal, themselves descended from Alfonso Sanches, illegitimate son of Denis 'the Farmer' (1269-1325), King of Portugal).
The 18th century Palace of Correio-Mor, Loures, nr. Lisbon - built by the Coronel family.
Arms of the Marquises of Penafiel - Quarterly, 1st, da Mata (or, three bushes vert flowering of the field); 2nd and 3rd, de Sousa de Arronches (Portugal ancient quartered with de Sousa); 4th, Coutinho. The Templar cross in chief of the da Mata arms denotes membership of the Knights of Christ (formerly the Knights Templar). A unique coat of arms, being the arms of a Jewish family, quartered with the arms of a royal house (Portugal) and bearing the device of the Knights Templar. The right-hand picture is of the arms over the main gate of the Palace of Penafiel, Lisbon.
Other female-line descendants of Don Abraham Senior include the Marquises of Rodes and Counts of Lichtervelde of the Chateau de la Follie, Ecaussinnes-dEnghien, Belgium.
Chateau de la Follie, Ecaussinnes-dEnghien, Belgium
Descent of Joseph Senior Saraiva of Barbados (d 1694) from Don Abraham Senior of Castile:
*Referred to as 'el converso Andrés Cabrera' in the testament of Queen Isabella of Castile (Luis Suárez Fernández, 'Análisis del Testamento de Isabel la Católica', p. 86, 'Cuadernos de Historia Moderna', No. 13, Madrid, 1992). Eugénie, Empress of the French (18261920), wife of the Emperor, Napoleon III (1808-1873), was the daughter of Don Cipriano de Palafox y Portocarrero (1785-1839), 17th Marquis of Moya. The title is now held by Cayetana Fitz-James Stuart, 18th Duchess of Alba. The death of her only son, the Prince Imperial, in action against the Zulus in 1879 prevented her Jewish blood from gracing the throne of France. Violante de Cabrera may have been Violante, illegitimate daughter of Bernardo de Cabrera, son of Bernardo de Cabrera, Viscount of Cabrera (d 14/5/1466) (see here also).
See José Amador de los Rios, 'Estudios históricos, politicos y literarios sobre los Judios de España', p 445; José Amador de los Rios, 'Historia social, politica y religiosa de los judios de España y Portugal', iii, p 279-296; Kayserling, 'Geschichte der Juden in Portugal', p 83 & 102, and also the pedigree prepared by the Portuguese historian, Luis de Bivar Pimentel Guerra, in 1976.
Other prominent members of the Senior/Coronel family in Europe and the United Kingdom include:
(MOSES) AARON SENIOR (d 1736), jeweller of St. James, Westminster and plantation owner in Barbados and elsewhere, of Rathbone Place, London, and later of Red Lyon (or Lion) Square, Holborn, London, is the earliest traceable member of this branch of the Sephardic Senior family in the United Kingdom. He was a Jew who converted to Christianity and was naturalised by Act of Parliament 12 Sep 1723 (Patent Roll 10 Geo 1 part 3 No 11). He had three children, Abraham (d 1769), Rachel (d 1766 - memorial in Hoddesdon church) and Henrietta Jemima Elizabeth (d 1769 - memorial in Hoddesdon church), before he married, 4 May 1727 at Bromley, his second* or third wife, Elizabeth Baldrick (d 1769 - memorial in Hoddesdon church), née Halsey** (who m, thirdly in 1739, Charles Hutton), third cousin once removed, through her grandmother, Mary Vincent, of William Pitt (1708-1778), Prime Minister and 1st Earl of Chatham, by whom he had issue,
wife was possibly called
Sarah. See Bevis Marks records for 1720 for marriage of
Sarah Senior Coronel and Moses Aron Senior Coronel (Bevis
Marks Pt II - 255).
Red Lion Square, Holborn, London - as it was (looking east).
*Arms: Argent, on waves of the sea, a frigate under full sail proper; and a chief Azure, charged with a cornucopia on the dexter and a beehive encircled by eight bees on the sinister, all Or. Crest: An elephant saddled with a castle from which flows the Ensign of St. George. Supporters: An Indian dressed in straw-skirt and a headgear of feathers, armed with bow and arrows; on the sinister a negro dressed in loincloth, a mask of an elephants head as a headgear, in his left hand a snake, all proper.
NASSAU* THOMAS SENIOR (d 29 June 1786), merchant and plantation owner, of Broxbourne, Hoddesdon, Herts, and later (from about 1785) of Upper Church St, Bath; Governor of the Company of Merchants Trading to Africa (est. 1750) from 1757 to 1761 (he appears to have lived at Cape Coast Castle, Ghana, during this period), which made him effective governor of the Gold Coast (now Ghana) as well as the whole coast of Africa between Cape Sallee (Morocco) and the Cape of Good Hope; m 3 May 1761 St. Michael, Barbados, Frances (b 1733 St. Michael, Barbados; d 24 Aug 1790), daughter of Dr. John Raven, and had issue,
*The name 'Nassau' may have been adopted in honour of John Maurice of Nassau (1604-1679), Prince of Nassau-Siegen and Governor of the Dutch territories in Brazil, prior to the reconquest of these territories by the Portuguese in 1654, when over 5,000 Jews fled that country. One ship carrying 23 Jewish refugees from Brazil went to New Amsterdam (New York), where they formed the nucleus of the Sephardic Jewish community in the USA. Joseph Senior Saraiva's uncle, David Senior (who was born in about 1575 in Amarante, Portugal, and who died in Recife, Brazil, in 1650) was one of the leading members of the Jewish community in Recife. An alternative is that the name 'Nassau' was adopted in honour of William of Orange-Nassau (1650-1702), that is William III, whose seizure of the throne of England in 1688 was financed by Jews, possibly including the Senior family. Jews also financed William III's later wars against Louis XIV and did much to help London replace Amsterdam as the centre of European finance, a position it holds to this day. It is a curious fact that, on this basis, the famous Bill of Rights of 1689, one of the cornerstones of British democracy, was largely made possible by Jewish finance. One branch of the Senior family (who later took the name Husey-Hunt on marriage to an heiress) received an as yet unexplained grant of 2,000 acres in Jamaica from the Crown on 11 Nov 1690, two years after the Glorious Revolution; the conjecture must be that this was in payment or part payment of a debt (see HUSEY-HUNT, late of Compton Castle, Compton Pauncefoot, Somerset, which was sold in 1911, BLG 1906 and 1925 ed.). A third alternative is that the name was adopted in honour of the House of Nassau generally on account of the pre-eminent role they played in furthering the cause of religious freedom, for both Protestants and Jews. A fourth possibility is that Nassau Thomas Senior was born or conceived in Nassau, Bahamas or that his parents met there when his mother, Elizabeth Baldrick, was returning to England from visiting her estate in Barbados (Baldricks Plantation in the Parish of St. John's). Some Jewish familes who claimed Davidic decent adopted the surname Nasi or the middle name Nassi. Nassau may be a variant of this.
John Raven Senior (1763-1824) and his wife, Mary Duke (1769-1822), co-heiress of Henry Duke (d 1780), Solicitor-General of Barbados.
JOHN RAVEN SENIOR (b 8 Dec 1763 at Tavistock St, London; d 23 May 1824 at Winterbourne, Gloucs, memorial in St. James the Less, Iron Acton); of Compton Beauchamp and later (from about 1807) of Iron Acton; Clerk in Holy Orders and Doctor of Divinity; educ Merton College, Oxford (graduated 1785, MA 1788); ordained 1786; Vicar of Compton Beauchamp; Vicar of Durnford, Wiltshire from 1791; m 15 Nov 1787 Mary Duke (1769-1822), daughter and co-heiress of Henry Duke (d 1780), Solicitor-General of Barbados, and had issue, with two other children, who died young,
The arms of Duke, as depicted in St. Michael's Cathedral, Bridgetown, Barbados, being the arms of Duke of Duke Hayes (now Hayes Barton), East Budleigh, nr. Exeter, Devon, which estate the family owned for over 400 years, and Duke of Lake House, Lake, nr. Amesbury, Wiltshire (Per fess, argent and azure, three annulets countercharged).
Nassau William Senior (1790-1864) - Author of the Poor Law Amendment Act 1834, which gave the poor a legal right to medical treatment in cases of emergency (Section 54). The workhouse infirmaries established under the Act were the foundation of the National Health Service (NHS). He was described by Count Cavour, founder of modern Italy, as 'the most enlightened thinker in Great Britain' (Letter from Count Cavour to Madame de Circourt, dated Turin, 23 Feb 1844).
NASSAU WILLIAM SENIOR (b 26 Sep 1790 at Compton Beauchamp, Berks; d 4 Jun 1864, memorial St. Mary Abbots, Kensington), barrister, of 13 Hyde Park Gate, London, was educated at Eton (1802-1807) and Magdelen College, Oxford (MA 1815); a student at Lincoln's Inn, he was called to the Bar in 1819. He was one of the most influential political economists of the 19th century and acted as an advisor to successive British governments on important economic and political issues, including trade unionism, employment, wages, working hours, education and Ireland. His attitude to the business of politics was dismissive and he preferred to influence affairs from behind the scenes. In 1832 he wrote 'I have had several propositions to be a candidate for the ensuing House of Commons, but have rejected the temptation, believing that what spare time I have can be more usefully employed in preparing measures to be introduced by others than in hearing long speeches and making indifferent ones' (He had a weak voice). He was the author of the Poor Law Amendment Act of 1834, which led to the setting up of the workhouse system. This system was a much-needed replacement of the old parish-based system of poor relief, set up in Tudor times, which would have been overwhelmed by the huge social changes brought about by the industrial revolution, with devastating social and political consequences. The workhouse system, while it was unpopular, did provide an essential safety net for the poor which guaranteed food, shelter and medical treatment, generally of a better standard than that enjoyed by agricultural labourers outside the workhouse, and the workhouse infirmaries established under the Act were the foundation of the National Health Service (NHS) - see 'The Origins of the National Health Service' by Ruth G. Hodgkinson (The Wellcome Historical Medical Library, 1967), Chapter 1 'The New Poor Law and the Medical Services'. Section 54 of the Poor Law Amendment Act of 1834 established a legal right to medical treatment in cases of emergency, enforceable by a fine imposed personally on the local Overseer of the Poor should he fail to provide such treatment. Nassau William Senior held the first chair of political economy at Oxford University (1825-30, 1847-52) and was a Master in Chancery from 1836-53. In 1832 he was removed, after one year in office, from his position as Professor of Political Economy at King's College, London, for supporting the Catholic Church in Ireland. The suppression of ten (Protestant) Irish Bishoprics by the Whig government in the following year (1833), in accordance with his recommendations, caused an uproar which led to the formation of Oxford Movement. He framed the proposal which settled the Oregon Dispute of 1844-46, in spite of strong opposition from British politicians, and thereby prevented a war between Great Britain and the United States. He declined the office of Governor of Upper Canada (and the consequential peerage) and a knighthood. He was for many years a contributor to the Edinburgh Quarterly, London and North British Reviews, covering literary as well as economic and political subjects; see his entry in DNB. He m 30 Apr 1821 Mary Charlotte (b 14 Mar 1791 in the West Indies; d 18 Apr 1883), daughter of John Mair of Acton Lodge, Iron Acton, Gloucs, (son of Nathaniel Mair and Jean, née Alexander, who m in Turriff, Aberdeenshire on 27 May 1737) and had issue,
NASSAU JOHN SENIOR (b 2 Feb 1822; d 29 Aug 1891, memorial St. Mary Abbots, Kensington), barrister, of Elm House, Lavender Hill, Battersea and later of 98 Cheyne Walk, Chelsea. Educated at King's College School, London and Christ Church College, Oxford. A student at Lincoln's Inn in 1844, he was called to the Bar in 1847; secretary of commissions (to Lord Chancellors) 1852-60; assistant boundary commissioner 1867; revising barrister Westminster, Kensington and Hackney 1868-69. He was an equity draftsman and conveyancer who had chambers at various locations within Lincoln's Inn, such as 2 New Square in 1848 and 10 New Square in 1850. By 1855 he had moved outside the Inn and was at 12 Southampton Row. By 1860 no chambers were listed so he seems to have ceased practicing until about 1877 when he reappears listed at 8 Quality Court, Chancery Lane, until 1880. See his portrait as a young boy by Sir Thomas Lawrence. He m 1848 Jane Elizabeth (1828-1877), humanitarian, daughter of John Hughes, JP, of Donnington Priory (see lineage of Hughes below and BLG 1847 under 'HUGHES OF DONNINGTON PRIORY') and had issue an only child,
Walter Nassau Senior (1850-1933) modelled for the young boy in 'The Rescue' (1855) by John Everett Millais (National Gallery of Victoria). See the full picture below.
WALTER NASSAU SENIOR (b 16 Mar 1850 at Donnington Priory, Newbury, Berks; d 20 Oct 1933), barrister, of 98 Cheyne Walk, London (until 1904); 12 Chichester Terrace, Brighton (until 1912), Branksome, Saffrons Rd, Eastbourne (until 1920) and then 50 St. John's Rd, Eastbourne and also of The Haven, Heatherwood Park Road, Totland, Isle of Wight (until 1924). Educated at Rugby and University College, Oxford. Student at Lincoln's Inn in 1871, called to the Bar in 1875. He was an equity draftsmen and conveyancer who had chambers in Lincoln's Inn at 2 Old Buildings in 1880 and 21 Old Buildings by 1885 (Foster's 'Men-at-the-Bar' lists him at 21 Old Square). From 1890 he does not have a chambers address so presumably ceased to practice. He m 27 Oct 1887 Mabel Barbara (1864-1943), daughter of Hugh Hammersley, banker, sometime of Sun House, Chelsea; Cromwell Gardens, London and Warren House, Kingston-upon-Thames (see lineage of Ham(m)ersley below) and had issue, with a daughter, Jennie (b 8 Oct 1896; d 27 Oct 1896) an only son,
OLIVER NASSAU SENIOR, BA, ARICS, farmer and Chartered Surveyor, late of Park Manor, 8 St. Aldhems Road, Branksome Park, Poole, Dorset (1985-92); 12 Minterne Grange, Crichel Mount Rd., Lilliput, Poole, Dorset (1971-1985); Purbeck Cottage, Chaddesley Glen, Poole, Dorset (1959-1971); Ardencote, Alington Rd., Poole, Dorset (1955-59); 24 Northmoor Road, Oxford (1946-1955); Belmont House, Thame, Oxon (1936-1946); 25 Newton Court, Church St., Kensington (1935-1936); Mill Dene, Eastbourne Road, Seaford, Sussex (1931-1935); Cambridge (1930-1931); Tideways, Bosham, Sussex (Winter 1929); The Bough Farm, Burwash Common, Sussex (1925-1929); b 28 Nov 1901 at 98 Cheyne Walk, Chelsea, London; educ St. Peter's, Chesterfield Rd., Eastbourne 1912-15; Haileybury 1915-17, Eastbourne College (changed school following a bout of double pneumonia) 1917-19; Studied for Responsions for Oxford at a private crammer in Eastbourne 1919-20; Univ. College, Oxford (B.A. Agric.) 1921-24; Farming pupil at Iford Farm (prop. J & H Robinson), Sutton House, Iford, nr. Lewes, Sussex (1924-25); Farming in Burwash, Sussex 1925-29; Studied crop husbandry, Cambridge 1930-31; Served articles (ARICS 1933) with Powell & Co., Lewes, Sussex 1931-35; Working independently in London 1935-36; Land Agent for E H Dashwood Esq, Aston Rowant Estate, Oxon 1936-38; Asst. Land Agent, HQ Eastern Command, London 1938-40; Asst. Land Agent, War Dept., Oxford 1940-46; Senior Asst. Land Commissioner, Min. of Ag., Gloucester 1946-48; Asst. Bursar, St. John's College, Oxford 1948-55; President Architecture & Surveying Institute 1934; m 8 Sep 1927 Dorothy (b 31 May 1904; d 27 Dec 1987), sometime secretary to Rudyard Kipling at Bateman's (Burwash, East Sussex), daughter of Herbert Heaton Gardner-Smith (1869-1922) and Annie Elizabeth née Pierce (1874-1918); d 30 Jun 1992 having had issue,
The arms of Senior (or Coronel) in England (left), Holland and Germany (second left), Portugal (third left) and Spain (right)
Arms: Gules, five eagles
displayed argent in saltire, the middle eagle crowned or,
on a bordure argent seven fleur-de-lys azure.
These are the arms attributed to Coronel in Spain. They differ from the original arms of the main Coronel family, which became extinct on the death of the three daughters (Aldonza, Mayor and Maria) of Alfonso Fernandez Coronel, Lord of Aguilar (Aguilar de la Frontera - thus 'Lord of the Eagle of the Frontier'), who was executed by King Pedro the Cruel in 1353. These arms can be seen on the tomb of Dona Maria Alfonso Coronel (d 1332), aunt of Alfonso Fernandez Coronel (x 1353) and wife of Don Alonso Pérez de Guzmán ('El Bueno'), ancestor of the Dukes of Medina-Sidonia, in the Monastery of San Isidoro del Campo in Santiponce, Seville.
Tomb of Maria Alfonso Coronel (d 1332) in the Monastery of San Isidoro del Campo in Santiponce, Seville. The Coronel arms of five eagles dispayed appear to have a field of gold and the eagles are probably black, blue or red. The larger arms are those of Guzman, Dukes of Medina-Sidonia.
The arms of Coronel on a column in the inner courtyard of a house (no. 17) in Calle del Portal Mayor, Siguenza. In these arms the coronet ('coronel') is placed above the eagles rather than on the head of the middle eagle. It is likely that the bordure argent with seven fleur-de-lys azure was added to the original arms as a mark of difference.
The arms of Coronel (five eagles with a bordure with seven fleur-de-lys), on the right, impaling the arms of Zapata (five shoes with a bordure with seven escutcheons, or a bend sable), on the left. The coronet can be clearly seen on top of the shield. This was on the front of a house at 6 Calle Palacio, Almazan (Teógenes Ortego, 'Almazán, ilustre villa soriana', Soria, 1973, page 28). This building is just behind the Palacio Mendoza.
Arms (of Coronel, formerly
and latterly Senior): Azure, five eagles displayed or in
saltire, the middle eagle crowned or.
Isaiah 46:11 - 'From the east I summon a bird of prey; from a far-off land, a man to fulfill my purpose. What I have said, that will I bring about; what I have planned, that will I do.
As granted in 1499 by King Manuel I of Portugal to Nicolao Coronel, Physician to the Royal Family, who appears to have accompanied Maria, daughter of Ferdinand of Aragon and Isabella of Castile, into Portugal on the occasion of her marriage to Manuel I in 1497 (Arquivo Nacional da Tore do Tombo, Liv 4 de Misticos, fls 165 verso e Chanceleria de D. Manuel, Liv 16 fls 108 verso). These arms, together with hereditary nobility, were later granted to a number of Don Abraham's descendants, both in the male and female lines*, in right of their descent from him, by which hereditary right they were 'Fidalgos de Cota d'Armas', literally 'Noblemen with a coat of arms' (See 'Anuario da Nobreza de Portugal', 1985, Vol. 1, p. 114 under 'Penafiel, Marquis of').
*Luiz Gomes d'Elvas
Coronel (1600 and 1607 - charter of nobility as a
descendant of Don Abraham Senior)
Arms (of Senior - as
granted to Ascanius William Senior and the descendants of
his father in 1767): Per fess, gules and azure, a fess
ermine between, in chief, two lions heads erased or and,
in base, a dolphin naiant embowed argent.
"Take this at
least, this last advice, my son,
Holland and Germany:
Arms: Quarterly, 1st and
4th, gules a lion rampant or (for Senior), 2nd and 3rd,
gules a tree vert upon a terrace (for de Mattos).
Note also that Diego Teixeira Sampayo (Abraham Senior Teixeira) was ennobled in 1643 at Anvers (Antwerp) and granted arms as follows: Quarterly, 1st and 4th, or an eagle displayed purpure; 2nd and 3rd, checky or and sable (sixteen fields); bordure gules, charged with eight "S's" argent and for the crest five ostrich-plumes, sable, or, gules, argent, sable. (Source: Rietstap, 'Armorial Général, Precedé d'un Dictionnaire des Termes du Blason', 2nd ed., 2 vols. Gouda, 1887, vol. ii, p. 891; Rietstap, 'Wapenboek van den Nederlandschen Adel', vol. ii, p. 87). These are the arms of the Marquises of Sao Payo in Portugal, who are apparently of Jewish origin.
The Tree of Jesse (Getty Ms, Ludwig IX, 18 f65, 1510-20) - King David can be seen playing his harp below and to the right of the Virgin and Child.
As Professor Haim Beinart has stated in 'The Expulsion of the Jews from Spain' (p. 420), Don Abraham Senior was referred to in a letter of 1487 from the Jews of Castile to the Jews of Rome and Lombardy as 'the Exilarch who is over us'*. 'Exilarch' means 'Prince of the Captivity' or 'Head of the Exile'** (that is, de jure King of the Jews in exile), a title dating from the Babylonian Exile of 597-538 BC which appears to have survived in Mesopotamia until Tamerlane the Great sacked Baghdad in 1401. The title was hereditary in and exclusive to the House of David (see I Chronicles iii. 17 et seq. and II Kings xxv. 27) but was elective amongst the immediate male members of that family and subject to rabbinic approval. Given the fact that the title appears never to have been accorded to (or used to describe) anyone not acknowledged by rabbinic authorities to be of Davidic descent, and that the misuse of such a title would have been most unlikely, given that the Bible/Torah restricts the title to the House of David (see above), it is reasonable to infer that Don Abraham was descended from one of those branches of the House of David that have been traced to Spain (see the Jewish Encyclopaedia under 'Exilarch') and that the title was accorded to him in an attempt to revive the Exilarchate after it had ceased to be recognised in Mesopotamia, as happened in Egypt in 1081 during an interregnum. According to my mother, when she was a young girl an American gentleman approached my grandfather with proof that he was descended from King David but my grandfather did not pursue the matter.
*'shall not turn away the tribe of Judah, he the Exilarch who is over us'. A translation of the same letter of 1487 appears in 'Spain and the Jews' edited by Elie Kedourie (page 70) and refers to 'the staff from Judah that is our Exilarch'. If this translation is correct then this would mean that the letter of 1487 contains a clear and unequivocal statement (to Jewish readers at least) to the effect that Don Abraham was 'ruler of the Jews' ('staff') 'of the House of David' ('from Judah'; that is the Royal House of Judah, otherwise the House of David) in accordance with the Blessing of Jacob (Genesis 49:10): The sceptre shall not depart from Judah, nor the rulers staff from between his feet, until tribute comes to him; and to him shall be the obedience of the peoples. Genesis 49:10 is variously translated as:
Broadly speaking then Genesis 49:10 can be translated as 'The kingship will continue in the House of Judah until the coming of the Messiah' and, on this basis, the words 'staff from Judah' mean 'Prince of Judah' or 'King of Judah'.
**The 10th century writer, Nathan ha-Babli, is quoted in the Jewish Encyclopedia as referring to 'our prince, the exilarch', making it clear that the Exilarch was regarded as the prince of his people.
Inside the Chapel of the Descent (Capilla del Descendimiento) established by Don Abraham Senior at the Monastery of Santa Maria del Parral, Segovia and where he is buried. The arch on the right has the Coronel coat of arms either side of what is clearly a tree - the Tree of Jesse. Many members of the Coronel family are buried here, including Don Abraham Senior's grand-daughter, Maria Coronel, second wife of the popular Spanish hero, Juan Bravo.
A possible line of descent is from Abraham 'Nasi' ('Nasi' means 'Prince of the House of David'), apparently ancestor of several Marrano families, son of Hiyya Ha-Nasi, who was born in Spain, son of David (d 1092), 39th Exilarch of the 3rd dynasty***, who temporarily fled to Spain in 1040 when his father, Hezekiah, 38th Exilarch, was imprisoned by the Caliph of Baghdad (Hezekiah was later executed in 1058). Hezekiah was 117th Exilarch in succession to Jeconiah (d 559 BC), 1st Exilarch and penultimate King of Judah of the House of David, who, in 597 BC, was taken by Nebuchadnezzar as a captive to Babylon. Alternative possible lines of descent are from Nissim, 69th Exilarch, who was deposed in 1295 and went to Spain, and Issac Alfasi (d 1103), descended from Azariah, 34th Exilarch, who fled to Spain in 1088. Note that the surname 'Senior' is derived from the Spanish 'senor', that is 'sire' or 'lord', which may, in turn, be a translation of 'Nasi'; thus, Abraham Senior would mean Abraham 'Senor' (in fact the name was often spelled 'Senor'), that is Abraham 'Nasi', that is Abraham the Prince [of the House of David] - but this is speculation. 'Coronel', the surname adopted by the Senior family in 1492, means 'coronet' (used today to denote the rank of 'colonel'). It appears ('Spain and the Jews', p.68) that Don Abraham signed his name simply 'Abraham', without a surname, which might indicate that 'Senior' was not a surname but a title or nickname derived from a title. A prominent branch of the family in Portugal, the Counts and Marquises of Penafiel, adopted the surname 'Da Mata Coronel'. 'Da Mata' means 'of the bush' but a common variant of 'mata' in Portugal is 'matos', which in Hebrew means 'tribe'. Thus 'Da Mata Coronel' might be intended to mean 'the crown of the tribe' - but, again, this is speculation.
***Various sources give different numberings.
The 12th century writer, Rabbi Benjamin of Tudela (Spain), describing his visit to Baghdad in his 'Book of Travels' (1173), noted that Daniel, 52nd Exilarch of the 3rd dynasty (reigned 1150-74), who he described as 'Our Lord the Head of the Captivity of all Israel', and who was the great-great-grandson of David, 39th Exilarch (above), had 'a book of pedigrees going back as far as David, King of Israel'; this pedigree was clearly accepted as authentic by both the rabbinic authorities of the time and the Jewish people at large. While the pedigrees of the Exilarchs undoubtedly contain errors, inconsistencies and even some spurious entries, this does not mean that such pedigrees cannot be regarded as historical or cannot point to a fundamental historical truth, which is that for a period of around 2000 years (597 BC to 1401 AD), and almost reaching into the modern era, though not continually throughout that period, there was a dynasty of rulers of the Jews acknowledged by both the rabbinic authorities and the Jewish people at large, and indeed by the Caliphs and others under whose rule the Jewish people lived, to be not just of Davidic descent but rightful heirs to the throne of David. According to Benjamin of Tudela, when the Exilarch went to visit the Caliph the heralds announced his coming with the words "Make way for our Lord, the Son of David." ("Amilu tarik la Saidna ben Daud."). As David Einsiedler stated in his article 'Descent From King David - Part II' ('Avotaynu: The International Review of Jewish Genealogy', 1993, Vol. IX, No. 2, page 34) 'Genealogists who value religious tradition could say that our rabbis and sages did not make statements about Davidic descent lightly, that they were trustworthy and insisted on truth.'
The Babylonian Exilarchate had been seated (in an official rather than physical sense) at Baghdad since the 8th century AD, having moved, it appears, from Babylon to Seleucia on the Tigris in the 4th century BC, following the founding of that city in around 305 BC by Seleucus Nicator (c 358-281 BC), one of the generals of Alexander the Great (356-323 BC); to Ctesiphon in the 2nd century AD, after Seleucia was burned by the Emperor Trajan (53-117) in 117 AD; to Damascus after 637 when Ctesiphon was sacked by Umar (d 644), 2nd Caliph and Companion of the Prophet Mohammed (d 632), during the Arab conquest of Persia; to Baghdad after 750 when the Umayyad caliphate was overthrown by the Abbasids at the Battle of Zab. Note that Babylon, Seleucia, Ctesiphon and Baghdad are all in the same vicinity, so that it appears that the physical seat of the Exilarchs remained in the same place, even during the period when political power briefly shifted to Damascus. The physical seat of the Exilarchs seems to have been at Nehardea from the time of Jeconiah, at Sura from the beginning of the 5th century AD and then at Pumbedita from the end of the 8th century until the fall of Hezekiah, 38th Exilarch and last gaon, in 1040; after that the Exilarchs seem to have been seated at Baghdad. The Exilarchate survived the sack of Baghdad by Hulagu Khan (1217-1265), grandson of Genghis Khan (c 1162-1227) and destroyer of the Caliphate, in 1258 (although it is said 800,000 people were killed, the Jews were specifically spared) and the later collapse of the Mongol Khanate of Persia after 1335 into a motley of successor dynasties, including the Jalayirids (whose capital was at Baghdad), the Muzafarids, the Eretnids, the Sarbadarids and the Karts. Indeed, from the destruction of the neo-Babylonian Empire by Cyrus the Great in 538 BC to the sack of Baghdad by Tamerlane the Great in 1401 AD, a period of nearly 2000 years, the Exilarchate survived the violent collapse of 11 empires****, namely:
Baghdad was subsequently ruled by Shah Rukh, son of Tamerlane the Great, from 1401 to 1410, the Qara Quyunlu or Black Sheep Turkmen (1410-1469), the Aq Quyunlu or White Sheep Turkmen (1469-1508), the Safavids (1508-1534), the Ottoman Turks (1534-1917), the British (1917-1921) and the Hashemite dynasty (1921-1958). Although Tamerlane the Great ended the 'official' recognition of the Exilarchate after he sacked Baghdad in 1401, it appears that the line of Exilarchs continued to be acknowledged by the Jewish community in Baghdad until the death of the last heir of that line, Pasha, called 'King of the Jews', in 1825, after which the heirship passed to the Dayan family, descended from a house of Palestinian Princes. Pasha (d 1825) was descended from Chizkiya, 45/47th Exilarch (reigned 1092-94, 1096-97), elder brother of Hiyya Ha-Nasi above. The Dayan family are descended from Josiah, 27th Exilarch (reigned 930-933), younger brother of David 26/28th Exilarch (reigned 921-930, 933-940), who was the great-great-grandfather of Hezekiah, 38th Exilarch, mentioned above.
****'The Egyptian, the Babylonian, and the Persian rose, filled the planet with sound and splendor, then faded to dream-stuff and passed away; the Greek and the Roman followed, and made a vast noise, and they are gone; other peoples have sprung up and held their torch high for a time, but it burned out, and they sit in twilight now, or have vanished. The Jew saw them all, beat them all, and is now what he always was, exhibiting no decadence, no infirmities of age, no weakening of his parts, no slowing of his energies, no dulling of his alert and aggressive mind. All things are mortal but the Jew; all other forces pass, but he remains. What is the secret of his immortality?' - Mark Twain
It is asserted that the first properly historical (that is provable from historical evidence outside the Bible) Exilarch was Nahun (reigned 140?-170 AD). Earlier Exilarchs, based on the genealogies in the Bible (I Chronicles iii. 17 et seq.*****), are regarded by some authors as legendary, mainly on the basis that the Josephus does not mention the office******. However, while earlier Exilarchs might well have been 'legendary' in the sense that they were not officially recognised as Exilarchs, this does not mean either that they are 'legendary' in the physical sense, that is that the individuals recorded in the genealogies never existed, or that they were not Exilarchs (the heirs of King David) by right of blood. No such conclusion can be drawn from Josephus.
*****The Biblical Exilarchs (I Chronicles iii 17-24)
17 And the sons of
Jeconiah; Assir, Salathiel his son,
******'that these Biblical Exilarchs are legendary is obvious from the fact that Josephus does not mention the institution' - Goode, Alexander D., 'The Exilarchate in the Eastern Caliphate, 637-1258', 'The Jewish Quarterly Review', New Ser., Vol. 31, No. 2 (Oct., 1940), p. 149. This is not correct. Josephus, in his 'Antiquities of the Jews', book XI, chapter 3, para 10, says 'and the governor of all this multitude thus numbered [being the Jews who Cyrus the Great allowed to return to Jerusalem] was Zorobabel, the son of Salathiel, of the posterity of David.' So Josephus does in fact refer to one of the individuals mentioned in I Chronicles iii 17-24 and it is clear that this person was the ruler of the Jews and of Davidic descent. Though not actually referred to by the title 'Exilarch' it is clear that Zorobabel was ruler of the Jews in exile, that is a de facto exilarch (since 'exilarch' means 'ruler in exile'), since he is referred to as 'Zorobabel, the governor of the Jews' (book XI, chapter 1, para 3). Thus, we have, on the basis of Josephus, a de facto historical exilarch over 600 years earlier than is often asserted.
Note, in this context, that the title of 'Pope' was first used in the third century but no-one has claimed as a consequence that the heads of the Catholic Church in Rome before that period should not be described by that title.
Sir Iain Moncreiffe of that Ilk (1919-1985), Albany Herald of Arms (Court of the Lord Lyon), writing in 'Books & Bookmen', February-March 1976, wrote: 'What's already known is that the Jews in exile in Asia were ruled under the Persian and later the Arab empires by 'Princes of the Captivity' called 'Exilarchs', with a genealogy claiming descent by at least the second century from the Royal House of David, probably with justification because it was based on their acceptance.' (Quoted from 'Lord of the Dance', London, 1986, Hugh Montgomery-Massingberd, p. 155).
In addition to the Babylonian Exilarchs there were several dynasties of Palestinian Princes, that is dynasties of princes in Palestine of Davidic descent, who maintained what appears to have been an intermittent authority parallel but subsidiary to the Babylonian Exilarchs, whose suzerainty they seem generally to have acknowledged. The existence of two parallel dynasties of secular rulers reflected the fact that there were two main centres of world Jewry at that time, namely Babylon/Mesopotamia and Judea; there was a similar parallel arrangement in religious affairs, namely between Jerusalem and the great Babylonian academies of Sura and Pumbedita.
There would have been numerous other descent lines of course; those listed are those that rose to prominence in Judea/Palestine.
Alexander Goode, writing in his article, 'The Exilarchate in the Eastern Caliphate, 637-1258' ('The Jewish Quarterly Review', New Ser., Vol. 31, No. 2, Oct. 1940) states that Samuel b. David (1240-1270?) was the last Exilarch in the unbroken line of Exilarchs in Baghdad but he acknowledges that the Exilarchate may have continued until 1401 when Tamerlane definitely put an end to organized Jewish life in Baghdad. Goode accepted that the Exilarchate may have continued until 1401 in Baghdad partly on the basis that we hear of a Nasi Sar Shalom b. Pinhos, a descendant of Josiah b. Zakkai, being accepted as Exilarch in Baghdad in 1341. The point is that if Goode was prepared to accept that the Exilarchate may have continued in Baghdad after 1258 on this basis, should we not also accept that the Exilarchate may have continued in Spain after 1401 on the basis that we know that Don Abraham Senior was described as Exilarch in 1487 in a letter from the Jews of Castile to the Jews of Rome and Lombardy; to all intents and purposes an official communication. Given that the Jews had maintained and supported a dynasty of Davidic rulers for 2,000 years through the violent collapse of 11 empires, were they likely to simply abandon that institution in 1401, an institution central to their history, way of life and religious beliefs? The question hardly needs to be asked.
The evidence therefore indicates that Don Abraham Senior was of Davidic descent but this cannot have been unique amongst the leading families of the Sephardim, who formed a closely-related and exclusive elite. Various Sephardic families claim Davidic descent, including those of Abravanel/Abarbanel, Shaltiel and Benveniste, and in respect of the two latter at least there are published pedigrees tracing their Davidic descent; a tombstone dated 27 August 1097, now in the Museo Sefardi in Toledo, records the death of a Rabbi Shemuel bar Shealtiel ha Nasi. It is possible that the title of Exilarch was accorded to Don Abraham Senior in an attempt to resurrect the Exilarchate in Spain after it had ceased to be recognized in Mesopotamia, but this only lasted until the Jews were expelled from Spain in 1492. After that, it would seem, there was no Jewish community of sufficient size, stability or prestige to allow for the resurrection of the Exilarchate, until 1933 that is. Note that there was a historical precedent for attempting to establish the Exilarchate outside Mesopotamia. This happened in Egypt in 1081 when David ben Daniel, a descendant of the house of Exilarchs, was proclaimed Exilarch by the rabbinic authorities of that country; the attempt ended with his downfall in 1094.
This would appear to be the most common sense solution to the question of why we find the title of 'Exilarch' being used in Spain at that time. Further, the existence of families of Davidic descent in Spain at that time should not be viewed as extraordinary, given that there was such a dynasty in Palestine at that time; indeed, the absence of such families from Spain would have been a far greater oddity given the long-standing prominence of the Jewish community in that country.
beauty and gladness of the world,
'To Zion' - Judah Ha-Levi (1085-1140)
HUGH HAMERSLEY, a sporting clergyman, of Cadeby Hall, Wyham cum Cadeby, Ludborough, Lincs, is believed to have been a grandson of Sir Hugh Hamerlsey (b 1565; d 1636), Lord Mayor of London 1627, a descendant of an old Staffordshire family originally called de Homersley, see DUCAT-HAMERSLEY OF PYRTON MANOR (BLG) - see note below; b 1663; educ Peterhouse College, Cambridge (admitted 31 May 1680 aged 16 and MA 30 Jun 1687); Chaplain to William III; Honorary Secretary to the Archbishop of Canterbury; Vicar of Roxby, Lincs from 1687; Rector of Broughton, Lincs from 1694; m Mary (b 1688; d 1718), daughter of John Pye of Cadeby Hall, and d 1714 having had issue,
Sir Hugh Hamersley (1565-1636), Lord Mayor of London 1627. This is the famous 'Ashbourne Portrait' which was believed for many years to be a portrait of Shakespeare ('the Mona Lisa of Shakespeare portraits'). See 'Shakespeare Matters', vol.1, no.1; vol. 1, no. 2 and vol.1, no. 3. Oxfordians have suggested that this portrait has been tampered with by Stratfordians to remove evidence which indicates that the portrait is of Edward de Vere, Earl of Oxford (who the Oxfordians believe was Shakespeare) and add elements (particularly relating to the coat of arms at the top-left of the portrait) to support the assertion that the portrait is of Sir Hugh Hamersley.
Cadeby Hall, Ludborough, Lincs
HUGH HAMMERSLEY, solicitor, of Cadeby Hall, Ludborough, Lincs and Ouslethwaite Hall, Worsbrough, Yorks, the first to spell his name with a double 'm'; b 1706; Solicitor in Doncaster, of which town he became Mayor; m 1stly 1728 Elizabeth (d 1734), daughter of William Wade, Town Clerk of Doncaster, by whom he had three daughters, including Sarah who survived him; m 2ndly 1743 Elizabeth (d 11 Mar 1759 aged 39), daughter of Thomas Archdale of Ouslethwaite Hall, and d 2 Dec 1757 having had issue,
Thomas Hammersley (1747-1812), banker to the Prince Regent.
THOMAS HAMMERSLEY, banker to the Prince Regent and other members of the Royal Family, of Cadeby Hall, Ludborough, Lincs and Ouslethwaite Hall, Worsbrough, Yorks, which estates he sold; b 1747; educ Trinity College, Cambridge; joined Herries, Farquhar & Co., bankers, of St. James St., London (which firm became part of Lloyds Bank Ltd in 1893) on its formation in 1772; founding partner in 1786 of Ransom, Morland, Hammersley & Co. of 57 Pall Mall, which firm he left in 1796 to become a founding partner of Hammersley, Montolieu, Brooksbank, Greenwood, Drewe & Co. of 76 Pall Mall, which firm became Hammersley, Greenwood, Drewe & Co. in 1806, Hammersley, Greenwood, Brooksbank & Co. in 1823, when the firm moved to 69 Pall Mall, and Hammersley & Co. in 1832 (on the death of Hugh Hammersley, his eldest son, in 1840 the firm was taken over by Coutts & Co); m 1771 Anne (d 1822), daughter of Rev. Francis Greenwood, Rector of Higham Ferrers (of the family of Greenwood of Stapleton Park, Pontefract, Yorkshire, a branch of the family of Greenwood of Greenwood Lee, Heptonstall, Yorks.) and sister of Charles Greenwood (1748-1832), partner of his brother-in-law, Thomas Hammersley, who was also a partner of Cox & Co., founded 1758, of Craig's Court, Whitehall, bankers and army agents (see his portrait by Sir Thomas Lawrence); Anne Greenwood was descended from Edward I through the families of de Clare (Earls of Gloucester and Hertford), de Audley (Earls of Gloucester), de Stafford (Earls of Stafford), de la Pole (Earls of Suffolk), Morley (Lords Morley), Hastings of Gressenhall, Hildyard of Winestead-in-Holderness, Girlington of Frodingham, Kelke of Barnetby and Farrer of Ewood Hall, Mytholmroyd, Yorks. It is related that when Frederick, Duke of York (1763-1827), introduced Charles Greenwood to his father, George III, as "Mr. Greenwood, the gentleman who keeps my money", the army agent ventured to remark "I think it is rather his Royal Highness who keeps my money", a rejoinder which greatly delighted the old King. "Do you hear that? Frederick, do you hear that? You are the gentleman who keeps Mr. Greenwood's money"; he d 1812 having had issue, with four sons and three daughters who died young,
CHARLES HAMMERSLEY, banker, of Park Crescent, London; b 7 Oct 1782; educ Eton; Senior partner of Cox & Co., bankers and army agents, of Craig's Court, Whitehall; m 1809 Emily Poulett-Thomson, daughter of John Buncombe-Poulett-Thomson, of Waverley Abbey House, Farnham, Surrey, senior partner of Thomson, Bonar & Co., of London and St. Petersburg, Russia merchants, see SYDENHAM B. (Burke's 'Dormant and Extinct Peerages') and HUNTINGFIELD OF HEVENINGHAM HALL B., and d 1862 having had issue,
Warren House, Kingston-upon-Thames
HUGH HAMMERSLEY, banker, sometime of Sun House, Chelsea; Cromwell Gardens, London and Warren House, Kingston-upon-Thames; b 15 Mar 1819; educ Eton; Partner of Cox & Co., bankers and army agents; m 23 Jan 1856 Dulcibella Eden (d 1903), daughter of Arthur Eden (1793-1874) of Harrington Hall, Spilsby, Lincolnshire, Assistant-Comptroller of the Exchequer, see EDEN OF WINTON B., and Frances Baring (d. 1877), see NORTHBROOK B., née Poulett-Thomson, see SYDENHAM B. (Burke's 'Dormant and Extinct Peerages'); Charlotte Rosa Baring, her younger daughter by her first marriage to William Baring (1779-1820), was the 'Maud of Tennysons poem of that name (Rader, R. W. Tennysons Maud: The Biographical Genesis, UCP, 1992); d 28 Sep 1882 having had issue,
Charlotte Rosa Baring, younger daughter of William Baring (1779-1820) and Frances Poulett-Thomson (d. 1877). She was the inspiration for Tennyson's 'Maud'. The garden in that poem is the garden of Harrington Hall, Spilsby, Lincolnshire; the 'Eden where she dwelt' in Tennyson's poem 'The Gardener's Daughter'.
Dulcibella Eden (d 1903), half-sister of Charlotte Rosa Baring (above), grandmother of the 12th Duke of Leeds, great-grandmother of the 7th Duke of Sutherland.
Arms (of Sir Hugh
Hamersley): Gules, three rams heads couped or. The arms
granted to Thomas Hammersley (1747-1812) in 1803 were
gules, three rams heads couped erminois.
Note: Hugh Hamersley (1663-1714), Vicar of Roxby, may have been the great-grandson of Sir Hugh Hamersley (1565-1636) via his third son, William (1617-1676), rather than his grandson via Sir Hugh's second son, Francis (1613-1659), as is generally thought (Francis is often stated to have died in 1665). According to Burke's 'Landed Gentry' this William married an Elizabeth Cogan (1626-1706) in 1660 and had a son called Hugh (1663-1718, but 1646-1692 according to Boyd's 'Inhabitants of London'), ancestor of the Ducat-Hamersley family of Pyrton Manor. However, there is a record of a Hugh Hamersley who was born 25 Dec 1642 at Kencott, Oxon. Given the 1660 marriage of William and Elizabeth (which may be the wrong date), I believe that this Hugh might be the son of William (1617-1676) by an earlier marriage (i.e. before his marriage to Elizabeth Cogan) and that he (Hugh b. 1642) might have been the father of Hugh (1663-1714), ancestor of the 'London Hammersleys'. I believe that Hugh (b. 1642) may have married a Katherine Finch in Cambridge (St. Mary the Great) on 3 Dec 1662 and that this Katherine may be the Katherine who died in Roxby, Lincs. (where Hugh (1663-1714) was Vicar) in 1699. A Hugh Hamersley, son of a Katherine and Hugh Hamersley was Christened at St. Botolph Without, Aldersgate, London, on 29 Nov 1663. I believe that Hugh (b. 1642) may have married a second wife, Anne Preston (b. 1656) on 22 Dec 1671. Both of Sir Hugh's two elder sons, Sir Thomas (dsp 1651) and Francis (died without issue in 1659 according to Boyd's 'Inhabitants of London' - and his will does not mention any children), seem to have died without issue. Note that the birth date of 1646 may refer to the will of Mary Hamersley, wife of Sir Hugh, so that 1646 means 'mentioned in a will of 1646' but possibly actually born in 1642 (25 Dec) as above.
US branches of the family are in blue
Bookplate of Margaret Hughes (1797-1887) of Donnington Priory, Berks.
The progenitor of this family, Mwyndeg Hughes of Liverpool (d 1712), was the son of a Mr. Hughes of 'Gelle Fawlor' (recte 'Gelli-ffowler'), near Ysceifiog in Flintshire. The family appears to be a branch of the Hughes family of Pant Gwyn, Ysceifiog, who were descended in the male line from Edwin (d 1073), Prince (sometimes referred to as King) of Tegeingl (that is the commotes of Rhuddlan, Coleshill and Prestatyn), founder of the 12th Noble Tribe of Wales, through an ancestor of the same name, Mwyndeg, whose pedigree is given in 19th century Hughes family papers (based on research carried out in the 'Shrewsbury records' by a Mr. Morris) as:
* 'ap' means 'son of'
The descent of Bel ap Daffydd Lloyd from Madoc Dhu ('the Black') (d before 22 Apr 1301*), Lord of Copa'r Goleuni, or 'The Hill of Light' (Gop Hill, Trelawnyd, legendary burial site of Boudica), is confirmed by a memorial stone to Bell Lloyd (d 1589), second of that name, being the grandson of Bel ap Daffyd Lloyd above, in the churchyard of St. Michael and All Angels, Trelawnyd, nr. Prestatyn**. The descent of Madoc Dhu from Edwin is given in public sources, though it is now thought that Aldud may have been an adopted, not natural, son of Owain ap Edwin - possibly a kinsman of Gruffyd ap Cynan, Prince of Gwynedd (d 1137)***. Edwin was the son of a Saxon princess, Ethelfleda or Aldgyth, daughter of Edwin, Earl of Mercia, and he appears to have acquired Tegeingl as his inheritance out of the pre-Conquest Earldom of Mercia; the identity of his father is uncertain. Various families who are descended from Edwin, including Wynn of Copa'r Leni and Hughes (originally named Pennant it seems) of Terfyn, owned land within Tegeingl into modern times, and some may yet remain, making them possibly the longest-established landowners in the country. See Meyrick, Sir Samuel Rush, 'Heraldic Visitations of Wales and Part of the Marches', London, 1896, Vol. 2, p. 299 for Wynn of Copa'r Leni and p. 305 for Pennant of Tre'r Ffynon. Mwyndeg ap Bell is shown on p. 297 where Edward ap Hugh ap Rhys ap Mwyndeg marries Janet Conway of Bodryddan.
Gop Hill or 'The Hill of Light', legendary burial site of Boudica (under a cairn called 'The Hill of Arrows' - where many ancient arrowheads have been found) and spiritual home of the Hughes family, from the south. The village is Trelawnyd. Apparently, it is possible, on a clear day, to see both Ireland and Scotland from top of Gop Hill (842 ft).
*The date Madoc Dhu's son Gruffyd paid homage to Prince Edward, later Edward II, as Earl of Chester.
**The engraving reads: 'DYMA LLE MAY YN GORFETH BELL LLOYD AP EDWARD AP BELL AP DD AP DD [AP] KENDRICK AP EVAN AP GRIFFETH AP MADOCK DDV A FV FAROW Y 8 DYDD OF YES MAI ANNO DO 1589'. Bell Lloyd was of the family of Lloyd of Henfryn (Henfryn is about 2km SW of Trelawnyd).
Memorial stone of Bell Lloyd dated 1589. At the bottom of the picture is the top portion of a rendering of the arms of Madoc Dhu (see illustration below). Newmarket has now been renamed Trelawnyd.
***The Peniarth Ms 131, written by Ieuan Brechfa about the year 1500, tells us that Aldud 'held all of Tegeingl by spear and sword for three years over a grievance with its Lord, for which act he then received a pardon from the king'; this must have been the three years following 1125 when Cadwallon ap Gruffudd ap Cynan killed three sons of Owain ap Edwin when they refused to accept the overlordship of Gruffudd ap Cynan as Prince of Gwynedd. Note that Gruffyd ap Madoc Dhu, above, married Gwladys, daughter of Owain ap Bleddyn ap Owain Brogyntyn, son of Madog ap Maredudd (d 1160), Prince of Powys, whose wife, Susanna (daughter of Gruffudd ap Cynan, Prince of Gwynedd), was a great-granddaughter of Edwin of Tegeingl through her mother, Angharad, daughter of Owain ap Edwin of Tegeingl. This means that there is at least one line (and there are undoubtedly many more) from Jevan ap Gruffyd ap Madoc Dhu, above, to Edwin of Tegeingl as follows:
* 'ferch' means 'daughter of'
According to these 'Shrewsbury records', Thomas of Pant Gwyn, son of Mwyndeg ap Bel, above, married Janet, daughter of Gruffyd ap Dafydd ap Ithel Fychan, descended from Ednowain Bendew, founder of the 13th Noble Tribe. See Meyrick, Sir Samuel Rush, 'Heraldic Visitations of Wales and Part of the Marches', London, 1896, Vol. 2, p. 298 under Caerwys ('Keyrws'). He had issue Hugh, who married Agnes, daughter of Thomas ap Edward, sister of Morgan ap Thomas of Golden Grove (as stated in Burke's 'History of the Commoners of Great Britain and Ireland', 1835, under 'Morgan of Golden Grove'). He had issue Edward, of Ysceifiog, who was of the first generation of this family to adopt the surname of Hughes, and who may have been the father or grandfather of Mr. Hughes of 'Gelle Fawlor', father of Mwyndeg Hughes of Liverpool. This would make the descent of Edward Hughes from Edwin as follows:
that is 16 generations covering a period of about five and a half centuries.
Edward had a daughter, Mary, who married John Wynn of Llanverres(?), possibly modern Llanferres, who is not mentioned as Edward's heir, indicating that he had other issue. A relative of John Hughes (1790-1857) at the time, a Mrs. Foulkes, stated that the Hughes family were cousins of the Wynn(e) family of Coed Coch (nr Betws-yn-Rhos) 'making it probable that we came of this Edward Hughes, Mary Wynn's father', according to John Hughes.
Given that Mwyndeg Hughes of Liverpool was married in 1707, he was certainly born not later than the last quarter of the 17th century, that is 1675-1700, and possibly earlier, given that he died in 1712. His father, Mr. Hughes of 'Gelle Fawlor', was therefore probably born in the mid-1600s, that is 1650-1675. Thomas ap Mwyndeg ap Bel was of the same generation as the Bell Lloyd ap Edward ap Bel (both being grandsons of the same Bel ap Dafydd), who died in 1589, so it is not unreasonable to assume that Thomas' son, Hugh, could have lived into the first quarter of the 17th century, that is 1600-1625, which means that Hugh's son, Edward, could have lived into the next quarter of the 17th century, that is 1625-1650. On this basis, Edward, of Ysceifiog, could have been the father or grandfather of Mr. Hughes of 'Gelle Fowler'. See here for lists of the inhabitants of Ysceifiog in 1681 and 1686; there are several Hughes families amongst whom might be the Mr. Hughes of 'Gelle Fowler', but this requires further investigation (note that these lists show the name of the head of the household, the number of people in the household and the ages of all in the household under the age of 18).
In a note written in February 1856, John Hughes (1790-1857), explained: 'From the peculiar name of my great-grandfather [Mwyndeg] and his nativity at Ysceifiog I conceive that he belonged to these folk [the Hughes of Pant Gwyn].' He also wrote: 'Our a/c by Mrs. Foulkes and all my father ever heard as a boy was that Gelle Fawlor in that parish was the estate and house owned by our immediate people which they got out of some 150 years ago [i.e. around 1700].', so it is evident that the connection to Gelle Fawlor ('Gelli-ffowler') and Ysceifiog was family knowledge long before the research carried out by Mr. Morris in the 'Shrewsbury records'.
The name Mwyndeg appears only to occur in this branch of the Hughes family, though it is not unknown elsewhere, and means 'gentle and fair, tender, genial, affable'.
MWYNDEG HUGHES (d 1712), sea captain and merchant adventurer of Liverpool; born at Ysceifiog, son of a Mr. Hughes of 'Gelle Fawlor' (recte 'Gelli-ffowler')* in that parish; m 1707 at Chester, Elizabeth Wood, sister and co-heir of Thomas Wood of Hillingdon, of the 'Daily Advertiser', and had issue,
*According to local historian, Hazel Formby of Tan-y-Llan, Ysceifiog, Gelli-ffowler was ultimately acquired by Flintshire County Council and split into at least five farms.
THOMAS HUGHES (1710-1776), Clerk in Holy Orders; educ Trinity Hall, Cambridge; 'having narrowly escaped in his youth the consequences of a Jacobite plot in which several of the sons of the Welsh gentry were involved' (see Burke's 'Genealogical and Heraldic Dictionary of the Landed Gentry of Great Britain and Ireland', 1847, Vol. I, p. 612 under HUGHES OF DONNINGTON PRIORY), he became Headmaster of Ruthin School (Denbigh, North Wales) from 1739 and later Rector of Llanfwrog and Llansilyn; m Elizabeth (1720-1756, memorial in St. Peter's Church, Ruthin), daughter of Norfolk Salusbury of Plas-y-Ward, Denbigh, a branch of the family of Salusbury of Lleweni (see SALUSBURY OF LLEWENI, Burke's 'Extinct and Dormant Baronetcies'), who were descended from Maurice Wynn of Gwydir (d 1580), senior male heir of the Princes of Gwynedd, and Katheryn (Catherine) Tudor of Berain (d 1591), known as 'Mam Gwalia' or 'The Mother of Wales', grand-daughter, via her mother, Jane Velville, of Sir Roland de Velville (1474-1535), Constable of Beaumaris Castle, a natural son of Henry VII (according to the Dictionary of Welsh Biography), and had issue,
Kathryn Tudor of Berain (1534-1591), known as 'Mam Gwalia' ('The Mother of Wales') by Lucas de Heere (1568)
He m, secondly, Margaret Salusbury (or possibly Salesbury), cousin of his first wife, who d April 1799, aged 81
THOMAS HUGHES (1756-1833), Clerk in Holy Orders and a Doctor of Divinity, of Amen Corner, St. Paul's, London and Uffington, Berkshire; appointed tutor to the younger children of George III, namely the Dukes of Cumberland, Sussex and Cambridge, in 1777; Clerk of the Closet to George III and IV; Perpetual Curate of Putney (1788-1803); Prebendary of Westminster Abbey (1793-1807); Rector of Peasemore, Bucks (1801-1807); Chaplain to the Duke of Cumberland (1802); Rector of Turweston, Bucks (1802-1804); Prebendary of St. Paul's Cathedral (1807-1833); Residentiary Canon of St. Paul's (1807-1833); Vicar of Chiswick (1808-1809); Rector of St. Mary's, Cilcain, Flints (1809-1826); Vicar of Uffington, Berks (1816-1833); m Mary Anne (1770-1853), daughter of Rev. George Watts, Vicar of Uffington (d. 1810), son of Rev. George Watts, Vicar of Uffington, Chaplain to George II and Master of the Temple Church, son of Rev. Henry Watts, Vicar of Uffington; a friend of Sir Walter Scott she wrote 'Letters and Recollections of Sir Walter Scott' (Ed. Horace G. Hutchinson, London, Smith Elder, 1904); they had an only child,
'Squire Brown, J.P., for the County of Berks' - John Hughes (1790-1857), an illustration from 'Tom Brown's Schooldays'.
JOHN HUGHES (1790-1857), JP, author, artist, antiquarian, poet, (he wrote the poem from which the motto of the Grand National Archery Society was taken - 'Union, Trueheart and Courtesie'), of Uffington House, Uffington, Berks, later of Donnington Priory, Newbury, Berks (from 1833) and latterly of 7 The Boltons, West Brompton, London (from 1852) (see his entry in DNB); educ at Westminster and Oriel College, Oxford; author of 'Itinerary of Provence and the Rhone' (1822) and 'The Boscobel Tracts' (1830); he was 'Squire Brown', the archetypal English squire immortalised in 'Tom Brown's Schooldays', which was written by his second son, Thomas (see below); he m, firstly, Elizabeth Cook, who died in 1819, aged 22, having had issue a daughter, Henrietta Maria, who died in the same year, aged 6 months (memorial in St. Mary's, Uffington); he m, secondly in 1820, Margaret Elizabeth (1797-1887 at Rugby, Tennessee, where she moved in 1881 following the death of her daughter, Jane), daughter of Thomas Wilkinson of Stokesley Castle (or Manor), Stokesley, Yorkshire, and had issue,
'Dear, dear Donnington' - Donnington Priory, nr. Newbury, Berks, with the River Lambourne. Home of the Hughes family from 1833 to 1852. Donnington Priory features in 'The 39 Steps' as the sanctuary in Berkshire to which Richard Hannay fled from Scotland.
Burke's 'General Armory' under 'Hughes of
Donnington Priory'): Quarterly, 1st and 4th, sable a fess
cotised between three lions' heads erased argent (HUGHES
ex WOOD); 2nd, azure three arrows points downwards or, on
a chief of the second three Moors' heads couped sidefaced
sable (WATTS); 3rd, argent, a chevron ermines between
three unicorns' heads capped sable (HEAD).
1st and 4th quarters: These arms are remarkably similar to the arms of Wood of Essex given in Burke's 'General Armory' as 'Argent, a fesse gules within two barrulets azure between three lions' heads erased sable', but have clearly been reversed. These arms seem to have been assumed by the children or later descendants of Mwyndeg Hughes (d 1712) and Elizabeth Wood, sister and co-heir of Thomas Wood of Hillingdon (see above). It was the practice in Wales to adopt the arms of heiresses. It is possible that the black and white colour scheme was derived from the arms commonly associated with the Hughes name in Wales (though the undifferenced arms apparently belong to Hughes of Gwerclas, claimants to the throne of Powys), namely 'Argent a lion rampant sable', being the arms of Owain Brogyntyn, son of Madog ap Maredudd (d 1160), Prince of Powys, ancestor of the Hughes of Pant Gwyn in the female line, as described above.
2nd quarter: This shows the arms of Watts of Cotlington (as per the Visitation of Somerset, 1623) or Watts of Hanslope Park, Bucks, (Burke's 'General Armory'). Presumably Mary Anne Watts (1770-1853), mother of John Hughes (1790-1857), was descended from one of these families.
The arms of Watts.
3rd quarter: This shows the arms of Head (see Burke's 'General Armory' under 'Head (co. Berks and London)'). As explained in Burke's 'Genealogical and Heraldic Dictionary of the Landed Gentry of Great Britain and Ireland', 1847 (Vol. I, p. 612), Mrs. Watts, the maternal grandmother of Mary Anne Watts (1770-1853), was the heiress of Richard Head (of Newbury, Berks, it appears).
The arms of Head.
Hughes (ex Wood) quartered with Watts and Head.
The crest is not that either of Wood (none given in Burke's 'General Armory'), Watts (a greyhound) or Head (a unicorn's head) and was presumably assumed. It might be based on Hughes of Gwerclas which consists of a demi-lion issuing out of a crown or (again the Hughes lion theme).
On the basis of the male-line descent from Madoc Dhu (d before 22 Apr 1301), Lord of Copa'r Goleuni (Gop Hill, Trelawnyd), as described above, the Hughes family should use his arms, namely, paly of six, argent and sable, as illustrated, with suitable differences, quartered with the arms of Wood, Watts and Head as appropriate. But the arms of Madoc Dhu are so well-known and of such an obvious heraldic status that they should not, in the author's opinion, be quartered with any other arms, although in Wales it was the practice to quarter the arms of any famous house (particularly princely houses) from which an armiger could trace descent; this was often done even where there was no descent from an heraldic heiress of that house, which meant that there was, under English heraldic practice, no right to bear the arms (Hughes of Gwerclas is a good example of this). So, in Wales, quartering the arms of a Welsh prince meant 'I am descended from x prince', not 'I am descended from an heraldic heiress of x prince'.
Arms of Madoc Dhu
A suggestion for the arms of Hughes.