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,
*See below for an explanation of the use of the title 'Prince Palatine'. Mordington is a regality. In essence, regalities in Scotland are the equivalent of palatinates (counties palatine) in England and elsewhere; hence 'palatine'. Lords of regality exercised all the powers of the king (excluding only the right to try treason), so their powers were not just princely but were, in fact, royal. With regard to the use of the title 'Prince', the Bishop of Durham was known as 'The Prince-Bishop of Durham' (that is, the County Palatine of Durham) and he used a ducal coronet on his arms; a right confirmed to me by the College of Arms (letter to me dated 16/8/2012 from the Portcullis Pursuivant). Dukes are formally and legally addressed as 'The Most High, Noble and Potent Prince His Grace [forename], Duke of [name of dukedom]', including in documents issued by the monarch (John Logan, 'Analogia honorum' (1677); Randle Holme, 'The Academy of Armory' (1688); 'The Laws of Honour' (1724)). If a duke is a prince then it follows that palatine lords are also princes since they share the same rank heraldically (use the same coronet). Of course, in feudal terms a duke had no greater jurisdiction than any other feudal baron (because he held his land per baroniam like all ordinary barons), so his powers were considerably less than those of a palatine lord (England) or lord of regality (Scotland). It follows that if a duke is a prince then a lord of regality most certainly is.
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.).
The great window in Parliament Hall, Parliament House, Parliament Square, Edinburgh, commemorating the founding of the Court of Session, Scotland's highest court, by King James V in 1532. Alexander Mylne (1474-1548/9), Abbot of Cambuskenneth and first Lord President of the Court of Session (1532-1543) is the figure kneeling in the middle foreground receiving the charter from the King. Like other leading churchmen, he took part in secular affairs, went in 1524 on an embassy to the English court to treat of the marriage of James V and Mary Tudor, and was one of the lords to whom parliament entrusted the custody of James V in 1525. James, after he obtained independence, gave Myln the administration of the abbey of Holyrood and the priory of St. Andrews during the infancy of the royal bastards, on whom the pope had conferred these rich preferments. Myln also served in successive parliaments from 1532 to 1542 as lord of the articles. 'Myln's capacity for judicial office was shown by the careful rules of court drawn up by him and embodied in the first Act of Sederunt. He was an example of the mediæval ecclesiastic who was a man of business and learning rather than a pastor or theologian.' (http://en.wikisource.org/w/index.php?title=Mylne,_Alexander_(DNB00)&oldid=3258555, accessed 6/3/2015).
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 1548/9), was first Lord President of the Court of Session 1532-1543, and continuing down to Robert Mylne (1663-1710), Master Mason to Charles II, who built the Palace of Holyroodhouse (based on plans prepared by himself and Sir William Bruce, Surveyor of the King's Works). 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 Chadwell Mylne (1781-1863), of Flint House, Great Amwell, Fellow of the Royal Society, also an architect, and his son, Robert William Mylne (1817-1890), Fellow of the Royal Society, 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 (1733-1811), architect and co-founder of the Society of Civil Engineers, aged 24, by Vincenzio Vangelisti, after a drawing by Richard Brompton. 'Known for his quick temper and for his integrity, Mylne had a strong sense of duty, and could be stubborn when he knew he was right. This inflexibility made him unpopular with some, in an age when corruption was more widespread than today. He died aged 78 and was buried in St Paul's Cathedral.' (Wikipedia, 'Robert Mylne (architect)', accessed 6/3/2015). Pig-headed, opinionated, always in the right. Yes, definitely related.
The Oak Room, formerly in The Water House but moved in 1904 to the (now former) Metropolitan Water Board Offices, Rosebery Avenue, Clerkenwell, London. The arms on the ceiling are those of Myddelton.
'The North Prospect of London taken from the Bowling Green at Islington' in 1752, showing The Water House as it was at that time. This view is from the north looking towards St. Paul's Cathedral and the Thames.
Part of the above picture showing The Water House, probably one of the nicest houses in London at the time.
Although no connection to my branch of the Milne family has been established (but his Milne ancestors came from Aberdeenshire, so they are almost certainly related), it is interesting to note that Robin Grinnell-Milne (1925-2012), Baron of Inchdrewer, who later changed his name to Robin Ian Evelyn Milne Stuart, Comte de la Lanne-Mirrlees (a title held by his mother's family), Prince of Incoronata (Yugoslavia), a Captain in the Royal Artillery during World War II, later Rouge Dragon Pursuivant (attending the Queen's Coronation in 1953 as such) and then Richmond Herald, was a friend of Ian Fleming, the author of the James Bond novels, and was, in large part, the model for the character of James Bond ('007'). The Daily Mail article of 25/6/2012 reporting his death was entitled ''Dashing' Scottish aristocrat whose bed-hopping ways were inspiration for James Bond dies, aged 87'. In the 1963 book 'On Her Majesty's Secret Service', James Bond's cover as genealogist Sir Hilary Bray was based on the Count's position as Richmond Herald at the College of Arms in London. After his death, the Barony of Inchdrewer and the castle of Inchdrewer were sold to the Russian 'princess' and super-model, Olga Roh. So the character of James Bond was inspired by a member of the Milne family. I think I will have a dry Martini - shaken, not stirred. Interestingly, his on-line obituary in the Daily Telegraph, dated 25/6/2012, is stored in a directory named /obituaries/military-obituaries/special-forces-obituaries/, so perhaps they know something we don't.
Flying aces - 'Lord Flashheart' from the 'Blackadder' TV comedy series on the left and Flight Lt. Duncan Grinnell-Milne MC, DFC & Bar on the right.
Peter Milne (1824-1908), known as the 'Tarland Minstrel', was one of the greatest Scottish fiddlers (violinist) and became famous as a player of reels and strathspeys. He was born in Kincardine O'Neil (the area that my own Milne family came from) and taught himself the fiddle in his early teens. Not many of Peter Milne's compositions still survive, but those that have survived are superior. It is a mark of their popularity that some are still played around the world today, including 'John McNeill's Reel' (better known as 'Big John McNeill') and 'Gillan's Reel' (often called 'Gillian's Reel'). An example of his work is 'Tarland Memories'. He died a pauper and is buried in a pauper's grave in the Nellfield Cemetery, Great Western Road, Aberdeen. A memorial erected to his memory by public subscription bears the inscription: 'Riches denied, thy boon was purer joys, what wealth could never give nor take away.'
He was, it seems, the last of the Scots race to bear the designation 'minstrel', though there have certainly been Scottish fiddlers of great talent since his time. It would therefore seem appropriate to describe him as the 'last minstrel', a description that brings to mind Sir Walter Scott's famous poem 'The Lay of the Last Minstrel.'
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), (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 for 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).
Lt. Col. Sir Alexander Campbell, MC (1916), (1890-1963), my father's uncle (mother's brother). The Military Cross (MC) is the left-most of the medals (bravery medals are always crosses; campaign medals never). I assume that this photograph was taken while he was on the staff of Earl Mountbatten of Burma. He was, in fact, awarded the Distinguished Service Order (DSO), not the Military Cross (when a Captain; London Gazette, 27/7/1916; Edinburgh Gazette, 31/7/1916), for leading parties over ground 'heavily swept by fire' when his division was in the Ypres Salient. The DSO is a higher order of bravery award than the Military Cross and only below the Victoria Cross itself. It was rarely awarded to officers below the rank of Major and, when so awarded, was generally taken to mean that the recipient had 'only just missed out on the award of the Victoria Cross' (Wikipedia under 'Distinguished Service Order', accessed 28/3/2016). I can only assume that he preferred the MC because it was always awarded for service under fire, whereas the DSO was sometimes awarded to senior officers who had not been under fire at the time (something front-line officers resented).
As an officer in the Australian Imperial Force (AIF), which was made subject to the Army Act by the Defence Act 1903, George Gordon Milne was charged with offences under the Army Act (drunkenness and being absent without leave) and the court martial was convened under the Army Act and the associated rules of procedure. Note the following:
1. The AIF was
unquestionably a colonial force within the meaning of
s.177 Army Act 1881 (see NAA MP367/1 403/3/5, Application
of the Imperial Army Act to the AIF, Dept. of
Defence Minute Paper dated 26/2/1917 for example, which
specifically states this).
That is the end of the matter.
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.
A weary knight (of the Teutonic Order).
A weary knight.
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.
is a mystery - where is it found?
From 'Rosa Mystica' by Gerard Manley Hopkins
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) of England 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), when he granted Lothian to Edgar, son of Malcolm III, King of Scots, and further confirmed by Edgar (c. 1074-1107), by then King of Scots, in 1098. 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).
In this context, Claims of Jurisdictions  5 Brn 750, Decisions of The Lords of Council and Session, Collected by James Burnett, Lord Monboddo (http://www.bailii.org/scot/cases/ScotCS/1748/Brn050750-0930.html) states: 'It was likewise understood, that, if the whole regality was alienated, the right of regality would go to the purchaser...' As with an ordinary barony, this must have happened sub silentio in the absence of express mention. Thus, the regality created in 1381-2 has passed to each successive owner of the barony even in the absence of express mention. Halliday in his 'Conveyancing Law and Practice' states (p. 289) that: 'A conveyance of the lands carries the barony and its bundle of rights without express mention. Conversely, a conveyance of part of the lands does not carry the barony or, without, express mention, any additional rights associated with it.'
Two possible 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; that is, 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 and Mordington and lands of 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.
*There is a logical problem with this assertion. As explained below, there is no question that a lord of regality exercised all the powers of the Crown (excluding the right to try treason), and this must have included the right to create a regality (since the Crown had this right). Only the Crown could create a regality within the royalty (within the king's jurisdiction) but this did not necessarily apply to lords of regalities creating regalities within their own regalities (as the Earl of Douglas did in 1407). So not only is it logical that lords of regality could create regalities within their own regality, but we have an actual example of this being done.
**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. It is interesting to note that this barony held of an earl simply 'morphed' into a barony held of the king, thus showing that baronies held of earls or other feudal overlords were the exact equivalent of baronies held of the king; they simply had a different feudal superior.
***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. Where there was no power of assignation in the patent of a personal peerage, the personal signature of the King was necessary to change the destination (see 'Complete Peerage', Vol. X, p. 7, n. (e) and J. F. Riddell, 'Inquiry into the Law and Practice in Scottish Peerages', Edinburgh, 1862, Vol. II, p. 813 and Vol. I. p. 61) as per the Privy Council Register (March, 1615).
****Although, for instance, the various elements of the Dukedom (or rather Duchy) of Rothesay, such as the Barony of Renfrew, have retained their separate identities even though they were 'perpetuis temporibus futuris uniantur, incorporentur et annexentur' ('united, incorporated and annexed for all time coming') into the Dukedom in 1469 ('Complete Peerage', 2nd Ed., vol. XI, p. 208, n. b).
Palatinates and regalities - status, rights and powers
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 kingdom 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 his paper 'War, lordship and community in Norhamshire' ('Liberties and Indentities in the Medieval British Isles', The Boydell Press, Woodbridge, 2008, Ed. Michael Prestwich) M. L. Holford writes (p. 79): 'Norhamshire, in contrast, was an administrative unit, a 'comitatus', in its own right, with its own sheriff, who also acted as escheator and usually as constable of Norham castle. It had its own coroner and its own liberty court (comitatus), broadly equivalent to the county court elsewhere in England. By at least the fourteenth century, it has its own exchequer and term-days for the payment of rents. Its civil and criminal courts also appear to have been largely self-contained; in the fourteenth century, it was said to be customary that the people of Norhamshire should not have to leave their 'county' to attend an eyre in Durham.' Thus a palatine lordship or regality equated to a county or 'comitatus' elsewhere, based on the exercise of a jurisdiction equivalent to the sheriff of a county, and was even described as such (a 'county'), and it follows that the lord of a palatinate or regality can therefore correctly be described as a 'count palatine' or 'earl palatine' in the same way as on the continent (the Latin for 'county' and 'earldom', and an earl was usually an earl of a county, is 'comitatus').
'St, Andrews as it was and as it is' (Grierson, James, 3rd Ed., G S Tullis, Cupar, 1838, p.54) states with regard to the powers of the Archbishop of St. Andrews as a lord of regality and count palatine (they were one and the same thing): 'The temporal power and dignity of the archbishop seem to have been no less ample than his ecclesiastical: for, according to Martine, he was both count palatine and lord of regality. By the former he is said to have had the power of conferring honours like a sovereign, with a chancellor under him in a temporal capacity; and, by the latter, he had a civil and criminal jurisdiction, both of great extent. He could judge in all civil causes, says the same author, which are competent to the Court of Session, except these four: reductions, suspensions, improbations and redemptions. He could take cognizance of all crimes committed within his regality, such as theft or murder, and upon conviction of the criminal, the escheat of his effects fell to the archbishop. [...] By a tax roll of 1665, if appears that the archbishop had at that time, holding lands of him, one marquis, fifteen earls, three viscounts and five temporal lords, besides many considerable persons of inferior rank.' Thus, the Archbishop was, like the Bishop of Durham, a Count Palatine even though he did not hold a temporal earldom.
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 powers exercised (and still exercised in some ways) by earls and dukes palatine in England and Lords of Regality in Scotland were unquestionably royal and were at least equal to those exercised by the Princes of or within the Holy Roman Empire. By any normal usage of the word, therefore, earls and dukes palatine in England and Lords of Regality in Scotland were and are princes, if not actually kings. In legal terms, such people were/are certainly princes in accordance with the original meaning of the word; that is, the original Latin word 'princeps'.
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)'.
*The Barony of Skelbo was re-granted by the Countess of Sutherland in 1996. The barony was originally created in 1562 when the Earl of Sutherland granted the relevant lands to Alexander Sutherland of Duffus. For an earlier grant of a barony (Torboll in 1472) by an Earl of Sutherland see the 'Complete Peerage' (Vol. XII, Part I, p. 547).
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 from 1878 with respect to titles granted by other sovereign princes within the jurisdiction of the British crown, since the titles were recognized by the Crown on the advice of the Committee for Privileges of the House of Lords (which is the same process of recognition used for British peerages). In other words, in 1878 the House of Lords accepted the legal principle that a person exercising sovereign powers has the right to create titles of nobility. 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. The Lord Lyon recognized the Lordship and Regality of Garioch on 30/4/2015 (Petition of George David Manking dated 21/8/2014).
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. Of course, within regalities the royal prerogative was exercised by the Lord of Regality,* so it follows that within regalities it was the Lord of Regality who exercised the prerogative of granting arms; in fact, to the exclusion of the King. 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'.
*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).
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. 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 laws enacted in both countries implementing the treaty (The Union with England Act 1707 in Scotland and the Union with Scotland Act 1706 in England).
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).
The word peer must have the same meaning in the Treaty and both Acts of Union of 1706 and 1707 and that word must be used consistently within each document. Now, the word peer in an English context means a person who holds a title of nobility which entitles the holder to sit and vote in the House of Lords - or, rather, to sit and vote in Parliament as a noble (R.P. Gadd, Peerage Law, ISCA Publishing, 1985, p. 2), since there was no separate House of Lords in Scotland and the three estates (nobility, clergy and burgh representatives) sat in one place. There has never been a concept in English law of a person who has such a right and is not a peer (until 1999 that is). Thus, in an English context, the word peer meant anyone who had the right and no-one who had the right could be excluded from that meaning. Since this is the undoubted meaning in the English Act, it follows that it must also be the meaning in the Treaty and in the Scottish Act. To say otherwise would mean having to assert that the word peer was given a meaning in the English Act which it had never been given before and has never been given since (until 1999). Further, the Treaty and the Acts, by giving peers equal rights, clearly mean that the word peer refers to those who have equivalent rights in each country. Thus, the peers of Scotland must be taken to consist of those people in Scotland who had rights equivalent to those who were peers in England; in other words, those people in Scotland who had the right to attend Parliament as nobles. This definition includes the small barons because they had the right to attend Parliament as nobles.
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
The following questions therefore arise:
1. Does the Treaty of
Union still exist as a treaty, given that a treaty is an
agreement between sovereign states and the parties to the
Treaty (England and Scotland) no longer exist as separate
With regard to the Treaty, this 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.
Clearly, this statement can only have been made on the basis that the Treaty still exists.
Note that the British government still holds that the Treaty of Utrecht of 1713, by which Spain ceded Gibraltar to Great Britain, is still regarded as a binding treaty. See the statement made in the House of Commons on 27 March 2006 by the then Secretary 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 Treaty of Union of 1707? Either such treaties are binding in law or they are not. Which is it? Gibraltar is undeniably part of Spain geographically but the British government holds that Spain is prevented by the Treaty of Utrecht from interfering in the affairs of Gibraltar in any way, other than as allowed by the Treaty (which is not at all). So why is the British government not similarly constrained from interfering in the affairs of Scotland other than as allowed by the Treaty of Union? Since the UK is subject to EU law, a state which has its own constitution, parliament, laws, court system, bureaucracy, president, flag, anthem, embassies, nascent armed forces, police service (with 'international' arrest warrants) and so on, it is arguable that the UK is not a sovereign state. How can a state be called sovereign when it is subject to foreign-made laws? Spain is in the same position. So, we could argue that the Treaty of Utrecht is not an agreement between sovereign states and is therefore not now a treaty governed by international law. And yet no-one puts forward that argument, as far as I am aware. Clearly, the word 'sovereign' is relative. Interestingly, the Vienna Convention on the Law of Treaties says (Article 1): 'The present Convention applies to treaties between States.' Article 2 defines terms but the word 'state' is not defined, so clearly the drafters recognized the problem with the word. But I think the point is that if the Treaty of Utrecht can be regarded as a treaty governed by international law, then the Treaty of Union can be regarded as such as well.
As stated, 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 sovereign states. 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 (though not separate sovereign 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.
If the Treaty still exists, the quesion arises as to whether Parliament has the power to amend or abrogate the Treaty, bearing in mind that the doctrine of the supremacy of Parliament means that Parliament's power to make laws is unconstrained (in theory).
In this regard, it is noticeable that when courts make judgments in relation to the supremacy of Parliament, 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.
*The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle.' (Lord Steyn in Jackson & Ors v. Her Majesty's Attorney General  UKHL 56 at 102).
So, if parliament is not supreme then who is? The only 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 (logically, at least) 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 in the same manner in which they gave their consent to the original treaty (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 until recently) 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 (either expressly or by necessary implication) 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 Jews and Arabs). 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, arguably, 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 three inches long you will be taken off to jail so fast your feet won't touch the ground. This is not a political statement, just a fact worth noting in this context.
In Wilkes v Wood  EWHC CP J95 (6 December 1763) (http://www.bailii.org/ew/cases/EWHC/CP/1763/J95.html) Lord Chief Justice Pratt said: ''No precedents, no legal determinations, not an Act of Parliament itself, is sufficient to warrant any proceeding contrary to the spirit of the constitution.' Now, if the Lord Chief Justice ruled in 1763 that an Act of Parliament could not override the constitution, on what basis could the courts later hold that an Act of Parliament could override the constitution, bearing in mind that Parliament itself has not determined the matter by any statute (if Parliament had provided by statute that it was supreme then judges would not need to refer to Dicey and other writers as authorities for the proposition)? Hmmm, a difficult one that.
People argue about whether the Treaty of Union is a treaty or constitutional law; they even argue about whether it exists in law at all. Such arguments miss the key point. The Treaty of Union started life as an international agreement signed by both parties with the clear intention that it would be binding for all time. What we do know is that the Treaty is THE FOUNDING CONSTITUTIONAL DOCUMENT OF THE NEW STATE OF GREAT BRITAIN (AND THUS ALSO OF THE SUCCESSOR STATES TO GREAT BRITAIN). It is the document from which the new state derived its legal existence, state, being and authority. WITHOUT IT NEITHER GREAT BRITAIN NOR ANY SUCCESSOR STATE CAN EXIST.
So there we are. We have a choice; either the Treaty exists as a binding constitutional document or the state which derived its existence from that document does not exist at all as a legal entity. It has no legal existence and so cannot, in law, bind any of its 'citizens' and it cannot be party to any international treaty or a member of any international body (such as the EU).
You can argue that a country called the United Kingdom exists because, de facto, the people of that country have given their consent to the government via elections and so on. But what would have happened if anyone had tried not to give their consent; that is, had questioned the underlying legitimacy of the whole electoral process? Can something be made legal by virtue of the fact that anyone who objects to that thing will simply be ignored? And if you deprive people of a choice (to say that they do not consent to being governed in such a way), how legitimate is an option that is chosen (by some unknown number of people) only because there is no alternative?
In the Wimbledon Case of 1923* (that is, before the Vienna Convention on the Law of Treaties of 1969 came into force), in which the UK was an applicant, the Permanent Court of International Justice (or World Court) ruled that, under the Treaty of Versailles of 1919, Germany has to submït to an important limitation of the exercise of the sovereign rights and that No doubt any convention [treaty] creating an obligation of this kind places a restriction upon the exercise of the sovereign rights of the State, in the sense that it requires them to be exercised in a certain way and that In any case a neutrality order, issued by an individual State, could not prevail over the provisions of the Treaty of Peace. Note that the court referred in its judgment to treaties concluded before the court itself was established (1922), such as a treaty of 1888 concerning the Suez Canal, and note also that the Wimbledon Case concerned a treaty (the Treaty of Versailles of 1919) which was agreed before the court was established. One of the judges in the case was Robert Finlay, formerly Attorney-General and Lord Chancellor from 1916 to 1919.
*Case of the SS Wimbledon, Permanent Court of International Justice, 17/8/1923.
Note, in this context, the words of Lord Denning, Master of the Rolls, in Laker Airway Ltd v Department of Trade  EWCA Civ 10: The one thing that remained was for the President [of the USA] to sign the U.S.A. permit: but this was little more than a formality, seeing that the President was under a treaty obligation to sign it "without undue delay".' Thus, the President of the USA was personally bound, by virtue of his office, by an international treaty and was held to be so by the second highest court in the UK. Thus, the second highest court in the UK has ruled that an international treaty can be binding domestically in the sense that it obliges the government to act in a certain way or to refrain from acting in a certain way in the domestic sphere.
Clearly then, under international law, treaties concluded before 1922 can, and do, limit the sovereign power of a state, internal laws or decrees which contravene such treaties are of no effect and, under Article 36 of Statute of the Permanent Court of International Justice, signatory states recognized the compulsory jurisdiction of the court in relation to the interpretation of treaties and questions of international law. The Permanent Court of International Justice was succeeded by the International Court of Justice in 1946. By signing the UN Charter, member states of the UN agree to comply with any decision of the International Court of Justice in any case to which they are a party (Article 94 of the UN Charter).The UK ratified the UN Charter on 20th October 1945.
'Legally, it is difficult, if not impossible, to identify today a state in which a 'sovereign' legislature is not subject to legal limitations on the exercise of its powers. Moreover, sovereignty is incompatible, both internationally and internally, with another concept which also has a lengthy history, but which today is widely regarded as a paramount value ... The rule of law cannot coexist with traditional conceptions of sovereignty.' (Francis Jacobs, Professor of European Law, London University, 'The Sovereignty of Law: The European Law', Hamlyn Lectures, 2006, Cambridge University Press, 2007, p. 7).
'...the existing principle of the rule of law requires compliance by the state with its obligations under international law...' (Lord Bingham, 'The Rule of Law', 6th David Williams Annual Lecture, Centre for Public Law, Cambridge University, 2006, p. 29).
Lord Templeman said in J H Rayner (Mincing Lane) Ltd. v. DTI ("the Tin Council case")  2 AC 418, at 476F-477A: The Government may negotiate, conclude, construe, observe, breach, repudiate or terminate a treaty. Parliament may alter the laws of the United Kingdom. The courts must enforce those laws; judges have no power to grant specific performance of a treaty or to award damages against a sovereign state for breach of a treaty or to invent laws or misconstrue legislation in order to enforce a treaty. A treaty is a contract between the governments of two or more sovereign states. International law regulates the relations between sovereign states and determines the validity, the interpretation and the enforcement of treaties. A treaty to which Her Majesty's Government is a party does not alter the laws of the United Kingdom. A treaty may be incorporated into and alter the laws of the United Kingdom by means of legislation. Except to the extent that a treaty becomes incorporated into the laws of the United Kingdom by statute, the courts of the United Kingdom have no power to enforce treaty rights and obligations at the behest of a sovereign government or at the behest of a private individual. But to apply this concept to the Treaty of Union involves retrospectively applying a doctrine which did not exist at the time because it contradicts the clearly expressed intentions of the parties (Scotland and England) and their clearly stated belief in their capacity to agree binding and unalterable terms (binding on Parliament) at that time. It also amounts to a breach of the fundamental legal principle that laws or legal doctrines should not have a retrospective effect. It also ignores the fact that the Treaty of Union is much more than a treaty; it is the founding constitutional document of Great Britain and its successor states; being the document through which Great Britain (and hence the United Kingdom) has its legal existence, state, being and authority. How can such a document not be binding on the Parliament it created and, as part of the laws of the land, enforceable by the courts, since it is part of the law of the land and the function of the courts is to enforce the law of the land? Quite. The argument therefore is, logically, that while a treaty is an agreement between two or more sovereign countries, this treaty was a treaty by which two sovereign countries became one sovereign country. At the point that the two countries became one country, the treaty therefore necessarily ceased to be a treaty in this sense and, if it did not disappear completely (which was clearly not the intention of the parties), the treaty can only have become an internal law of the new sovereign country by operation of the treaty itself.
Note also that in Occidental Exploration & Production Company v Republic of Ecuador  EWCA Civ 1116 at 19 stated:
'That treaties may in modern international law give rise to direct rights in favour of individuals is well established, particularly where the treaty provides a dispute resolution mechanism capable of being operated by such individuals acting on their own behalf and without their national state's involvement or even consent. Oppenheim's International Law (9th Ed.), para. 375 put the matter in this way in 1992:
"States can, ... and occasionally do, confer upon individuals, whether their own subjects or aliens, international rights strictu sensu, ie rights which they can acquire without the intervention of municipal legislation and which they can enforce in their own name before international tribunals",
See also Oppenheim, para. 7, as well as McCorquodale, The Individual and the International Legal System in Evans' International Law (OUP) (2003), pp. 304-6. Most frequently cited in this connection is the Permanent Court of International Justice's Advisory Opinion in the Jurisdiction of the Courts of Danzig Case (1928) PCIJ Rep Series B No. 15, p.1, considering the effect of a treaty (the Beamtenabkommen) made on 22 October 1921 between Poland and Danzig. The Beamtenabkommen regulated the employment conditions of Danzig railway employees who had, after the First World War, passed into the service of the Polish Railways Administration. Poland's contention that this treaty only created inter-State rights was rejected. The Court said that:
"It may be readily admitted that, according to a well established principle of international law, the Beamtenabkommen, being an international agreement, cannot, as such, create direct rights and obligations for private individuals. But it cannot be disputed that the very object of an international agreement, according to the intention of the contracting Parties, may be the adoption by the Parties of some definite rules creating individual rights and enforceable by the national courts. That there is such an intention in the present case can be established by reference to the terms of the Beamtenabkommen. (pp.17-18)"'
Let's put this argument to bed. Under international law, a treaty is an agreement between two or more sovereign states which is only enforceable under international law in the international courts by those participating sovereign states. Scotland and England are not sovereign states; they are constituent parts of a sovereign state. If this is the case, then the Treaty of Union is not enforceable as an international treaty under international law in the international courts. It follows that if the Treaty is not enforceable in the domestic courts either then it is not enforceable at all - and an agreement which is not enforceable in any court is, quite simply, not an agreement. It is nothing. Scotland and England did not negotiate the treaty with the intention that it should become unenforceable (in effect, non-existent) the moment it came into force (when Scotland and England became one sovereign state). It follows that the Treaty, if it is enforceable at all, must be enforceable in the domestic courts. Clearly, the Treaty ceased to be a treaty, as that term is properly understood (an agreement between sovereign states), the moment it came into force. So, what did it become? Answer? It became the founding constitutional document of the new state of Great Britain. It was the document that brought that state into being and gave it (defined the extent of; that is, limited) its power and authority. So, it ceased to be a treaty proper and became constitutional law; the most fundamental and important constitutional law of them all. It is a nonsense to assert that the founding constitutional law of a state should be unenforceable in that state. Further, the treaty confers rights on individuals (for example, heritable jurisdictions are protected as rights of property, which can only be as rights of property of the individuals concerned). Individuals have no standing in international law and so cannot bring actions in the international courts; only sovereign states can do that (generally speaking). If these rights are not enforceable in the international courts, then they must be enforceable in the domestic courts - or they are not enforceable at all.
There is a parallel here with the constitution of the United States of America, which was, in effect, a treaty between the various US states. That constitution is not a law in the normal sense but it is enforceable in the US courts as if it were and, of course, it overrides all 'normal laws'. The same logic applies to the Treaty of Union. It is not called a constitution but that is exactly what it is. As constitutional law, it cannot be simply over-ridden by Parliament as if it was a 'normal law' because a body cannot over-ride the very law which created it in the first place and which limits its own authority (without becoming a tyranny). More importantly, it was clearly the intention of the parties to the original treaty that it should not be over-ridden since the clear intention of the parties was that it should protect their interests after the Union and, in fact, for all time coming (which is not to say that amendment is impossible, it is just that amendment needs to be by proper constitutional procedures - typically a referendum).
As the founding constitutional document of the new Parliament of Great Britain, it is clear that the Treaty (even without the associated Acts of Parliament; the Union with England Act 1707 in Scotland and the Union with Scotland Act 1706 in England) is, as law, in a class of its own. In particular, the Treaty must logically enjoy a higher status that the constitutional acts identified in Thoburn v Sunderland City Council  EWHC 195 (Admin), which cannot be impliedly repealed. The possibility of a hierarchy of constitutional laws was acknowledged in R (on the application of HS2 Action Alliance Limited) v The Secretary of State for Transport and another  UKSC 3 at 206-208. See also Mark Elliot, Reflections on the HS2 case: a hierarchy of domestic constitutional norms and the qualified primacy of EU law, ukconstitutionallaw.org/2014/01/23/mark-elliot-reflections-on-the-hs2-case-a-hierarchy-of-domesticconstitutional-norms-and-the-qualified-primacy-of-eu-law/, accessed 18/7/2016.
In BH & Anor v The Lord Advocate & Anor (Scotland)  UKSC 24, Lord Hope (with whom the six other law lords agreed) said at 30: 'It would perhaps have been open to Parliament to override the provisions of section 57(2) so as to confer on them more ample powers than that subsection would permit in the exercise of their functions under the 2003 Act. But in my opinion only an express provision to that effect could be held to lead to such a result. This is because of the fundamental constitutional nature of the settlement that was achieved by the Scotland Act. This in itself must be held to render it incapable of being altered otherwise than by an express enactment. Its provisions cannot be regarded as vulnerable to alteration by implication from some other enactment in which an intention to alter the Scotland Act is not set forth expressly on the face of the statute.'
See also Miller & Anor, R (On the Application Of) v The Secretary of State for Exiting the European Union (Rev 1)  EWHC 2768 (Admin) at 88: 'Moreover, the status of the ECA 1972 as a constitutional statute is such that Parliament is taken to have made it exempt from the operation of the usual doctrine of implied repeal by enactment of later inconsistent legislation: see Thoburn v Sunderland City Council, at -*, and section 2(4) of the ECA 1972. It can only be repealed in any respect if Parliament makes it especially clear in the later repealing legislation that this is what it wishes to do.'
The phrase 'especially clear' clearly means 'set forth expressly on the face of the statute', since this is the only meaning that is consistent with the judgment in BH & Anor v The Lord Advocate & Anor (Scotland)  UKSC 24. 'Expressly' means that the Act being repealed (in whole or in part) must be named in the repealing Act.
*In Thoburn v Sunderland City Council  EWHC 195 (Admin), it was said at 60-64:
'The common law has in recent years allowed, or rather created, exceptions to the doctrine of implied repeal: a doctrine which was always the common law's own creature. There are now classes or types of legislative provision which cannot be repealed by mere implication. These instances are given, and can only be given, by our own courts, to which the scope and nature of Parliamentary sovereignty are ultimately confided. The courts may say - have said - that there are certain circumstances in which the legislature may only enact what it desires to enact if it does so by express, or at any rate specific, provision. The courts have in effect so held in the field of European law itself, in the Factortame case, and this is critical for the present discussion. By this means, as I shall seek to explain, the courts have found their way through the impasse seemingly created by two supremacies, the supremacy of European law and the supremacy of Parliament.
The present state of our domestic law is such that substantive Community rights prevail over the express terms of any domestic law, including primary legislation, made or passed after the coming into force of the ECA, even in the face of plain inconsistency between the two. This is the effect of Factortame (No 1)  2 AC 85. To understand the critical passage in Lord Bridge's speech it is first convenient to repeat part of ECA s.2(4):
"The provision that may be made under subsection (2) above includes any such provision (of any such extent) as might be made by Act of Parliament, and any enactment passed or to be passed, other than one contained in this Part of this Act, shall be construed and have effect subject to the foregoing provisions of the section."
In Factortame (No 1) Lord Bridge said this at 140: "By virtue of section 2(4) of the Act of 1972 Part II of the [Merchant Shipping] Act of 1988 is to be construed and take effect subject to directly enforceable Community rights... This has precisely the same effect as if a section were incorporated in Part II of the Act of 1988 which in terms enacted that the provisions with respect to registration of British fishing vessels were to be without prejudice to the directly enforceable Community rights of nationals of any member state of the EEC."
So there was no question of an implied pro tanto repeal of the ECA of 1972 by the later Act of 1988; on the contrary the Act of 1988 took effect subject to Community rights incorporated into our law by the ECA. In Factortame no argument was advanced by the Crown in their Lordships' House to suggest that such an implied repeal might have been effected. It is easy to see what the argument might have been: Parliament in 1972 could not bind Parliament in 1988, and s.2(4) was therefore ineffective to do so. It seems to me that there is no doubt but that in Factortame (No 1) the House of Lords effectively accepted that s.2(4) could not be impliedly repealed, albeit the point was not argued.
Where does this leave the constitutional position which I have stated? Mr Shrimpton would say that Factortame (No 1) was wrongly decided; and since the point was not argued, there is scope, within the limits of our law of precedent, to depart from it and to hold that implied repeal may bite on the ECA as readily as upon any other statute. I think that would be a wrong turning. My reasons are these. In the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental: see for example such cases as Simms  2 AC 115 per Lord Hoffmann at 131, Pierson v Secretary of State  AC 539, Leech  QB 198, Derbyshire County Council v Times Newspapers Ltd.  AC 534, and Witham  QB 575. And from this a further insight follows. We should recognise a hierarchy of Acts of Parliament: as it were "ordinary" statutes and "constitutional" statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998. The ECA clearly belongs in this family. It incorporated the whole corpus of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law. It may be there has never been a statute having such profound effects on so many dimensions of our daily lives. The ECA is, by force of the common law, a constitutional statute.
Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statute, the court would apply this test: is it shown that the legislature's actual not imputed, constructive or presumed intention was to effect the repeal or abrogation? I think the test could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible. The ordinary rule of implied repeal does not satisfy this test. Accordingly, it has no application to constitutional statutes. I should add that in my judgment general words could not be supplemented, so as to effect a repeal or significant amendment to a constitutional statute, by reference to what was said in Parliament by the minister promoting the Bill pursuant to Pepper v Hart  AC 593. A constitutional statute can only be repealed, or amended in a way which significantly affects its provisions touching fundamental rights or otherwise the relation between citizen and State, by unambiguous words on the face of the later statute.
This development* of the common law regarding constitutional rights, and as I would say constitutional statutes, is highly beneficial. It gives us most of the benefits of a written constitution, in which fundamental rights are accorded special respect. But it preserves the sovereignty of the legislature and the flexibility of our uncodified constitution. It accepts the relation between legislative supremacy and fundamental rights is not fixed or brittle: rather the courts (in interpreting statutes, and now, applying the HRA) will pay more or less deference to the legislature, or other public decision-maker, according to the subject in hand. Nothing is plainer than that this benign development involves, as I have said, the recognition of the ECA as a constitutional statute.'
*The common law is not 'developed', it is 'ascertained'. In other words, the courts do not create new law (because they have no power to do so), they merely ascertain existing law. So, the doctrine of 'no implied repeal of constitutional statutes' is not new law; it has (in law) always existed.
It is for this reason (even ignoring the question of the status of the Treaty of Union) that the Heritable Jurisdictions Act 1747, which purported to abolish regality jurisdiction, the House of Lords Act 1999, which removed the right of hereditary peers to sit and vote in the House of Lords, and the Abolition of Feudal Tenure etc. (Scotland) Act 2000, which purported to abolish any residual feudal jurisdictions, were of no effect. If, in this context, you want to argue that the doctrine that constitutional Acts require express repeal does not apply retrospectively, then bear in mind (1) that the doctrine was applied retrospectively from the moment it was ascertained in 2002 (in that it was immediately applied to a past Act of Parliament), (2) that a principle of law exists before it is ascertained (principles are, by definition, eternal and are merely 'ascertained', not created) and (3) that if legal doctrines do not apply retrospectively, then the same applies to the doctrine of Parliamentary sovereignty, which would mean, given that the doctrine was developed in the 19th century, that it cannot be retrospectively applied to the Heritable Jurisdictions Act 1747 and that Parliament therefore had no power to alter the Treaty of Union or the associated Acts of Parliament in the way it purported to do, for the simple reason that Parliament was not sovereign at that time and had expressly acknowledged the limitation on its sovereignty in the Treaty and Acts of Union.
In 1425 the House of Lords ruled that an Act of Parliament is ineffective to abrogate a peerage unless the peerage is expressly named (Complete Peerage, Vol. IX, p. 606, n. d). Given that a peerage is defined as 'that dignity of nobility to which attaches the right to sit and vote in the House of Lords', it follows that to remove the right to sit and vote is to remove the peerage itself, since this is the essence of the thing (in the same way that if you take away from a policeman his legal authority to perform the office, he ceases to be a policeman, even if he still wears the uniform of one). You are left with a dignity of nobility but certainly not a peerage. Now, the House of Lords decision of 1425 is still good (and binding) law and it follows, on this basis, that the House of Lords Act 1999 was ineffective in removing the right of hereditary peers to sit and vote in the House of Lords, since no peerages were expressly named therein. The Act of 1399 repealed everything done in the Parliament of 1387-8, including the creation of the Dukedom of Norfolk either by the King in Parliament or by an Act of Parliament. There has been debate as to whether it was the former or the latter, but, either way, the rule or principle expounded is still a good one, being independent of the facts. Not only is the rule or principle independent of the facts, but even if the rule or principle itself had been bad law, it would still, as a House of Lords decision, be binding in law (until 1966 the House of Lords regarded itself as being bound by its own previous decisions and, even today, regards itself as normally bound). See the Report of the Speeches of Counsel and of the Lord Chancellor and Lord St. Leonards in moving the resolution upon the Claim of James Earl of Crawford and Balcarres to the Original Dukedom of Montrose created in 1488. pp. xv-xx, 296-7, which makes it clear that the Dukedom was created by an Act of Parliament and so would have been abrogated in 1399, but for the principle expounded by the House of Lords that peerages must be expressly named.
This begs the question of whether, if the majority of the members of one of the Houses of Parliament have been unlawfully excluded from the legislative process since 1999, an Act of Parliament passed in their absence is good law. After all, if an Act of Parliament were to be passed through the Commons by the simple expedient of locking the door of the Commons Chamber on the opposition, would that Act be valid - or would it be void ab initio? Acts of Parliament start with the words Be it enacted by the Queens most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows , but if, in relation to a certain Act, the Lords Spiritual and Temporal were not in this present Parliament assembled because the majority of them were unlawfully excluded, and they could not therefore give their consent, and the Act was not passed with their authority, can that Act possibly be valid? The answer is clear. No. At the most fundamental level such a thing is a nullity and what is enrolled as an Act of Parliament is quite simply not an Act of Parliament, bearing in mind that, in law, a nullity cannot be made good by any process, enrolment or otherwise.* To say otherwise is quite simply to abandon the rule of law; it would mean that the clerk who enrols an Act of Parliament could enrol a piece of paper which looks like an Act of Parliament and purports to abolish Parliament and make him Prime Minister for life and the courts would enforce that law. The idea is nonsensical.
*In MacFoy v. United Africa Co. Ltd.  A.C. 152, 160, Lord Denning said: If an act is void then it is in law a nullity. It is not only bad, but incurably bad. [my emphasis] There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. So will this judgment collapse if the statement of claim was a nullity. Of course, this principle means that any Act of Parliament passed on the basis of a void Act (The House of Lords Act 1999, which unlawfully excludes most of the members of one of the Houses of Parliament) is itself void - unless Parliament is exempt from the rule of law.
In 1999, the 1425 decision of the House of Lords was good and binding in law. Now, if this matter were to be put to the Supreme Court today, it could decide that the 1425 decision was a bad one, but the point is that it was good in 1999 and remains so until declared bad. This means that the hereditary peers were unlawfully excluded from the House of Lords after 1999 and it follows that all Acts of Parliament since the 1999 Act came into effect have been passed by a Parliament which is not a properly constituted Parliament (since most of the members of one of the Houses of Parliament were unlawfully excluded) and therefore not a Parliament at all. This means that these Acts were void at the time and cannot be made good, even by a subsequent ruling of the Supreme Court, since, in law, a void act is incurably bad.
The enrolled Act rule was stated in Edinburgh & Dalkeith Railway Company v Wauchope  UKHL J12, where it was said: All that a Court of Justice can do is to look to the Parliamentary roll: if from that it should appear that a bill has passed both Houses and received the Royal assent, no Court of Justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament during its progress in its various stages through any Court in Scotland, but that due effect will be given to every Act of Parliament, private as well as public, upon what appears to be the proper construction of its existing provisions. But note the reference to a bill passing through both Houses of Parliament. Can it truly be said that a bill which passes through one House only because the majority of the members of that House have been unlawfully excluded from the House has, in fact, passed through that House? What does the word passed mean? Well, it necessarily means that it has followed a certain procedure; the proper procedure by which bills pass through a House. If the procedure has not been complied with in some critical respect, then it cannot really be claimed that the bill passed through the House in the way the word is necessarily used and normally understood. While it may be correct to ignore what was said in the House during the passage of the bill, it cannot be correct to ignore a fundamental failure to comply with the proper procedure by which a bill should pass through the House. Thus, the enrolled Act rule, as expounded in 1842, means that the courts are not bound to enforce an Act which has not properly passed through both Houses in terms of procedure. These procedural rules are, of course, part of our constitution*, so that an Act passed otherwise than in accordance with constitutional procedure must, by definition, be unconstitutional - and, being unconstitutional, void.
*Those laws, rules, procedures, customs and precedents which determine the manner in which a state is governed and which protect the fundamental rights of citizens.
In British Railways Board v Pickin  UKHL 1, Lord Morris of Borth-y-Gest said: The conclusion which I have reached results, in my view, not only from a settled and sustained line of authority which I see no reason to question and which I should think be endorsed but also from the view that any other conclusion would be constitutionally undesirable and impracticable. It must surely be for Parliament to lay down the procedures which are to be followed before a Bill can become an Act. It must be for Parliament to decide whether its decreed procedures have in fact been followed. It must be for Parliament to lay down and to construe its standing orders and further to decide whether they have been obeyed: it must be for Parliament to decide whether in any particular case to dispense with compliance with such orders. It must be for Parliament to decide whether it is satisfied that an Act should be passed in the form and with the wording set out in the Act. It must be for Parliament to decide what documentary material or testimony it requires and the extent to which Parliamentary privilege should attach. It would be impracticable and undesirable for the High Court of Justice to embark upon an enquiry concerning the effect or the effectiveness of the internal procedures in the High Court of Parliament or an enquiry whether in any particular case those procedures were effectively followed. Well OK then, but what if the Parliament he refers to was not actually a properly constituted Parliament (and therefore not a Parliament at all)? You see, everything he said depends on the Parliament he refers to actually being a Parliament. But what if it isnt? Would the courts still refuse to look into the matter? It rather changes the picture, doesnt it? He refers to it being constitutionally undesirable for there to be a clash between Parliament and the courts, but surely, it is even more constitutionally undesirable that the courts should enforce laws which are not, in fact, proper laws at all? Which take precedence, the delicate sensibilities of judges or the rule of law? Quite.
So, we need to ask the following questions:
This logic also applies to the Peerage Act 1963, the House of Lords Act 1999 and the Abolition of Feudal Tenure etc. (Scotland) Act 2000, all of which are of no effect in relation to the Union with Scotland Act 1706 and the Union with England Act 1707 to the extent that they did not expressly repeal relevant provisions of those Acts (The Peerage Act 1963 did expressly repeal Article 22 of the Treaty of Union).
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, the small barons (see below) 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'.
*'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).
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, as quoted below), then how can it be asserted that a feudal baron was not a peer in 1707? Even exclusion from the Union Roll, the official list, is not enough, because if two people demonstrably have the same right (to sit and vote in Parliament as nobles) and it is that right that makes a person a peer in the first place, then they are both peers 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. The right of the 'greater barons' to receive an individual summons, which was the only difference between them and the 'small barons' in terms of their Parliamentary rights, 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. Clearly, it is the substance that matters, not the form. The same applies to being expressly created a 'Lord of Parliament' by letters patent, because being so created only gave the right to an individual summons. This is 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 was that the right to an individual summons gave him a right to do, which was to sit and vote in Parliament as a noble - and the feudal barons also had that right.
It follows that the 'small barons' never ceased to be peers, but, as explained below, it appears that the Barony of Mordington was not, in fact, a 'smaller barony' but was a 'greater barony' and its holder did not come within the scope of the Act of 1587 and was, as a 'greater baron', always entitled to an individual summons.
To illustrate the fact that lords of parliament holding personal peerages were of the same estate as feudal barons, 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 meaningful 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.
Note in this context that Viscount Stair, in his 'The Institutions of the Law of Scotland' (Vol. IV.I.61), states: 'It is another great and common interest, that men's rights ought to be determined, not alone by the laws standing when the determination is, but by the laws standing when the rights were acquired, or the deeds done, although thereafter these laws were abrogated...' This is confirmed by Bentley (Deceased), R v  EWCA Crim 251 where it was stated: 'We must apply the substantive law of murder as applicable at the time, disregarding the abolition of constructive malice and the introduction of the defence of diminished responsibility by the Homicide Act 1957.' The opposite is true (apparently) with the Common Law (as opposed to statute law), where the current law is applied (see the same case).
There are at least four 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?' Sutherland was also a regality ('Complete Peerage', Vol. XII, Part I, p. 555).
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'.
The fourth is the Earldom of Mar, of which there are now two. This Earldom was the subject of a disputed peerage claim in 1867 which eventually (after 20 years) denuded the rightful Earl of his title and estates; a decision that was so blatantly unjust that it caused a storm of protest and was only rectified by the creation of a second Earldom of the same name by an Act of Parliament (pretended to be a resurrection of an earlier title). By this means the Committee for Privileges avoided having to acknowledge its 'error'. The full, sorry tale is told in the 'Complete Peerage' (Vol. VIII, pp. 397-433; Vol. VIII, pp. 827-854 and Vol. IX, pp. 77-169). We only need to quote the description of the decision in Vol. VIII, p. 854 as 'a verdict, which appears flagranty unjust, and founded upon perversions of the facts and miscontructions of the ancient law of the country.' What is not recognized in the 'Complete Peerage' is that this outrageous decision derived from one single motive; a desire not to recognize a territorial title (feudal barony), which is what the Earldom of Mar undeniably was and is (the proper one). The 'Complete Peerage' says (Vol. IX, p. 77) 'But the most remarkable feature of the Case is that the question, which of the Contestants had right to the Earldom of Mar, a question which engaged the House of Lords for eight years, and for another ten was the subject of bitter controversy, could have been settled in half an hour.'
In fact, every decision of the Committee for Privileges on the subject of feudal titles has been nonsensical, including those relating to Abergavenny (various dates including the Berkeley case of 1861), Arundel (in the Berkeley case of 1861), Fitzwalter (1670) and Berkeley (1861) which, inter alia, led the 'Complete Peerage' to describe such decisions as 'arbitrary, conflicting and unhistoric' (Vol. I, p. xiii). This is actually proved by certain comments made by Lord Redesdale himself in the Berkeley case, who stated (VIII, HLC, 153), with reference to the Abergavenny case, to the effect that 'the manner in which both peerages were awarded by restitution is a proof that the House was resolved not to declare Abergavenny a barony by tenure'; in other words they simply weren't going to do it and that was that. Interestingly, the Earldom of Mar Restitution Act 1885 refers ('Complete Peerage', Vol. IX, p. 162) to 'the unjust refutations and hinderances made by obstinate and partial rulers and officers, refusing reasonable prayers and petitions...'
Put simply, if these four 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). Palmers Peerage Law in England (Stevens & Sons Ltd, London, 1907, p. 163) states: It is well settled that mere delay in claiming a peerage will not bar the right to it. Reference is made to Marchants Reports of the Gardner Case, p. 464.
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.'
Note that Viscount Stair, an institutional writer (meaning that his works are regarded as authoritative in Scottish courts of law), in his 'The Institutions of the Law of Scotland' (Vol. I, II.3.2), states: 'But when fees holden of the King became sub-divided, and multiplied, two or more commissioners were admitted in Parliament, in name of the meaner barons and freeholders; and all were accounted great barons [that is, Lords of Parliament], who held an hundred merk land, or above, of the King, and the rest, meaner barons; Parl. 1503, c. 78.'* Given that the 'meaner barons' were those who appointed commissioners, it follows that the greater barons were those who received (or were entitled or presumed to receive) individual summonses (since they were the only other type of baron - a baron was one or the other**) and nobles who received individual summonses were, by definition, Lords of Parliament (it was being a Lord of Parliament that entitled a person to an individual summons). Thus, by an Act of Parliament of 1503 all barons who held lands to the value of one hundred merks or above (which refers to the dues payable to the feudal superior) were accounted to be Lords of Parliament. Not that this affected the status of the meaner barons as peers in the original historical sense (members of the nobility with the right and duty to sit in Parliament as nobles) but it does confirm that, by statute, certain feudal barons were recognized, not just as peers, but as Lords of Parliament as well (in the modern sense).
*'Item, it is statute and ordained, that fra thine foorth na barronne, freehalder, nor vassal quhilk ar within ane hundredth markes of this extent, that now is, be compelled to cum personally to the parliamente, bot gif it be that our soveraine lorde writing specially for them. And sa not to be unlawed for their presence and they send their procuratours to answere for them, with the barronnes of the schire, or the maist famous persons. And all that are abone the extent of ane hundreth markes to cum to parliament under the paine of the auld unlaw.'
**'We had two kinds of baronies formerly, that entitled their possessors to sit in Parliament - the first of a superior, or enobled character, constituting a baronial peerage or the dignity of a Lord at present - the other inferior, and without this important concomitant; hence the term [barony] was frequently applied to the estates of commoners [a commoner being anyone who was not a peer in the modern sense].' (J. F. Riddell, 'Inquiry into the Law and Practice in Scottish Peerages', Edinburgh, 1862, Vol. I, p. 89, n. 1). After 1587 the 'inferior type' or 'small barons' elected commissioners to represent them in Parliament, while the 'superior type' or Lords of Parliament attended Parliament in person (or were supposed to). Hence a baron was either a 'small baron' or a Lord of Parliament; that is, if a person was a baron but not a small baron, he can only have been a Lord of Parliament. According to the Act of 1503 barons holding baronies of more than 100 merklands were not small barons (as confirmed by Stair, who calls them 'great barons') and so were excluded from the scope of the Act of 1587 (which, it is universally acknowledged, related only to the 'small barons'); this means that they must have been Lords of Parliament, the only other type of baron (as confirmed by Riddell). To avoid this conclusion it would be necessary to invent a third type of baron; a baron, not being a Lord of Parliament, who attended (or should have attended) Parliament personally after 1587. No such class of baron has ever been asserted to have existed by any of the authorities on the matter. Nonetheless, it is inevitable that many or most of the feudal barons holding more than 100 merklands did, in fact, take part in the election of the commissioners for the shires. Many, if not most, would probably have been unaware that they were excluded from the scope of the Act of 1587, which, following Stair, they undoubtedly were. The 'Complete Peerage' (Vol. III, p. 49, n. a) with regard to the Barony of Carnegy of Kinnaird being created in 1616 states: 'Being erected "in Baroniam majorem et Dominum Parliamenti," a peculiar and unique form, marking, very clearly, the distinction the Greater and Lesser Barons of Scotland.' Thus, being a major/greater baron and a Lord of Parliament are one and the same thing; if a person is a major/greater baron, he is a Lord of Parliament. 'A Dictionary and Digest of the Law of Scotland' (William Bell, Edinburgh, 1838) says of Banrentes: 'Banrentes; banerets; in old law language, a kind of estate greater and more honourable than barrones. Barones were permitted to choose commissioners to the Scotch Parliament; but banrentes were summoned personally to Parliament.' On this basis, the great barons identified by Stair were barons banrent and, being summoned personally to Parliament, Lords of Parliament. 'History of the MacDonalds and Lords of the Isles' (Alexander Mackenzie, Inverness, 1881, p. 96) refers to John, 4th and last Lord of the Isles, being created a Baron Banrent and Lord of Parliament by the title of Lord of the Isles in 1476. On 28/4/1491 Sir James Ogilvy of Airlie was created Lord Ogilvy of Airlie 'in barony and banrent and lord of this parliament' (NAS, PA2/5, f.152r).
A merkland was a unit of land which seems to have varied between one and two acres, which seems to have depended, to some extent at least, on the fertility of the land and hence its value ("Merk n.". Dictionary of the Scots Language, 2004, Scottish Language Dictionaries Ltd, Accessed 5 Jul 2016 (http://www.dsl.ac.uk/entry/snd/merk). Elsewhere a merkland was stated to have been between one and three acres (Henry Frowde, The English Dialect Dictionary, Oxford, 1905, vol. 4, p. 38). In a fertile area like the Merse, a merkland would have been smaller than in other, less productive, areas like the Highlands and Islands.
The parish of Mordington and Lamberton is 3069.75 acres, according to the Ordnance Gazetteer of Scotland (p. 1196). The Barony of Mordington (contiguous with the old parish of Mordington before it was joined with the parish of Lamberton in 1650, but excluding the lands of Edrington Castle) appears to be about 1000 acres, according to the Google Maps Area Calculator Tool, but this excludes the disjointed land of Longformacus (originally part of the barony) which may have been larger than Mordington itself (the parish of Longformacus and Ellem, joined in 1715, is over 10 miles long by between 3/4 mile and 6 miles wide). On this basis, the 1000 acres (approx.) of the Barony of Mordington (even excluding Longformacus) would have easily exceeded the 100 merkland (300 acres maximum) required for the barony to qualify as a greater barony or Lordship of Parliament under the Act of 1503. It follows that the Barony of Mordington is not just a feudal barony but, under the 1503 Act, is also a Lordship of Parliament in the sense understood today.
Thus the Act of Parliament of 1503 defined the meaning of the phrase 'smaller barons' or 'meaner barons', so that when the Act of 1587 was passed (see above) the meaning of the phrase 'smaller barons' was settled and understood. In fact, the Act of 1503 was the only Act, as far as I am aware, which defined the difference between the smaller and greater barons. One thing that is clear is that, once a person had been acknowledged in a statute as a greater baron or Lord of Parliament, to deprive him of that rank by anything other than express words in a statute or necessary implication would be contrary to the fundamental presumption against taking away rights and therefore unlawful.* It follows that the status of feudal barons holding more than one hundred merks of land as 'greater barons' was not removed by the Act of 1587 or, indeed, any subsequent Act.
*'On those who seek to establish that the Legislature intended to take away the private rights of individuals, lies the burden of shewing that such an intention appears by express words or necessary implication.' (Managers of the Metropolitan Asylum District v. Frederick Hill and Others, Executors, &C. William Lund and Alfred Fripp (1880-81) L.R. 6 App. Cas. 193 per Lord Blackburn). See also In re Athlumney  2 QB 547, 551-552: 'Perhaps no rule of construction is more firmly established than this - that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment.' (cited in Wilson and others v. Secretary of State for Trade and Industry  UKHL 40 at 193).
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 anyway.').
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; either you hold a referendum or the representatives of each side (if they still exist) renegotiate the matter. 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'.
For the union of England and Scotland to take place, there had to be an agreement between the two countries. The order of events was as follow (as per the judgment of Lord Nicholls of Birkenhead):
The union happened on 1/5/1707. But which document or documents form the basis of the union? Lord Nicholls of Birkenhead said in his judgment: Thus, the terms on which union took place are to be found exclusively, not in a treaty as that expression is normally understood today, but in enabling legislation enacted separately by the two countries before they became `for ever . . . united into one kingdom' (article 1). But this is misleading to the extent that it implies that it is the Acts of the two Parliaments that constitute the agreement. They do not. The Acts ratify the agreement; they are not themselves the agreement, even though they repeat the terms of the agreement verbatim. The agreement is in the articles agreed on 22/7/1706. An agreement and the ratification of that agreement are separate things. Ratification of an agreement is not an agreement; it is ratification of an agreement. The Act of the Scottish Parliament does not constitute an agreement; the Act of the English Parliament does not constitute an agreement. The Acts taken together constitute ratification of an agreement made on 22/7/1706. Did the representatives of the two countries reach an agreement on 22/7/1706? Yes, therefore that is the agreement. It was an agreement between two countries, which means that it is a treaty. As with all treaties, the treaty had to be ratified by the respective governments of the countries. Of course, the agreement was not binding until ratified by both parties but it is the agreement which was agreed and it is the agreement which was then ratified. It is the agreement which is the agreement which, when ratified, founded the new state of Great Britain and the Parliament of that new state of Great Britain. The Union with England Act 1707 states: Act Ratifying and Approving the Treaty of Union of the Two Kingdoms of Scotland and England. This makes it clear that there was a Treaty and the Act ratified that Treaty; the Act was not the Treaty. The Union with Scotland Act 1706 states: An Act for an Union of the Two Kingdoms of England and Scotland, but, heres the rub, the Parliament of England had no power to unite the two countries, it could only ratify an agreement to unite the two countries. This means that the words in the English Act also mean that the Act ratifies and approves the treaty, rather than puts into effect a union by itself and on its own authority.
Lets illustrate this. Say you have a treaty agreed by the representatives of eight countries. The treaty must be ratified by the governments of all eight countries. It is so ratified. But the treaty is not the eight documents that signify the ratification by the eight governments, even if those documents repeat the terms of the agreement verbatim; the treaty is the document agreed by the representatives and the date of the treaty is the date of the agreement between those representatives, though, of course, a treaty might not come into force until a later date. If you doubt this, look at the Lisbon Treaty. Precisely this process happened. An agreement was reached between representatives of the relevant states, that agreement was then signed by representatives of the relevant states and the governments of those states then ratified that agreement. But the treaty is the document agreed and signed by the representatives. If you ask Which document is the treaty and when was that document signed? the answer will be that the document is the one signed in Lisbon by the representatives of the relevant countries on 13/12/2007, which came into force on 1/12/2009.
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. 'Dignity' is defined as 'In English law. An honor; a title, station, or distinction of honor. Dignities are a species of incorporeal hereditaments, in which a person may have a property or estate. 2 Bl. Comm. 37; 1 Bl. Comm. 396; 1 Crabb, Real Prop. 468, et seq.' (http://thelawdictionary.org/dignity/, accessed 18/6/2016). The Oxford Companion to Law defines dignity as the right to bear a title of honour or of nobility. Lord St. Leonards, in the Berkeley Peerage Case of 1861, described the feudal Barony of Berkeley as a title of honour. So, we have a feudal dignity being described by a Law Lord as a title of honour, which the Oxford Companion to Law tells us is a dignity. So, we have it on the highest authority that an English feudal barony is a dignity and it follows that a Scottish feudal barony (which is, in essence, of the same nature, but which retained its privileges until a much later date) is also a dignity. What is DIGNITY? In English law. An honor; a title, station, or distinction of honor. Dignities are a species of incorporeal hereditaments, in which a person may have a property or estate. 2 Bl. Comm. 37; 1 Bl. Comm. 396; 1 Crabb, Real Prop. 468, et seq. (http://thelawdictionary.org/dignity/, accessed 15/6/2016).
Further, Acts of the Scottish Parliament are not law to the extent that they contravene EU law or infringe upon rights protected by the European Convention on Human Rights (s.29(d) Scotland Act 1998) and the Abolition of Feudal Tenure etc. (Scotland) Act 2000 abrogated certain property rights of feudal barons without compensation and in a manner that was neither proportionate nor necessary in a democratic society. This on the basis that the House of Lords itself is an unelected (and partly hereditary) second legislative chamber, and if its existence is justified in a democratic society then it cannot convincingly be claimed that any comparable rights of unelected and hereditary feudal barons (though of a judicial rather than a legislative nature) are not so justified. In short, if unelected and/or hereditary holders of an office or dignity can make the law, it follows that unelected and/or hereditary holders of an office or dignity can interpret the law. The latter is, in fact, rather less objectionable than the former.
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, unless done by statute. It is therefore incorrect to say that feudal baronies do not involve the exercise of the prerogative of the Crown.
*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.
More importantly, Schedule 5 Scotland Act 1998 says that honours and dignities (it mentions no exclusions, but it clearly refers to honours and dignities granted by the Crown; for which see preceding paragraph) 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. Further, the abolition was void because it removes property rights (baronial jurisdiction) without compensation; this is a breach of property rights protected by the European Convention on Human Rights (ECHR) and, under s.29(d) Scotland Act 1998, any Act of the Scottish Parliament is not law to the extent that it breaches ECHR rights or EU law.
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, and these rights were heritable, 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 by The Crown Estate Commissioners under the provisions of The Crown Estate Act 1961) 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.'
*Magdalen College Case (1615) 11 Cop. Rep. 66 b, 68 b; 1 Bl. Com. 14th ed., 262; Sheffield (Lord) v. Ratcliffe (1615). Hob. 334, 347 (Halsbury, 'The Laws of England', Butterworth & Co., London, 1909, vol. 6, p. 409).
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.
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).
Appendix - Comments on the law.