Baron courts
gra...@gmilne.demon.co.uk
their legal jurisdiction was abolished by the AFT (Scotland) Act 2000,
there was no provision to the effect that they could not continue to
be held in order to transact other business, and in the absence of a
specific provision to this effect they continued to enjoy a legal
right to transact such business (being any business which was
customarily transacted in such courts). In England, the power of manor
courts to transact such business was expressly abolished by s.23
Administration of Justice Act 1977 (c.38) and the fact that it was
necessary to expressly abolish such powers must mean that if they had
not been expressly abolished, they would have continued to exist. On
this basis, the power of baron courts in Scotland to transact such
business continues to exist because it has not been expressly
abolished. This seems pretty obvious but there seems to be a common
assumption that baron courts have been abolished in Scotland. This is
not the case.
For interest s.23 states:
The following courts, namely—
(a)any court of a description specified in Part I of Schedule 4 to
this Act except—
(i) the Estray Court for the Lordship of Denbigh, and
(ii) the court leet for the Manor of Laxton, and
(b)the courts specified in Part II of that Schedule,
being the courts which appear to the Lord Chancellor to have, but not
to exercise, jurisdiction to hear and determine legal proceedings,
shall cease to have any jurisdiction to hear and determine legal
proceedings; but any such court may continue to sit and transact such
other business, if any, as was customary for it immediately before the
coming into force of this section, and in the case of the courts
specified in Part III of Schedule 4 to this Act the business that is
to be treated as having been customary shall (apart from business
relating to the appointment of officers of the court) be the business
specified in relation to that court in column 2 of that Part.
(2) The descriptions of courts in Part I of Schedule 4 to this Act
include courts held for manors of which the Queen or the Duke of
Cornwall is the lord.
(3) Any jurisdiction—
(a)of the Court of the Chancellor or Vice-Chancellor of Oxford
University, and
(b)of the Cambridge University Chancellor’s Court,
other than that which presently exists under the statutes of those
universities, is hereby abolished.
(4) The Lord Chancellor may by order make any incidental or
transitional provision which he considers expedient in consequence of
this section and may by such order provide—
(a)for enabling any jurisdiction appearing to him to have been
formerly exercised by a court specified in Part I or II of Schedule 4
to this Act to be exercised instead by the High Court, the Crown
Court, a county court or a magistrates’ court; and
(b)for such amendments or repeals of provisions of any local Act as
appear to him to be required in consequence of this section.
(5) The power to make orders under this section shall be exercisable
by statutory instrument subject to annulment in pursuance of a
resolution of either House of Parliament; and any such order may be
varied or revoked by a subsequent order made under the power.
Schedule 4 is interesting. It is at:
I will be holding a regality court of Mordington in the near future,
where I will be sentencing to death people who throw crisp packets,
tins, bottles and other assorted rubbish out of car windows. Please
feel free to turn up.
Graham
Derek Howard
>
> I will be holding a regality court of Mordington in the near future,
> where I will be sentencing to death people who throw crisp packets,
> tins, bottles and other assorted rubbish out of car windows. Please
> feel free to turn up.
>
> Graham
The Abolition of Feudal Tenure etc. (Scotland) Act, 2000, Section 63
states:
"(1) **Any** jurisdiction of, .... barony shall on the appointed day
cease to exist; ...."
<http://www.opsi.gov.uk/legislation/scotland/acts2000/
asp_20000005_en_6#pt6-pb2-l1g63> [My emphasis].
There is no reserve as in the English clause in the Administration of
Justice Act that you have quoted above: "but any such court may
continue to sit and transact such other business, if any, as was
customary for it immediately before the coming into force of this
section".
Therefore I would conclude that such customary business of baronial
courts is indeed abolished in Scotland. Of course territorial baronies
have also ceased to exist in Scotland so there is nothing to be
represented by a court. (This is a separate matter to the title of
baron where my views are well known - that it coninues to be a style
used for owners of territories having a jurisdiction and held in chief
of the Crown, but that none such now exist).
Even if you held a bona fide English lordship of a manor you would
have to show that such business had been transacted _immediately_
before the coming into force of the Administration of Justice Act (not
an easy task for courts other than those in the Act's annex). Now I
know it is not an English lordship of a manor but just out interest,
did the alleged court of Mordington exist and meet in reality in the
20th century? Did previous owners of Mordington ever have rights of
high justice and, if so, when were they last applied? And what has
executing litter louts got to do with heraldry other than the royal
warrant or whisky manufacturers' arms on the bottle labels? (Better
heraldic litter than logo litter).
Derek Howard
gra...@gmilne.demon.co.uk
>
> - Show quoted text -
1. Jurisdiction means legal jurisdiction. Nothing else was affected by
the AFT Act. All that was removed were the rights of public justice.
Since nothing else was removed, everything else must remain. It really
is that simple.
2. There is no mention in the AFT Act of exercising other rights
immediately before the act. This is irrelevant.
3. Mordington has been a regality since the 14th century (24th March
1381-2 to be precise). And 'Yes' the Earls of Morton exercised
regality jurisdiction at the Regality Court of Dalkeith. However, it
is irrelevant if these powers were last used yesterday or 500 years
ago (or, indeed, never); they exist. You would not argue, I think,
that merely because someone has not been tried for treason in the UK
for x number of years, that the right to try crimes of treason has
been removed from the courts in some way. Your argument is a familiar
one but silly nonetheless. If your argument was sound then you would
say 'This court has just been granted x powers, but since they have
never exercised them, they cannot have them - therefore they are
abolished'. Loony tunes!
4. As for my mention of litter louts, may I suggest that you acquire a
sense of humour - by grant from the Lord Lyon if by no other means.
5. Your views are well-known are they? Modest! All that I know of your
views is that they are a complete load of cobblers. I have proved
beyond doubt that your views on English feudal baronies are
nonsensical and pure fiction - unsupported by any historical fact.
Everyone knows that all the English feudal baronies ever erected still
exist in law.
PS Schedule 4 of the Administration of Justice Act 1977 (c.38)
specifically mentions courts baron. We can conclude from this that if
they had not been mentioned their jurisdiction would not have been
abolished (consistent with the presumption against taking away
rights). On the same basis, we can conclude that since the AFT Act did
not specifcally abolish regality jurisdiction (I happen to know that
the people who drafted the Act actually overlooked this issue - they
had never heard of regalities until I raised the issue), it continues
to exist in law. So it is clear that I have every right to hold a
regality court (to hang litter louts - or people who disagree with
me!).
Graham
Derek Howard
<gra...@gmilne.demon.co.uk> wrote:
> On 20 Apr, 00:17, Derek Howard <dhow...@skynet.be> wrote:
> > On Apr 19, 6:49 pm, "gra...@gmilne.demon.co.uk"
> > <gra...@gmilne.demon.co.uk> wrote:
> > > A thought about baron courts in Scotland. It seems to me that although
> > > their legal jurisdiction was abolished by the AFT (Scotland) Act 2000,
> > > there was no provision to the effect that they could not continue to
> > > be held in order to transact other business, and in the absence of a
> > > specific provision to this effect they continued to enjoy a legal
> > > right to transact such business (being any business which was
> > > customarily transacted in such courts).
> > The Abolition of Feudal Tenure etc. (Scotland) Act, 2000, Section 63
> > states:
> > "(1) **Any** jurisdiction of, .... barony shall on the appointed day
> > cease to exist; ...."
> > <http://www.opsi.gov.uk/legislation/scotland/acts2000/
> > asp_20000005_en_6#pt6-pb2-l1g63> [My emphasis].
>
> > There is no reserve as in the English clause in the Administration of
> > Justice Act that you have quoted above: "but any such court may
> > continue to sit and transact such other business, if any, as was
> > customary for it immediately before the coming into force of this
> > section".
>
> > Therefore I would conclude that such customary business of baronial
> > courts is indeed abolished in Scotland. Of course territorial baronies
> > have also ceased to exist in Scotland so there is nothing to be
> > represented by a court. (This is a separate matter to the title of
> > used for owners of territories having a jurisdiction and held in chief
> > of the Crown, but that none such now exist).
>
> > Even if you held a bona fide English lordship of a manor you would
> > have to show that such business had been transacted _immediately_
> > before the coming into force of the Administration of Justice Act (not
> > an easy task for courts other than those in the Act's annex). Now I
> > know it is not an English lordship of a manor but just out interest,
> > did the alleged court of Mordington exist and meet in reality in the
> > 20th century? Did previous owners of Mordington ever have rights of
> > high justice and, if so, when were they last applied? And what has
> > executing litter louts got to do with heraldry other than the royal
> > warrant or whisky manufacturers' arms on the bottle labels? (Better
> > heraldic litter than logo litter).
>
> > Derek Howard
> 1. Jurisdiction means legal jurisdiction. Nothing else was affected by
> the AFT Act. All that was removed were the rights of public justice.
> Since nothing else was removed, everything else must remain. It really
> is that simple.
A court has no other form of jurisdiction than legal jurisdiction.
Repeat - the AFT states: "(1) **Any** jurisdiction of, .... barony
shall on the appointed day cease to exist; ....". Where is the
restriction? What is not abolished is the playing of tiddleywinks in
the court chambers or the picking of the former baronial nose in the
corner but these are not functions of the court, still less, one would
hope, customary.
The wording of the AFT is in contrast to, and far wider in scope and
effect, than the AJA in England and Wales where the listed forms of
courts "which appear to the Lord Chancellor to have, but not to
exercise, jurisdiction to hear and determine legal proceedings, shall
cease to have any jurisdiction to hear and determine legal
proceedings; but any such court may continue to sit and transact such
other business, if any, as was customary for it immediately before the
coming into force of this section". Notice the qualification as to the
extent of abolished jurisdiction as well as the specific reservation
for customary business, neither present in the AFT.
> 2. There is no mention in the AFT Act of exercising other rights
> immediately before the act. This is irrelevant.
It is not irrelevant to your original post and the argument therein in
which **you** said :
"and in the absence of a specific provision to this effect they
continued to enjoy a legal right to transact such business (being any
business which was customarily transacted in such courts)."
It would perhaps help if you could point to business which was
**customarily** transacted in Mordington..
> 3. Mordington has been a regality since the 14th century (24th March
> 1381-2 to be precise). And 'Yes' the Earls of Morton exercised
> regality jurisdiction at the Regality Court of Dalkeith. However, it
> is irrelevant if these powers were last used yesterday or 500 years
> ago (or, indeed, never); they exist. You would not argue, I think,
> that merely because someone has not been tried for treason in the UK
> for x number of years, that the right to try crimes of treason has
> been removed from the courts in some way. Your argument is a familiar
> one but silly nonetheless. If your argument was sound then you would
> say 'This court has just been granted x powers, but since they have
> never exercised them, they cannot have them - therefore they are
> abolished'. Loony tunes!
My argument? I asked a question. Apparently you cannot read. It is a
pity that you have to invent arguments to attack. You have often done
this in the past. It is not a sensible way of debating. Incidentally,
where did you raise the issue of regalities in your original post? It
was, as I said, discussing customarily transacted business. I doubt
that treason trials were held by "custom" in any court, so that is
irrelevant.
<snip of absolute rubbish>
> PS Schedule 4 of the Administration of Justice Act 1977 (c.38)
> specifically mentions courts baron. We can conclude from this that if
> they had not been mentioned their jurisdiction would not have been
> abolished (consistent with the presumption against taking away
> rights).
Had the AJA sought to abolish all jurisdictions it would have said so
using terms such as "all" or "any", as indeed it does with non-
statutory jurisdictions of the Court of the Chancellor or Vice-
Chancellor of Oxford University, and of the Cambridge University
Chancellor’s Court. However, the AJA set out to preserve a number of
courts and customary transactions, the AFT did not.
> On the same basis, we can conclude that since the AFT Act did
> not specifcally abolish regality jurisdiction (I happen to know that
> the people who drafted the Act actually overlooked this issue - they
> had never heard of regalities until I raised the issue), it continues
> to exist in law. So it is clear that I have every right to hold a
> regality court (to hang litter louts - or people who disagree with
> me!).
Repeat: "(1) **Any** jurisdiction of, .... barony shall on the
appointed day cease to exist; ....". It matters not whether the
legislature was aware of a particular form of jurisdiction.
Now it might be helpful if you clarified whether you were discussing
regalities or customary matters in your original post, and whether
this has any heraldic relevance.
Derek Howard
gra...@gmilne.demon.co.uk
>
> - Show quoted text -
The word 'jurisdcition' means legal jurisdiction. You can say 'any'
juridisdiction or 'all' jurisdiction'; it simply doesn't matter
because the word still refers to legal jurisdiction. How can you have
a jurisdiction that is non-legal? Answer me that. A baron court can
conduct business not related to the exercise of a legal jurisdiction
(the word 'court' really means 'court and parliament' of the barony).
It can, for instance, appoint people to offices, such as some of those
listed in the Act. It can also act as a private court with the consent
of the relevant people. So, we are saying that where, as a matter of
custom, people have accepted that a court can do certain things (which
do not involve the exercise of rights of public justice i.e. a
jurisdiction), then they may (legally) continue to do so unless their
legal capacity to do so is specifically abolished by law. Since this
was not the case with the AFT Act, these rights still exist. Mind you,
people who have customarily agreed to abide by the decision of a baron
court may find that they have a contractual duty to abide by such
decisions, so, in effect, barons courts could acquire enforceable
rights that amount, in effect, to a legal jurisdiction. If A and B
legally agree (by contract) to abide by my decision then they are
legally bound to do so, so I acquire a jurisdiction (a private
jurisdiction mind you) which is enforceable in the public courts. See!
You can't get rid of us, Monsewer Howard!
And, then again, regality jurisdiction was not mentioned at all in the
AFT Act.
Tough luck, old cheese.
The question of the existence of barons' courts is relevant from a
heraldic point of view because barons appoint people like baron
baillies and the Lord Lyon grants additaments to such officers. This
means that, indirectly, barons have the right to grant armorial
additaments. Since the Act specifically protected the heraldic
privileges of barons (which includes the right to appoint a baron
baillie), these powers continue - and, of course, a baron baillie must
be a baillie of something, namely a baron court. And Lords of Regality
have the right to create their own barons, which entails a right to
grant arms (as the Earls of Chester did to their barons). This was
also protected by the AFT Act.
Graham
Derek Howard
>
> - Show quoted text -
Dream on.
Derek Howard
gra...@gmilne.demon.co.uk
Scottish earls were creating barons up to the 1990s according to Hugh
Peskett, Scottish Editor of Burke's. Mr. Peskett is the greatest
living authority on Scottish feudal baronies (unlike you). See:
http://www.hughpeskett.co.uk/008BARONY/BARONY.HTM
Since there was nothing in the AFT Act to remove this right (I am
taking Mr. Peskett at his word here), the right continues. Lords of
regality had higher jurisdictional powers than earls (whose
jurisdiction was the same as that of normal barons) and could grant
franchise baronial jurisdictions, that is, create barons. So why do I
need to dream about something that exists?
PS You had better be nice to me or I will not make you a baron (you
will just have to dream on).
I must say, winding you up is quite fun.
Graham
Joseph McMillan
<gra...@gmilne.demon.co.uk> wrote:
>
> Scottish earls were creating barons up to the 1990s according to Hugh
> Peskett, Scottish Editor of Burke's.
Too bad Hugh didn't give any examples or describe the practical
meaning of such creations. I'm not questioning his word; just wishing
he'd been a bit more explicit.
BTW, it's worth emphasizing that he does not just say "Scottish earls"
but specifically the earls of the seven ancient earldoms (Angus,
Atholl, Caithness, Fife, Mar, Moray, Strathearn) and the Lord of the
Isles. I thought all the earldoms except Mar were extinct, the
current peers with these titles not being successors to the ancient
earls but subsequent re-creations. I stand ready to be corrected
about that.
>
> Since there was nothing in the AFT Act to remove this right (I am
> taking Mr. Peskett at his word here), the right continues.
Where exactly does he say that?
As an aside, since you describe Hugh Peskett as "the greatest living
authority on Scottish feudal baronies," would you also accept that he
knows a thing or two about English and Irish feudal baronies? What he
says about these at the bottom of the page would have been worth
quoting in previous discussions on those subjects.
Joseph McMillan
gra...@gmilne.demon.co.uk
Hugh Peskett does not say that this power belonged only to the ancient
ealrdoms. What he says is 'There are some rare exceptions, 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
power to create barons DERIVES FROM the ancient power exercised by the
earls of the seven ancient earldoms. I would also say that it was
inherent in the nature of their feudal holding, but the point is
hardly worth arguing; lords of regality exercised a higher
jurisdiction that earls (or even dukes) and there is no question that
they had (and have) the right to create their own barons, whether they
chose to or not. I take it that the creations in the latter part of
the lasty century are by 'ordinary earls' for the reason you state.
I did not say that Hugh Peskett said that the AFT Act did not remove
the right; I said so myself.
Hugh Peskett is an authority on feudal baronies but what he says about
English baronies is wrong, as I have clearly demontsrated; they were
not abolished in 1660 and continue to exist. He is an authority, not
infallible. I, on the other hand, am like the Pope.
Graham
Joseph McMillan
<gra...@gmilne.demon.co.uk> wrote:
>
> Hugh Peskett does not say that this power belonged only to the ancient
> ealrdoms. What he says is 'There are some rare exceptions, 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 only possible antecedent of "they" is "the earls of the seven
ancient earldoms" and "the Lords of the Isles." This is made clear by
the following sentence: "In those cases they are held of the
successors to the ancient earls." Not every earl is a successor to
one of the ancient earls. In the list Mr. Peskett gives, he
specifically says the barony of the Bachuil is held from the Duke of
Argyll in his capacity as successor to the Lords of the Isles.
Joseph McMillan
StephenP
<gra...@gmilne.demon.co.uk> wrote:
> Everyone knows that all the English feudal baronies ever erected still
> exist in law.
Correction. Everyone knows that YOU believe that all the English
gra...@gmilne.demon.co.uk
Rubbish. Hugh Peskett says that earls were creating barons into the
1990s. There were NO successors to the ancient earldoms existing at
that time, not even Mar, which was a 15th century creation as far as I
remember. However, the argument about earls is largely irrelevant. My
point was that lords of regality had, and have, the power to create
barons. If you are not aware of this fact then you do not understand
feudalism (or the privileges of feudalism that survived or were
preserved by the AFT Act). Palatine lords exercised ROYAL jurisdiction
within their domains, to the extent that royal officers, including
sheriffs, were excluded from them. Bankton, who is one of the
authorities, called lords of regality 'reguli' or sub-kings. I merely
quoted Peskett to illustrate that those who held a LOWER form of
jurisdcition than lords of regality could create barons.
Derek Howard
<gra...@gmilne.demon.co.uk> wrote:
GM:
> > > Hugh Peskett does not say that this power belonged only to the ancient
> > > ealrdoms. What he says is 'There are some rare exceptions, 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 only possible antecedent of "they" is "the earls of the seven
> > ancient earldoms" and "the Lords of the Isles." This is made clear by
> > the following sentence: "In those cases they are held of the
> > successors to the ancient earls." Not every earl is a successor to
> > one of the ancient earls. In the list Mr. Peskett gives, he
> > specifically says the barony of the Bachuil is held from the Duke of
> > Argyll in his capacity as successor to the Lords of the Isles.
> Rubbish. Hugh Peskett says that earls were creating barons into the
> 1990s. There were NO successors to the ancient earldoms existing at
> that time, not even Mar, which was a 15th century creation as far as I
> remember. However, the argument about earls is largely irrelevant. My
> point was that lords of regality had, and have, the power to create
> barons. If you are not aware of this fact then you do not understand
> feudalism (or the privileges of feudalism that survived or were
> preserved by the AFT Act). Palatine lords exercised ROYAL jurisdiction
> within their domains, to the extent that royal officers, including
> sheriffs, were excluded from them. Bankton, who is one of the
> authorities, called lords of regality 'reguli' or sub-kings. I merely
> quoted Peskett to illustrate that those who held a LOWER form of
> jurisdcition than lords of regality could create barons.
It is however not an illustration as you claim. As it stands it is
hearsay only. I would be interested in an illustration which could be
examined. Better still I would be interested in proof regarding the
powers of modern day powers to create barons. Would you care to
furnish some?
Derek Howard
gra...@gmilne.demon.co.uk
>
> - Show quoted text -
Sure, go and ask Hugh Peskett. I am sure he will be delighted to know
that you regard his opinions (as written in Burke's) as hearsay.
Actually, I think you will find that Mr. Peskett's opinion is regarded
as authoritative in the Lyon Court, to the extent that if he certifies
a pedigree in the Lyon Court it will be accepted without examination
of the proofs.
Derek Howard
<gra...@gmilne.demon.co.uk> wrote:
> > GM:
> > > Rubbish. Hugh Peskett says that earls were creating barons into the
> > > 1990s. There were NO successors to the ancient earldoms existing at
> > > that time, not even Mar, which was a 15th century creation as far as I
> > > remember. However, the argument about earls is largely irrelevant. My
> > > point was that lords of regality had, and have, the power to create
> > > barons. If you are not aware of this fact then you do not understand
> > > feudalism (or the privileges of feudalism that survived or were
> > > preserved by the AFT Act). Palatine lords exercised ROYAL jurisdiction
> > > within their domains, to the extent that royal officers, including
> > > sheriffs, were excluded from them. Bankton, who is one of the
> > > authorities, called lords of regality 'reguli' or sub-kings. I merely
> > > quoted Peskett to illustrate that those who held a LOWER form of
> > > jurisdcition than lords of regality could create barons.
> > It is however not an illustration as you claim. As it stands it is
> > hearsay only. I would be interested in an illustration which could be
> > examined. Better still I would be interested in proof regarding the
> > powers of modern day powers to create barons. Would you care to
> > furnish some?
>
> Sure, go and ask Hugh Peskett. I am sure he will be delighted to know
> that you regard his opinions (as written in Burke's) as hearsay.
> Actually, I think you will find that Mr. Peskett's opinion is regarded
> as authoritative in the Lyon Court, to the extent that if he certifies
> a pedigree in the Lyon Court it will be accepted without examination
> of the proofs.
I take it from that that you have no evidence, still less proof. Nor
can you furnish an illustration. Pity.
I ask because, though it is a very long time indeed since I looked at
medieval Scottish legal history in detail, I seem to remember the
lords of regality having judicial autonomy in most cases (not all) but
I do not recall having seen any certain references to them having the
powers of creating baronies.
I note the page you wrote at
<http://www.peerage.org/genealogy/regalities.htm> you say:
"a Lord of Regality was granted higher jurisdictional rights in
liberam regalitatem (usually the Four Pleas of the Crown - murder,
arson, rape and robbery - in fact, complete crimminal jurisdiction
only excluding treason)". Nothing to do with powers of creating
baronies. Could you cite a grant of rights in liberam regalitatem that
estabishes this supposed right?
And you also say:
"the Heritable Jurisdictions Act 1747, which abolished regalities,
provides that "all and every person who shall appear to have been
lawfully possessed on the said twenty-fifth day of March one thousand
seven hundred and forty-eight, of any such justiciary, regality, or
other jurisdiction hereby abrogated, shall from and after the said
twenty-fifth day of March retain such jurisdiction of barony, or other
lower jurisdiction, as such persons would have been intitled to [...]"
Well, if, in your citation from the legislation, regalities were
abolished in 1748, presumably Mordington is not a regality, just as it
is no longer a barony.
Could you provide proof or even evidence that a lordship of regality
can exist as a title or dignity separate from the rights granted in
liberam regalitatem ? It seems to me that any title or dignity that
may once have been held by a lord of regality is much akin to that of
the territorial barons in Scotland. Unless you can show otherwise, it
would seem that any title or dignity stemmed from the jurisdiction
rather than a specific grant, without which there is no title or
dignity. There should be plenty of grants to establish exactly what
was, or was not, granted, for I understand that there were some 54
regalities in Scotland 1560 ["Kirkintilloch Burgh Court Book",
Scottish History Society, p xlii, .n2, cited in Nicholson: "Scotland
The Later Middle Ages", Edinburgh 1974, p 24, n 99], a number being
granted in the post medieval period. Perhaps you could be kind enough
to post the text of such a grant in full, as you are the one making
the claims about regalities?
I request this of you in order to substantiate your then
unsubstantiated claim of 20 April that "there is no question that they
had (and have) the right to create their own barons". Well I am asking
it, so there is now a question.
Derek Howard
Joseph McMillan
<gra...@gmilne.demon.co.uk> wrote:
>
> Sure, go and ask Hugh Peskett. I am sure he will be delighted to know
> that you regard his opinions (as written in Burke's) as hearsay.
> Actually, I think you will find that Mr. Peskett's opinion is regarded
> as authoritative in the Lyon Court, to the extent that if he certifies
> a pedigree in the Lyon Court it will be accepted without examination
That may be true of his genealogical work--although, if it is the
case, it strikes me as negligent to the point of dereliction--but that
doesn't exempt his statements on an issue like this from needing
supporting evidence if questioned.
gra...@gmilne.demon.co.uk
>
> - Show quoted text -
Go and ask Hugh Peskett. He says that Scottish earls (who cannot have
been direct successors of the ancient earls) were creating barons into
the 1990s. He is the Scottish Editor of Burke's and he made the
statement in his article on feudal barons in the latest edition. A
barony was a jurisdiction and if an earl had the right to create a
baron then a lord of regality did (sorry, does) as well. What are you
afraid of? He has made the statement. I rely on it. If you question
his statement then ask him to justify it. You could also ask the Lord
Lyon, since you are clearly so interested. I challenge you to approach
either party.
Your statement that feudal baronies (and a regality is a form of
barony) cannot exist without the jurisditction is a straight lie which
I will not even bother to refute. The AFT Act specifically preserved
baronies while abolishing their jurisdiction. The fact that you assert
otherwise merely proves to the whole world that you are a liar.
gra...@gmilne.demon.co.uk
The Lyon Court relies as a matter of practice on pedigrees vouched for
by reputable people, including members of the Scottish Genealogy
Society. Go and read 'Scots Heraldry' before shooting your mouth off.
And if you want the evidence just ask him for it. He's got an E-Mail
address on his website.
gra...@gmilne.demon.co.uk
>
> - Show quoted text -
PS It is an established fact that palatine earls in England had the
right to create barons. We know they did so. It follows, as Hugh
Peskett demonstrates, that palatine lords in Scotland had the same
right. Again, go and ask Hugh Peskett. I am sure he would be delighted
to lighten your darkness.
Derek Howard
<gra...@gmilne.demon.co.uk> wrote:
> PS It is an established fact that palatine earls in England had the
> right to create barons. We know they did so. It follows, as Hugh
> Peskett demonstrates, that palatine lords in Scotland had the same
> right. Again, go and ask Hugh Peskett. I am sure he would be delighted
> to lighten your darkness
Apparently also your darkness. Do not confuse the English palatine
counties with Scottish regalities. Though there were similarities
there were also great differrences. As it is you who seek to persuade
us of the supposed powers of regalities to create barons I suggest it
is down to you to gather the evidence.
Derek Howard
Derek Howard
<snip>
Well, just to help Graham in the task I have set him, may I quote a
grant of regality of: "all and singular the said lands of Logie with
the pertinents in the earldom of Strathearn within the sheriffdom of
Perth, to be held and had by the said John and his heirs from us and
our heirs in fee and heritage in perpetuity, by all their rightful
boundaries and divisions, in one integral and free barony and free
regality, freely, peacefully, fully, integrally and honourably, in
woods and plains, muirs and marshes, roads and footpaths, rivers and
ponds, mills, multures and their appurtenances, hawking-places,
hunting-grounds and fisheries, bonds, bondages, natives and their
households, with tenancies and services of the freeholders, with
courts and escheats, with gallows and pit, soke and sac, toll and
theame and infangthief, also with all and singular whatsoever manner
of liberties, profits, easements and rightful pertinents whatsoever,
either under ground or above ground, either unnamed or named,
pertaining to the said barony or which may pertain in future in any
way". [26 July 1366 Charter to John Logie of the lands of Logie,
following resignations].
The regality was merely another form of barony with judicial rights
beyond the normal baronial ones. A barony could not create a barony.
So, let us look then at an Earldom:
"The king, etc., to all, etc. Know that we have given etc., to our
beloved son John de Dunbar and Marjory [Stewart], [his] spouse, our
most beloved daughter, the entire earldom of Moray with the
pertinents, except the lordships and lands of Lochaber and of Badenoch
and the castle of Urquhart and the barony of the same, also our great
customs which pertain through the whole of the aforesaid earldom and
from the same earldom. All the aforesaid earldom to be held and had,
with the exceptions mentioned above, by John and Marjory and the
longest surviving of them, and the heirs legitimately procreated or to
be procreated between them, and themselves perchance failing, George
de Dunbar, earl of March, and his legitimate heirs whomsoever, of us
and our heirs, in fee and heritage in one complete and free earldom
and in pure and free regality, by all their proper boundaries and
divisions, in woods, plains, meadows, pastures and grazing-lands,
muirs, marshes, rivers, ponds, mills, multures and their
appurtenances, hawkings and huntings, bonds, bondages, natives and
their appurtenances, with the tenancies and services of the
freeholders, with patronages of churches, with courts, both of the
four points pertaining to the coronation and others, with the issues
and escheats of the same courts, with fees and forfeitures, pertaining
both to peace and war, and with all manner of other liberties, profits
and easements and lawful pertinents whatsoever, only those excepted
above being excluded, namely both named and unnamed, both far and
near, both below ground and above ground, pertaining to the said
earldom or which may pertain in any way in future. The aforementioned
John and Marjory and their aforesaid heirs, whom failing the said
George, earl of March, and his heirs of whatever sort, making to us
and our heirs thereupon the service of two knights in our army. We
also grant to the same John and Marjory and their aforesaid heirs, and
failing them the aforementioned George, earl of March, and his heirs
whomsoever, for us and our heirs and our successors, that whenever and
so often as relief† [is due] concerning the said earldom to us or our
successors by the death of the earl of the same earldom or otherwise,
precisely £200 sterling ought to pertain and no more ought to be paid
by relief, and no more is [to be] exacted thereupon in any way. In
[testimony] of which matter, etc. Witnesses, etc. At Scone in our full
parliament held in the same place on 9 March in the second year of our
reign [1372].
[9 March 1372, Charter to John de Dunbar and Marjory Stewart of the
earldom of Moray]
No mention there of any rights to create baronies. No mention of a
title or dignity of lord of the regality separate from the right of
regality itself. Regality was just the term for the bundle of
*judicial* rights handed over to the grantee.
These and loads of others are readily available on the Records of the
Parliaments of Scotland web site at <http://www.rps.ac.uk/> (just
input "regality" into the search engine). I have of course not had
time to check them all and there will be varients no doubt. However,
if I jump forward to the last one listed 25 Mar 1707 being an "Act
ratifying a charter under the great seal, of the date at Kensington,
10 March instant, granted by her majesty, with consent of her
commissioners of treasury and exchequer, to Archibald [Douglas], duke
of Douglas and his heirs and others therein mentioned heritably and
irredeemably of the lands, lordships, regalities, baronies [....]" we
read of the references to regality clearly expressed as
**"jurisdiction of regality"**. This has nothing to do with powers of
creation of honours, creation of titles, creation of dignities, nor
powers of creation of territorial baronies.
While we are looking at regalities I note that a private act at
Edinburgh, dated 19 April 1567 being a ratification to James Douglas,
earl of Morton, which refers to "the lands and barony of Mordington,
with manor, fortalice, gardens and orchards, mills, fisheries, woods,
outsets, parts, pendicles, tenants, tenancies and services of
freeholders, advocation and donation of the churches of Mordington and
Longformacus and of all other churches and chaplaincies of the same
and all their pertinents, lying within our sheriffdom of Berwick".
[terras et baroniam de Mordingtoun cum manerio fortalicio hortis
pomeriis molendinis piscariis siluis lie outsettis partibus pendiculis
tenentibus tenandriis libere tenentium servitiis aduocatione et
donatione ecclesiarum de Mordingtoun et Lochirmacus ac omnium aliarum
ecclesiarum et capellaniarum earundem ac omnibus suis pertinentiis
jacentes infra vicecomitatum nostrum de Berwik]. Mordington was NOT
itself a regality, though Douglas did hold the "regality, barony, town
and burgh in the barony of Dalkeith".
Enough of the bluster and pretence.
Derek Howard
gra...@gmilne.demon.co.uk
>
> - Show quoted text -
Mordington used to be part of the Regality of Dalkeith. The lands were
dissolved from that regality in 1634 and 1636. The charter creating
the regality is at:
http://www.peerage.org/genealogy/charter1636.htm
Enough of your stupidity and lying.
gra...@gmilne.demon.co.uk
>
> - Show quoted text -
PS You say of the grant of the earldom that there was no mention of a
right to create barons. So it is not surprising that such a right is
not mentioned in grants of regaliities. We also know that, in many
cases, a grant of a barony did not include the word baron or barony.
We also know that many grants of a barony made no mention of the
jurisdcition. This merely proves that your position that 'if I don't
see it in the grant it doesn't exist' is childish nonsense. And you
are still left with the inconvenienat fact that Hugh Peskett STILL
states that earls were creating barons into the 1990s. You STILL
refuse to ask him. You are STILL being a stubborn, gormless goof - in
public - yet again...
gra...@gmilne.demon.co.uk
What great differences? Name three.
gra...@gmilne.demon.co.uk
>
> - Show quoted text -
PS There is actually an example of an ordinary baron creating a baron
by grant of a part of his barony. I will dig it out. So nah! Nah! Nah!
Derek Howard
> dissolved from that regality in 1634 and 1636. The charter creating
> the regality is at:
>
> http://www.peerage.org/genealogy/charter1636.htm
Fair enough. So it seems Nether Mordington was a regality from 1636 to
1748. See, producing evidence is not so hard is it? Now perhaps can we
have some answers on the other questions rather than evasivion and
abuse? After all it is your contention not mine that the Scottish
regailities had powers of creation of baronies.
Derek Howard
Derek Howard
> right to create barons. So it is not surprising that such a right is
> not mentioned in grants of regaliities. We also know that, in many
> cases, a grant of a barony did not include the word baron or barony.
> We also know that many grants of a barony made no mention of the
> jurisdcition.
Why is it not surprising? Can you cite the "many cases" regarding
barony
> This merely proves that your position that 'if I don't
> see it in the grant it doesn't exist' is ...
I think that, in the absence of evidence in the original grant or its
ratification,
the onus is definitely on you to show sufficient alternative proof of
your contention.
Derek Howard
Greg
>
> - Show quoted text -
I have read through this debate, and I have to say Graham that since
AFT your points are moot. I believe that this what Derek was
referring to in his answers to you.
There may be some instances (in modern terms) of a rather esoteric
privilege having taken place, but by act of the abolition of
feudalism- period, none of what you are championing here really means
anything to anybody. Now if your are making a stand for the strictly
herladic purposes of feudalism, since the ipso facto commercio that
baronys have been religiated to, the - true meaning of them has been
lost to history and they have become relics in their own right. There
is absolutely no modern power enjoyed by these lower grants and as
such their heraldic privileges have gone by the wayside as well. The
decision of Lord Uist, makes it very clear that Territorial
Designations (for proven or unproven lower baronys) are now simply
'name tags' that litterally anybody can have and that Lord Lyon is
obliged, by statute of Human Rights, to include said name tags in
registrations etc. But his abilities as the true identifier in matters
heraldic in this case remais to be seen...
Having said that, I don't understand the point in your debate... since
baronys have no power, including the power to act as a business agent,
because there are no courts that they preside over... what are you
saying?
What issue exactly are you trying to push?
Brian G. Hamilton.
<gra...@gmilne.demon.co.uk> wrote:
>
> PS There is actually an example of an ordinary baron creating a baron
> by grant of a part of his barony. I will dig it out. So nah! Nah! Nah!
I could earily accept that someone owned two baronies that were united
and he/she disunited them and conveyed one to ,say, his son. But a
baron creating a barony of new no, unless we are in the realms of
British Feudal Investments etc.
I have no answer to Nah! Nah! Nah! Have you found that that line of
reasoning has worked in the past?
Brian G. Hamilton
Greg
barrassie
I have in my muniments a Royal Land Grant DATED 1602 that although it
includes juristiction it is not a barony.
CMKH
gra...@gmilne.demon.co.uk
>
> - Show quoted text -
Hugh Peskett has provided me with details of a Scottish earl granting
a barony in the manner I described but I am not at liberty to disclose
any more. Sorry. With regard to lords of regality creating barons, I
have been provided with the example of Leven (Fife) which was granted
by the Archbishop of St. Andrews (St. Andrews was a regality) to
George Lauder of the Bass in 1609. The grant was confirmed by James VI
in the same year. You will appreciate that the Archbishop can ONLY
have granted the barony in his capacity as a feudal lord - a lord of
regality. Of course, the AFT Act did not abolish regality jurisdiction
(I know for a fact that the people who drafted the Act had no idea of
the existence of regality jurisdiction - which just proves that it is
better to be an amateur historian than a professor of law), so it
continues to exist and lords of regality can not only hold regality
courts but they can also grant baronies. Whoops!
gra...@gmilne.demon.co.uk
>
> - Show quoted text -
PS (for Brian Hamilton's benefit) Nah! Nah! Nah!
Brian G. Hamilton.
>
> - Show quoted text -
Pray what century?
Give that man a B
Give him a C
Give him a K
Give him two L's
Two O's
And an S
(This is the line of argument that starts off with Nah! Nah! Nah!)
BGH
gra...@gmilne.demon.co.uk
wrote:
>
> - Show quoted text -
The difference is that I am right and you are wrong.
I said 'in the manner described', which means the 1990s.
gra...@gmilne.demon.co.uk
>
> - Show quoted text -
We await a response from Mr. Howard.
Joseph McMillan
<gra...@gmilne.demon.co.uk> wrote:
> A thought about baron courts in Scotland. It seems to me that although
> their legal jurisdiction was abolished by the AFT (Scotland) Act 2000,
> there was no provision to the effect that they could not continue to
> be held in order to transact other business, and in the absence of a
> specific provision to this effect they continued to enjoy a legal
> right to transact such business (being any business which was
> customarily transacted in such courts). In England, the power of manor
> courts to transact such business was expressly abolished by s.23
> Administration of Justice Act 1977 (c.38) and the fact that it was
> necessary to expressly abolish such powers must mean that if they had
> not been expressly abolished, they would have continued to exist.
In New York, the power of manor courts to transact such business was
expressly preserved by the Tenure of Real Property Act of 1787 ("The
abolition of tenures shall not...be construed to effect or change the
powers or jurisdiction of any court of justice in this state."). The
fact that it was necessary to expressly preserve such powers must mean
that if they had not been expressly preserved, they would have ceased
to exist.
So the absence of such a provision in the AFT must be interpreted as
abolishing such jurisdictions.
Joseph McMillan
gra...@gmilne.demon.co.uk
Wrong. You know nothing of the law and the presumption against taking
away rights (which makes sense if you care to think about it for one
second); this provides that rights can only be taken away by express
provision or necessary implication. See the two House of Lords cases:
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 and Central Control Board (Liquor Traffic) v. Cannon
Brewery Co Ltd [1919] A.C. 744. In other words, you have got the whole
business exactly the wrong way round! The mistake you made was to
assume that because the provision was in the Act it had to be there.
This is not true. Very often provisions are included in Acts for the
avoidance of doubt i.e. we are making it quite clear that we are NOT
doing x. This is what happened with baronial titles in the AFT
(Scotand) Act 2000.
Brian G. Hamilton.
>
> - Show quoted text -
Graham, I hope you will forgive us sceptics our doubt. "I have an
example but I am not allowed to tell you what it is" is not going to
get you very far. We all know that it is possible to obtain a grant
of an earldom any day of the week for a few hundred pounds on any
number of internet sites. We also know that those grants are not
worth the paper they are written on. I might just accept that in very
early times and in a limited number of jurisdictions, perhaps only
one, the lord (Lord of the Isles) had the power to create barons.
that power, due to the terms of the charter in re-grants of the land
has been lost.
BGH
gra...@gmilne.demon.co.uk
wrote:
>
> - Show quoted text -
No, I don't accept your doubt since it amounts to accusing me of
lying. When I say that I was given an example but have been requested
not to make the details public, I expect you to accept that (like a
gentleman?). After all, Mr. Peskett HAS made the statement in a highly-
regarded publication, Burke's, AND on his website AND in a magazine -
'Lothian Life'. And why should the survival of anachronistic legal
rights surprise you? Baron courts are the perfect example of such a
survival. What is surprising is you questioning such a thing. It
smacks of mere mischief-making. But even if it had happened that no
Scottish earl had ever created a baron, this would still not affect
the fact that Lords of Regality had the right to do so (and I have
provided an example). You should be aware that since this right
undoubtedly existed in law it continues to exist in law (like baron
courts) until abolished in law. And since the right has never been
abolished (and certainly not by AFT (Scotland) Act 2000) it continues
to exist. The Scottish and English legal landscapes are literally
littered with thousands of anachronistic legal survivals and yet you
express surprise at one such survival? No, I do not accept you
scepticism as genuine.
Brian G. Hamilton.
>
> - Show quoted text -
Graham, you must have had a bad night and got out of the bed the wrong
side. I do not accuse you of lying, just because you may be wrong
does not make you a liar. I apologise for any wrong impression I have
given you.
However, I remain a sceptic.
BGH
PS Try to keep cool; if you had a heart attack we would all miss you.
gra...@gmilne.demon.co.uk
>
> - Show quoted text -
I always get out of bed on the wrong side. I apologise in turn -
perhaps I was a little hasty (but this does not amount to an admission
that I am ever in the wrong). But the point is a serious one. There is
no question a) that Lords of Regality had the right to create barons
and b) to hold regality courts, which exercised a higher jurisdiction
than baron courts. The question is whether these rights survived the
AFT (Scotland) Act 2000. As I have stated, a right can only be taken
away by statute by express language or necessary implication. Since
there was no express language abolishing the right of lords of
regality to hold regality courts or to create barons, the question
becomes 'Is there a necessary implication that either of these things
was abolished by the Act?'. Some will argue that the abolition of the
feudal system necessarily entailed the abolition of the right to hold
either regality or baron courts because these were held as a result of
a jurisdiction over land and, as a result of the abolition of the
feudal system, there can no longer be such a jurisdiction over land.
This is wrong and to understand why you only need to rephrase the
question slightly to 'Can the jurisdiction over land exist
independently of the feudal interest in the land?' Well, the answer is
clearly 'Yes' and to prove this we only need to consider baronial
titles themselves, which the Act specifically preserved in spite of
the abolition of the link between the barony and the land, thus
proving that the abolition of the feudal system did not NECESSARILY
entail the abolition of baronial titles. By analogy, the abolition of
the feudal system did not NECESSARILY entail the abolition of regality
jurisdiction, for the simple reason that a jurisdiction over land can
exist indpendently of a feudal interest in land. Further, even if
regality jurisdiction was, for the sake of argument, abolished, the
right of lords of regality to create barons was not. In fact s.63
preserves 'any quality or precedence associated with... a dignity'. Is
the right to create barons 'a quality associated with a dignity (the
title of lord of regality)?' Answer 'Yes'. Ergo, I have the right to
create barons! Yours for £50,000... (this is an introdcutory discount).
Brian G. Hamilton.
you have are right without any right of asking for proof to justify
your position. However, I am going to break those rules; you say that
the right to hold barons courts and regality courts survive the AFT.
Am I correct in assuming that the use the word 'courts' in the
normally accepted meaning as a place where justice is enacted? "63
(1) Any jurisdiction of, and any conveyancing privilege incidental to,
barony shall on the appointed day cease to exist; but nothing in this
Act affects the dignity of baron or any other dignity or office
(whether or not of feudal origin)" The Act specifically abolishes any
remaing jurisdiction attached to a barony. What happened at 00.01 am
on 28th November 2004? The feudal system was abolished, the remaining
jurisdiction held by feudal barons over land was abolished, and only
the barons title survives the Act. When the framers of the Act use
the word 'barony' they use it in the pre-AFT sense; an estate of
land. The land owners who are, or were barons, lose any remaining
jurisdiction over their land.
As for the right of lords of regality to create barons I will leave
for now but I do see where you are coming from (£50K you said?).
Brian G. Hamilton.
gra...@gmilne.demon.co.uk
wrote:
The point is that the Act abolished barony jurisdiction. The question
is whether regality jurisdiction falls within the meaning of this
term. On the one hand, regalities are a form of barony and in 1747
regality jurisdiction was restricted to the same jurisdiction as
barons. On the other hand, the terms regality jurisdiction and barony
jurisdiction are two separate terms referring to two distinct things
and the term 'jurisdiction incidental to barony' means (and was
intended to mean - since the framers of the Act overlooked regality
jurisdiction) jurisdiction attached to baronies, meaning ordinary
baronies. Question: How can the Act abolish something that the framers
of the Act were unaware of at the time they framed the Act? Clearly,
since they were unaware of regality jurisdiction they can have had no
intention of abolishing that jurisdiction. I think what it boils down
to is that the rules of interpretation provide that legislation which
takes away rights is to be construed strictly AGAINST those who wish
to prove that a right is removed i.e. legislation will only be
interpreted as taking away something where there is no room for doubt
that the legislation intended to and does by its words take away the
right. In this case there is room for such doubt, so the conclusion
can only be that regality rights of jurisdiction were not removed by
the Act. This may be the result of sloppiness and ignorance but there
you go. People who put themselves forward as competent to frame our
laws must expect to be judged by the most rigorous standards. In the
case of the AFT Act they fell short of those standrds. That is their
problem.
Brian G. Hamilton.
I will not insult you by quoting the institutional writers who tell us
that a regality is a barony (I think I remember you also telling us
that), you know them well. Whether it be a barony or a regality the
jurisdiction incidental to it is incidental to a barony since
regalities are baronies. Our MSP's might not have been aware of what
a regality is but I can asure you that at least one member of the Law
Commission, who originally framed the Act, certainly knows what a
regality is. Be that as it may, when you try to make the argument
that regality jurisdiction remains I feel like throwing you a life
belt; clutching at straws will not make the argument.
Regards,
BGH
gra...@gmilne.demon.co.uk
wrote:
I know for a fact that a member of that Commission, a Professor of
Law, was in a state of panic when he discovered the oversight. This
clearly demonstrates that the Commission as a whole was not aware of
regality jurisdiction. But you can argue all you like, the legal
presumption is against you. No fair court would interpret regality
jurisdcition as being covered by the Act where there is any doubt in
the matter. In fact, the courts are legally bound by precedent to
interpret otherwise, as I said.
By the way, your insinuation about money-making was a bit rich coming
from you, of all people!
barrassie
<gra...@gmilne.demon.co.uk> wrote:
> On 26 Apr, 21:42, Joseph McMillan <mcmillan...@gmail.com> wrote:
>
> > On Apr 26, 11:52 am, "gra...@gmilne.demon.co.uk"
>
> > <gra...@gmilne.demon.co.uk> wrote:
>
> > > Sure, go and ask Hugh Peskett. I am sure he will be delighted to know
> > > that you regard his opinions (as written in Burke's) as hearsay.
> > > Actually, I think you will find that Mr. Peskett's opinion is regarded
> > > as authoritative in the Lyon Court, to the extent that if he certifies
> > > a pedigree in the Lyon Court it will be accepted without examination
> > > of the proofs.-
>
> > That may be true of his genealogical work--although, if it is the
> > case, it strikes me as negligent to the point of dereliction--but that
> > doesn't exempt his statements on an issue like this from needing
> > supporting evidence if questioned.
>
> The Lyon Court relies as a matter of practice on pedigrees vouched for
> by reputable people, including members of the Scottish Genealogy
> Society. Go and read 'Scots Heraldry' before shooting your mouth off.
> And if you want the evidence just ask him for it. He's got an E-Mail
> address on his website.
Dear Joseph,
The Lord Lyon accepts verification of pedigrees from members of the
Scottish Genealogical Society, but at the same time makes random
checks. Insidently I was presenting a Petition using a Pedigree in
part researched by one of the genealogists and found a mistake where a
son was mistaken for a father, a very easy slip and I only noticed
since I was checking the entire pedigree for the required proofs.
Charles
Joseph McMillan
<gra...@gmilne.demon.co.uk> wrote:
> On the one hand, regalities are a form of barony and in 1747
> regality jurisdiction was restricted to the same jurisdiction as
> barons. On the other hand, the terms regality jurisdiction and barony
> jurisdiction are two separate terms referring to two distinct things
> and the term 'jurisdiction incidental to barony' means (and was
> intended to mean - since the framers of the Act overlooked regality
> jurisdiction) jurisdiction attached to baronies, meaning ordinary
> baronies.
OK, help me out here. The Heritable Jurisdictions Act 1746 seems to
say something other than what Graham says it says. It abolishes
regalities outright: "All heretable jurisdictions of justiciary, and
*all regalities* and heretable baillieries, and all heretable
constabularies, other than the office of high constable of
Scotland, . . . shall be and they are hereby . . . abrogated, taken
away, and *totally dissolved and extinguished.*"
The saving provision is this: "Provided always, that all and every
person and persons who shall appear to have been lawfully possessed,
on the said twenty-fifth day of March one thousand seven hundred and
forty-eight, of any such justiciary, regality, or other jurisdiction
hereby abrogated, shall from and after the said twenty-fifth day of
March retain such jurisdiction of barony, or other lower jurisdiction,
as such person or persons would have been intitled to, in case such
justiciary, regality, or other jurisdiction hereby abrogated had never
been erected, granted, or existed."
This does not convert regality jurisdictions into barony
jurisdictions, nor does it make regality jurisdictions equivalent to
barony jurisdictions. It says that anyone who would have had a barony
jurisdiction had he never been vested with a regality would retain the
barony jurisdiction as if the regality had never been created. But
the regality is gone: "totally dissolved and extinguished."
Erskine treats the jurisdiction regalities entirely in the past tense
as something that disappeared in 1748.
Is there an authority that says otherwise?
Joseph McMillan
gra...@gmilne.demon.co.uk
Yes, Sir Crispin Agnew of Lochnaw, leading counsel, gave his opinion
that what this means is that lords of regality were left with baronial
jurisdiction. He also gave his opinion that the Act was an Act to
remove jurisdictions, not titles, so that the title 'Lord of Regality'
survived (the same happened to Hereditary Sheriffs I believe, some of
which I think have actually been recognised by the Lord Lyon). If you
think about it, it would have been a complete nonsense to deprive
lords of regality of all their jurisdiction but not ordinary barons.
Did this not occur to you? I am afraid the conclusion is that you have
mis-read the Act. It is common device (or rather the usual device) in
Acts of Parlaiment to say something is totally extinguished and then
to provide exceptions. It is safer to say 'We abolish everything,
except x', as opposed to 'we abolish a, b, c, d..... v, y and z'.
The Regality of Mordington was re-granted by a Crown Charter dated
21st April 1856 (C2/256 fo. 97, no. 256).
Joseph McMillan
<gra...@gmilne.demon.co.uk> wrote:
>
> Yes, Sir Crispin Agnew of Lochnaw, leading counsel, gave his opinion
The term "leading counsel" implies that this was in a court case? In
what case, and leading counsel for whom? What did the court decide?
Joseph McMillan
gra...@gmilne.demon.co.uk
I said that Sir Crispin Agnew of Lochnaw, QC, who is leading counsel,
'gave his opinion'. This means he gave his opinion (in writing), which
is what barristers often do (indeed, usually do). I made no mention of
a court case. The term leading counsel does not imply that there was a
court case; the term is a factual description of the person - 'x is
leading counsel'. But you are getting away from the point, which is
whether you realise that it would have been nonsensical to remove ALL
the jurisdiction of Lords of Regality in 1747, but not that of
ordinary barons.
Graham Senior-Milne
Brian G. Hamilton.
>
> - Show quoted text -
If Sir Crispin is right, he usually is, then Lords of Regality lost
their regality jurisdiction following the 1746 Act. The Lords of
Regality were given baronial jurisdiction at that time. Alright so
far? Any remining baronial jurisdiction was lost after AFT;
therefore there is no baronial or other jurisdiction held by barons or
Lords of Regality. What have I missed?
BGH
PS Graham, lighten up. It was you who started the joke about £50K.
gra...@gmilne.demon.co.uk
wrote:
>
> - Show quoted text -
What you have missed is the fact that regality jurisdiction and
baronial jurisdiction are two distinct things. After 1747 lords of
regality and barons may have had the same judicial powers but they
were different types of jurisdictions; one was regality jurisdiction
and one was barony jurisdiction - by virtue of the fact that one was
exercised by lords of regality and the other by barons. The High Court
has the power to inflict the same punishment as, say, a County Court,
but when it does so it is exercising the jurisdiction of the High
Court. if you reduced the jurisdiction of the High Court to the same
level as the County Court, it would still be the jurisdiction of the
High Court by virtue of the fact that it is a jurisdiction exercised
by that court; the fact that it is the same in terms of its
jurisdictional powers as another court is beside the point. In 1747
regality jurisdiction was not converted into baronial jurisdiction;
regality jurisdiction was limited to the same jurisdiction as barons.
It was still regality jurisdiction - just reduced to the level of
baronial jurisdiction. The jurisdiction of barons was abolished by the
2000 Act but the jurisdiction of lords of regality was not. Alright so
far?
But all this is beside the point. The real issue is the power to
create barons. If you are not careful I will create an army of bad
barons and come and flatten your part of Scotland! Just like the good
old days. I may even hold a regality court to punish you for your
cheekiness. I will bring my own stocks and rotten tomatoes.
Joseph McMillan
<gra...@gmilne.demon.co.uk> wrote:
> On 5 Jun, 18:14, Joseph McMillan <mcmillan...@gmail.com> wrote:
>
> > On Jun 5, 12:40 pm, "gra...@gmilne.demon.co.uk"
>
> > <gra...@gmilne.demon.co.uk> wrote:
>
> > > Yes, Sir Crispin Agnew of Lochnaw, leading counsel, gave his opinion
>
> > The term "leading counsel" implies that this was in a court case? In
> > what case, and leading counsel for whom? What did the court decide?
>
> > Joseph McMillan
>
> I said that Sir Crispin Agnew of Lochnaw, QC, who is leading counsel,
> 'gave his opinion'. This means he gave his opinion (in writing), which
> is what barristers often do (indeed, usually do). I made no mention of
> a court case. The term leading counsel does not imply that there was a
> court case; the term is a factual description of the person - 'x is
> leading counsel'.
Before answering this, I wanted to be absolutely sure I wasn't missing
some possible meaning of the term "leading counsel" in the UK. I
wasn't. It has two meanings. One is the same as in the United States
or the equivalent term "leader" in the UK: "that one of two or more
counsel employed on the same side *in a cause* who has the principal
management of *the cause*" (Bouvier's Legal Dictionary--US); "a
barrister [in Scotland, an advocate, which is what Sir Crispin
actually is--not a barrister] who is the senior of two counsel
*appearing* for the same party" (Oxford Dictionary of Law); "a counsel
who 'leads' in the conduct *of a case* before the court" (OED). The
other is "a barrister whose status (in England, that of a King's
Counsel) entitles him to 'lead'" (OED).
Now since you had already referred to Sir Crispin Agnew as a QC, it
would be redundant to then describe him as "leading counsel" in the
last sense immediately thereafter. I therefore deduced that you were
so describing him in the primary meaning of the senior of two or more
advocates representing a client in a case.
The question is not an idle one. As an advocate, Sir Crispin
sometimes makes arguments that seem contradictory to positions he
takes in his scholarly writings. This is what advocates (and
barristers) do--they make the best case for their clients that they
can, whether they really believe what they're arguing or not. For
example, in his article "Baronial Heraldic Additaments: Unintended
consequences of the Abolition of Feudal Tenure etc (Scotland) Act
2000?" (Scots Law Times, 1 October 2004), he wrote this:
"As a barony is now no longer attached to the land under section 63(2)
of the 2000 Act, a baron may no longer adopt a territorial designation
derived from his barony, because the barony is not an estate in land."
A little more than three years later, in the judicial review of the
case of Professor Stephen Kerr of Ardgowan, he argued that:
"Lyon's position was that, in order that a person qualified for a
territorial designation, there had to be a territorial nexus between
him and the land... Such a view was misconceived... [A] territorial
designation may well, and in the majority of cases probably did,
signify a nexus between the individual and the land in question, but
need not do so. A territorial nexus could not therefore be insisted
upon as a pre-requisite in every case for the 'valid' adoption and use
of a territorial designation."
Similarly, in the 2004 article Sir Crispin wrote:
"Lyon normally only grants arms to persons falling within his
jurisdiction. This has usually been taken to be those domiciled in
Scotland or owning land in Scotland. To date barons have owned land
in Scotland and hence were held to come within Lyon's jurisdiction for
a grant of arms. It remains to be seen whether the Lord Lyon will
consider, that after the appointed day, a foreigner buying a free
standing barony, will have sufficient connection to Scotland to fall
within his jurisdiction for a grant of arms. While the barony might be
Scottish incorporeal heritable
property, it will be a matter for Lyon to determine whether or not the
connection is sufficient to justify bringing the baron within his
jurisdiction. Secondly, if it does, whether the Lord Lyon should
exercise his discretion to grant Scottish Arms to such a baron, whose
connection with Scotland might well be short lived, if the barony is
so
easily transferable... If peers were excluded from parliament on
account of alienage, it might seem reasonable to exclude persons with
a lesser dignity from the 'right' to apply for a Scottish coat of
arms.
But in 2007, arguing the petition of Lars Jorgen Cramer Lindberg in
Lyon Court, Sir Crispin submitted that:
"As owner of a barony Dr Lindberg is in a noble feudal relationship to
the Crown. Section 1 of the 2000 Act abolished the feudal system of
land tenure but did not abolish feudal tenure in relation to dignities
which are incorporeal heritage. Nothing in the 2000 Act has changed
this and the relationship with the Crown continues. Since Royal Assent
has been given to the 2000 Act, the consent of the Crown must be
deemed to have been given to the process of transferring baronies,
shorn of their land, under the 2000 Act. 'Heraldic privilege' as
defined by the 2000 Act must include a right to apply for a grant of
arms.... All barons are required by the Acts of the Parliament of
Scotland 1:575 and 2:19 to have a coat of Arms.... If a baron is
required, as he is by these Acts, to have a coat of Arms, then he must
fall within Lyon’s jurisdiction."
That's why I asked. I'm still curious to know. But it doesn't really
matter, because, as Brian Hamilton has already pointed out, Agnew
himself, as you summarized him, notes that regality jurisdictions were
abolished by the Heritable Jurisdictions Act, and barony jurisdictions
by the AFT Act 2000. So he provides no support at all to your
insistence that such jurisdictions somehow survived a statute by which
"all regalities" were "abrogated, taken away, and totally dissolved
and extinguished," whatever the context in which he offered his
opinion.
> But you are getting away from the point, which is
> whether you realise that it would have been nonsensical to remove ALL
> the jurisdiction of Lords of Regality in 1747, but not that of
> ordinary barons.
>
The Heritable Jurisdictions Act, as I already acknowledged, did not
reduce Lords of Regality to nothing. That would indeed have been
nonsensical. But it did not preserve regality jurisdictions either.
I can't describe its provision any more clearly than the language of
the act itself. Former possessors of regalities who would have held
barony jurisdiction had their lands never been erected into regalities
resumed the possession of that barony jurisdiction. Regality
jurisdictions were not scaled down to survive in reduced form
equivalent to barony jurisdictions; they were abrogated, taken away,
totally dissolved, and extinguished. The individuals who owned them
were left with entirely different jurisdictions--those of barony or
less, depending on what they would have possessed had their regalities
never been created.
Joseph McMillan
gra...@gmilne.demon.co.uk
>
> - Show quoted text -
Lords of regality continued to exist after 1747 (which is why the
Regality of Mordington could be re-granted by the Crown in 1856 - you
can't get away from that). The areas over which they exercised their
jurisdictions were known as regalities. The courts which they held
were regality courts. The jurisdiction they exercised in those
regality courts as lords of regality was regality jurisdiction, which
had been restricted to the same level as those of baron courts by the
1747 Act. But they were still two separate things - a lord of regality
exercising regality jurisdiction in his regality court and a baron
exercising baronial jurisdiction in his barony court. It couldn't be
clearer - or simpler. Just think for a minute. If, as you claim,
regalities had been extinguished by the 1747 Act, why would Sir
Crispin Agnew firmly state his opinon that the title 'Lord of
regality' continued to exist. Has it not occurred to you that, as
leading counsel, he knows rather more about this subject than you do?
But you are getting away from the main point, which is that lords of
regality can create barons. This should not be a surprise; barons
themselves can appoint all sorts of people to offices, such as baron
sargeands, and we all know that this right continued to exist after
the 2000 Act. In the same way, the right of lords of regality to
create barons also survived. I think I shall hold an investiture
shortly....
PS An advocate is the Scottish equivalent of a barrister.
Joseph McMillan
<gra...@gmilne.demon.co.uk> wrote:
>
> If, as you claim,
> regalities had been extinguished by the 1747 Act, why would Sir
> Crispin Agnew firmly state his opinon that the title 'Lord of
> regality' continued to exist. Has it not occurred to you that, as
> leading counsel, he knows rather more about this subject than you do?
The issue is not titles. The issue is your insistence that "since the
AFT Act did
not specifcally abolish regality jurisdiction ... it continues to
exist in law. So it is clear that I have every right to hold a
regality court."
No, it didn't, and no, you don't, and no, what you cite Sir Crispin
Agnew as saying doesn't support your position. But when did the
opinion of an expert lawyer start mattering to you, anyway? All the
legal scholars back to Blackstone would tell you that English and
Irish baronies no longer exist. You don't believe them; why is Agnew
different?
>
> But you are getting away from the main point, which is that lords of
> regality can create barons. This should not be a surprise; barons
> themselves can appoint all sorts of people to offices, such as baron
> sargeands, and we all know that this right continued to exist after
> the 2000 Act.
We all know nothing of the sort. Unless you're using the regal "We."
>
> PS An advocate is the Scottish equivalent of a barrister.
No kidding. And a provost is the Scottish equivalent of a mayor. But
that doesn't mean the City of London has a lord provost, and it
doesn't mean that Edinburgh has a lord mayor. And it doesn't mean Sir
Crispin Agnew is a barrister.
Joseph McMillan
rha_s...@yahoo.com
Thank you Joseph (and Brian) for taking the time and having the
patience to analyse the writings of Mr. Senior-Milne.
There are a number of assertions made by Mr. Senior-Milne and I do
wish that he would, to use a well known phrase, "put his money where
his mouth is". I would dearly love him to test his assertion that
Scots minor barons have a right to sit in Parliament by simply turning
up to take his seat. If ejected he need not fear as he is well
prepared to pursue his right in the Courts. His case has been amply
rehearsed here.
Of course such matters would be dealt with by Judges and not Juries
but were I a humble jury man witnessing this present debate in court,
I have to say that your last has clinched it for me.
There is another brief analysis (on the HSS forum) of Mr. Senior-
Milnes writings written by Alex Maxwell Findlater which I greatly
enjoyed:
"Here is a quote from from the Senior-Milne website:
Quote:
As immediate vassals (i.e. tenants-in-chief) of the King, earls and
barons had a duty and a right to attend the King's Court or Curia
Regis (of which they were the peers - which simply meant that they
were equal in degree - Latin 'pares' - as vassals of their immediate
feudal superior); this court gradually evolved into Parliament. [end
quote]
At the very early period which he is discussing, this Court was both a
Court of Justice and a Council for decision making. Only the great
barons attended at this period – you can check the sederunts from
Rhymer’s Foedera, where he quotes formal letters drafted at these
Parliaments. It is clear that the minor barons held by the same tenure
as the great barons, but they did not have the same status. The word
“peer” is quite anachronistic in this context. That word was imported
from France in the C16/17 and there it had a slightly different
meaning, more akin to the use of “grandee” in Spain. It came to be
used to mean a member of the Upper House of Parliament (the Lords)
some time in C18. By now we are in England after the Act of Union of
1707.
So you can see that by the injudicious mixing up of concepts and words
which are mutually anachronistic, any argument about history can be
strung together. This brief quote elicited a explanation, longer than
the quote itself, of how it is misleading; to gloss the whole of the
92 pages (A4 when copied into a Word doc) of Graham Senior-Milne’s
website would be the work of almost a lifetime! A brief note on what
actually happened is appended, largely drawn from Michael Lynch’s
Oxford Companion to Scottish History.
In Scotland the greater barons were acknowledged from 1428 as “Lords
of Parliament” and successively allowed as such, until things had
settled down and new Lords of Parliament were created by Letters
Patent, which usually passed the Great Seal – some are lost. Initially
there must have been a certain amount of jostling for recognition, the
greatest barons being acknowledged first. Among the later lords are,
for example, Lord Home created on 2 August 1473 and Lord Ogilvy of
Airlie on 28 April 1491, but these were both created by a recognition
in Parliament, rather than by Letters Patent. The first to be created
by Letters Patent, rather than in open parliament, seems to have been
Lord Elphinstone, on 14 January 1509/10, which is the date of the
charter. After the 1587 Act, which was really a restatement of the
1428 Act, minor barons elected two representatives per county (one
each for the smaller ones) and were not expected to attend Parliament.
In fact they had not been attending for the previous 100-150 odd
years, except in 1560 when 95 Protestant lairds gate-crashed
Parliament. The system devised in 1587 was to prevent this, the reason
it took so long was the 21 year minority of James VI, born 1566. By
1587 the greater barons were Lords and the minor barons were the rest
who were still entitled to hold a baron court (not all those holding
from the Crown were barons.)
Finally the Scottish Parliament ceased to exist in 1707, and the Scots
peers (not barons) had, under the Act of Union, to elect from amongst
themselves representatives, to attend the Wesminster Parliament.
_________________
Alex Maxwell Findlater"
Edward
gra...@gmilne.demon.co.uk
>
> - Show quoted text -
You are persuaded by Mr. McMillan's arguments are you? This would, I
suppose, be the argument that runs 'No, it didn't, and no, you don't,
and no, what you cite Sir Crispin Agnew as saying doesn't support your
position.' Clearly, you are a man of the most rigorous scholastic
standards. I take my chapeau off to you.
By the way, you say 'At the very early period which he is discussing,
this Court was both a Court of Justice and a Council for decision
making. Only the great barons attended at this period – you can check
the sederunts from Rhymer’s Foedera...' Er, actually, ALL the barons
at this early stage feudal barons. Bong! (or is it 'Doh!')
gra...@gmilne.demon.co.uk
>
> - Show quoted text -
PS What Mr Findlater says about the word 'peer' is quite simply
rubbish and what I say on my site is accurate. The word 'peer' means
'equal in degree' as a feudal vassal. Has Mr. Findlater heard of Magna
Carta? Possibly not. Either way I recommend that he goes and reads it.
He will find the word peer being used in its proper context (er,
several hundred years before he claims it was imported from France).
What nonsense! Has Mr. Findlater never heard of the famous 'Peers of
Charlemagne'?
Nathaniel Taylor
<71f8f63e-b963-4548...@d1g2000hsg.googlegroups.com>,
"gra...@gmilne.demon.co.uk" <gra...@gmilne.demon.co.uk> wrote:
> > "Here is a quote from from the Senior-Milne website:
> >
> > Quote:
> > As immediate vassals (i.e. tenants-in-chief) of the King, earls and
> > barons had a duty and a right to attend the King's Court or Curia
> > Regis (of which they were the peers - which simply meant that they
> > were equal in degree - Latin 'pares' - as vassals of their immediate
> > feudal superior); this court gradually evolved into Parliament. [end
> > quote]
> >
> > At the very early period which he is discussing, this Court was both a
> > Court of Justice and a Council for decision making. Only the great
> > barons attended at this period you can check the sederunts from
> > Rhymer¹s Foedera, where he quotes formal letters drafted at these
> > Parliaments. It is clear that the minor barons held by the same tenure
> > as the great barons, but they did not have the same status. The word
> > ³peer² is quite anachronistic in this context. That word was imported
> > from France in the C16/17 and there it had a slightly different
> > meaning, more akin to the use of ³grandee² in Spain. It came to be
> > used to mean a member of the Upper House of Parliament (the Lords)
> > some time in C18. By now we are in England after the Act of Union of
> > 1707.
>
> PS What Mr Findlater says about the word 'peer' is quite simply
> rubbish and what I say on my site is accurate. The word 'peer' means
> 'equal in degree' as a feudal vassal. Has Mr. Findlater heard of Magna
> Carta? Possibly not. Either way I recommend that he goes and reads it.
> He will find the word peer being used in its proper context (er,
> several hundred years before he claims it was imported from France).
> What nonsense! Has Mr. Findlater never heard of the famous 'Peers of
> Charlemagne'?
Magna carta's usage (pares sui, an explicitly elastic term indicating
comparable status, with reference both to 'homines liberi' [many times]
and to 'comites et barones' [once]) is distinct from Senior-Milne's
usage in the quoted passage--"king's court or curia regis of which they
were the peers"--which would have made no sense in 1215. Moving the
goalposts a bit, eh?
As for the 'peers of Charlemagne': Findlater has likely heard of them,
but Charlemagne never did. As a rank or class of persons they are a
literary construct which certainly postdates the creation, around 1275,
of an analogous instution by the Capetians.
Nat Taylor
a genealogist's sketchbook:
http://www.nltaylor.net/sketchbook/
gra...@gmilne.demon.co.uk
> In article
> <71f8f63e-b963-4548-9ac6-405046d03...@d1g2000hsg.googlegroups.com>,
>
> - Show quoted text -
No it isn't. Peers meant vassals of equal degree. Period.
Nathaniel Taylor
<bb37de84-a232-436a...@f63g2000hsf.googlegroups.com>,
"gra...@gmilne.demon.co.uk" <gra...@gmilne.demon.co.uk> wrote:
But, you said ... Oh bother. Eventually the goalposts will tire you out
with all that shifting.
If you are just playing about with these ideas, like an eccentric
gentleman, rather than crassly trying to make money off them (like the
windsreen man from Maryland, or what's-his-name who used to extort
landowners before the AFT act), does that really make it any less
tiresome?
gra...@gmilne.demon.co.uk
You are talking nonsense. The word peer meant equal in degree as
immediate vassals of a given superior. This is the sense in which I
used it. Barons were peers of the realm, meaning that they were peers
of the court of the kingdom i.e. Parliament. Feudal barons were the
original and proper peers. This feudal term ('peer') was filched by
their successors (barons by writ and patent), that is those who were
not peers in the feudal sense. It is really very simple.
PS If you find it tiresome then don't get involved. Go and make
yourself a nice cup of hot chocolate.
Greg
> immediate vassals of a given superior. This is the sense in which I
> used it. Barons were peers of the realm, meaning that they were peers
> of the court of the kingdom i.e. Parliament. Feudal barons were the
> original and proper peers. This feudal term ('peer') was filched by
> their successors (barons by writ and patent), that is those who were
> not peers in the feudal sense. It is really very simple.
>
> PS If you find it tiresome then don't get involved. Go and make
>
> - Show quoted text -
Hello Graham,
As much as I've read of this thread, and your opinions on this subject
- I still don't get your point...
What message are you trying to communicate? What is the return for
all of this effort?
Nathaniel Taylor
<502fb656-8556-4076...@k37g2000hsf.googlegroups.com>,
"gra...@gmilne.demon.co.uk" <gra...@gmilne.demon.co.uk> wrote:
> You are talking nonsense. The word peer meant equal in degree as
> immediate vassals of a given superior. This is the sense in which I
> used it. Barons were peers of the realm, meaning that they were peers
> of the court of the kingdom i.e. Parliament. Feudal barons were the
> original and proper peers. This feudal term ('peer') was filched by
> their successors (barons by writ and patent), that is those who were
> not peers in the feudal sense. It is really very simple.
This paragraph, and your recent postings, exhibit the same pastiche of
anachronism as found in the paragraph critiqued by Findlater (quoted
upthread). As has been pointed out, the phrases "barons were peers of
the realm," or "peers of the court of the kingdom," have no meaning
before the English began to borrow the new substantive meaning of "peer"
popularized by the Capetians in the later 13th century. It is therefore
incautious to state that barons by writ (or patent) 'filched' the term
from predecessors, and that at that time it had something to do with
entitltement to participation in a deliberative assembly.
You seem to have given these concepts a great deal of thought, no doubt
since acquiring your accidental barony. But you might want to vary your
reading a bit, to avoid the old problem of looking at medieval English
constitutional history through anachronistic lenses. The most important
first step is to be far more careful about anachronistic terms.
Here's a good exercise: There is a bit of scholarly disagreement over
the meaning of Roger of Wendover's reporting of the bishop of
Winchester's use of the word 'peer' in 1233--"quod non sunt pares in
Anglia sicut in regno Francorum" (Roger of Wendover, _Flores
historiarum_, ed. Henry Coxe, 4 vols. [London, 1841-2], 4:276). Perhaps
you could discuss this passage, with reference to the recent
historiography on it? Depending on how one interprets bishop Peter (or
chronicler Roger), how does it help your argument--or how does it hurt
it?
gra...@gmilne.demon.co.uk
gra...@gmilne.demon.co.uk
PS The word peer is used in Magna Carta and it refers (surprise,
surprise) to those who were equal in degree as vassals of a superior.
Barons were immediate vassals of the king and therefore peers of the
realm. This is a fact and, frankly, I don't give a damn about Roger of
Wendover. Are you trying to impress us? If so, I am afraid it's 'No
way, Hose'.
gra...@gmilne.demon.co.uk
>
> > > - Show quoted text -
>
> > You are talking nonsense. The word peer meant equal in degree as
> > immediate vassals of a given superior. This is the sense in which I
> > used it. Barons were peers of the realm, meaning that they were peers
> > of the court of the kingdom i.e. Parliament. Feudal barons were the
> > original and proper peers. This feudal term ('peer') was filched by
> > their successors (barons by writ and patent), that is those who were
> > not peers in the feudal sense. It is really very simple.
>
> > PS If you find it tiresome then don't get involved. Go and make
> > yourself a nice cup of hot chocolate.- Hide quoted text -
>
> > - Show quoted text -
>
> Hello Graham,
>
> As much as I've read of this thread, and your opinions on this subject
> - I still don't get your point...
>
> What message are you trying to communicate? What is the return for
>
> - Show quoted text -
Truth.
Nathaniel Taylor
<d8c4c015-7e7b-4a18...@34g2000hsf.googlegroups.com>,
"gra...@gmilne.demon.co.uk" <gra...@gmilne.demon.co.uk> wrote:
> PS The word peer is used in Magna Carta and it refers (surprise,
> surprise) to those who were equal in degree as vassals of a superior.
> Barons were immediate vassals of the king and therefore peers of the
> realm. This is a fact.
Oh? Reread -- or read -- clause 39.
And it's interesting that you don't give a damn about Wendover. His
famous little passage is crucial to your point of view. Would you like
a google books link to that passage in a decent 19th-century edition?
Seems you are more interested in throwing Usenet barbs than in really
understanding these things.
Nat Taylor
http://www.nltaylor.net/
Greg
>
> > > > - Show quoted text -
>
> > > You are talking nonsense. The word peer meant equal in degree as
> > > immediate vassals of a given superior. This is the sense in which I
> > > used it. Barons were peers of the realm, meaning that they were peers
> > > of the court of the kingdom i.e. Parliament. Feudal barons were the
> > > original and proper peers. This feudal term ('peer') was filched by
> > > their successors (barons by writ and patent), that is those who were
> > > not peers in the feudal sense. It is really very simple.
>
> > > PS If you find it tiresome then don't get involved. Go and make
> > > yourself a nice cup of hot chocolate.- Hide quoted text -
>
> > > - Show quoted text -
>
> > Hello Graham,
>
> > As much as I've read of this thread, and your opinions on this subject
> > - I still don't get your point...
>
> > What message are you trying to communicate? What is the return for
> > all of this effort?- Hide quoted text -
>
> > - Show quoted text -
>
>
> - Show quoted text -
>Truth
Sorry Graham, but you could be a bit more vague? I was under the
impression that you might take a moment to perhaps describe what your
labyrinth of subjective logic was trying to correct, or what you
expected to accomplish with same.
TRUTH: It is Monday evening 7:07 pm PST or 3:07 am Tuesday in the UK.
Now you
gra...@gmilne.demon.co.uk
>
> - Show quoted text -
Certainly, I can be more vague... possibly or maybe perhaps
Actually, I merely brought the subject up as a matter of interest. I
am guessing that almost no-one is aware of the survival of regality
courts or the power of lords of regality to create barons.
gra...@gmilne.demon.co.uk
I don't need to consult Roger of Wendover or anybody else for that
matter, because I know what I am talking about. The meaning of the
word peer in the feudal context is very clear and very simple. Instead
of suggesting that I go and read various things, why don't you go and
read the Lords Report on the Dignity of a Peer and then come back to
us with your apologies.
Greg
>
> - Show quoted text -
Quote:
Actually, I merely brought the subject up as a matter of interest. I
am guessing that almost no-one is aware of the survival of regality
courts or the power of lords of regality to create barons
Hi Graham,
Very good. I can see the interest. I don't think I missed it, but
what modern -recent examples do we have, and where were these barons
created and by whom? Are we talking Scotland? England? both?
neither?
Were these things - purchased? if so, by whom? from whom? and how
much?
Nathaniel Taylor
<a582ba04-0073-472e...@m44g2000hsc.googlegroups.com>,
"gra...@gmilne.demon.co.uk" <gra...@gmilne.demon.co.uk> wrote:
No, you cannot hide under the skirts of some government document to
support your breezy anachronistic nonsense. I don't really care about
your pretensions to be considered as a baron or a peer, but I do take
umbrage when someone plays with medieval texts so irresponsibly.
gra...@gmilne.demon.co.uk
>
> - Show quoted text -
Answers in order: Yes, no, 7, maybe, 4.5 miles, both, last
Wednesday...
England and Scotland
In England, Palatine Earls and Bishops could create barons; the
Palatine Earls of Chester had their own parliament and their own
barons (e.g. Kinderton which continued into the 17th century I
believe). I do not doubt that the Queen as Duke of Lancaster can
create barons of the Duchy.
Scottish earls were creating barons into the 1990s according to Hugh
Peskett, Scottish Editor of Burke's. I know the details but cannot
reveal them.
I gave an example of a lord of regality granting a barony; Leven in
Fife. See my previous posting.
Greg
>
> - Show quoted text -
Quote: I know the details but cannot reveal them.
What?
Quote:I gave an example of a lord of regality granting a barony
Well, for the purposes of the discusion, please cite the example
again. I seem to remember that errection of a barony was by royal
grant alone: now, in the context of a colony that me be a different
story, but in tems of modern society I have a bit of difficulty
seeing the concept fly.
gra...@gmilne.demon.co.uk
You heard what I said.
> Quote:I gave an example of a lord of regality granting a barony
>
> Well, for the purposes of the discusion, please cite the example
> again.
No. Go and read the thread.
I seem to remember that errection of a barony was by royal
> grant alone: now, in the context of a colony that me be a different
> story, but in tems of modern society I have a bit of difficulty
> seeing the concept fly.- Hide quoted text -
Greg
>
> - Show quoted text -- Hide quoted text -
>
> - Show quoted text -
Sorry Graham. You're using "lawyer's Logic". To the observer, you
lose.
Derek Howard
<gra...@gmilne.demon.co.uk> wrote:
> Hugh Peskett has provided me with details of a Scottish earl granting
> a barony in the manner I described but I am not at liberty to disclose
> any more. Sorry. With regard to lords of regality creating barons, I
> have been provided with the example of Leven (Fife) which was granted
> by the Archbishop of St. Andrews (St. Andrews was a regality) to
> George Lauder of the Bass in 1609. The grant was confirmed by James VI
> in the same year. You will appreciate that the Archbishop can ONLY
> have granted the barony in his capacity as a feudal lord - a lord of
> regality. Of course, the AFT Act did not abolish regality jurisdiction
> (I know for a fact that the people who drafted the Act had no idea of
> the existence of regality jurisdiction - which just proves that it is
> better to be an amateur historian than a professor of law), so it
> continues to exist and lords of regality can not only hold regality
> courts but they can also grant baronies. Whoops!- Hide quoted text -
and
On Jun 3, 1:40am, "gra...@gmilne.demon.co.uk"
<gra...@gmilne.demon.co.uk> wrote:
>We await a response from Mr. Howard.
Thanks for waiting - some of us have jobs and families to attend to. I
had not seen a question to respond to however. Nevertheless, let me
comment on your 1 June post.
First I agree with those who point out that claiming you have evidence
but are not at liberty to disclose it is risible. It would not be
accepted in an academic forum, peer reviewed journal nor school
debating society, so forgive me if I laugh quietly to myself.
With regard to your example of Leven, in Fife, I have to say that
there is a world of difference between a grant of barony by the Crown
and the conveyance of an estate by a cleric. As in many continental
jurisdictions – commonplace practice in France and the Low Countries -
a conveyance of a barony as an estate had to be ratified and
sanctioned by the Crown before the full rights of barony could be
exercised and the style of baron claimed.
As can be seen on-line at <http://www.rps.ac.uk/> the barony of Leven
was again ratified by the Crown, on 1 June 1621, (it appears in the
parliamentary register 4 Aug 1621). As you will note, the charter made
by the archbishop of St Andrews, to George Lauder of Bass, of the
lands of Scoonie, Mountfleurie, Banbeath, Threipland, Leven, port and
harbour of Leven, and of the town and burgh of barony of Leven, etc.,
dated 4 July 1608 (not 1609 as you claimed), had required Crown
confirmation on 16 October 1609, and, again, on conveyance to
Alexander Gibson, laird of Durie, required a further Crown
ratification, in order that "good, valid and sufficient rights and
titles" be given to Gibson for "possessing and enjoying of the said
lands, barony, …. and all the liberties and privileges and
immunities".This does not look like the 1608 conveyance of the estate
of the barony was a grant of baronial powers by a lord of regality,
neither creating a title nor creating baronial jurisdictional
authority, indeed there is no such mention in the confirmation.
Clearly though, without Crown approval Gibson would not have "good,
valid and sufficient rights and titles" and therefore not have any
barony as such, with Crown authority he might. It would be interesting
to see what the position 1608-09 Gibson had other than as an estate
owner - indeed whether he exercised baronial powers at all after that
date.
In addition, the lands, including Scoonie, Balbeth, Monfloure, Leven
Bridge, etc., had been granted by Scots kings in regality to the
church and bishop of St Andrews. (This was ratified by James II on 14
June 1452, the 1452 ratification itself ratified and confirmed by
James III in on 7 Oct 1479 to William Scheves, archbishop of St
Andrews - charter of mortification under the great seal 9 July 1480 on
RPS). A conveyance by the archbishop would have taken the the town and
burgh of barony out of the regality and into full royal jurisdiction
again in the sheriffdom of Fife. This jurisdictional change would also
require royal approval.
In short, you have, once again, produced no evidence that a lordship
of regality had any powers to create a barony.
Derek Howard
gra...@gmilne.demon.co.uk
The last time you used www.rps.ac.uk you tried to prove that
Mordington was not a regality, as we can all see in this thread. You
clearly spent hours reading through documents on that site relating to
Mordington to try and prove me wrong (instead of 'looking after' your
much vaunted 'family' - what a sad individual you are Mr. Howard). In
the end all your assertions turned out to be complete rubbish and all
your efforts vain (not for this first time). The charter of 1636
creating the regality was on the web all the time for all to see. You
missed it. So how much reliance can we place on your 'scholarship' Mr.
Howard? Clearly none at all. You are demonstrably prepared to make
assertions on a subject you know nothing about which turn out to be
absolutely false. This is a fact. You are merely a sad individual with
a chip on his shoulder. As for your snide remark about 'some of us
having jobs' etc., what a nasty piece of work you are Mr. Howard. You
show no hesitation in getting personal but, as you will see from this
post, if you wish to get personal, you will get back more than you can
dish out.
The fact of the matter is that I have never even bothered to try and
look for an example of a lord of regality creating a baron. I know
they had that right, as does anyone else who has the most basic
understanding of the feudal system. Someone happened to mention Leven
to me in relation to another matter entirely. Mr. Peskett has
confirmed that the right existed and was exercised by Scottish earls
into the 1990s. This is fact. You lose Mr. Howard (again). I know it
will be difficult for you but try not to get even more bitter. Console
yourself, if you can, with the thought that being humbled in public is
good for your soul. Sorry, I was forgetting that you don't have one.
PS Here are two question for you with regard to Leven:
1. Was there a grant of a barony?
2. Who granted it?
3. Who confirmed the grant?
Simple enough for you?
Now get lost.
Greg
>
> - Show quoted text -
Graham said;
Quote: Simple enough for you? Now get lost
Graham. That's bad. You've tipped your hand
gra...@gmilne.demon.co.uk
>
> - Show quoted text -
Get lost.
Derek Howard
<gra...@gmilne.demon.co.uk> wrote:
> The last time you usedwww.rps.ac.ukyou tried to prove that
> Mordington was not a regality, as we can all see in this thread.
Luckily we have Google archives. You wrote on Apr 20 at 1:46 am:
"Mordington has been a regality since the 14th century (24th March
1381-2 to be precise".
To which I replied on Apr 27 at 1:41 am:
"While we are looking at regalities I note that a private act at
Edinburgh, dated 19 April 1567 being a ratification to James Douglas,
earl of Morton, which refers to "the lands and barony of Mordington,
…., lying within our sheriffdom of Berwick". Mordington was NOT itself
a regality, though Douglas did hold the "regality, barony, town and
burgh in the barony of Dalkeith".
And indeed it was not a regality in 1567, the evidence is that it was
a barony within the sheriffdom of Berwick. So, whether or not Nether
Mordington was created a regality in 1636 or not, Mordington has not
been a regality since 1381 as you claimed.
>You
> clearly spent hours reading through documents on that site relating to
> Mordington to try and prove me wrong
Minutes more precisely - it is a searchable database and there are
only a very limited number of Mordington entries. Also my interest was
in establishing whether you were right or wrong, if the evidence
suggests the latter, that is not my doing.
> The charter of 1636
> creating the regality was on the web all the time for all to see. You
> missed it.
I had not searched for it and it does not negate my point.
Nevertheless thanks for actually drawing the groups attention to it.
I shall ignore the abuse which you habitually indulge in.
> The fact of the matter is that I have never even bothered to try and
> look for an example of a lord of regality creating a baron.
Hmm. Well, you may or may not have looked but you certainly presented
it as an example of such, for on Jun 1 at 9:48 pm you posted:
"With regard to lords of regality creating barons, I have been
provided with the example of Leven (Fife) which was granted by the
Archbishop of St. Andrews (St. Andrews was a regality) to George
Lauder of the Bass in 1609. The grant was confirmed by James VI in the
same year. You will appreciate that the Archbishop can ONLY have
granted the barony in his capacity as a feudal lord - a lord of
regality".
And you confirmed on Jun 10 at 10:35 pm
"I gave an example of a lord of regality granting a barony; Leven in
Fife. See my previous posting".
I shall ignore the further habitual abuse.
> PS Here are two question for you with regard to Leven:
Which two out of the three do you wish me to address?
> 1. Was there a grant of a barony?
> 2. Who granted it?
> 3. Who confirmed the grant?
>
> Simple enough for you?
>
> Now get lost
I am flattered you consider it worth saying as much. I must have hit a
nerve. Now, ask yourself the same three questions in the light of the
evidence.
I am sorry that you felt the need for your abuse as, always trying to
bring something positive to the discussion, I was on the point of
assisting you with the issue of discussing the use of the term par/
pares in medieval latin with Nat. I thought you might have appreciated
being referred to Charles Du Fresne Du Cange: "Glossarium mediae et
infimae latinitatis"; pub. Paris, Librairie des sciences et des arts,
1937-1938; vol 6, pp 147-153, available on <http://gallica.bnf.fr/>.
Happy reading :-)
Derek Howard
Brian G. Hamilton.
> On Jun 14, 12:56 am, "gra...@gmilne.demon.co.uk"
>
> <gra...@gmilne.demon.co.uk> wrote:
I now realise how Graham has come to the conclusion that Lords of
regalities can grant baronies. He is right; but not for the reason he
is thinking. Barons can grant baronies also. It is because of the
procedure necessarilly employed in the feudal system of conveying
land. In early days the feudal relationship was regarded as personal
as between monarch and vassal. One had to be capable of providing the
services set out in the foundation writs. What happened was that when
a land owner who was a crown vassal sold his land a charter was
created between buyer and seller. That charter was recorded in the
Sasine Register if later than 1617; if earlier it was held in a safe
place. The buyer then went to the monarch (Barons of Exchequer) and
asked for a crown charter of the land he had just acquired from the
seller. Normally this would be given without any great fuss; the
comosition of entry, usuall two years feuduty would be paid and the
new owner would become a vassal of the crown replacing the last
vassal. Interestly, the charter between the old owner and the new
owner contained two different forms of infeftment. The first was a
straight disposition of the owner's 'whole right title and interest to
the lands hereby conveyed' but the second was a feu charter of the
land cvonveyed. This second clause was a safety net in case the
monarch refused to accept the new vallal in which case the buyer would
be the effective owner of the lands but a vassal of the previous owner
who would himself remain the crown vassal.
I wonder if that satisfies all parties!
Brian G. Hamilton.
Brian G. Hamilton.
wrote:
> On Jun 15, 12:18 am, Derek Howard <dhow...@skynet.be> wrote:
>
>
>
>
>
> > On Jun 14, 12:56 am, "gra...@gmilne.demon.co.uk"
>
> > <gra...@gmilne.demon.co.uk> wrote:
>
> - Show quoted text -
Apologies for the many typos; comosition should be composition. The
rest you can figure out.
BGH
Greg
wrote:
> On Jun 15, 12:18 am, Derek Howard <dhow...@skynet.be> wrote:
>
>
>
>
>
> > On Jun 14, 12:56 am, "gra...@gmilne.demon.co.uk"
>
> > <gra...@gmilne.demon.co.uk> wrote:
>
> - Show quoted text -
Brian,
That is an excellent explanation.
I understand however that 'Instrument's were recorded in the Sasine
Register prior to 1617. And the seller of lands (a baron), in your
example, seems to have nothing to do with the transfer of the title,
but that responsibility was in the care of a crown official ( I know
that all were actually crown officials, but for the purposes of
discussion...) operating in a satellite office, and recording crown
appointments (grants from applications). This is not in the sense "A
Baron", (although, this man was a local land holder yes?) but
something in your example leads one to believe that any baron could
just appoint another as a baron through the sale of his chartered
land...
gra...@gmilne.demon.co.uk
> On Jun 14, 12:56 am, "gra...@gmilne.demon.co.uk"
>
> <gra...@gmilne.demon.co.uk> wrote:
You haven't answered my questions.
1. Was there a grant of a barony?
2. Who granted it?
3. Who confirmed the grant?
What you say about Mordington is rubbish. It has been a regality since
the date I specified. The regality was subsumed within the regality of
Dalkeith for a period but even when a barony or regality was subsumed
it still retained its seperate legal identity as a barony or regality.
Read Professor Croft Dickinson.
PS You say you spent minutes researching this subject. I can believe
it. In fact, are you sure it was that long?
gra...@gmilne.demon.co.uk
wrote:
> On Jun 15, 12:18 am, Derek Howard <dhow...@skynet.be> wrote:
>
>
>
>
>
> > On Jun 14, 12:56 am, "gra...@gmilne.demon.co.uk"
>
> > <gra...@gmilne.demon.co.uk> wrote:
>
> - Show quoted text -
No, it doesn't satisfy all parties. Lords of regality could (and can)
create their own barons. Palatine earls in England had their own
hereditary barons and I cited the example of the Barons of Kinderton
being barons of the Earldom of Chester. This earldom had its own
parliament for several centuries. Mr. Howard claims that lords of
regality were somehow different but (surprise, surprise) he has
omitted to explain how. Since such an explanation would end this
argument, this is rather surprising. Or perhaps not given that Mr.
Howard was clearly making an assertion without having a clue what he
was talking about.
Brian G. Hamilton.
'I have almost left the building'.
I am not prepared to accept the relevence of English baronial law to
the Scottish position. I am not prepared to accept your report of a
conversation with Hugh Peskett, and I have great respect for him, as
an historical source especially as we are not allowed the details. I
think you have looked at a sasine and seen a grant of baronial
regality lands from a cleric and jumped to the conclusion that Lords
of Regality can create barons. I'll let you into a little secret; I
have probably conveyed more baronies than anyone else in Scottish
legal history. However, I have never created a barony, all I have
done is transacted with baronial lands (and latterly baronial
dignities). The baronial status follows naturally on from the
ownership of baronial lands.
I will now 'get lost'.
Brian G. Hamilton.
Patrick Cracroft-Brennan
<gra...@gmilne.demon.co.uk> wrote:
<snip>
>> Actually, I merely brought the subject up as a matter of interest. I
>> am guessing that almost no-one is aware of the survival of regality
>> courts or the power of lords of regality to create barons
>>
>> Hi Graham,
>>
>> Very good. I can see the interest. I don't think I missed it, but
>> what modern -recent examples do we have, and where were these barons
>> created and by whom? Are we talking Scotland? England? both?
>> neither?
>>
>> Were these things - purchased? if so, by whom? from whom? and how
>> much?- Hide quoted text -
>>
>> - Show quoted text -
>
>Answers in order: Yes, no, 7, maybe, 4.5 miles, both, last
>Wednesday...
>
>England and Scotland
>In England, Palatine Earls and Bishops could create barons; the
>Palatine Earls of Chester had their own parliament and their own
>barons (e.g. Kinderton which continued into the 17th century I
>believe). I do not doubt that the Queen as Duke of Lancaster can
>create barons of the Duchy.
>Scottish earls were creating barons into the 1990s according to Hugh
>Peskett, Scottish Editor of Burke's. I know the details but cannot
>reveal them.
>I gave an example of a lord of regality granting a barony; Leven in
>Fife. See my previous posting.
An old canard here: the Queen is not Duke of Lancaster. She holds
the Duchy of Lancaster as an independent heritable fiefdom distinct
from the Crown Estate, but by definition the Crown cannot hold a title
of itself and so the Queen cannot also be Duke of Lancaster.
The Dukedom of Lancaster has been merged with the Crown since 1413
when Henry, Prince of Wales and Duke of Lancaster, succeeded to the
Throne as Henry V.
Patrick Cracroft-Brennan
Editor - Cracroft's Peerage
The Complete Guide to the British Peerage & Baronetage
www.cracroftspeerage.co.uk
======================================================
Patrick Cracroft-Brennan
By any chance has anyone posted a copy of this report on the 'net?
gra...@gmilne.demon.co.uk
wrote:
>
> - Show quoted text -
Tell that to a Lancastrian; they toast the Queen as 'The Queen, the
Duke of Lancaster'. Let's apply a little logic. There is a government
office called 'Chancellor of the Duchy of Lancaster'. If follows that
there must be a Duchy of Lancaster (as a legal entity). A duchy
requires a duke or it is not a duchy. Who is the Duke? Answer? The
Queen. Simple really.
I am glad to have been of help.
gra...@gmilne.demon.co.uk
wrote:
> ======================================================- Hide quoted text -
>
> - Show quoted text -
It runs to five volumes (3 in Latin). I recently bought a set.
Expensive I can tell you. Someday I will scan it in and flog it to you
for a vast sum of money. That's the theory anyway.
Patrick Cracroft-Brennan
<gra...@gmilne.demon.co.uk> wrote:
With respect, Graham, you're totally wrong here. And your logic is
flawed.
As I have said, there is a Duchy of Lancaster. But there is no Duke
of Lancaster. One of the peerage world's little anomalies!
Now if you can give me a good reason why of all the peerage titles
that have merged with the Crown the Dukedom of Lancaster should be an
exception, then please do so.
Patrick Cracroft-Brennan
<gra...@gmilne.demon.co.uk> wrote:
A modern (well 19th century!) report partly in Latin? Wow!
You could have it professionally scanned and then made available to
all who wanted at a modest cost.
gra...@gmilne.demon.co.uk
The answer is that the Duchy of Lancaster is not a personal peerage
dignity, it is a territorial (that is feudal) dignity. Feudal
dignities retain their seperate legal identity even when held by the
King. CP is wrong when it says (vol. 7, p. 419) that the honour merged
with the Crown. On p. 418 (note d.) the real nature of the dukedom is
revealed; it is a territorial dignity seperate from the Crown
'declared to be a seperate inheritance'. This is why we have a
Chancellor of the Duchy of Lancaster today.
gra...@gmilne.demon.co.uk
The braying of the dogs (that's you Mr. Howard) has finally prompted
me to reach for my copy of the Register of the Great Seal. The charter
of 16 Oct 1609 (RMS VII, 153) is quite clearly a confirmation by the
King of a grant of lands, including the burgh of barony of Leven, to
George Lauder of the Bass, to be held of the Archbishop. What is even
more interesting is the previous charter (which, Mr. Howard, you may
quote as RMS VII, 152), which is a similar grant of confirmation of a
grant by the Archbishop to the same person of the burgh of barony of
Tynninghame, within the regality of St. Andrews, which, to quote RMS,
'In super dictus archiepiscopus erexit dict. villam de Tynninghame in
liberum burgum baronie...' i.e. which the Archbishop has erected into
a burgh of barony.
So now it is finally settled. Firstly, lords of regality could create
barons. Secondly, Mr. Howard is a fool with a chip on his shoulder and
no-one in this newsgroup need ever take him seriously ever again.
Patrick Cracroft-Brennan
<gra...@gmilne.demon.co.uk> wrote:
Nobody is arguing that the lands and property comprising the Duchy of
Lancaster enjoyed (and still enjoys) a distinct and seperate existence
from the rest of the Crown Estates. The income from the Duchy of
Lancaster are still used to fund the Sovereign's privy purse.
However, this does not mean that there is still a Dukedom of
Lancaster. For centuries it has been a basic tenet of peerage law
that the Crown cannot hold of itself, that is to say the Crown cannot
hold a peerage. Any peerage dignity held by a person when he or she
succeeds to the Throne is automatically merged with the Crown. Even
the Dukedom of Lancaster is no exception to this basic rule.
Derek Howard
statement. However, I suspect that you have again misled yourself.
Please read below.
> So now it is finally settled. Firstly, lords of regality could create
> barons.
No. That is not settled. The evidence appears to the contrary. Could I
suggest that you move to an approach starting with the evidence,
examining it critically, interpreting and then concluding, rather than
the reverse?
> Secondly, Mr. Howard is a fool with a chip on his shoulder and
> no-one in this newsgroup need ever take him seriously ever again.
I do not know why you attempt to make it personal, nor why you prefer
argument to discussion. I may of course be fool for responding to you.
Could I suggest that you take a more collegiate approach to
determining historical and legal truth? I have no interest in you but
in the issues and ideas on which you make bold statements which do not
to my ears ring true. I then look to the evidence to see whether you
are correct or not. It is not me who determines if, for instance, a
ratification of a private act says that Mordington was "lying within
our sheriffdom of Berwick" rather than in some regality in 1567.
Address yourself to the author or the lawyers to his successor.
I suspect from your latest post that your error is to equate a burgh
of barony with a barony. They were two separate things (as I suspect
you know, or ought to know, but you prefer the fight).
As Brian Hamilton’s web site < http://www.baronytitles.com/barony-titles.html>
correctly states:
"Barons also had valuable commercial advantages including the right to
petition the Crown to have towns erected into Burgh of Barony status
thus enabling the baron to control trade, hold fairs and even
sometimes to exact taxes".
A burgh had various privileges and a burgh of barony was a burgh that
belonged to a baron. However, you cannot put the cart before the
horse. The burgh was a burgh of barony if it was not a royal burgh or
burgh of regality and it belonged or was dominated by a local baron
who could petition for it to be created. Creating a burgh of barony
merely meant that the burgh created belonged to a pre-existing baron
and **not** that ownership of it created a new barony, whether estate
or title, for the owner.
A baron could petition the Crown to be granted a burgh of barony. The
Bishop of St Andrews, being a baron several times over – his baronies
having been granted by the Crown – could erect a burgh but would need
Crown agreement for it to have all the rights normally attaching to a
burgh of barony such as markets, fairs, etc. A burgh of barony was the
product of a baron acting with the Crown for economic and some
judicial reasons, it has nothing to do with creating a barony. It was
a Crown prerogative to approve burghs of barony. Tyninghame belonged
to St Andrews by virtue of the ineffectual donation of Duncan II to
Durham in 1094. The episcopal barony was later granted to the Duke of
Lennox in 1593.
"Burghs of Regality and burghs of barony were held in vassalage of
some great lordship, lay or ecclesiastical, but were **always** in
theory or in practice created by Crown grant" [My emphasis]. They were
cumulative with that of the baron or the lord of regality, who in some
cases obtained the right of nominating magistrates. Powers to hold
markets and levy customs were given to these burghs.
[See under Boroughs in: Encyclopaedia Britannica, 9th edition, 1876,
vol. 4, pp 63-64.]
The King’s prerogative (and this term is stated in the Act, there was
no devolved power) to erect free and independent burghs of barony was
abolished in 1746 and restored in 1795. The last such burgh of barony
was created in 1846 and burghs of barony and regality were finally
abolished in 1893, indeed all burghs were abolished in Scotland 1975,
so the idea that a lord of a regality or a Scottish territorial baron
(assuming, merely for the sake of debating this point, that any such
still exists) could grant a new burgh of barony now is very silly
indeed.
Incidentally I note that, elsewhere on the thread, you have still not
accepted that lords of regality were not barons. I cited a reference
for LoR and Bs being the same, here is another: the erection of lands
held by the bishopric of Glasgow into a regality by James III on 15
July 1476 to hold of the King "in mere, pure and free regality or
royalty as a barony". Regalities were merely baronies with greater
rights and wider exemptions from royal authority. There are a number
of other good examples of baronies being held "in one integral and
free barony and free regality" (1366).
Now, go read up on burghs of barony in: (as well as RPS)
Ranald Nicholson: Scotland in the Middle Ages, The Edinburgh History
of Scotland, vol. 2, Edinburgh 1974, pp 1, 107, 264, etc.
An Historical Atlas of Scotland c.400-c.1600, McNeill and Nicholson
(eds.), Conference of Scottish Medievalists, St Andrews 1975.]
M Ash: The Lands and Churches of the Bishops of St Andrews, in McNeill
and Nicholson, pp 40-41, 153.
AAM Duncan: Burghs before 1296, in McNeill and Nicholson, pp 31-32.
You may want to also refer to the following cited sources for the
above:
William Mackay Mackenzie: The Scottish Burghs, An expanded version of
the Rhind Lectures in Archaeology for 1945; pub. Oliver & Boyd:
Edinburgh, 1949.
The Court Book of the Burgh of Kirkintilloch, 1658-1694; Ed. George S.
Pryde, pub. Scottish History Society, Edinburgh, 1963.
George Smith Pryde, The Burghs of Scotland: A critical list; pub for
the University of Glasgow by the Oxford University Press, London, 1965
Derek Howard
Derek Howard
wrote:
> I am not prepared to accept the relevence of English baronial law to
> the Scottish position.
A point I was about to make, pointing Graham to the works of John
Selden "Titles of Honor", 2nd edition, 1631, who examines at some
length the question of palatine titles and quotes charters of creation
of German examples as well. In Germany all the powers under a palatine
jurisdiction were spelled out including the powers to appoint public
notaries, to award certain university degrees, etc. These varied
between palatine counties. Palatine meant one thing in one country and
something else in another. 'Palatine' is not the same word as
'regality' and the Scottish constitution should be examined on its own
merits and evidence. There can be no presumption that powers in one
region are identical to another.
Derek Howard