Factual and Procedural Background
An individual identified here as the Claimant petitioned the Sovereign in 1846 to be declared entitled to the Earldom of Perth, a hereditary dignity in The State. The petition was referred to the House of Lords and, in accordance with practice, to its Committee for Privileges.
No original patent or charter of creation for the Earldom survived. Instead, the Claimant produced an authenticated 1605 commission under the Great Seal of The State and entries from the Journals of the Parliament of The State. These documents, together with an uncontested pedigree, satisfied the Committee that the title had originally been created and that the Claimant would be heir male but for historic legal impediments.
The impediments were two statutory attainders (1695 and 1715) and one parliamentary decree of forfeiture (1745) standing against the Claimant’s ancestors. In 1846 the Committee—presided over by Judge Cottenham and advised by, among others, Judge Lyndhurst—held that the attainders had extinguished the dignity and therefore resolved that the claim was “not established.”
Acting on a suggestion by Judge Lyndhurst, the Government introduced a Bill in 1853, bearing the Sovereign’s sign-manual, to reverse the relevant attainders. The Bill passed both Houses and received Royal Assent on 28 June 1853. A renewed petition was then lodged; the Committee reconvened on 19 July 1853, heard brief submissions from Attorney Fleming for the Claimant and from counsel for the Crown, and ultimately reported that the claim was made out. An order was entered on 9 August 1853 directing that the Earldom be called at future elections of The State Peers.
Legal Issues Presented
- Whether, in the absence of the original patent, a certified copy of a 1605 commission and corresponding parliamentary records constituted sufficient proof of the initial creation and limitation of the Earldom.
- Whether historic attainders and forfeitures, by virtue of 7 Anne c. 21, had the same effect upon a peerage of The State as upon an English/British peerage and therefore extinguished the dignity absolutely.
- Whether Parliament could, and should, remove the effects of those attainders so as to permit the Committee for Privileges to recognise the Claimant’s title.
Arguments of the Parties
Claimant’s Arguments
- The documentary evidence was adequate to prove the 1605 creation of the Earldom and its descent to heirs male.
- Under the law of The State, an attainder affected only the person attainted and did not bar collateral heirs; therefore the dignity had not been extinguished and could descend to the Claimant.
Crown’s Arguments
- By force of 7 Anne c. 21, the legal consequences of attainder in The State mirror those in England; consequently, the 1715 attainder of James Lord Drummond extinguished the Earldom in entirety.
- Even if the pedigree were correct, the Committee lacked authority to override parliamentary forfeitures; relief, if any, must come from fresh legislation.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|
| Glencairn Case | Determination of limitation when no patent survives | Cited to infer that, absent express words, a Scottish dignity is presumed limited to heirs male. |
| Case of Gordon of Park, Foster’s Crown Cases 95 | Effect of attainder under 7 Anne c. 21 | Invoked by Judge Lyndhurst to support the view that Scottish peerages are forfeited on the same terms as English peerages. |
Court's Reasoning and Analysis
Proof of Creation: The Committee accepted the 1605 commission and parliamentary entries as reliable secondary evidence of the creation of the Earldom. Consistent with prior authority, the limitation was presumed to heirs male of the grantee.
Effect of Attainders (1846 Decision): Guided principally by 7 Anne c. 21, Judge Cottenham and Judge Lyndhurst reasoned that an attainder in The State carried the same incidents—corruption of blood and total forfeiture—as in England. Because the grantee’s line had been attainted while holding the entire estate of honour, the dignity was considered extinguished, barring the Claimant.
Legislative Intervention: Acknowledging that equity favoured the family, the Committee noted that only Parliament could relieve the disability. The 1853 Act, introduced with the Sovereign’s signature, expressly reversed the attainders and restored the blood of the heirs male of the first Earl.
Renewed Petition (1853): With the statutory obstacle removed, the Committee revisited the evidence already on record. Counsel for the Crown confirmed satisfaction with the pedigree, and after formal summation by Attorney Fleming the Committee unanimously resolved that the Claimant had proved his right to the Earldom.
Holding and Implications
HOLDING: The Committee for Privileges reported that the Claimant is entitled to the Earldom of Perth; the House of Lords adopted the report, and the Sovereign approved it.
Implications: The decision reinstated the Earldom within the Peerage of The State and authorised the now-restored Earl to vote at elections of representative peers. The case exemplifies Parliament’s willingness to reverse historic attainders on grounds of fairness, but it sets no new judicial precedent; future restorations will still require specific legislation.