Research Subjects: Miscellaneous


 

The Two Earldoms: 1643-1701

The Marquessate of Annandale: 1701-1792

The Hopes, the Grahams and Other Claimants: 1795-1879

The House of Lords' Decision: 1985

Sources

Notes

The British Peerage in 1818: Peerage Inheritance (the Earldom of Annandale and Hartfell, 1792-1985)

By Stephen Millar 

"The findings of the Committee for Privileges, adopted by the House in the proceedings of 1844 and 1879 relating to claims by the petitioner's ancestors, did not constitute a bar to the petitioner's claim since no attempt was made in the earlier proceedings to rely on the Charter and Signature of 1662.

The question now at issue was not then considered or decided, and the nineteenth-century proceedings could properly be treated as different from that of the present claim. Moreover, it was well settled in the law of Scotland that heritable rights and rights of blood did not prescribe unless there had been adverse possession. The conclusion therefore was that the petitioner had made out his claim."

-- published in The Times (London), 24 July, 1985[1]

One of the most interesting inheritance cases in the British peerage involved the revived earldom of Annandale and Hartfell, a title which had lain dormant since 1792. It began with the death of the 3rd Marquess of Annandale, who also held the title of 4th Earl of Annandale and Hartfell (both created in the peerage of Scotland). The dispute over who was the legal successor of his earldom spanned 193 years, until it was finally resolved by the House of Lords in 1985.

The Two Earldoms: 1643-1701

James Johnstone was created 1st Earl of Hartfell (in the peerage of Scotland) on 18.03.1643 by King Charles I of England. His eldest son, James (1625-17.07.1672), succeeded him as 2nd Earl in 1653. Three years later, the 2nd Earl's younger brother, William, died, leaving the new earldom with no legal heir.

Succession to the earldom required 'heirs male'; the 2nd Earl had no children and his closest relatives were now four sisters (Lady Mary, Lady Janet, Lady Margaret and Lady Bethia). The earldom would, therefore, pass to a very distant collateral heir (a fourth cousin). His decision was to resign his Scottish titles (10.06.1657).

By resigning his titles, the 2nd Earl hoped to take advantage of a section of Scottish law:

'It is a recognised principle in the law of Scotland that a Scottish peer, previous to the Act of Union, provided he obtained the sanction of the Crown, might alter the limitation of his honours, in precisely the same manner as he might alter the destination of his estates. He resigned his honours just as he resigned his land for a re-grant from the Crown, and if the re-grant were made in favour of a different series of heirs from those who would have been entitled to succeed under the original grant, the dignities passed with the old precedence into the new line of succession. The resignation bars the previous heirs, and the re-grant which follows upon it vests the old peerage in the new series of heirs.'[2]

On 13.02.1661, the newly-returned King Charles II created a new 'double' earldom in the Peerage of Scotland, making James 1st Earl of Annandale and Hartfell (the previous earldom of Annandale had become extinct on 28.12.1658 with the death of James Johnstone Murray, the 2nd Earl). The second step came a year later, when Charles II re-created the earldom of Annandale and Hartfell with James' requested alteration for his heirs:

'On 23 April 1662, he obtained from Charles II a charter of novodamus, erecting his estates into a territorial earldom and lordship, with remainder to heirs male, whom failing, his eldest female heir without division, and the heirs male of her.'[3]

It was a crucial change in the succession to this second earldom (and the basis of the successful 1982 petition to the House of Lords by Patrick Andrew Wentworth Hope Johnstone):

The alteration made by the re-grant in regard to the titles and estates of the family was to the effect that, instead of being limited to heirs male in general, they were to descend to the heirs male of the second Earl of[Annandale and]Hartfell, whom failing, to his two[one]sisters and their[her]heirs, male and female.'[4]

There were now two creations of the earldom of Annanndale and Hartfell in the peerage of Scotland: 13.02.1661 and 23.04.1662. When he died in 1672, the new earl had six surviving children: Mary, William (the heir to the earldom), John, George, Henrietta and Margaret.

The Marquessate of Annandale: 1701-1792

The new earldom - and the earlier 1661 creation - were inheirited by Sir William Johnstone (17.02.1664-14.01.1721), second son of the 1st Earl, on 17.07.1672. A former president of the Scottish Parliament and Lord Treasurer of Scotland, the 2nd Earl of Annandale and Hartfell was advanced to the rank of marquess by King William III on 24.06.1701, with the creation of the marquessate of Annandale (in the peerage of Scotland).

The marquessate and earldoms were subsequently inheirited by James Johnstone (1688-1730), son of the 1st Marquess (by his first marriage), on 14.01.1721. Four years before his death in 1730, the unmarried 2nd Marquess - whose two brothers John and William had died in 1694 and 1721 - decided to make his only sister, Henrietta, heir to his titles and estates. In 1726, 'he executed a deed entailing his titles on his sister Henrietta's family, thus disinheiriting his half-brothers[George and John].'[5]

Lady Henrietta Johnstone (11.11.1682 - 25.11.1750) was the only other child from her father's first marriage to Sophia Fairholm. On 31.08.1699, she married Charles Hope, 1st Earl of Hopetoun - created on 15.04.1703 in the peerage of Scotland - and later had five children; the eldest, and heir to the earldom, was John Hope (07.09.1704-12.02.1781).

The marquessate and earldoms, however, were inheirited by the 2nd Marquess's eldest half-brother, George, on 10.02.1730; the heir to the Annandale titles now became the youngest half-brother, John.

George Johnstone, 3rd Marquess of Annandale, 4th Earl of Annandale and Hartfell (29.05.1720-29.04.1792) was son of the 1st Marquess and his second wife, Charlotte van Lore. Never married, he changed his surname to 'van den Bempde-Johnstone' by an Act of Parliament in 1744 and four years later (05.03.1748), was declared legally insane. John Hope, 2nd Earl of Hopetoun - the son of Lady Henrietta Johnstone - was made 'trustee in lunacy' for his half-uncle in 1747; his son, John Hope, 3rd Earl of Hopetoun (23.08.1741-29.05.1817) was appointed trustee in 1781.

A number of historical references have been made George van den Bempde-Johnstone's mental condition, especially in connection with philosopher David Hume (who was his tutor for a year):

'Although Hume was beginning to make some money from his writings, he still had no settled income, and in 1745 he accepted a post as tutor to the Marquess of Annandale, who was, unfortunately, insane or at least very seriously disturbed.'[6]

When the 3rd Marquess of Annandale died in 1792, his titles became dormant (his 21-year-old brother had died unmarried in 1742). It  subsequently required petitions spanning almost 200 years for British House of Lords to determine a successor to his earldom.

The Hopes, the Grahams and Other Claimants: 1795-1879

The first claimant to the Annandale titles was the 3rd Marquess's last trustee, John Hope[later Hope Johnstone], 3rd Earl of Hopetoun, in 1795:

'On his[the 3rd Marquess's]death, in 1792, the family titles became dormant, and the estates devolved upon his grandnephew James, third Earl of Hopetoun. The accumulated rents of his estates, amounting at his death to £415,000, were the subject of long litigation both in England and Scotland. The 'Annandale cases' contributed greatly to settle in Britain the important principle that the movable or personal estate of a deceased person must be distributed according to the law of the country where he had his domicile at the time of his death. The Earl of Hopetoun had no male issue, and his eldest daughter Anne married Admiral Sir William Hope Johnstone, whose eldest son, John James Hope Johnstone, inherited the Annandale estates, and claimed the titles of his maternal ancestor.'[7]

Hope Johnstone's claim to the 1661 earldom was based on the following succession, which followed the provisions of the 1662 charter: the 1st Earl of Annandale and Hartfell to his son, the 1st Marquess of Annandale, then to his son, the 2nd Marquess, then to his half-brother, the 3rd Marquess (the last male heir 'of the body' of the 1st Earl) then back to Lady Henrietta Johnstone, the daughter of the 2nd Marquess (the eldest female heir 'of the body').

'A claim was thereupon advanced by James, third Earl of Hopetown, who was the grandson of the first earl's eldest granddaughter[Lady Henrietta Johnstone]' ­founded upon the letters patent of 1661.

They depended for their success upon establishing that, upon a true construction, the words 'heirs male' in the destination of the peerage thereby created meant heirs male of the body the first earl, not his heirs male general, with the consequence that upon the extinction of heirs male of the body the succession opened to the eldest heir female of his body and the heirs male of the body of such eldest heir female.'[8]

No legal ruling was handed down from 1795 to 1844, during which time three successive members of the Hope Johnstone family claimed the 1661 earldom (the marquessate of Annandale remained extinct). The peerage's inheiritance was further complicated in the early nineteenth-century with the emergence of several additional claimants.

In 1830, a petition was presented to King George IV by Sir Robert Graham, 8th Baronet of Esk (01.10.1769-27.01.1852) who claimed the title as a decendant of Lady Mary Johnstone, sister - or 'eldest heir female' - of the 1st Earl of Hartfell. Her first husband was Sir George Graham, 2nd Baronet of Esk, whom she married around the year 1647.

Graham's petition concluded:

'­That Your Petitioner is advised that he is the Heir General of the said James First Earl of Annandale, claiming through the said Lady Mary the Sister of the said Earl, and as such is become intitled to the Honors conferred by the said Letters Patent and Royal Charter.

'Your Majesty's Petitioner therefore most humbly prays, That Your Majesty will be graciously pleased, on Proof being given of the Facts before stated, to adjudge and declare that Your Petitioner has Right to the Titles, Honours and Dignity of Earl of Annandale and Hartfell, Viscount Annan, and Baron Johnstone of Lochwood, Lochmaben, Moffatdale and Evandale, according to the Terms, Limitations of and Precedency mentioned in the said Letters Patent and Royal Charter of His Majesty King Charles the Second, in favor of Your Petitioner's Ancestor the said James Earl of Annandale and Hartfell.'[9]

On 31.05.1830,[Home Secretary Sir]Robert Peel wrote to the House of Lords that 'His Majesty, being moved upon this Petition, is graciously pleased to refer the same to The Right Honorable The House of Peers, to examine the Allegations thereof, as to what relates to the Petitioner's Title therein mentioned, and inform His Majesty how the same shall appear to their Lordships.'[10]

Four days later, Cropley Ashley-Cooper, 6th Earl of Shaftesbury, presented Graham's petition to the House of Lords, which subsequently ordered that 'the said Petition, with His Majesty's Reference thereof to this House, be referred to the Committee for Privileges to whom the Petition of John James Hope Johnstone of Annandale, Esquire, to His Majesty, claiming the Titles, Honors and Dignity of Earl of Annandale and Hartfell, Viscount Annan and Baron Johnstone, with His Majesty's Reference thereof to this House, stands referred.'[11]

However, the House of Lords' Committee for Privileges deferred a final decision on the Annandale peerage. John James Hope Johnstone had submitted a petition for additional time to research his claim; on 11.02.1831, the Lords agreed:

'Upon reading the Petition of James Johnstone of Drum, in the County of Monaghan, Esquire; setting forth, 'That some Petitions have been laid before their Lordships, from Individuals claiming the respective Dignities and Honors of Annandale, Hartfield and Johnston, in the Kingdom of Scotland, and that such Petitions have been referred for Consideration to Committees of their Lordships House: That from Family Reputation, and other Circumstances, the Petitioner is reputed to be the next Heir Male of those Dignities, and accordingly he has been, and is now, making diligent Enquiry through the Record Repositories in Ireland for written Evidences to substantiate his Claim before their Lordships: That the Petitioner is advised, that, with a View to the thorough Investigation of his Descent, it will be absolutely necessary to make extensive Research through the Parochial Registries and Public Record Offices in Scotland also; and as such Enquiries will require some Time for their Completion, the Petitioner therefore prays their Lordships will defer making final Decisions on the Claims already presented, for such reasonable Time as will enable him to complete his Enquiries':

It is Ordered, That the said Petition be referred to the Committee for Privileges, to whom the Petition of John James Hope Johnstone of Annandale, Esquire, to His Majesty claiming the Earldom of Annandale and Hartfell, with His Majesty's Reference thereof to this House; also the Petition of John Henry Goodinge Johnstone Esquire, late of Pembroke Place, in the County of Middlesex, now of Bonnington Bank near Edinburgh, to His Majesty, claiming the Titles of Earl of Annandale and Hartfell, Viscount of Annan, Lord Johnstone of Lochwood, Lochmaben, Moffatdale and Evandale, with His Majesty's Reference thereof to this House; also the Petition of Sir Robert Graham Baronet, of Walbrook, in the City of London, to His Majesty, claiming the Titles, Honours and Dignity of Earl of Annandale and Hartfell, Viscount Annan, and Baron Johnstone of Lochwood, Lochmaben, Moffatdale and Evandale, with His Majesty's Reference thereof to this House; also the Petition of William Greig Johnstone, lately residing in the Parish of Monikie, now in the Town of Montrose, County of Forfar, North Britain, to His Majesty, claiming the Title of Earl of Annandale, with His Majesty's Reference thereof to this House; and also the Petition of George Conway Montague Levine Wade Souter Johnston, Lieutenant in the 14th Regiment of Foot, praying their Lordships to grant him Time to procure Evidence to establish his Right to the Marquisate of Annandale, stand referred.'[12]

The Committee for Privileges began its deliberations regarding the Annandale peerage three years later:

'When the case was first considered, in the year 1834,[Henry Peter, 1st]Lord Brougham, who was then Lord Chancellor, was very favourable to the claim, and delivered an elaborate opinion in its support. An opposition, however, was started, which was countenanced by Lord Campbell, and the claim lay over for ten years. In 1844[11 June]an adverse decision was given by[John Singleton Copley, 1st]Lord Lyndhurst. The question turned upon the construction of the words, 'heirs male' in the patent of the Earldom of Annandale in 1661, which are capable of being construed to mean heirs male general, or heirs male of the body, according to circumstances.'[13]

John James Hope Johnstone was undeterred; in 1876 he began another claim for the Annandale title. After he died on 11.07.1876, his claim was taken up by his grandson, John James Hope Johnstone (05.10.1842-26.12.1912). The second Hope Johnstone petition, again based on the 1661 creation of the Earldom, was disallowed on 30.05.1879 - leaving the Annandale peerage still dormant.

The House of Lords' Decision: 1985

From 1912 to 1983, the Annandale claimants were his nephew, Evelyn Wentworth Hope Johnstone (09.03.1879-26.10.1964) and Evelyn's son Major Percy Wentworth Hope Johnstone (02.01.1909-05.04.1983) - who reasserted his claim in 1982.

A third, and ultimately successful, petition was brought to the House of Lords by Percy's son, Patrick Andrew Wentworth Hope Johnstone (born 19.04.1941). In contrast to their previous petitions, the Hope Johnstone family's 1982 petition was based on the 23.04.1662 re-creation of the earldom of Annandale and Hartfell as well as the 1662 charter by Charles II:

'It was clear that the king by the 1662 Charter intended to and did create, not only the territorial Earldom of Annandale and Hartfell, but also the new title, style and dignity of Earl of Annandale and Hartfell to go with it upon the same destination.

It followed that just as the title of Annandale might have followed a different destination from that of Hartfell, so might that of Annandale and Hartfell have followed a different destination from one at least of the others.'[14]

As in earlier petitions, the proposed line of succession decended from the 1st Earl of Annandale and Hartfell to the 3rd Marquess of Annandale. It then ascended back to the the 2nd Marquess's daughter Henrietta and subsequently decended down through her heirs (the Hopes).

On 23.04.1985, the Committee for Privileges of the House of Lords 'considering the petition presented to her Majesty by Patrick Andrew Wentworth Hope Johnstone of Annandale and that Ilk, praying that her Majesty might admit his succession to, and declare him entitled to the title, style and dignity of Earl of Annandale and Hartfell in the peerage of Scotland, created by King Charles II in 1662, proposed that it should report to the House that the petitioner had made out his claim.'[15]

One-hundred and ninety-three years after the death of the 3rd Marquess of Annandale, the succession to his 1662 earldom had been established, and Patrick Andrew Wentworth Hope Johnstone was formally recognized as the 11th Earl of Annandale and Hartfell and 11th Lord Johnstone.

Sources:

http://www.electricscotland.com/webclans/families/johnstones.htm

www.hulthenhem.se/peer/scot.htm

http://www.british-history.ac.uk/

www.angeltowns.com/town/peerage/peersA2.htm

http://www.stirnet.com/

http://www.thepeerage.com/p1741.htm#i17410

http://www.freewebs.com/peerage/

http://www.stirnet.com/

http://www.chinet.com/~laura/html/titles02.html

http://pages.prodigy.net/ptheroff/

http://www.hq69.dial.pipex.com/Pages/h_earl.html

http://www.clanjohnston.org/Annandale%20Peerage%20Case.htm

Notes:

 

 

Placed on the Napoleon Series: May 2006

 

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