| GENEALOGY
AND THE LAW By Sir Crispin Agnew of Lochnaw, Bt., Advocate. The objective of this article is to give some idea of how a lawyer approaches a genealogy. It will perhaps give the record searcher some idea of the legal implications of preparing a genealogy. Although there are examples of genealogists brushing with the criminal law, this article is not concerned with that aspect of the law. Nevertheless, to prepare a false genealogy can be fraud. For example, Mr. William Humphrey, who in 1814 claimed the Earldom of Stirling, found himself facing a five-day criminal trial on a charge of forging the documents on which his claim was founded. It was to his relief that the jury found that all the documents were forged, but returned a verdict of "not proven" that he had forged them.1 Similarly, William Radcliffe, Rouge Croix Pursuivant, in 1819 was prosecuted for forging his own pedigree to show a collateral descent from the Earls of Derwentwater. He was fined £50 and given a three-month sentence of imprisonment.2 A lawyer is usually faced with a genealogy, or instructing genealogical research, to claim some right or property on behalf of his client. Although the pedigree aspects of claims to peerages, baronetcies, clan chieftainships and coats of arms are well known, it is not generally appreciated that lawyers are frequently concerned with proving genealogies to establish the heirs entitled to a deceased's property under the Rules of Intestacy or, less frequently nowadays, to establish a Service of Heirs to claim a particular landed estate. Before any claim can be set up to either a dignity or some other property based on a genealogical descent, it is necessary for the lawyer to establish what law governs the right which is to be claimed. The law governing the right has to be established, because it governs the law of succession in relation to that right and also the law of evidence which applies to proving the claim to that right. Usually it is quite simple to establish the law governing the right. For example, if you are claiming a landed estate, the lex situs applies to govern your claim to that land. In other words, landed estate in Scotland is governed by Scots Law as a landed estate in England would be governed by English Law. Where the property is moveable or personal property, the matter is more difficult because the law of the domicile of the person owning the property usually governs claims to that property irrespective of where the property is situated, and it is often difficult to establish a person's domicile.3 There are of course certain areas where the law is not clear as to which law governs the right in question. An example, which has never been tested is what law governs a peerage title created after the Union in 1707 or the Union with Ireland in 1801. The majority of peerage titles created after the Union are given a territorial designation, e.g. Lord Smith, of Glen Smith in the County of Stirling. It is certainly arguable that, as the peerage has a Scottish territorial designation, that is the location of the peerage and so it should be governed by the law of the country in which it is located. Riddell argued that the law of Scotland should govern such peerages4, and the Home Office following the Opinions of the Law Officers given in 19135 send all post-union baronetcies with a Scottish designation to Lord Lyon. The situation in which a difficulty could arise in the future was illustrated by the claim of the Viscount Drumlanrig in 1973.6 The Marquess of Queensbury, [a Scottish title created in 1682] was domiciled and living in England, where he had an illegitimate son. The Marquess subsequently married the child's mother and by the Legitimacy Acts of 1926 and 1959 that child fell to be treated as legitimate in England. However, section 10(1) of the 1926 Act states that a person legitimised under those Acts is not entitled to succeed to any dignity or title of honour". It is generally accepted that the child would not be entitled to succeed to any English title. However, it is an English Act and only affects English titles. The Scottish Act, the Legitimation (Scotland) Act 1968, allows the English legitimacy to be recognised for all purposes in Scotland, including the succession to dignities. Accordingly the Lord Lyon held that young Sholto, having been legitimated in England, although barred from inheriting English titles, was allowed under the 1968 Scottish Act to succeed to a Scottish title. Had the claim been to a peerage created after the Union with a Scottish designation, the question would have been very clearly focussed regarding what law governed that title. A similar issue arose in the succession to the 3rd Lord Macdonald, an Irish peerage, who was also a Baronet of Nova Scotia. In 1803 he married Luisa la Coast, a natural daughter of HRH The Duke of Gloucester. Before the marriage he had had issue, a son Alexander, who by Scots Law was legitimated by the subsequent marriage of his parents. After his marriage he had a further son, Godfrey. As Scots Law applied to the Nova Scotia Baronetcy and Irish law did not recognise legitimation by subsequent marriage, the Baronetcy went to the eldest son who had been legitimated by his parent's subsequent marriage according to the law in Scotland, while the Lordship passed to the second son, but first born after marriage.7 Having indicated that the first question a lawyer asks is what law governs the right being claimed, the second question he asks every person named in the genealogy is "what law governs that person's status". Every person has personal law which is applicable to him. In the United Kingdom a person's personal law is determined by his domicile.8 Domicile is a difficult concept, which does not relate to the place of residence but to the place where the person has the closest connections. A person is fixed with a domicile at birth, which may later be altered to a domicile of choice. In other words, if you are born in Scotland of Scottish parents, you may be said to have a Scottish domicile. But if you later move to England with the intention of setting up your permanent home in England, then you can change your domicile to an English domicile. A person's personal law governs his status in relation to marriage, legitimacy and succession to moveable property. For example, the prohibited degrees for marriage are different in England, Scotland, and abroad. So it might be lawful for a person of a particular domicile to marry his wife's sister whereas in other domiciles it might not be lawful. So the fact that a marriage is lawful in one country does not necessarily mean that the marriage will be recognised as lawful in another country for the purpose of succession.9 Similarly, legitimacy can be affected by a person's domicile or the domicile of his parents. The example of Lord Macdonald's two children has already been cited. Another difficulty which frequently arises is that certain countries, including the United Kingdom, recognise the law of the domicile as being the personal law, whereas certain continental countries recognise the law of the person's nationality as his personal law. This means that, if a United Kingdom citizen decides to go and live in Spain permanently, from the point of view of British law it will be decided that he has changed his domicile to the law of Spain. Accordingly, in Scotland, his status regarding marriage, legitimacy and succession to personal property will be held to be governed by Spanish Law. However, in Spain it is held that the law of his nationality is his personal law. This leads to difficulties. For example, a marriage might be lawful in Britain which is unlawful in Spain. Because Scotland would say that the law of Spain applies, the Scottish Courts would hold that the marriage was unlawful as the man was domiciled in Spain. However, the Spanish Courts would probably hold that, although the marriage was unlawful in Spain, because it was lawful by law of his nationality, the man's marriage was to be treated as lawful. There are, of course, complex rules regulating the matters between one country and another. They will not be considered in detail in this article, although the genealogist has to be aware of these conflicts, and can then try to determine whether the marriage shown in the genealogy will actually be recognised in the country where the right is claimed. For example, Augustus, 6th son of George III, was created Duke of Sussex in 1801. In 1793, he had married Augusta 2nd daughter of the 4th Earl of Dunmore in Rome. They were married by a Protestant clergyman, according to the rites of the Church of England. Such a marriage was probably invalid by the law of Rome where only a Roman Catholic Priest could legally marry a person. Further, a Roman Catholic Priest was not allowed to marry a Protestant. The first question to be decided in the claim to the succession to the Sussex peerage was whether that marriage was valid by the law of Rome. After much evidence from members of the Roman Catholic Hierarchy it was held that the marriage would probably be recognised as lawful in Rome, but the question then fell to be answered as to whether English Law would recognise the validity of that marriage. The Royal Marriage Act of 1772 had laid down that no member of the Royal Family could marry without certain consents granted by the Crown. They had not been obtained by the Duke of Sussex, and accordingly it was held that, although the marriage was recognised as lawful in Rome, the marriage would not be recognised as lawful in England for the purposes of succession to the Dukedom of Sussex.10 A similar difficulty arose in the Sinha Peerage claim in 1936. In 1919 Sir Satyendra Sinha, an Indian, was created Lord Sinha with a destination to "the heirs male of his body lawfully begotten". He was a Hindu and permitted to have polygamous marriages although he had only one wife. The question arose as to whether the issue of his marriage to his one wife was to be considered as issue "lawfully begotten" by the law of England. It was eventually determined that his issue was lawful and entitled to succeed to the Peerage. The point being made, for the record searcher, is that he cannot just accept entries in various registers at their face value. Although an entry may show a person to have married or a person to have been born to married parents, this does not mean that that marriage or that person's legitimacy will be recognised when the pedigree comes to be proved in a Court of Law where some right is being claimed. The genealogist has to look at the law of the property which is being claimed and to the personal law of the person whose pedigree he is proving to establish whether those entries will be recognised as valid or not. The law of evidence in pedigree, is an extremely complex subject which covers the whole law of evidence. Certain examples will perhaps outline some of the difficulties. In the first case, the best evidence rule applies. For example, in the claim to the Earldom of Athlone, where a marriage had been performed in Paris, the House of Lords held that an extract of the official entry in the Marriage Register was not enough, when witnesses were alive who could be produced to speak to the fact that they saw the parties being married.12 This implies that, where the parties to a marriage and their witnesses were still alive, an extract from the foreign Official registers is not sufficient to prove the marriage. If documents are to be produced to prove a particular point, evidence is always required of the custody from which the records were taken to show that they were in the custody of a person who should have had them and that the records were probably made by somebody who knew something of the family. Further, it is necessary to show that the document was not made in contemplation of any litigation, because, if it was, it can be said to be biased. Further, if it is an official document, it is necessary to show that it was made by a person who was authorised to make such an entry. In the Slane Peerage Claim of 1830 a return to the Royal Commissioners which was not signed by them was held to be incompetant evidence because there was no evidence to show that they had seen or proved the return.13 Genealogies, letters and other books by deceased persons may be produced in evidence, provided they were written at the time of the events which it is intended to prove and it can be shown that the author probably had personal knowledge of the facts entered therein.14 Thus some old family histories can be used to prove the generations in existence at the time the author was writing, although in respect of earlier generations of whom he would not have had personal knowledge, the history would be inadmissible. In the Roscommon Peerage Claim it was held that, if the only evidence of a person comes from a particular pedigree and that document also states that the person died without issue, then that document is sufficient evidence of the extinction as well as of the existence of the person.15 In the Crawford Peerage Claim of 1848 it was said "that the Peerage Books in which alone those person's names were found stated also their deaths without issue; they were in fact extinguished by the same evidence that raised them….".16 Similarly, likeness of persons to portraits of photographs is not considered to be good evidence. In 1925 Alexander Grant, a retired tutor who claimed to be the Earl of Seafield, was not allowed to prove that he resembled the former Earl in features, gait, and mannerisms, because "that class of evidence, except in cases of difference of colour, had in Scotland for more than a century been rejected."17 While that is the case, one wonders whether blood tests and similar genetic evidence will be allowed in the future for proving pedigree in relation to claims to peerages and other matters. They are already permitted in relation to declarators of paternity. In view of what has been said, one rich source of genealogical facts should be treated with caution. The Scottish Record Office [now The National Archives of Scotland] holds a great number of early processes and reports of Court cases. They are rich in family history and genealogy, but it must be appreciated that in proving any pedigree they would not be good evidence, because they were produced in contemplation of litigation and accordingly are statements made by the parties for their own interests. They are statements of what the party undertakes to prove, but are not necessarily the facts which they have been able to prove. The only facts upon which reliance may be placed in any future claim are the Interlocutors. These are the judgements of the Court and set out the finding of the Court. Sometimes the interlocutors set out findings in fact, but on other occasions it is necessary to infer from the interlocutors what facts have been proved for the Court to have come to the decision that they did. It is also important to read the Judge's Opinion, which often sets out the facts upon which he founds his Interlocutor, and accordingly they can be taken to be facts which he has held proved. Similarly in the Lyon Court, every petition is followed by an interlocutor which sets out the Lord Lyon's findings in relation to the case. The Interlocutor of the Lord Lyon is the only matter which can be founded on in any future claim. The text of any Letters Patent or Matriculation, although including a great range of genealogical detail, are only details which have been agreed between the Petitioner and the Lyon Clerk for inclusion in the document and do not represent the Lord Lyon's findings in fact. Accordingly it is not possible always to rely on the full wording in any Matriculation text for any future claim. It is necessary to look at the Interlocutor to see what facts are essential from the text to support the Interlocutor and only those can be relied upon in the future. Another area which provides difficulty in any genealogical claim is proving the extinctions of prior branches with a better claim. In Scots Law the presumption applies that non-appearance means non-existance, and accordingly where there is no evidence that there is a senior branch, then the next line that can prove its pedigree is entitled to succeed.18 However, in succession to peerages, the rules are much stricter. Lord Normand said in the Dudhope Peerage Claim of 1952 that "it is unnecessary to say that the law does not require conclusive proof that an event such as birth of a s on to a collateral heir two or three centuries ago did not take place. But the law does require positive evidence that there is no reasonable probability that the supposed event did occur". This does make for difficulties, but once an extinction is proved to the satisfaction of the particular judicial body, then the son entitled to claim the right may make up title to it. This in its own way creates further difficulties, where the legal pedigree may begin to separate from the factual pedigree. The law of prescription can apply. The Act of 161719 introduced prescription in the reduction of Retours of Heirs. It said that, if a person had served heir to an ancestor and his title had not been challenged for twenty years, then it could never be challenged. Accordingly after twenty years, once the person has served himself heir to an ancestor, this lawfully cannot be challenged and that is his legal pedigree for the future. Subsequent research may well show that this genealogical connection is wrong or the extinctions may not have taken place, but legally there is little than can be done to rectify the situation. This is an extremely complex area of law in which many of the cases are contradictory. This article has tried to show that putting together a pedigree is not just a matter of finding the appropriate references to ancestors and their marriages and births in various documents, but that any genealogist has also to consider the legal effect of those documents in relation to the person and to the pedigree. While the record searcher may say, I have found references to A marrying B, the lawyer will always ask (one) what right are you trying to claim and so what law governs that right, and (two) what was the personal law of the persons concerned so that it can be determined whether the entry is acceptable as legal evidence of the facts it purports to report and whether these facts will be recognised by the law of the country concerned. NOTES
This article first
appeared in The Scottish Genealogist, vol.XXXIII No.3,
September 1986, pps.205-209. |