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To his grace James [Douglas], duke of Queensberry, her majesty's high commissioner, and the right honourable the estates of parliament, the representation of Lady Mary Bruce and William Cochrane of Ochiltree, her husband for his interest, against Sir Alexander Bruce of Broomhall.
By a patent under the great seal in 1647, Edward Bruce of Carnock is created earl of Kincardine, and though it be pretended that the dignity was thereby provided to the male heirs, yet it is certain that in June 1663 this dignity was resigned in the hands of King Charles II, who thereupon by a new gift created Alexander [Bruce], then earl of Kincardine, the resigner, his male heirs and of tailzie designed and to be designed by them earls of Forth, viscount of Bruce, etc. lord Torry etc. and that in place of the title of earl of Kincardine etc., but the troubles of this noble family stopped the issuing of this gift.
The deceased Alexander, earl of Kincardine, having no male issue of his own body, had, by two several dispositions on very good grounds, resigned his title in favour of Lady Mary Bruce, his eldest sister, but before these came to be completed by the sovereign, Sir Alexander Bruce of Broomhall offers to assume the title and dignity of earl of Kincardine, as pretended male heir, and thereby having right in the terms of the original patent to sit and vote in this present parliament.
Lady Mary Bruce and her husband have already given her majesty's commissioner and the right honourable the estates of parliament a short view of their case in a late petition, and being by a deliverance of parliament ordained to be further heard, it is now humbly contended that the said Lady Mary Bruce's right to the title and dignity of Kincardine is not only better founded in law, both feudal and municipal, but entirely exclusive of Sir Alexander Bruce's pretensions, in as far as the deceased Alexander, earl of Kincardine, her brother, had conveyed and resigned his title and dignity of earl of Kincardine in her favour, which of itself was sufficient to deprive the conveyer, but much the rather that Sir Alexander does by his receipt acknowledge that he had got up and received into his hands a resignation made by the earl of Kincardine of his title of honour in favour of his sister Lady Mary, which resignation he obliges himself to re-deliver on demand, whereby it is evident that as resignation was made, and that Sir Alexander had borrowed up the same, so his keeping up of this warrant, which is not yet delivered, was the plain and only stop of my Lady Mary not having completed her right. And it is a rule in law and justice, which will always have its due weight with this high and honourable judicatory, that nobody ought to profit from their own crime, and that Sir Alexander did industriously and contrary to the faith of his receipt keep up this resignation is evident from an instrument produced, bearing date at Canongate, 3 October instant, when being required to deliver and perform in the terms of this obligation above-mentioned, he acknowledged the having of and offered to deliver up two procuratories of resignation made by the late earl of Kincardine in favour of Lady Mary, his sister, but refused the having or delivering up of any resignation.
But though Sir Alexander's receipt and the instrument above-mentioned do fully clear the cause why the lady's title of dignity could not be further completed, yet she urges for excluding Sir Alexander's pretensions these two plain grounds of law:
1. Whatever was the conception of the original patent of this dignity, yet all lawyers agree in this: that the present possessor of a dignity, with the concurrence of the sovereign, can alter the destination, conveyance and descent of the title of honour; and this is Lady Mary's case, for she now produces the signature above-mentioned, proceeding upon the resignation of Alexander, then earl of Kincardine, and brother-german to Edward, the first earl, whereby the title and dignity is provided to the earl's heirs of tailzie, designed or to be designed, which signature, though never further completed, did most effectually alter the former descent and entail of this dignity on the male heirs of the family. And this deserves to be the further regarded, that procuratories of resigning honours were not even before the late act of parliament considered to die with the granters, and the descent of honour was still as different from that of heritage as their constitutions. And for clearing of this point, it would be easy to condescend on many considerable families of this nation whose dignities and honours have been transmitted and are now enjoyed and possessed by virtue of procuratories of resignation after the granter's death.
2. Whatever may be said for Lady Mary from Sir Alexander's keeping up the resignation in her favour, yet she now pleads, on behalf of herself and family, that in as far as her brother had conveyed to her his title, honour and dignity of earl, he was at that moment thereby effectually deprived, for titles of honour, as they are not alienable or in exchange, so, on the other hand, they are certainly extinguishable by the present possessors, and parties who enjoy them may quit their own interest. And though Lady Mary could not claim this honour until her brother's disposition was approved by the sovereign, so it's as certain the same remains with her majesty; and Sir Alexander's pretensions are for ever excluded, the party to whom he pretends to be male heir having been fully divested.
His grace her majesty's high commissioner and the honourable estates of parliament are intreated to consider that what is now pled for Lady Mary Bruce has a full and plain self evidence, for, as the former signature in favour of the heirs of tailzie secures her right, so Sir Alexander Bruce's pretensions are entirely cut off by the late earl's disposition in the lady's favour.
The decision of the lords of session on the 11 July 1633 in Oliphant against Oliphant is precisely Lady Mary Bruce's present case, where a party having right to a dignity, and conveying the same, was found capable to quit his own interest, and so to extinguish the same, that it remained with the sovereign; and though in the intercourse of justice decisions may sometimes have varied, yet the honourable estates of parliament are intreated to consider that this is no common case:
For, firstly, this is a decision of a supreme judicatory of a dignity and title of honour. Secondly, as this is a question of honour, so the fountain of honour is sitting present in the judicatory, as not only Durie but all our private historians have remarked. Thirdly, though the action be called by Durie a reduction, yet it's very remarkable that it was truly a question of possession, and both parties were in [the act of] attempting to acquire [the title and honour], for, though the question was anent the title and dignity of the lordship of Oliphant, yet none of the parties in the decision had assumed the title, but the male heir is designed Patrick Oliphant, and the female by her husband Sir James Douglas, so that the decision was of a plain point of law, by a sovereign court, the fountain of honour, present in person.
Nor did this solemn decision terminate in clearing the point of right, but was further confirmed by the royal approbation, for immediately upon the decision King Charles interposed and gave a new patent to [Patrick Oliphant], lord Oliphant.
As procuratories of resignation of honours and dignities did not die with the granter, even before the late act of parliament, and what is now pled for Lady Mary Bruce was formerly and anciently our law, so much more of late, since the wisdom of this nation has thought fit to perpetuate the import and effect of procuratories of resignation, which indeed seems sufficiently to take off all that can be objected for Sir Alexander Bruce.
And it's of no moment to pretend that a dignified person after resignation (especially if not accepted by the sovereign) continues to possess the dignity himself, and consequently his apparent heir may do the same, as Sir Alexander Bruce pretends, for this is a plain though common mistake; and whatever may have occurred in the contrary de facto, yet it's otherwise in law, but more especially in this case, where the question is not with the dignified person but with his heir, and where a third party compears with a right in her hand to the contrary.
Nor is it to the purpose to plead that the late earl of Kincardine after this resignation might have voted in parliament himself, for, firstly, after a title of honour is conveyed and resigned, neither the resigner nor the party in whose favour the dignity is conveyed can claim the honour or privileges belonging thereto, but the same remains with the sovereign, who may indeed confer the same on any of them he pleases; and because Sir Alexander Bruce is pleased to lay weight on this trifling objection, the honourable estates of parliament are intreated to consider that this answer is in the precise terms of the solemn decision. And, secondly, Lady Mary's case is yet stronger, for if the late earl of Kincardine, her brother, had after the resignation in her favour pretended to the privilege of voting in parliament, he had this to support him: that his resignation was in favour of himself in the first place and reserved his liferent right, and consequently he might have continued his privilege of voting in parliament by the very tenor of that resignation, which entirely excluded his male heirs, which indeed is alone sufficient to answer Sir Alexander's claim.
As what is pled for Lady Mary Bruce is agreeable to our ancient customs and practice in relation to titles of honour, so it is further confirmed from the very principles of the feudal law, where honours and dignities came to be very early considered, and their descent distinctly determined; and wherever any feudal right or dignity was by the investiture provided to male heirs, all the feudal lawyers have agreed that that was never extended beyond the male heir of the vassal's own body, which Sir Alexander Bruce does not pretend to.
And therefore on the whole matter her majesty's high commissioner and the honourable estates of parliament are humbly and earnestly intreated to consider that as what is now pled for Lady Mary Bruce is just and agreeable to all ancient and modern law, so her case in all respects is highly favourable, her claim being the express will of the deceased, and her right of resignation having been kept up by Sir Alexander and being yet in his hands, whereby the sovereign's determining in whose favour she would confer this title of honour was certainly stopped; and her majesty, by this resignation, had certainly that interest in the decision, that Lady Mary Bruce humbly begs her gracious majesty may be informed anent her claim before the possession be determined.†