Lord Oliphant

Lord Oliphant
Creation date July 1455
Peerage Peerage of Scotland
First holder Laurence Oliphant
Last holder Francis Oliphant, 10th Lord Oliphant
Extinction date 19 April 1748
[1][2][3]

Lord Oliphant was a title in the Peerage of Scotland. It was created at least twice and possibly four times. The first creation is dormant and the others are all extinct. The third and fourth creations have not been defined in law.

The title was certainly established by 1455 for Laurence Oliphant, 1st or 4th Lord Oliphant, but this creation became dormant on the death of the fifth (or eighth) lord in 1631. It was created again that same year for Patrick Oliphant (second creation), but this second creation became extinct in 1748 on the death of the tenth lord (or, fifth of second creation).

The Origins of the Title

The first mention of Lord Oliphant is in the Great Seal of Scotland (Registrum Magni Sigilli Regum Scotorum) where John Oliphant is cited as brother germain to Lord Oliphant, on 2 February 1394-5.[4] The monks of Pluscarden record that in 1408, two brothers of Lord Oliphant,[5] William and Arthur, had assisted in the murder of Sir Patrick Graham, Earl of Strathearn. These two brothers were hung, drawn and quartered.[6] Walter Bower, who continued John of Fordun's chronicles is also cited to have made reference to the same incident circa 1408.[7]

The first Lord Oliphant and his brothers John, Arthur and William were nephews of King David II of Scotland and first cousins of King Robert II of Scotland, as evidenced by their mother being described in numerous charters issued by King David II of Scotland as "beloved sister."

By 1398 only five Lordships had been created in Scotland but between 1429 and 1500 at least forty six Lordships are known to have been created and that of Laurence, Lord Oliphant reappears then. The interim lack of any mention of a Lord Oliphant can be explained by Laurence’s father having died young in a feud between the Ogilvies and the Lindsays at Arbroath in 1445 and Laurence's grandfather William, although retoured heir to his father in 1417, spending some twenty years, being most of his adult life, imprisoned in England in the Tower of London from 1424, where he either died or did so within a year of his release.,[7] which precluded either from having the opportunity to have acted politically and be known as Lord Oliphant.

The Great Seal of Scotland is regularly cited as evidence in court cases and so seals the case that these Oliphant first cousins of the Royal Family had been made Lords at this early date.

The Title of Lord Oliphant

Sir Lawrence (sic) Oliphant was acknowledged as a Lord of Parliament under King James the Third and the first mention of him as Lord Oliphant was in July 1455, a month after he reached his majority, indicating that he had become eligible to inherit it then, rather than that it had been created instanto. Sir Laurence sat in Parliament as a Lord of Parliament on 14 October 1467. The Dignity continued in regular succession to Laurence the fifth (or eighth) Lord Oliphant, who succeeded his grandfather, Laurence the fourth (or seventh) Lord, in 1593, his father, the Master of Oliphant, having perished at sea in 1584.[7]

The principle of law, that a Peerage of Scotland of unknown origin shall be presumed to be limited to the heirs male of the body of the Grantee, had not been established by a decision or otherwise in the seventeenth Century; and Laurence Lord Oliphant, having no son but having a daughter Anne who became the wife of Sir James I Douglas of Mordington, by a Procuratory of Resignation resigned his Peerage in favour of Patrick Oliphant his next heir male, desiring to ensure the continuance of his Dignity in the male line of his family. However, his intended destination was not processed as would have been usual by the King and no regrant followed upon it. Lord Oliphant died before the year 1631.[7]

There having been no regrant, his daughter claimed the Peerage of Oliphant as his heir at law. The Court of Session exercised jurisdiction on claims to Peerages before the Union, and Lady Douglas’s case came before that Court on 11 July 1633, when her claim was opposed by Patrick Oliphant. The Lords of Session found that as her father and his predecessors had held and enjoyed the Dignity, such enjoyment and use, there being no Writ to show an entail, were sufficient to transmit the Lordship title to the heirs female; but that the Procuratory of Resignation, although the King had not conferred the Honour in conformity with it, had denuded Lord Oliphant of the Peerage and had barred all claims to it. (Duries’ Decisions, p. 685.)[7]

This was to cherry-pick the form of descent and Lord Mansfield, in the Cassillis case in 1762, and or the Sutherland case in 1771, declared the decision of the Court of Session contrary to law and justice, (Mr. Maidment’s Report of the Cassillis case, p. 51, and of the Sutherland case, p. 9,) and it has been disregarded in all the cases which have come before the House of Lords in which similar questions were raised. See below for "Notes on dignities in the peerage of Scotland which are dormant or which have been forfeited" for a review of this anachronism. The reason for the anomaly was probably political, in that Sir James Douglas (the first Lord Mordington) was brother of the powerful Earl of Angus.[8]

The King, according to the statement of Sir John Dalrymple of Stair, subsequently one of the Lords of Session, acted upon the views expressed by the Court of Session, and determined that the heir male should hold the Peerage of Oliphant. (Dalrymple’s Collections, p. 396.)

Thus, in 1641 the King created for Sir James Douglas, the husband of Anne, the daughter and heir of Laurence Lord Oliphant, a new title of Lord Mordington (on 10 March 1640 King Charles 1 referred to the Oliphant honours as "the designation of Oliphant, Aberdalgie and Dupplin".[9]) and, granted him the precedency due to the former Lords Oliphant. It appears from the records of Parliament that Lord Mordington sat above the Lord Oliphant.[7] This created the title of Lord Oliphant anew and in a manner not followed at any point since in Scottish Law.

It is certain that the heir male did become Lord Oliphant (second creation) because, on 19 October 1669, Lord Rosse protested that the calling of the Lords Elphinstone, Oliphant, Lovat and Borthwick before him should not prejudice him in his right to precedency before them, and on 12 June 1672, Lord Oliphant was present in Parliament as a Lord of Parliament, and sat in the precedency of the former Lords Oliphant. Patrick Oliphant of Newtyle, (afterwards Lord Oliphant,) the heir male, was the son of John Oliphant of Newtyle, the second son of Laurence the seventh Lord Oliphant. The male issue of Patrick Lord Oliphant failed in the person of Francis the fifth (second creation) Lord Oliphant, who died without issue in 1748.[7]

The title of Lord Oliphant was, after the death of Francis, assumed by William Oliphant of Langton, descended from Peter Oliphant, the second son of Laurence the sixth Lord Oliphant. William voted as Lord Oliphant at the election of a Representative Peer without protest on 15 March 1750. However, the second creation was "heirs male of the body" of Patrick Oliphant of Newtyle and that title had become extinct on the death of the 5th Lord (second creation.) Therefore, in peerage law, this title of Lord Oliphant was a new and third creation. William died without issue in 1751, making that third creation extinct.

Laurence Oliphant of Gask, descended from William Oliphant of Newton, the younger son of the second Lord Oliphant, appears to have been the next heir male after William and it is stated that William acknowledged him as his rightful successor, but having taken the part of Prince Charles Edward in the insurrection of 1745 he did not assume the title. On 14 July 1760 he was created Lord Oliphant in the Jacobite peerage. His male heir, or in default of male issue from him, the nearest heir male of his ancestor William, the founder of the Gask branch of the family, would be entitled to the Dignity (first/second creation) and failing issue from William, the male representative descending from George the younger brother of William, if any, would be the next heir to the Oliphant Peerage.[1][2][3][10]

However, the title of Lord Oliphant was next claimed and used without challenge by David Oliphant, 6th of Bachilton in 1757 until his death in London in 1770. Again, if he took up his seat in the House of Lords, in peerage law this constituted a new and fourth creation of the peerage. David Oliphant was by no means the nearest or most senior heir to the honour but on his death this creation also became extinct.

The title of Lord Oliphant is now dormant[7][8] in the first creation by a travesty in law and by extinction in the other three subsequent creations.

It has not been tested in court as to whether the reference to the titles of Lord Oliphant, Aberdalgie and Dupplin in the creation of the Mordington title, refers to one title or three different peerages.

The senior heir male to all four of the creations of Lord Oliphant and of Lord Aberdalgie and Lord Dupplin, is Richard Oliphant of that Ilk, the current Chief of Clan Oliphant.

Lords Oliphant, (by 1394)

Lords Oliphant, (documented through from 1455)

Lords Oliphant, second creation (1631)

Lords Oliphant, third creation (1748)

Lords Oliphant, fourth creation (1757)

See also

References

  1. 1 2 Hewlett, William Oxenham (1882). Notes on dignities in the peerage of Scotland which are dormant or which have been forfeited. London: Wildy and Sons.
  2. 1 2 Burke's Landed Gentry 19th Edition, The Kingdom in Scotland
  3. 1 2 Burke’s Peerage & Baronetage 107th Edition
  4. ↑ Registrum Magni Sigilli Regum Scotorum, volume V, item 964
  5. ↑ Liber Pluscardensis Volume 1
  6. ↑ Liber Pluscardensis Volume 2
  7. 1 2 3 4 5 6 7 8 The Oliphants in Scotland
  8. 1 2 3 Rayment, Leigh (February 2012). "Oliphant". The Peerages of England, Scotland, Ireland, Great Britain and the United Kingdom.
  9. ↑ Registrum Magni Sigilli Regum Scotorum
  10. ↑ MacGregor, Gordon. The Red Book of Perthshire.
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