Gerald Warner: Removing taint on Scots peers would be a noble jubilee gesture

The term “attainder” derives from the Norman-French “attaindre”, meaning to convict. It deprived those subjected to it of all civil rights and rendered their descendants ineligible to inherit. This penalty was imposed without any trial, contrary to natural justice. Overall, seven Acts of Attainder were passed: two under William III, condemning 18 people; four under George I, penalising 56 individuals alleged to have participated in the 1715 Jacobite Rising; and one under George II, directed against 43 people involved in the Forty-Five. The total of 117 victims might seem modest but, allowing for the passage of time and human fertility, their still “tainted” descendants today are likely to be numerous.

A useful parallel might be with the Act of Settlement which, when first implemented in 1714, excluded the first 53 heirs to the throne on the grounds of Catholicism; by 1903 the total excluded had swollen to 6,039 of whom 858 were then living. So, the number of people still under attainder is probably large. Many of them are likely to be in America or the Caribbean, to which condemned Jacobites were transported. Not all attainders still stand. In the 19th century those with sufficient resources could petition for an Act of Parliament to reverse their attainder and 14 peerages were restored in this way. Today, if a total reversal of attainders were passed, further peerages would be recovered. The Crichton peerage of Frendraught would be restored, Lord Kilmarnock would be elevated to Earl of Kilmarnock and the Swedish Baron St Clair Bonde, a Scottish resident, would become Lord St Clair.

Attainder as a penalty was abolished in 1870 and the Acts of Attainder were repealed in 1977, but this did not remove the taint of “corruption of blood”. While abolishing that vestigial stigma would be an appropriate way of celebrating the Diamond Jubilee, if a more positive gesture of reconciliation were desired there is a further step the Crown could take. It could recognise the surviving peerages and baronetcies created by the Stuart kings in exile. These are not under attainder since they were never recognised by the incumbent sovereigns. They amounted in total to 85 peerages and 34 baronetcies, of which a possible 25 peerages and at least five baronetcies have heirs living today.

Of the original titles, 29 peerages and 12 baronetcies were Scottish. The heirs to many of them are already titled, so recognition would not flood the peerage; the effects would hardly be revolutionary. The Duke of Atholl would become Duke of Rannoch. The 31st Countess of Mar, a respected crossbencher who came top in the election of hereditary peers to serve in the House of Lords, would be promoted to 11th Duchess of Mar, the 18th Earl of Perth would become the 15th Duke of Perth and the Earl of Mansfield would be Earl of Dunbar. Several clan chiefs would become peers: Stewart of Appin, Lord Appin; Lord Clanranald; Lord Lochiel; Lord Macdonnel; Lord Mackintosh; Lord Sleat.

The most interesting aspect of these titles is that they belong to the peerage of Scotland, in which creations ended with the Act of Union, even though the latest surviving example, Appin, was conferred in 1743 (the Oliphant peerage, now extinct, was created in 1760), since the exiled Stuarts never recognised post-1688 legislation. It would be an historically sensitive gesture of reconciliation for these romantic titles, symbols of loyalty to an unfortunate royal house, to be accorded official recognition by the Crown. Nor would such a move be unique: there is already a European precedent that provides a striking parallel.

In Spain, the descendants of Don Carlos V whose throne was usurped in 1833, vigorously asserted their rights in successive generations: there were three Carlist Wars in the 19th century and the Civil War in the 1930s was regarded by Traditionalists as the fourth. Successive claimants conferred titles of nobility on their supporters, but these were never recognised by the usurping dynasty.

In 1948, however, the government of General Franco not only accorded recognition to all Carlist titles, but also to those which had been created by the Archduke Charles of Austria, the losing contender in the War of the Spanish Succession (1701-1714). Today, the most exotic document on the internet is surely the petition form, on the website of the Spanish Ministry of Justice, to claim rehabilitation of a Carlist title. If a nation so passionate as Spain can reconcile historical enmities, why not Britain? «