Chief of Clan Rutherfurd
. . . . . . . having entailed the barony of Edgerston, upon his nephew WILLIAM OLIVER, of Dinlabyre . . . . . . . who in consequence assumed the surname and arms of Rutherfurd . . . . . . .
RUTHERFURD, OF EDGERSTON, CO. ROXBURGH
The late John Rutherfurd, Esq. M.P. of Edgerston, eldest son and heir of John Rutherford, Esq. Of that Ilk, d.s.p. in 1834, having entailed the barony of Edgerston, upon his nephew WILLIAM OLIVER, of Dinlabyre, (eldest son of his sister Jane, by William Oliver, Esq. Dinlabrye, Sheriff Depute of Roxburgh,) who in consequence assumed the surname and arms of Rutherfurd, and is the present WILLIAM OLIVER RUTHERFURD, Esq. Of Edgerston, Sheriff Depute of co. Roxburgh. The family of Rutherfurd of that Ilk, from which several branches in the South of Scotland have sprung, have ever ranked amongst the most ancient and powerful houses in Teviotdale. For full details, see BURKE’S Landed Gentry.
Arms – Arg. An orle gu. In chief three martlets sa
Crest – A martlet, as in the arms
Supporters – Two horses ppr.
Motto – Nec Sorte nec fato.
Heraldic Illustrations, consisting of the Armorial Bearings of the principal Families of the Empire, with Pedigrees
by J. and J. B. Burke
1844 - 1846.—Illuminated Supplement. 1851. 8vo.
....... Author - SIR BERNARD BURKE, Ulster King-of-Arms
....... Co-author JOHN BURKE, Esq.
Author of "The Peerage and Baronetage," "Dictionary of the Landed Gentry"
As can be seen from below, Edward Charles Rutherfurd descends directly from the chiefly line of the Rutherfurds of Edgerston. Edward Charles Rutherfurd, however, is an American citizen and is not bound by the decisions or policies of a foreign court such as the Lyon Court. Here, in some detail, is a genealogy and position statement concerning the Lord Lyon issue and it’s relevancy to a loyal American chief and to non-British clan members.
1 - King Robert the Bruce, Earl of Carrick, Lord Brus, King of Scots
born: 11 JUL 1274, Writtle, Chelmsford, Essex
died: 7 JUN 1329, Cardoss Castle, Firth of Clyde, Scotland
wife: 1296 to Mar, Isobel of
child 1: Bruce, Marjorie, Princess, b. CIR 1297)please see: "The Royal Families of England Scotland and Wales - with pedigrees of Royal descents in illustration." by Sir Bernard Burke, Harrison)
-------------
2 - Princess Marjorie Bruce
born: CIR 1297
died: 2 MAR 1316, Paisley, Renfrewshire, Scotland
married 1315 to Stewart, Walter, High Steward of Scotland 6
child 1: Stuart, Robert II of Scotland, King of Scotland, b. 2 MAR 1316)please see: Peter Townend, editor, Burke's Genealogical and Heraldic History of the Peerage, Baronetage, and Knightage, One Hundred and Fifth Edition (London: Burke's Peerage Limited, MCMLXX (1970)), Kings of Scotland, pgs. lxx-lxxv. )
-------------
3 - King Robert Stuart II of Scotland, King of Scotland
born: 2 MAR 1316, Paisley, Renfrewshire, Scotland
died: 19 APR 1390, Dundonald Castle, Ayrshire
wife: aft 2 MAY 1355 to Leslie, Euphemia of Ross, Countess of Moray
child 13: Stuart, Elizabeth Catherine)please see: Peter Townend, editor, Burke's Genealogical and Heraldic History of the Peerage, Baronetage, and Knightage, One Hundred and Fifth Edition (London: Burke's Peerage Limited, MCMLXX (1970)), Kings of Scotland, pgs. lxx-lxxv. )
-------------
4 - Princess Elizabeth Catherine Stuart
husband: 1380 to David Lindsay of Crawford, 1st Earl of Crawford
child 6: Lindsay, Elizabeth)please see: Lord Lindsay (25th earl of Crawford), Lives of the Lindsays (1849); A. Jervise, History and Traditions of the Land of the Lindsays (1882); G. E. Cokayne, Complete Peerage (1887-1898) )
-------------
5 - Lady Elizabeth Lindsay
father: David of Crawford Lindsay, 1st Earl of Crawford , b. ABT 1360
mother: Princess Elizabeth Catherine Stuart
husband: aft 20 DEC 1400 to Erskine, Robert, Lord Erskine
Sir Robert Erskine, 8th Laird of Erskine
died 1453
Sir Robert Erskine married Elizabeth Lindsay - granddaughter of Robert II, King of Scotland. He served as High Chamberlain of Scotland, and had great influence on public affairs of his time. )please see: Lord Lindsay (25th earl of Crawford), Lives of the Lindsays (1849); A. Jervise, History and Traditions of the Land of the Lindsays (1882); G. E. Cokayne, Complete Peerage (1887-1898), Beryl Platts (1998) Origins of the Lindsays. Publications of the Clan Lindsay Society. Vol VI, No. 22, Clan Lindsay Society, Edinburgh, 48pp. )
-------------
6 - Thomas Erskine, 2nd lord Erskine 7th lord of Garioch, 14th earl of Mar
b. circa 1400
d.1493
m. Lady Janet Douglas of Morton )children:i. Alexander Erskine, 3rd lord Erskine, 8th lord of Garioch, 15th earl of Mar
d.1509
ii. Margaret Erskine)please see: "The Rutherfords in Britain: a history and guide" Kenneth Rutherford Davis, 1987 – page 22)
please see: "The Royal Descents of 500 Immigrants" Gary Boyd Roberts, 1993)
-------------
7 - Lord James Rutherfurd II
m. Lady Margaret Erskine
James Rutherford II, whose mother was a daughter of John Lauder, succeeded his father before July 15, 1455 with whom he is found in deeds between 1437 and 1447. )Sir Alexander Home married Marion Lauder daughter of John Lauder, granddaughter of Sir Robert de Lauder. Along with her sisters; Mariota, Beatrice and Christian each of the 4 [and their husbands] received 1/4th of the Crailing, Hownam and Swinside estates. On December 11, 1436 Lord James Rutherford and Lord Alexander Home held sasine at Linlinthgow. Swinside remained a Rutherford holding because Lord James Rutherford married Christian Lauder. )
please see: "Historical Manuscripts Commission", 12th report, App VII, 78-79, 109, 120-121)
please see: "The Rutherfords in Britain: a history and guide" Kenneth Rutherford Davis, 1987 – page 18-26 – multiple primary source citations)
-------------
8 - Lord Thomas Rutherfurd of Edgerston, Roxburghshire, Scotland
Lord Thomas was the 3rd son and eventual heir of James Rutherfurd lived abt 1460 - 1517. He was "on the horn" for killing Patrick Hepburn 5/13/1501. [1508?] For distinguished services at the Battle of Bannockburn in 1485, King James IV of Scotland made Patrick Hepburn, Lord Hales, the Earl of Bothwell and was at that time described as the rightful male heir to the estate of James Rutherford. He lost his inherited lands at "of Over" and "Nisbet" to Walter Ker of Cessford as punishment. At this time his connection to the house of Erskine is also stated. He served as bailie for Sir Patrick Home of Polwarth after 9/16/1503. )please see: "The Rutherfords in Britain: a history and guide" Kenneth Rutherford Davis, 1987 – pages 27-30– multiple primary source citations)
-------------
9 - Robert Rutherfurd of Edgerston, Roxburghshire, Scotland
1490 - died before 10/1544
He defended Edgerston from Walter Ker of Cessford and was declared outlaw. During his life the ancestral village of Rutherford was spoiled by Henry VIII in 7/1544 and destroyed 9/6/1544 - the rest of the village was burnt, razed and cast down between 9/9 and 9/13/1544. )please see: "The Rutherfords in Britain: a history and guide" Kenneth Rutherford Davis, 1987 – pages 31-32– multiple primary source citations)
-------------
10 - Richard Rutherfurd of Edgerston, Roxburghshire, Scotland
1520 – 1600 headed the Edgerston family for half a century succeeded by October 29, 1544 when as 'lord of Ruy'furd' he subscribed a bond to Henry VIII. In the company with seven kinsmen 'Rechart Rutherfurd of Edzerston' signed with his own hand a bond of manrent to Archibald Earl of Angus on Christmas Day 1574. According to a MS history in the Edgerston muniments he married 'Bitty' (Elizabeth) sister of John Rutherford II 'the Cock' of Hunthill. )please see: "The Rutherfords in Britain: a history and guide" Kenneth Rutherford Davis, 1987 – pages 32-35– multiple primary source citations)
-------------
11 - Thomas Rutherford of Edgerston, Roxburghshire, Scotland
1550 - 1615 "The Black Laird" - the victor at Reidswire
married Jean Elliot)During the Battle of the Reidswire at Carterfell in July of 1575 a force led by Thomas Rutherford "The Black Laird of Edgerston" was able to defeat the English force and capture several of it's officers. Among them were Sir John Forster. Sir John was made prisoner and taken with several others to the Scottish Regent, the Earl of Morton, at Dalkeith, where he was kept for a few days to cool off, then sent back home. )
"The Rutherfords with great renown, Convoyed the town o' Jedburgh out."
....Sir Walter Scott - from an old ballad "The Raid o' the Reidswire"please see: "The Rutherfords in Britain: a history and guide" Kenneth Rutherford Davis, 1987 – pages 35-36– multiple primary source citations)
-------------
12 - Robert Rutherfurd of Edgerston, Roxburghshire, Scotland
1590 – 1659
Robert Rutherfurd was served heir to his brother at Jedburgh Tolbooth September 5, 1615 (sasine July 17, 1616); witnesses were Nicol and Robert, called his uncles, Thomas of Tofts and Gilbert in Edgerston, with the chiefs of Hunthill, Hundalee and Fairnington and three more kinsmen - John portioner of Nether Ancrum, Adam of Littleheuch bailie of Jedburgh, and William once Provost. )please see: "The Rutherfords in Britain: a history and guide" Kenneth Rutherford Davis, 1987 – pages 36-37– multiple primary source citations)
-------------
13 - Lord John Rutherford of Edgerston, Roxburghshire, Scotland
1622 - 11/1686 [other sources cite 1681]
married Barbara Abernethy died 1697 )please see: "The Rutherfords in Britain: a history and guide" Kenneth Rutherford Davis, 1987 – pages 37-41– multiple primary source citations
please see: WKR 1986 – volume 1 – page 3 - #1)
-------------
14 - Lord Thomas Rutherfurd of Wells and Edgerston
1650 - 1720
m. Susanna Riddell 2/15/1680-1
m. Catherine Nisbetplease see: "The Rutherfords in Britain: a history and guide" Kenneth Rutherford Davis, 1987 – pages 41-42– multiple primary source citations
please see: WKR 1986 – volume 1 – page 5 - #6
-------------
15 - Sir John Rutherfurd - Lord Edgerston
baptised 2nd January 1687 and died 9th January 1764
knighted in 1706 and married in 1710
wife: Elizabeth Cairncross d/o Wm. Cairncross of Langleeplease see: "The Rutherfords in Britain: a history and guide" Kenneth Rutherford Davis, 1987 – pages 42-44– multiple primary source citationsplease see: WKR 1986 – volume 1 – page 7 - #21
-------------
16 - John Rutherfurd (1712-1758), M.P., younger of Edgerston
Sir John's eldest surviving son, predeceased him.
Born April 12, 1712 - died at the battle of Fort Ticonderoga
He represented Selkirkshire 1730 and Roxburghshire (Teviotdale) 1734-41 in Parliament.please see: "The Rutherfords in Britain: a history and guide" Kenneth Rutherford Davis, 1987 – pages 45-46– multiple primary source citationsplease see: WKR 1986 – volume 1 – page 9 - #38
-------------
17 - John Rutherfurd of Edgerston (1748-1834), M.P.
born at New York, succeeded his grandfather Sir John Rutherfurd in 1764 when 16. died without heirsplease see: "The Rutherfords in Britain: a history and guide" Kenneth Rutherford Davis, 1987 – pages45-46– multiple primary source citationsplease see: WKR 1986 – volume 1 – page 17 - #61
-------------
18 - Jean [Jane] Rutherfurd, sister of John Rutherfurd of Edgerston and heiress of Edgerston mentioned in her father's wills 1753 and 1758
d. June 1820
married Edin. March 31,1771 William Oliver of Dinlabyre in Liddesdale (1738-1830) Sheriff of Selkirk and later Roxburgh, son of William Oliver and Violet Douglas of Caversplease see: "The Rutherfords in Britain: a history and guide" Kenneth Rutherford Davis, 1987 – page 46please see: WKR 1986 – volume 2 – page 802 - #64
-------------
19 - William Oliver-Rutherfurd (1781-1879), D.L.
eldest son of Jean and William Oliver
born at Weens March 15, 1781
educated at Eton and Edinburgh University
succeeded to Dinlabyre.
m. Agnes Chatto Aug. 21, 1804. . . . . . . having entailed the barony of Edgerston, upon his nephew WILLIAM OLIVER, of Dinlabyre . . . . . . . who in consequence assumed the surname and arms of Rutherfurd . . . . . . .
William Rutherfurd inherited the surname, arms, chieftainship of Clan Rutherford and the lands of Edgerston from his uncle John Rutherfurd in 1834. He was the grandfather of Malcolm Brakspear Oliver-Rutherfurd, immigrant ancestor of the current chief of Clan Rutherfurd, Edward Charles Rutherfurd.please see: "The Rutherfords in Britain: a history and guide" Kenneth Rutherford Davis, 1987 – page 46
please see: WKR 1986 – volume 2 – page 803 - #6593
-------------
20 - William Alexander Oliver-Rutherfurd (1818-1888)
born at Knowsouth June 30, 1818
succeeded to Edgerston 1879
d. Nov. 3, 1888please see: "The Rutherfords in Britain: a history and guide" Kenneth Rutherford Davis, 1987 – page 47
please see: WKR 1986 – volume 2 – page 804 - #6607
-------------
21 - Malcolm Brakspear Oliver-Rutherfurd
b. Edgerston April 8, 1875
d. April 18, 1913 in Converse County Wyoming
m. April 29. 1897 Anne Amelia Dickson at Douglas, Wyoming
d. Aug. 28, 1952 Hood River, Oregonplease see: "The Rutherfords in Britain: a history and guide" Kenneth Rutherford Davis, 1987 – page 47– multiple primary source citations
please see: WKR 1986 – volume 2 – page 805 - #6617
-------------
22 - Arthur William Oliver-Rutherfurd
b. March 26th, 1906 Douglas, Converse County Wyoming
d. Feb. 20th, 1984 San Bernadino, CA
m. Lillian Marie Lienhardplease see: "The Rutherfords in Britain: a history and guide" Kenneth Rutherford Davis, 1987 – page 47
please see: WKR 1986 – volume 2 – page 806 - #6631
-------------
23 - Edward Charles Rutherfurd
please see: WKR 1986 – volume 2 – page 807 - #6635
"Every man by nature is a freeman born; by nature no man cometh out of the womb under any civil subjection to king, prince, or judge.” - Rev. Samuel Rutherford, Saint of the Scottish Covenant (1600–1661)
........... SCOTTISH AMERICAN RIGHTS ...........
Do American rights under the First Amendment of the US Constitution cease to exist when a British court makes a ruling in the UK? That’s an interesting question and the answer is found within the American and British legal systems.
With all due respect for the office of Lord Lyon King of Arms, we of the Clan Rutherfurd are mindful of the fact that most people of Scottish descent live outside of Britain in our century. Since most Rutherfurds/Rutherfords are not British citizens we find it unacceptably confining to have the Lyon Court intervening into the affairs of our family. With regard to the Rutherfurds of Edgerston here in the USA, it must be said flatly, American courts do not acknowledge the judgments or authority of foreign courts such as the Lyon Court, especially when they contradict the First Amendment of the US Constitution. No American is subject to the dictates of a foreign court or monarch. Decisions made in foreign courts deny our basic rights as Americans to "a government of the people, by the people and for the people". Any attempt by the Lyon Court to control the actions of American citizens constitutes a blatant assault on American sovereignty and our individual rights.
The Lyon Court is, at its core, a non-democratic institution which employs procedures and burdens of proof alien to our democracy. The Lord Lyon is appointed by the Queen of England and is NOT elected or selected by any democratic means …….. nor is the Queen. In fact, there isn’t even the right of appeal in the Lyon Court, as its purpose is not a judicial function, but an exercise of the “Royal Prerogatives”. Were those Americans who died for our freedom actually defending the “Royal Prerogatives” of the Queen of England and her appointee the Lord Lyon? We don't think so. The monarchy of Britain and the Lyon Court have nothing to say about the private decisions of any American citizen or family.
"Surely there's a principle at stake, and the principle is whether we yield jurisdiction, hence part of our sovereignty, to a foreign entity constituted not by American citizens under the U.S. Constitution, which protects society and citizens, but to a foreign entity over which we have no sovereign control." [Representative Henry Hyde (Illinois) Chairman of the House International Relations Committee]
“Even decisions rendered by judges in democratic countries, or by judges from those countries who sit on international courts, are outside the U.S. democratic orbit. This point is obscured because we think of our courts as "undemocratic institutions”. But that is imprecise. Not only are most state judges elected, but federal judges are appointed and confirmed by elected officials, the president, and the members of the Senate. So our judges have a certain democratic legitimacy. But the judges of foreign countries, however democratic those countries may be, have no democratic legitimacy here. The votes of foreign electorates are not events in our democracy” [Judge Richard Posner, U.S. Court of Appeals for the Seventh Circuit]
Even Scottish case law has established that the Lord Lyon has nothing to say about the chiefship of any clan.
Lord Wark, in Maclean of Ardgour v. Maclean 1941 S.C. at p. 657:
"I agree with your Lordships that Lyon has no jurisdiction to entertain a substantive declarator of chiefship of a Highland clan, or of chieftainship of a branch of a clan. The question of chiefship of a Highland clan, or chieftainship of a branch of a clan, is not in itself, in my opinion, a matter which involves any interest which the law can recognise. At most, it is a question of social dignity or precedence. In so far as it involves social dignity it is a dignity which, in my opinion, is unknown to the law. [...] in my opinion, there is no practice or precedent which entitled Lyon to decide a question of disputed chiefship or chieftainship, either by itself or incidentally to a grant of arms.” )
“In my opinion, it is outwith his jurisdiction to decide because (1) at best it is a question merely of social status or precedence; (2) this social status is not one recognised by law; and (3) and, most important of all, it depends, not upon any principle of law of succession which can be applied by a Court of Law, but upon recognition by the clan itself. Like your Lordship, I am at a loss to understand how any determination or decree of Lyon ever could impose upon a clan a head which it did not desire to acknowledge.”
For all those concerned with the issue of the Chief of Clan Rutherfurd, we are of the opinion that the Lyon Court is not in authority over the private decisions made by US citizens. Therefore, we have chosen to use the family's traditional designations to honor our Scottish ancestry. The American Edgerstons have an unquestionable descent from the last chieftain John Rutherfurd (1748-1834). John Rutherfurd was childless and left the ancestral home of the chief, Edgerston, to his nephew William Oliver-Rutherfurd. William's descendants immigrated to the USA, where they currently reside. We feel that John Rutherfurd's wishes and intentions should be accepted and his devotion admired.
........... A BRITISH COURT AND AN AMERICAN CHIEF ...........
As of July 4, 1776 the United States of America is a sovereign and independent state. The Lyon Court serves at the pleasure of the British Crown. An American citizen may confer with the Lyon Court, but the Lord Lyon has no authority in the USA nor does this court have any authority over any American citizen.
The Paris Peace Treaty of 1783 - Article 1:
“His Brittanic Majesty [George III] acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states, that he treats with them as such, and for himself, his heirs, and successors, relinquishes all claims to the government, propriety, and territorial rights of the same and every part thereof.”
In other words, George III and all his descendants ceded their authority over all American Citizens FOREVER..........the Lyon Court is an agency of the British Crown and has no authority in the USA since July 4, 1776, the surrender of Cornwallis at Yorktown on October 19th, 1781 and the resultant signing of the Paris Peace Treaty in 1783.
The US Constitution is a covenant between 50 sovereign states. The constitution not only requires a republican form of government, it also prohibits the issuance of noble titles – including chieftainships. Titles of nobility cannot legally be issued or acknowledged by any entity in the United States of America, either Federal, State or local. This includes “chieftainships” authorized by the Lyon Court. With that in mind, the US Constitution prevents the issuing of any titles or patents of nobility and it prevents any state or subdivision from doing the same. It further prohibits any American Federal official from accepting a noble title.
U.S. Constitution - Article VI, paragraph 2:
"...all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, anything in the Constitution or Laws of any State to the contrary notwithstanding."
In other words, a legally framed US treaty does not, may not, cannot, and is forbidden to overrule the U.S. Constitution or abrogate the sovereignty of the United States. No treaty exists between the Lyon Court and the US government or is such a treaty legally possible in the USA. The Lyon Court was an "enemy agency" during the Revolutionary War and the War of 1812 and, as such, had/has no authority in the USA per section 2 and 3 of Article III of the US Constitution.
U.S. Constitution - Article III - Section 2
"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."
In other words, the supreme legal authority over an American citizen is the US Constitution, the Laws of the United States, and treaties made by the US government. The Lyon Court has no treaty with the USA. Therefore, the rulings of the Lyon Court are not binding on any US citizen.
U.S. Constitution - Article III - Section 3
"Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort."
In other words, to have acknowledged the "authority" of the Lyon Court during the Revolutionary War would have been an act of treason. So much for members of the SAR and DAR who acknowledge the Lyon Court while claiming descent from revolutionary patriots - pure hypocrisy.
The US Federal Oath of Office:
"I, (state your full name), do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God."
In other words, the authority of the Lyon Court is rejected by oath by all public servants of the USA; civil, judicial and military.
The Naturalization Act of 1795
Section 1.............. "First, he shall have declared, on oath or affirmation, before the Supreme, Superior, District, or Circuit Court of some one of the states …….. of the United States, three years at least before his admission, that it was, bona fide, his intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty whereof such alien may at that time be a citizen or subject.”
In other words, the authority of the Lyon Court as a "foreign prince, potentate, state, or sovereignty" is rejected by all naturalized citizens of the USA in order to become an American citizen. In addition, Federal law requires as part of the process of becoming a citizen that a person renounce all noble titles. So, when a person takes the Citizenship Oath, the presiding official first asks if any person present has a noble title, and asks them to first make an oath that they forsake permanently and irrevocably said title………this would include a “chieftainship” authorized by the Lyon Court. For an American, Scottish chieftainships are purely a bi-product of genealogical descent and do not involve foreign courts. Foreign courts have no authority in the USA.
Edward Charles Rutherfurd is chief by right of descent from the heirs general of the Rutherfurds of Edgerston and his proven genealogy is well established.
........... LEGITIMATE DECENT THROUGH THE MATERNAL LINE ...........
Some of the oldest peerages, such as the Lordship of Edgerston, were created by writ not by letters patent. In the case of Edgerston, there is no specific limitation as to heirs male in its charter of 1506/7, so the title descends to the heirs general.
There are two main methods of descent in Scottish law. Remainders can be to the “heirs male” or to the “heirs general”. If 'male' is not specified in its charter, the term 'heir' by itself means 'heir general', in which case, females are taken into account and can inherit. This is how we get so many Scottish noblewomen holding very ancient titles in their own right, not to mention several female clan chiefs.…………see Helen Rutherfurd below.
On September 15, 1492 on his own resignation Lord James Rutherfurd II had a new charter from William Douglas of Cavers, of the lordship of Rutherfurd, which was confirmed January 15, 1492/3 by the king who the same day gave James a fresh charter of his other lands held directly from the Crown: the lordship of Edgerston, half the barony of Hownam (Swinside, Capehope, Philogar and Cunyarton), the barony of Browndoun (Elphinshope and Eddillishede), 10 librates of land in Maxton and the patronage of Bedrule church.
A much later charter refers to 8 acres of Menslaws that once belonged to the laird of Rutherfurd. Both charters specified the entail to James and his heirs male, at his death to his grandson and apparent heir Richard and legitimate heirs male of his body, failing whom in succession to James' sons John, Thomas, Robert and Andrew and their heirs male, and finally to the legitimate and nearest heirs male whomsoever bearing the surname and arms of Rutherfurd:
“legitimis et propinquioribus heredibus masculis quibuscunque cognomen et arma de Ruthirfurd gerentibus.”
Nothing could be plainer; the remainder was intended to be restricted to heirs male……..but that is not what happened. The Crown served Helen Rutherfurd sole heir to her grandfather and brother, despite protests by her uncles Thomas and Robert who adduced the 1492 charter. The Crown ruled that the 1492 charter was invalid since it was made during a royal minority. Helen had royal confirmation on December 5, 1506 of her entire lands which she had resigned in ‘pura virginitate’ to be formed into the barony of Edgerston, with remainder to the survivor, their issue and Helen Rutherfurd's heirs. In short, the original Edgerston charter which specified “heirs male” was revoked by the King of Scotland and Edgerston’s charter was redrawn by writ NOT patents and thus has no specific limitation as to heirs male. The charters of Hunthill and Fairnington do. .
The Crown ruled further concerning the “heirs male of the body” issue at Edgerston in 1506/7. Helen Rutherfurd and her husband Sir John Forman were opposed by other male Rutherfurds, so they went to court to extinguish their claims. Obviously, if the Crown ruled in favor of the heirs male, then Helen Rutherfurd had no claim, but if the Crown ruled in her favor it would be through writ of heirs general NOT heirs male. Helen Rutherfurd saw the obvious risk to her claim. Through the efforts of her husband, the Crown brought an action in January 1506/7 against all the surviving male Rutherfurd heirs which annulled the 1492 charter and any claims of “heirs male”. Helen Rutherfurd had won her case. .
Therefore, the Edgerston charter is by writ and operated through “heirs general” not ‘heirs male of the body”. Edgerston descended to heirs of the body, both male and female. This is not the case with the charters of Hunthill, Teviot and modern Fairnington.
Even though Helen Rutherfurd was married 4 times, she died without an heir. Ironically, Thomas Rutherfurd, the 3rd son of James Rutherfurd II, was the next Lord Rutherfurd. Nonetheless, the Edgerston Charter continued in “heir general” even though the family through primogeniture had no reason to revisit this issue until the inheritance of the Oliver-Rutherfurds - the current clan chief's family.
Gary Rutherford Harding
garyrharding@gmail.com