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Challengers View – Reflections on the Lyon’s Decision

18 Apr

Now that the dust has settled a bit and I have had time to reflect on the decision, I’m putting pen to paper (or fingers to keyboard) to give my perspective on the particulars of the case.  But first there are a number of people I need to thank.

First, thanks to Leslie Kenyon for all her research and hard work in trying to find a chief and her support and loyalty to me; second, to Mark Dennis for his making the process intelligible and putting forward a credible argument; third, thanks to Dave Pickens for putting me in touch with Romilly Squire and for his courteous and friendly neutrality; to Romilly Squire for encouraging me to transcribe the entail, giving me his opinion and liaising with Sir George Way of Plean; to Sir George for setting it up for me to engage the Ormond Pursuivant;  to C Stevens Cunningham for his chairing the Skype discussion between Sir John and me, during which, on reflection,  the battle lines were probably drawn; to Pat, Sheréll, Phil and Alex (the last who also deputised for me on the Council of Scottish Armigerous Clans & Families), to Blaine Berkowitz, Sketraw, Christopher Robert Bruce, Rodger Moffet and Malcolm Buchanan, who were always there for me when I needed support with kindness and words of encouragement.

Looking back to when I was first approached in 2009 – a time during which I was still settling into Spain – I was surprised that there were no better candidates than me for chief as my family had never been approached before.  I was told by a number of separate sources that the most obvious candidate for chief, Sir John Montgomery Cuninghame, Baronet of Corsehill, had declined to be so recognised when approached by David Pickens.  It was for this reason that Leslie Kenyon (who at that time bridged the two American Clan Societies) started to research other lines that might be eligible.

Leslie’s research revealed that my line was not only the closest to the last chief, John 15th Earl of Glencairn, but it appeared that from the terms of an entail of 1709, that William, 12th Earl, had intended his arms and dignities to pass along with the Finlaystone Estates to my ancestors.  I had been unaware of the exact terms of this entail, though it was the basis under which we had adopted the Cunninghame surname in addition to that of Graham in 1796, and by which my grandfather was able to place the Cunninghame Shakefork in the third quarter of his arms.  Though the task of transcribing it was arduous, it was also enlightening.  One of those enlightening aspects was the conspicuous absence of the Corsehill line from the entail.

By the Autumn of 2009, I had the backing of Clan Cunningham International and Leslie was in discussions with the Lord Lyon  and Sir Crispin Agnew of Lochnaw Bt QC, the Rothesay Herald, as to whether I had a plausible case and how I should proceed.  One of the requirements was to write to all other possible candidates for chief.  All but one wrote back to Leslie giving their blessing; the one objector was Sir John Montgomery Cuninghame of Corsehill, who was to later write to her, “You set out to find the true heir and although things will turn out rather differently from what you anticipated you should not be upset, because without your work and persistence nothing would have happened.” (e-mail 5th October, 2009, emphasis mine). Thus, despite his claim to be the de facto Head of the House of Cunningham on the grounds of being the “senior baron”, he admits that without my candidacy he would have done nothing to remove the clan from its armigerous status.

It should be noted that at no time did anyone (including Sir John himself) make any mention of his promise to formalise his “position as Head of the Family” if the Clan so wished, as stated in his Message to The Officers of Clan Cunningham International (which appeared on the website in January 2014 and also in the Unicorn and on the Facebook page). Even more astonishingly, further on in the same message he makes the astounding claim that:

“After a few months of preparation I was confident that the matter would be settled in a further two or three months. However a Respondent appeared and both my lawyers and the Lyon’s office had to consider the matter much more rigorously.”

As is apparent from his e-mail to Leslie (in which he also refer’s to “Robin’s candidacy” and putting “the RCG issue to bed“), he was well aware of my being on the scene before he ever lodged his petition [1].  Furthermore, in November, 2009, (following his having met with Lyon Sellars) we had a four way SKYPE meeting between Sir John and me (chaired by C Stevens Cunningham with Alex Cunningham as observer) in which it was agreed that we would both petition (the  Lyon Clerk later advised me that this was not the correct procedure and I should wait for Sir John to petition, as he had already started, and then lodge an objection).

Following the SKYPE meeting, Sir John moved quickly to a) engage Sir Crispin; b) lodge a rushed (and in my opinion very sloppy) petition to the Lyon Court in March 2010: and c) let it be known that he would win because he would outspend me (though he made absolutely no mention at any time of his intention to claim costs were he to win).  This left me the less envious role of challenger and without benefit of counsel.

It is not the easiest task to find a herald if one is unfamiliar with the Lyon Court and it took me the best part of a year, which delayed my lodging my challenge.  However, as the  Lyon’s Interlocutor, to which I responded by lodging my objections as I was enjoined, was not issued until February 2011, the delay was by the by.

Being obliged to take the role of challenger also meant that, despite there being some serious concerns about Sir John’s motives and his not having an obvious heir, I was deemed to be in the wrong for testing my right to arms that I understood (erroneously, in the judgement of Lyon Sellars,  it turns out) had been passed to my family by Earl William’s entail.  Thus, some people, who had welcomed my appearance as a candidate in 2009, now became quite upset.  They now viewed me as an interloper who, rather than working for the good of the clan, was at best delaying proceedings or at worst trying to split it (echoing Sir John’s view in his message to the Officers of CCI quoted above).

However, there were at least as many who continued to support me, and as time passed, more and more gave me their tacit approval.  I tried always to be a gentleman, give credit where due, be cooperative, and to act in a chiefly way rather than just wait passively.  For me it was all about duty and service to the House of Cunningham, irrespective of personal cost; for Sir John, so it seems to me, my claim was an invidious challenge to his “birthright” and an unwanted pressure to take action.

The long process was lengthened by Sir John’s highly unusual and unnecessary (as it added nothing new) demand for a third set of answers and responses (without which things could have been settled a year earlier!), to which I agreed as a matter of courtesy (just as I had, out of courtesy) made my transcription of the entail – worth over £500 – available to his legal team without cost).  This unnecessary extension was further complicated by a 6 month delay between the request by Sir John and the receipt of his answers, followed by a similar delay on my side (in Ormond’s defence, he is a full time Tribunal Judge and only a part time herald who, unlike Sir Crispin, had no solicitors to support him).  As a gesture of goodwill, I offered Sir John a compromise: I recognise him as Chief and he recognise me as his heir for Head of Family.  This would have curtailed costs, sped up the decision and ensured a successor.  Sir John rejected it out of hand.

Finally, in 2013 (some 4 years after I was first approached and had talked to Sir John), dates were set for a meeting between the two parties, for the submission of arguments and the presentation of cases before Lyon, who had promised to give his decision before his retirement.  This he did on 18th December, 2013.

Where some had been upset that I challenged Sir John, others were equally upset that I kept my promise not to contest the decision when it went against me.  This promise was based on two practical premises:  1) it would unnecessarily further delay the process of appointing a chief and, thus, leave the clan in its armigerous state indefinitely; and 2) it was highly unlikely that there would be any grounds that stood a chance of winning a judicial review in the Court of Session (for which I would have had to pay both my costs and those of the Lyon, thus throwing bad money – which I don’t have anyhow – after good), which, indeed, on reading the judgement proved to be the case.  It had already cost me dear both in time and money and, now, may well cost yet more as Sir John has lodged a motion (to be heard in the Lyon Court) to recover costs arising from my challenge to his petition from me (knowing full well I haven’t the money).  I have it on  good authority that, while this is his right as victor, it his is highly unusual in cases such as this in the Lyon Court, where it is normally only used when there has been an abuse of the system.

So, most importantly, what does the Lyon decision actually mean for the House of Cunningham, apart from the obvious that it recognises Sir John as Chief of the Arms and Name of Cunninghame and removes it from being armigerous?

First, it means that Sir John, once he has been granted the arms can pursue his claim for the dormant Earldom of Glencairn (providing he can objectively prove his genealogy, something that he has thus far singularly failed to do), which is, in my opinion (based on our one and only conversation), his true motive for wanting to become chief – I unreservedly apologise to him if I have misjudged him, but my view was independently corroborated by one of his  clansmen who informed me that Sir John “valued the Earldom far more than the Chieftaincy“.  (I suspect the reason Sir John did not petition the Lyon for the dormant Earldom is that the Rothesay Herald advised him that his case might well not pass the stricter genealogical requirements; and, indeed, as the Lyon notes in his judgement, “I should emphasise, however, that no proofs were laid before this Court regarding the right of succession to the Earldom of Glencairn.”)

The worry that the House of Cunningham might gain an indifferent chief was also voiced by C. Stevens Cunningham (who, at that time, was Vice President of CCI) in an e-mail to Sir John and me ( 23 October, 2009) in which he wrote, “I hope that you, Robin and Sir John have given some thought about you role within the clan beyond the mere title of Chief of Clan Cunningham.  We do not seek an individual to be a Clan Chief in name only.“.  It is my hope that Sir John will have taken this message to heart and will prove to be more than just a remote figurehead.

Second, the ruling is very clear that based on Lyon’s interpretation of the entail, our failure to matriculate the arms within a reasonable time (despite it being within the Kintoul Captivity), in the eyes of the Lyon Court,  I am a Graham and not a Cunningham and thus have no claim to any role within the House of Cunningham.  Lyon Sellars decision effectively rules that my line is permanently excluded from ever becoming chief.  Given this fact, Sir John’s age, and his removal of my line from the succession, I think it is incumbent on him to now announce a successor so as to dispel the fear that the House of Cunningham will revert to its armigerous state on his death, thus, forcing the clan to start its search from scratch for a different chiefly line.

Third, I cannot take any leadership or active role within the House of  Cunningham (even were Sir John to permit it, which I sincerely doubt) as it would now be inappropriate.  While Clan Cunningham was armigerous, I did not have to choose between clans (one can only belong to one as it is as much about allegiance to the chief as it is blood); but now Lyon has made it clear that by both blood and arms he considers me to be a Graham and not a Cunningham and so my allegiance must be to Montrose (there not being any Mentieth chief).  So, I must step back and let the new chief take on his duty untrammelled by a failed pretender.  I will, though, continue to take a keen interest in both Clan Cunningham International and the House of Cunningham and hope one day to be able to meet up with folk at one of the clan tents.

Lastly, I am glad that I had the opporunity to meet so many wonderful Cunninghams, some of whom have remained good friends, on my way through this costly and arduous process; and to the new chief and all Cunninghams everywhere, I wish you well for the future.

[1] I had written him an introductory e-mail on the 16th September, 2009, in response to his having objected.  The e-mail is reproduced here:

W R B Cunninghame Graham

Sir John Montgomery-Cuninghame, CC: David Pickens

16/09/2009

Dear Sir John

I thought I ought to make contact and introduce myself as we are, apparently rivals (I hope amicable) for the chiefship of the Cunningham family.  This was not something I sought, but was willing to take on if that were my duty.

It came as a complete surprise to me when I was contacted by a member of the two Clan Societies in the USA and given information about the 12th Earl’s entail and it’s implications with regard to the clan gaining its first officially recognised chief since the death of John, 15th Earl.  Until that time, I was unaware of the contents of the entail, though I imagined there must have been one for the Finlaystone Estate to have passed to my family. 

At that stage, I did enquire as to whether there wasn’t a nearer heir, but was told that I had the best claim, a point which I understand is now being investigated by Sir Crispin Agnew on behalf of Clan Cunningham International.  I’m sorry if this has disconcerted you – if it has, I would find that entirely understandable – but would like to assure that it was not by any malice on my part towards you or your honourable family.

I have had several conversations with David Pickens (a delightful Southern gentleman) and exchanged e-mails with C Stevens Cunningham and Leslie Kenyon (also with Jack Cunningham, who until recently was an officer in Clan Cunningham of America and Keith Cunningham Grahame – no relation –  in Ireland).  Like you, I have been asked to be part of the advisory council to CCI and have accepted that role.

I have not yet approached Larry Augsbury for reasons that I think are obvious to both of us.  It appears to me that he is oblivious to the fact that his actions are damaging to the good name of Cunningham, which he claims so vigorously to defend, and that he is out of touch with his membership, who wish to see a chief in place.  Personally, I think it is very sad that someone who has given so much to the family has so lost his way.

Anyway, this e-mail is longer than I intended.  I look forward to working with you on the advisory group and in the best interests of Clan Cunningham worldwide. 

Yours respectfully

Robin

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