IT is impossible to tell the story of the great Clan Douglas without a long reference to the great 18th century Douglas Cause – still the longest and most expensive civil court case ever held in Scotland.

But first an apology – in last week’s column I wrote that the Earldom of Douglas was given to the 4th Earl of Angus, leader of the Red Douglases, after the 9th Earl of Douglas was attainted. Harold Edington of the Clan Douglas Society of North America queried this assertion, and on further checking I can see that it was the Lordship of Douglas, not the Earldom, which went to the 4th Earl of Angus. Happy to correct that, and delighted to know that readers across the Pond are following this series on the Douglases, which ends today.

I left off last week with the succession of James Douglas to his grandfather, as 2nd Marquess of Douglas. William, the 1st Marquess, had numerous children by his two wives, including William, the 1st Earl of Selkirk and George, 1st Earl of Dumbarton – the title now held by Prince Harry.

Meanwhile, other branches of Clan Douglas had been on the rise, the Douglases of Dalkeith becoming Earls of Morton in the 16th century (as promised, the 4th Earl of Morton will feature in my next series, due to his role in the life and times of Mary, Queen of Scots).

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In the late 17th century, the Douglas Earls of Queensberry rose to being the Dukes of Queensberry, with the 1st Duke of Queensberry, William Douglas, marrying his distant relative Lady Isabel Douglas, daughter of the 1st Marquess of Douglas. The 2nd Duke of Queensberry, known as the Union Duke, played an important part in securing the Act of Union in 1707, for which service he was also made Duke of Dover.

It was Archibald Douglas, second son of the 2nd Marquess of Douglas who was made the 1st Duke of Douglas in 1703 at the age of nine by Queen Anne, as she wanted the powerful clan on her side. It was the Douglas Earl of Angus who raised the Cameronian regiment in 1689, and no doubt Anne remembered how they had been victors at the Battle of Dunkeld against the Jacobites. The Douglases remained attached to the Hanoverian dynasty thereafter, and mainly fought against the Jacobites in 1715 and 1745.

The Duke played his part in the first Rising, but largely stayed inactive during the ’45. He returned to prominence by playing his part in the Douglas Cause, which held the attention of Europe in the 1760s – not least because the litigation was held in three countries, Scotland, England and France, and featured a hugely wealthy noble family fighting among themselves – think Downton Abbey writ large with pistols and dirks.

THE Douglas Cause is a very complicated story, but it helps that there are copious accounts of it; not the least of which is a remarkable series of articles and books by James Boswell, the Edinburgh lawyer who found his greatest fame as biographer of Dr Samuel Johnson.

Sir Herbert Maxwell in his History of the House of Douglas also tells of the run-up to the Cause.

In brief, the facts are these: Duke Archibald Douglas grew increasingly disturbed as he got older, and the fact that he was unmarried and childless meant that his vast fortune and land holdings, not to mention his accumulation of titles, would pass to his heir apparent, his sister Lady Jane, described by Maxwell as “beautiful and witty”. If she remained childless, the Dukedom would pass to their second cousin, the Duke of Hamilton.

Lady Jane surprised the Duke and her family at the age of 48 by secretly marrying a penniless soldier, Colonel Sir John Stewart of Grantully, in 1746. He was a Jacobite and the Duke responded angrily to her dalliance with Stewart, so much so that the couple moved to France, pursued by creditors, and only two years later admitted to being married.

She had to reveal the secret because she was then pregnant, and gave birth to twins at the age of 50 on July 10, 1748. Sir Herbert Maxwell was in no doubt that she did indeed have the twins, who were named Archibald and Sholto, both traditional Douglas names. The Duke responded by cutting off the £300 a year allowance he paid to his sister, as a result of which Colonel Stewart was imprisoned for his debts. Lady Jane tried to meet with her brother back in Scotland, but for whatever reason he failed to make the meeting, and worse came in 1753, when Sholto Stewart died. She returned to Edinburgh and died there – Maxwell said of a broken heart – on November 22, 1753.

Meanwhile, very late in life the Duke himself got married to another Douglas, Margaret, daughter of James Douglas of Mains in Dunbartonshire – Douglas Academy stands today on the land of Douglas of Mains.

Possibly because she hated the Hamiltons, Duchess Margaret begged her husband to recognise his nephew Archibald as his heir. He was brought up by the Queensberry Douglases, and later changed his name from Stewart to Douglas.

Just before he died in 1761, the Duke of Douglas changed his will to make Archibald his heir. There is some evidence he did so in remorse at the ill-fortune he had visited on his sister, but most likely Duchess Margaret finally convinced him to do what she thought was the right thing.

James Hamilton, the 7th Duke of Hamilton and 4th Duke of Brandon, who had succeeded his father in 1758 at the age of two, inherited the title of Marquess of Douglas and Earl of Angus when the Duke died in 1761. Yet, the Duke’s property and lands went to Archibald Douglas, plus an income of £12,000 a year, now worth more than £2 million.

Still only a child, his family went to court on Hamilton’s behalf and on December 7, 1762, they began a legal action challenging the legitimacy of Archibald Douglas and thus his right to inherit the Douglas fortunes. The wording of the first Hamilton submissions to the Court of Session in 1763 were blunt: “That the defender, now calling himself Archibald Douglas Esq, was not a child procreate of the body of Lady Jane Douglas, but on the contrary is a supposititious (fraudulent replacement) child and an impostor.”

It was staggering accusation, and over the next few years the case would cause a sensation, with people like David Hume and Adam Smith arguing over it, while Dr Johnson also commented, in doing so annoying his friend and biographer James Boswell.

He wrote: “I am going to plead the cause of Mr Douglas. I own I am most warmly interested for him; but I trust that I have examined his cause with impartiality.”

Boswell, the Edinburgh lawyer, cuts straight to the nub of the matter – if Archibald was the son of Sir John Stewart and Lady Jane Douglas, it was an open and shut case: “Therefore it is, that according to law, to ascertain the birthright of the subject, so as to entitle him to succeed to the greatest estate and honours, nothing more is required than his being acknowledged by two married persons as their child, and being commonly reputed to be so.”

The problem for the Douglases was that witnesses to Lady Jane’s pregnancy and the twins’ birth had disappeared, especially the male midwife said to have delivered the children.

Then Boswell the campaigning writer kicks in: “The Douglas cause has now made a noise all over Europe; and indeed no cause ever came before a court of justice, so interesting in its nature, and of such universal importance.”

His view of the Hamilton faction was scathing and clearly briefed by the lawyers for Archibald Douglas, he wrote: “The family of Hamilton and their adherents, had long carried on designs to obtain the succession of the Douglas estate, on the decease of the late duke; and had succeeded so far, that the duke had actually made a settlement upon that family, in prejudice of Mr Douglas, his nephew, the defendant in the Douglas cause, who was artfully represented to the duke as a supposititious child.

“In this situation matters continued till after the duke’s marriage, when the Duchess of Douglas, who was fully convinced of the iniquity of all the accusations brought against Lady Jane Douglas, sister of the duke, and mother of the present defendant, exerted herself with a spirit and generosity which will ever do her honour; and was so happy as to undeceive the duke, and to prevail with him.”

Boswell revealed to his readers that before her death, Lady Jane had taken her son’s case to the highest in the land: “She consulted my Lord Prestongrange, then his Majesty’s advocate for Scotland, in whose judgment and honour she had a perfect confidence, assuring him, that God knew her innocence, and that the children were hers: that she did not doubt but that the man-midwife was still alive; and that if his Lordship thought it necessary, she would bring any proof that should be thought proper.

“His Lordship, with a spirit worthy of himself, and of the person whom he was addressing, answered her Ladyship: ‘That she needed give herself no uneasiness about that matter; for that as she and Mr. Stewart acknowledged these children, there was no further proof necessary; for it behoved those who challenged the birth to prove that they were not her Ladyship’s children.’”

It was on this point that the Hamilton case struggled, for Lady Jane Douglas had an impeccable reputation and they simply could not prove beyond doubt that Archibald and Sholto were “bought in” and not the children of Sir John and Lady Jane.

The legal documents piled up, and according to the excellent douglashistory.co.uk website “by 1767, at the request of the judges, each side had published memorials – 1000 page statements of their cases, containing letters, documents, witness reports, affidavits, citations of Scots and French law and anything else that the lawyers could think of. For the legal profession the case was a bonanza, lasting eight years and racking up costs of £52,000 before it was resolved. Litigation took place in Scotland, England and France, with immense public interest throughout Europe being taken in every stage of the process.”

In the longest ever pleadings before the Court of Session, 24 lawyers made speeches over the course of three weeks. At the end of the case on July 14, 1767, judges were tied 7-7 on their verdict and the Lord President, Robert Dundas, gave the casting vote in favour of the Duke of Hamilton.

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Nevertheless, Archibald’s lawyers continued to fight the case and appealed to the House of Lords. Public feeling was running very much in favour of Archibald Douglas, and when the Lord unanimously voted for him and against the Duke, the Edinburgh mob rioted and smashed the windows of the residences of those judges who had voted against him.

The Hamiltons became the Douglas-Hamiltons and that is why there is no chief of Clan Douglas as the Lord Lyon King of Arms says a clan must have a single name. The current 16th Duke of Hamilton, Alexander Douglas Douglas-Hamilton, has probably the best claim to be clan chief, while his son Douglas is the Marquess of Douglas.

There have been many famous Douglases, and the family was featured in The Lady of the Lake by Sir Walter Scott – the great American abolitionist Frederick Douglass took his adopted name from them.

Sir Alec Douglas-Home, the former Prime Minister and Foreign Secretary is probably the best known member of the clan in recent history, and before anyone mentions Kirk Douglas, he was born Issur Danielovitch.

Next week: The Frasers.